The Schleswig-Holstein question of the criminal law finally resolved?: an examination of South Australia's new approach to the use of bad character evidence in criminal proceedings

Abstract

The Evidence (Discreditable Conduct) Amendment Act 2011 (SA) came into operation on 1 June 2012. The Act makes important changes to the admission and use of evidence of bad character in criminal proceedings. The new Act is intended to clarify and refine what has long proved to be a complex and confusing area of the criminal law. This article first explains the context of the new Act by outlining the history of the use of bad character evidence (including the particular types of bad character evidence; propensity evidence, similar fact evidence and context or background evidence) in the Australian common law. The article does this because the new Act is influenced by the common law. The article then compares and contrasts the common law with the new Act and its initial judicial interpretation, while conducting a critical analysis of the new Act. This article notes that the operation of the new Act rests on two assumptions, first, that evidence of bad character can be adduced in wider circumstances than the current Australian common law provides without unfairly prejudicing the accused and, secondly, that juries can understand and apply judicial directions as to the appropriate use of bad character evidence, including the use of judicial directions for limited purposes. Both of these assumptions have been often doubted. This article examines the two assumptions, referring to research about jury decision making, and concludes that they are both sound. This supports the approach taken by the Act, in which bad character evidence can be properly used in somewhat wider circumstances than the common law would allow. Finally, this article considers the intended operation of the new Act and asks whether it is likely to prove successful in bringing some semblance of clarity and order to this notoriously difficult area and justify the confidence expressed in it by the South Australian Attorney-General and resolve what he aptly described as the Schleswig-Holstein question of the criminal law.