Propensity and Relationship Evidence in WA

The Law Reform Commission of Western Australia’s Final Report for ‘Project 112: Admissibility of Propensity and Relationship Evidence in WA’ was tabled in the Western Australian Parliament on 17 August 2022.

The Attorney General asked the Commission to respond to this question: ‘Having regard to section 31A of the Evidence Act 1906 (WA) and the more recently introduced section 97A of the Model Uniform Evidence Bill, what rules should apply to determine the admissibility of propensity and relationship evidence, and other evidence of discreditable conduct, so that all relevant evidence is available to West Australian courts, while also ensuring the right to a fair trial?’

This inquiry took place in the context of Western Australia’s likely adoption of the Uniform Evidence Law in the future. The Uniform Evidence Law has been enacted in the Commonwealth jurisdiction, as well as in Victoria, New South Wales, Tasmania, the Australian Capital Territory, and the Norther Territory. As set out in the Final Report: ‘it is a matter of public knowledge that new evidence legislation is currently being drafted to replace the Evidence Act. The new Act will adopt the UEL but will retain any Western Australian evidentiary provisions that are deemed sound’ (at page 5).

Ultimately, the Commission recommended that: ‘If the Uniform Evidence Law is enacted in Western Australia, it should adopt the Uniform Evidence Law’s approach to tendency and coincidence evidence, rather than inserting a reformulated version of section 31A of the Evidence Act’ (recommendation 1).

The Commission reached this view for a number of reasons. First, it noted the conceptual issue in that s 31A currently operates on the premise that propensity and relationship evidence is inadmissible unless it meets the requirements of s 31A. However, the Uniform Law makes all relevant evidence admissible unless otherwise provided (with the tendency and coincidence provisions then operating to render certain relevant evidence inadmissible). The Commission noted that the benefits of adopting the uniform provisions ultimately justified adopting the uniform approach rather than reformulating s 31A to work in the conceptually distinct Uniform Law context. Those benefits include a more uniform approach to the admission of propensity and relationship evidence throughout Australia; the utility of the body of case law concerning the uniform provisions from those jurisdictions; and that the uniform provisions are ‘easier to understand and apply than the s 31A test’ (at pages 8–10).

The Commission further recommended that:

‘The tendency and coincidence provisions should be available to assist in proving all offences, whether they are of a sexual nature or otherwise’ (recommendation 2);

‘A version of section 97A of the Uniform Evidence Law, which contains rebuttable presumptions concerning the admissibility of tendency evidence in criminal proceedings concerning child sexual offence, should be enacted. That provision should only apply to child sexual offences. It should make it clear that a child sexual offence includes an attempted child sexual offence. The provision should not apply to coincidence evidence’ (recommendation 3);

‘Parties should be required to provide notice of their intention to adduce tendency or coincidence evidence. The nature of the details that should be included in the notice, and the time within which the notice must be given, should be determined by the rules of court’ (recommendation 4); and

‘A version of section 101 of the Uniform Evidence Law that is currently in operation in the ACT, NSW and the NT, should be enacted so that tendency and coincidence evidence about the accused cannot be used against the accused unless the probative value of the evidence outweighs the danger of prejudice to the accused’ (recommendation 5).

You can access the Commission’s Final Report here.