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Lit 1314 Character evidence 1 of 9
Lit 2 1314 Character evidence (only for crim) Table of Contents
1. Evidence probative because?
2. Is it 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; ElKheir
4. If bad character - how can Crown bring up? Three ways a. rebuttal (Bartle; R v ElKheir) b. XE on rebuttal i. Must seek and be granted leave under s 112, s 192: ElKheir. c. Can get evidence in for specific purposes through specific exceptions: (i) credibility (ii) tendency/coincidence (iii) hearsay (iv) opinion Coaccused?
5. If character evidence about an accused - how to bring up?
a. Rebuttal evidence b. Lead expert opinion - under s 111 c. XE on rebuttal or expert opinion - s 112 After?
6. Judges directions?
1. Prelim: relevance?
1. What is the evidence?
evidence Evidence may be relevant because?
relevant? * 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
* Coaccused has aspects of character relevant to assessing coaccused's guilt and/or credibility as witness
2. Is it character evidence?
2. Is it character evidence? "Character refers to the aggregate of qualities which is it distinguish 1 person from another, or the moral constitution of a person; embodies character the permanent + unchanging pattern of the nature of the individual concerned.": evidence?
Melbourne a. 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? S 110 (eg ElKheir); remember to ask for s 192A
3. Can D
3. Good character evidence of the D - D wants to bring it up? S 110. bring up
* "The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not good apply to evidence adduced by a defendant to prove (directly or by implication) that character the defendant is, either generally or in a particular respect, a person of good
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Lit 1314 Character evidence 2 of 9 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; ElKheir
* 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 nonresponsive 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: ElKheir
* Not adducing at first, then adducing: in ElKheir at the start when the accused revealed that he had lied on his pension form - this was not adducing or conscious: ElKheir
4. Can Crown bring up bad character evidence of the D?
4. Bad character evidence of the D - Crown wants to bring it up?
character evidence of Four ways for Crown to get in bad character evidence: D brought (a) Adduce rebuttal evidence: s 110(2)(3) see Bartle; R v ElKheir up by (b) In addition to (a), XE on rebuttal evidence after seeking leave under s 112 Crown (c) Adduce under specific exceptions (d) XE on credibility evidence - under s 103, or 104 (if a D) 4(a) (a) Rebuttal: s 110(2)(3): If D brings up good character(Gabriel;Bartle;ElKheir) rebuttal
* 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
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Lit 1314 Character evidence 3 of 9 credibility rule won't apply to adducing of this rebuttal ev): s 110(2)
4(b) in addition to rebuttal evidence XE on this rebuttal evidence
4 (c) adducing under specific exceptions 4(d) - if Crown wants to XE on credibility evidence
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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: ElKheir
* Particular respect of not sexually assaulting boys: R v OGD (b) If want to XE on this character evidence - can seek leave under s 112: If crown wants to crossexamine 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 ElKheir
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. (c) If want to adduce under credibility evidence see notes Crown could also crossexamine on other credibility evidence - s 104 could permit the prosecution to seek leave to crossexamine 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 crossexamination is relevant solely to the accused's credibility.]
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 to assessment of D's credibility unless court gives leave: s 104(2).
* When leave is not required: When the XE is about whether the defendant: (a) is biased or has a motive to be untruthful, or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or (c) has made a prior inconsistent statement.
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