Pre-trial application — propensity evidence — prejudicial effect — doli incapax — sexual violation by unlawful sexual connection — Criminal Procedure Act 2011, s 147 — Oranga Tamariki Act 1989, ss 272, 272A(1)(d) & 322 — Crimes Act 1961, ss 21 & 22 — Evidence Act 2006, ss 7, 8, 40 & 43 — R v Kauakasi & Ors HC Auckland T014047, 9 August 2002 — R v Rapira [2003] NZLR 794 (CA) — Rei v R [2012] NZCA 398 — Tihi v R [2016] NZCA 211 — J (CA246/19) v R [2019] NZCA 429 — Mahomed v R [2011] NZSC 52 — Perkins v R [2011] NZCA 665 — Campbell-Joyce v R [2016] NZCA 192 — Hetherington v R [2012] NZCA 88 — R v Khan [2010] NZCA 510 — K v R [2014] NZCA 229 — R v E [2015] NZHC 208 — RP v R [2016] HCA 53. The young person faced four charges of sexual violation by unlawful sexual connection. It was alleged he had offended against a fellow pupil while at the same school together. The prosecution brought an application to have evidence of a former primary school principal of the young person admitted as propensity evidence, pursuant to s 43 of the Evidence Act ("the Act"). The evidence was that as an 8-year-old the young person had been involved in non-consensual sexual activity with other pupils, and had been spoken to by the principal. The principal also said that the young person had known that what he had done was wrong at the time. Further evidence from the complainant describing how the young person had offended against the complainant on multiple occasions which escalated in seriousness, was also sought to be admitted as both background relationship evidence and as orthodox propensity evidence. Given that the young person was 13 at the time of the alleged offending, the doctrine of "doli incapax" applied which stated that a young person is "incapable of evil" or that they do not have the relevant capability of forming criminal intent. This is a rebuttable presumption, whereby the prosecution has to prove that the young person knew what he or she was doing was wrong or contrary to law. The prosecution sought to admit these two pieces of evidence in order to rebut the presumption. The Judge ruled that the former principal's evidence did not fit the definition of propensity evidence as it "did not show a tendency on the young person’s part to behave in a particular manner or to have a particular state of mind". Instead it was to be assessed against the general admissibility criteria in ss 7 and 8 of the Act, so it had to be considered whether the probative force outweighed the prejudicial effect. The Judge determined that the evidence that the young person had been told previously that non-consensual sexual activity, regardless of the young person's involvement in it, was wrong and against the law was relevant and probative and consistent with precedent on the treatment of such evidence. The evidence was deemed admissible. In relation to the complainant's account of the facts, the Judge considered that it had a high probative value as otherwise there would be a gap in the narrative if the prosecution were required to omit facts surrounding the alleged indecent assault. This outweighed any potential unfair prejudice. It also showed a propensity for the young person to take the complainant to secluded locations and make uninvited sexual advances. The evidence was deemed admissible on the basis of its probative value and by a fine margin as orthodox propensity evidence. Judgment Date: 7 December 2020. * * * Note: names have been changed to comply with legal requirements. * * *