The case for principled and practical propensity evidence reform

Abstract

In September 2017 the Royal Commission into Child Sexual Abuse identified the exclusion of propensity evidence as "one of the most significant [criminal justice] issues". To gain admission propensity evidence must satisfy certain potentially stringent requirements. The Royal Commission, drawing on case studies, submissions and commissioned research, concluded that propensity evidence is more probative and less prejudicial than traditionally appreciated. It recommended that the admissibility requirements be relaxed. A working group of the Council of Attorneys General (CAG) developed a set of model provisions to implement the Royal Commission’s recommendations. Late last November the CAG announced that UEL jurisdictions would implement them. On 25 February 2020, the NSW Attorney-General was the first jurisdiction to introduce a Bill to implement the reforms. Unfortunately, the Bill raises real concern. It is appropriate for the propensity evidence to be admitted more readily. But the way the Bill goes about this increases the complexity and inefficiency of the law and unnecessarily increases the risk of prejudice.