West Law Report

Admission of relevant bad character evidence

From The TimesMay 16, 2008

Admission of relevant bad character evidence
Court of Appeal, Criminal Division

Published May 16, 2008

Regina v Nguyen

Before Lord Justice Dyson, Mr Justice Maddison and Sir Richard Curtis

Judgment March 18, 2008

Where the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge, that could not have such an adverse effect on the fairness of the proceedings that the court ought not to admit such evidence.

The Court of Appeal, Criminal Division, so held in a reserved judgment when dismissing an appeal by Thu Van Nguyen against his conviction on October 2, 2006 in the Central Criminal Court, before Judge Goddard, QC, and a jury, of murder.

Mr Edward Rees, QC, assigned by the Registrar of Criminal Appeals, for the defendant; Mr Simon Denison for the Crown.

LORD JUSTICE DYSON said that on two separate occasions in December 2005 the defendant had been involved in incidents of “glassing”. On the second occasion the victim had died the next day.

The Crown was granted leave to adduce evidence of the first incident as evidence of bad character under section 101(1)(d) of the Criminal Justice Act 2003 on the basis that it was relevant to an important matter in issue between the defendant and the prosecution, namely, the question whether the defendant had a propensity to commit offences of the kind with which he was charged: see section103(1)(a). The defendant was convicted.

On appeal, it was submitted that that ruling was wrong because the Crown had made an informed and deliberate decision not to charge the defendant with the earlier assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. It was argued that there had to be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under section 101(1)(d) and that the admission of the previous assaults was unfair.

Their Lordships did not accept that the mere fact that the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge could, of itself, have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The premise on which the appeal was based was wrong; accordingly, the appeal would be dismissed.

Solicitors: Crown Prosecution Service, Old Bailey Trials Unit.

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R v LOWE

Posted in character, Jury, Res Gestae, s101 Criminal Justice Act, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 03/01/2008

Divisional Court
Dyson LJ, Henriques J
December 14, 2007

Bad character – Jury directions – Res Gestae – Unsafe convictions – Failure to direct jury – Appropriate bad character direction – s. 101(1)(c) Criminal Justice Act 2003 – s. 101(1)(d) Criminal Justice Act 2003

FACTS

The appellant (L) appealed against a conviction following trial by jury for rape. L had been in a relationship with his victim (V) and they had a young child together. V alleged that L had twice forced her to have sexual intercourse. At trial the Crown applied for leave to adduce bad character evidence and attached to the application a copy of an earlier statement made by L.

The judge granted the application pursuant to the Criminal Justice Act 2003 s. 101(1)(c) and s. 101(1)(d). Evidence was allowed concerning four alleged examples of L’s previous violent and aggressive behaviour. L addressed all four allegations, mainly by way of denial. In his summing up the judge included the incidents in his narrative of the evidence together with L’s responses.

However he decided not to bring the jury back for a further specific direction as to how to approach and utilise the evidence adduced pursuant to the bad-character ruling as the ruling had served simply to add to the evidence as to the history of the relationship. L submitted that the judge wrongly regarded each of the incidents as in effect part of the res gestae so that their admission did not call for specific directions. He further contended that the failure to give a direction to the jury as to their approach to the bad character evidence amounted to a material irregularity imperilling the safety of the conviction.

ISSUE

Whether the judge’s failure to give an appropriate direction to the jury in relation to the approach that should be adopted when considering evidence adduced of L’s bad character rendered the resulting conviction unsafe.

HELD (appeal allowed)

The judge was in error and there should have been

  1. a bad-character direction encompassing particular elements such as identification of the incidents, evidence of which had been adduced pursuant to L’s bad character ruling;
  2. a direction that, with respect to each incident, the jury should decide whether the facts as alleged by the Crown had been proved so that they were sure of them to the criminal standard of proof;
  3. a direction that, with respect to any incident not so proved, the evidence should be put aside and accorded no significance;
  4. a direction as to the potential significance of any incident that had been proved, in the instant case that the incidents might throw light on the relationship between V and L and thus bear upon the potential for consent on her part to his sexual advances;
  5. a warning against necessarily according the incidents any significance if an alternative construction served to cast doubt on the construction contended for by the Crown and also against attaching too much weight to the evidence.

The original application was unspecific and of a “scattershot” nature invoking the full, long witness statement without condescending to the specifics. The ruling was similarly non-specific. Had the identification of the bad character evidence been specific from the outset, then minds would more readily have been focused on what was required by way of jury direction and the matter would not have been for consideration as an afterthought. The bad character direction rendered the conviction unsafe and the conviction was quashed.

Julia Smart (instructed by Criminal Appeal Office) for the appellant. J Dawes (instructed by Crown Prosecution Service) for the respondent.