“20. [Counsel for the Crown] quite properly reminds the Board of a series of recent cases such as Bhola v The State [2006] UKPC 9; (2006) 68 WLR 449, Gilbert v The Queen [2006] UKPC 15; [2006] 1 WLR 2108 and Simmons and Green v The Queen [2006] UKPC 19; (2006) 68 WLR 37, which make it plain that the lack of a proper good character direction will not avail the appellant where the court is satisfied that the jury would in any event have convicted. In all those cases, however, the evidence against the accused had been overwhelming.”
(See blog entries for 29 March 2006 and 4 April 2006.)
Here a conviction was not inevitable, and the combination of absence of a good character direction and the failure to call a relevant defence witness caused the Board to quash the appellant’s conviction and remit to the Court of Appeal the decision on whether to order a retrial.
Whether there should be a rule requiring a good character direction whenever the defence point to evidence of good character is a vexed question. In Melbourne v R [1999] HCA 32 (5 August 1999) the majority of the High Court held that a rule should not be applied but rather the matter should be one for the judge’s discretion. Hayne J at 155, after referring to the position in New Zealand and in England and Wales, concluded:
“…There is no point in insisting that a trial judge must give such a direction in every case (or nearly every case) in which good character is established unless to do so assists in achieving a fair trial. And that directs attention to what is in issue at trial.”
Gummow J at 68 referred to historical reasons for allowing evidence of good character, and at 79 preferred the discretionary approach taken by Thomas J (dissenting) in R v Falealili [1996] 3 NZLR 664 at 671-672, which focuses attention on whether the evidence is probative and relevant, as opposed to lacking in probative force and being of remote relevance to the charge in issue.
Kirby J concluded, dissenting, that a rule was the preferable approach, but also indicated (108) that more than mere mention in evidence of absence of previous convictions should be necessary to give rise to the requirement for a good character direction.
McHugh J had two reasons for declining to introduce into Australian law a rule requiring a good character direction (32):
“…First, the difference between the use of good character evidence and the use of bad character evidence in a criminal trial is logically anomalous and, while that difference is too deeply rooted in the law to be removed by judicial decision, it should not be widened. Second, in cases where good character evidence has no logical connection with the elements of the offence, a mandatory direction is likely to divert the jury from properly evaluating evidence which more directly and logically bears upon the guilt of the accused and … such a direction may even confuse the jury.”
In New Zealand the Evidence Act 2006 does not expressly require a direction on good character evidence, and s 11 preserves the “inherent and implied powers of a court” which are not affected by the Act. The matter may continue to be one for development at common law, so that the present position is as stated by the majority in R v Falealili [1996] 3 NZLR 664 (CA). Although, perhaps not: in R v Kant [2008] NZCA 194 (1 July 2008) a divisional Court held that under the Evidence Act 2006 evidence that a defendant has no previous convictions would not meet the high standard of being "substantially helpful" on the issue of veracity (s 37(1)), so would not be admissible. The Court indicated that this point should be determined by the permanent Court as soon as possible.
[Update: in Wi v R [2009] NZSC 121 (27 November 2009) the Supreme Court overruled Kant, holding that evidence of absence of previous convictions does meet the requirement of relevance and is admissible as propensity evidence notwithstanding that its probative value may be slight. The Court added that a good character direction is not mandatory and will usually not be desirable, but the judge must be guided by the requirements of fairness.]
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