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

(iii) the accused may have had a relationship with the victim of the offence
charged, and the previous misconduct evidence may relate to this victim
rather than the victims of other offences;
(iv) the evidence may assist in establishing the motive behind the offence
charged.
8.23 We discuss categories (ii)–(iv) and our solution in Part X below, but note here
that only category (i) seems to describe evidence which ought properly to avoid
an exclusionary rule altogether (as distinct from possibly qualifying for
admission under an exception to that rule). Having concluded that bad character
should be defined in terms of objective facts rather than the risk of prejudice, we
must now formulate the exclusionary rule in such a way that it does not exclude
evidence which goes directly to the facts of the alleged offence, or evidence of
misconduct in the course of that offence or close to that offence in time, place or
circumstances.
8.24 We took account of our tenet that fact-finders are, prima facie, entitled to have
placed before them all the relevant evidence which is available, and of the general
weaknesses and risks entailed in extraneous evidence of bad character, and
formed the view that the distinction between central and extraneous evidence
should be one of the organising principles of our recommendations.
8.25 We were encouraged to note that, in the context of restrictions on evidence going
to a defendant’s credibility, section 104 of the Australian Evidence Act 1995
(Cth) referred to
(a) the events in relation to which the defendant is being
prosecuted; or
(b) the investigation of the offence for which the defendant is
being prosecuted
and that this formulation did not appear to have generated major problems of
interpretation.
8.26 It seemed to us that this offered a way forward, and that evidence of the events
charged, and of the investigation of that offence, should be admissible without
being subject to any exclusionary rule, no matter which party seeks to adduce it.
This would include any incidental misconduct, such as the criminal damage
caused by a burglar who broke items in the course of the burglary. It would
extend too to the surrounding facts (such as the appropriation, the day before, of
a car which was to be used in the burglary) and to an allegation that a witness is
lying about the alleged facts of the offence.
8.27 The reference to the investigation of the offence charged would mean that a
defendant would not need leave to adduce evidence that, for example, an alleged
cell confession was never made, or that a confession was extracted under threat
or the offer of a reward, or that an officer had destroyed evidence inconsistent
with the defendant’s guilt. It would extend only to misconduct committed in the
course of the investigation or prosecution, and not to evidence of misconduct on
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