What's in an issue? An Analysis of Propensity Evidence and Acquaintance Sexual Offending

Abstract

In 2006, the notoriously difficult common law rules relating to “similar fact” evidence were codified into s 43 of the Evidence Act 2006. Soon after the passage of the Act, public disquiet arose following several high profile rape trials and subsequent acquittal of three New Zealand police officers. One of these trials involved the complainant, Louise Nicholas. This disquiet arose due to the public perception that there was evidence of previous convictions of two of the accused which should have been put before the jury. The Law Commission, after having been asked to review the law in this area, resisted public pressure and concluded that a further reform was premature and that time was needed to determine how the courts would interpret the provisions. The purpose of this paper is to assess whether the concerns raised by the public which arose in respect of the police trials has been addressed. This paper ultimately argues that regardless of how well the provisions are working, they are not responsive to the concerns of the public.