Evidence of Bad Character in Criminal ... - Law Commission

conduct and that to which it was said to be relevant must be “substantially and
relevantly similar”. 10 This was the implication they drew from the psychological
studies. 11 They concluded, “To maximise the probative value and minimise the
disadvantages of such evidence, the emphasis of the law should be on receiving
evidence of past conduct of the relevant person occurring in similar
circumstances.” 12
7.11 Where the issue is credibility only, the Evidence Act 1995 (Cth) does require the
court to have regard to specific matters in judging whether the evidence has
substantial probative value. They are (a) whether the evidence tends to prove that
the witness knowingly or recklessly made a false representation when under an
obligation to tell the truth; and (b) the period that has elapsed since the acts or
events to which the evidence relates. 13
7.12 In relation to section 103 of the Evidence Act 1995 (Cth) and the definition of
“substantial probative value”, it has been observed that
evidence adduced in cross-examination must … have substantial
probative value in the sense that it could rationally affect the
assessment of the credit of the witness. … The addition of the word
“substantial” nevertheless imposes a limitation upon the common
law, when almost anything was allowed upon the issue of credit
unless it clearly had no material weight whatsoever upon that issue.
That limitation is an important one. Counsel must, however, be given
some freedom in cross-examination – whether it relates to a fact in
issue or to credit. They are not obliged to come directly to the point;
they are entitled to start a little distance from the point and to work
up to it. 14
It is suggested 15 that where evidence would have a real, persuasive, bearing on the
reliability of a witness, or the reliability of particular testimony of the witness, the
test should be regarded as being satisfied, 16 at least where the testimony of the
witness could reasonably be regarded as important to the outcome of the
proceedings. 17
7.13 The New Zealand Law Commission has recommended a restriction on evidence
going to a person’s truthfulness: evidence is only admissible if it is “substantially
10 This is the phrase used in the ALRC Interim Report No 26 (vol I) at para 809, and in
cl 87 of the Bill appended to the final Report.
11 These are the studies referred to at para 6.11 above and discussed more fully in the
consultation paper, at paras 6.10 – 6.21.
12 ALRC Interim Report 26 (vol I), para 794 (footnote omitted).
13 Section 103(2).
14 RPS, unreported, NSW CCA, 13 August 1997, per Hunt CJ.
15 Watson, Blackmore, Hosking, Criminal Law (NSW) vol I, para 6.10860.
16 Fowler, unreported, NSW Sup Ct, 15 May 1997.
17 McGoldrick, unreported, NSW CCA, 28 April 1998.
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