Bad Character Evidence in the Criminal Trial: the English Statutory/Common Law Dichotomy--Anglo-Australian Perspectives

Evidence of Bad Character (BCE) is an important evidential category, and its admission can have a significant impact upon the criminal trial. The Criminal Justice Act 2003 (CJA 2003) provides a definition of bad character evidence (s98/112 CJA 2003) that where applicable requires BCE to surmount one of the gateways to admissibility in s101(1) CJA 2003. Regarding some Uniform Evidence Law jurisdictions in Australia, the Evidence Act 1995 (EA 1995) governs the admissibility of evidence to demonstrate ‘tendency’/’coincidence’ (or the improbability thereof) and the use of BCE to rebut defendant-led good character (see ss97, 98, 101 and 110 Evidence Act 1995). The definition of BCE provided in s98 CJA 2003 requires ‘evidence of, or of a disposition towards, misconduct’ and ‘misconduct’ is further defined within s112 CJA 2003 as ‘the commission of an offence or other reprehensible behaviour’. A wealth of case law has developed around when evidence ‘has to do with the alleged facts of the offence charged’ in s.98(a) CJA (an exception to the definition of BCE) as well the scope of the overlap between s.98(a) and certain gateways to admissibility (for example, s101(1)(c), (d) CJA 2003), which has led to both a degree of flexibility and also to uncertainty within the law in this area. Similarly, in Australia, in many cases evidence incidentally disclosing other (mis)conduct by the accused have been held to fall outside the provisions regulating the admission of tendency (and coincidence) evidence. This article will explore some of the areas of uncertainty that have developed since the implementation of the 2003 reforms, informed by consideration of the approach to equivalent questions in the Australian jurisdictions.