Commentary on Sections Part 11 - Evidence Chapter 1 : Evidence of Bad Character Section 105: “Evidence to correct a false impression”
376.Section 105 relates to evidence that is admissible under Section 101(1)(f) to correct a false impression given by the defendant. For this provision to apply, the defendant must have been responsible for an assertion that gives a false or misleading impression about himself. This might be done expressly, for example, by claiming to be of good character when this is not the case, or implied, for example, by leading evidence of his conduct that carries an implication that he is of a better character than is actually the case. It may also be done non-verbally, through his conduct in court, such as his appearance or dress (Section 105(4) and (5)). For example, if a defendant were to give a false impression by suggesting he were a priest, he could not escape this provision simply by not making such an assertion verbally but choosing to wear a clerical collar.
377.Section 105(2) sets out the circumstances in which a defendant is to be treated as being responsible for an assertion. These include the defendant making the assertion himself, either in his evidence or in his representative’s presentation of his case or, if used in evidence, when being questioned under caution or on being charged with the offence. It also includes assertions made by defence witnesses, those by any witness if responding to a question by the defendant that was intended (or likely to) elicit it and out of court assertions made by anybody if adduced by the defendant.
378.In correcting the impression, the prosecution (and only the prosecution – see Section 105(7)) may introduce evidence of the defendant’s misconduct that has probative value in correcting it, in other words, is relevant to correcting the false impression. Exactly what evidence is admissible will turn on the facts of the case, in particular, the nature of the misleading impression he has given. Evidence is only admissible to the extent that it is necessary to correct that impression: section 105(6). A defendant may withdraw or disassociate himself from a false or misleading impression. Evidence to correct the impression is not then admissible: section 105(3). In light of this, section 101(3), under which a defendant may apply to have evidence of his bad character excluded, does not apply to this evidence.