Ashelle Morgan

Evidence
Bad character

BAD CHARACTER EVIDENCE [ ]

WHEN IS BAD CHARACTER EVIDENCE ADMISSIBLE?

AT COMMON LAW:
1. To rebut D’s assertion that he is of good character (when the prosecution
knows otherwise)
[ R v Butterwasser ]

2. Under the similar fact principle

BY STATUTE
S10 Evidence Act St Vincent
1. Where there is proof that D has other convictions for similar offences
(however the prosecution has to seek the court’s leave to adduce it, the judge
has the discretion)

2. Where D has
a) Asked prosecution witnesses questions seeking to establish his own good
character
b) Where D gives evidence of his own good character
c) Where D or his counsel casts imputations on prosecution witnesses.

The statute only applies to a person who chooses to give evidence, an accused who
does not testify but whose defence counsel attacks the character of the prosecution
would still have his shield

3. Where D gives evidence against a co-accused

N.B s 10 ( f in the UK) refers specifically to a person called as a witness,

consequently if D is not called to give evidence, he will still have his shield.
Ashelle Morgan
Evidence
Bad character

WHAT IS AN IMPUTATION? S 10(2)(c) Evidence Act St Vincent

1. Perjury: [Dunkley

2. But not merely calling the witness a liar [Rouse

3. Suggesting the witness fabricated evidence: R v Jones

4. Suggesting the police fabricated evidence[ R v Clark

5. Suggesting the witness committed the offense: R v Marshall

6. Suggesting that the accomplice witness has committed other crimes:

R v Cohen

7. Claiming the witness is a homosexual: R v Bishop

IF THE IMPUTATION IS PART OF HIS DEFENCE?

It doesn’t matter if D’s defense necessarily involves imputation on a Prosecution

witness he can still be cross examined [Selvey v DPP

However:
Claiming that the Victim consented in a rape case is not an imputation so D would
not lose his shield: [R v Turner ]
Ashelle Morgan
Evidence
Bad character

HOW IS S10(2) INVOKED

1. The judge can do it

2. Procedure for introducing bad character evidence: [ R v Campbell ]
a. the prosecuting counsel should indicate that he intends to claim his right to
cross-examine.
b. the judge should give a caution to the defence
c. after application by the prosecution Judge decides on admissibility of
previous convictions.
d. Judges should direct jury that bad character evidence goes to credibility not
propensity.

3. The judge has discretion as to whether or not XXM will be allowed: Burke

4. A co accused can invoke s 10(2) [Lovett

N.B The overriding consideration is fairness to D [ Britzmann]

WHAT CAN D BE CROSS EXAMINED ON IF HE THROWS AWAY HIS

SHIELD?

1. Previous convictions: D must have been found guilty or must have pleaded
guilty at a trial
[ Stirland v DPP]

N.B Not accusations, not suspicion that he previously committed a crime

2. Not acquittals
[Maxwell v DPP ]

3. Prosecution has to let defence know of D’s previous convictions

Ashelle Morgan
Evidence
Bad character

It goes towards D’s credibility i.e.

WHAT IS THE EVIDENTIAL whether or not the jury believes he did
IMPACT OF BAD CHARACTER the crime. It does not mean he has a
EVIDENCE? disposition to commit the crime
[ Maxwell v DPP ]

WHAT IF D GIVES EVIDENCE He can be xxm’ed about his previous

AGAINST A CO-ACCUSED? convictions

S 10(3) bad character evidence can be [ R v Varley ]

introduced if D gives evidence against a
co-accused

N.B: the co-accused must have been

charged with the same offence or in the
same proceedings

WHAT CONSTITUTES EVIDENCE AGAINST A CO-ACCUSED?

1. Evidence which supports the prosecution’s case and is capable of convicting

D : Bruce
2. Evidence must have been given in XXM or XM

N.B it does not mean a mere denial or undermining of a co-accused, but a

blatant contradiction of the co-accused’s evidence.

N.B If D gives evidence against a co-accused the judge has no discretion , the
prosecution is automatically entitled to XXM D. [Murdoch v Taylor