12.35 Sections 104 and 110 of the uniform Evidence Acts both operate only in criminal proceedings and both contain reference to an accused leading evidence of good character.
12.36 Section 104(4)(a) permits a court to consider granting leave for the prosecution to cross-examine a defendant on credibility when the defendant has adduced evidence that tends to prove that he or she is a person of good character.
12.37 Section 110(1) excludes the operation of the hearsay, opinion, tendency and credibility rules with respect to evidence ‘adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character’. Section 110(2) and (3) then excludes the operation of those same rules with respect to rebuttal evidence and cross-examination that seeks to challenge evidence of a defendant’s good character. The effect of s 110(2) and (3) is to limit the prosecution’s rebuttal evidence to the same features of character as were raised in evidence adduced by the defendant.
12.38 The overlap of these provisions and the different functions of the provisions has been noted. There is an inconsistency in the conditions imposed by s 104(4)(a) with respect to cross-examination of a defendant on credibility, and those imposed under s 110 on the admissibility of evidence to rebut good character evidence adduced by a defendant. For example, in both instances leave is required to cross-examine the defendant. However, s 104 permits cross-examination where evidence has been led which ‘tends to prove’ the defendant is of good character, while under s 110 the prosecution may cross-examine the defendant only if the defendant has adduced evidence with the positive intention of proving that he or she is a person of good character. In addition, cross-examination of a defendant under s 110 must respond as a ‘mirror image’ to the good character evidence adduced by the defendant. Section 104(4)(a) does not appear to be confined in this way.
12.39 Further, cross-examination under s 104 must satisfy the requirements of s 103—it must be evidence of ‘substantial probative value’. That requirement is not laid down in s 112, the leave provision applying in relation to s 110.
12.40 In DP 69 the Commissions noted that in practice, the interaction of these provisions is a source of confusion and uncertainty. The Commissions therefore proposed that this anomaly be rectified by the repeal of s 104(4)(a) and the amendment of s 112.
Submissions and consultations
12.41 The proposals in DP 69 are supported by the Law Society of NSW and by the NSW PDO. The NSW DPP supports the proposal to correct the drafting deficiency in s 112 but makes no comment on the proposal to delete s 104(4)(a).
The Commissions’ view
12.42 The proposals put forward in DP 69 would mean that where the defendant has put his or her character in issue by leading evidence as to good character, cross-examination on those matters would be controlled by ss 110 and 112. While cross-examination would not be subject to the substantial probative value test, it would only be permitted where the defendant deliberately raises his or her character as probative of the facts in issue. In that instance the defendant effectively concedes the relevance of the issue. On all other aspects of credibility, cross-examination of the defendant will continue to be controlled by ss 103 and 104.
12.43 Amending the Acts to delete s 104(4)(a) will clarify the interaction of the provisions of Parts 3.7 and 3.8 and make the Acts easier to apply. At the same time, a minor drafting inconsistency between the language used in ss 104(2) and 112 should be remedied. As suggested by Associate Professor Sue McNicol, s 112 should be amended, consistently with s 104(2), to substitute the words: ‘A defendant must not be cross-examined’ for the words: ‘A defendant is not to be cross-examined’. A draft of the provisions incorporating these changes is set out in Appendix 1.
Recommendation 12–3 Section 104(4)(a) of the uniform Evidence Acts should be deleted from s 104(4) to remove the overlap between s 104(4)(a) and Part 3.8.
Recommendation 12–4 For consistency in drafting, s 112 of the uniform Evidence Acts should be amended by substituting ‘A defendant must not be cross-examined’ for ‘A defendant is not to be cross-examined’.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005) [11.37]–[11.39].
 See S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.7920]; J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [104.50]; S McNicol, ‘Credit, Credibility and Character under the Evidence Acts 1995 (NSW) and (Cth)’ (1999) 23 Criminal Law Journal 339, 357; Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [9.29]–[9.30].
 See Gabriel v The Queen (1997) 76 FCR 279.
 Legal Aid Office (ACT), Consultation, Canberra, 8 March 2005.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposals 11–3 and 11–4.
 New South Wales Public Defenders Office, Submission E 89, 19 September 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.
 Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.
 S McNicol, ‘Credit, Credibility and Character under the Evidence Acts 1995 (NSW) and (Cth)’ (1999) 23 Criminal Law Journal 339, 348.