Good character again

Once again, see Index, the topic of the significance of absence of a good character direction has concerned the Privy Council: Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006). Their Lordships indicated that a forthcoming case also concerns this subject: Bhola v The State (Trinidad and Tobago) [2006].

Gilbert makes the point that there is a duty on counsel for the defence to ensure that the trial judge understands that a good character direction is sought: para 11, citing Thompson v R [1998] AC 811 (PC). Omission of the direction requires attention to two matters: was the trial thereby rendered unfair to the accused, and did the omission render the verdict unsafe? (citing for these, Teeluck and John v The State [2005] UKPC 14 at para 39, blogged here, 1 April 2005).

Whereas it may have seemed on some readings that the law requires the direction to be given as a matter of course, in Gilbert it was emphasised that the requirement is that the direction should "normally" be given (para 15, citing R v Aziz [1996] 1 AC 41). That is, the issues of fairness and effect on the result are examined in the particular circumstances of each case. That, of course, is obvious for the result point, and Gilbert makes it clear that fairness is also a matter to be determined on the particular circumstances. There are, thus, no hard or inflexible rules about whether fairness requires the direction, rather the nature of the issues in each case must be examined: para 20, citing Lord Bingham in Singh v The State [2005] UKPC 35 at para 14.

Here, then, the circumstantial evidence of guilt was substantial (para 18), and the accused’s good character was wholly outweighed by the nature and coherence of the circumstantial evidence (applying a phrase used by Lord Hope in Balson v The State [2005] UKPC 6, para 37). The absence of the good character direction therefore had no effect on the fairness of the trial or on its result.

One must observe, with respect, that the question of fairness, which is a procedural matter, will be swamped by the question of result, which is an evidential matter, unless the two are kept distinct. Certainly, the Privy Council here, at para 19, noted that the trial was fair in all other respects, even being "unduly fair" [sic] in that the judge refrained from commenting on the accused's failure to give evidence. Nevertheless, the risk remains that the impression will be given that unfair procedure may be cured by strong evidence, which is undoubtedly not what the Privy Council intended to convey.

The difficulty is that a good character direction is aimed at assisting the jury to evaluate the weight to be given to the evidence, and here it was the complainant's evidence. In fairness terms, the direction is concerned with the avoidance of bias. What is relevant to bias is, not the strength of the prosecution evidence, but whether the absence of the direction put the accused at a disadvantage. On the facts of Gilbert, where the accused was a minister of religion, his previous good character was probably taken for granted by the jury. Therefore, it could safely be concluded that there was no unfairness to him occasioned by the absence of a good character direction.