#8532 - Character Evidence - Litigation 2

Lit 2 13-14 Character evidence (only for crim) 1

1. Prelim: relevance? 1

2. Is it character evidence? 3

3. Can D bring up good character evidence? S 110 (eg El-Kheir); remember to ask for s 192A 3

4. Can Crown bring up bad character evidence of the D? 4

5. Admitting character evidence about Co-accused? 6

6. Judges warnings 6

7. Limitation under s 136 (see El-Kheir and notes) 7

8. Exclusion under ss 135, 137 see notes on exclusions. 7

Note issue with tendency evidence adduced through the character exception affects limitation/exclusions 8

Appendix: Statute for Character evidence: ss 104, 110, 111, 112, 192 9

Checklist:

Evidence probative because?
Is it character evidence?

Character evidence

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
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?

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?

Judges directions?
Limitations
Exclusions

1. Prelim: evidence relevant?

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. Prelim: is it character evidence?

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. Can D bring up good character evidence?

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 D brought up by Crown	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)
4(a) rebuttal	(a) Rebuttal: s 110(2)-(3): If D brings up good character(Gabriel;Bartle;El-Kheir) If D has adduced evidence that D is a person of general good character, rebuttal evidence can be led to prove that D is not generally a person of good character (without the application of the hearsay rule, the opinion rule, the tendency rule and the credibility rule): s 110(2) If D has adduced evidence that D is a person of good character in a particular respect, rebuttal evidence can be led to prove that D is not a person of good character in that particular respsect (and the hearsay, opinion, tendency rule and credibility rule won’t apply to adducing of this rebuttal ev): s 110(2) Issue 1#: Has the D adduced evidence of good character? (see above) Issue 2#: Is the evidence adduced of general or particular character? Particular respect of honesty after swearing on Koran: in adducing evidence of D being on a pension, inadvertently revealed that D had lied on Centrelink claim. D testified that he knew it would be harmful to his case but as he’d sworn on Koran, he had to tell the truth. Two adjournments later, still qed on this point. Conscious decision to elicit responses obtained. D was held to have adduced evidence of good character in particular respect of being an honest person who would not lie having taken an oath on the Koran: El-Kheir Particular respect of not sexually assaulting boys: R v OGD
4(b) in addition to rebuttal evidence XE on this rebuttal evidence	(b) If want to XE on this character evidence – can seek leave under s 112: If crown wants to cross-examine D about that rebuttal evidence, D cannot be XE unless the court gives leave: s 112 (see s 192; Stanoevski.). The court must consider the factors in s 192(2): (a) length, (b) unfairness (c) importance of evidence. (d) nature of proceeding (e) power of court. Failure to mention will establish strong grounds of appeal where one or more of those conditions was material to the decision: Stevens. Issue 1#: Has the D adduced good character evidence in s 110(1)? Issue 2#: Does the Crown want to XE D on the character evidence? S 112 Issue 3#: Judge must consider s 192 when granting leave: Stanoevski. Eg in El-Kheir - the granting of leave to XE on the issue that the D said he would never lie after taking an oath on the Koran, was (a) unlikely to add unduly to length of hearing (c) was very important as the D’s defence was based on his good character and (b) unfairness includes all parties including the Crown, and given the importance of the evidence unfair for Crown to not be able to XE D to rebut evidence. Other factors: probative value of rebuttal evidence compared with its unfairly prejudicial tendency; relevance of proposed evidence to the character claimed by the accused; role of Crown in opening up question of character; stage of trial at which question of character raised; the fact that counsel of the accused had determined, for obvious tactical reasons, not to raise character; and the lack of any warning by crown or judge that unresponsive answers raising character might if repeated entitle Crown to adduce rebuttal evidence.
4 (c) adducing under specific exceptions	(c) If want to adduce under credibility evidence see notes Crown could also cross-examine on other credibility evidence – s 104 could permit the prosecution to seek leave to cross-examine D about that matter as it would satisfy s 103. see s 192; Stanoevski. [Leave is required to be obtained under s 104(4)-6) to cross-examine only where the cross-examination is relevant solely to the accused’s credibility.]
4(d) – if Crown wants to XE on credibility evidence	See credibility notes. Rule: Under the credibility rules, credibility evidence is generally excluded (s 102), but can be adduced in XE of a W if the evidence could substantially affect the assessment of the credibility of the W (S 103). If the W is the defendant in a criminal proceeding, then in addition to the s 103 requirements, a D must not be XE about a matter relevant...

#8532 - Character Evidence - Litigation 2 - Evidence Law

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