ACCUSED AS A WITNESS

The choice to give evidence

To give evidence at the trial it must be given as a witness. The prosecution cannot make a negative comment if the accused decides not to give evidence. However the judge may be able to comment in certain situations.

If the accused decides to give evidence at their own trial they can be questioned on any matter (as long as it is relevant, see RELEVANCE AND ADMISSIBILITY) even about things which are incriminating.

The accused has a right to remain silent (see PRIVILEGES). Therefore they must choose either to give evidence or not at all.

Bad and good character evidence

In general the accused has the right not to have evidence of their bad character brought forward by the prosecution. There are three situations under the Evidence Act in which bad character evidence can be brought forward.

1. Where prior convictions have relevancy to the current offence (See PROPENSITY, TENDENCY AND SIMILAR FACT EVIDENCE).
2. Where the accused has put forward evidence of their own good character or in some way referred to the bad character of a prosecution witness, the deceased victim or the prosecutor.

• Good character evidence is relevant to the credibility and likelihood of committing the offence in question by the accused.
• It is not good character evidence simply where the accused answers a question in the negative about bad character.
• Good character may be shown by facts relating to charity work.
• Bad character of the prosecutor, one of their witnesses or the deceased victim is given where the evidence either reflects, impairs or destroys their character and is not denial of prosecution’s case itself.

3. Where evidence against co-accused is given by accused

• It is to be decided objectively whether evidence has been given against the co-accused.
• The accused’s motive is irrelevant.
• To be another’s co-accused the offence that both are charged with must be materially the same.

In practice the prosecution must ask the judge before they bring forward bad character evidence. The judge will consider several factors in deciding whether such evidence can be brought. The judge will also tell the jury that bad character evidence cannot be used to determine guilt but rather is relevant to credibility of accused.

Prior determinations

Evidence of an acquittal of a prior charge cannot be brought as evidence in a civil trial. Nor can evidence of a previous conviction be brought in a civil trial.

See also COMPETENCE AND COMPELLABILITY