In Fenemor v R [2011] NZSC 127, the Supreme Court declined to establish a rule excluding, as propensity evidence, evidence of facts on which the defendant had previously been acquitted ("acquittal evidence"). The Court held that in each case admissibility of acquittal evidence will depend on its qualifying under s 40(1) of the Evidence Act 2006 as propensity evidence and then on its surviving the weighing of probative value against risk of unfair prejudice required by s 43.
The Court declined to give examples of when unfairness might make such evidence inadmissible, beyond that mentioned in Degnan [2000] NZCA 321, [2001] 1 NZLR 280 (CA) of an alibi having been the basis for the earlier acquittal. It was preferable that the case law should develop over time as questions of unfairness are very case-specific.
A challenge addressed to the acquittal dimension of the propensity evidence must demonstrate a logical connection between the acquittal and the claimed unfairness.In Fenemor it was argued unsuccessfully that the defendant would have to give evidence if the evidence was ruled admissible and that this was unfair. The Court, upholding the reasoning of the Court of Appeal, held that he would be in the same position if the evidence had led to a conviction, or if no earlier charge had been brought, so there was no logical connection between the acquittal and the claimed unfairness. Similar reasoning applied to a submission that the prior acquittal evidence would lead the jury to reason wrongly. Nor was it correct to argue that it would be unfair to adduce the similar facts that the previous jury had rejected, because that jury had only seen "one frame of what was now known to be a bigger picture" [22].
Assessment of the probative value of the evidence in relation to the present charge is different from assessing its value as proof of the earlier charge, and a priori there is no basis for a general conclusion that acquittal evidence has different probative value from propensity evidence that has not led to any charge [23].
