Civil Trials Bench Book — Evidence

This part applies only to criminal proceedings, but is associated closely with Pt 3.7 (Credibility) which applies to both civil and criminal proceedings.

If evidence is given of the accused’s good character, the trial judge should raise with counsel the issue as to the direction to be given: R v Soto-Sanchez (2002) 129 A Crim R 279 at [27]–[29].

There is no statutory definition of character evidence, but a generally accepted description of it was given by Kirby J in Melbourne v The Queen (1999) 198 CLR 1 (although in dissent, the description is favourably regarded by the authors of The New Law of Evidence (2nd edn), at p 470):

Section 110 provides that none of:

applies to evidence adduced by the accused to establish that he is of good character either generally or in a particular respect, or to evidence adduced by the prosecution to meet that evidence.

Evidence of good character is not merely evidence as to credit. It is, in the terms of s 55, evidence that “could rationally affect (directly or indirectly) the assessment of the probability” that the accused committed the offences charged: TKWJ v The Queen (2002) 212 CLR 124 at [35] (Gleeson CJ), and [94] (McHugh J). Evidence of character is admitted as a matter making it unlikely that the accused has committed the crime charged and as supporting the credibility of his denial of guilt: Attwood v The Queen (1960) 102 CLR 353 at 359; Eastman v R (1997) 76 FCR 9 at 147; TKWJ v The Queen at [94]. The first is a common law case; the others are concerned with s 110 of the Evidence Act.

The raising of good character requires a conscious decision on the part of the accused: Gabriel v R (1997) 76 FCR 279; R v Bartle [2003] NSWCCA 329 at [129]–[136]; good character is not raised, for example, where a witness volunteers the evidence: PGM v R (2006) 164 A Crim R 426 at [35].

Once evidence has been deliberately adduced to prove (directly or indirectly) that the accused is a person of good character, either generally or in a particular respect, ss 110(2)–(3) permit the prosecution to adduce rebuttal evidence to meet it: Gabriel v R (1997) 76 FCR 279 at 294–298: R v Bartle at [126]–[146]. The suggestions by an accused that “I would not do that sort of thing”, or “I have never been involved in any importation [of or] selling any drugs” are no more than emphatic denials of guilt, and do not satisfy that test: R v Bartle at [129]–[144]. See also R v Skaf [2004] NSWCCA 74 at [223]–[226], and R v El-Kheir [2004] NSWCCA 461 at [50]. These cases are discussed in Pt 3.7 (Credibility), Raising character, at [4-1220].

Counsel for the accused may require the Crown to reveal precisely what evidence it might seek leave to adduce if good character were raised generally or in a particular respect: R v Hamilton (1993) 68 A Crim R 298 at 300; R v Robinson (2000) 111 A Crim R 388 at [38]–[40]; R v TAB [2002] NSWCCA 274 at [90].

An accused is not entitled to elicit evidence of general good character by cross-examining a police officer to the effect that he has no prior convictions merely because his previous convictions are “spent” within the meaning of the Criminal Records Act 1991, s 12, as this would involve a knowing deception of the jury as to the true facts: R v PKS (unrep, 1/10/1998, NSWCCA), at pp 10–11; R v TAB, above, at [97]–[98].

Where the accused, charged with aggravated sexual assault, seeks to raise his good character in respect of sexual assault only, evidence that he had criminal convictions for larceny was held to be inadmissible: R v PKS (unrep, 1/10/1998, NSWCCA), at 9–10; R v Zurita [2002] NSWCCA 22 at [7]–[19].

Evidence led by the prosecution to rebut evidence of good character is subject to the exclusionary provisions of Pt 3.11 (ss 135–137): R v OGD (No 2) (2000) 50 NSWLR 433 at [102]–[108]. In that case, the evidence of one complainant admitted against the accused in relation to evidence led by him concerning the evidence of another complainant was held to have been correctly admitted; see also R v TAB at [90].

Once evidence has been adduced (directly or by implication) that the accused is a person of good character in a particular respect, the prosecution is permitted to adduce evidence that he does not have that character, and s 110(3) provides that such evidence adduced by the Crown is not restricted by the hearsay rule (s 59), the opinion rule (s 76), the tendency rule (s 97) or the credibility rule (s 102).

If evidence of good character is adduced, it has been held that it is necessary to direct the jury that such evidence should be borne in mind as affecting the likelihood that the accused committed the crime charged and, if thought appropriate, that it is relevant as supporting any explanation given by the accused and his credibility as a witness: R v RJC (unrep, 1/10/1998, NSWCCA), at 27. See also R v Lewis [2001] NSWCCA 345 at [31]–[32]. These decisions may have been influenced by the previously repealed s 412 of the Crimes Act 1900, which made such a direction mandatory, and they must now be considered as incorrect in the light of the two High Court decisions referred to in the following paragraphs.

The High Court has held that there is no rule of law that the trial judge must give a direction as to the manner that the jury could use evidence of good character, although it added that, if asked for, it would be wise to give such a direction: Simic v The Queen (1980) 144 CLR 319 at 333–334 (an appeal from Victoria). That decision was followed in Melbourne v The Queen (1999) 198 CLR 1 (a Northern Territory case). The issue of good character had been deliberately raised in that case as being relevant to the improbability that the accused (who did not give evidence) had committed the crime charged (murder) and, to a lesser extent, as being relevant to the version he gave in the record of his interview by the police and to the doctors of the circumstances in which the killing occurred (raising an issue of diminished responsibility). Although the judge had intended to give directions as to its relevance to both issues, she did not mention its relevance to the credibility of the accused’s evidence. The omission went unnoticed by counsel for the accused.

In Melbourne v The Queen, the High Court held (by majority) that the trial judge is not obliged to give any direction to the jury as to the use to be made of character evidence. McHugh J (at [30]–[52]) held that giving such a direction should remain a discretionary matter because the admissibility of such evidence was logically anomalous and because a mandatory direction would divert the jury from properly evaluating evidence which more logically and directly bore on the guilt of the accused. Hayne J (at [141]) held that the relevance of good character to the credibility of the accused’s evidence had not been raised at the trial, and (at [157]) that in any event there was no reason to depart from the decision in Simic v The Queen, above. Gummow J (at [59]) agreed with Hayne J, adding (at [69]) that the admissibility of such evidence possessed a conceptual obscurity and a clouded historical origin. Kirby J dissented (at [112]–[117]), on the basis that the trend of overseas judicial authority supported the need for a direction, in part because the common law strives to avoid wrongful convictions by such protections in favour of the accused. Callinan J (at [198], [211]) also dissented, holding that prima facie the direction should be given, and ordinarily strong contra-indicative factors would have to be present before a trial judge should decide that such a direction should not be given.

In Stanoevski v The Queen (2001) 202 CLR 115 at [21], the joint judgment (with which the other judges agreed) stated that, since the decision in Melbourne v The Queen, whether to give a direction at all in relation to character evidence, or the form of it, will require close attention to the relevance of the evidence to the offence, and to the issue or issues to which the evidence relates.

In R v Makisi (2004) 151 A Crim R 245 at [26], it held to be “ordinarily appropriate” for the trial judge to instruct the jury as to the use they may make of the evidence, but that, in the light of Melbourne v The Queen, the rule is not invariable. An illustration of the circumstances in which such a direction would not have significantly strengthened the accused’s position in the eyes of the jury is to be found in Gallant v R [2006] NSWCCA 339 at [36]–[39], [48]–[49].

Good character in a particular respect: The effect of s 110, by permitting the accused to raise character in a particular respect, has been to vary the common law that character was indivisible so that, if good character was claimed in relation to one aspect, then the whole of the accused’s character was opened up (Stirland v DPP [1944] AC 315 at 326–327): R v Hamilton, above, at 299; R v Zurita, above, at [13]–[14].

In R v Telfer (2004) 142 A Crim R 132, the accused (charged with a serious offence) relied on evidence that he had no conviction for any serious offence as being relevant to the probability that he had committed the offence charged. The judge, who had accepted that such evidence did not raise the accused’s character generally, directed the jury that they were to take this evidence into account when considering whether the charge had been established beyond reasonable doubt, but gave the additional direction that every offender commits his first offence, and that the evidence could not prevail over or provide a defence to evidence of guilt if, upon their consideration of all the evidence, they are satisfied that his guilt has been proved beyond reasonable doubt. The judge declined to direct the jury that the experience of the courts is that persons who have not previously committed serious criminal offences are unlikely to commit serious criminal offences. It was held (at [27]) that he was not required to do so. The judge also declined to direct the jury that the absence of convictions for serious offences should be borne in mind as a factor affecting the likelihood (or improbability) of him having committed the crime charged. It was submitted on appeal that additional directions given by the judge destroyed the beneficial effect of the direction that the jury had to take the character evidence into account. It was held (at [36]) that the only way the jury could have acted on the direction given was by reasoning that the fact that the accused had not previously been convicted of any serous offence may make it less likely that he was guilty of the serious offence with which he was charged. Although it was held (at [37]) that the additional direction given would preferably have been in terms “that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character” (R v Trimboli (1979) 1 A Crim R 73 (SAFC) at 74), the injunction given on three occasions that the jury were to take the character evidence into account in considering whether the Crown had proved guilt made it strained to contend that the additional direction contradicted that injunction.

In a prosecution for an offence involving violence against a female, where the accused wishes to establish his good character in a particular respect concerning violence against women, there could be no rational or reasonable explanation for tendering a “fairly extensive record” for other offences in order to establish that negative fact: Seymour v R (2006) 162 A Crim R 576 at [50]–[53].

There is no distinction of any moment between a direction referring to the unlikelihood of guilt and a direction in terms of the improbability of a person of good character committing an offence: Fung v R (2007) 174 A Crim R 169 at [57]–[60].

There appears to have been no judicial exegesis in relation to this section.

Attention has been drawn by Anderson et al, The New Law of Evidence (2nd edn) at 111.2–3, to the decision of the Privy Council (sitting on appeal from the Supreme Court of Victoria) in Lowery v The Queen [1974] AC 85. The appellant was one of two men accused of the murder of a young girl, who had been killed for no apparent motive. The Crown case was that they acted in concert together. Each of the accused alleged that the other was the dominating person and that he had acted in fear of that other person. It was held that, in such a situation, evidence was admissible from a psychologist called by the co-accused who had performed tests on each man as to his general personality, and whose opinion was that Lowery had a strong aggressive drive with weak controls over the expression of aggressive impulses and showed a basic callousness and impulsiveness, whereas the co-accused was immature and emotionally shallow and was likely to be led and dominated by more aggressive or dominant men and was capable of acting aggressively to comply with the wishes of demands of another. Lowery’s appeal was dismissed.

The decision in Lowery v The Queen was explained by the High Court in Murphy v The Queen (1989) 167 CLR 94 at 121 — that the evidence was relevant where the issue was one of sole responsibility between the two accused, so that a description of their respective personalities was within the witness’s field of expertise. In Goldsmith v Sandilands (2002) 76 ALJR 1024 at [34], McHugh J suggested that the evidence was admissible to show that the version of co-accused who called it was the more probable version.

This section was amended to cure a “minor drafting inconsistency” in accordance with ALRC 102 at 12.43, by changing “A defendant is not to be cross-examined about …” to “A defendant must not be cross-examined …” only to make its terms consistent with those of s 104(2) — “A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant’s credibility, unless the court gives leave”.

There is some doubt as to the meaning of the phrase “matters arising out of evidence of a kind referred to in this Part”, about which cross-examination is not permitted without leave. Two interpretations have been suggested — that leave to cross-examine is required:

R v El-Azzi [2004] NSWCCA 455 at [199] (Simpson J). The judge suggests that the first is probably the more obvious construction.

Odgers, Uniform Evidence Law (9th edn at [1.3.9160]), concludes that, as a result of the amendment, the view expressed by Simpson J is the most obvious construction of s 112, that the section only prohibits cross-examination of the defendant without leave about matters arising out of evidence called on his or her behalf to establish good character, and that it permits the court a broad discretion in regulating cross-examination of a defendant where the prosecution proposes to challenge that claim.

The raising of good character requires a conscious decision on the part of the accused: Gabriel v R (1997) 76 FCR 279; R v Bartle [2003] NSWCCA 329 at [129]–[136]; good character is not raised, for example, where a witness volunteers the evidence: PGM v R (2006) 164 A Crim R 426 at [35]. Nor is the issue raised where the accused is cross-examined by the Crown in a way which necessarily requires him to answer in a way that raises good character: PGM v R at [38]–[42].

Leave to cross-examine must be considered in accordance with s 192 (Leave, permission or direction may be given on terms). The need to consider s 192 was emphasised in Stanoevski v The Queen (2001) 202 CLR 115 at [37]–[44], [54]–[57]. Where the accused has deliberately adduced evidence of good character in his evidence in chief, the Crown could not reasonably be refused leave to cross-examine: R v Johnston [2004] NSWCCA 58 at [233]. The discretionary exclusion provisions (ss 135 and 137) are also relevant to the application of s 112: Eastman v R (1997) 76 FCR 9 at 146.

Section 192 is discussed under s 104, in Pt 3.7 Credibility.

The need for leave to be granted is emphasised where the Crown prosecutor, without leave, asks a series of questions which would be rejected as irrelevant to the particular character in issue or in the exercise of discretion (although some of the questions asked, it is respectfully suggested, may well have been relevant to the credit of the accused): R v Soto-Sanchez (2002) 129 A Crim R 279 at [30]–[33].

The distinction between evidence relating to the credit of the accused and evidence relating to his character was emphasised in Leung v R (2003) 144 A Crim R 441 (NSWCCA) at [35], [46]–[47].

Evidence of similar sexual conduct with another person may be admissible to rebut the good character claimed by the accused, but it is not necessarily admissible as corroboration; where it is not so admissible the jury should be warned accordingly and, where it is so admissible, the jury should be given guidance as to how it may be so admissible: BRS v The Queen (1997) 191 CLR 275 at 289–291, 297–299, 303–305, 311, 326. Caution is required in relation to this case, as it was a pre-Evidence Act case, and issues of propensity overshadow its usefulness under the Evidence Act.

Legislation

Further references