4. Character Evidence PDF

4 . Character Evidence 4.1 Good Character Evidence of good character can be introduced relative to credibility and or propensity to commit the crime in question Importantly - being of good character in the end of the trial doesn't mean evidence was gi...

4 . Character Evidence 4.1 Good Character Evidence of good character can be introduced relative to credibility and or propensity to commit the crime in question Importantly - being of good character in the end of the trial doesn't mean evidence was given you're of good character - it means that there is lack of bad character evidence 4.1.1 Jury Directions A Vye Direction (under b oth headings, if D testified) is necessary when there is no bad character evidence concerning D R v Aziz (1996) – a defendant of good character should receive a jury direction that: 1. They are entitled to credit in assessing their credibility; and 2. T heir good character is relevant to whether they committed the offence charged. Note: R v. Vy e Van Kien [1991]: evidence of good character may also be taken into account in sentencing A Vye Direction is inappropriate if some serious bad character evidence concerning D is deemed admissible. There are many situations in between however, including where: 1) Bad character evidence is admitted, but it is minor (a long - passed, minor conviction, or ba d character evidence that i sn’t criminal in nature) 2) There is serious bad character evidence on the record, but it is deemed inadmissible. To simplify, you may note the judge has discretion as to whether to deliver a direction, in accordance with Tang Siu Man, in such cases. ⭑ Tan g Siu Man v. HKSAR [1998] 1 HKC 371 (CFA) Ratio Vye Directions need not be strictly followed – test: whether the summing up is ‘ fair & balanced’ . Facts The case concerned a defendant accused of drug manufacture and trafficking. He had a previous conviction for assault when he was 20. Issue - Whether the trial judge, having directed the jury that the accused was a man of good character (despite a previous conviction), was further required to issue a Vye direction on credibility and propensity - The tr ial judge here said that in effect the jury might set the previous conviction aside and treat the D as a person of good character; and mentioned that this supported his credibility, but did not mention anything relative to propensity - Failure to state the s econd wasn’t addressed by counsel in the trial, but formed appeal Held - The CFA essentially held that a degree of flexibility is necessary in such cases: many different sorts of defendants may be involved, with different degrees of character evidence in t heir favour, and the judge may feel the need to tailor their summing up to respond to particular issues that arise during the trial - Overall, the test is whether the summing up is ‘fair and balanced’. - In sum, the CFA found the judge had discretion, and wa sn’t strictly required to issue a Vye ruling on both credibility and propensity - Bokhary dissent: would have followed Aziz – felt this provided a necessary protection 4.1.2 Limits on D’s Evidence Generally, D may present a wide account , e.g., that they have no prior convictions, and they may call witnesses who testify positively to their character D may not go too far into the details, however, e.g., by adducing evidence “of prior creditable specific acts, such as giving to the poor, acting as a hos pital visitor or working in a soup kitchen” – Limit - where something could be prejudicial or irrelevant R v. Scott Redgrave (1981) : the court refused to allow D to introduce evidence of numerous past sexual relationships to testify to his heterosexuality (Case concerns same - sex abuse charges) 4.2 Bad Character 4.2.0 The Defendant’s Shield The Defendant’s Shield – a general rule that prohibits the prosecution introducing evidence of the accused’s bad character to attack their credibility T his protection can be lost in various ways, however – including where the defendant introduces evidence of their good character. In such cases the ‘defendant’s shield’ is lost. - Situations in which the protection is lost in Hong Kong, where the defendant te stifies, are laid out by Criminal Procedure Ordinance § 54(1)(f)(ii - iii) - Where the defendant doesn’t testify, common law rules apply (as we will see, the test is mostly the same, but with one important difference) 4.2.0(a) Criminal Procedure Ordinance – S ection 54(1)(f) Criminal Procedure Ordinance 54 (1) (f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless — (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduc t of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence against any other person charged in the same proceedings; - Section 54(1)(f) : lays out the rule rega rding the defendant’s shield - that if the accused is questioned, Section 54 limits his need to answer questions concerning some (though not all) matters relating to the credit of the accused. - Section 54(1)(f)(i) : deals with similar fact and is designed to allow into the trial evidence of ad conduct on another occasion as evidence of guilt this time. The bad conduct is directly brought in by the prosecution as going to the defendant’s guilt on this occasion. - Section 54(1)(f)(ii) and (iii) : deals with how bad character evidence may be introduced 4.2.0(b) General Remarks Regarding prosecution - Maxwell v DPP (1935) : Even where an exception applies, cross - examination on a previous charge for which there was an acquittal is most likely not admis sible - HKSAR v Chan Hing Chi (1997) : Where the shield is improperly breached, a jury direction should be given; failure to do so is a material irregularity in the tria l Regarding defendant: - The defendant is free to reveal prior convictions during the exami nation - in - chief ­ doesn't breach the shield - the prosecution can only talk about that conviction ­ Why would they do it? To get there first and not be "exposed" - If defendant refers to a specific prior conviction/charge during direct examination, the prosecut ion can then cross - examine about that specific prior – the shield is essentially waved in that context 4.2.1 Section 54(1)(f)(i) – Similar Fact Evidence Criminal Procedure Ordinance 54 (1) (f) [No cross - examination unless…] (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or 4.2.1(a) Zabed Ali Standard HKSAR v Zabed Ali (2003) Facts - D allegedly ended up committing a murder, in the course of a burglary that went wrong - X gave testimony that D told him that he was going to kill someone in revenge for the killing of his father when he was a child; he also said D later said he was just joking - D argued the evid ence should never have been admitted Held - The CFA ordered a retrial – suggesting that, since the underlying claim was that the murder had been part of a burglary gone wrong, the evidence of the previous statement was wrongly admitted as evidence of ‘mere propensity’ - That statement had nothing to do with the case - "mere propensity" ( the previous standard ) The Zabed Ali Standard The argument in favour of this approach has considerable force. On this approach, taking into account the test in DPP v P [1991] 2 AC 447, the question of admissibility should be considered along the following lines. (1) The matters in issue which the prosecution has to prove to establish guilt, having regard to the charge, must first be identified. For this purpose, the def ences open to and any specific defence raised by the accused would be taken into account. However, in the well - known words of Lord Sumner in R v Thompson [1918] AC 221 at p.232: The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice. Obviously, if a fact which the prosecution has to prove is accepted by the defence, it would not be in issue. (2) The evidence the admissibility of which is in question should be fo cused on. (3) The following questions should then be asked: what is the matter in issue to which the evidence is said to be relevant and why, that is, what is the reason for saying that the evidence is probative of that matter in issue? (4) If in answer to those questions, it is concluded that the evidence is relevant to a matter in issue for reasons other than to show mere propensity on the part of the accused to commit the crime in question, that is, it is not mere propensity evidence, th en the test in DPP v P [1991] 2 AC 447 has to be applied in deciding as a matter of law whether it is admissible: whether its probative force in support of an allegation against the accused is sufficiently great to make it just to admit it, notwithstandi ng that it is prejudicial to the accused. It is only where the test is satisfied that the evidence would be ruled admissible as a matter of law. If it is not satisfied, the evidence would be ruled inadmissible. But if in answer to the above questions, i t is concluded that it is mere propensity evidence, then it would be inadmissible on the basis of the exclusionary rule. 1) The matters in issue which the prosecution has to prove to establish guilt must first be identified 2 - 3) Relative to the evidence i n question, it should be asked: what is the matter to which the evidence is said to be relevant and why? ­ How much relevance is there and how prejudicial is it? ­ Where is the balance? is it more prejudicial than probative - inadmissible 4) If it is establis hed that evidence is relevant to show more than mere propensity, the DPP v. P test should be applied: is the probative force of the evidence sufficiently great to make it just to admit it? - Mere propensity - here is some bad thing they did in the past - More than mere propensity - where you can draw a connection between the past bad act & present Exam Outline: (1) Identify the issue which the prosecution has to prove to establish guilt must first be identified (HKSAR v Zabed Ali, Paragraph 26) (2) The Mere Prope nsity Question – Does P just want you think that "they're a bad person" or is there something within the character evidence that more specifically suggest a connection to the present? - DPP v P – Whether its probative force in support of the allegation is s ufficiently great to admit it, notwithstanding that it isn’t prejudicial to the accused (3) How much does it prove and how prejudicial could it be? – If it is more prejudicial than probative – the evidence is inadmissible 4.2.1(b) Mere Propensity Question Makin v AG for New South Wales (1894) Ratio Fundamental distinction - this past bad act that you want to introduce to to show that "this is a bad person" is mere disposition evidence Facts ­ Husband and wife were charged with the murder of a baby, the body of which was found buried in the yard of their house. ­ They had agreed to adopt the baby in return for a payment of a sum of money by the mother of the child. ­ The prosecution produced evidence showing 13 other babies had been found buried in the yards of other houses previously occupied by the defendants and that these babies had also been entrusted to the defendants with payments of small premiums ­ Defendants were both convicted of murder and appealed Issue - Should it be possible to introduce evidence of the past babies Held - If the evidence of previous acts was introduced merely to show disposition, it was inadmissible - If it was used to show more than mere disposition, it could be admitted, if relevant to an issue before the jury - Here the evidence was admitted, as showing design / lack of accident Rule - Fundamental distinction - this past bad act that you want to introduce to to show that "this is a bad person" is mere disposition evidence - Here the 13 dead babies were introduced to show jus t "oh they did these bad things so therefore they did this bad thing" it is to show that there is a modality - The heading in which you show the connection is important! DPP v Boardman (1975) Ratio “The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence” Facts - D was a schoolteacher at a boarding school. He was charged with homosexual activity involving one boy and inciting another boy to commit homosexual activity. D denied the charges and maintained that the boys were lying. - P relied on evidence showing the boys were groomed to participate in the sexual activity in the same way . The teacher was convicted and appealed Held “ if the crime charged is committed in a uniquely or strikingly similar manner to the other crimes committed by the accused, the manner in which the other crimes were committed may be evidence upon which a jury could reasonably conclude that the accused was guilty of the crime charged. The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence .” ⭑ DPP v P (1991) - MODERN Ratio The essential test for admissibility of similar bad act evidence is not striking similarity, but rather the probative force of that evidence Facts - D was convicted of rape and incest against each of his two daughters - The daughters both testified in a combined trial that there was abuse over a long period of tim e, and that D dominated them, threatened them, and arranged abortions for them - Nothing about these facts was “strikingly similar” (i.e. the same precise details) - The defendant argued the two matters should not have been tried together Held - The court ruled that the essential test for admissibility of similar bad act evidence is not striking similarity, but rather the probative force of that evidence - “it is not appropriate to single out ‘striking similarity’ as an essential element in every case in allo wing evidence of an offence against one victim to be heard in connection with an allegation against another … the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committe d a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime ” 4.2.1(c) Prejudice and Relevance ⭑ The Queen v Law Shing - Huen (1989) Facts - Co - accused, Yip and defendant were all involved in a murder - It had been established the defendant was a member of the triad society; there was no explicit suggestion the murder was triad related, however - The prosecution brought in an expert from the police station to testify as to the nature of triad societies, in order to suggest that triad membership had been behind the help the co - accused and Yip had given to the defendant - It had already been established the defendant asked the co - a ccused and Yip to accompany and support him - The court ruled “In introducing the triad evidence, what in effect the prosecution was seeking to do was to establish the propensity of the appellant and his co - accused to resort to violence. This, of course, is impermissible … This evidence was in no way necessary to enable the Crown to prove its case; was irrelevant and substantially prejudicial in nature and its admission constituted an error of law.” - Defendants were charged with drug trafficking - Evidence was a dduced at trial that they were drug addicts - They contended this was prejudicial, as it didn’t go to the question of whether they were drug trafficking Held - The CA agreed, holding the evidence was introduced to illegitimate prejudicial effect - The court observed the case would have been different if the primary issue was possession, however R v B (1997) Facts - D was charged with indecent assault on two of his grandsons; he denied the allegations - P brought evidence he possessed magazines depicting homosexual activities Held CA held the magazines at most suggested propensity and were hence inadmissible. R v Dolan (2003) Facts The prosecution sought to introduce evidence of the defendant’s ‘bad temper’ as background evidence in a charge he had murdered his young son Held CA rejected this evidence - basing its rejection in part on the fact he had been shown to have a bad temper only relative to inanimate objects, and not at a time proximate to the killing 4.2.1(d) Past Uncharged A cts HKSAR v Kwok Hing Tony (2010) – Past uncharged acts can be admitted to show 1) ‘Setting and context in which the event occurred’ 2) ‘To explain D’s confidence in repeating the offence 3) To explain unusual acts on the part of the complainant (such as lack of su rprise or fear, or lack of complaint, or acquiescence) 4) To explain why the complainant is unable to recall the specific date and details of the offence charged - Shouldn’t be admitted if it is more prejudicial than probative - If it is admitted, the judge should instruct the jury that the standard of proof relative to such uncharged acts is beyond reasonable doubt, and (if relevant) that “they may not infer from such evidence that the defendant had committed similar offences, or that he is the sort of person with a propensity to commit the offence” 4.2.1(e) The Problem with Collusion R v H (1995) – The judge should decide on admissibility on a presumption of truthfulness - In other words, the issue of potential collusion, i.e. whether or not a particul ar account was fabricated by multiple individuals conferring together, should be for the fact - finder to consider ­ Collusion - multiple individuals getting together to fabricate similar stories E.g., a case where D is charged with problematic act, many witnesses come forward to say they have done similar acts before - later discovered that the witnesses were close friends to V ­ Rule says that this would not give rise to evidence should be excluded - it would be up to factfinder to decide the potential of collusion - The judge should highlight the potential of collusion to the fact - finder, however - Exception to general rule: If the judge considers the likelihood of collusion so high that no reasonable jury could accept the evidence as free from collusion, then the judge should exclude it 4.2.1(f) Background Evidence “It is admitted in order to put to the jury … the general picture about the characters involved in the action and the run - up to the alleged offence. It may or may not involve prior offences: if it does so this is because the account would be, as Purchas LJ says (in R v Pettman (unreported), 3 May 1985, CA) ‘incomplete or incoherent without them. It is not so much that it would be an affront to common sense to exclude the evidence, rather than it is helpful to have it and difficult for the jury to do their job if events are viewed in total isolation from their history.’” ~DJ Birch, “Case Comment on Stevens” (1995) “[C]riminal charges cannot be judged in a factual vacuum. A rational assessment requires that a jury receive evidence describing, in some detail, the context and circumstances in which the offence charged is said to have been committed” (from So, 332, citing UK case law) 4.2.2 Section 54(1)(f)(ii) – Defendant’s Assertion C riminal Procedure Ordinance 54 (1) (f) (ii) [No Cross - examination unless…] (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputati ons on the character of the prosecutor or the witnesses for the prosecution; or 4.2.2(a) Method 1 – Through D’s Evidence According to this Section, the shield can be lost where D asserts good character : - Through their own evidence - By calling witnesses - Through cross - examining prosecution witnesses The shield isn’t lost in other circumstances where D raises good character in response to P questioning - It has to be introduced with active intention of D’s strategy - The prosecution cann ot provoke it R v Thompson (1966) Ratio Ds do not put character in issue if they merely explain their conduct on a particular occasion Facts - D was charged with office - breaking and motor theft - In explaining why he ran away from a police officer, he said in chief that he had been previously fined for assault - He thought he would be asked in cross - examination why he ran away, and he planned to say he thought he would be arrested for that. - The judge said that during cross - examination, he must say what t he fine was for and that all his many previous convictions must be put to him Held On appeal, the Court of Appeal allowed the accused's appeal against conviction. The mention of one previous conviction for a specific purpose did not let in the other conv ictions R v Redd (1923) Ratio Voluntary statement as to character by one of the accused's witnesses do not amount to evidence of good character Facts - the appellant was tried upon a charge of breaking and entering a house and stealing the sum of money. He was found guilty and sentenced to seven years' penal servitude. - At the trial, the appellant called a witness who voluntarily made statement about the appellant's good character. The prosecution requested to cross - examine the witness about the app ellant's real character. - The prosecution proceeded to ask the witness whether he was aware that the appellant had been convicted eleven times, including two convictions in which the appellant had been sentenced to terms of penal servitude. - The witness replied that he was not aware of that fact. No attempt was made by the prosecution to prove the previous convictions of the appellant. Issue Whether the evidence of the appellant's bad character emerged during the cross - examination of the witness was admissible? Held - The CA allowed the appeal and found that A did not establish a good character by himself. - Although, the witness made a statement as to his good character. Also, in the present it was possible to assume that jury was influenced by P’s question put to the witness. - Even though the witness had no knowledge about the appellant's previous conviction s, the jury would assume that these questions referred to the genuine facts. - CA decided that there were sufficient grounds to quash conviction. “ Character is indivisible ” – D cannot assert one part of his good character without putting into question the whole of his character. - R v Samuel (1956) : D testified he was the kind of person who turned in lost property; his prior convictions were then allowed in as evidence to im peach him as he had put his character at issue - R v Tsang Sit Keung (1989) : D was facing an unlawful trafficking charge; the court allowed him to be cross - examined on prior convictions for blackmail, assault, and lending at excessive rates, on the grounds that the submissions he had made on character, while limited, had put his character at issue on the whole 4.2.2(b) Method 2 – Imputation of Witnesses Imputation: “ a charge or claim that someone has done something undesirable; an accusation. ” Criminal Proc edure Ordinance 54 (1) (f) (ii) [No cross examination unles…] (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or R v Westfall (1912) Ratio The imputation must be against a prosecution witness and not against a person, other than a deceased victim, not called as witnesses Facts & Held - D complained about his treatment by the magistrate and the manner in which the police who had detained him o perated - The Court of Criminal Appeal found this didn’t open hi up to cross - examination on character because neither the magistrate below nor the relevant police officers were the P/witnesses for the P - Person imputed has to be witness of the case for this rule to come into effect - D also accused the constable who arrested him, who was a witness, of violence in the process of arrest - The Court found this was not an attack on “character” either, however, rather merely an attempt to explain the background f acts relating to the case in question - D also accused the prosecutor, in cross - examination, of being a habitual drunkard; - The Court did not consider this enough to open up the defendant to cross - examination, however, because it did not understand this accus ation to arise from ‘the nature or conduct of the defence’ Selvey v DPP (1970) – The House of Lords set out some guidelines - IF what is said is no more than a denial of the charge, then the section will not be invoked. - In rape cases, the accused can claim consent without placing himself in peril because this is an issue raised by the prosecution alone. - Cross - examination of the accused as to character is permitted when an attack on the character of the prosecution and his witness are cast. To show their unreliability as witnesses - Cross - examination of the accused as to his character is also permitted when such an attack is necessary to enable the accused to establish his defence . - Selvey v DPP (1970) : D was charged with sexual offence of a 21 - year - old man. D denied the charged and claimed V told him he had allowed someone else to do the same act on him for $1. The judge considered this an attack on the complainant’s character and as a result this opened the appellant up to cross - examination as to his character – House of Lords upheld conviction - R v Rouse (1904) : If a defendant adds to their denial of an al legation against them the claim that the one making them claim is a liar, that is not enough to strip them of the shield - maybe they are going a little far, but it is under provocation. - R v Hudson (1912) : Defendant’s counsel questioned whether prosecution witnesses had in fact committed the theft in question; the court found the shield was thereby lost - R v Clark (1955) : Defence suggested a written statement signed by the defendant confessing to the crime was concocted by the police officer, and signed by t he defendant because he was frightened. The Court finds this goes beyond denial and amount to an attack on the character of prosecution witnesses, allowing cross - examination of the defendant. - Mui Yuen v R (1979) : The defendant may contend that what prosec ution witness say is untrue without losing the shield - R v Tong Cho Yan (1982) : Court found that D suggesting that police officers were deliberately lying was beyond denial - R v Grout (1909) : The prosecution cannot lay a trap designed to strip the shield fr om the defendant. - R v Jones (1909) : If the defendant makes an attack upon the character of a witness for the prosecution that has been drawn out through cross - examination, they will not lose the shield. 4.2.3 Section 54(1)(f)(iii) – Cut - Throat Defences Criminal Procedure Ordinance 54(1) (f) [No cross examination unless…] (iii) he has given evidence against any other person charged in the same proceedings; Imputations on the character of someone who is not a prosecution witness does not result in loss of the shield, unless the other person is a co - defendant. Murdoch v Taylor (1965) Ratio The test to be applied when considering whether evidence had been giv en ‘against’ a co - defendant was, per Lord Donovan, ‘that “evidence against” means evidence which supports the prosecution’s case in a material respect or which undermines the defence of the co - accused’ Facts - D was jointly charged with a second defendant with receiving stolen property. - D gave evidence that co - D had been in sole control & possession of a box containing the stolen property. - The trial judge ruled that counsel for the co - defendant was entitled to c ross - examine the defendant about his previous convictions as he had lost his shield under s 1(f)(iii). Held The trial judge had no discretion whether or not to allow a defendant to be cross - examined once he had given evidence against a co - defendant. In ot her words, once s 1(f)(iii) had come into play, the co - defendant had a right to cross - examine with regard to character evidence. ⭑ R v Ng hang - yee (1987) Ratio The court noted the judge should be clear to instruct the jury such information was being introduced on the issue of credibility only Facts - D1 & D2 faced charges of possession for the purpose of unlawful trafficking - D1: I am a drug addict and D2, who rents this place, is my supplier - D2: D1 and I were once flat mates; I moved out because he is a drug addict - Fact that he said he moved out that suggested D1 was involved in the crime in question Held The court ruled that D2’s statement about D1 did indeed fall under the exception – i.e. it was ‘evidence against’ – such that D1’s counsel could cross - examine D2 on D2’s past convictions ⭑ R v Varley (1982) – Kilner Brown J: 1) evidence against means evidence which supports the prosecution case in a material respect or which undermines the defence of the co - accused; * 2) where it is estab lished that a person jointly charged had given evidence against a co - defendant, that defendant had the right to cross - examine the other as to previous convictions, and the trial judge had no discretion to refuse an application to do so; 3) evidence against a co - accused might be given either in chief or during cross - examination; 4) it was to be objectively decided whether the evidence supported the prosecution case in a material respect or undermined the defence of the co - defendant, hostile intent being irrelevant; 5) that, where consideration had to be given to the question whether the co - accused’s defence was undermined, care had to be taken to see that the evidence was clearly to that effect; inconvenience to or inconsistency with the co - accused’s defence was not of itself sufficient; * 6) that a mere denial of participation in a joint venture was not of itself enough to rank as evidence against a co - defendant other than in special cases; and * 7) that, where one defendant asserted a view of a joint venture which was directly contradicted by the other, that contradiction might be evidence against the co - defendant. * Issues with Cut - throat Defences - When evidence of bad character of a defendant is admitted in the above sorts of situations, it only goes to credibility, not propensity - Where there are two or more co - D’s, who are jointly accused but want to argue the other party was responsible, they may want to raise evidence of each other’s past bad actions as evidence that the other party committed the crime (and hence they did not) (i.e., to introduce that evidence as similar fact evidence) - Regina v. Randall [2003]: stipulates that the judge below was wrong, in such a situation, to hold that the evidence adduced by one defendant of the other’s violent crimin al record went only to credibility and not to propensity D’s who make cut - throat defences are opened up for cross - examination on their past character - The judge maintains discretion to exclude the P’s cross - examination as more prejudicial than probative, bu t cannot exclude cross - examination/evidence from the co - D - In some cases, issues of serious prejudice to co - D’s may arise in these contexts ; They must either (i) issue a carefully worded jury instruction; or (ii) in the last resort, order separate trials (see Lobban v. Reginam [1995] 2 CR App R 573, PC) 4.2.4 Common Law Restrictions Section 54(1)(f) applies when D testifies, but if they don’t, common law rules apply Under common law rules – bad character evidence is only admissible if: 1) Similar fact evidence 2) The accused has put his character in issue 3) It is adduced by a co - defendant in a cut - throat situation Rex v. Butterwasser [1948] : Prosecution introduced evidence of defendant’s bad character after appellant’s counsel attacked witnesses for the prosecution; defendant did not testify however; here, the introduction of that evidence was found inappropriate 4.2.5 Jury Instructions 4.2.5(a) Instructions where Criminal Record Cross - Examined Principle : Where a defendant has been cross - examined on his criminal record, the judge must instruct the jury as to how to approach this evidence ⭑ HKSAR v. Chan Hing Chi [1998] Standard Instructions: “you must not assume that a defendant is guilty, or that he is not telling the truth, because he has previous convictions. Those convictions are not relevant at all to the likelihood of his having committed the offence. They are relevant only as to whether you can believe him. It is for you to decide the extent to which, if at all, his previous convictions helped you about that.” an instruction may be added where appropriate suggesting “The defendant tells you that he (pleaded guilty on his previous court appearances) … If that be so … it must follow that his previous convictions, do not indicate that he has lied on oath. You may therefore think that it does not assist the prosecution on the issue of the defendant’s credibility …” The court noted the prosecution has a duty to point out such a mistake to the judge (defence counsel had a right to do the same) 4.2.5(b) Jury Instructions Following Cut - Throat Defences When two D’s give cut - throat defences, the judge does not generally have to instruct the jury as to the fact they might be self - interested in doing so - If you have one defendant in a trial and a co - defendant who got a deal - then the jury instruction should reflect this information - where you have two defendant - that type of instruction shouldn't be given. - Giving instruction against one would prejudice the other Instructions should be along the following lines: “Each accused is presumed innocent unless and until proven beyond reasonable doubt to be guilty. So the thought that he may have been more interested in getting himse lf acquitted than in telling the truth should not form any part of your thinking when deciding whether to acquit or convict him. It is, however, something which you may take into account when deciding whether you feel sure that what he says against a co - ac cused is true. All of this, too, is simply a part of the law that if there is any reasonable doubt as to an accused’s guilt, then he must be acquitted.” ~Law Chung Ki & Another v. HKSAR [2005] 4 HKLRD 499 (CFA)