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

is a sound principled basis for this provision these omissions are unfortunate,
since they may require the exclusion of highly probative evidence. 47
The first limb of section 1(f)(ii): assertions of good character
4.26 If the defendant’s character is such that the court will not treat him or her as a
person of good character then there is a risk of losing the shield under the first
limb of section 1(f)(ii) if the defendant claims to be of good character. This
subsection gives rise to the following problems.
(i) The doctrine that character is indivisible
4.27 A significant problem with the present law is the notion that a person’s character
is indivisible, so that an accused cannot assert one part of his or her character
which happens to be good without risking the exposure of another part which
may be bad. 48 The psychological research does not support this doctrine, 49 it is
inconsistent with the civil law of defamation, 50 two Australian law reform bodies
have recommended the abolition of this rule, 51 and the Evidence Act 1995 (Cth)
has now implemented that recommendation. 52 With some exceptions, mock
juries and magistrates have shown that they recognise that there is no necessary
connection between different character traits. 53 We discuss respondents’
comments on this doctrine at paragraphs 13.22 – 13.28 below.
47 Eg, in Cokar [1960] 2 QB 207 the defendant was charged with breaking and entering with
intent to steal. His defence was that he had entered the house in question in order to have a
rest. The prosecution alleged that C feigned being asleep to avoid conviction but he
claimed not to know that such conduct would not be an offence. In order to rebut this
claim, the prosecution was permitted to ask him about a previous occasion on which he
had been acquitted of the same offence. It was held that these questions, though relevant,
should not have been allowed. Lord Parker CJ held, at p 210, “ …it seems to this Court
quite impossible, under exception (i), to question a man in regard to a charge in respect of
which he was acquitted.”
In Pommell 16 October 1998, CA No: 97/5655/W2 the Court of Appeal commented,
obiter, that
The last sentence [of Lord Parker’s] seems to rule out any questions in crossexamination
in any circumstances in respect of events leading to a charge of
which a man has been acquitted. If that is the effect of the Act it may appear
surprising.
Pommell is also reported at [1999] Crim LR 576 (but this quotation from the judgment
does not appear there).
48 Winfield (1939) 27 Cr App R 139. See para 2.59 above.
49 See paras 6.23 – 6.34 of the consultation paper.
50 Plato Films v Speidel [1961] AC 1090, 1102, per Lord Devlin.
51 ALRC, Evidence (1987) Report No 38, paras 177–178; New South Wales Law Reform
Commission, Working Paper on Evidence of Disposition (1978) p 122, Draft Bill clause
111(5)(e).
52 Section 110(3). The Evidence Act 1995 (New South Wales) was drafted in similar terms.
53 See n 87 below.
59