In sexual assault matters, an accused may seek to present evidence of their “good character” during proceedings, either at trial or during sentencing. This typically involves testimony from colleagues, family and friends that can attest to the accused’s positive reputation and nature. The treatment of good character evidence in sexual assault cases varies across different jurisdictions and presents distinct challenges compared to other criminal matters.
What is Good Character Evidence?
Good character evidence encompasses testimony or documentation that establishes an accused person’s positive reputation within their community, demonstrates their moral standing or evidences their clean criminal record.
In trials or hearings, good character evidence serves two primary functions:
- To suggest that a person of good character is less likely to have committed the alleged offence; and
- To enhance their credibility, meaning they are more likely to be telling the truth if they give evidence in trial.
Evidence of good character is not a defence in of itself, but it can be persuasive evidence in determining guilt or innocence. However, trial judges must provide careful directions that juries cannot simple conclude someone of good character cannot commit offences because of their good character.
If an accused chooses to raise good character at a trial or hearing, a prosecutor is entitled to raise any bad character evidence in their possession in reply.
Australian courts have typically recognised the right of an accused person to present character evidence as a fundamental component of a fair trial. The underlying principle holds that an individual’s lifetime of good conduct should be considered when assessing their culpability for offences, including in alleged sexual assault matters.
Good Character Evidence in Sexual Assault Trials
Good character evidence can be particularly important in sexual assault trials because these types of matters often involve a jury assessing the word of a complainant against the word of an accused. Even if a jury thinks an accused is probably guilty, if they are not sure and think there is a reasonable possibility that an accused’s denials made under oath at trial are true, they must return a verdict of not guilty. Good character evidence can bolster the credibility of a defendant’s denials under oath, and also support in raising doubt about whether the acts actually occurred as alleged.
Good character witnesses can give evidence about different aspects of an accused and it can be important to carefully consider who is called at trial. Some of the most effective good character witnesses in sexual assault trials can be current or ex-partners who can speak of their experiences with an accused’s respectful behaviour in intimacy. Other useful witnesses can include good friends that can speak to an accused’s honesty and integrity and family members or close family friends that have known the accused for most of their life.
Good Character Evidence in Sentencing for Sex Offences
NSW has implemented the most significant restrictions on good character evidence through Section 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Courts cannot consider good character or lack of previous convictions as a mitigating factor when sentencing for child sexual assault offences if these factors assisted in committing the offence.
For example, a teacher who allegedly sexually assaulted a student (under the age of 16) cannot benefit from good character evidence based on their previously good teaching records, as this trusted position enabled the offending. The restriction applies to sexual offences against children under 16 and operates only at sentencing, not during the trial.
Western Australia maintains a traditional approach to good character evidence, with no specific statutory restrictions on character evidence in sexual assault cases. Individuals may generally present character evidence using the same principles that apply to other criminal offences, with courts retaining broad discretion over admissibility and weight. However, WA courts can exclude evidence where its prejudicial effect outweighs its probative value, providing authority to limit character evidence in appropriate circumstances.
The ACT position is more moderate with respect to good character evidence in sex offences. For sex offences against children s34A of the Crimes (Sentencing) Act 2005 provides that the court must not reduced the severity of a sentence it would otherwise impose for good character, to the extent that their good character enabled them to commit the offence. This may apply, for example, to teachers, the clergy or sports coaches.
Should you or someone you know be charged with an offence which will or may involve a sentence hearing, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640) or Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
