Evidence - Character

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Evidence - Character
2014-05-10 11:27:23
Evidence Character
Evidence - Character
Evidence - Character
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  1. Character
    • Presumption is that Jury may not hear about bad character unless exceptions could be applied.
    • Character mean: 

    • - Relate to reputation person has in community 
    • - Disposition the person behave in the position way 
    • - Refer to specific incidents in the Person's past - Previous conviction
  2. How character evidence may be used
    • Evidence may be used to
    • (1) prove that person was acting in particular way - prepensity 
    • (2) Issue of credibility (whether person worth to believe him), as criminal much more likely to be a liar. 
    • (3) When the character evidence is an issue of this case
  3. Good Character of Defendant
    • Defendant is allowed to assert his good character.
    • Judge may give to jury good character direction (Vye direction):
    • - credibility (can be given when W gives evidences) - likely to tell the truth
    • - propensity - likelihood to commit crime 
    • Problems: 
    • - when there are 2 D and one will have GC direction and another will not. So 1st will be prejudices 
    • - why person not giving evidence still let him get GC direction 
    • - when GC direction contradict behavior of W in the trial (R v Aziz - in such a case modified direction (which contained references to dishonesty of W in the trial)  should be given, judge has discretion)  
    • The rule is not clear
    • - Teasdale - W pleased guilty to one of offenses, but court held that still he has to be given GC direction
    • - Challenger - D pleaded guilty for posession, Court desided not to give any direction at all. 
    • R v Micaleff - approached wife with knife, while he was not allowed by court to approach his wife. GC direction was given
  4. Tang Siu Man
    • - Vye need not be invariably followed in HK 
    • - direction should be fair and balanced 
    • - discretion to provide an appropriate summing up for jury
  5. Previous convictions some times could be ignored
    If they are minor and irrelevant to the crime tried. Timpson (dangerous driving offense)
  6. Bad Character of Defendant
    Common law rule - general evidence of the bad character of D is not admissible by P for the purpose of showing propensity to commit the offense or attacking D's credibility
  7. Exceptions to general rule re bad character of defendant
    • s 54 (f) (1) (i - iii), i.e.: 
    • - evidence of other crime will proves the considered offense
    • - D saying that he is good character 
    • - D gives evidence against co-D (cut-throat) 
    • (only applies in case D gives evidence)
    • D can put his bad character in the evidence. 
    • Butterwasser - 

    Tending to show - Jones v DPP
  8. Exceptions to general rule re bad character of defendant s. 54 (1)(f)(ii) (first limb)
    • D puts his Good character in the evidence. 
    • Queen v Tsang Sit-Keung - D was trying to mislead the jury by telling them that he did not have previous convictions (but in reality he had 2), so P was allowed to cross-examine him on his Bad character. 
    • Convictions should not be obviously the same as the offense he is being charged.
    • How to put GC in issue:
    • - directly  or
    • - indirectly 
    • married man in employment - Baker
    • religious person - Ferguson  
    • appearance and dress in court - Hamilton
  9. Exceptions to general rule re bad character of defendant s. 54 (1)(f)(ii) (second limb)
    • When D attacks character of D Witness. Put imputations on the character of P witness by the nature or conduct of the defense.
    • Bishop - D charged with burglary. said that he had gay relationships with D which was considered as attack on his character.
    • Rv Jones - statement that the witness in lying is attack on W character.
    • Goodwin - D said that police lied in respect of knife in his car. Held that this just imphatic denial but not attack on W character
    • Rape cases are exceptions - Turner  (as consent is main issue and Defense and D always will say that V consented to sex)
  10. Exceptions to general rule re bad character of defendant s. 54 (1)(f)(iii)
    • What does it mean "to give evidence against co-D" - Murdoch v Taylor - (a) support prosecution case or (b) undermines co-D position. Contradiction to co-D defense is not sufficient.   
    • Varley - D's defense is that he committed offense because he was forced by Co-D. As soon as it undermined defense of co-D, so it was allowed to cross-examine D.
    • Bruce - (contradicts Varley), - 1D - no plan to rob, 2D - was plan to rob, but I did not intended to take part in it (as soon defense of 1D did not undermine defense of 2D, cross examination on bad character was not allowed
  11. Judicial discretion (common law)
    even if judge concludes that D lost his shield - judge may use his discretion (if the evidence is more prejuducial than probative) not to advice jury about bad character of D. 

    BUT the judge does NOT have a discretion to prevent a co-accused cross-examining D as to his character once D has lost shield (s 54 (1) (f)(iii) - because in such a case evidence on bad character of co-D became relevant and probative
  12. Defendant - bad character - presumtions
    • - s 54(e)  abd (f) (i) - go towards guilt (propensity) 
    • - 54 (f) (ii) and (iii) go towards credibility (McLeod
    • - but now 54 (f) (iii) (cut-throat) shift in HK that D bad character evidence could be used towards propensity (reduced to cases where co-D (but not prosecution) adduces evidence (HKSAR v Wong Ying Kit)    

    s 29 (3) Theft ordinance - presumption of fact (only relevant to D's likely knowledge that the goods were stolen). Judge's leave is required.
  13. Defendant - bad character - common law exceptions where (where bad character evidence are admissible)
    • - Defendant put bad character in issue - R v Butterwasser 
    • - Evidence adduced by Defendant in cut throat defense - R v Randall
    • - Evidence has relevant, probative value without resorting to use such evidence to establish propensity or attack credibility - Makin v AG for New South Wales
    • - Similar fact evidence - DPP v P
  14. Makin v AG for New South Wales (common law exceptions - similar fact evidence )
    family killed child and berried him in the backyard. Apart from this child several other bodies of children were found there. This evidence (re other berried children) was admissible because the evidence was probative and relevant to the main issue (whether child died because of natural circumstances or was killed).
  15. Admissibility of Similar fact evidence (common law exception)
    Similar fact evidence will not be admissible to show propensity, it will only be admissible if it is probative and relevant to the main issue.
  16. Evidence of previous similar acts  (common law exceptions - similar fact evidence )
    • Only admissible it they are relevant and probative, i.e. the circumstances of previous behavior was very similar to circumstances of the circumstances of the case.
    • Thompson v R - D was charged with sexual abuse of boys. Evidences found in the apartment were makeup and photos of naked naked boys. In general evidence only of propensity type, but as soon as the case was heard 100 years and the logic was different, the evidence was admitted (as judge considered them as probative value)
    • DPP v P - incest and rape of daughters. Whether evidence that father sexually abused one daughter was admissible to prove that in the same way he abused other children. The answer was NO, as main issue is not similarity, but but probative force. The test: common sense. 
    • Also jury will consider whether it was collusion between children. The jury can rely on evidence only in case they can exclude possibility of collusion or in case the can not then they have to decide what weight will be given to the evidence. 
    • HKSAR v Zabed Ali - D told someone that he will kill a person as a revange. Question is whether this evidence is probativity of propensity? Court held that this is propensity evidence.
  17. Witnesses other than defendants
    • Restrictions aside from the usual rules of relevancy and probative value 
    • - witness may not call evidence of his good character to bolster his credibility 
    • (HKSAR v Poon Ching-Ki
    • Bad character 
    • -sexual history shield 
    • - rule as to finality to collateral issues
  18. Possible structure for problem question on Good character
    • • If issue is of good character consider
    • • a. whether direction should be given
    • • b. the nature of the direction
    • • c. limitations
    • • d. discretion
    • • Review the authorities in detail
  19. Possible structure for problem question on Bad character
    • • Is it in relation to a witness or the Defendant?
    • • Does the common law apply? e.g. Similar fact
    • • If of the Defendant consider the S54 shield
    • • Leave
    • • How has the issue arisen?
    • E.g. assertion of good character, attack on prosecution witnesses, given evidence against a co-defendant
    • • Differing implications e.g. what is the evidence relevant to? Credibility/propensity?
    • • Discretion
    • • Conclusion where possible as to likelihood of admission
    • • Other matters e.g. spent convictions