Pre-trial hearing — admissibility of evidence — propensity — Australian conviction — aggravated burglary — robbery — wounding with intent to cause grievous bodily harm — kidnapping — Evidence Act 2006, ss 7, 8, 9 & 45 — Criminal Procedure Act 2011, s 101 — Mahomed v R [2011] NZSC 52. The defendant, along with his brother, faced one charge each of aggravated burglary, robbery, wounding with intent to cause grievous bodily harm and two charges of kidnapping. It was alleged the two men had gone to the address of the two complainants armed with guns, threatened them, demanded money, locked them in a car and assaulted one of the complainants. Counsel for the Crown sought to admit propensity evidence relevant to the defendant at the jury trial. The evidence was a single conviction recorded against the defendant in Australia. That offending involved the defendant and two other men going to an address where multiple people lived with weapons, threatening them, demanding money and injuring one of the people. The Crown sought to admit the evidence in support of a complainant's identification evidence. At this hearing counsel for the defendant, without warning, notified the Court that he would be contesting the admissibility of that identification. If this propensity evidence was allowed, and the identification evidence was not, the admissibility of this evidence would possibly require re-visitation. However, in the interests of time, the Judge considered whether the Australian conviction was admissible at this stage of proceedings. Counsel for the Crown pointed out similarities between the offending including the threatened use of a firearm in a coercive way to get money, the unlawful entry into a building, unlawful detention, demand for property with the menacing threats and actual harm. Given the nature of both events there must have also been premeditation and planning. The Judge also considered whether the evidence would prejudice the defendant to the extent that any probative value was outweighed. It was noted that it is the nature of propensity evidence that a defendant is prejudiced simply because it strengthens the Crown case, but the focus is on illegitimate outcomes. Legitimate prejudice exists in all cases. No defendant comes to Court free of the prejudice of the evidence that the Crown can call. That is the nature of criminal litigation which exists within the boundaries of the burden and standard of proof. The Judge decided the evidence was admissible. The facts of both incidents were very similar and it was relevant and probative. Judgment Date: 4 February 2019.