Should juries be told the criminal history of the defendant?

15th Sep 2022

Knowledge of past crimes can influence jury verdicts

The question of whether a jury should be made aware of a defendant’s criminal history is often debated.

Let’s say you are on a jury considering the guilt or innocence of a man charged with burglary. You are only able to make your decision based on what you hear in court. You and your fellow jurors decide that the evidence against him isn’t strong enough and there is room for reasonable doubt.

You declare he is not guilty, and he walks free. You then learn he has been convicted of burglary several times before. If you had known this during the trial, would it have changed your verdict?

What if the defendant is charged with a violent crime such as assault, rape or murder? Should you, as a juror, have the right to know the defendant’s prior criminal record to help you assess his character and the likelihood that he committed this particular crime?

Would you have decided to keep this violent man off the street, even if there was doubt about the evidence presented during the court trial?

Debate over disclosure of criminal history

How much the jury should know is a question that comes up time and again in discussions of justice and the law.

A few years ago, NSW Solicitor-General Michael Sexton argued in a book that a jury should not be denied knowledge that an alleged rapist committed rapes in the past, or that an accused fraudster has a string of convictions for dishonesty.

In Britain, since 2004 juries can be told a person’s preceding convictions where it is ‘important explanatory evidence’.[i] Announcing the change, the UK government said that trials should be a search for truth and justice and should protect society.

Current NSW law on past criminal conduct

The current law in NSW prohibits the admission into evidence of a defendant’s past criminal conduct unless, as laid out in the tendency evidence and coincidence rules contained in ss97, 97A, 98 and 100 of the Evidence Act 1995:

  1. Reasonable notice is given to all parties about producing the evidence.
  2. The proposed evidence has significant probative value and is highly relevant to the facts in issue.
  3. That value substantially outweighs any unfair prejudice that may be caused to the defendant.

Following the Royal Commission into Institutional Responses to Child Sexual Abuse, these rules were relaxed in relation to charges of child sexual offences to allow evidence of a defendant’s previous sexual interest in children. This is detailed in the new s97A of the amended Act.

Defendant has right to fair trial and is innocent until proven guilty

However, one of the basic rights in our society is the right to a fair trial. There is no doubt it would prejudice a defendant’s case if the jury is told the defendant has a criminal record and has committed similar crimes before.

Everyone is presumed innocent until proven guilty. It is up to the prosecution to present evidence that is strong enough to convince a jury ‘beyond reasonable doubt’ that the defendant committed the particular crime they have been charged with. That is the very basis of our justice system.

Bail applications and defendant’s criminal history

An incident in early September 2022 has raised further questions.

Five young persons aged between 14 and 16 years were killed in a road accident in NSW and an 18-year-old driver has been charged with very serious offences. This tragedy will run its course in the NSW court system, but no plea has been entered in the matter at time of writing.

An important point of difference to the situation described above has arisen in this case. Because the defendant was refused police bail, and a bail application was made and heard by a Local Court Magistrate (quite correctly, and in accordance with the Bail Act 2013 (NSW) provisions), the media was able to obtain and report on material that (at a trial) may have been excluded by operation of the Evidence Act 1995 (NSW), unless it was admissible under the Tendency and Coincidence rules.

In NSW, when a person is charged, a Court Attendance Notice and a Fact Sheet are prepared by police and are the basis of the indictment that the defendant will face. Many hundreds of these are prepared, filed and served on defendants and/or their lawyers each week.

Police may grant police bail (depending on the circumstances) or refuse police bail and have the defendant brought before a court as soon as possible for the purpose of a bail application.

If police bail is granted (with or without conditions), then the defendant will appear in court and the matter will generally be adjourned to a future date to continue the court process.

Admissibility of a defendant’s criminal history in a bail application

If police bail is refused, and the defendant or their legal representative requests a bail hearing, then the court will hear a bail application.

In this case, the police will produce the ‘criminal history’ of the defendant. The bail report contains every record the police have of every contact the defendant has had with police and the criminal justice system.

This includes matters where the defendant was found ‘not guilty’ at a trial in a superior court, or where charges were ‘dismissed after hearing’ in the Local Court of NSW.

Also listed in the bail report are all matters where the defendant was convicted, or was not convicted (under s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), with or without a bond), along with all past bail warnings and police cautions.

In a driving-related matter, the defendant’s driving history will also be handed up.

This is so the magistrate or judge has before them a full picture, for the purposes of bail, of what is known about the defendant. Repeat offenders are assessed against what this document contains.

For persons who are already on bail for a similar or other offence, it is also possible to see whether a bond (however described) has been breached or recently completed.

The important aspect of this is that the bail report contains details of real outcomes in decisions, allowing a magistrate or judge to have the best information to assist in deciding on a bail application.

However, the bail report can only be handed up when there is a bail application. If the 18-year-old defendant in the road accident case had not applied for bail, and had entered a plea of ‘not guilty’, he would have been entitled to face a hearing or trial without the bail report being handed up.

If the defendant is convicted (with some exceptions), the Convictions List becomes the basis for factoring past convictions into the fresh conviction and penalty.

Bail reports, media reporting and the Evidence Act

In the hearing of the bail application, generally in open court, the submissions of the prosecution and the defence lawyer (if the person is legally represented) and the magistrate’s comments are available to the media.

There are some exceptions, based on victim protection, where the court may be closed to the media or, on the application by the defence or prosecution, all or part of the proceedings may be subject to suppression.

Where the bail application occurs in open court the media can report on material up to a point, and subject to some restrictions, may make public comment on (for example) the past history of a defendant.

Some observers believe that in some cases this may create a situation where the widespread media commentary, albeit legitimate, can impinge in advance on the rule regarding inadmissibility of evidence of a defendant’s past criminal conduct in the Evidence Act 1995 (NSW).

The debate about the jury knowing or not knowing about whether a defendant has or does not have a criminal history, and if so, whether this information needs to be relevant to the allegations before the jury, will continue.


This is an edited version of an article first published by Stacks Law Firm.

The ALA would like to thank John Gooley for this contribution.

John Gooley practises across criminal, family and employment law and associated commercial matters at Stacks Collins Thompson. He enjoys Legal Aid briefs and duty work, as well as defended hearings, special fixtures and severity appeals. John has experience in the regulation of advertising and its content, NSW local government planning and licensing and CTTT matters, as well as HREOC and NSW ADB actions. He has wide-ranging experience in both the federal and state employment jurisdictions, and is a life member of the NSW Public Service Professional Officers Association.

The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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[i] GOV.UK, The Crown Prosecution Service, Bad Character Evidence (2021) <https://www.cps.gov.uk/legal-guidance/bad-character-evidence>.


Tags: NSW Criminal justice John Gooley tendency evidence propensity evidence