Character

[2-350] Introduction

As to evidence of the character of the accused in criminal proceedings: see Pt 3.8, ss 110, 111, 112 Evidence Act 1995.

As to the nature of evidence of character and the duty of a judge to address the jury on the issue: see generally Melbourne v The Queen (1999) 198 CLR 1; Braysich v The Queen (2011) 243 CLR 434 at [40]–[43]. There is discretion whether or not to give a good character direction having evaluated the probative value of such evidence in relation to both the accused’s propensity to commit the crime charged and the accused’s credibility.

As to the raising of good character and the Crown seeking leave to rebut good character: see generally: Criminal Practice and Procedure NSW annotations at [3-s110.1], [3-s112.1]; Uniform Evidence Law annotations at [1.3.9000], [1.3.9020]; The New Law of Evidence annotations at [110.2]–[110.13], [112.1]–[112.5].

[2-370] Suggested direction — where evidence of general good character is not contested

[The accused] has called evidence to establish that [he/she] is a person of good character [refer to the evidence of good character called]. That evidence has not been challenged by the Crown. Therefore you should accept the fact that [the accused] is a person of good character.

The law provides that a jury is entitled to take evidence of an accused’s good character into account in favour of [him/her] on the question of the whether the Crown has proved [the accused’s] guilt beyond reasonable doubt. The fact that [the accused] is a person of good character is relevant to the likelihood of [his/her] having committed the offence alleged. You can take into account [the accused’s] good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether you do reason in that way is a matter for you.

[If the issue of [the accused’s] credibility has arisen because, for example, the accused has given evidence and/or has made exculpatory statements in a police record of interview, add

Further, a jury can use the fact that [the accused] is a person of good character to support [his/her] credibility. You may reason that a person of good character is less likely to lie or give a false account either in giving evidence before you or in giving an account of the events in answer to questions asked by the police. Whether you reason in that way is a matter for you to determine.]

None of this means, of course, that good character provides [the accused] with some kind of defence. It is only one of the many factors which you are to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of [the accused]. What weight you give to the fact that [the accused] is a person of good character is completely a matter for you, but you should take that fact into account in the [way(s)] I have indicated to you.

[2-390] Suggested direction — where good character is contested by evidence in rebuttal from the Crown

[The accused] has called evidence to establish that [he/she] is a person of good character [refer to the evidence of good character called]. The Crown has, however, led evidence to contest that fact.

[Refer to the evidence called in rebuttal by the Crown.]

Counsel for [the accused] and counsel for the Crown have placed arguments before you as to whether you should find that [the accused] is a person of good character or not based upon this evidence. It is necessary for you, therefore, to have regard to the totality of the evidence relating to the character of [the accused] and determine whether you consider that [the accused] is a person generally of good character.

If you find that [the accused] is a person of good character, you may take that evidence into account in favour of [the accused] in the following [way(s)] … [the good character direction in the previous direction should be adapted to the instant case].

If, on the other hand, you do not accept that [the accused] is a person of good character, you cannot use the evidence called by the Crown on this issue to strengthen the Crown case against [the accused]. Thus, you are not entitled to reason that because of the evidence called by the Crown on the issue of character that [the accused] is more likely to have committed the offence charged against [him/her]. The Crown did not call that evidence and does not rely upon that evidence to establish [the accused’s] guilt of the [charge/charges] before you. It was simply led on the issue of [the accused’s] character and it would be improper of you to use that evidence for any other purpose than on the issue of whether [the accused] is a person of good character. If you find after considering the evidence on this issue that [the accused] is not a person of good character, you cannot then decide that [he/she] is a person of bad character and use that finding against [the accused].

Indeed, if you are not satisfied that [the accused] is a person of good character, the law requires you to put all considerations of character out of your minds in determining whether you are satisfied beyond reasonable doubt that [the accused] is guilty of the crime charged. That is a direction of law that you are bound by your oaths [or affirmations] to follow during your deliberations.

[2-410] Suggested direction — character raised by one co-accused

[Accused A] has raised the question of [his/her] good character, whereas [Accused B] has not. I warn you that you should not be prejudiced in any way, or seek to draw any adverse inferences against [Accused B] because of that situation.

[Accused B] is entitled to conduct [his/her] case as [he/she] chooses, or might be advised, and the position so far as [he/she] is concerned is that [his/her] character is simply not in issue.

[2-430] Suggested direction — bad character (where not introduced as evidence of tendency)

You have heard evidence that [the accused] has a prior conviction for … [give details of record]. This has been given in evidence because … [state the legal reason for which this evidence was allowed].

Now there is a danger about which I must warn you, and that is the possibility that such evidence will set off in your minds the following prohibited line of reasoning

The evidence shows the accused to be a person of bad character; crimes are more often committed by the bad than the good. Therefore the accused is likely to be guilty of the crime with which [he/she] is charged.

A jury is never permitted to use such evidence for the purpose of concluding that [the accused] person is guilty of the crime with which [he/she] is charged simply because [he/she] is the sort of person who would be likely to commit that crime.

As I say, that is a prohibited line of reasoning and my firm direction to you is that you must not allow it to enter into your deliberations. The evidence was not led before you for that purpose and the Crown does not rely upon it in that way.

[Where appropriate, add

You are, however, free to take that evidence into account, giving it such weight as you think it deserves as evidence showing that [he/she] is not a truthful person, when you are assessing the credibility of the evidence [he/she] has given in this trial.]

[When the “bad character evidence” is probative of a fact in issue under the coincidence rule, add

You may, however, bearing in mind my direction about the prohibited line of reasoning, take that evidence into account in the following way in relation to the issue of … [state the issue].]