Unit 12 Character Evidence

Question 1

What does “misconduct” mean in relation to the bad character definition?

Answer 1

‘Misconduct’ means the commission of an offence or other reprehensible behaviour (s. 112(1)). Thus any evidence suggesting guilt of an offence is potentially evidence of misconduct, whether or not the accused has been charged with or convicted of it. 
(The use of evidence of criminal misconduct not resulting in proceedings may require special caution).

Question 2

What does proof of a previous conviction create?

Answer 2

The proof of a conviction creates a rebuttable presumption that the person convicted committed the offence.

Question 3

What constitutues “reprehensibility?”

Answer 3

Fact-specific. Connotes some element of culpability or blameworthiness. Conduct is not necessarily ‘reprehensible’ under s. 98 simply because it is morally lax.

Question 4

S98 Definition of bad character

Answer 4

evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

a. has to do with the alleged facts of the offence with which the defendant is charged, or
b. is evidence of misconduct in connection with the investigation or prosecution of that offence.

Question 5

Is admitting gang membership evidence of bad character?

Answer 5

Yes = reprehensible behaviour. As were violent rap lyrics about gang violence.

Question 6

Purpose of s100 (bad character)?

Answer 6

Bad Character evidence is admissible only in restricted circumstances (gateways), and, except where all parties agree to the evidence being admissible, the leave of the court is required.

Question 7

Under the common law rules, when can bad character evidence be adduced under the gateways?

Answer 7

Permits evidence to be adduced which, looking to the wording of s. 98(a), ‘has to do with the alleged facts of the offence’ or, looking to the wording of s. 98(b), ‘is evidence of misconduct in connection with the investigation or prosecution of that offence’. 

Question 8

Under s100(1) “evidence of the bad character of a person other than the defendant is admissible if and only if—” ?

Answer 8

a. it is important explanatory evidence,
b. it has substantial probative value in relation to a matter which— 
i. is a matter in issue in the proceedings, and
ii. is of substantial importance in the context of the case as a whole, or
c. all parties to the proceedings agree to the evidence being admissible.
Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.

Question 9

Whose bad character evidence does s100 cover?

Answer 9

Section 100 regulates all aspects of the use of the bad character of a person other than the accused, in chief or in cross-examination, whether or not the person appears as a witness. Thus, it covers the character of a person whose statement is admitted under an exception to the hearsay rule and the character of the deceased in a trial for murder.

Question 10

What four important features for the test of admissibility under s100 were established in Braithwaite?

Answer 10

1. The test of ‘substantial probative value’ is not the same as the test for gateway (d) of s. 101 where evidence of the bad character of an accused is tendered by the prosecution, and where the test is simply one of relevance. It is, however, the same as the test that appears in gateway (e) where evidence is tendered by one co-accused against another.
2. If the conditions of s. 100 are met, there is no residual statutory discretion whereby the judge can refuse to admit the evidence.
3. Except where the parties agree to admit the evidence, the leave of the court is always required.
4. Rulings by the judge in the absence of agreement between the parties require the exercise of judgment, rather than of discretion.

Question 11

Is there a discretion to exclude defence evidence under s100?

Answer 11

No.
That there is no discretion to exclude defence evidence under s. 100 on grounds of fairness was reaffirmed in Edwards [2018]. Evidence tendered by the prosecution is of course subject to exclusion under the PACE 1984, s. 78. It may be unlikely, once the high standard of probative value required by s. 100 is found to have been met, that it will be unfair to admit the evidence, but it is not impossible. A suggestion in Lee [2019] EWCA Crim 2052 that evidence of a non-defendant’s bad character tendered by an accused could be excluded because of prejudice to a co-accused is incorrect.

Question 12

What is important explanatory evidence? (100(1)(a) defined in 100(2))

Answer 12

(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if— 
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.

Question 13

What does substantial mean under s100(1)(b)?

Answer 13

‘Substantial’ bears its ordinary meaning. Other leading cases have equated ‘substantial’ probative value with ‘an enhanced capability’ of proving or disproving a matter in issue in order to emphasise the point.

Question 14

What matters are relevant to the assessment of probative value? (outlined at 100(3))

Answer 14

(3)In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)— 
a. the nature and number of the events, or other things, to which the evidence relates;
b. when those events or things are alleged to have happened or existed; 
c. where— 
i. the evidence is evidence of a person’s misconduct, and
ii. it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,
the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct; 
d. where—
i. the evidence is evidence of a person’s misconduct,
ii. it is suggested that that person is also responsible for the misconduct charged, and
iii. the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.

Question 15

In principle, what does the persuasiveness of previous convictions depend on?

Answer 15

Whether convictions have persuasive value depends principally on their nature, number and age.
As to s.100(3)(a), the more serious the misconduct on the part of a witness, and the greater the number of instances of misconduct, the stronger the likely probative value. As to s.100(3)(b), evidence of misconduct occurring many years ago is usually likely to have less probative value than more recent misconduct, although very serious misconduct in the past may well have a stronger probative force than recent but comparatively minor misconduct. The factors listed in (c) and (d) are most likely to be relevant where the bad character evidence is said to be of probative value having regard to its similarity to the offence charged, in support of an argument that a person other than the accused committed the offence charged.

Question 16

Under s101(1) what are the gateways for a Defendant’s bad character to be adduced?

Answer 16

(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—
a. all parties to the proceedings agree to the evidence being admissible,
b. the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
c. it is important explanatory evidence,
d. it is relevant to an important matter in issue between the defendant and the prosecution,
e. it has substantial probative value in relation to an important matter in issue between a defendant and a co-defendant,
f. it is evidence to correct a false impression given by the defendant, or
g. the defendant has made an attack on another person’s character.

Question 17

Section 101(3) states the court must not admit evidence under two of the gateways in certain conditions, which ones and why?

Answer 17

(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an 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.
(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.

Question 18

What does the case of Hunter permit in terms of character directions?

Answer 18

Hunter permits a modified good character direction in the judge’s discretion (e.g. previous offending is years old and of a different kind.

Question 19

What should the judge do when evidence of relatively minor bad character is admitted?

Answer 19

Where evidence of relatively minor bad character is tendered to prevent the jury from speculating that it is worse than it is, the Crown Court Compendium (July 2020), ch. 12-4, states that the judge should direct that the evidence has been admitted ‘only so that they know of the whole background and, if appropriate, that the evidence does not make it more or less likely that D committed the offence’.

Question 20

S101(d) required bad character evidence to be relevant to a matter in issue. Is the judge required to consider probative value as with s100?

Answer 20

No. At common law, a high degree of probative value was required in order to overcome the prejudicial effect involved in the reception of such evidence. The CJA 2003 removes this requirement from the test of admissibility, relegating questions of fairness to the court’s power to exclude evidence to avoid prejudice (s. 101(3)). ’Completely reverses the pre-existing general rule’ and that the ‘one-stage test which balanced probative value against prejudicial effect is obsolete’.

Question 21

What is the important change that s101(d) “relevant to an important matter in issue” brings about?

Answer 21

The most radical aspect of the change brought about by s.101(1)(d) in combination with s.103 is that an accused’s propensity becomes a matter towards which relevant prosecution evidence may be directed. Section 101(1)(d) has the additional function of admitting evidence to show the untruthfulness of an accused person.

Question 22

What must the court do where the evidence of bad character is disputed?

Answer 22

Where the evidence of bad character is disputed, s.109 requires the court to consider its relevance and probative value on the assumption that it is true, unless it appears that no court or jury could reasonably find it to be true. The proliferation of satellite issues that may arise in settling the dispute may be a relevant consideration in the ultimate determination of its probative value.

Question 23

What is the exclusionary power under s101(3)?

Answer 23

(3)     The court must not admit evidence under subsection (1)(d) or (g) if, on an 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.
The principal mechanism by which the court can ensure that an accused is not prejudiced by revelations of evidence under s. 101(1)(d) or (g) is the exclusionary power under s. 101(3): that 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.
The power, it should be noted, comes into play on application by the defence to exclude the evidence rather than on the prosecution application to admit it.

Question 24

How does the exclusionary power of 101(3) operate? (Bad character)

Answer 24

The power, it should be noted, comes into play on application by the defence to exclude the evidence rather than on the prosecution application to admit it. (not allowing evidence under gateway d or g if adverse effect on fairness)

Question 25

What is the difference, outlined in Hanson, between the exclusionary power of 101(3) and s 78 PACE?

Answer 25

S101(3) – “must not admit”

S78 PACE – “may refuse to allow”

Question 26

What is the limitation on section 101(3) as an exclusionary power for bad character evidence?

Answer 26

Section 101(3) cannot be used to restrict any of the other five gateways, which appear to lead directly to admissibility. This raises no issues of difficulty in relation to (a) or (b), where the accused has control over the issue. It may be a source of difficulty in relation to (e), where it is the co-accused who is entitled to invoke the exception, but the rule that there is no discretion to restrain the co-accused in tendering relevant evidence is well-established and of general application. 
 In relation to explanatory evidence admitted under s.101(1)(c), however, and evidence to correct a false impression under s.101(1)(f), it may be envisaged that there will be cases where the defence will seek to make an argument for exclusion based on unfairness.

Question 27

What is included in considering gateway 101(d), matters in issue between the defendant and prosecution?

Answer 27

103(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

Question 28

How might a propensity to commit offences be shown? (101(d) explained in 103)

Answer 28

103(2) … a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—
• an offence of the same description as the one with which he is charged, or
• an offence of the same category as the one with which he is charged.
103(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.
103(4) For the purposes of subsection (2)—
• two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;
• two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.
A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.

Question 29

Is defence evidence allowed under gateway 101(d)?

Answer 29

Only prosecution evidence is admissible under section 101(1)(d).

Question 30

What does “important matter” mean in satisfying gateway 101(d)?

Answer 30

‘Important matter’ means ‘a matter of substantial importance in the context of the case as a whole.’ While the issue must be of substantial importance, however, it is not necessary for the evidence of bad character to be of substantial probative value.

Question 31

What are the 3 steps outlined by Hanson as to whether a propensity to commit offences is shown?

Answer 31

1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
2. If so, does the propensity make it more likely that the defendant committed the crime charged?
3. Where the convictions are for offences of the same category or description (s. 103(2)) is it unjust to rely on them (s. 103(3))? Where the propensity is proved by other means, as permitted by s. 103(1) and (2), is it unfair under s. 101(3) to admit the evidence?

Question 32

According to Hanson, how is propensity demonstrated?

Answer 32

Propensity can be demonstrated by one previous event if sufficiently probative, as, for example, where the behaviour is ‘strikingly similar’. Hanson made clear the requirement to consider the probative value of propensity evidence.

Question 33

What is the underlying principle of the probative value of evidence to show propensity?

Answer 33

The underlying principle is that the probative value of multiple accusations may depend in part on their similarity, but also on the unlikely prospect that the same person would be falsely accused on different occasions by different and independent individuals. The making of multiple accusations is a coincidence in itself, which must be taken into account in deciding admissibility.

Question 34

101(e) (probative value in relation to important matter between defendant and co-defendant) explained by s104…

Answer 34

104(1) Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's defence. 
104(2)     Only evidence— 
•	which is to be (or has been) adduced by the co-defendant, or 
•	which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, is admissible under section 101(1)(e). 
Section 104(1) is primarily relevant to the cut-throat defence where the evidence of propensity is directed more towards establishing lack of veracity than to the issue of guilt.

Question 35

When does gateway 101(1)(e) usually apply according to s104(1)

Answer 35

The restriction applied by s.104(1) does NOT bite where the evidence of propensity is not directed to untruthfulness but to the issue of commission of the offence. In such cases, s.101(1)(e) permits propensity evidence to be adduced against an accused by a co-accused whatever the nature of the defence, provided that it is of ‘substantial probative value’ in relation to an issue between them — though this will frequently occur because one blames the other.

Question 36

What evidence is admissible under gateway 101(e)?

co-defendant

Answer 36

104(2)     Only evidence—
• which is to be (or has been) adduced by the co-defendant, or
• which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, is admissible under section 101(1)(e).

Question 37

Is the standard higher for gateway (d) or (e)?

Answer 37

(e). The word “substantial” deliberately sets the bar than in gateway (d) where the issue is between the prosecution and the accused and because, if the test for admissibility is met, the court has no discretion to refuse the admission of the evidence when tendered on behalf of one accused against the other. “substantial” bares its natural meaning in this sense. Removes the risk of unfair prejudice on the co-accused.

Question 38

Gateway (d) and (e) both concern a propensity to be untruthful, in which is this interpreted most widely?

Answer 38

It appears that the meaning and content of the propensity is broader in s.101(1)(e). Where, however, evidence of a propensity not directly suggestive of untruthfulness is admitted under s.101(1)(d) as being relevant to the guilt of the accused, the evidence is admissible for all relevant purposes, including an assessment of the accused’s credibility, so that the practical difference between gateways (d) and (e) is reduced.

Question 39

What gateway is 101(1)(f) for?

Answer 39

Permits evidence of bad character to be adduced by the prosecution to correct a false impression given by the accused about him or herself.

Question 40

What constitutes a false impression under 101(f)?

Answer 40

105(1) For the purposes of section 101(1)(f)—

a. the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;
b. evidence to correct such an impression is evidence which has probative value in correcting it.

Question 41

What are the 5 situations whereby a defendant is treated as being responsible for the making of an assetion under gateway 101(f) (false impression)?
(contained in 105(2))

Answer 41

a. the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
b. the assertion was made by the defendant—
i. on being questioned under caution, before charge, about the offence with which he is charged, or
ii. on being charged with the offence or officially informed that he might be prosecuted for it, and evidence of the assertion is given in the proceedings,
c. the assertion is made by a witness called by the defendant,
d. the assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or
e. the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.

Question 42

Is defence evidence allowed through gateway (f)?

Answer 42

No. 105(7) only prosecution evidence is admissible under s101(1)(f).

Question 43

Which three gateways only allow prosecution evidence?

Answer 43

(d) – it is relevant to an important matter in issue between the defendant and the prosecution,
(f) – it is evidence to correct a false impression given by the defendant,
(g) – the defendant has made an attack on another person’s character.

Question 44

Can the defendant disassociated himself from an assertion made as to not allow a false impression under gateway (f)?

Answer 44

Yes. A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it. (105(3))

Question 45

For the purposes of 101(1)(g) a defendant makes an attack on another person’s character if – …

Answer 45

a. he adduces evidence attacking the other person’s character,
b. he (or any legal representative) asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or
c. evidence is given of an imputation about the other person made by the defendant—
i. on being questioned under caution, before charge, about the offence with which he is charged, or
ii. on being charged with the offence or officially informed that he might be prosecuted for it.

Question 46

What constitutes “evidence attacking the other person’s character”?

Answer 46

a. has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or
b. has behaved, or is disposed to behave, in a reprehensible way; and ‘imputation about the other person’ means an assertion to that effect.

Question 47

Is defence evidence permissible under s101(1)(g)?

Answer 47

No. Only prosecution evidence is admissible under section 101(1)(g).
Evidence of the bad character of a non-defendant is admissible only with the leave of the court under the CJA 2003, s. 100. It follows that an ‘attack’ for the purposes of s. 101(1)(g) based on evidence adduced by the defence will have been preceded by the granting of such leave, and therefore the evidence or question must concern a matter that is important explanatory evidence or is of substantial probative value in relation to an important matter in the case.

Question 48

Will the offences of an accused under the age of 14 have an effect on propensity?

Answer 48

No, offences committed by person under 14 disregarded for purposes of evidence relating to previous convictions, shall cease to have effect. WHEN THE ACCUSED IS 21 OR OVER, Unless—

a. both of the offences are triable only on indictment, and
b. the court is satisfied that the interests of justice require the evidence to be admissible.

Question 49

What is the procedure for adducing bad character evidence?

Answer 49

The Court of Appeal specifically discouraged the practice of ‘informal’ applications to admit bad character evidence. All applications should be made in accordance with CrimPR Part 21. The proper course should be to make a written application (or at least undertake promptly to make such an application), and for a judge to rule on the point, however briefly, as the circumstances may require.

Question 50

What is the Court’s power to vary requirements under Part 20?

Answer 50

20.5(1) The court may—
shorten or extend (even after it has expired) a time limit under this Part;
a. allow an application or notice to be in a different form to one set out in the Practice Direction, or to be made or given orally; and
b. dispense with the requirement for notice to introduce hearsay evidence.
(2) A party who wants an extension of time must—
a. apply when serving the application or notice for which it is needed; and
b. explain the delay.

Question 51

What must a party who wants to adduce bad character evidence do under CrimPR 21.2?

Answer 51

(1) A party who wants to introduce evidence of bad character must— 
a. make an application under rule 21.3, where it is evidence of a non-defendant’s bad character;
b. give notice under rule 21.4, where it is evidence of a defendant’s bad character.
(2) An application or notice must—
a. set out the facts of the misconduct on which that party relies,
b. explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them, and
c. explain why the evidence is admissible.

Question 52

Is the decision on admissibility of bad character evidence done in public or private court?

Answer 52

The court must announce at a hearing in public (but in the absence of the jury, if there is one) the reasons for a decision—

a. to admit evidence as evidence of bad character, or to refuse to do so; or
b. to direct an acquittal or a retrial under section 107 of the Criminal Justice Act 2003.

Question 53

What is the persuasive presumption of convictions as evidence?

Answer 53

the person (other than the accused) convicted of an offence in any court in the UK or any other EU Member State or by a Service court outside the UK shall be taken to have committed that offence unless the contrary is proved. The legal burden is borne by the party against whom the presumption operates; and if borne by the accused, may be discharged by proof on a balance of probabilities.
Section 74(3) creates a similar presumption in the case of the previous convictions of the accused, provided that evidence is admissible of the fact that the accused has committed the offence in respect of which he or she has been convicted. As to convictions in foreign countries, apart from those in other EU Member States and by Service courts outside the UK.

Question 54

What are the 4 key stages for deciding the weight of character evidence?

Answer 54

1. The judge determines admissibility under the relevant statutory gateway(s).
2. Where it is raised, the judge also determines any question of exclusion in respect of prosecution evidence, for example, under s. 101(3) or 103(3) of the CJA 2003, or s. 78 of the PACE 1984.
3. Once evidence of bad character is admitted, questions of weight are for the jury, subject to the judge’s power to stop the case where the evidence is contaminated (under s. 107 ) and the judge’s direction as to the use to which the evidence may be put.
4. The direction on the evidence is of paramount importance. If the ground of the trial has shifted since the evidence was admitted, it may be necessary to tell the jury that it is of little weight.
   The purpose of the legislation was ‘to assist in the evidence-based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice’.

Question 55

According to Hanson, what should a proper direction on bad character evidence do? (3)

Answer 55

1. give the jury a clear warning against the dangers of placing undue reliance on previous convictions;
2. stress that evidence of bad character cannot be used to bolster a weak case, or to prejudice a jury against the defendant;
3. emphasise that the jury should not infer guilt from the existence of convictions.

Question 56

Is evidence of good character admissible?

Answer 56

Yes. In modern law evidence of good character is admissible as of right, both to show that an accused who lacks a proven propensity to do wrong is less likely to have committed the offence, and to show that a person who is of good character is more likely to be telling the truth than one who is not.

Question 57

Does the judge need to make a direction with good character evidence?

Answer 57

Yes. Under Vye: The significance accorded to evidence of good character led to a rule that fairness required the judge to give the jury specific directions on its relevance.

Question 58

Who benefits from a good character direction?

Answer 58

The accused only.

Question 59

What rule did Hunter outline for good character directions?

Answer 59

A person with no previous convictions was normally entitled to a good character direction even if guilty of some other relevant and admissible misconduct and the practice of regarding defendants with convictions or cautions that were not of particular relevance to the matter charged as entitled to at least a modified form of the direction.
Unequivocally rejected the notion that the mere fact that no evidence of bad character was tendered against an accused was of itself a reason for giving a good character direction.

Question 60

Which defendants are entitled to a good character direction?

Answer 60

The true rule is that only defendants with absolute good character (full), or who are deemed to be of effective good character are entitled to any judicial directions on the matter (modified).

Question 61

What does absolute good character mean for a good character direction?

Answer 61

An accused is entitled to a good character direction on the ground of ‘absolute good character’ if the accused has no previous convictions and no other reprehensible conduct is alleged, admitted or proven. It is not necessary for the accused to go further and prove evidence of positive good character (Hunter).

Question 62

What does effective good character mean for a good character direction?

Answer 62

An accused who is judged to be of ‘effective good character’ is also entitled to the good character directions in full. Where the defence lay claim to effective good character, the matter is one of law on which a judgment is required: it is not sufficient to ask the jury whether they consider the accused to be of good character (Hunter). Once the judge has ruled in an accused’s favour the directions may not be withheld, though they should be modified to the extent that it is necessary to reflect the matters that preclude the accused being of absolute good character, and to ensure that the jury is not misled.

Question 63

If a person’s previous convictions are not relevant, are they automatically deemed to have effective good character?

Answer 63

Hunter stipulates that a person cannot automatically expect to be treated as of effective good character on the ground that the person’s convictions or cautions have no relevance to the charge, even where they are also old and minor instances of offending. This is a shift from previous practice, where such cases might have been expected to result in a full direction. In future, the judge should take into account all the circumstances of the offence and the offender, and decide what ‘fairness to all’ dictates.

Question 64

How do unproven allegations/cautions fair against an accused for a good character direction?

Answer 64

The Court of Appeal observed that ‘[a] defendant is not necessarily to be deprived of a good character direction by unproven allegations inadmissible as evidence of his bad character’. It is part of the prosecution’s onus of proof to establish the impediment to the direction to which the accused is otherwise entitled.

Question 65

What is a good character direction?

Answer 65

Standard Two-limb Direction:  makes reference both to credibility and to propensity. The credibility aspect of the direction is by convention referred to as the ‘first limb’ and the propensity aspect the ‘second limb’.

Question 66

What direction should be given where the accused does not testify? (Vye)

Answer 66

In Vye, the Court of Appeal further decided that where the accused has not given evidence at trial but relies on admissible exculpatory statements made to the police or others, the judge should direct the jury to have regard to the accused’s good character when considering the credibility of those statements. The Court thought it ‘logical’ that such evidence should be taken into account, but drew attention also to the judge’s entitlement to make observations about the weight to be given to such exculpatory statements in contrast to evidence on oath.
Vye also decides that, where an accused of good character does not give evidence and has given no pre-trial answers or statements upon which reliance is placed, a ‘first limb’ direction is not required as no issue as to the accused’s credibility arises.

Question 67

How does the accused not testify affect the good character direction?

Answer 67

Vye also decides that, where an accused of good character does not give evidence and has given no pre-trial answers or statements upon which reliance is placed, a ‘first limb’ direction is not required as no issue as to the accused’s credibility arises. (just propensity)

Question 68

Do you need leave of the court to admit evidence under 100(1)(b)

Answer 68

Yes. To admit evidence of bad character of a non-defendant because it has substantial probative value in relation to a matter which is a matter in issue in the proceedings, and is of substantial importance in the context of the case as a whole; you need leave of the court.

Question 69

ABCDEFG acronym for the Gateways

Answer 69

(a) Agreement
(b) By the defendant himself
(c) Crucial (important explanatory evidence)
(d) Defendant’s propensity
(e) BetwEEN defendant and co-defendant
(f) False impression
(g) Have a GO (attack on another)