CLP 4 - bad character Flashcards
What is the definition of ‘Bad Character’? S.98
“evidence of, or a disposition towards, misconduct on his part, other than evidence which:-
- a) has to do with alleged facts of the offence, or
- b) evidence of misconduct in connection with the investigation or prosecution of the offence
(Misconduct means reprehensible behaviour)
How can bad character be shown?
- Criminal record,
- Agreed facts that amount to reprehensible behaviour
- Witness evidence of a reputation for reprehensible behaviour
Can previous acquittals be used as evidence of bad behaviour?
Yes
What are the gateways under s.101 for bad character evidence?
Agreement - all parties agree to the evidence being admissible
Blurts it out - evidence provided by D himself
Context - required to understand the case and value is substantial*
Done it before - propensity to commit similar offences of be untruthful*
E did it - co-defendant’s evidence*
False impression - evidence to correct a false impression given by D*
Gets at a witness - defendant makes an attack on another person’s character*
*Leave of court required
When will the court not admit “Done it before” evidence of bad character?
If, on an APPLICATION BY THE DEFENDANT to exclude it, it appears to the court that the admission of evidence would have such an ADVERSE EFFECT on the FAIRNESS of the proceedings that the COURT OUGHT NOT TO admit it.
What is the leading case for “Done it before” evidence of bad character?
R v Hanson & others
What is the test for “Done it before” evidence of bad character in Hanson?
- Does the defendant’s history establish a propensity to commit offences of the kind charged?
- Does that propensity make it more likely that D committed the offence charged?
- Would it be unjust to rely on the previous offenses?
- In any event, would the proceedings be unfair if the evidence were to be admitted?
. - no minimum number of convictions.
- Strength of prosecution should be considered
- can include evidence after the offence
What is the test for “E done it” evidence of bad character?
Evidence provided by a co-defendant as to the bad behaviour of the defendant.
NOTE: no fairness test.
What is the test for “False Impressions” evidence of bad character ?
- the defendant (or a witness called/questioned by/or relied on by him that he has not disassociated from) has given a false impression.
- evidence to correct such an impression has a probative value in correcting it.
Only applies to prosecution evidence.
What is the test for “Gets at witness” evidence of bad character ?
Defendant:
- provides evidence attacking someone else’s’ character
- asks questions in cross-examination which are intended to attack,
- defendant attacks someone else’s character
Includes evidence that:
- the other person has committed an offence
- the other person has behaved in a reprehensible way
Only applies to prosecution evidence and fairness test applies
What directions are given to the jury in respect of ‘bad character’?
- they should not conclude that D was guilty or untruthful merely because has previous convictions.
- a propensity is not enough to show that D committed the offence
When can evidence of non-defendant bad character be used?
- Context
- Important to the case
- Agreement
What are the s.101(3) safeguards?
- The court must not admit evidence under (1) (d) or (g) if ON APPLICATION by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an ADVERSE EFFECT on the FAIRNESS of the proceedings that the court ought not to admit it.
for example passage of time since conviction.
What are the s.107 safeguards?
Gives court discretion to stop the case if the bad character evidence has been contaminated such that a conviction would be unsafe.
What are the s.110 safeguards?
Court must give reasons in open court for any rulings on bad character.
