4.3 - Character Evidence1
4.3.1 - Bench Notes: Character Evidence
Summary of Uniform Evidence Act Provisions

Section 110 of the UEA permits an accused to adduce evidence to
prove the accused’s good character. It also permits the prosecution
or a co-accused to adduce rebuttal evidence.

Section 111 of the UEA permits an accused to adduce expert opinion
evidence relevant to the character of a co-accused. It also permits
the co-accused to adduce rebuttal evidence.

Section 112 of the UEA requires the court’s leave to be obtained for
any cross-examination of an accused as to character.

Part 3.7 of the UEA regulates the admissibility of credibility evidence.
Character evidence that bears only upon the veracity of the accused,
may also be "credibility evidence" (see s101A). The exceptions to the
credibility rule in this Part may provide alternative gateways for the
admission of character evidence.
Change and Continuity under the Uniform Evidence Act

At common law character is generally treated as indivisible (with
people considered to be either of good character or bad character).
Under the UEA evidence may be used to prove that the accused is a
good or bad person generally, or in a particular respect.

Under the Crimes Act 1958 s399(5), the accused could only be asked
questions tending to establish his or her bad character where that
evidence was relevant to prove the accused’s guilt, or where the
accused had placed his or her character in issue in one of four
specified circumstances. The UEA largely re-enacts these four
conditions in s104 and s110.
What is Character Evidence?
1.
Character evidence addresses a person’s inherent moral character (R
v Rowton (1865) 169 ER 1497; Melbourne v R (1999) 198 CLR 1;
Attwood v R (1960) 102 CLR 353).
2.
The relevance and admissibility of character evidence, as well as the
need for a direction and the content of that direction, depend on
whether the evidence is of the accused’s good character or bad
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This document was last updated on 29 June 2015.
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character.
3.
Directions about character evidence are directions about “the
evidence in the trial relevant to the matters in issue”. Part 3 of the
Jury Directions Act 2015 applies (Jury Directions Act 2015 s10).
Evidence of Good Character
What is “Good Character” Evidence?
4.
“Good character” evidence includes:

Evidence of the accused’s general good reputation; and

Evidence of the accused’s favourable disposition (Eastman v R
(1997) 76 FCR 9; Stirland v Director of Public Prosecutions
[1944] AC 315; Attwood v R (1960) 102 CLR 353).
5.
The expression “good character” in s110 of the Evidence Act 2008
has the same meaning as it does at common law (Eastman v R
(1997) 76 FCR 9).
6.
The accused’s good character can be proved in a variety of ways.
Evidence of good character does not simply consist of evidence that
the accused has not previously been convicted of a crime (Melbourne
v R (1999) 198 CLR 1).
Relevance of Good Character Evidence
7.
Evidence that the accused is of good character may be relevant for
two purposes:
i)
It may make it more likely that the accused’s evidence is
credible; and
ii)
It may make it less likely that the accused committed the
offence (Melbourne v R (1999) 198 CLR 1; R v Baran [2007]
VSCA 66; R v Zecevic [1986] VR 797; R v Murphy [1985] 4
NSWLR 42; R v Trimboli (1979) 21 SASR 577; R v Warasta
(1991) 54 A Crim R 351; Attwood v R (1960) 102 CLR 353;
Eastman v R (1997) 76 FCR 9).
8.
Good character evidence can only make it “unlikely”, rather than
“improbable”, that the accused committed the offence (R v Stalder
[1981] 2 NSWLR 9).
9.
Evidence that the accused is of good character may be relevant to
the credibility of evidence given in court and statements made out of
court (R v Vollmer & Ors [1996] 1 VR 95; R v Vye [1993] 1 WLR
471; Melbourne v R (1999) 198 CLR 1).
10. In some cases the two uses of good character evidence will entirely
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overlap, and will function as a single idea rather than as two discrete
issues (R v Trimboli (1979) 21 SASR 577).
11. The court may limit the use to be made of good character evidence if
there is a danger that a particular use of the evidence might be
unfairly prejudicial to a party, or might be misleading or confusing
(Evidence Act 2008 s136). However, this will be rare (see, e.g., R v
Lawrence [1984] 3 NSWLR 674; R v Murphy (1985) 4 NSWLR 42; R
v Hamilton (1993) 68 A Crim R 298).
Admissibility of Good Character Evidence
12. The defence may adduce evidence to prove that the accused is a
person of good character (Evidence Act 2008 s110(1)).
13. The evidence may be used to prove that the accused is a good
person generally, or in a particular respect (Evidence Act 2008
s110(1)). This differs from the common law, which treats character
as indivisible (with people considered to be either of good character
or bad character) (Melbourne v R (1999) 198 CLR 1; Bishop v R
[2013] VSCA 273).
14. Good character evidence may consist of opinion evidence from a
witness concerning the character of the accused, or evidence from a
witness about the reputation of the accused within the community, or
a part of the community (Bishop v R [2013] VSCA 273; R v Chapman
[2002] NSWCCA 105).
Probative Value of Good Character Evidence
15. The probative effect of good character evidence on the accused’s
credibility, and on the likelihood that he or she committed the
offence charged, will vary depending on the circumstances of the
case.
16. For example, the probative effect of good character evidence on the
accused’s credibility may be diminished where he or she does not
give evidence in court, instead relying on out-of-court statements (R
v Zecevic [1986] VR 797; R v Arundell [1999] 2 VR 228).
17. The probative value of good character evidence may also be affected
by:

The nature of the offence charged (R v Trimboli (1979) 21 SASR
577)2;
For some offences, good character evidence will not establish that the accused
is the kind of person who would be unlikely to commit that crime. For example, it
has previously been held that the fact that a person is of good character may not
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
The relationship between the type of character established and
the type of offence charged (R v Arundell [1999] 2 VR 228;
Braysich v R [2011] HCA 14)3; and

The strength of the other evidence supporting the charge (Simic
v R (1980) 144 CLR 319).
18. In some cases, the only evidence of the accused’s good character will
be his or her lack of prior convictions. The probative value of the
character evidence in such cases is usually extremely limited (R v
Cumberbatch (No 5) [2002] VSC 289; Melbourne v R (1999) 198
CLR 1).
Need for a Direction About Good Character Evidence
19. At common law, it was recognised that a judge was not required to
direct the jury about the uses of good character evidence in all cases
where that evidence was led (Melbourne v R (1999) 198 CLR 1;
Benbrika v R [2010] VSCA 281; R v DD [2007] VSCA 317; Gallant v
R [2006] NSWCCA 339; R v Arundell [1999] 2 VR 228).
20. The need for a direction depends on whether a direction is sought or
whether there are substantial and compelling reasons for giving the
direction in the absence of a request (Jury Directions Act 2015 ss14 16). See Bench Notes: Directions Under Jury Directions Act 2015 for
information on when directions are required.
21. Under the Jury Directions Act 2015, the judge should consider the
significance of the good character evidence in the context of the trial
when deciding whether to give the direction despite the absence of a
request.
22. Prior to the Jury Directions Act 2015, the recommended practice in
Victoria was that judges would give directions on good character
evidence almost without exception (see R v Warasta (1991) 54 A
Crim R 351). In Bishop v R [2013] VSCA 273, which was decided
after the commencement of the Jury Directions Act 2015, this
practice was endorsed as continuing to provide guidance to trial
judges. However, the court in Bishop did not refer to the effect of
sections 13 and 15 of the Jury Directions Act 2013 (see now Jury
Directions Act 2015 ss14 – 16).
23. In determining whether to give a direction, a judge should pay close
attention to the relevance of the evidence to the offence, and to the
issues to which the evidence relates (Stanoevski v R (2001) 202 CLR
materially affect the likelihood that s/he would cultivate cannabis (see, e.g., R v
Trimboli (1979) 21 SASR 577).
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For example, evidence of honesty is not likely to be highly probative where the
accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).
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115; R v Szabo [2000] NSWCCA 226).
24. A judge should consider the probative value of the evidence when
determining whether or not to give a direction (Melbourne v R (1999)
198 CLR 1; Benbrika v R [2010] VSCA 281; R v DD [2007] VSCA
317).
25. A good character direction must be given where a direction has been
sought and the evidence has an immediate and obvious connection
with an issue in the case (Melbourne v R (1999) 198 CLR 1).
26. In deciding whether to direct the jury about good character evidence,
a judge must separately consider the probative effect of the evidence
on the accused’s credibility and on the likelihood that he or she
committed the offence charged (Melbourne v R (1999) 198 CLR 1;
Benbrika v R [2010] VSCA 281).
27. Where the evidence of good character comes from the accused him
or herself there is generally less need for a direction on the uses of
such evidence, as this will usually be self-explanatory (R v MackraeBathory [2006] VSCA 179; R v TSR [2002] VSCA 87).
Content of the Direction on Good Character Evidence
28. No particular form of words is required for a direction on good
character evidence (R v Trimboli (1979) 21 SASR 577; R v Arundell
[1999] 2 VR 228; R v RJC 18/8/98 NSW CCA; R v Telfer (2004) 142
A Crim R 132; Fung v R [2007] NSWCCA 250).
29. The judge will need to consider whether the parties have sought a
direction about the two permissible uses of good character evidence,
and whether it is appropriate to direct on both uses. For example,
the judge may have good reasons to direct on only one of the
permissible uses of such evidence (Melbourne v R (1999) 198 CLR 1;
R v Arundell [1999] 2 VR 228; R v Zecevic [1986] VR 797; Sindoni v
R [2011] VSCA 195).
30. If the evidence relates to a particular aspect of the accused’s
character (rather than his or her character generally), the directions
must be limited to that aspect (see, e.g., R v Zurita [2002] NSWCCA
22).
31. This may affect which of the two possible uses of the evidence the
jury should be told about. For example, if the evidence has no
bearing on truthfulness, and thus no relevance to credibility, the jury
should not be directed that the accused’s good character should be
taken into account in assessing his or her credibility (R v Zurita
[2002] NSWCCA 22).
32. Where the judge directs the jury about the relevance of the evidence
to the issue of guilt, the direction should convey to the jury that they
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should bear in mind the accused’s good character when considering
whether they are prepared to draw from the evidence the conclusion
of the accused’s guilt. They should bear it in mind as a factor
affecting the likelihood that the accused committed the crime
charged (R v RJC 18/8/98 NSW CCA).
33. It is permissible to direct the jury that a person of good character is
less likely to have committed the offence than a person not of good
character (Fung v R [2007] NSWCCA 250).
34. Where the judge directs the jury about the relevance of the evidence
to the issue of credibility, the judge should convey to the jury that
they should consider the accused’s previous good character in
assessing the credibility of any explanation he or she has given and,
if he or she has given evidence in court, his or her credibility as a
witness (R v RJC 18/8/98 NSW CCA).
35. The judge may remind the jury that people commit crimes for the
first time, and that evidence of good character cannot alter proven
facts or provide a defence in itself. Character evidence can only
affect the jury’s assessment of whether certain facts have been
proven beyond reasonable doubt (R v Arundell [1999] 2 VR 228;
Melbourne v R (1999) 198 CLR 1; R v Trimboli (1979) 21 SASR 577;
R v Zecevic [1986] VR 797; R v RJC 18/8/98 NSW CCA; Bishop v R
[2013] VSCA 273).
36. Judges must exercise care when warning the jury about the need for
caution in acting on good character evidence other than the standard
directions that people commit crimes for the first time and the
evidence cannot alter proven facts or provide a defence in itself
(Bishop v R [2013] VSCA 273).
37. In particular, where character evidence is led in a sexual offence
case, the judge must not give a limiting direction that good character
evidence is of less weight (or no weight) because sexual offences are
committed in private and the evidence only addresses the accused’s
conduct in the presence of others (Bishop v R [2013] VSCA 273; R v
MWL (2002) 137 A Crim R 282).
38. Judges should exercise great care in departing from the traditional
directions into directions which have not previously received curial
approval (Bishop v R [2013] VSCA 273).
39. Where good character evidence can be used both in assessing guilt
and credibility, the judge must not direct the jury that the evidence
cannot be used for one of these two purposes (R v Zecevic [1986]
VR 797; R v Murphy [1985] 4 NSWLR 42).
40. In such cases, if the prosecution tells the jury that the evidence may
not be used for one of the two permissible purposes, the judge must
raise with the parties the need for a direction to ensure the jury is
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not misled (see Jury Directions Act 2015 s16 and R v Schmahl
[1965] VR 745).
41. A person who has a prior conviction that was overturned on appeal
must be treated as a person without any prior convictions. Any
direction on good character must not be qualified by reference to the
quashed conviction (R v Lapuse [1964] VR 43).
Evidence of Bad Character
42. Evidence of the accused’s bad character is generally inadmissible on
the basis that it is unfairly prejudicial (Melbourne v R (1999) 198 CLR
1; R v Thomas [2006] VSCA 167; Donnini v R (1972) 128 CLR 114;
Perry v R (1982) 150 CLR 580).4
43. However, under the Evidence Act 2008 there are three circumstances
in which bad character evidence may be admissible:
i)
If evidence has been adduced to prove an accused’s good
character (either generally or in a particular respect), a coaccused or the prosecution may respond by leading evidence to
prove that the accused is not a person of good character (either
generally or in that respect) (ss110(2)-(3)).
ii)
An accused may adduce opinion evidence about the character of
a co-accused, where it is evidence of the opinion of a person
who has specialised knowledge based on his or her training,
study or experience, and the opinion is wholly or substantially
based on that knowledge (Evidence Act 2008 s111(1)); and
iii)
Evidence that reveals the accused’s bad character may also be
admissible under a provision of Part 3.7 concerned with
credibility evidence.
44. Leave is required to cross-examine an accused about matters arising
out of character evidence (Evidence Act 2008 s112).5 See Gabriel v R
(1997) 76 FCR 279 for a discussion of relevant considerations.
While evidence is generally inadmissible for the purpose of proving the
accused’s bad character, evidence that is relevant for another purpose is not
rendered inadmissible solely because it also happens to show the bad character of
the accused. Such evidence may be admitted for a limited, probative, purpose. In
such cases, the judge must direct the jury to use the evidence only for the
admissible purpose, and may need to warn the jury not to use the evidence for
an irrelevant or prejudicial purpose (see, e.g., R v Thompson [2001] VSCA 208;
Orman v R [2010] VSCA 246R).
5
See R v El-Azzi [2004] NSWCCA 455 and Stanoevski v R (2001) 202 CLR 115
for a discussion of the meaning of “matters arising out of” this kind of evidence.
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Use of Bad Character Evidence
45. At common law, bad character evidence can only be used to negate
evidence of good character. It cannot be used as directly relevant to
the issue of guilt (see, e.g., BRS v R (1997) 191 CLR 275).
46. At first glance, the Evidence Act 2008 appears to make bad character
evidence admitted under s110 usable for tendency purposes.6 This is
because:

This evidence is not subject to the tendency rule (s110);

It is also exempted from the further restrictions on tendency
evidence in s101, because that extension “does not apply to
tendency evidence that the prosecution adduces to explain or
contradict evidence adduced by the defendant” (s101(3)).
47. However, in NSW it has been held that the common law position
remains unchanged, and that bad character evidence can only be
used to negate good character evidence (R v OGD (No 2) (2000) 50
NSWLR 433; R v El-Kheir [2004] NSWCCA 461. See also Eastman v
R (1997) 76 FCR 9 for a brief discussion of this issue).
48. The court may limit the use to be made of bad character evidence if
there is a danger that a particular use of the evidence might be
unfairly prejudicial to a party, or might be misleading or confusing
(Evidence Act 2008 s136).
Content of the Direction on Bad Character Evidence
49. Where evidence of bad character is admitted and the prosecution or
counsel for the accused seeks a direction, the judge must explain to
the jury that:

They may use the evidence when assessing the accused’s
credibility; and

They must not use the evidence to infer that the accused is
more likely to have committed the offence because he or she is
a person of bad character (Jury Directions Act 2015 s14; R v
Perrier (No 1) [1991] 1 VR 697; R v Thomas [2006] VSCA 167;
Donnini v R (1972) 128 CLR 114; BRS v R (1997) 191 CLR 275;
R v Stalder [1981] 2 NSWLR 9; R v Rihia [2000] VSCA 235).
50. At common law, there was seen to be a high degree of risk that a
jury would use bad character evidence to engage in impermissible
In explaining the rationale behind the proposal on which s110 is based, the
Australian Law Reform Commission (“ALRC”) noted that this restriction seems
incapable of enforcement, and implied that it should not be adopted in the UEA
(ALRC 26, vol.1, para 83).
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propensity reasoning. Judges were therefore required to clearly
direct the jury on both the permissible and impermissible uses of bad
character evidence (Donnini v R (1972) 128 CLR 114). This will
continue to guide the content of directions on bad character evidence
under the Jury Directions Act 2015.
51. The permissible uses of bad character evidence are not the converse
of the permissible uses of good character evidence. The jury is
allowed to use good character evidence to engage in a form of
propensity reasoning that is not permitted for bad character
evidence. This anomaly is deeply rooted in the law (Melbourne v R
(1999) 198 CLR 1).
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