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Criminal lit > 15: Character evidence > Flashcards

15: Character evidence Flashcards

1
Q

What is bad character?:

A

disposition towards misconduct

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2
Q

What is misconduct?

A

offence or reprehensive behaviour, inc reputation.

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3
Q

What is reprehensible behaviour?

A

“some element of culpability of blameworthiness”. If

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4
Q

For character evidence, what if the misconduct: “has to do with the alleged facts”

A

= excluded from def so admissible subject relevance. “has to do with” = “temporal connection is only one way of supplying necessary nexus to facts”. If D tried + acquitted = MAY be adduced as bad chara.. “Gateway” not necessary to admit evidence of lies = is “misconduct in connection with investigation or pros”.

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5
Q

What is

s100?

A

bad evidence OTHER THAN D.

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6
Q

Does s100 require leave?

A

Other than when agreement, leave = REQUIRED. Bad chara only admitted in s100 (non-D bad chara), s101 (D’s bad chara).

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7
Q

S100 -

Bad chara not of D admissible if –

A
  2. Important explanatory evidence;
  3. Substantial probative value –
    1. To a matter in issue in proceedings; and
    2. Of substantial importance; or
  4. All parties agree
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8
Q

Is S100’s test of substantial probative value the same test as s101(1)(d)?

A

Test of substantial probative value = NOT same as s101(1)(d) where evidence of bad chara tendered by pros, and test is simply of relevance. But same test as appears in (e).

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9
Q

Is there, like in s101, a residential discretion where judge may refuse to admit evidence?

A

If s100 conditions met = NO residual discretion where judge MAY refuse admit evidence. For s100 + s101, strict readings are required.

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10
Q

What is import_ant explanatory evidence_

S100(2) is evidence?

A
  1. Without it, the court/jury would find it impossible or difficult to properly understand;
  2. Value for understanding = substantial

Substantial = given natural meaning/ enhanced capability of proving/disproving issue.

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11
Q

What are the 2 questions for substantial probative value?:

A

2 questions:

  1. Whether evidence is of substantial importance to whole case;
  2. If evidence had substantial probative value to matter in issue.
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12
Q

Can evidence of propensity be admitted under s100?

A

Evidence of propensity NOT specifically mentioned in s100, it CAN be admitted.

Substantial = given natural meaning/ enhanced capability of proving/disproving issue.

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13
Q

Whether conviction has persuasive value depends on:

A

depends nature,

number +

age.

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14
Q

S100(3) sets out factors court MUST consider in assessing probating evid value in s100(1)(b)– non-exhaustive:

A
  1. Nature + number of events evid relates
  2. When those events happened or existed
  3. Where
    1. Evidence of person’s misconduct; and
    2. Suggested evidence had probative value because similarity

Nature + existent of similarities/dissimilarities between alleged instances misconduct.

  1. Where –
    1. Evidence of person’s misconduct; and
    2. Suggested person is also responsible for misconduct charged; and
    3. Identity of person responsible = disputed.

The extent evidence shows same person responsible each time.

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15
Q

Substantial prob value other than credibility =

A

= e.g. support def that victim/TP = aggressor of crime.

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16
Q

Substantial prob – credibility =

A

e.g. doubting truth of W, + indirect evid suggesting W untruthworthy.

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17
Q

Test for substantial probative value:

A

TEST: if “whether it is reasonably capable of assisting a fair minded jury to reach a view whether the witness’s evidence is, or is not, worthy of belief.

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18
Q

S101 – D’s bad chara

  1. D’s bad chara = admissible if:
A
  1. Parties agree
  2. Evidence adduced by D himself
  3. Important explanatory evidence
  4. Relevant to important matter in issue
  5. Substantial probative value between D + co-accused
  6. Evidence to correct false impression
  7. D made attack on another person’s chara.
  8. MUST not admit evidence under (d) or ((g) if on app by def, it would have such adverse effect on fairness court ought not admit it.
  9. On app to exclude under (3), court MUST regard: length of time between matters + matters forming subject of offence.
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19
Q

Under s101(1)(a) – court should be informed OF WHAT?

A

agreement to admit bad chara @start trial.

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20
Q

Under s101 can you elect to adduce your own bad character?

A

S101(1)(b) – D electing own bad chara.

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21
Q

What is unlikely to happen if you have a subsisting + relevant conviction?

A

Anyone with “subsisting + relevant conviction” = unlikely receive full good chara direction (Hunter). Hunter permits = modified good chara direction @ judge’s discretion. Where evid of minor bad chara tendered, judge should direct -) evid doesn’t make D more likely to have committed offence.

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22
Q

Exclusion to s101evidence?

A

EXCLUSION S101(3) – MUST not admit evid under (d) or (g) if: “such adverse effect on fairness of proceedings that court ought not admit it”.

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23
Q

Who is able to exclude evidence on basis of s101(3)?

A

Power comes in on app by def rather than pros. NOT exercisable by court’s own motion, but court can prompt app. CANT be used to restrict other gateway. S78 CAN still be used.

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24
Q

Which section is the exclusionary discretion of the court?

A

Exclusionary discretion of court s101(3).

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25
Q

What is explanatory evidence?

A

evid without it would be “impossible or difficult to understand” and is “substantial”. Helpful evid = not sufficient.

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26
Q

Propensity to be untruthful =

A

propensity to untruthfulness is NOT the same as propensity to dishonesty.

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27
Q

Identifying D by bad chara

A

where evidence = “signature hallmark” + relevant, normal direction not to conviction wholly/mainly on evid bad chara = inappropriate.

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28
Q

Multiple charges =

A

D faces multiple charges, “gateway” required to facilitate cross-admissibility between charges.

29
Q

Can acquittals be used to show explanmatory evidence?

A

pros can contend D guilty of past misconduct even if acquitted, if can show relevance to important issue.

30
Q

S101(1)(d) proof of guilty/untruthfulness–

Who can adduce this?

A

Important matters in issue between pros + def. ONLY pros can adduce evidence.

31
Q

Important matter in issue =

A
  • Propensity to commit offence
  • Propensity to be untruthful
32
Q

Propensity to commit offence may be established if:

A
  1. Offence same description as one charged; or
    1. E.g. if statement of offence in written charge/indictment be in same terms
  2. Offence same category as one charged

This doesn’t apply where length of time since conviction = it’s unjust to apply for it.

33
Q

Important matter = “

A

matter of substantial importance to whole case”. NOT necessary evid bad chara of substantial probative value.

34
Q

Propensity as an issue = HANSON steps

A
  1. Does history of conviction(s) establish propensity to commit offences of the kind?
  2. If so, does propensity make it more likely D committed crime charged?
  3. Is it unjust to rely on convictions, will proceedings be fair?
35
Q

Evidence to correct false impression – s101(1)(f)

D gives false impression if =

A

he is responsible for making express or implied assertion to court/jury a false or misleading impression about D. Evidence to correct this = has probative value.

36
Q

Evidence to correct false impression – s101(1)(f)

D treated as making this if:

A
  1. Assertion made by D at any time
    1. E.g. questioned under caution before charged
    2. Interview
  2. Assertion made by W called by D
  3. Assertion made by W in cross-examine;
  4. Assertion made by any person out of court + D adduces evidence
37
Q

Evidence to correct false impression – s101(1)(f)

What happens if D withdraws/disassocaites from his assertion?

A

= not treated as responsible for it. Must be positive withdrawal.

38
Q

Evidence to correct false impression – s101(1)(f)

who tries to adduce evidence of this?

A

Conduct incl dress/ appearance. ONLY PROS evid admissible under s101(1)(f). Evid admissible if “probative value” in correcting impression.​

39
Q

What is

Evidence of bad chara by CO-ACCUSED = S101(1)(e).?

A

S104 – evidence D has propensity to be untruthful = admissible if nature/conduct of defence undermines co-D’s defence.

40
Q

Evidence of bad chara by CO-ACCUSED = S101(1)(e).

Only evid which:

X

is admissible

A
  1. Is to be (has been) adduced by co-D;
  2. Which a W is invited to give in cross examination by co-D
41
Q

Evidence of bad chara by CO-ACCUSED

Important matter in issue =

A

matter of substantial importance to whole case.

42
Q

S101(1)(g) – attack on another chara

Who can adduce this evidence?

A

S101(1)(g) permits only pros to adduce evid bad chara to counter an attack. D may apply to exclude evid under s101(1)(g) if unfair effect on proceedings (s101(3).

43
Q

S101(1)(g) – attack on another chara

D makes attack if:

A
  1. Adduces evidence attacking chara
  2. Legal rep asks Q in cross intended to elicit evidence;
  3. Evid given of allegation other person made by D on being questions/charged etc.
44
Q

S101(1)(g) – attack on another chara

Evidence attacking another’s chara — what does this mean?

A
  1. Has committed offence; or
  2. Behaved/disposed to behave in reprehensible way.
45
Q

S101(1)(g) – attack on another chara

what does

“attack” mean?

A

May be out-of-court statement, inc interview which D casts allegation. No requirement evid attack adduced by defence. Unlike s101(1)(f), s101(1)(g) doesn’t contain provision permitting D to disassociate himself from imputation.

46
Q

S101(1)(g) – attack on another chara

can D withdraw his assertion for this?

A

. Unlike s101(1)(f), s101(1)(g) doesn’t contain provision permitting D to disassociate himself from imputation. On another chara = attack MUST be on specific person. Can be attack on non-witness. S101(3) can exclude evid admitted under s101(1)(g). No requirement evid be of probative value.

47
Q

What is the notice requirement for s101?

A

Party wants introduce evid of bad chara MUST make app (for non-D’s bad chara) + give notice (D’s bad chara). Judge rules on point. D may waive entitlement to notice.

48
Q

Notice requirement for

App to introduce non-D’s bad chara???

time limit

A

Party MUST serve app on court officer + party not more than 14 days after pros discloses material on which app based.

49
Q

NOTICE REQUIREMENT

OBJECTION

what happens if a party wants to object? / time limit

A

Party objecting MUST serve notice not more than 14 days after service of app. Court MAY determine app in public/private/without hearing. MUST NOT determine app unless applicant present or 14 days to serve notice of objection.

50
Q

Notice to intro D’s bad chara = A or co-D must serve notice.

Who must serve notice and when?

A

Pros MUST serve notice not more than:

28 days after D pleads not guilty in Mags, or

14 days after D pleads not guilty in CC.

Co-D MUST serve notice not more than 14 days after pros discloses material. Party objecting MUST apply to court + serve app not more than 14 days after service notice. Party MAY waive entitlement.

51
Q

Reasons for decisions = Court MUST announce at

where for character evidence?

A

Court MUST announce at public hearing (absent of jury) reasons for decision to admit/refuse evid or direct acquittal/retrial.

52
Q

Can court extend/shorten time limit for notice to be given?

A

Court may shorten/extent titme limit, dispense with notice to be given. Extension of time must apply when serving app/notice + explain delay.

53
Q

PROOF OF CONVICTION/ACQUITTAL = Where conviction – admissible, method of proving =

A
  1. Producing certificate of conviction; and
  2. Proving identity of person named on that certificate

Where pros wants to rely on conviction + D disputes he is named on certificate, pros must prove beyond reasonable doubt. It MUST be relevant. Where conviction admissible = creates rebuttable presumption person convicted did offence. Can rebut on balance on probabilities.

54
Q

BAD CHARA DIRECTIONS

Once evidence bad chara admitted = question of weight for jury subject judge power to stop case + judge’s direction. HANSON direction for bada chara:

A

1) give jury clear warning against dangers of placing undue reliance on previous convictions;
2) stress evidence bad chara cannot bolster weak case, or prejudice jury against D;
3) Emphasise jury should not infer guilt from existence of convictions.

55
Q

BAD CHARA DIRECTIONS

Once evidence bad chara admitted = question of weight for jury subject judge power to stop case + judge’s direction. HANSON direction for bad chara:

A

1) give jury clear warning against dangers of placing undue reliance on previous convictions;
2) stress evidence bad chara cannot bolster weak case, or prejudice jury against D;
3) Emphasise jury should not infer guilt from existence of convictions.

56
Q

Can good character be admisisble?

A

Evid good chara may be admissible as right to show less likely to commit offence + likely truthful. D has right to good chara direction + may be unfair to give similar direction to pros W who contradicts D

57
Q

Evid good chara other than D may only be admitted if

A

directly relevant to an issue.

58
Q

Unmeritorious claims =

A

D with previous conviction is not “absolute good chara”. But not disqualified for Vye direction, e.g. where D’s convictions old, minor, irrelevant. Matter for judge determine if D is of “effective good chara”. If so, both limbs of Vye MUST be given, but modified.

59
Q

What happens where D is of “effective good cahra”?

A

Matter for judge determine if D is of “effective good chara”. If so, both limbs of Vye MUST be given, but modified.

60
Q

Good chara includes:

A

Means absolute or effective good chara. Only Ds with absolute good chara = entitled judicial directions. Weight to good chara = matter for jury. D who has no previous convictions MAY have bad chara under s98 by reference to misconduct/disposition.

61
Q

Absolute good chara =

A

person with no previous convictions/cautions + no other reprehensible conduct. D entitled = good chara direction if: no previous convictions+ no reprehensible conduct, NOT necessary to give evid positive good chara. NOT entitled as right if guilty past misconduct, unless judge desides to treat him as person of effective good chara.

62
Q

Effective good chara =

A

D previous conviction/caution, judge can hold D effective good chara – discretion is “open textured”. D is judged to be “effective good chara” = entitled good chara direction in full. NOT sufficient to ask jury if they consider D of good chara, judgment is required from judge. If Judge rule in D’s favour = direction may not be withheld, but modified to ensure jury not misled.

63
Q

Is D of “effective good character” if he has a previous conviction?

A

Hunter stipulates – person not automatically of effective good chara that conviction/caution has no relevance to charge, even where old/minor. Judges MUST consider circumstances + fairness to all. HUNTER rejects = D whose convictions “irrelevant/no significance” should be treated of good chara. Judge MUST decide to treat D of effective good chara.

64
Q

Is D of “effective good character” if he has a previous conviction?

A

Issuing penalty notice for disorder involve neither proof of commission of crime, nor admission + should be kept from jury when giving good chara direction.

65
Q

What does it means by:

D not of good chara ?

A

D who is not entitled to good chara direction can adduce convictions under s101(1)(b). Notice to introduce bad chara should be gien before evidence introduced, in CC, D should at same time give notice of direction he seeks. Failure = arguably breach of bad chara rules.

66
Q

What happens if:

D no convictions but other misconduct

A

if bad chara direction given, judge has discretion to make observations of D’s good chara if it wouldn’t render totality of direction an absurdity. “Absurdity principle” = judge should’nt be obliged to give “meaningless or absurd” direction.

67
Q

Good chara direction – 2 limb direction Vye direction:

A

First limb = Credibility aspect of direction

Second limb = propensity aspect of direction.

Where D doesn’t testify = First limb is not required as no issue of credibility arises. Where exculpatory statement given in evid, credibility requires direction. Failure = doesn’t mean conviction is unsafe.

First limb = direction MUST be given if D testified or made pre-trial answers or statements.

68
Q

When MUST the first limb of the Vye direction be given?

A

First limb = direction MUST be given if D testified or made pre-trial answers or statements.

Criminal lit (28 decks)

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