Checklist:

1. Evidence probative because?

2. Is it character evidence?

Character evidence

3. If good character – how can D bring up? S 110 – in EIC or XE – and then hearsay, opinion, tendency and credibility rule won’t apply: Gabriel; Bartle; El-Kheir

4. If bad character – how can Crown bring up? Three ways

   1. rebuttal (Bartle; R v El-Kheir)

   2. XE on rebuttal

      1. Must seek and be granted leave under s 112, s 192: El-Kheir.

   3. Can get evidence in for specific purposes through specific exceptions: (i) credibility (ii) tendency/coincidence (iii) hearsay (iv) opinion

Co-accused?

5. If character evidence about an accused – how to bring up?

   1. Rebuttal evidence

   2. Lead expert opinion – under s 111

   3. XE on rebuttal or expert opinion – s 112

After?

6. Judges directions?

7. Limitations

8. Exclusions

1. What is the evidence?

Evidence may be relevant because?

• Accused’s claim of goodness open to challenge

• Accused has a tendency to act or think in a particular way (incriminating)

• Prosecution’s case does not merely reveal a coincidental innocent link between accused and crime charged

• Co-accused has aspects of character relevant to assessing co-accused’s guilt and/or credibility as witness

2. Is it character evidence? “Character refers to the aggregate of qualities which distinguish 1 person from another, or the moral constitution of a person; embodies the permanent + unchanging pattern of the nature of the individual concerned.”: Melbourne

   1. Note rationale for exclusion: that crime should be proved by evidence of the events: Dawson v R; judgment based on CE could be based on faulty logic, (Perry), canvassing past misconduct could be long (Pfennig).

3. Good character evidence of the D – D wants to bring it up? S 110.

• “The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character”: s 110(1)

Procedural note:

D should seek an advance ruling on admissibility and/or leave under s 192A – to find out what the Crown is going to adduce.

Issue 1#:“Adduced by” a defendant: Gabriel; Bartle; El-Kheir

• Adduced by a defendant means leading in evidence in chief or by means of XE: Gabriel

• “Adduced… to prove” infers that the evidence is adduced by the D with the intention to prove good character: Gabriel; R v Bartle; R v PGM (Bartle ‘ subjective intent’) and ‘R v PGM ‘ need for a conscious decision on part of accused… evidence to be intentionally and deliberately adduced for purpose of raising character’).

• Example of when you raise GC in XE: when you by way of a non-responsive answer deliberately blurt out good character evidence: Gabriel

• Consequences: Crown who traps the D into making assertions about his/her character will not have effect of raising character as an issue under s 110: R v PGM

Examples:

• Not adducing: In Response to “do you need a reason to attack people, do you”, D said “I suggest I don’t go around attacking people”: Gabriel

• Not adducing: in response to extensive XE on accuse’s Colombian connections and knowledge of cocaine manufacture and dealing in that country, said “Because I never been involved in any importation, been selling any drugs”. This anser in context no more than emphatic denial of guilt which he was entitled to perceive as having been strongly hinted at by the XE leading up to the question.

• Adducing: in adducing evidence of D being on a pension, inadvertently revealed that D had lied on centrelink claim. Even after two adjournments, D testified that he was telling the truth because he had sworn on the Koran and knew it would be harmful to his case. Clearly theyw re trying to present his honesty in a good light – ie he was a person who would never lie after having taken an oath on the Koran. Conscious decision to elicit responses that were obtained: El-Kheir

• Not adducing at first, then adducing: in El-Kheir at the start when the accused revealed that he had lied on his pension form – this was not adducing or conscious: El-Kheir

4. Bad character evidence of the D – Crown wants to bring it up?

Four ways for Crown to get in bad character evidence:
(a) Adduce rebuttal evidence: s 110(2)-(3) see Bartle; R v El-Kheir
(b) In addition to (a), XE on rebuttal evidence after seeking leave under s 112
(c) Adduce under specific exceptions

(d) XE on credibility evidence – under s 103, or 104 (if a D)