Bad Character

2003 Act
1. Gateways
  1. Parasitic use
    1. Possible error in Lewis [use of (f) by co-accused]
    2. Also, Bovell and Dowds [use of (e) by co-accused] which might also be questionable
  2. 101(1)(a) All parties agree
    1. could be notice and no obj, or @ trial
  3. 101(1)(b) Adduced by defendant
  4. 101(1)(d) important matter in issue betw p + d
    1. "important" not significant
    2. Misconduct vs convictions
      1. Weir & Later Cases
      2. Suggests light "mere relevance" test for 103(1)
      3. But a stronger exclusionary discretion per 101(3)
      4. But note Somonathan
      5. saying that probative force consdierable b/c if accepted lent powerful force to appellant's complaint
      6. Similarities
      7. Strike up reln at low ebb in their lives
      8. Belittled former/intended partnerse
      9. Admired clothes and suggested colours
      10. Acquired phone numbers & addresses and called them late at night
      11. Dreamt of them; married to them in past life; god sent them to him
      12. Gave them gifts
      13. Sought to visit them at home alone
      14. Important that he was able to challenge them
    3. matter in issue
      1. Thompson: no fancy defences
      2. s 103 deems matter in issue
      3. note 103 does not deem them IMPORTANT matters in issue
      4. propensity to commit offences of type charged
      5. description or category
      6. Weir: but description or category not necessary
      7. Non-criminal conduct may satisfy (McKenzie)
      8. propensity to be untruthful (except where not suggested D's case untruthful)
      9. Hanson
      10. untruthfulness <> dishonesty
      11. prior convictions only relevant where for crimes of dishonesty; or pleaded NG and found G
      12. Campbell
      13. says that only likely to be an important matter in issue where telling lies element of current offence
      14. supported by Walker and Jarvis (difficult to fit with Highton)
    4. HANSON
      1. Test
      2. NOT supposed to be a comprehensive treatise
      3. (i) Does history est. propensity to commit offences of kind charged?
      4. Not necessary nor sufficient that of same category or description
      5. (ii) Does propensity make commission of this offence more likely?
      6. greater number of convictions more likely
      7. could also be peculiar features / striking similarity / unusual behaviour
      8. e.g. child sex assualt; fire-setting
      9. HANSON itself
      10. Allegation he'd taken money from a room in a pub that only he'd had access to.
      11. Theft from dwelling & Burglary OK
      12. Robbery NOT OK
      13. Handling and aggravated vehicle taking NOT OK
      14. GILMORE
      15. found with property taken from a locked shed. Said found next to a bin.
      16. Previous convictions for shoplifting OK
      17. Suggests wider than CL
      18. AWARITEFE
      19. GBH with Intent, defence of self-defence
      20. 10 year old convictions for AOBH; assaulting police in execution OK
      21. "propensity to use violence on the person and be aggressive"
      22. Complainant pissed on side of his house, refused to clean up, then struck
      23. TULLY & WOOD
      24. Still role for similarity albeit not striking (Robbery of Taxi Driver)
      25. Robbery Convictions OK
      26. Burglary, theft, taking vehicle w/o authority NOT OK
      27. (iii) Is it unjust to rely on convictions / would proceedings be unfair if admitted (103(3))
      28. Suggests that everything is discretionary (but can't be right)
    5. Successor to SFE but wider than Makin and DPP v P
    6. Unproved Criminality
      1. Innocent contamination/collusion
      2. LAMB
      3. Need directions for both
      4. H
      5. Assume facts are true
      6. Direct jury only to use if satsified free from contamination
      7. Ananthanarayanam
      8. e.g. where innocent contamination
      9. Allegation made and social services rang around
      10. s 109(1)
      11. Confirms and extends H
      12. Applies to all cases, not just avoid "double ordeal" or unprosecutability
      13. Doesn't extend to non-truth cogency claims (e.g. Sokialiu; Mustafa)
      14. Seems to apply even for acquittals (remarkable)
    7. Acquittals
      1. Z
      2. Permissible to directly challenge acquittal
      3. Acquitted thrice on rape charges; defence of consent
      4. Edwards
      5. Extends Z to stays for abuse of process
      6. Nguyen
      7. Extends Z to decisions to not prosecute
      8. Can these be relevant to CREDIBILITY?
      9. Remember Campbell re. notion of lying
      10. Maxwell (1935)
      11. Says "mere fact of charge cannot be regarded as bad character or other than as bad fortune"
      12. O'Dowd [2009]
      13. Efficient and Expeditious conduct critical to criminal procedure rules
      14. Key part of "interest of justice"
      15. Subtopic 3
    8. Important judicial warning
      1. Hanson; Campbell; Edwards; Spencer; Kelly
      2. Don't place undue reliance
      3. Not guilty b/c prior convictions
      4. Decide for self whether propensity made out 101(1)(d) and assess in light of all the ev.
      5. Cambpell/Spencer/Kelly emphasise tailoring
  5. 101(1)(e) substantial probative value re d + co-d
    1. Must have "substantial" probative value
      1. Edwards and Rowlands (McLean)
      2. Means "real" or "not minute"
      3. Cut-throat defence
      4. Wounding
      5. Call McLean's convictions for violence to show more likely
      6. Lawson
      7. Drowning person of limited intelligence
      8. Lawson claimed King told him he intended to do it
      9. OK to allow ev of Lawson's conviction for wounding
      10. Hard to see how this is "substantial"
    2. S 104(1) restriction
      1. "Nature and conduct" probably extends to just x-x
      2. "Undermines" co-defendants
      3. Might not include supporting P's case alone
      4. C.f. Murdoch v Taylor
      5. support P in material respect or undermined defence
      6. Bruce [1965]
      7. D1 says a plan never carried out
      8. D2 says no plan
      9. D2 does not undermine D1, because gives him a "better out" (note not same in v-v)
      10. Crawford [1997]
      11. D1 says D2 and X robbed the victim; she was a shocked bystander
      12. D2 says not at scene; just heard victim scream
      13. D2 DOES undermine D1
      14. Jeopardises her credibilty
      15. Made it more likley D1, b/c makes her one of two rather than three potential robbers
      16. (But there could have just been one robber)
    3. Propensity to be untruthful
      1. Remember Campbell & Hanson
      2. However, seems words here have different meaning (!)
      3. Lawson
      4. OK if showed acc to be unscrupulous or otherwise unreliable
      5. Can include something from large scale drug or people trafficking to housebraking, criminal violence
      6. Endorsed in Rosato
      7. Reid
      8. Suggests, though, should be given Hanson meaning
    4. Directions
      1. Lawson
      2. Lawson suggests that should direct them not to use to boost Prosecution case
      3. But this might fall within the Robinson exception where doesn't perlex jurors
      4. Recica and Recica
      5. Takes a Highton approach (without mentioning Highton)
      6. Should it be permissible if legally relevant?
      7. D1 said he was dupe of D2 in immigration offences
      8. BUT D1 had falsified his own application
      9. Suggests (a) not a dupe
      10. (b) a liar
      11. OK to use for both purposes.
    5. No discretion per 78(1) or @ CL
      1. Musone
      2. Supports this
  6. 101(1)(f) correct false impression
    1. Not restricted to evidence of good character
      1. e.g. saying a bouncer = false impression
      2. BUT not so bad b/c 105(6) can only go so far as correcting false imp
    2. Are you responsible for "losing shield"?
      1. s 105(2)(a) - (e)
      2. s 105(3) allows you to withdraw
      3. BUT, RENDA:
      4. Forced concession in XX doesn't count
      5. BAKER
      6. Can be UNFAIR to use gateway where cannot withdraw
      7. Here denied "sexual interest in children" to police
      8. Ev. was showing allegedly showing niece a book of sexual positions
      9. Seems to be a prej/prob discretion (s 78)
      10. LEWIS
      11. Two co-accused charged with drugs conspiracy
      12. Conflicting accounts - false impression by one (that his version was true)
      13. Co-accused could xx under s 105 that awaiting trial on another conspiracy charge
      14. NB: 101(1)(f) IS NOT AVAIL TO CO-ACCUSED ANYWAY
      15. No "with a view to" est your good character
      16. So if you need it to est. your defence, doesn't help (c.f. Malindi @ CL)
      17. s 105(2)(a) does not matter if in chief or xx
      18. c.f. Beecham @ CL
      19. Repeatedly pressed in xx that he bought car b/c wanted to drive fast
      20. Said not interested in driving fast
      21. Introduced ev. of prior convictions for dang. driving
      22. SHOULD NOT USE SHIELD: not clear if still exists per 2003 Act
    3. Assertion Elements
      1. Implied Assertions
      2. Bovell and Dowds [2003]
      3. OK to bring in previous burglaries when said co-accused had burgled another house prev. day
      4. Not an express statement, but perhaps implied / inferred
      5. Note could have come in under attack on another
      6. Lee [1976]
      7. Said his flatmates had convictions
      8. No implied assertion of own good character
      9. Thompson [1966]
      10. Referred to some but not all convictions
      11. To explain why ran away (outstanding fines)
      12. This is partly a "with a view to" Milinda case
      13. Conduct
      14. Not ev. at CL
      15. Robinson (2001)
      16. Clutched bible, waved around
      17. Not ev. of good character
      18. Dog collar/police uniform (Law Com)
      19. Thought bible brandishing would not be making assertion about character
      20. Misleading?
      21. Not just false, but misleading
      22. Wood (1939)
      23. Said his character before offences good
      24. Literally true but totally misleading
      25. Allowed xx as presented a false view of the case
      26. Now probably an e.g. of what would be misleading
      27. Putting in part of character
      28. Winfield (1939)
      29. Can't put only one part of character in
      30. Indecent assault
      31. His witness said attittude to women exemplary and certain would not engage in such behaviour
      32. Allowed x-x on dishonest
      33. s 105(5) says NO FURTHER THAN NECESSARY
      34. Prob gets rid of Winfield
      35. No falsity about sexual conduct denial
      36. No impression about honesty
      37. Somanathan
      38. Said contract @ old temple not renewed by agreement
      39. Might be an implied assertion that "he was a priest who had never behaved inappropriately towards female worshippers"
      40. So allowed to go further to correct this false implied impression
      41. Uyiekpen
      42. Charged with drug offences
      43. D wanted to call ev. of one old conviction for AOABH
      44. Awaiting trial on robbery and false imprisonment
      45. Could not adduce ev. of charages awaiting: nothing asserted, even impliedly, re pending charges
    4. Permissible purposes of corrective evidence
      1. Highton
      2. Unlike at CL, now cannot only be used for credibilty
      3. Used to be discretion to exclude if went more to issue than credit; impermissible vs permissible
      4. Now not clear what direction, if any, you give.
    5. Discretionary Exclusion
      1. Still exists @ CL and s 78(1) [recognised, e.g. in Baker]
      2. Also, s 105(1)(b) - must be probative
      3. s 105(6) only as far as necessary
  7. 101(1)(g) attack on another's character
    1. s 101(g) / 106 means attack on character not within s 98 "bad character defn" therefore no protection for res gestae attacks
    2. Fairness to the accused
      1. Britzman + St Louis and Case
      2. Broader "trial fairness" discretion (not rule)
      3. Possibly survive under Act broader notion of "trial fairness" per Keene LJ in Nelson
      4. Emphatic denials
      5. Rouse
      6. Not an attack, confirmed in Selvey
      7. Ball
      8. Suggestion that simple denial / "she consented" will not lose shield
      9. Unconsidered remarks
      10. Preston
      11. Made in heat of trial
      12. But c.f. BALL
      13. Blurted out co-accused had committed robberies day before
      14. But BALL might have been a considered remark anyway
      15. Remarks in x-x
      16. Baldwin; Eidinow
      17. Necessary Attacks
      18. Selvey
      19. No rule @ CL that necessary vs gratuitous attacks keep shield
      20. BUT within discretion to disallow
      21. Ball
      22. "SLAG" attack; beyond emphatic denial but is it beyond necessary attack?
      23. Turner
      24. Might have been thinking about a special rule @ CL for wider allowance in rape cases where alleging consent
      25. Lamaletie and Royce
      26. Said had been attacking him "everywhere" and so went beyond necessary attack.
      27. Strange case: not case for discretion (but ? Britzman)
      28. Say "pre-act cases" may still be helpful
      29. Also added mistake, misunderstanding, confusion
      30. Also added exclude when other evidence overwhelming
    3. Modes of Attack
      1. Evidence given or questions in x-x
      2. Includes attacks in police interview
      3. BUT, no opp. to withdraw (cf. 105(3))
      4. BALL
      5. Called complainant a "SLAG"
      6. Adduced by Prosection
      7. Cf.
      8. NELSON
      9. Could be a case for exercise of s 101(3)
    4. Attack on "any other person"
      1. Very Broad
      2. BUT Nelson
      3. Should exercise s 101(3) / 98(1) where
      4. Not witness
      5. Not victim
      6. Westfall (CL)
      7. Attacks on not-testifying non-victim out
      8. Q whether dead person is included!
      9. Bovell & Dowds
      10. Includes co-accused
      11. Conceded an "attack on any other person"
      12. Questionable: allows P to use where co-accused doesn't per 101(1)(e)
    5. "reprehensible behaviour"
      1. Not necessarily offences
    6. Credit vs Issue
      1. HIGHTON
      2. In for credit, in for issue as well if relevant
      3. Alleged complainants drug users who lied to police
      4. OK to use prev convictions of abh, gbh, weapons, affray on kidnapping, robbery, theft charges
      5. Could use to go to issue and credit
      6. Selvey
      7. Previously didn't matter that more relevant to issue than credit
      8. Consensual buggery; allowed in homosexual offences as going to credibility not issue
      9. McLeod (CL)
      10. Could use defence fact (e.g. alibi) whether convicted or acquitted
      11. Strange b/c if you don't care, you must be using it for issue not credibility
      12. Very rarely allowed in prosecution fact
      13. Lamaletie and Royce
      14. Doesn't matter that "incidentally" shows propensity
      15. Defence to gbh was self-defence ("hitting me everywhere")
      16. Allowed in six violence convictions
      17. Letts and Chung
      18. EVEN WIDER
      19. Said B was a "gun carrying assasin"
      20. Allowed in ev. that C claimed to have killed somebody: seriousness of threat carried out on present victims
      21. Issue propensity to allow it in
      22. Also Wilson is similar
      23. Campbell
      24. NB - Campbell argument about propensity to be untruthful
      25. Could be argued on this basis, that bring Butterwasser back through the backdoor
      26. A necessary attack would not raise any issue of accused's credibility but a gratuitous one would
      27. Because credibility not in issue under Campbell analysis of propensity to be untruthful
  8. 101(1)(c) important explanatory evidence
    1. successor to wider notion of "res gestae"
    2. s 102 defines
      1. w/o it, "impossible or difficult"
      2. covers CL prev reln evidence (P [2006])
      3. rape and violence against complainant
      4. Beverly [2006]: must be needed to explain - prev drug possession conviction for an importation charge
      5. "Required no footnote or lexicon"
      6. Davis [2008]: important where might more obviously be tested by s 101(1)(d) because of s 101(3) protection
      7. value for understanding case as whole is substantial
2. s 103(3) court discretion to exclude
  1. bulk of authority = DISCRETION -> wednesbury review
    1. Edwards and Rowlands
    2. Chand
    3. Brima
    4. Tangang
3. s 98 definition
  1. exceptions
    1. (a) "has to do with" current offence
      1. Expansive view in Edwards - gun cartridge / drug supply conspiracy
      2. Malone: falsifies report by PI when accused of wife's murder (at CL prob background/relationship)
      3. Machado: Narrower view
      4. person who'd previously posed as sol and forged documents more likely b/c done it before
      5. NOT ALLOWED
      6. ev "relating to very circumstances"
      7. contemporaneity in time to and close association with the facts of the offence
      8. Ricardo: Said victim had fallen rather than pushed, and had said he'd taken ecstacy
      9. allowed b/c contempraneous and closesly associated with facts
    2. (b) in connection with investigation or prosecution
      1. Law Com example allegations
      2. Police made up/induced confession; destroyed evidence
      3. Someone disssuaded a witness from testifying; accused absconds
  2. "evidence of, or disposition towards, misconduct'
    1. c.f. Rowton @ C.L. = ev. of reputation
      1. s 99(2) w/ s 118(1) preserve C.L. rule?
  3. s 99(1) abolishes C.L rules on admissibilty of bad character
    1. admissibilty
      1. "governing" means both rules of admissiblty and inadmissibility
      2. Sing, Highton, Weir confirm this
    2. rules
      1. discretions survive
      2. s 78(1)
      3. broader C.L. fairness
    3. common law (not statute)
      1. s 78(1) survives
      2. Theft Act survives
  4. s 112 - Includes "reprehensible behaviour"
    1. "REPREHENSIBLE BEHAVIOUR"
      1. Thompson [1918]
      2. Indecent assault; found powder puffs; pics of naked boys
      3. Burrage [1997]
      4. Abuse of grandsons by grandfather
      5. Adult homosexual porn: ruled IRRELEVANT
      6. Wright (1990)
      7. "Incognito guide to Paris"
      8. Probably not reprehensible?
      9. Mainster (in Weir)
      10. Reln w/ 16 y.o. when 34 (Indecent assault on 13 y.o.)
      11. NOT REPREHENSIBLE
      12. No evidence of grooming
      13. No ev. of parental disapproval
      14. No ev. girl immature
      15. Lasted some time
      16. Admissible as relevant to predilection for younger women
      17. Renda
      18. Unconditional discharge for assault b/c insanity is reprehensible
      19. (was a correct false impression case; but n.b. if not reprehensible in anyway as relevant
      20. Osbourne
      21. Stabbed best friend
      22. Evidence that aggressively shouted at child and partner not reprehensible
4. "If but only if" - Chopra "A sea change" prima facie admissible
Common Law
1. "res gestae" cases
  1. res gestae proper
    1. part and parcel / part of the transaction
      1. Malik: sirring up racial hatred ("black man's job to go to prison")
      2. Salisbury: took bank notes from one envelope; had to show MO
      3. Cobden: more marginal - robberies on same night (large transaction)
  2. previous relationship
    1. Ball: can show enmity towards victim
      1. Affirmed by PHILLIPS
      2. establish motive (but possibly within Makin anyway)
  3. background evidence
    1. includes, but beyond prev. relationship
    2. "incomplete or incomprehensible" without it
    3. Sawoniuk: allowed ev. of specific incidents during Nazi era (exceptional)
    4. concern by McHugh J in Harriman (suggest no discretion to exclude where true res gestae)
      1. "relevance" and "necessity" were touchstone principles
2. Joinder and Severance
  1. Christou
    1. NO automatic exercise of discretion
    2. Inter-admissibilty does not determine severeance
  2. Ludlow
    1. To join, should be a series of offences
    2. Must be some nexus
    3. Can look at similarity in law and fact
    4. Just because of a delay betw doesn't mean not a series