Character Evidence

In this, the final section, we shall look at issues of evidence of character. Character in this context, encompasses evidence that a person is generally disposed to act in a particular way, as well as evidence that they have acted that way in special circumstances and also evidence as to their general reputation within the community. The admissibility and effect of character evidence in proceedings where the accused decides not to testify is governed by the common law, whilst in cases where the accused does testify the area is governed by Section 1 of the Criminal Evidence Act 1898.

This been said the rules on good character are very similar whether or not the accused decides to testify. The relevance of good character evidence is that is it will bolster the Defendant's credibility on grounds of relevance towards his guilt. Its purpose is to attempt to help demonstrate that D is a person that can be believed when they say that they did not commit an offence. For example, the D is charged with theft. D tells the police that he did steal the items but only did so because he was threatened by Q. He says the same in his evidence in chief. D has no previous convictions. Thus D's good character is evidence that he may not have committed the offence because he is not that sort of person that would commit an offence and secondly that when he says he was threatened that it is likely to be true, as it goes to issues of credibility.

However the trial judge maintains discretion to exclude evidence going to the good character of the accused where he is satisfied that it would be an insult to common sense to allow it to be admitted.

As regards to a Defendant, the general rule is that no evidence can be adduced to show that he is of bad character unless it is similar fact evidence, or whether the accused has put his character in issue. This is colloquially known as his shield. Thus the prosecution cannot adduce evidence that the accused has been guilty of criminal acts other than those covered by the indictment to show the accused is likely to have committed the offence for which he is being tried per the case of Makin v AG NSW (1894). The accused "shall not be asked … any question tending to show that he has committed or been convicted of or been charged with any offence other than the one with which he is then charged, or is bad character" by virtue of the Criminal Evidence Act 1898, s 1(3) .

The Criminal Evidence Act 1898 section 1 preserves these common law restrictions, but alters the position where the shield is lost however. The shield can be lost when the Defendant, or one of his witnesses, or his advocate asks questions of the prosecution witnesses in order to establish his good character, or where the Defendant, or one of his witnesses, or his advocate cast imputations on the prosecution witness's character, such as calling them a liar, or where the Defendant gives evidence against a co-Defendant.

Thus, when the accused puts his good character in issue he can be said to be in risk of losing his shield. The Defendant may be asserting his good character or may be questioning the credibility of a prosecution witness.

Whether he has given evidence of good character is question for the Judge to answer and there is no strict rule that applies here. Generally it is likely to be an assertion that he is to be believed and is credible as he is asserting that he is honest and not the type of person to commit an offence. Generally statements are not likely to be an assertion of good character where the evidence merely suggests good character incidentally to a defence.

When will the Defendant be said to have cast imputations? Whether or not there are imputations depends on the facts of case and are a matter for judge to decide upon, again there is no strict rule; the court may decide there has been an imputation if allegations of dishonesty or fabrication arise. Allegations that a prosecution witness committed or caused an offence may be an imputation even if it is a necessary part of the Defence case. Equally there are several other rules. In a rape case the accused does not cast an imputation merely by the fact that he alleges that the complainant consented. Imputations can be express or implied. So in the case of R v Lasseur (1991) where the accused alleged that the prosecution witness, who had been his former co accused, was lying to achieved a lighter sentence, there was an express imputation. In the case of Britzmann (1983) a Police Constable had overheard D and C discuss an offence in the police cells. D denied that the conversations took place at all. It was judged that there was no possibility of mistake as D's defence meant that the police must be lying. Thus this was an implied imputation. However a simple denial will not always give rise to an imputation.

As regards Co-Defendants where D has given evidence against any other person charged in proceedings, thus giving evidence supporting the prosecution case or undermining the Co-D's case, but not amounting to merely a contradiction of the Co-D, then he may lose his shield and be questioned as regards his bad character. Note the case of R v Crawford (1998) where it was held that if D's denial in participation of a joint venture may lead to conclusion that the Co-D must have committed the crime, this resulting in the loss of his shield.

There is a judicial discretion to restrict questioning even if section 1(3) applies. The judge may refuse leave to the prosecution to cross-examine at all, or restrict the extent of cross examination. The judge will ask several questions in deciding upon this. Including, was the imputation necessary as part of the defence of the accused? What is its probative value against its prejudicial value? However, as regards to questioning by the counsel of the co accused, there is no discretion to prevent the cross examination. It should be borne in mind that any cross examination under section 1(3) (iii) is of relevance to credit only.

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