Character of the Accused
Application
s109
The provisions on character of the accused only apply in criminal proceedings.
Evidence about character of accused persons
s110
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by the defendant to prove (either directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (either directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the opinion rule do not apply to evidence adduced to prove (either directly or by implication) that the defendant is not generally of good character. [Rebuttal]
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, then the hearsay rule, the opinion rule, the tendency rule and the opinion rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.
• The rationale behind this provision is that the fact finder will wrongly estimate the probative value of the accused’s good character.
• The prosecution must be able to rebut this evidence or the jury will be left with a totally misleading impression of the accused.
• It should be noted that where the accused does not put his character in issue, any prosecution evidence will be largely irrelevant - this is why the prosecution evidence is used to rebut.
R v Zurita [2002] (You can split good character evidence s110(3))
Facts: Zurita was convicted of aggravated assault. Defence counsel raised the issue of the defendant’s character, wishing to adduce evidence of no prior convictions for sexual offences while excluding the ability of prosecution to consequently adduce evidence of prior convictions of theft and assault.
• Trial Judge refused to allow this, saying that “when it comes to good character it is all or nothing.”
Held: per Howie J: s110(3) allows the splitting of character evidence, and s110(1) gives the accused a clear choice - he could put in issue the proposition that he was ‘generally a person of good character’ - alternatively, he could put in issue the proposition that he was ‘in a particular respect a person of good character.’
• If he decided to put in issue that he was “in a particular respect a person of good character” namely in respect of sexual misconduct with young children then the accused was not vulnerable to cross-examination upon his old convictions for dishonesty.
• It is clear that in this regard the Trial Judge was in error as he indicated that character was indivisible, which it is not - therefore the defendant was effectively deprived of placing evidence before the jury that he had no previous offences of child sexual assault.
R v TKWJ (2002) HCA (advance rulings)
Facts: C and K made allegations of sexual impropriety against T - the indictment of the charges only remained for C.
• T wanted to raise evidence of good character - C intended to use evidence of allegations of other sexual assaults by T on K.
• T then made a tactical decision not to lead evidence of character - but T’s barrister did not seek an advance ruling from the trial judge as to whether this evidence relating to K would actually be admitted, he merely assumed that this would be.
Issue: T appealed due to the failure of his barrister to seek an advance ruling - saying it caused a miscarriage of justice.
Held: Gaudron J: The advance ruling which was sought was not a ruling as to the giving of leave, permission or a direction required by the Evidence Act - thus it was not one authorised by a provision of the Act requiring the giving of leave, permission or direction.
• There being no power to make such a ruling, no miscarriage of justice was occasioned by council not seeking it.
McHugh J: found it unnecessary to deicide whether the trial judge had the power to give an advance ruling because the appellant (T) failed to show that there was a significant possibility that the judge would have exercised his discretion (under s137) and rejected K’s evidence.
• The possibility of collusion between K and C would not be a relevant factor as to the admissibility of the evidence. The use that can be made of the rebuttal evidence, as juries are told, is not that it can be used to say the accused would be more likely to commit the offence. It can only be used to rebut evidence showing T as being of good character. It simply neutralises the good character evidence, it can’t be used to show the accused was more likely to commit the offence.
Melbourne v The Queen (1999) (Direction as to character and credibility is at a Trial Judge’s discretion.)
Facts: The appellant was convicted of murder, was 61 years of age with no prior record other than a drink-driving offence in 1975. The defence argued diminished responsibility, a defence which depended on his credibility.
• Defence counsel put much weight upon the appellant's good character, and a direction was given to the jury on how good character evidence was relevant to establishing guilt, but did not direct them on how it was relevant to credibility.
• Melbourne appealed
Held: Appeal dismissed. There is no rule of law that, in every case where good character is raised, the trial judge must direct the jury as to the manner in which that evidence may be used.
• Per McHugh J: Directions should be particularly avoided where evidence of good character has no logical connection with the elements of the offence, as a mandatory direction is likely to divert the jury from properly evaluating the evidence - therefore here there was no miscarriage of justice.
• Per Hayne J, with Gummow J agreeing: Accepting as true the description of the appellant as an "amiable", "quiet" and "gentle" person would have no bearing on the question of whether the accused was deliberately feigning mental illness in interviews with police - in short, the evidence of good character was irrelevant to the credibility of the pre-trial statements and no direction was required on this point.
• If prosecution evidence is to be adduced in cross-examination of the defendant, the prosecution must get leave under s112/s192 to do so.
• Remember that in any case the court may exercise its discretion under s136 to limit the use of particular evidence.
Evidence about character of co-accused
s111
(1) The hearsay rule and the tendency rule do not apply to evidence of a defendant’s character if:
(a) the evidence is evidence of an opinion about the defendant adduced by another defendant; and
(b) the person whose opinion it is has specialised knowledge based on the person’s training study or experience; and
(c) the opinion is wholly or substantially based on that knowledge
(2) if such evidence has been admitted, the hearsay rule, the opinion rule and the tendency rule do not apply to evidence adduced to prove that that evidence should not be accepted.
• It is necessary that the accused and the co-accused are being tried together - if one co-defendant can adduce expert character evidence about another co-defendant (e.g. by calling a psychologist) under s111(1), then it may be rebutted under s111(2).
s112
A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.
• This discretion to grant leave will overlap with the court's discretion to exclude prosecution evidence in ss135 and 137. Considerations of fairness will no doubt play an important role.
Stanoevski v The Queen [2001] HCA (s112 used with s192.)
Facts: This case concerned a solicitor practising in Bankstown and her two paralegals conspiring to defraud the NRMA by faking theft of a car.
• Her defence consisted solely of her good character, and being ‘not a person who would do something like this’.
• The prosecution could only find evidence to rebut her good character through a complaint to the Law Society that she ‘may’ have forged a client’s signature - the analysis did nothing to rebut her good character.
• However, the Trial Judge allowed this evidence in and allowed cross-examination on it.
Held:
• s112, requires that leave of the court be obtained before a defendant may be cross-examined about matters arising out of character evidence.
• (2) In exercising its discretion to grant or refuse leave to cross-examine a defendant on character, the court must take into account the matters prescribed by s 192(2) - one of the considerations being adding to length of hearing where to do so would be unfair - given probative value of report on handwriting (concerning the forged signature) was very low, cross-examination on the report raised grave possibility of unfairness to appellant.
• (3) Accordingly, the trial judge should have exercised his discretion under s192 (and also possibly s137) to refuse to admit the evidence and prevent cross-examination - thus there was a miscarriage of justice.