LAWS50037 · Evidence And Proof
Character Evidence
Character evidence answers a narrow question: when may evidence of the accused’s good (or bad) character be used? The accused may choose to adduce good-character evidence; if they do, s 110 switches off the hearsay, opinion, tendency and credibility rules for that evidence — but it also lets the prosecution rebut, and may expose the accused to cross-examination requiring leave under s 112. Raising good character is a deliberate forensic gamble: it opens the door. ‘Character’ here means disposition — the aggregate of qualities or moral constitution that distinguishes one person from another (R v Wiggins (No 7)) — not reputation. Absent the s 110 door being opened, prosecution disposition evidence must run the tendency gauntlet (ss 97, 101). This chapter also covers the related strands the seminar groups with character: the accused’s right to silence (s 89, with the Jury Directions Act 2015 (Vic) directions against adverse inferences) and post-offence / consciousness-of-guilt conduct (lies and flight — Edwards v The Queen, Zoneff).
What this chapter covers
- 01What ‘character’ means — disposition, not reputation (Wiggins (No 7))
- 02s 110 — the accused opens the door with good-character evidence
- 03What switches off (hearsay/opinion/tendency/credibility) — and the rebuttal
- 04s 111 — character of a co-accused · s 112 — leave to cross-examine
- 05The right to silence (s 89) and the Jury Directions Act 2015 (Vic)
- 06Post-offence conduct: lies & flight — Edwards v The Queen, Zoneff
- 07Consciousness-of-guilt reasoning and its dangers
Worked example: has the accused opened the door?
- +1(a) Identify good-character evidence. The accused has adduced evidence of his good character (general honesty) — disposition, not reputation (Wiggins). That triggers s 110.
- +1(a) What s 110 does. For that good-character evidence, the hearsay, opinion, tendency and credibility rules are switched off — and they are also switched off for evidence the prosecution adduces in rebuttal.
- +1(a) The rebuttal. So the prior shoplifting incident may be led in rebuttal of the good-character claim without first running the tendency gauntlet, because the door is open.
- +1(b) Leave under s 112. To cross-examine the accused on matters arising from the character evidence, the prosecution needs leave under s 112.
Key terms
- Character (disposition)
- The aggregate of qualities that distinguish one person from another — a person’s moral constitution or permanent nature (R v Wiggins (No 7)); NOT their reputation. Keeping ‘good character’ (s 110) about disposition rather than gossip about reputation is the key distinction.
- s 110 (opening the door)
- If the accused adduces evidence of their good character (generally or in a particular respect), the hearsay, opinion, tendency and credibility rules do not apply to it — and do not apply to the prosecution’s rebuttal evidence. The accused ‘opens the door’.
- s 112 (leave to cross-examine)
- Leave is required to cross-examine the accused about matters arising from their character evidence — a control on how far the open door may be exploited.
- Right to silence (s 89)
- Evidence of an accused’s silence in response to questioning by an investigating official cannot be used to draw an adverse inference; the Jury Directions Act 2015 (Vic) (ss 41–42) reinforces that no adverse inference may be drawn from the exercise of the right.
- Post-offence conduct
- Conduct after the alleged offence — lies, flight, concealment — sometimes led as ‘consciousness of guilt’. It is admissible only on careful conditions and with directions (Edwards v The Queen; Zoneff), because innocent explanations are common.
Character Evidence FAQ
Is ‘character’ the same as reputation?
No — and conflating them is the classic error. R v Wiggins (No 7) defines character as disposition: the aggregate of qualities or moral constitution that distinguishes one person from another, not what others say about them. Good-character evidence under s 110 is therefore about the accused’s actual disposition (e.g. honesty), kept distinct from reputation gossip.
Why is leading good-character evidence a gamble?
Because s 110 is two-edged. Adducing good-character evidence switches off the hearsay, opinion, tendency and credibility rules for that evidence — helpful to the accused — but it also switches them off for the prosecution’s rebuttal, and may expose the accused to cross-examination (with leave, s 112). So opening the door can let in damaging rebuttal that would otherwise have had to clear the tendency rules. It is a deliberate forensic choice.
Can the prosecution lead bad-character evidence whenever it likes?
No. Absent the accused opening the s 110 door, the prosecution cannot lead disposition evidence at large. It must run the tendency gauntlet: significant probative value under s 97 and, because it is prosecution evidence about the accused, the s 101 balance (probative value substantially outweighing prejudice). Character evidence is the one place those rules are switched off — and only because the accused chose to open the door.
How is post-offence conduct like lies or flight treated?
Cautiously. Evidence of lies or flight is sometimes led as ‘consciousness of guilt’, but innocent explanations are common, so it is admissible only on conditions and requires careful jury directions (Edwards v The Queen; Zoneff) to prevent the jury reasoning straight from a lie to guilt. In a problem, flag the conditions and the direction rather than treating the conduct as free-standing proof of guilt.
Exam move
Spot the trigger first: has the accused adduced good-character evidence? If so, s 110 disapplies the hearsay/opinion/tendency/credibility rules for that evidence and for the prosecution’s rebuttal, and s 112 leave is needed to cross-examine the accused on it. Keep character (disposition, Wiggins) distinct from reputation. Bank the contrast with the tendency chapter: absent an open door, prosecution disposition evidence faces ss 97 and 101. Tab the two adjacent strands — the right to silence (s 89 + Jury Directions Act directions) and post-offence/consciousness-of-guilt conduct (Edwards, Zoneff, with its conditions and warnings) — because they appear together in problem questions.
