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

(A) the risk of the fact-finders attaching undue significance to the
evidence in question in determining whether the defendant is
guilty as charged; and
(B) the risk of their convicting the defendant on the basis of his or her
conduct on some other occasion or occasions, rather than because
they are satisfied that he or she is guilty as charged. 36
11.42 One of our main criticisms of the test in DPP v P was, and still is, that it does not
give sufficient guidance to courts on how to apply the test that it prescribes. We
therefore proposed an approach based on structured guidelines. Three
respondents supported it on the basis that it will promote greater consistency as
between different judges and will ensure that all the various factors are taken
into account. Three others were apprehensive about the proposal because of the
perceived risk that adopting a “structured discretion” would generate a large
number of appeals based on the precise meaning of the words used. Three
respondents did not favour the guideline approach and argued that it is essential
that, in the context of similar fact evidence, maximum flexibility is retained. For
example, Ian Kennedy J said that
the variety of points which call for consideration in similar fact
cases … is so wide that no structure could hope to highlight all of
them, and the longer the list the more easy it is to argue that
Parliament can not have given much weight to the unlisted point.
11.43 The argument for the guidelines is one of accessibility: that it is desirable for all
parties and the court to know what features of evidence are pertinent to the
question of admissibility. The danger is said to be that if it is spelt out exactly
what the court ought to have been taking account of, then the defence have
ammunition to appeal if the court failed to mention relevant factors. Of course, if
the defence are right and the court not only failed to mention them but failed to
take them into account, there can be no objection to the defence appealing
against the ruling. The real fear is of encouraging unmeritorious appeals. One
might argue that this should be met by training magistrates and judges to give
reasons for their decisions.
11.44 Guidelines are not a panacea: reaching the decision about whether it is fair to
admit potentially prejudicial evidence is an intrinsically difficult task, and will
always require the careful exercise of judgment. But we do not accept that
guidelines would be useless or, worse, a positive nuisance to those performing
this balancing exercise. We note that the NZLC has recommended the following
draft clause:
Propensity evidence offered by prosecution about defendants
45(3) When assessing the probative value of propensity evidence, the
judge may consider, among other matters, the following:
36 Paras 10.79 and 10.80 and provisional proposal 17 of the consultation paper.
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