Area of Law – Evidence

An Article about Criminal trial – issue of character of defendant

Character of accused in criminal trial
The previous character of an accused is very important. For the obvious reason that you should be able to call on you good behaviour for a jury to use that in assessing your actions in relation to the matter you are charged with.

It is an important feature that can be emphasized by the calling of appropriate witnesses.

Good character
Evidence of good character of the person charged bears on the probability or improbability of guilt.

Good character can be used to suggest that it is unlikely that the accused committed the crime charged.

Attwood V The Queen (1960) 102CLR 353 at 359 applying R v Rowton

Another explanation of it in the law is:

The expression “good character” has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg.v. Rowton (1865) Le & Ca 520 (169 ER 1497). Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn C.J. said: “The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried”.

How to use it
“In R v Rowton as applied in Attwood (above) and others the Court said that this evidence of good character must be confined to evidence of good reputation.

Depending on the circumstances the questions might be as follows:

Do you know the accused?

How long have you known him?

Do you know those who also know him?

Are you able to speak about his reputation?

What is his reputation for honesty?

What is his reputation for violence (or as the case calls for)?

Credibility of the accused
“In R v Murphy (1985) 4 NSWLR42 (NSW CA and CCA – 5 member Court) it was said (at 54):

“This line of authority shows that, whilst the primary significance of evidence of good character is upon the likelihood of guilt, there is a corollary to the effect that evidence of good character can be used with reference to credibility of the accused in denial of the charge, and hence the unlikelihood of his guilt. The omission to give a specific direction on the credibility aspect may or may not be regarded as resulting in a miscarriage, according to the particular circumstances of the case in hand.”

(this was the successful appeal by Murphy J against conviction)

Followed in R v Zecevic [1986] VR797 at 810. (the High Court reversed the decision in Zecevic v DPP (1987)162 CLR 645 but not on this point which was not the subject of appeal.

It can even be raised by out of court statements for example to police, when no further evidence on character is given in court.

Nonetheless the judge has a residual discretion on whether to direct the jury on the use of good character of this nature (ie out of court) or at all : Melbourne v Queen (1999) 198 CLR 1.”

Defence counsel’s duty on leading character evidence
“Defence has a duty to ask and the prosecutor a duty to provide details of prior convictions and bad character of an accused who is considering putting the accused own character in issue.

In R v Hamilton (1993) 68 A Crim R 298 (NSW CCA) Hunt CJ said (at 300)

“The information which should be sought is not only the details of the client’s criminal record; counsel should also ask whether there is anything else known to the Crown which it would seek to elicit in the event character were raised. The Crown prosecutor is expected to supply that information on request. By doing so , the Crown is not therby prevented from subsequently raising other matters where it could not reasonably have been expected to have known about them at the time of the request for such information – subject – of course, to the usual discretion of th trial judge to exclude those other matters where their admission would lead to unfairness.

Where the Crown prosecutor does not have the information immediately available, he or she is expected to seek that information from the police”.

Further (at 301):

“In the absence of such an undertaking and where inquiries are still continuing , it is imperative that, before taking any forensic step to raise character, counsel for the accused should raise his or her predicament with the trial judge in the absence of the jury . The Judge will no doubt be in a stronger position to remove any obstacles in the way of such information being supplied, wherever those obstacles may lie; alternatively the judge may stand the witness down and proceed with another pending the arrival of that information. What the reaction of the judge will be to the request for an indulgence should ordinarily depend on considerations such as the timeliness of the original request for this information, the stage at which the trial has reached the prejudice which the accused will suffer if an indulgence is not granted.”

Judge should warn the defence
“The prosecutor and judge should warn the defence of a likely application to introduce the bad character of the accused.”

Direction on character
“Should convey that jury 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 of the accused committing the crime charged.

The jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence his credibility as a witness.”

Bad Character of accused: principles of admission
“1) By the prosecution

a) where the acts in question are bound up with an implication that the accused is of bad character, eg an offence in gaol, an escape etc.

b) if as part of its proofs the prosecution leads evidence of

1. similar fact
2. relationship
3. other evidence eg. a gaol confession

2) In the running of the trial

a) if the accused introduces evidence of good character which the prosecution rebuts

b) the accused, usually in cross-examination, asserts an innocence of other acts which the prosecution rebuts (eg. Harriman v Queen)

c) the accused introduces his own bad character for some special forensic reason

d) the defence casts imputations on the character of a prosecution witness, the accused gives evidence and the trial judge gives the prosecution leave to cross-examine on bad character

e) a co-accused introduces evidence of an accused’s bad character”

Bad character put to jury
“We do not consider that his Honour was in error in adopting that course. The decision of the Court of Criminal Appeal in R v Knape was once thought to mean that an irregular disclosure of evidence of bad character in the course of trial would result in the discharge of the jury unless the disclosure could not possibly have affected the jury’s judgment. But the inflexibility of that sort of approach was rejected by the Court of Criminal Appeal in R v Boland and in R v Vaitos and hence, as the New South Wales Court of Criminal Appeal later observed in R v George, Harris and Hilton, the informing principle in Victoria as in New South Wales is one which places responsibility on the trial judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring a fair trial. In R v Su, this Court reiterated that the principle is one of necessity. There must be evident a high degree of need for discharge before that course should be adopted. In Crofts v The Queen the High Court gave its imprimatur to that approach. The High Court said that there are no rigid rules to govern the outcome of an application for such a discharge. Each case depends among other things upon the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.”

R v Hartwick & Ors [2005] VSCA 264 (18 November 2005)


Date: 01/09/2009