Commentary on Sections Part 11 - Evidence Chapter 1 : Evidence of Bad Character Section 104: “Matter in issue between the defendant and a co-defendant”
375.Section 104 relates to evidence that is relevant to issues between the defendant and a co-defendant (section 101(1)(e)). Evidence is only admissible on this basis by (or at the behest of) a co-defendant: see Section 104(2) – the prosecution therefore cannot avail themselves of this provision. A co-defendant may wish to adduce evidence of a defendant’s bad character if his defence is, for example, that it was the defendant, rather than himself, who was responsible for the offence. Under Section 101(1)(e) evidence is admissible on issues between the defendant and a co-defendant if it has substantial probative value in relation to an important issue in the case. In other words, evidence that has only marginal or trivial value would not be admissible, nor would it be admissible if the issue it related to were marginal or trivial in the case as a whole. However, once this threshold is passed, there is no power for the courts to exclude the evidence. This ensures that defendants are able to put forward the widest range of evidence in their defence and reflects the current position. Section 104 restricts the admissibility of evidence of a defendant’s bad character that only shows that he has a propensity to be untruthful (that is, is not credible as a witness) to circumstances in which the defendant has undermined the co-defendant’s defence. In these circumstances, his credibility may well have a bearing on resolving the issues in the case.