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Character Evidence

Written by Laura Turner

Laura Turner holds a Bachelor of Laws and Bachelor of Arts as well as a Graduate Diploma of Legal Practice. She is admitted to practice in the Supreme Court of Queensland. Laura began her legal experience through volunteering with the Student Legal Service offering free advice to students, and through a clerkship in the conveyancing team of a law firm in Hobart. She also volunteered at a Prisoner Legal Service, assisting inmates to obtain parole. Laura has a strong focus on family law, criminal and traffic law, although looks to broaden her knowledge into migration and civil law.

Character evidence is evidence that can demonstrate that the defendant is of good or bad character. Depending on the matter before the court, character evidence may be given in written form or through the oral testimony of a witness.

There are rules that apply to character evidence and whether such evidence is admissible or not.

Character evidence at sentencing

If a defendant pleads guilty to an offence, or after they are found guilty of an offence, they may wish to provide evidence to the court as to their character. This is usually done through a character reference.

A character referee must satisfy the following requirements in order to be admissible:

  1. It must be addressed to the court. The reference should begin ‘Your Honour’, ‘To the Presiding Magistrate’ or words to that effect;
  2. The referee must be aware of the charges the defendant faces and must make this clear in their reference;
  3. The reference must be signed, and personal particulars of the referee must be provided, in case the court wishes to contact the referee to determine the reference authenticity;
  4. The reference should not talk about the elements of the offence, the law, or the guilt of the defendant; and
  5. The reference should not provide an alternate story to the facts the defendant has agreed to plead guilty to.

The court can then consider the evidence in sentencing a defendant.

Trial

If a defendant pleads not guilty and proceeds to trial, they may wish to adduce evidence as to their good character. This occurs most often in the District and Supreme Courts, before a jury. Character evidence is uncommonly used in a Magistrates Court Summary hearing.

When character evidence is led at a trial, the referee becomes a witness and must give oral evidence. The defendant’s legal representative asks questions of the witness as to the defendant’s good character. The Prosecution can then cross-examine the witness on their evidence, to test the strength of the character evidence. The purpose of this evidence is for the jury to consider:

  1. Whether the person charged would commit an offence as alleged by the prosecution; and
  2. The credibility of the defendant’s evidence (if they chose to give evidence).

Who can provide character evidence?

Character evidence can come from any person. However, it is advisable for the person called to give evidence to have known the defendant for at least two years. Some character witnesses are better than others. Character evidence from employers, long-time friends or neighbours is generally better evidence than that of family members. A mother giving character evidence for their child may be given very little weight, compared to the defendant’s employer, who is likely to be more highly regarded and less biased.

Bad character evidence

Evidence of bad character is generally not admissible. The prosecution cannot usually use bad character evidence to show that the defendant has behaved in a similar way previously.

The situation where bad character evidence is most commonly admitted is where the defence has led good character evidence and the prosecution then leads evidence in rebuttal to try and demonstrate that the defendant is not of good character.

If rebuttal evidence is led by the prosecution, the judge will likely give the jury a warning that they cannot use the bad character evidence to strengthen the prosecution case. This means just because they think the defendant is of bad character, they cannot draw the conclusion that it is likely that the defendant committed the offence.

Although it can be a difficult task, if the jury is not satisfied of the good character of the defendant, it must disregard all character considerations when making a determination about guilt. That is, they must be satisfied, beyond a reasonable doubt, that the defendant committed the specific offence before the court.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.

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