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

admitted as “background” without any adequate assessment of its prejudicial
effect. 6 To quote McHugh J:
Great care needs to be taken … in determining whether evidence,
disclosing other criminal conduct, is evidence concerning the res
gestae or is merely circumstantial evidence. By applying labels such as
“one transaction”, “connected series of events”, “system”, “history”,
“completeness” and “part of one chain of relevant circumstances”,
evidence which is in truth purely circumstantial improperly avoids the
tests of admissibility which the modern cases expound. 7
OUR ANALYSIS
10.3 We have concluded that there are two different reasons for admitting such
evidence. Some evidence (res gestae) is so inextricably linked to the facts about
the offence charged, by reason of its close connection with them in time and
space, that it should be automatically admissible; on the other hand, some
evidence, though not forming part of the alleged facts, is nonetheless linked to
those central facts by virtue of its force in making them comprehensible. That
evidence should, in our judgment, have to pass a test of admissibility. 8
Evidence which is part of the narrative of the offence
10.4 While it could be argued that all prejudicial character evidence should be prima
facie inadmissible, in the words of McHugh J, some evidence “is so fundamental
to the proceedings that its admissibility as a matter of law cannot depend upon a
condition that its probative force transcends its prejudicial effect”. 9 It would, for
example, be very strange if evidence of an assault committed in the course of a
rape, but not separately charged, were to be treated as prima facie inadmissible;
or if, on a charge of murder by firing a bullet through a window, the prosecution
had to seek leave to adduce evidence that the defendant had not only killed the
deceased but also broken the window; or if, on a charge of burning down a hostel
6 Eg, Fulcher [1995] 2 Cr App R 251 in which the Court of Appeal held it was right that,
where the defendant was charged with the murder of his infant son, evidence of the
defendant’s previous violence towards the victim was admissible as background as evidence
of motive. Its prejudicial effect was not taken into account. The Court of Appeal
commented at p 258, “Of course, a court always has power to exclude evidence which it
finds to be more prejudicial than probative,” but no application was made for it to be
excluded on that basis, and the court thought any such application would have been
unlikely to succeed.
7 Harriman v The Queen (1989) 167 CLR 590, 633–634.
8 The ALRC wrote that
surrounding detail puts a narrated transaction in context, assisting evaluation of
the truth of the narration and thus is “indirectly” relevant to the issues.
Information which aids in the understanding of other relevant evidence is also
relevant.
ALRC Report, vol 2, para 59. We think that the evidence described in the first sentence,
and the evidence described in the second, should be handled differently.
9 Harriman v The Queen (1989) 167 CLR 590, 633.
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