The evidence of bad character

The evidence of bad character is an interesting area which have often been brought up by academician and judges like Professor Hoffman to its disputable and uncertainty of status, and so it have been describe as a law which is complex, unprincipled and riddled with anomalies by Professor Adrian Keane. The general rule was that the defendant may not be asked about his convictions or other bad character until he throws the shield himself i.e. he himself have adduce his own characteristic as evidence, in other words it means that evidence may not be given about his character as part of the prosecution case. The rationale of the rule has proved that the prejudice created by such evidence outweighed any probative value it might have.

The basis of the rule can be trace from the dictum of Lord Herschell LC in Makin v Attorney-General for New South Wales:

‘It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury.

In other word, it means that the prosecution may not use the accused’s previous bad character to suggest to the jury that he acted in conformity therewith in relation to the offence charged.

However, there was also exception following the above dictum he laid down:

‘…and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.’

In other word, Lord Herschell mean that the evidence which tends to show the commission of other crimes is wide enough to cover not just evidence of the defendant’s previous convictions, but also evidence of other offences which he is alleged to have committed but for which he has not been tried. Then he came out with two instances in which evidence of other offence may b relevant to guilt. Firstly, the defendant claims that the act of which complaint is made did take place but that it was an accident or so called ‘similar fact evidence’ and, secondly, where the defendant put forward some defence but his character shows that the defence is not open to him.

Following the dictum, the case of Makin had illustrated that there was no direct evidence and an inference was drawn by the jury base on indirect evidence i.e. circumstantial evidence to reach a conclusion. Second, the admissibility of evidence of other offences depends entirely upon the issues in the case that the relevance of the evidence can only be judged by reference to the issues which arise for decision. The method had almost been an universal usage where the prosecution try to prove that on one or more occasions the accused has acted in a way similar to that alleged in the charge although it was not normally known as similar fact evidence.

Moving on, the case of Thompson had shown the way the rule applies to evidence of the defendant’s character which does not disclose the commission of offences. In this case, the appellant was the man who had committed acts of gross indecency in a public lavatory. The issue was one of identity because the appellant’s defence was that it was pure coincidence that he turned up at the agreed time. It was held relevant to rebut by the context of evidence of defendant’s sexual behaviour towards young boys. Lord Sumner in this case said that there is a risk of prejudice by a jury after hearing the accused has committed other offences. Because of the risk, the prosecution is not normally allowed to call such evidence, but that it may do so where it is relevant to an issue in the case.

Later in Harris v DPP, it develops the analysis of the part prejudice plays in similar fact evidence. Viscount Simon described there would be reasonable cause to adduce similar fact evidence and referred to the rule of practice requiting a judge to disallow reliance on admissible evidence if it’s probable effect would be out of proportion to its true evidential value. And this is the first time the House of Lord brought together the need for similar fact evidence to be probative on one or more of the issues in the case, and the need for the judge to consider the overall effect of the evidence on the jury.

All this was later drawn together and fully explained in DPP v Boardman, which follow the dictum laid down in Makin. Lord Wilberforce comes out with:

‘…it is necessary to estimate (i) whether, the evidence as to other facts tends to support, i.e. to make more credible, the evidence given as to the fact in question, (ii) whether such evidence, if given, is likely to be prejudicial to the accused. Both these elements involve questions of degree. It falls to the judge… to estimate the respective and relative weight of these two factors…’

It simply means that the judge must weigh the probative force of similar fact evidence against its prejudicial effect and only allow it if it would not be unfair to the defendant to allow it to be given.

Another case of Sim also applying the similar way to rebut the appellant’s defence, where the accused’s homosexual tendency is only admissible where it is of sufficient relevance. Lord Goddard CJ pointed out that, similar fact evidence is a form of character evidence admissible because it is relevant to guilt, it may b introduces as part of the prosecution case, and need not await the presentation of the defence or be limited to cross-examination of the accused.