Character and Similar Fact

Character

Character evidence in relation to the accused is generally inadmissible.  It seeks to attack a person’s credibility on the basis of his general reputation for truthfulness.

The courts allow character evidence in some limited cases where its probative value outweighs its prejudicial effects.  Good character may be offered by evidence of good reputation through personal opinion and examples of reliability and honesty.

Character embraces credibility but is a broader concept.  Character is generally a collateral issue with a consequent limitation on the extent to which it can be subject to further challenge.

Its status as a rule of law rather than just a case by case matter of reasoning derives from the apprehension that juries might be unduly swayed by such evidence. Its probative value is assumed strongly to be outweighed by its prejudicial effects.

Witnesses

Parties are generally entitled to attack the character of a witness subject to the trial Judge’s discretion to exclude vexatious and irrelevant questions. Where the witness’s answers in relation to a collateral issue such as his character, the answers are deemed final and additional evidence may not be given to rebut them subject to be above, with very limited exceptions.

Where a witness’s credibility has been attacked, by questions about character on cross-examination or through other evidence, the party calling the witness may re-establish credibility by giving evidence of good character. Evidence of good character may be by examination or given by witnesses.  It may only be done if the witness’s character has been called into question.

Accused

The law generally prohibits the prosecution from introducing evidence of the accused’s bad character and other misconduct on the basis that its probative value is assumed to be outweighed by the prejudicial effect.  The evidence is excluded as a matter of principle, it is not usually logical to imply a person acted in one way on one occasion on the basis of having acted similarly on another occasion.

The accused may give evidence of his own good character.  However, by so doing, he allows the prosecution to adduce evidence of his bad character or prior misconduct.  Where the accused calls witness, another witness to give evidence of the accused’s character.

Where the defence calls a person to testify as to the accused’s good character, the witness must limit his evidence to his general reputation and standing in the community.  He cannot give his opinion on issues of credibility.

The principle that the accused’s previous bad character or prior misconduct is inadmissible is a basic aspect of the right to a fair trial protected by the Constitution and the European Convention on Human Rights.

Exceptions

There are exceptions to the general principles that the accused’s past misconduct is inadmissible.  In this context, misconduct covers previous criminal acts but also anti-social and other acts that might be condemned by society.

There are a number of exceptions to the general principle against the admission of previous misconduct and offences.

• where there is a distinct pattern of crimes with a certain hallmark,
• multiple complaints of sexual abuse against the accused,
• where the prosecution is rebutting a defence of accident. For example, a claim of accident may be undermined where a number of similar events have been proved to occur.

Where the exceptions apply in the circumstances, the previous misconduct is in effect deemed to be specifically probative in relation to the current charge.  It is not enough that it merely establishes a general disposition, for the exceptions to apply.

Puts Character in Issue

However, there are statutory rules which allow evidence to be given of the accused’s bad character where he puts his own character in issue.  This is subject to the overriding principles of constitutional justice and the right of a fair trial in due course of law.  The Judge may exercise her discretion to exclude evidence that might otherwise be admissible under the statutory exception, which may have the effect of prejudicing a fair trial.

The more modern tests refer to “similar fact” evidence.  Where previous misconduct is strikingly similar and its probative value outweighs its prejudicial effect, it may be admitted.  There must be something in the nature of striking similarity between the previous misconduct and that charged.  It must be indicative of a pattern or hallmark.  Mere evidence is disposition does not suffice.

Many of the cases relate to sexual offences committed in accordance with a particular or peculiar pattern, which is unlikely to be attributable to coincidence.  It must be in the nature of a signature type crime or series of crimes.

2010 Act Restatement

The Criminal Procedure Act 2010 amended the Criminal Justice Act 1924 in relation to the accused giving evidence and the circumstances in which evidence of his character or prior disposition may be given. The 2010 Act provides that every person charged with an offence and his or her spouse, shall be a competent witness for the defence at any stage whether the person so charged is charged solely or jointly with any person.

A person charged being a witness in pursuance of the Act may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence concerned.  A person charged and called  as a witness under the act shall not be asked and shall not be required to answer any question tending to show he has committed or been convicted or been charged with any offence other than that to which he is charged or is of bad character.

However, proof that he has committed or has been convicted of other offences is admissible to show that he is guilty of the offence with which he is charged. It is admissible where

• he has personally or by his advocate asked questions of any witness with a view to establishing his own good character or has given evidence of his good character or
• the nature and conduct of the defence are such to involve imputations on the character of persons in respect of whom the offence was alleged to have been committed or the witnesses for the prosecution;
• or he has even evidence against any other person charged with the same offence or
• the person has previously or by his advocate asked questions of any witness for the purpose of making or the conduct of the defence is such as to involve imputations on the character of a person in respect of whom the offence was alleged to have been committed and who is deceased or is incapacitated so as to be unable to give evidence.

Matters other than those above in relation to character or other convictions may be inadmissible as being irrelevant. That somebody did something on another occasion will not necessarily be probative that they did the same thing on a later occasion.

Investigations on previous occasions falling short of being charged will generally be irrelevant. The general principle is that a person should not be tried on the basis of his character.

Similar Fact Evidence

Similar fact evidence may be admissible for specific purposes only.  It may be admitted in certain types of cases where it goes beyond showing evidence of disposition. It may establish that the accused committed each offence because of the particular features common to each.

It may establish in some contexts, where the accused is proved to have committed one offence that another similar offence was committed by him. Similar fact evidence may be admissible, where in the circumstances there is an inherent improbability of several persons making up exactly the same or similar stories

The evidence must not be offered for the purpose of showing a general propensity to commit crimes of the types concerned.  It must be sufficiently relevant to the case concerned

Similar fact evidence may be admissible where it would rebut a defence or accident, innocent explanation or denial. In context, the probative value of evidence on the earlier similar occasion may be such that it wholly undermines the credibility of such defence. For example, the credibility of the complainant might be plausible if the evidence was restricted to a single incident but might be otherwise if it is proved that there have been several such incidents.

Background Evidence

Claims of prolonged child sex may raise issues and similar facts and potential prejudice.  There may have been repeated and consistent acts of abuse, which may be indistinguishable in the mind of the victim.  They might recall that the same abuse has happened repeatedly without being able to identify specific occasions.

Background evidence is evidence that is relevant and necessary to a fact to be determined in the case.  It may be admitted to render comprehensible the relationship between the complainant and the accused.  It may relate to issues such as consent or absence of complaint over years.

Evidence that is closely and inextricably linked to the offences and the relationship and forms part of the background and body of evidence necessary to render the position complete and coherent, may be allowed by the trial Judge as a matter of discretion.  It may be admissible where it is part of the necessary background relationship and context and are an integral part of the facts in issue.