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4.3 - Character Evidence

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What is Character Evidence?

  1. Character evidence addresses a person’s inherent moral character (R v Rowton (1865) 169 ER 1497; Melbourne v R (1999) 198 CLR 1; Attwood v R (1960) 102 CLR 353).
  2. The relevance and admissibility of character evidence, as well as the need for a direction and the content of that direction, depend on whether the evidence is of the accused’s good character or bad character.
  3. Directions about character evidence are directions about “the evidence in the trial relevant to the matters in issue”. Part 3 of the Jury Directions Act 2015 applies (Jury Directions Act 2015 s10).

    Evidence of Good Character

    What is "Good Character" Evidence?

  4. "Good character" evidence includes:
  5. The expression "good character" in s110 of the Evidence Act 2008 has the same meaning as it does at common law (Eastman v R (1997) 76 FCR 9).
  6. The accused’s good character can be proved in a variety of ways. Evidence of good character does not simply consist of evidence that the accused has not previously been convicted of a crime (Melbourne v R (1999) 198 CLR 1).

    Relevance of Good Character Evidence

  7. Evidence that the accused is of good character may be relevant for two purposes:
    1. It may make it more likely that the accused’s evidence is credible; and
    2. It may make it less likely that the accused committed the offence (Melbourne v R (1999) 198 CLR 1; R v Baran [2007] VSCA 66; R v Zecevic [1986] VR 797; R v Murphy [1985] 4 NSWLR 42; R v Trimboli (1979) 21 SASR 577; R v Warasta (1991) 54 A Crim R 351; Attwood v R (1960) 102 CLR 353; Eastman v R (1997) 76 FCR 9).
  8. Good character evidence can only make it "unlikely", rather than "improbable", that the accused committed the offence (R v Stalder [1981] 2 NSWLR 9).
  9. Evidence that the accused is of good character may be relevant to the credibility of evidence given in court and statements made out of court (R v Vollmer & Ors [1996] 1 VR 95; R v Vye [1993] 1 WLR 471; Melbourne v R (1999) 198 CLR 1).
  10. In some cases the two uses of good character evidence will entirely overlap, and will function as a single idea rather than as two discrete issues (R v Trimboli (1979) 21 SASR 577).
  11. The court may limit the use to be made of good character evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or might be misleading or confusing (Evidence Act 2008 s136). However, this will be rare (see, e.g., R v Lawrence [1984] 3 NSWLR 674; R v Murphy (1985) 4 NSWLR 42; R v Hamilton (1993) 68 A Crim R 298).

    Admissibility of Good Character Evidence

  12. The defence may adduce evidence to prove that the accused is a person of good character (Evidence Act 2008 s110(1)).
  13. The evidence may be used to prove that the accused is a good person generally, or in a particular respect (Evidence Act 2008 s110(1)). This differs from the common law, which treats character as indivisible (with people considered to be either of good character or bad character) (Melbourne v R (1999) 198 CLR 1; Bishop v R (2013) 39 VR 642).
  14. Good character evidence may consist of opinion evidence from a witness concerning the character of the accused, or evidence from a witness about the reputation of the accused within the community, or a part of the community (Bishop v R (2013) 39 VR 642; R v Chapman [2002] NSWCCA 105).

    Probative Value of Good Character Evidence

  15. The probative effect of good character evidence on the accused’s credibility, and on the likelihood that he or she committed the offence charged, will vary depending on the circumstances of the case.
  16. For example, the probative effect of good character evidence on the accused’s credibility may be diminished where he or she does not give evidence in court, instead relying on out-of-court statements (R v Zecevic [1986] VR 797; R v Arundell [1999] 2 VR 228).
  17. The probative value of good character evidence may also be affected by:
  18. In some cases, the only evidence of the accused’s good character will be his or her lack of prior convictions. The probative value of the character evidence in such cases is usually extremely limited (R v Cumberbatch (No 5) [2002] VSC 289; Melbourne v R (1999) 198 CLR 1).

    Need for a Direction About Good Character Evidence

  19. At common law, it was recognised that a judge was not required to direct the jury about the uses of good character evidence in all cases where that evidence was led (Melbourne v R (1999) 198 CLR 1; Benbrika v R (2010) 29 VR 593; R v DD (2007) 19 VR 143; Gallant v R [2006] NSWCCA 339; R v Arundell [1999] 2 VR 228).
  20. The need for a direction depends on whether a direction is sought or whether there are substantial and compelling reasons to give a direction in the absence of a request (Jury Directions Act 2015 ss14 - 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
  21. Under the Jury Directions Act 2015, the judge should consider the significance of the good character evidence in the context of the trial when deciding whether to give the direction despite the absence of a request.
  22. Prior to the Jury Directions Act 2015, the recommended practice in Victoria was that judges would give directions on good character evidence almost without exception (see R v Warasta (1991) 54 A Crim R 351). In Bishop v R (2013) 39 VR 642, which was decided after the commencement of the Jury Directions Act 2013, this practice was endorsed as continuing to provide guidance to trial judges. However, the court in Bishop did not refer to the effect of sections 13 and 15 of the Jury Directions Act 2013 (see now Jury Directions Act 2015 ss 14 - 16).
  23. In determining whether to give a direction, a judge should pay close attention to the relevance of the evidence to the offence, and to the issues to which the evidence relates (Stanoevski v R (2001) 202 CLR 115; R v Szabo [2000] NSWCCA 226).
  24. A judge should consider the probative value of the evidence when determining whether or not to give a direction (Melbourne v R (1999) 198 CLR 1; Benbrika v R (2010) 29 VR 593; R v DD (2007) 19 VR 143).
  25. A good character direction must be given where the evidence has an immediate and obvious connection with an issue in the case (Melbourne v R (1999) 198 CLR 1).
  26. In deciding whether to direct the jury about good character evidence, a judge must separately consider the probative effect of the evidence on the accused’s credibility and on the likelihood that he or she committed the offence charged (Melbourne v R (1999) 198 CLR 1; Benbrika v R (2010) 29 VR 593).
  27. Where the evidence of good character comes from the accused him or herself there is generally less need for a direction on the uses of such evidence, as this will usually be self-explanatory (R v Mackrae-Bathory [2006] VSCA 179; R v TSR (2002) 5 VR 627).

    Content of the Direction on Good Character Evidence

  28. No particular form of words is required for a direction on good character evidence (R v Trimboli (1979) 21 SASR 577; R v Arundell [1999] 2 VR 228; R v RJC 18/8/98 NSW CCA; R v Telfer (2004) 142 A Crim R 132; Fung v R [2007] NSWCCA 250).
  29. The judge will need to consider whether the parties have sought a direction about the two permissible uses of good character evidence, and whether it is appropriate to direct on both uses. For example, the judge may have good reasons to direct on only one of the permissible uses of such evidence (Melbourne v R (1999) 198 CLR 1; R v Arundell [1999] 2 VR 228; R v Zecevic [1986] VR 797; Sindoni v R [2011] VSCA 195).
  30. If the evidence relates to a particular aspect of the accused’s character (rather than his or her character generally), the directions must be limited to that aspect (see, e.g., R v Zurita [2002] NSWCCA 22).
  31. This may affect which of the two possible uses of the evidence the jury should be told about. For example, if the evidence has no bearing on truthfulness, and thus no relevance to credibility, the jury should not be directed that the accused’s good character should be taken into account in assessing his or her credibility (R v Zurita [2002] NSWCCA 22).
  32. Where the judge directs the jury about the relevance of the evidence to the issue of guilt, the direction should convey to the jury that they should bear in mind the accused’s good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood that the accused committed the crime charged (R v RJC 18/8/98 NSW CCA).
  33. It is permissible to direct the jury that a person of good character is less likely to have committed the offence than a person not of good character (Fung v R [2007] NSWCCA 250).
  34. Where the judge directs the jury about the relevance of the evidence to the issue of credibility, the judge should convey to the jury that they should consider the accused’s previous good character in assessing the credibility of any explanation he or she has given and, if he or she has given evidence in court, his or her credibility as a witness (R v RJC 18/8/98 NSW CCA).
  35. The judge may remind the jury that people commit crimes for the first time, and that evidence of good character cannot alter proven facts or provide a defence in itself. Character evidence can only affect the jury’s assessment of whether certain facts have been proven beyond reasonable doubt (R v Arundell [1999] 2 VR 228; Melbourne v R (1999) 198 CLR 1; R v Trimboli (1979) 21 SASR 577; R v Zecevic [1986] VR 797; R v RJC 18/8/98 NSW CCA; Bishop v R (2013) 39 VR 642).
  36. Judges must exercise care when warning the jury about the need for caution in acting on good character evidence other than the standard directions that people commit crimes for the first time and the evidence cannot alter proven facts or provide a defence in itself (Bishop v R (2013) 39 VR 642).
  37. In particular, where character evidence is led in a sexual offence case, the judge must not give a limiting direction that good character evidence is of less weight (or no weight) because sexual offences are committed in private and the evidence only addresses the accused’s conduct in the presence of others (Bishop v R (2013) 39 VR 642; R v MWL (2002) 137 A Crim R 282).
  38. Judges should exercise great care in departing from the traditional directions into directions which have not previously received curial approval (Bishop v R (2013) 39 VR 642).
  39. Where good character evidence can be used both in assessing guilt and credibility, the judge must not direct the jury that the evidence cannot be used for one of these two purposes (R v Zecevic [1986] VR 797; R v Murphy [1985] 4 NSWLR 42).
  40. In such cases, if the prosecution tells the jury that the evidence may not be used for one of the two permissible purposes, the judge must raise with the parties the need for a direction to ensure the jury is not misled (see Jury Directions Act 2015 s16 and R v Schmahl [1965] VR 745).
  41. A person who has a prior conviction that was overturned on appeal must be treated as a person without any prior convictions. Any direction on good character must not be qualified by reference to the quashed conviction (R v Lapuse [1964] VR 43).

    Evidence of Bad Character

  42. Evidence of the accused’s bad character is generally inadmissible on the basis that it is unfairly prejudicial (Melbourne v R (1999) 198 CLR 1; R v Thomas [2006] VSCA 167; Donnini v R (1972) 128 CLR 114; Perry v R (1982) 150 CLR 580). [3]
  43. However, under the Evidence Act 2008 there are three circumstances in which bad character evidence may be admissible:
    1. If evidence has been adduced to prove an accused’s good character (either generally or in a particular respect), a co-accused or the prosecution may respond by leading evidence to prove that the accused is not a person of good character (either generally or in that respect) (ss110(2)-(3)).
    2. An accused may adduce opinion evidence about the character of a co-accused, where it is evidence of the opinion of a person who has specialised knowledge based on his or her training, study or experience, and the opinion is wholly or substantially based on that knowledge (Evidence Act 2008 s111(1)); and
    3. Evidence that reveals the accused’s bad character may also be admissible under a provision of Part 3.7 concerned with credibility evidence.
  44. Leave is required to cross-examine an accused about matters arising out of character evidence (Evidence Act 2008 s112). [4] See Gabriel v R (1997) 76 FCR 279 for a discussion of relevant considerations.

    Use of Bad Character Evidence

  45. At common law, bad character evidence can only be used to negate evidence of good character. It cannot be used as directly relevant to the issue of guilt (see, e.g., BRS v R (1997) 191 CLR 275).
  46. At first glance, the Evidence Act 2008 appears to make bad character evidence admitted under s110 usable for tendency purposes. [5] This is because:
  47. However, in NSW it has been held that the common law position remains unchanged, and that bad character evidence can only be used to negate good character evidence (R v OGD (No 2) (2000) 50 NSWLR 433; R v El-Kheir [2004] NSWCCA 461. See also Eastman v R (1997) 76 FCR 9 for a brief discussion of this issue).
  48. The court may limit the use to be made of bad character evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or might be misleading or confusing (Evidence Act 2008 s136).

    Content of the Direction on Bad Character Evidence

  49. Where evidence of bad character is admitted and the prosecution or counsel for the accused seeks a direction, the judge must explain to the jury that:
  50. At common law, there was seen to be a high degree of risk that a jury would use bad character evidence to engage in impermissible propensity reasoning. Judges were therefore required to clearly direct the jury on both the permissible and impermissible uses of bad character evidence (Donnini v R (1972) 128 CLR 114). This will continue to guide the content of directions on bad character evidence under the Jury Directions Act 2015.
  51. The permissible uses of bad character evidence are not the converse of the permissible uses of good character evidence. The jury is allowed to use good character evidence to engage in a form of propensity reasoning that is not permitted for bad character evidence. This anomaly is deeply rooted in the law (Melbourne v R (1999) 198 CLR 1).

 

Notes

[1] For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g., R v Trimboli (1979) 21 SASR 577).

[2] For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).

[3] While evidence is generally inadmissible for the purpose of proving the accused’s bad character, evidence that is relevant for another purpose is not rendered inadmissible solely because it also happens to show the bad character of the accused. Such evidence may be admitted for a limited, probative, purpose. In such cases, the judge must direct the jury to use the evidence only for the admissible purpose, and may need to warn the jury not to use the evidence for an irrelevant or prejudicial purpose (see, e.g., R v Thompson [2001] VSCA 208; Orman v R [2010] VSCA 246R).

[4] See R v El-Azzi [2004] NSWCCA 455 and Stanoevski v R (2001) 202 CLR 115 for a discussion of the meaning of "matters arising out of" this kind of evidence.

[5] In explaining the rationale behind the proposal on which s110 is based, the Australian Law Reform Commission ("ALRC") noted that this restriction seems incapable of enforcement, and implied that it should not be adopted in the UEA (ALRC 26, vol.1, para 83).

Last updated: 29 June 2015

In This Section

4.3.1 - Charge: General Good Character Evidence

4.3.2 - Charge: Specific Good Character Evidence

4.3.3 - Charge: Bad Character Evidence

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings