BAD CHARACTER EVIDENCE

BAD CHARACTER EVIDENCE

1. CHARA EVIDENCE PRE CJA 2003

   • context of chara evidence whether:
     • directly in issue
     • relates to credit of relevant individual
     • dealing with good or bad chara
   • MEANINGS OF CHARACTER
     • reputation
       • general opinion of society concerning the (W)
     • disposition
       • specific incidents/separate acts of the (W)
     • both reputation and disposition
   • COMMON LAW
     • character restricted to reputation of (W)
     • Rowton rule R v Rowton 1865

2. GOOD CHARACTER

   • BEFORE CRIMINAL EVIDENCE ACT 1898
     • (D) call in (W) to bring in GC evidence
     • restricted to reputation (Rowton rules)
   • AFTER CRIMINAL EVIDENCE ACT 1898
     • (D) can bring in (W) to testify his good reputation
     • (D) can also testify on his own behalf
   • DIRECTIONS TO GOOD CHARACTER
     • Vye directions R v Vye 1993
       • Limb 1
         • credibility direction
       • Limb 2
         • propensity direction
     • Judge's discretion whether to issue warning to Jury

3. DISPOSITION EVIDENCE

   • evidence of propensity of (D) to commit crimes of similar nature
     • husband & wife adopted baby and baby died. (P) allowed to adduce evidence that 12 other babies buried in their houses Makin v AG for New South Wales 1894
   • Criminal Evidence Act 1898 Accused becomes competent (W)
     • s.1(2) CEA privilege of refusing to answer questions withdrawn
     • Accused granted a provisional shield; prohibition on questioning to show that accused convicted with offence unrelated to charge

4. REFORM

   • abolition of common law rules and Criminal Evidence Act 1898
     • haphazard mixture of statute and common law rules
     • inconsistent and unpredictable results
   • CRIMINAL JUSTICE ACT 2003
     • s.99(1) abolished common law rules of character evidence
     • s. 118(1) Rowton Rules retained
     • radical change in admissibility of bad character evidence; old law now a historic edifice of rules

5. DEFINITION OF BAD CHARACTER

   • CJA 2003
     • defined in s.98
     • reverses general rule in common law and CEA 1898
     • s.101 if criteria satisfied then BC admissible
   • MISCONDUCT
     • s.112(1) CJA 2003
     • commission of other offences not currently before the court
     • reprehensible behaviour not defined by the act and kept vague
       • reprehensible behaviour based on extent to which activity may be frowned upon by significant section of society
     • misconduct and reprehensible behaviour required to be judged objectively
       • convictions
       • other immoral conduct
       • judge should not have allowed x-examination of legal possession of antique firearm. Could not be treated as evidence of misconduct R v Edwards 2o06
       • (D) convicted of GBH, evidence admitted by trial judge of photographs of violence and rap lyrics disproved innocent presence R v Saleem 2007

6. EXCEPTION TO BAD CHARACTER DEFINITION

   • 2 exceptions s.98 CJA 2003
     • s.98(a) evidence that has to do with alleged facts of the offence which (D) is charged
     • s.98(b) evidence of misconduct connected with investigation/prosecution of that offence
   • when exceptions apply evidence may be admissible and no longer BC evidence
   • evidence within s.98 doesn't have to pass through gateways in s.100 non(D) or s.101 (D)
   • based on test of relevance
     • distinction needs to be drawn between issue of case and collateral issues Lord Lane CJ
   • further exception s.99(2) CJA 2003
     • preserves common law
     • person's reputation being admissible to prove BC
     • R v Rowton exception

7. ADMISSIBILITY

   • NON-DEFENDANT
     • COMMON LAW
       • (W) other than accused could be cross-examined on matters related facts in issue and also credits
       • FACTS IN ISSUE
         • answer not final
         • cross-examiner can contradict (W) answer
       • CREDIT/COLLATERAL ISSUE
         • (W) answer's are final
         • rule also applicable to prosecution and defence (W) Hobbs v Tinling 1929
     • CJA 2003
       • more structured approach
       • restrict offensive cross-examination
       • s.100: positive inclusionary language
         • s.101 covers matters of credibility, if not, there's a loophole which could be unfair Kennedy LJ R v Weir 2006
       • s.98
         • no need to go through requirements of s.1o0
         • use test of relevance, whether relevant to facts in issue
         • s.98(a) used when necessary to prove someone else other than accused guilty of offence
     • POLICE OFFICERS
       • cross-examining improper conduct can governed by s.100 CJA 2003
         • police fabricate remarks of (D) in order to secure conviction, appeal allowed if evidence showed if police indeed did this R v Busby 1981
     • REASONS THAT BC OF NON-DEFENDANT ADDMITTED
       • (D) suggest that someone else committed offence R v BLastland 1986
       • (D) may want to use a defence such as self-defence/duress R v Randall 2004
     • REQUIREMENT OF LEAVE
       • s.100(4) CJA 2003
         • pre-condition to admissibility of person other than (D)
       • s.41 YCJEA 1999
         • leave requirement of s.100(4) automatically satisfied
   • DEFENDANT
     • 7 GATEWAYS BC ADMITTED
       • s.101(1)(a)
         • agreement between parties
       • s.101(1)(b)
         • evidence added by (D) by (D) declaring BC or cross-examine (W)
         • if (D) BC revealed unintentionally/(W) volunteer w/out being asked, then BC inadmissible
       • s.101(1)(c)
         • important explanatory evidence, high relevant but prejudicial evidence
         • (D) charged murder of young child; evidence that (D) irritable when child cried admissible to show motive for killing R v Fulcher 1995
         • (D) convicted of murder of Jews contrary to War Crimes Act 1991 and evidence that (D) participate in search and kill against Jews was important explanatory material R v Sawoniuk 2000
       • s.101(1)(d)
         • important matter in issue between (D) and prosecution, codified version of similar fact evidence
         • ESTABLISH FOLLOWING REQUIREMENTS
           • BC of (D) is relevant
             • relevance s.109, element of credibility except where evidence is unconvincing
           • satisfies test of important matter in issue s.103
             • substantial importance in context of case as a whole s.112
           • Judge satisfied that evidence not have adverse effect on fairness of trial s.101(3)
         • PROPENSITY TO COMMIT OFFENCES s.103(1)(a)
           • (D) more than likely to commit offences of the same kind as charged
         • PROPENSITY TO BE UNTRUTHFUL s.103(1)(b)
           • (D) BC relevant and admissible to show that more than likely to tell a lie
         • DIRECTIONS BY JUDGE
           • warn the jury when placing reliance on previous convictions
           • jury shouldn't conclude that (D) guilty/untruthful just bc had convictions
           • propensity maybe only one relevant factor and jury should assess significance in light of the other evidence
       • s.101(1)(e)
         • substantial probative value in respect of important matter in issue btw (D) and co(D)
         • cannot be any trivial/insignificant matters
         • co(D) defined in s.112 CJA 2003 as person charged in same proceedings as (D)
         • 2 occasions where gateway activated
           • when BC of co(D) relevant to establish that he more likely to commit the offence
           • BC of co(D) relates to propensity to be untruthful and attempts to undermine nature/conduct of defence
         • gateway only utilised by (D) and not by prosecution, and raise the issue through testimony of co(D) or co(D) cross-examine (W)
         • no discretion to exclude BC evidence
       • s.101(1)(f)
         • admit BC of (D) in order to correct a false impression given by (D)
         • only prosecution can use this gateway
         • when (D) alleges that he is GC when in reality several prev convictions R v Ullah 2006
         • s.105(3) (D) can withdraw from assertion as such that he treated as not making the assertion
         • s.105(6) rebuttal evidence restricted to (D) rebutting assertion for false impression
         • Judge has a discretion under s.78 PACE to refuse to admit evidence that has adverse effect on fairness of trial
       • s.101(1)(g)
         • attack on another person's character
     • WARNING BY JUDGE
       • not required but good legal practice
     • SPARING USE OF BC PROVISIONS
     • DIRECTIONS BY JUDGE
       • warn the jury not to attach too much weight to previous convictions