Unders 97 of the evidence act NSW 1995, the tendency rule provides for exceptions or specific circumstances in which evidence regarding a defendant's character, conduct and or reputation, will be admissible for a 'tendency purpose' providing it has 'significant' probative value. Any tendency evidence that infers because of previous undertakings of past behaviour, the person is more likely to have acted as such on the current occasion is normally inadmissible as it provides for prior convictions or character of an accused to be presented in court to in a manner where the prejudicial value could easily outweigh the substantial importance it presents to the jury.
That is pursuant to s 97(1) it does not allow for evidence of character to be used to show a tendency to commit such a crime that is now under consideration of the jury. However there is an exception as in certain circumstances as indicated by s98, it can be used as similar fact evidence. Similar fact evidence is regarded as evidence that is extremely similar to the conduct for which the accused person is currently standing trial, that it can be adduced as circumstantial evidence. In other words it allows for evidence of credibility such as prior convictions to be presented to the jury in aiding them in determining guilt. Uncharged acts
Under the evidence act sections 97-101 restrict the types of admissible evidence that can have a prejudicial effect on juries. By restricting the use of tendency and coincidence evidence along with evidence of previous convictions to only be admissible in certain exceptions, it thereby avoids reasoning that by not disclosing previous convictions in all instances to juries, they are being denied of important evidence on which to make a decision and is not influenced by character evidence when determining facts in relation to the accused..
If such character evidence is allowed in a trial without the restrictions imposed by the evidence act, then it can be regarded as an imbalance of fairness and power between the accused and the prosecution. In order to address this inequality, the evidence act has established restrictions that limit the use of propensity and tendency evidence which would be erased by any amendments made to the act.
Thus the current rules of evidence contained in the evidence act contains strict provisions regarding the admissibility of character evidence which allows for the hearing of prior convictions, shows flexibility and fairness to all parties involved. Under the existing rules which reject evidence of prior convictions or bad character unless fairness and or exception dictates it should be permitted, it allows for the disclosure of evidence to jurors in a fair and probative manner
S137 Exclusion of prejudicial evidence in criminal proceedings
Under s137 evidence which the probative value is outweighed by its prejudice value towards the accused in inadmissible and the court must refuse to admit such evidence.
This importance of disclosure to the jury of character evidence per s97 and 98 is measured by the probative value test [1] which requires the balancing of conflicting public interests with the interest of justice and is up to the judge's discretion. Therefore under the test if the prejudicial value easily outweighs the probative value then evidence is inadmissible including evidence that was held to be admissible under prior sections.
Following from this, relevant evidence per s55 and 56 which only infers a defendant's propensity for misconduct where it is part of the reasoning that can be derived from the evidence is not subject to exclusion and can gain admission. That is it satisfies the Pfennig admissibility test to be admissible.
The credibility rule - ss 101A, 102
The striking of a balance between probative value and risk of prejudice is achieved by s 101 which provides that tendency evidence or coincidence evidence about an accused that is admitted as evidence by the prosecution cannot be used against the defendant 'unless the probative value of the evidence significantly outweighs any prejudicial effect it may have on the defendant.'
In a criminal case, even if evidence is held to be prima facie admissible pursuant to sections 97 and 98, under s 102 there are additional limitations imposed on such evidence sought to be adduced by the prosecution. Under s 102 of the Evidence Act 1995 (NSW), it provides that evidence relevant towards a witness' credibility is inadmissible [2] , however evidence may bypass s102 under the exception set out if the defendant uses the rule to establish that they're of good character and thus establish credibility over evidence disclosed under oath ,
If y
Character s110
Under s110 the various rules governing the admissibility of evidence does not apply in restricting the admissibility of character evidence adduced by of the defendant. Good character evidence can be adduced by the defendant to show credibility and promote doubt against the issues concerned so that it suggests the accused may be of good character and hence did not commit the issues of concern.
Per ss110 (2) (3) it then falls upon the prosecution that once evidence has been adduced to by the accused to show they're of good character to introduce evidence that can rebut that notion. That is when the accused adduces evidence regarding own character then it is upon the prosecution to discredit that evidence and show the accused is not of good character by rebutting their credibility. This extra step the prosecution must satisfy means if removed or amended by allowing for all prior conviction to be heard without exception and not allowing s110 to form as a sort of safeguard for the defence means it will not satisfy due processes. If removed it enables the prosecution to garner a conviction rather easily and has a more prejudicial effect then probate value meaning the defendant will be unlikely to receive a fair trial.
The basis behind this provision in the act is that if removed, the jury in determining fact may give undue consideration to the prejudicial value of the accused's good character and so they will be left with a misleading idea of the accused. Hence all due process won't be carried out as well as affecting the presumption of innocence when the accused faces trial
Character Shield
Although the court is concerned with ensuring all due process is taken in order to reach a verdict, a defendant's previous convictions can be adduced into evidence though it may have a slight prejudicial affect. That is although the accused is protected by a character 'shield', in certain circumstances that shield may be lost and under cross examination prior convictions may be disclosed to the court.
These circumstances allow for the defendant's credibility to be attacked any past conviction to be heard. Such circumstances include if the defendant has attacked the prosecutions witness or has adduced character evidence to support credibility along with other things. While disclosure of prior convictions can detrimentally affect the defendant's character, safeguards are in place through the judge that seeks to minimise the prejudicial value placed on the defendant.
However if the act is changed or amended, then it would render these safeguards as erased and allow the prejudicial value of such character and credibility evidence to outweigh the probative value. As a result bias towards the accused will hinder any chance of a fair trial and will mean due process wasn't carried out.
Recommendation
Thus the current rules of evidence contained in the evidence act contains strict provisions regarding the admissibility of character evidence which in certain exception allows for the hearing of prior convictions with all due process taken to ensure flexibility and fairness to all parties involved. Under the existing rules which reject evidence of prior convictions or bad character unless fairness and or exception dictates it should be permitted, it allows for the disclosure of evidence to jurors in a fair and probative manner which provides equality to all parties involved .
Taken as a whole, this act is utterly protective of the right of the accused not to be convicted except on evidence directly relevant to the charge in question. Under provisions o f the act the court must reject evidence in criminal proceedings and especially cases concerning sexual assault where its probative value is outweighed by the prejudicial value and danger of unfair trial posed to the defendant [3] :
If any amendments are made then there is risk of unfair prejudice overwhelming the decisions of the jury if in all instances prior conviction evidence was made admissible. In instances of prior convictions being made known to the jury, the risk incurred will be by knowing the prior criminal record of the defendant, the jury might be diverted from a proper consideration of the evidence and place undue consideration on that evidence by simply assuming the accused's guilt. [4]
To prevent such prejudice, such exceptions exist under the act where it imposes restrictions on the admissibility of prejudicial information and enables the judge to exercise judicial discretion to exclude all prejudicial evidence including those of previous convictions. By amending this act even in situations of serious sexual assault or violence cases, it removes this fairness and maintenance of due process. If however amendment is made to the current law then it allows for reasoning of prejudice and bias towards the accused to follow as it allows for evidence of bad character to b e admissible in all instances.
Thereby If it is allowed in all instances then not only could this evidence when presented to the jury prejudice them against the accused it could hinder rather than aid the jury in determining guilt and ensure a proper fair and just trial is not received by the accused. Not only that but it would increase the conviction rate in NSW by purporting convict a majority of those with previous criminal record. Hence to ensure all due process is carried out and convictions are made in issue to the current facts and not as a result if prejudicial evidence being adduced the current law should exist without any amendments made as it acts as a safeguard for all parties involved while ensuring justice is served.
