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

example, it was impossible to edit it out without losing some other statement
which they were entitled to put in. In those circumstances it would be surprising
if the interests of justice required corrective bad character evidence to be
admitted.
13.12 Where the prosecution knows, in advance of the presentation of the defence case,
that a false assertion of good character will be made, there is no reason, in our
view, why the prosecution should not be able to apply for leave to adduce the
corrective evidence in chief. 8
Implied and non-verbal assertions
13.13 In the consultation paper, we were concerned to address the fact that the factfinders
would be misled, not how they might be misled. We proposed that
the statute should make it clear that an implied assertion of good
character will result in the loss of the shield in circumstances where
an express assertion would do so. 9
13.14 Only three of the 30 respondents who addressed this view disagreed. Five of
those who agreed had some reservations. One respondent stated that evidence of
good character should only be admissible if highly relevant, and an implied
assertion of good character cannot meet this standard of relevance. The question
of admitting bad character to rebut an implied assertion would not therefore
arise. We do not agree that an implied assertion can never be sufficiently
relevant. We do think, however, that only bad character which is substantially
relevant should be admissible to contradict an explicit or implied assertion. The
other concerns expressed are relevant to assertions implied by non-verbal means
as well as verbally, and we consider them when we address non-verbal assertions
of good character in paragraphs 13.18 – 13.21 below.
13.15 We suspect that there may be cases in which it will be difficult to determine
whether an assertion of good character has been made, but we do not think these
difficulties are insuperable. (We note, for example, that the Magistrates’
Association thought it perfectly feasible for magistrates to determine that an
assertion had been made, whether implied or express.)
13.16 In the consultation paper we also proposed that where
(1) in the opinion of the court, a defendant’s conduct in the
proceedings is intended to give the impression that he or she
possesses a specific attribute, and
8 There is, of course, a notice requirement. See para 17.3 below.
9 Provisional proposal 26 and para 11.27 of the consultation paper. We noted that the CLRC
proposed to apply the rule to the introduction of evidence “with a view to establishing
directly or by implication that the accused is generally or in a particular respect a person
of good disposition or reputation” (para 136 and cl 7(1)(a) of their draft Bill) and that the
same approach has been adopted in the Evidence Act 1995 (Cth), s 110(2).
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