Friday, 19 June 2009

Accused introduces own bad character

The law generally forbidding the prosecution from leading bad character evidence against an accused is fairly clear. The "shield" that an accused has against allegations of bad character - unless they adduce evidence of their own good character or attack the character of prosecution witnesses - is found at s 399(5) Crimes Act 1958. When the Evidence Act 2008 commences operation later this year, Part 3.8 will contain equivalent provisions, notably ss 110 and 112). (Criminal Procedure Act 2009 s 369 will repeal much of the evidence-style provisions in the Crimes Act, but specifically leaves s 399. Has anyone seen any provisions to repeal s 399 as suggested by the VLRC?)

It's trite, but worth highlighting, that s 399(5) — and successors — has no role to play if the accused doesn't give evidence.

But character can become an issue in other ways.

I'd never thought of the potential consequences of an accused leading evidence of his or her own bad character until I happened across an article by David Ross QC some years ago. The situation isn't one covered by legislation, but there's a surprising amount of case law on the subject. It's a short article and well worth a read.

It's natural to assume that in leading the evidence of their own bad character the accused opens the door to further questioning about character. Ross outlines his view that the leave of the court is still required before the prosecutor can cross-examine on anything more than the disclosure the accused made. He cites a number of cases when that permission wasn't sought and the conviction was thrown out on appeal.

It's also the case if an accused person doesn't put their own character in issue and does attack the credibility of a prosecution witness, the prosecution may not reveal the accused's criminal history to the Court.

What is permissible is this. If a prisoner takes advantage of the Criminal Evidence Act, 1898, which made prisoners competent witnesses on their trial in all cases, and goes into the witness box, he may then, if he has attacked the witnesses for the prosecution, be cross-examined with regard to convictions and matters of character, and I have no doubt that, if he is cross-examined, a conviction is put to him and he denies it, the provisions of the Criminal Procedure Act, 1865, s 6, would apply and the conviction could be proved against him. But by attacking the witnesses for the prosecution and suggesting they are unreliable, he is not putting his character in issue. He is putting their character in issue. R v Butterwasser [1948] 1 KB 4; (1947) 32 Cr App R 81 at 416

Butterwasser was approved in R v Soma (2003) 212 CLR 299; [2003] HCA 13.

I'm not sure if the modern English position is still the same. Earlier this year the Court of Appeal decided R v Hearne [2009] EWCA Crim 103. 61-year-old Mr Hearne was caught burgling an aviary nesting valuable domestic birds. He claimed he was rescuing illegally held wild birds. The Court of Appeal accepted that amounted to an attack on the character of Mrs Geale, the birds' owner. Mr Hearne's previous burglary convictions were properly admitted, under the Criminal Justice Act 2003 (UK) s 101. The case doesn't make it clear if Hearne's criminal convictions were admitted as part of the prosecution case, or during cross-examination of the accused.

But it does seem reasonably certain that the first thing to do before embarking on any steps down the road labelled "Character" is to ask the presiding judicial officer to declare that character has been raised. After it commences, Evidence Act 2008 s 104 will require that in most, if not all, cases.


Jeremy Gans said...

The evidence law in the Crimes Act and elsewhere were supposed to be dealt with in a bill on transitional and consequential provisions due 'early in 2009'. Hopefully, the bill will be introduced this week. They're cutting it a bit fine for an October commencement of the Vic UEL!

The position of 'bad character' defence evidence under the UEL is actually pretty unclear. Section 110 - which both allows the defence to raise character and allows the prosecution to rebut it - is limited to 'good' character (and so, arguably, is the leave requirement in s112.) Section 104 is now - thanks to ALRC recommendations - limited only to 'tit for tat' attacks (i.e. where the defence has attacked another witness's character.) The best bet may well be ss 101 (3) & (4), on rebuttal tendency and coincidence evidence. But I suspect that there's really a lacuna here.

Kyle said...

There are a lot of transitional and consequential amendments in the Criminal Procedure Act 2009. Part 9.2 repeals quite a few of the evidentiary provisions in the Crimes Act 1958, but specifically leaves s 399.

Stephen Odgers mentioned In one of his recent seminars on the new Evidence Act that the Department of Justice is feverishly working to identify evidentiary provisions spread through the statute books and identify those that ought to be repealed.

They are cutting it close!

I wonder if s 399 will indeed be repealed?

Jeremy Gans said...

The CPA does repeal some minor provisions, but it leaves the key provisions (e.g. s398A and 399) untouched. But they - and many provisions of the Evidence Act 1958 - will have to be repealed before October, or there'll be chaos.

Section 8 of the UEL preserves other Acts, but it can be tricky to work out whether past statutes are preserved. The Norfolk Islanders forgot to repeal their Crimes Act provisions and that caused all manner of trouble at the trial and appeal of Glenn McNeill for killing Janelle Patton.

Alas, no sign of the transitional/consequential bill on today's Parliamentary notice papers.