USQ Law Society Law Review
Katie Lush
Winter 2021
that helps prove the offence.7 Bad character evidence has, historically, been highly contentious and the subject of a wide range of restrictive measures due to its potential ‘to threaten factual accuracy, efficiency and liberal values.’8 The court has described the exclusion of bad character evidence as ‘one of the most deeply rooted and jealously guarded principles of our criminal law'.9 However, it is a principle that has created considerable confusion and contradictory decisions, due to the underlying conflicting policy considerations of preventing the admission of unfairly prejudicial evidence on the one hand and of ensuring that probative evidence is put before the trier of fact on the other.10 As early as 1894, the court recognised that ‘it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other', in order to be excluded.11 This situation is further compounded by the purpose for which character evidence is put forward, because it often happens that ‘a fact offered as evidence is admissible if considered from one view-point [or purpose] and inadmissible if considered from another.’12 Attempts to reform the law in regard to the admissibility of bad character evidence have been met with mixed results, since some judges have explicitly considered that the common law rules were ‘regarded as reasonably well settled, and capable of straightforward application’, whereas the principles in the UEA were described as ‘exceedingly complex and extraordinarily difficult to apply.’13 This complexity and difficulty would not seem to be in step with the Australian Law Reform Commission’s (ALRC) purpose and findings, which encompass the need to simplify the rules for bad character evidence due to their complexity and confusion.14 Bad character evidence is becoming recognised as being of particular importance in cases of child sex offences. The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) reported that the exclusionary rules tended to give offenders impunity, and that allowing evidence of other alleged victims was vital in addressing the issues of access to justice for complainants.15 The research into the behaviours of sex offenders and, in particular child sex offenders, has shown the law to be at odds with offenders’ patterns of behaviour, which are widely variant.16
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Ibid. David Hamer, ‘The Legal Structure of Propensity Evidence’ (2016) 20(2) The International Journal of Evidence & Proof 136. 9 Maxwell v DPP [1935] AC 309, 317; Pfennig v The Queen (1995) 182 CLR 461. 10 David Hoitink and Anthony Hopkins, ‘Divergent Approaches to the Admissibility of Tendency Evidence in New South Wales and Victoria: The Risk of Adopting a More Permissive Approach’ (2015) 39 Criminal Law Journal 303. 11 Makin v A-G for NSW [1894] AC 57. 12 Peter Brett, ‘Abnormal Propensity or Plain Bad Character’ (1953) 6(4) Res Judicatae 471, 473. 13 Velkoski v The Queen [2014] VSCA 121 [33]('Velkoski'); UEA (n 2). 14 Australian Law Reform Commission, Uniform Evidence Law (Report 102, December 2005). 15 The Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 17. 16 Annie Cossins, ‘The Behaviour of Serial Child Sex Offenders: Implications for the Prosecution of Child Sex Offences in Joint Trials’ (2011) 35 Melbourne University Law Review 821. 8
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