5194LAW Lecture Notes - Lecture 7: Ruby, Yasser Arafat, Similar Fact Evidence
20 Jun 2018
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1. CHARACTER EVIDENCE
1.1. Character
- The propensity evidence must tend to prove a fact in issue in the case at hand and must
not be merely about the accused’s (bad) disposition or character.
- “Character” refers to the inherent moral qualities of a person. “Reputation” is how people
in the community where the accused lives consider his or her character.
- Character evidence may be of good or bad character.
- It may be about the character of the accused or of persons other than the accused, in
particular of witnesses or victims.
-Definitions
oGood character This normally signifies nothing more than that a defendant in a
criminal case has no previous convictions.
oSimilar fact evidence Common law test for admitting evidence of previous bad
character evidence to suggest misconduct in the present, at variance to the general
common law exclusionary rule.
oCredibility The likelihood that a witness is telling the truth.
oPropensity The likelihood that a person who has behaved in a certain manner in the
past will have done so again, and so ‘acted in character’ in the present.
oReputation is how people in the community where the accused lives consider his or
her character.
1.2. Character of accused
-(1) The accused leading evidence of his or her own good character.
oEvidence of character of the accused may be given only by statements of general
reputation (R v Redgrave)
the Court of Appeal upheld the decision in Rowton forbidding the adduction
of evidence of specific incidents
having a ‘good character’ in an English criminal trial usually means no more
than that the defendant does not have previous convictions, that he is an
upstanding and community minded member of society
oThe accused may call witnesses to testify about his or her good character (see R v
Rowton)
oThe Crown called a witness to give evidence in rebuttal, and witness was asked
about the accused’s character for decency and morality of conduct:
‘I know nothing of the neighbourhood’s opinion, because I was only a boy at
school when I knew him, but my own opinion, and the opinion of my
brothers who were also pupils of his, is that his character is that of a man
capable of the grossest indecency and the most flagrant immorality.’
-The purpose and effect of good character evidence
oRaising good character has consequences
oEvidence of the accused’s good character is readily admitted, as tending to prove
that the accused is a credible witness or is unlikely to have committed the crime in
question.
oWhere evidence has been given of the accused’s good character, evidence of the
accused’s general bad character can be led by the prosecution.
oThe classic reference for this proposition is Rowton.
oIn general, the Crown cannot lead evidence of the accused’s bad character; the
evidence is probative, but is excluded for reasons of policy: Attwood v R (1960) 102
CLR 353
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oBut, if the accused attempts to establish his own good character, he puts that
character in issue and evidence of bad character is admissible Attwood v R
oEvidence of good character is regarding as really bearing on the probability or
improbability of guilt (Attwood v. R)
oEvidence of good character must be taken into account in all cases in determining
whether the Crown has discharged its onus of proving beyond reasonable doubt,
and, in cases where the credibility of the accused is relevant, in assessing that
credibility (R v. Trimboli (1979) 21 SASR 577)
-Dealing with evidence of accused’s character
oWhenever evidence of good character is led, it is desirable that the judge direct the
jury as how to they might use it (R v. Trimboli).
oA trial judge does not necessarily have to direct the jury as to the manner in which
evidence of the accused’s good character could be used by the jury (Melbourne).
o‘The only comment I make with regard to evidence of good reputation or good
character would be to say to you gentlemen that I suppose, in the case of every
criminal, there was a time when he was a person of good repute. There has always
got to be a first time, but it is for you to consider.’
Gibbs J in R v Thompson (1966) QWN 7 (CCA)
oGood-character evidence of the accused is admitted “condition-free” (it’s not
subject to stringent probative-force evaluation, as in propensity evidence).
oOne concern that has been expressed is that character evidence of the accused
(bad or good) “is likely to divert the tribunal of fact from the true issues in the case”
(McHugh J.).
oPresumably, in every case that goes to trial, there is evidence, other than of good
character, that more directly bears on whether the accused committed the crime
charged.
oMelbourne
The unconditional right of an accused person to tender good character
evidence must be regarded as an indulgence granted to the accused which
continues to be maintained for historical reasons. The basis of the rule for
admitting evidence of good character is not logic, but the “policy and
humanity” of the common law.
…if the law of evidence was a logically coherent body of doctrine, good
character would not be admitted unless as a minimum it tended to negative
some part or detail “of the transaction amounting to the crime” but it is too
late in the day to hold that good character testimony must meet such
conditions to be admissible. That does not mean, however, that in defiance
of logic and modern psychological opinion it should automatically be treated
as if it did not negative the parts or details of the transaction.
-R v. Trimboli
o2. No particular forms of words is necessary, but the direction should convey to the
jury that they should bear in mind the accused’s previous good character when
considering whether they are prepared to draw from evidence the conclusion of
the accused’s guilt. They should bear it in mind as a factor affecting the likelihood
of the accused committing the crime charged. The judge may add, if he [sic] thinks
it appropriate in the particular case, that the jury should consider the accused’s
previous good character in assessing the credibility as a witness.
o3. The judge is, of course, at liberty to remind the jury that people do commit
crimes for the first time and that evidence of previous good character cannot
prevail against evidence of guilt which they find to be convincing notwithstanding
the accused’s previous character. This last consideration may apply with particular
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force to certain types of crime and the judge is, of course, free to point out to the
jury if he [sic] sees fit.
o‘bear good character in mind’
-(2) Prosecution rebutting accused’s good character by leading evidence of bad character
oPerrier
Perrier was convicted of being knowingly concerned in the importation of
heroin.
His defence was that he had been expecting to collect a smuggled
consignment not of heroin but of rubies.
In the course of the trial, Perrier’s counsel read to the jury a letter, written
by a Crown witness, which read as follows:
TO WHOM IT MAY CONCERN
During the short time that I have known Murray Perrier I have always
found him to be scrupulously honest and reliable. I would always
trust him with financial dealings and would always be prepared to
back his knowledge of gem stones. He is always pleasant and easy to
get along with.
I find it very hard to believe that he is associated with illegal activity
knowing his repugnance to be associated with anything concerning
drugs
The trial judge decided that this episode had put the accused’s character in
issue.
He allowed the Crown to prove Perrier’s prior convictions.
These included a 1967 conviction for trafficking drugs in Switzerland, and a
recent conviction in Singapore for possession of heroin leading to a
sentence of three years’ imprisonment.
Perrier was sentenced to life imprisonment.
Perrier’s arguments on appeal included that the mere reading by his counsel
of a passage from a document not in evidence did not put his character in
issue.
He also argued that, even if his character had been thereby put in issue, the
judge should have exercised his discretion to exclude the bad-character
evidence as overwhelmingly prejudicial.
The Court held:
The letter plainly was a testimonial and the only proper conclusion is
that counsel read it aloud as a testimonial, intending that the jury
should gain the impression that his client was of good character. The
learned judge said that he could not accept that counsel did not
realise that the letter was a testimonial. The conclusion seems to me
to be inescapable that counsel realised the letter was a testimonial
and that part at least of his purpose in reading it was to give the jury
the impression that his client was of good character and so increase
his chances of acquittal.
On the second ground (overwhelming prejudice), the Court found
that the trial judge had properly exercised his discretion.
He was entitled to take the view that “the Crown’s case might be
adversely affected to a marked degree by the reading of the letter”.
This was because the testimonial was written by a Crown witness. A
judicial discretion remains to disallow such evidence where it would
be disproportionately prejudicial to the accused: Perrier.
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Document Summary
The propensity evidence must tend to prove a fact in issue in the case at hand and must not be merely about the accused"s (bad) disposition or character. Character refers to the inherent moral qualities of a person. Reputation is how people in the community where the accused lives consider his or her character. Character evidence may be of good or bad character. It may be about the character of the accused or of persons other than the accused, in particular of witnesses or victims. Rowton: the crown called a witness to give evidence in rebuttal, and witness was asked about the accused"s character for decency and morality of conduct: There has always got to be a first time, but it is for you to consider. ". The unconditional right of an accused person to tender good character evidence must be regarded as an indulgence granted to the accused which continues to be maintained for historical reasons.
