A propensity direction tells a jury that evidence bearing on an accused person's general disposition, or likelihood of behaving in a particular way, can only be used for a strictly limited purpose. Courts give this direction when character or conduct evidence has been admitted and there is a real risk the jury might misuse it to reason that the accused is simply "the type of person" who commits crimes. That reasoning is impermissible. The direction closes that door.
How a propensity direction differs from a tendency direction
Propensity evidence and tendency evidence are related but not identical. Both concern past conduct or character. The difference lies in the degree of specificity. A tendency direction governs evidence admitted to show a specific tendency, for example a tendency to behave sexually in a particular way with particular types of people. A propensity direction, by contrast, addresses the broader inference that a person is generally disposed to criminality or dishonesty.
In practice, a propensity direction is most commonly given where the prosecution has adduced character evidence, or where cross-examination of the accused has opened the door to evidence of prior bad character. The jury is warned it cannot treat that material as proof that the accused did the act charged simply because they're "that sort of person." The evidence may be used to assess credibility. It cannot be used as proof of guilt.
When does a judge give a propensity direction?
A judge gives a propensity direction whenever propensity-type evidence is before the jury and the risk of misuse is real. Three situations commonly trigger the direction.
- The accused gives evidence and is cross-examined about prior convictions or bad character after putting their good character in issue.
- The prosecution is permitted to adduce evidence of other discreditable conduct that does not meet the stricter tendency notice threshold.
- A co-accused introduces propensity evidence about the other accused, typically to deflect blame.
The direction does not need to be requested. Judges have an obligation to give it whenever the circumstances demand one, even without a defence application. That said, experienced defence counsel will often seek a specific form of words to ensure the jury receives the clearest possible warning.
What the direction actually says
The precise language varies between courts and jurisdictions, but the core message is consistent. The jury is told something along these lines: you have heard evidence about the accused's character or prior conduct. You must not reason that, because of that evidence, the accused is more likely to have committed the offence charged. You may only use that material when assessing whether the accused is a credible witness, if they have given evidence.
Some directions go further. Where the evidence of prior conduct is highly prejudicial, a judge may direct the jury to put it entirely out of mind for all purposes. That is a stronger remedy and is typically reserved for situations where the evidence should not have been admitted at all, or where its admission is so inflammatory that a standard limiting direction is unlikely to be sufficient.
The relationship to good character directions
Propensity directions and good character directions are two sides of the same coin. When an accused person has no prior criminal history and puts their good character in issue, they are entitled to a direction that their good character is relevant both to credibility and to the likelihood that they committed the offence. But once an accused loses the shield of good character by cross-examination or their own evidence, the prosecution may introduce character evidence, and a propensity direction follows.
It's worth noting that an accused person who introduces their own good character evidence, for instance through character witnesses, takes a calculated risk. If the prosecution then responds with evidence of bad character, the judge must direct the jury carefully on what that evidence can and cannot establish. Defence counsel need to weigh that risk before calling character witnesses at trial.
Why these directions matter in practice
Juries are not lawyers. Propensity reasoning, the instinct that a person who has done something wrong before is probably guilty now, is natural and deeply ingrained. That is precisely why courts treat it as dangerous. Research on jury decision-making confirms that prejudicial character evidence, even when accompanied by a direction to limit its use, can colour deliberations in ways that are difficult to reverse.
This is one reason why a tendency evidence objection is run so vigorously when the prosecution seeks to adduce past conduct evidence: keeping it out entirely is far more protective than relying on a direction after it has been heard. Once a jury has absorbed that a person has prior convictions or a history of similar behaviour, a limiting instruction cannot fully undo the damage.
Ann Valos Criminal Law, as an accredited criminal law specialist firm with over 15 years of experience, understands how critical it is to identify these risks early. Propensity directions are a last line of protection once the evidence is in. The stronger move is to prevent the evidence from reaching the jury in the first place, through timely objection and voir dire.
Jurisdictional variations
Australia does not have a uniform evidence law. NSW, Victoria, Tasmania, the ACT, and the federal courts operate under the uniform Evidence Acts, which provide a structured framework for tendency and coincidence evidence. Other states, including Queensland and South Australia, still apply common law principles. In common law jurisdictions the rules governing propensity evidence and the form of directions are more flexible, developed through case law rather than statute.
In uniform evidence jurisdictions, the admissibility of propensity-type evidence is closely tied to the tendency and coincidence provisions. A propensity direction in those courts often overlaps with, or is subsumed into, a tendency direction, depending on how the evidence was admitted and what the trial judge ruled on its permissible use. The distinction matters because the form of the direction shapes what the jury is and isn't permitted to reason from.
What defence lawyers should do
There are three practical steps that matter. First, identify the propensity evidence risk as early as possible, ideally before the trial begins. Second, object to any evidence that lacks a legitimate non-propensity use and press for a voir dire. Third, if the evidence is admitted over objection, request a clear and strongly worded direction that is delivered before the evidence is heard and again in the summing-up.
The timing of the direction matters. A direction given only at the end of a trial, after days of propensity evidence, is substantially less effective than one given at the moment the evidence is tendered. Judges increasingly give running directions precisely because the research supports early intervention.
If you are facing a matter where the prosecution is seeking to adduce past conduct or character evidence, Ann Valos Criminal Law provides specialist advice on challenging that evidence and securing the best possible directions from the court.