The Law Commission

 


PART VII OVERVIEW OF OUR RECOMMENDATIONS

7.1      The overall aim is that all the rules on admissibility of evidence of a person's bad character should be set out in one statute. This entails replacing the existing mélange of rules deriving from statute and common law with a single comprehensive set of rules.^[1]

7.2      At the heart of our proposals are five fundamental considerations, namely:

(1) No person who is involved in a criminal trial should be subject to a gratuitous and irrelevant public attack on their character.

(2) To adduce evidence of a person's bad character in a public forum is, prima facie, such an invasion of their privacy and so prejudicial to them that it should not be adduced where any relevance it may have to the issues the fact-finders have to decide is of no real significance or is only marginal.

(3) The fact-finders in any criminal trial must have all relevant material placed before them so as to enable them to perform their function, consistent with doing justice to the parties whose accounts they have to judge.

(4) Wherever it is appropriate for aspects of a person's character to be adduced in evidence it should only be permitted to the extent that it is relevant for the fact-finders to be aware of it for the performance of their task.

(5) In the case of evidence of the bad character of a defendant, the probative value must be sufficient to outweigh the prejudicial effect of the evidence (except where the evidence is being adduced by one defendant about another).

7.3      There are three organising principles of the new structure for the rules on evidence of bad character.

INSIDE OR OUTSIDE THE CENTRAL SET OF FACTS

7.4      First, a distinction is drawn between (i) evidence about the events for which the accused is being prosecuted, the investigation and the prosecution for offences arising out of those events ("the central set of facts"), and (ii) any evidence of bad character which goes outside that central set of facts. This distinction is central to our scheme.

7.5      In a criminal trial it is inevitable that assertions are to be made about the defendant's "bad character" in the sense that his or her conduct on, and related to, the occasion in question is said by the prosecution to be criminal. Whenever the trial is contested, it is highly likely that the defendant in putting forward the defence will need to make imputations about the conduct of others. They may be prosecution witnesses or they may not be witnesses at all. The imputations may be as to their conduct on, or related to, the occasion in question or in relation to the conduct of the investigation or prosecution. In our view, imputations of bad character in relation to the events which are the subject of the trial or their investigation or prosecution, whether made by the prosecution or the defendant, must be admitted into evidence without fear of automatic penalty. They go to the core of the case which the fact-finders have to determine.

7.6      It has been a defect in our law that the defendant, in putting a case which makes imputations against the character of another, has had to run the risk that his or her entire previous character will be adduced in evidence on the issue of his or her credibility. This has led to a distortion of the issues and the evidence as presented to fact-finders at trial, by tempting defendants either to avoid putting their full case or to refrain from giving evidence to support it. The efforts of the courts to ameliorate this defect, either by construing the 1898 Act accordingly,^[2] or by exercising discretion, have served to draw attention to the problem but have, perforce, addressed it inconsistently and unpredictably. We propose to introduce fairness, consistency and predictability, by reforming the law so that the defence, no less than the prosecution, should be able to make allegations of bad character in respect of the events the subject of the trial, or related thereto, and their investigation or prosecution, without running the risk that evidence of the defendant's bad character on other occasions will be adduced solely on the issue of credibility.

7.7      By way of contrast, where any party to the trial wishes, without the consent of another party, to adduce evidence of another person's bad character which goes outside the central set of facts, they must obtain the leave of the court. In determining whether to give leave, the court must first apply a common basic rule upon which all else will be built, namely: that a person's bad character may only be introduced into evidence if, and to the extent that, it is of substantial probative or explanatory value in relation to the issues in the case. The single standard of substantial probative or explanatory value is the one which should be applied whether it is the prosecution, or the defendant, or a co-defendant, who wishes to introduce the evidence and whether it is a defendant's character or that of a witness or another person who is involved in the events in issue which it is sought to put before the fact-finders.^[3] We refer to it as "the enhanced relevance test".

"Substantial" probative value

7.8      Concern was expressed about the vagueness of the word "substantial", which we used in our proposal in the consultation paper, and the possible difficulties for courts in determining what counts as "substantial" in any individual case. However, very few respondents were troubled by the words "substantial" and "significant". Our view is that the use of such open-textured words indicates that there are issues where the court does not have an untrammelled discretion, but must nevertheless exercise its own judgment. This is the kind of decision-making with which courts are familiar, and as one respondent wrote, "Our law has managed for some time to cope with concepts such as significance and substantiality eg 'substantial cause of death', 'substantial risk that the course of justice will be seriously impeded'." Mr Justice Tim Smith, the Commissioner in Charge of the ALRC at the time of its review of the law of evidence, conducted some research amongst his fellow judges on the extent to which the addition of "substantial" as a qualifier was helpful to their decision-making. He concluded that greater consistency resulted. He commented, "True the expressions ['substantial' and 'significant'] are vague but that will not detract from their effectiveness."

7.9      The terms "substantial" and "significant" appear in the Australian Evidence Act 1995 (Cth) in the context of the rules on the admissibility of misconduct evidence. The Act sets a raised threshold for character evidence adduced to prove a person's tendency to act in a particular way or to have a particular state of mind,^[4] or to disprove innocent coincidence,^[5] or on the issue of the credibility^[6] of a person as a witness. The raised threshold applies whether the evidence concerns the character of the defendant or another. Where the issue is "tendency" or coincidence the evidence must have "significant probative value"^[7] to be even prima facie admissible. Evidence going to the credibility of any witness must be of "substantial probative value".^[8] Additional protections apply where the person concerned is on trial.^[9]

7.10      The statute does not spell out the ways in which such evidence on the issues of tendency or coincidence may have "significant" probative value, but it is clear from the evolution of the section that the ALRC had in mind that the past conduct and that to which it was said to be relevant must be "substantially and relevantly similar".^[10] This was the implication they drew from the psychological studies.^[11] They concluded, "To maximise the probative value and minimise the disadvantages of such evidence, the emphasis of the law should be on receiving evidence of past conduct of the relevant person occurring in similar circumstances." ^[12]

7.11      Where the issue is credibility only, the Evidence Act 1995 (Cth) does require the court to have regard to specific matters in judging whether the evidence has substantial probative value. They are (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when under an obligation to tell the truth; and (b) the period that has elapsed since the acts or events to which the evidence relates.^[13]

7.12      In relation to section 103 of the Evidence Act 1995 (Cth) and the definition of "substantial probative value", it has been observed that

evidence adduced in cross-examination must … have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. … The addition of the word "substantial" nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one. Counsel must, however, be given some freedom in cross-examination – whether it relates to a fact in issue or to credit. They are not obliged to come directly to the point; they are entitled to start a little distance from the point and to work up to it.^[14]

It is suggested^[15] that where evidence would have a real, persuasive, bearing on the reliability of a witness, or the reliability of particular testimony of the witness, the test should be regarded as being satisfied,^[16] at least where the testimony of the witness could reasonably be regarded as important to the outcome of the proceedings.^[17]

7.13      The New Zealand Law Commission has recommended a restriction on evidence going to a person's truthfulness: evidence is only admissible if it is "substantially helpful" in assessing that person's truthfulness.

The Commission says in its commentary: The Commission's desire is to propose a test of significant or heightened relevance so as to prohibit truthfulness evidence that is of limited value.^[18] The substantial helpfulness test is aimed at admitting only evidence that will offer real assistance to the fact-finder. … Some commentators did not support introducing the substantial helpfulness test, arguing that such a test would cause unnecessary uncertainty. The Commission considered other tests (such as "necessity" or "direct relevance") but concluded, with the support of other commentators, that those alternatives would not provide any greater certainty.^[19]

7.14      Little guidance is available in the case law on either side of the Atlantic on the meaning of "substantial relevance". There is little authority in this jurisdiction on the meaning of "substantial relevance" that is pertinent to bad character evidence. The closest is the advice given to judges to help them guide juries in the context of mental responsibility.^[20] Juries are told to interpret the word "substantial" in the context of mental impairment in a broad common sense way, or to take it as meaning more than trivial but less than total.^[21] In the United States, in the civil law, "substantial evidence" has been interpreted to mean such evidence that a reasonable mind might accept as adequate to support a conclusion, or evidence which possesses something of substance and relevant consequence.

7.15      The concept of "substantial effect" is utilised in the employment law area of disability discrimination. A "substantial effect" is one that is significant or greater than de minimis, in other words, more than minor or trivial, but it does not have to be large or considerable.^[22] Factors for assessing what is substantial are set out in "Guidance" which is issued by the Secretary of State under section 3 of the Disability Discrimination Act 1995. The guidance gives illustrations and examples but is not a checklist.^[23]

7.16      Professor McEwan wrote,

There must be doubts as to the likely efficacy of [a provision limiting imputations to those which substantially undermine a witness's credibility] in the light of the disastrous failure of section 2 of the Sexual Offences (Amendment) Act 1976.^[24] We clearly lack a common conception of relevance.^[25]

There is some truth in this. We believe, however, that a requirement that all bad character evidence has to be of substantial probative value in order to be admissible can be made more effective in practice by spelling out the factors which a court should take into account when deciding whether evidence meets the raised standard.

7.17      Thus we think that the concern that "substantial" is too vague is overstated. We think there is merit in the flexibility of the term. We said in the consultation paper that "we do not think it appropriate to prescribe in a statute which kinds of conviction are and are not probative",^[26] and most of those who responded on the point agreed. In our view, the gist of "substantial" in this context is "more than minor or trivial" and that is the sense in which we use it.

Taking factors into account

7.18      The court, when deciding on admissibility of such character evidence, should be assisted in making its decision on the extent of its probative value by being required to have regard to all relevant matters, including such of a number of factors set out in the statute as are relevant. These factors include: (i) the kind of events or other things the evidence is about; (ii) how many of these there are; (iii) when they are alleged to have happened or (in the case of a state of affairs) to have existed; (iv) where the evidence is evidence of misconduct, and it is suggested that the evidence has probative value by reason of similarity between that misconduct and the alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct; (v) where the evidence is evidence of a person's misconduct, and it is suggested that that person is also responsible for the misconduct alleged, and the identity of the person responsible for the misconduct alleged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.

7.19      When deciding on admissibility of bad character evidence the court should be assisted in making its decision, both in relation to the assessment of probative value and of the risk of prejudice, by being required to have regard to all relevant matters, including such of a number of factors set out in the statute as are relevant. We recommend that the legislation should set out the factors to which a court is to have regard when assessing the probative value of bad character evidence or where the interests of justice lie.^[27]

THE PURPOSE OF THE EVIDENCE

7.20      The second organising principle is the purpose of the evidence. The rules on the admissibility of evidence of a defendant's bad character which goes outside the central set of facts are to be organised according to the purpose for which it is admitted, namely whether it is explanatory, incriminatory, relates to credibility, or is corrective. We consider each of these purposes in detail in Parts X–XIII respectively.

WHO IS ADDUCING THE EVIDENCE?

7.21      The third organising principle concerns which party is seeking to adduce the evidence: the prosecution, or the defendant, or a co-defendant.

7.22      If it is the defendant who is seeking to adduce evidence of another person's bad character which goes outside the central set of facts, the only test which applies is the enhanced relevance test: it must be of substantial probative value to a matter in issue, and/or of substantial explanatory value for understanding the case as a whole. This is the case even where the other person is themselves a defendant in the proceedings.

7.23      By contrast, where the prosecution is seeking to adduce evidence of a defendant's bad character which goes outside the central set of facts, there is an "interests of justice" test in addition to the enhanced relevance test. The major component of the interests of justice test is a comparison of the probative force of the bad character evidence and the potentially prejudicial effect of the evidence. "Prejudice" is defined at clause 17(2). It has two aspects for our purposes: "reasoning prejudice", namely where there is a risk that the fact-finders would be so impressed by the fact of the previous misconduct that they would attach undue weight to it; and "moral prejudice", namely where the nature of the misconduct so poisons the mind against the defendant that the fact-finders would be prepared to convict without being satisfied that the defendant was in fact guilty. The important feature to note is that the burden is on the prosecution to establish that the interests of justice require the bad character evidence to be admitted notwithstanding its prejudicial effect.

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Note 1   Clause 20 of the draft Bill abolishes the existing common law on admissibility of bad character evidence, and repeals s 1(e) and (f)(i) – (iii) of the 1898 Act which govern the admissibility of bad character evidence in cross-examination of the defendant.    [Back]

Note 2   Judicial effort in construction has largely been focused on what constitutes an “imputation” that will lose the defendant his or her shield. The current approach to the relevant section of the 1898 Act is described at paras 2.64 – 2.67 above.    [Back]

Note 3   Note that where the prosecution seeks to adduce evidence of the bad character of a defendant, the value of the evidence is not the only test. See para 7.23 below.    [Back]

Note 4   Section 97. The Evidence Act 1995 (New South Wales) is drafted in the same terms.    [Back]

Note 5   Section 98.    [Back]

Note 6   Sections 102 and 103.    [Back]

Note 7   Sections 97 and 98.    [Back]

Note 8   Section 103.    [Back]

Note 9   Sections 101(2) and 104(2), (4) and (6).    [Back]

Note 10   This is the phrase used in the ALRC Interim Report No 26 (vol I) at para 809, and in cl 87 of the Bill appended to the final Report.    [Back]

Note 11   These are the studies referred to at para 6.11 above and discussed more fully in the consultation paper, at paras 6.10 – 6.21.    [Back]

Note 12   ALRC Interim Report 26 (vol I), para 794 (footnote omitted).    [Back]

Note 13   Section 103(2).    [Back]

Note 14   RPS, unreported, NSW CCA, 13 August 1997, per Hunt CJ.    [Back]

Note 15   Watson, Blackmore, Hosking, Criminal Law (NSW) vol I, para 6.10860.    [Back]

Note 16   Fowler, unreported, NSW Sup Ct, 15 May 1997.    [Back]

Note 17   McGoldrick, unreported, NSW CCA, 28 April 1998.    [Back]

Note 18   The concept of “heightened” relevance can also be found in s 13 of the Evidence Act 1908. As such it is not an unfamiliar concept (footnote in original).    [Back]

Note 19   NZLC, Evidence: Reform of the Law (1999) Report 55(1), paras 157–158.    [Back]

Note 20   Egan [1992] 4 All ER 470.    [Back]

Note 21   Lloyd [1967] 1 QB 175.    [Back]

Note 22   See A Samuels, “Disability Defined” [2000] 144 SJ 424.    [Back]

Note 23   Vicary v British Telecommunications Plc [1999] IRLR 680, EAT.    [Back]

Note 24   Z Adler, Rape on Trial (1987); S Lees, Carnal Knowledge: Rape on Trial (1995).    [Back]

Note 25   Jenny McEwan, “Law Commission Dodges the Nettles in Consultation Paper No. 141” [1997] Crim LR 93, 102.    [Back]

Note 26   Para 6.63.    [Back]

Note 27   See cl 5(2), 9(7) and 10(8) of the draft Bill.    [Back]