Character Evidence Flashcards
What is general rule in terms of the common law regarding the character of the accused?
- An accused may present evidence about his/her good character.
- The state is prevented from adducing evidence on the accused’s bad character unless one of the exceptions finds application.
Once the accused presents evidence of his/her good character, that opens the door for the state to present evidence of the accused’s bad character. This may be done in many ways, such as:
- Adduce evidence of the accused’s bad character.
- Cross-examine the witnesses called by the accused.
- Cross-examining the accused.
Briefly discuss section 197 of the Criminal Procedure Act.
States that the accused who gives evidence in a criminal trial may not be asked questions to previous commissioning, charges or convictions of previous offences other than for which he/she is charged or on his/her bad character unless 197(1)(a)-(d) applies.
Briefly discuss what is stated in section 197(a)-(d).
-
S197(a) states that if the accused produces evidence of his/her own good character, the
prosecution may adduce evidence of the accused’s bad character. - S197(b) states that if the accused gives evidence against any other person charged with the same offence or an offence in respect of the same facts.
- S197(c) states that the proceedings against the accused are such as described in section 240 or 241 and the notice under those section has been give to them.
- S197(d) states that the proof that he has committed or has been convicted of such other offence is admissable evidence to show that they are guilty of the offence charged with.
Briefly discuss section 211 of the Criminal Procedure Act.
This section states that unless otherwise permitted by the CPA, unless a previous conviction is an element of any offence with which an accused may be charged, then, previous conviction evidence is inadmissible in the RSA or elsewhere and no accused may be asked whether he/she had been so convicted.
Briefly discuss section 2(2) of the Prevention of Organised Crime Act.
Provides that the court may: hear evidence, including hearsay evidence, similar facts or previous convictions relating to offences as set out in subsection 2(1), even though such evidence may otherwise be inadmissible.
What are the offences set out in section 2(1)?
- Criminal activity.
- Pattern of racketeering.
Define “pattern of racketeering”.
Means the planned, ongoing, continuous or repeated participation or involvement in any offence referred to in Schedule 1, an includes at least two offences referred to in Schedule 1, of which one of the offences occurred after the commencement of this Act and the last offence occurred within 10 years (excluding any period of imprisonment) after the commission of such prior offence referred to in Schedule 1.
Is section 2(2) of the POCA inconsistent with section 89 of the CPA?
- Section 2(2) is not inconsistent with section 89 of the Criminal Procedure Act, which prohibits reference to a previous conviction in a charge sheet because the exception to section 89 is ‘except where the previous conviction is an element of the charge’.
- Section 2(2) falls within the ambit of this exception.
Discuss witnesses who are not the accused.
- Except where the credit of a witness had been impeached by presenting admissible evidence, the party calling the witness may not adduce evidence on the good character of that witness.
- If one court made a credibility finding on a witness, that court’s assessment on the credibility may be put to the witness in cross-examination.
Briefly discuss the character of the complainant.
- At any stage when the complainant takes the stand to testify, such a witness may be asked questions that go to credibility.
- The complainant’s character or disposition is not normally and, as a general rule, relevant to the issue of credibility.
- Generally, any evidence as to the complainant’s good or bad character is irrelevant and inadmissible if it is solely or exclusively directed at that good or bad character (without more).
- The complainant’s character may be relevant in some cases, such as sexual offences and crimen injuria.
Discuss sexual offences.
- At common law, in cases involving a charge of rape or indecent assault, evidence could be presented of the complainant’s bad reputation for lack of chastity.
- Section 227 of the CPA codified this common law position.
Discuss the criticism regarding the codification of the common law position.
- The South African Law Reform Commission noted that section 227 of the CPA resulted in few (or none) restrictions being placed on the admissibility of the sexual history of the complainant.
- The questioning and evidence were not limited to relevant sexual encounters but would include any previous sexual history, no matter how irrelevant and harmful (prejudicial).
- Section 227 was then amended to read that an application must be made to the court, and the court must grant leave for evidence to be adduced on the complainant’s prior sexual history.
Section 227 was then once more amended in 2007, this time to bring it in line with the Criminal Law (Sexual Offences and Related Matters Act). What is the current legal position?
- S227(1) states that the admissibility or inadmissibility of evidence on the character of the accused or any person against or in connection with whom a sexual offence is contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
- S227(2) states that no evidence of the previous sexual history, experience or conduct of any person is admissible, except for the encounter for which the accused is being tried, shall be admissible, unless the court on application grants a party leave to adduce such evidence or the State introduces such evidence.
To determine if such evidence is relevant in a pending section 227(2)(a) application, what factors will the court take the into account?
- Will such evidence be in the interest of justice considering the accused’s right to a fair trial?
- The interest of society in encouraging the reporting of sexual offences.
- Is the previous sexual conduct and history relevant to the issues before the court?
- Will such evidence rebut evidence adduced thus far by the state?
