TOPIC 6: CHARACTER AND CREDIBILITY
Q1: Is the evidence character or credibility evidence?
Q2: Is the evidence sought to be adduced separately or during cross-examination 1. Character Evidence
The provisions on character evidence (s 110-2) only apply to criminal proceedings (s 109) MEANING OF CHARACTER EVIDENCE
Character evidence is that which seeks to prove a person has an inherent disposition or tendency to act, think or feel in a particular way on continuous occasions
Look at prior convictions, prior instances of behaviour, personal opinion of witness or reputation
Character evidence may go purely to issue, meaning there is no need to consider credibility rule (Melbs)
E.g. in Melbourne, E that the accused had no prior convictions for violent offences. Held that the evidence was character evidence going to fact and not credibility
E.g. in Braysich, character evidence about accused’s honesty went to both fact and credibility as the offence related to stock exchange manipulation.
A. ACCUSED MAY ADDUCE GOOD CHARACTER EVIDENCE I. RULE FOR GOOD CHARACTER
In a crim proceeding (s 109 EA), the hearsay/opinion/tendency and credibility rules do not apply to evidence adduced by an accused to prove (directly or by implication) that he/she is either generally or in a particular respect, a person of good character (s 110(1))
II. REBUTTING GOOD CHARACTER 1. General character evidence
If E adduced to prove that A is generally a person of good character has been admitted, other evidence can be adduced to prove that A is not generally a person of good character (s 110 (2)) 2. Particular character evidence
If E adduced to prove that A is a person of good character in a particular respect has been admitted, other evidence can be adduced to prove that A is not a person of good character in that respect (3)
E.g. in Zurita, good character of no sexual offence priors- couldn’t bring in theft offences to rebut B. EXPERT OPINION OF CO-ACCUSED
The hearsay and tendency rules do not apply to evidence of an accused's character if: (s 111(1)) a. the evidence is evidence of an opinion about the accused adduced by another accused; and
b. the person whose opinion it is has specialised knowledge based on the person's training, study or experience; and
c. the opinion is wholly or substantially based on that knowledge
E.g. in Lowery, 2 Ds murdered a woman. L gave good character E and claims K was instigator. K called a clinical psychologist, who concluded that L was more dominant and was psychpathetic. E was admitted.
This section cannot be used to adduce credibility evidence
No requirement for accused to put character in issue: this evidence can be brought against a co- accused regardless of whether that accused person has put their character in issue or not
Rebutting that evidence: If such evidence is admitted, the hearsay/opinion/tendency rules do not apply to evidence adduced to prove that evidence should not be accepted (s 111(2))
C. LEAVE REQUIRED TO CROSS-EXAMINE ON CHARACTER
Leave is required to cross-examine the accused or co-accused about character (s 112)
If A has not given evidence, they cannot be cross-examined
A/co-A cannot claim privilege against self-incrimination in respect of the offence charged s 128(10)
Look at leave factors: (s 192 (2))
a. Extent to which leave would unduly lengthen hearing; and
Would it result in extensive collateral investigation? (Stanoevski) b. Extent to which it would be unfair to a party or witness; and
Is the bad character evidence highly prejudicial? (Stanoevski) c. The importance of the evidence; and
Serious criminal offence vs minor disciplinary action (Stanoevski) d. The nature of the proceeding; and
e. The power of court to adjourn hearing or to make another order/direction re the evidence.
Per Stanoevski, may be a miscarriage of justice if TJ gives leave w/o considering s 192 factors, UNLESS TJ could not have reasonably refused leave or A would have been convicted even if leave to cross- examine was refused
REMEMBER, even if leave granted, prosecution’s evidence might still be excluded by s 135-137 JURY DIRECTIONS
Either party may request the TJ direct the jury on the appropriate use of character evidence (s 12 JDA)
TJ has discretion on whether or not to give a good character direction
In deciding to give a direction, the TJ will need to evaluate the probative value of good character evidence in relation to A’s propensity to commit the crime and accused’s credibility (Melbourne)
E.g. in Melbourne, no direction required because none of the evidence had a direct probative bearing on truthfulness of accused – all directed at unlikelihood that he would commit murder (‘amiable’, ‘quiet’)
2. Credibility Evidence
[P/D] may wish to adduce credibility evidence, that is evidence which shows that the witness’ evidence is either more or less believable.
MEANING OF CREDIBILITY EVIDENCE
Credibility evidence is evidence relevant to the credibility of the witness that: (s 101A)
a. is relevant only because it affects the assessment of the credibility of the witness or person; OR b. is relevant because it affects the assessment of the credibility of the witness or person AND for
some other purpose for which it is not admissible
What does ‘credibility of the witness’ mean?
Includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence
A. CREDIBILITY EVIDENCE RULE
Prima facie, credibility evidence is not admissible (s 102)
Examples of evidence affecting cred:
Relating W’s ability observe/remember facts/events (relevant facts in issue or more generally);
Demonstrating W has made prior in/consistent statement about facts/events at issue;
Other W’s evidence about facts/events at issue that is in/consistent with W’s own evidence
