The law generally forbidding the prosecution from leading bad character evidence against an accused is fairly clear. The “shield” that an accused has against allegations of bad character – unless they adduce evidence of their own good character or attack the character of prosecution witnesses – is found at s 399(5) Crimes Act 1958. When the Evidence Act 2008 commences operation later this year, Part 3.8 will contain equivalent provisions, notably ss 110 and 112). (Criminal Procedure Act 2009 s 369 will repeal much of the evidence-style provisions in the Crimes Act, but specifically leaves s 399. Has anyone seen any provisions to repeal s 399 as suggested by the VLRC?)
It’s trite, but worth highlighting, that s 399(5) — and successors — has no role to play if the accused doesn’t give evidence.
But character can become an issue in other ways.
I’d never thought of the potential consequences of an accused leading evidence of his or her own bad character until I happened across an article by David Ross QC some years ago. The situation isn’t one covered by legislation, but there’s a surprising amount of case law on the subject. It’s a short article and well worth a read.
It’s natural to assume that in leading the evidence of their own bad character the accused opens the door to further questioning about character. Ross outlines his view that the leave of the court is still required before the prosecutor can cross-examine on anything more than the disclosure the accused made. He cites a number of cases when that permission wasn’t sought and the conviction was thrown out on appeal.
It’s also the case if an accused person doesn’t put their own character in issue and does attack the credibility of a prosecution witness, the prosecution may not reveal the accused’s criminal history to the Court.
What is permissible is this. If a prisoner takes advantage of the Criminal Evidence Act, 1898, which made prisoners competent witnesses on their trial in all cases, and goes into the witness box, he may then, if he has attacked the witnesses for the prosecution, be cross-examined with regard to convictions and matters of character, and I have no doubt that, if he is cross-examined, a conviction is put to him and he denies it, the provisions of the Criminal Procedure Act, 1865, s 6, would apply and the conviction could be proved against him. But by attacking the witnesses for the prosecution and suggesting they are unreliable, he is not putting his character in issue. He is putting their character in issue. R v Butterwasser  1 KB 4; (1947) 32 Cr App R 81 at 416
Butterwasser was approved in R v Soma (2003) 212 CLR 299;  HCA 13.
I’m not sure if the modern English position is still the same. Earlier this year the Court of Appeal decided R v Hearne  EWCA Crim 103. 61-year-old Mr Hearne was caught burgling an aviary nesting valuable domestic birds. He claimed he was rescuing illegally held wild birds. The Court of Appeal accepted that amounted to an attack on the character of Mrs Geale, the birds’ owner. Mr Hearne’s previous burglary convictions were properly admitted, under the Criminal Justice Act 2003 (UK) s 101. The case doesn’t make it clear if Hearne’s criminal convictions were admitted as part of the prosecution case, or during cross-examination of the accused.
But it does seem reasonably certain that the first thing to do before embarking on any steps down the road labelled “Character” is to ask the presiding judicial officer to declare that character has been raised. After it commences, Evidence Act 2008 s 104 will require that in most, if not all, cases.