Character Evidence

Published by Geoff Harrison | 29 September 2024

As expressed in Melbourne, character means, "inherent moral qualities", "disposition...something more intrinsic to the individual in question", "the aggregate of qualities which distinguish one person from another", "moral constitution", and "a permanent and unchanging pattern of the nature of the individual" (See Wiggins No. 7 at [61].

Under s110 of the Evidence Act 1995 ('the Act'), a person can raise their character before a jury/tribunal of fact in two ways, generally or in a particular respect. The prosecution requires leave under s112 of the Act to cross-examine an accused on Character. Hence, an accused should generally seek an advanced ruling before leading evidence of Character under s192A of the Act as to whether the prosecution would be able to lead evidence to rebut good Character under s110(3) of the Act.

The case of Wiggins No. 7 discusses the issue of raising character in a particular respect and the divisibility of character. The case is also authority for the fact that the Crown can lead evidence of bad character, even if the accused has not been found guilty or convicted of a particular offence.

If Character is raised generally, whilst there is no obligation on a trial judge to give a good Character direction, if a general good Character direction is given to a jury, it has two limbs:

1. The fact that the accused is a person of good character is relevant to the likelihood of the accused having committed the offence alleged.

2. Further, a jury can use the fact that the accused is a person of good character to support his/her credibility.

   
   

Other Sources:

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• Criminal Trial Courts Bench Book: Character

• Criminal Trial Courts Bench Book: Evidence About Character

Cases:

• Melbourne v R [1999] HCA 32

• R v Wiggins (No 7) [2022] NSWSC 1249

• Lucknow (a pseudonym) v R [2021] NSWCCA 113

• FB v R [2020] NSWCCA 137

• TKWJ v R [2002] HCA 46

• PGM v R [2006] NSWCCA 310 (Character must be consciously and deliberately adduced by an accused before the Crown should be granted leave to cross-examine at [35]).

• REGINA v SKAF, GHANEM & HAJEID [2004] NSWCCA 74 (emphatic denials of guilt, do not pass the test eg. "I would never do that")

• R v Zurita [2002] NSWCCA 22

• R v Soto-Sanchez [2002] NSWCCA 160

• Wallace v R [2024] NSWCCA 176

  
  

Extracted Legislation:

EVIDENCE ACT 1995 - SECT 110 Evidence about character of accused persons

Evidence about character of accused persons

(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.

(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.

(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.

Note-: The Commonwealth Act includes an additional subsection relating to unsworn statements.

EVIDENCE ACT 1995 - SECT 112 Leave required to cross-examine about the character of accused or co-accused

Leave required to cross-examine about character of accused or co-accused

A defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.