Character Evidence (Vic)

Character evidence is evidence that relates to whether an accused is of good or bad character. Whether or not character evidence is admissible in a proceeding depends on whether the evidence is of good or bad character. In Victoria's criminal justice system, character evidence plays a crucial role in determining both the credibility of witnesses and the likelihood of an accused person's guilt or innocence.

The rules of character evidence are set out in the Uniform Evidence Act, which codifies and in some respects alters the principles of common law and the provisions of the Crimes Act 1958. These legislative frameworks work together to ensure that character evidence is used fairly and appropriately in Victorian criminal proceedings.

Good Character Evidence

Good character evidence includes evidence of the accused's general reputation and evidence of the accused's favourable disposition. Evidence of good character may be relevant to give weight to the accused's evidence (ie make it more likely the accused is telling the truth) or in order to make it less likely the accused is guilty of the offence.

Types of Good Character Evidence

Good character evidence can take various forms in Victorian criminal proceedings. This includes testimony from family members, friends, employers, or community leaders who can speak to the accused's reputation for honesty, integrity, or specific traits relevant to the charges. Character witnesses may provide evidence about the accused's consistent behaviour patterns, community involvement, charitable work, or professional conduct that demonstrates positive character traits.

Relevance to Criminal Proceedings

The relevance of good character evidence extends beyond simple character endorsement. Courts recognise that evidence of good character can serve two primary purposes: enhancing the credibility of an accused who gives evidence in their own defence, and supporting the argument that a person of good character is less likely to have committed the alleged offence. This dual purpose makes good character evidence a valuable defence strategy in appropriate cases.

Admissibility of Good Character Evidence

The defence may adduce evidence of the accused's good character (Section 110, Uniform Evidence Act). The evidence may be used to impute that the accused is a good person in general or in a particular respect.

Good character evidence can be opinion evidence from a witness about the character of the accused or evidence about the accused's reputation in the community. The court has discretion to determine whether such evidence is sufficiently relevant and probative to warrant admission, particularly considering the potential for the evidence to consume undue court time or distract from the central issues in the case.

The weight that the court can give to character evidence will depend on a number of factors, including the strength of the other evidence supporting the charge, the nature of the offence charged and the relationship between the character established and the type of offence charged.

Strategic Considerations for Defence

Defence lawyers must carefully consider when to introduce good character evidence, as doing so may open the door for the prosecution to challenge that character with contradictory evidence. The decision requires weighing the potential benefits against the risks of exposing the accused to cross-examination about their character or past conduct.

Bad Character Evidence

Evidence of the accused's bad character is generally inadmissible as it is unfairly prejudicial. The rationale behind this exclusion is that bad character evidence may lead juries to convict based on moral disapproval rather than proof of the specific charges, creating a substantial risk of unfair prejudice.

There are three circumstances in which bad character can be admissible:

• Where evidence has been adduced to establish the accused's good character, the prosecution or a co-accused can adduce evidence to contradict this;
• Where two or more people are charged as co-accused, expert evidence may be adduced by one party as to the character of a co-accused (Section 111, Uniform Evidence Act).
• Where evidence of bad character is admissible under Part 3.7 of the Evidence Act, as evidence pertaining to the credibility of a witness.

If the prosecution wishes to cross-examine an accused about matters arising out of character evidence, it requires the leave of the court (Section 112, Uniform Evidence Act).

Judicial Discretion and Bad Character

Victorian courts exercise careful discretion when considering the admission of bad character evidence. Under Section 137 of the Evidence Act, courts must exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice to the accused. This protection ensures that the fundamental principle of fair trial is maintained.

Use of Bad Character Evidence

Bad character evidence can only be used to contradict good character evidence. It cannot be used to to establish guilt. The court can limit the use of bad character evidence if it risks being unfairly prejudicial for a party or if it is likely to be misleading or confusing for the jury.

Bad character evidence cannot be used to impute that the accused has a propensity to behave in a way that makes it likely they committed the offence. In this way, bad character evidence cannot be used in the same way as good character evidence, which can be used for a sort of propensity reasoning in establishing that the accused would have been unlikely to have committed the offence.

Evidence is not inadmissible simply because it shows the bad character of the accused, if it is adduced for another purpose. Such evidence may be admitted, but the jury must be warned that it should not be used for an irrelevant or prejudicial purpose.

Character Evidence in Specific Offence Types

The relevance and weight of character evidence can vary significantly depending on the type of criminal offence charged. In fraud cases, evidence of honesty and integrity in business dealings may be highly relevant, while in assault charges, evidence of peaceful disposition or reputation for non-violence carries particular weight.

Sexual Offences and Character Evidence

Special considerations apply to character evidence in sexual offence cases. The Crimes Act 1958 (Vic) contains specific provisions governing the use of evidence about the complainant's sexual history and character. These provisions reflect Parliament's recognition of the particular sensitivities and potential for prejudice in such cases.

White Collar Crime and Professional Reputation

In white collar criminal proceedings, character evidence often focuses on professional reputation, business ethics, and community standing. Such evidence may include testimony from professional colleagues, industry peers, and clients about the accused's integrity and ethical conduct in business relationships.

Procedural Requirements and Judicial Directions

Victorian courts have developed specific procedural requirements for the introduction of character evidence. Defence counsel must provide adequate notice when intending to call character witnesses, allowing the prosecution time to investigate and potentially challenge the evidence presented.

Jury Directions on Character Evidence

When character evidence is admitted, judges must provide clear directions to juries about how they may use such evidence. The Victorian Court of Appeal has emphasised the importance of explaining the limited purposes for which character evidence may be considered and warning against improper reasoning based on character alone.

Voir Dire Proceedings

Complex character evidence issues may require determination through voir dire proceedings, where the admissibility of evidence is determined in the absence of the jury. This ensures that potentially prejudicial material is