Page 430 - Magistrates Conference 2019

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81. Defendants frequently adduce previous convictions or cautions under section 101 (1) (b) which are not in the
same category as the offence alleged, in the hope of obtaining a good character direction on propensity from the judge.
As we have indicated, we have our doubts as to whether the average juror needs to hear judicial endorsement of this
kind to understand the significance of the point made, no doubt with some force, by the defence advocate.

82. In any event, a defendant with previous convictions or cautions to his name has no entitlement to either limb of
the good character direction. It is a matter for the judge's discretion. The discretion is a broad one of the "open textured
variety" referred to in Aziz at page 489A whether to give any part of the direction and if so on what terms. It is not
narrowly circumscribed. The judge will decide what fairness dictates. Fairness may well suggest that a direction would
be appropriate but not necessarily. Where a judge has declined to give a modified good character direction to a
defendant in this category, this court should have proper regard to the exercise of discretion by the judge who has
presided over the trial.

(f) Bad character adduced under section 101 relied on by the prosecution

83. Where the defendant has no previous convictions or cautions, but evidence is admitted and relied upon by the
Crown of other misconduct, the judge is obliged to give a bad character direction. S/he may consider that as a matter of
fairness they should weave into their remarks a modified good character direction. However, there will be occasions
when this will undoubtedly offend Lord Steyn's absurdity principle. This must therefore be left to the good sense of
trial judges. This too is a broad discretion. Where a judge has declined to give a direction or has given a modified good
character direction to a defendant in this category, this court should have proper regard to the exercise of discretion by
the judge who has presided over the trial.

84. Where the defendant has previous convictions and bad character is relied upon it is difficult to envisage a good
character direction that would not offend the absurdity principle.

(g) Bad character adduced by defence under section 101 and not relied on by the Crown

85. That leaves the category of defendants who have no previous convictions but who admit reprehensible conduct
that it is not relied on by the Crown as probative of guilt. Lord Steyn in Aziz concluded that a judge has a residual
discretion but prima facie, the judge should give the good character directions, unless it would defy common sense to do
so. It is common ground the discretion remains despite the changes effected by the CJA. The question for this court is
whether the nature of the discretion has changed. In Aziz Lord Steyn described the discretion as "narrowly
circumscribed" rather than open textured.

86. We are satisfied that, in the light of the changes brought about by the CJA, the discretion is now of the open
textured kind. As we have endeavoured to explain, the whole landscape in relation to evidence of character has changed.

87. First this is now evidence which can only be adduced, as bad character evidence, pursuant to the provisions of
section 101. Second, the evidence may be potentially probative of guilt (as the evidence of bad character was in many of
the previous decisions put before us) but no application is made by the Crown to rely upon it under section 101. If Mr
Blaxland's second submission was correct, that would mean the judge is then obliged to give a good character direction
or that the judge has a narrowly circumscribed discretion to decline to do so. Such an approach, for the reasons already
given would be wrong in principle and might have an unfortunate consequence. Prosecutors are expected to use their
discretion fairly and proportionately in deciding whether or not to make an application under section 101. It would be