#7515 - Character Evidence - Evidence and Criminal Procedure

Note: Only relates to criminal matters and only relates to the character of the accused.

Character evidence relates to [accused’s] personal qualities, reputation and social standing. The evidence considers whether [accused] has the kinds of personal qualities consistent with guilt in criminal proceedings.

[Defendant] should note that if [he/she] wants to adduce evidence of [his/her] good character it is not subject to rules about hearsay, opinion, tendency or credibility (s110). However [defendant], in raising evidence of [his/her] good character will be subject to evidence tendered by the prosecution that would rebut the evidence of good character.

If [defendant] adduces evidence that [he/she] is generally of good character, then the prosecution can adduce evidence to rebut the presumption that [he/she] is generally of good character (s110(2)) which means the prosecution has a wide spectrum of reference points including prior convictions. (“I am not a violent person”). If the prosecution wants to cross-examine [accused] on their good character they must seek leave of the court (s112) under section 192.

If [defendant] adduces evidence that [he/she] is of good character in a particular respect, the prosecution may only raise rebuttal evidence related to that respect (s110). (“I am not violent to children”). If the prosecution wants to cross-examine [accused] on their good character they must seek leave of the court (s112) under section 192.

R v Zurita [2002] NSWCCA 22

Facts: The Trial judge in this case said: Character evidence is all or nothing. Either you are a good person or you are not. You cannot split your character into components. By the trial judge saying this, the defendant opted not to call good character evidence. This prevented the accused from putting evidence before the jury that the accused had not committed sex crimes against children. This was a defendant that had convictions for other crimes, but not for sex crimes against children. The accused was subsequently convicted. The accused appealed the trial judge’s ruling

Held: The NSW Court of Criminal Appeal agreed with the accused. They held the Act does allow the defendant to split their character. Just because it may demonstrate the accused is not of good character, it does not mean the act does not allow it. The crown should have only been limited to adducing evidence that the accused was not of good character in this particular respect. By not allowing the evidence, the conviction was quashed and a new trial was ordered.

Melbourne v The Queen (1999) 198 CLR 1

Facts: The accused was on trial for the murder of his neighbor. There was a lot of evidence to show that the accused had a psychological evidence and for a long time he had complained about the noise from his neighbor. The neighbour was stabbed and the accused was arrested and charged. The accused had no memory of whether or no he had committed the crime. This was a mens rea defence. Subsequently, some investigation into the death was made. The investigation found there was a sprinkler system between the flats and between 2.30am and 5.30am it would make a loud hammering noise. The accused argued that he had no intention to kill his neighbor. He also called character evidence to show that apart from an old drink driving offence, he had no criminal history and never adversely known to the police. The evidence was tendered for the character use. His lawyers asked the trial judge to direct the jury that such evidence had two uses. It went to the accused credibility (He claimed he did not intend to commit the act and He was a credible witness) and the character use (to demonstrate that someone of his good character would not commit such a crime)

Held: The trial judge agreed to give such direction however did not do so. On appeal to the High Court, the ruling on this issue was when character evidence is adduced, it is entirely as to the discretion judge as to how and when they are to give directions on it. This case further deal with what character evidence is and how it relates to other forms of evidence

TKWJ v The Queen (2002) 212 CLR 124

Facts: The accused was on trial for sexual offences against two of his step-children. Originally the prosecution planned to have one trial with two complainants. However, prior to the trial commencing the prosecution decided to have separate trials. This decision thus directed the way the accused conducted his defence. It was then decided that the accused would only be tried for the crimes against his step-son. The prosecution did not proceed with the trial for the crimes against the step-daughter. The fact in issue: Did he abuse his step son? His original plan, had there been a joint trial, was to run a defence of concoction and argue that his two step-children colluded to plot against him. However, as the trial was only against the step-son he ran a defence based on good character. At the trial he wished to call good character evidence. The prosecution held that if good character evidence was to be called they would seek leave under section 112 to produce evidence of bad...