Can My Criminal History Be Brought Up During a Trial or Defended Hearing?

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Do you have a criminal record?

If you have pleaded not guilty to a criminal offence and your case is heading towards a trial in the District or Supreme Court, or a defended hearing in the Local Court, you may be concerned about the fact-finder – whether that be the jury in the higher court or magistrate in the Local Court – may view you negatively due to something you did in the past.

The good news is that a person’s criminal history is generally not admissible during a trial or hearing, and will normally only be taken into account if you are found guilty and your case proceeds to a sentencing hearing, which is when the magistrate or judge hears a range of matters about the offence itself, about your past and the present circumstances, before determining the appropriate penalty.

That said, there are certain limited situations whereby any relevant criminal history you have may be admissible at trial or hearing.

Here’s an outline of the rules in that regard.

Rules of Evidence

The Evidence Act 1995 (NSW) outlines the  rules regarding the admissibility of evidence in both criminal and civil trials in NSW.

Under the Act, the criminal history of an accused is generally not admissible during a criminal trial unless it is validly admitted as:

  • Tendency evidence –  which is evidence of prior conduct tendered to prove that because a person acted in a particular way (or had a particular state of mind) in the past, that person, on an occasion relevant to the proceeding, acted in that particular way (or had that particular state of mind). Eg. prior instances of Person A getting violent when drunk being used at a criminal trial to prove they  physically assaulted a man at a bar after drinking.
  • Coincidence evidence – which is evidence of a prior event  put forward to note that it is a substantially and relevantly similar event to one connected to the proceeding. Eg. Person A has prior convictions for hacking computer systems in the 90s under the hacker name “ELITE99 and is currently on trial for hacking offences relating to the actions of an pseudonymous hacker named “ELITE2020”.
  • Character evidence – which is evidence of “the aggregate of qualities which distinguish one person from another, or the moral constitution of a person; it embodies the permanent and unchanging pattern of the nature of the individual concerned” [Kirby J in Melbourne v The Queen (1999)]. Eg. Person A’s mother gives evidence at trial that he was a kind and quiet boy growing up, however the prosecution raises in cross-examination that he had a lengthy history of juvenile offending.

The Tendency Rule

The admissibility of tendency evidence is outlined under section 97 of the Evidence Act 1995 (NSW), which states that evidence must not be admitted for a tendency purpose in a criminal trial, unless:

  1. The prosecution has given reasonable notice to the defence about producing it;
  2. The proposed evidence has significant probative value (i.e is significantly relevant to the facts in issue), and
  3. That value substantially outweighs any unfair prejudice that may be caused to the defendant by its admission.

The “significant probative value” of the evidence will be assessed by considering factors such as:

  • The number of occasions of prior conduct relied on: RHB v The Queen
  • The time gap between the conduct: McPhillamy v The Queen
  • The degree of similarity between the conduct: R v Fletcher
  • The degree of similarity of the circumstances in which the conduct took place, particularly if it is possible to establish a pattern of behaviour, or even a modus operandi, in those circumstances: R v Milton
  • Whether the tendency evidence is disputed: AE v R

Section 97A of the the Evidence Act 1995 (NSW) notes that in cases of child sexual offences, it is presumed that the following will have significant probative value:

  • Tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest).
  • Tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.

The Coincidence Rule

Identical in wording to the previous rule, the admissibility of coincidence evidence is outlined under section 98 of the Evidence Act 1995 (NSW), which states that evidence must not be admitted for a coincidence purpose in a criminal trial, unless:

  1. The prosecution has given reasonable notice to the defence about producing it;
  2. The proposed evidence has significant probative value (i.e is significantly relevant to the facts in issue), and
  3. That value substantially outweighs any unfair prejudice that may be caused to the defendant by its admission.

The “significant probative value” of coincidence evidence will be assessed by considering factors such as the striking similarities between the two events as well as any underlying unity, system or pattern (R v Fletcher).

Character Evidence About The Accused

Section 110 of the Evidence Act 1995 (NSW) outlines the rules regarding admitting character evidence about the accused at trial.

Generally, evidence which attacks the character of the accused is not admissible as evidence, except when admissible under the tendency or coincidence rules.

However, section 110 notes that if the defence admits evidence of good character about the accused, the prosecution is allowed to rebut this evidence of good character by admitting bad character evidence.

For example, if a defendant is on trial for social security fraud, the prosecution would generally not be able to raise the defendant’s prior history of car theft to show that they are a person of bad character. However, if the defence at trial has a witness which describes the defendant as an “honest person who has always done the right thing” they may be able to mention the history of car theft in cross-examination to rebut the good character evidence.

Jarryd Bartle

Jarryd Bartle is an Associate Lecturer in Criminology and Justice Studies at RMIT University and a consultant for the Bridge of Hope Innocence Initiative, which investigates claims of wrongful conviction and advocates for systemic reform to protect against miscarriages of justice.

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