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Character Evidence

‘Character’ as in Phipson on Evidence: A person’s general reputation (external) in a particular


respect or disposition (internal) in a particular respect.
- Reputation: Definite and final formation of opinion by the community; general credit
which a person has obtained in the estimation of the public.
- E.g: Truthfulness, sexual morality
- Disposition: Inner qualities, traits, integrity or honour, or natural tendency in a person
which can be inferred from his acts.
- E.g: A person’s ability to commit a certain crime
Common Law position:
- R v Rowton: Whenever the character evidence of a person’s reputation is questioned
in court, it should not include such person’s disposition.
- In this case, where the accused was charged for buggery, a witness was asked
of the accused’s general character for decency and morality of conduct.
However, he answered that the accused’s characteristics are that of a man
capable of committing the grossest indecency. Held: The answer was
inadmissible as the witness was asked in regards to the accused’s reputation
and not disposition.
- If a witness to character is called who knows nothing of the general
reputation of the prisoner, but speaks only as to his individual
opinion, such evidence, if objected to, is not receivable.
- ‘Character’ is only limited to reputation, not disposition.
‘Character’ under the Evidence Act:
- Explanation to Sec. 55: In Secs. 52, 53, 54 and 55, the word “character” includes both
reputation and disposition; but, except as provided in Sec. 54, evidence may be given
only of general reputation and general disposition, and not of particular (specific)
acts by which reputation or disposition is shown.
General Admissibility of Character Evidence:
- Character evidence is admissible where it is directly in issue; when the character of a
person becomes necessary for the court to consider.
- Fountain v Boodle: In an action based on libel, where the issue was whether a
governess was “competent, ladylike and good tempered” while working with her
employer, witnesses can be called to assert or deny her competency.
- Hurst v Evans: The defendants accused the plaintiffs for being at fault for employing
people of bad character which caused them to suffer losses due to burglary. The
character of the employees in question therefore becomes necessary to be
determined in court.
- R v B, R v A: Where two 13 year old boys were charged with blackmail, evidence of
their previous convictions was adduced to prove that they are not doli incapax. The
court allowed such character evidence because their character is directly in issue.
- Lim Baba v PP: Where the accused was charged for abduction and rape of women,
cross-examination addressed to the credit of the complainant (where the examination
was intended to injure the complainant’s character) is particularly relevant where the
character is directly in issue, especially in sexual cases where the accused is charged
for rape.
Admissibility of character evidence in civil cases:
Sec. 52: Character evidence is not relevant in civil cases as to suggest the probability or
improbability of a conduct.
- E.g: Whether the defendant was drunk at the time of the accident:
- The fact that the defendant has a reputation for being an alcoholic is not
admissible to suggest the probability of him driving under the influence of
alcohol, or
- The fact that the defendant has a reputation for being a pious man is not
admissible to suggest the improbability of him driving under the influence of
alcohol.
- AG v Radlofmf: In civil cases, no presumption would fairly arise from
the defendant’s good character.

- Exception: Where it is a fact in issue or a relevant fact (which may include similar fact
evidence)
- Mood Music Publishing Co Ltd v De Wolfe Ltd: The plaintiff sued the defendant
for infringement of copyright of their musical work. The plaintiff adduced
evidence indicating that in three other cases, the defendant had reproduced
musical works which were subject to copyright. Held: The evidence was
admissible.
- A court will admit similar fact evidence if it is logically probative, that is
if it is logically relevant in determining the matter in issue, provided
that it is not oppressive or unfair.
Sec. 55: Character evidence is only relevant in civil cases to determine the amount of
damages.
- E.g: The amount of damages in an action for defamation is influenced by the character
of the plaintiff.
- Sandison v Malayan Times Ltd.: In an action against the defendant for libel,
although the court agreed that the publication in regards to the plaintiff’s
dismissal as an employee was defamatory, the plaintiff was only awarded one
cent in damages as the court found that the dismissal had left the plaintiff with
little residue of credit to be further damaged by the libel in the defendant’s
newspaper (much of his reputation had already been tarnished by the
dismissal).
- Samrathmal v Emperor: However, only general evidence of character or reputation
can be given and not for instance, evidence of a particular conviction.
- Plato Films Ltd v Speidel: Evidence of specific acts of misconduct is
inadmissible.
Admissibility of character evidence of an accused in criminal cases:
- Sec. 146: The prosecution or defence is permitted to adduce evidence of the good or
bad character of a witness.
- In cross-examining witnesses, there is no privilege against self-incriminating
questions.
- However, where character evidence of the accused is in question, the Evidence
Act provides for protection against the accused.
Sec. 53: Admissibility of good character evidence
- Concept of admissibility of good character:
- It is based on the premise that someone who has led a morally sound and
lawful existence is less likely to have committed a crime than someone with a
history of bad actions.
- The good or bad character of a person may indicate innocence and criminality.

- R v Vye: The accused, a 50 year-old man was convicted for the rape of his neighbour
who was a single mother. On appeal, the court held: The accused’s age and crime-free
record were clearly matters to be considered by the jury in regards to propensity.
- The good character of an accused is relevant:
- To the accused’s credibility, whether or not he testifies as a witness
- To the propensity or likelihood of the accused committing the offence

- In order for evidence of good character to be tendered, the accused must adduce
positive proof as to the excellence of his character.
- Syed Ismail v PP: Where the accused merely adduced a statement of his
educational background and administrative experience without any
complaints ever been made against, it does not amount to tendering evidence
of good character.
- The court referred to Khurshid Hussain v Emperor: Where the accused
adduces evidence of good character which the court regards as
satisfactory, such improbability must be taken into account.
- Thus, the fact that no claims were lodged against the accused is at best
a negative allegation.

- Evidence of good character will carry good weight during mitigation and assessment
of sentences.
- Siah Ooi Choe v PP: The unblemished record and contribution of the accused
to the society and the country was deemed good enough to warrant a lesser
sentence.
- Explanation to Sec. 55: When adducing evidence of good character of the accused,
testimony showing specific instances of how the good character is reflected is
inadmissible.
- E.g: A charitable fundraising sale held in May 2015
Shields against the accused’s bad character:
- Where the tendering of evidence of bad character will cause the accused to be
perceived as a bad person, the Evidence Act provides for shields against the accused’s
bad character:
There exists two shields under the Act: Secs. 54(1) and 54(2).
Sec. 54(1): Shield against evidence of bad character of the accused.
- The prosecution may not adduce evidence of the accused’s bad character nor of the
accused’s tendency to act in a particular way even if it is relevant.
- The “shield” under the provision protects the accused throughout the hearing by
preventing the tendering of any evidence of his bad character.

- Reasons for exclusion of bad character:


- Its irrelevance in showing the guilt of the accused
- The guilt of the accused must be proven by independent evidence and
not on the basis of his character
- Its prejudicial effect which will outweigh its probative value

- Loke Soo Har v PP: The use of photographs of known pickpockets to identify the
accused and adducing it in evidence amounts to showing the bad character of the
accused, thus rendering the evidence inadmissible.
- Girdari Lall & Ors v PP: The photograph of the accused along with several other photos
of Indians bore a police number and was a combined profile and full face photo. The
photographs indicate that they were from the police record, from which it could be
inferred that the persons, including the accused, was of bad character. Held: The
photos were obviously taken from the police record and putting them in evidence
was tantamount to saying that the accused was of bad character, thus making the
evidence inadmissible.
- Lim Hong Siang v PP: The failure on the part of the defence counsel to object on the
tendering of such character evidence will not make irrelevant evidence of character
relevant and admissible.

- However, in Wong Foh Hin v PP: Where the accused was charged for the murder of
his own daughter, evidence that he had raped his daughter was tendered as evidence
of motive under Sec. 8. Held: The court admitted the evidence of motive, despite it
reflecting the bad character of the accused, namely that he was a bad father. Even
though Sec. 54(1) disallows evidence of bad character to be tendered, the court
upheld the principle that evidence admissible on one ground will not be rejected due
to its inadmissibility on another ground. In this case, the evidence of rape by the
father was relevant, thus making it admissible.
Where the shield under Sec. 54(1) can be thrown away:
- Proviso to Sec. 54(1): Evidence of the accused’s bad character is irrelevant unless
evidence has been given that he has a good character, in which case it becomes
relevant.
- If evidence as to the accused’s good character is adduced, then the accused’s
bad character becomes relevant. Thus, so long as evidence of the accused’s
good character is not given, evidence of his bad character remains irrelevant
in court.
- Evidence of good character can be said to have been given in court under two
circumstances:
- While the defence is cross-examining the prosecution’s witnesses
- Asked questions that would lead to the exposure of the
accused’s good character
- During examination-in-chief or re-examination of the defence
witnesses, including the accused if he is put on the stand

- Once evidence of the accused’s good character is adduced, the prosecution is


entitled to take advantage of the provision.
- However, the provision does not apply if the evidence of the accused’s good
character is elicited (caused/provoked) by the prosecution during cross-
examination of the accused or any of the witnesses.
Sec. 54(2): Shield against questions that tend to disclose the accused’s bad character only in
the event that he is called in as a witness.
- The prosecution is prohibited from asking questions that tend to show the accused
has committed, or been convicted of or charged with, any other offence than what he
is currently charged with.
- If the accused is posed with such questions, he is not compelled to answer.
- Protection under this provision is only available to the accused, and not to any
other witnesses.
- Sec. 132: A witness is not excused from answering any question put to
him on the ground that the answer is incriminating.

- “Tending to show” under Sec. 54(2) does not include:


- Where the accused volunteered in the examination-in-chief that suggests he
has committed other offences prior to the one he is charged with, or is of bad
character.
- Where the court has been made aware of the questionable nature of the
accused’s past:
- Jones v DPP: Where the court was already aware of the accused’s habit
to lie when he changed his alibi, the shield was thus not granted to him.
- However, the accused risks losing this shield under the circumstances provided in
paragraphs (a), (b) and (c).
Where the shield under Sec. 54(2) can be thrown away:
- In order for the provision to apply, it is a precondition that the accused must be called
as a witness. If the accused chooses not to, the provision cannot be invoked.
- Should the accused agree to be called as a witness, he would be under an
obligation to answer the questions put to him, regardless of whether it will
expose his bad character.
- Where an accused can be compelled to answer, putting him on the witness
stand is therefore detrimental to the defence’s case.
There are three circumstances under which the shield of the accused can be thrown away:
Sec. 54(2)(a): Where the accused may be asked about misconduct which has already been
admitted in chief as part of the prosecution’s case.

- Evidence related to similar fact evidence


- E.g: Cross-examining the accused on his previous convictions for indecent
assault in a proceeding against him for rape.
- Junaidi Abdullah v PP: Where the issue was whether similar fact evidence which
reflects the bad character evidence of the accused was relevant and admissible, the
court found that since adducing similar facts is necessary under Secs. 14 and 15 to
rebut a defence, evidence of the accused’s bad character was relevant and admissible,
and could therefore be adduced under Sec. 54(2)(a).

- However, cross-examination concerning a previous charge for which the accused has
been acquitted cannot be allowed as the provision specifically refers to evidence of
commission or conviction of a crime.
- R v Pommell: The accused’s appeal against his conviction was successful on the
ground that cross-examination about his previous acquittal for possession of a
prohibited weapon was wrongly permitted by the judge.
Sec. 54(2)(b): There are three circumstances under this paragraph in which the prosecution
would be allowed to cross-examine the accused as to his bad character:
First limb: Where the accused has personally or by his advocate asked questions of the
witnesses for the prosecution with a view to establish his own good character.
- This may occur where during the cross-examination at the prosecution stage, the
accused or his counsel asks questions to the prosecution’s witnesses for the purpose
of establishing the accused’s good character.
Second limb: While the accused is giving evidence, he has given evidence of his good
character.
- This may occur where, during the examination-in-chief, at the defence stage, the
accused himself gives evidence of his good character.
- Where evidence of the accused’s good character is given, both Secs. 54(1) and
54(2)(b) applies.
- Where there is no assertion of good character, the prosecution is not entitled to add
evidence of bad character.
- It is within the court’s discretion to decide whether or not a statement establishes the
accused’s good character.
- Mere denial of guilt by the accused does not amount to an assertion of good
character.

- Assertion of good character may be done by establishing:


- The accused’s previous law-abiding conduct (R v Samuel)
- The accused’s religious observance (R v Baker)
- The accused’s regular employment (R v Powell)
- That the accused is happily married (R v Coulman)

- Rationale as in Maxwell v DPP: If the accused by himself has adduced evidence of good
character in order to show his lack of tendency towards the offence charged, he raises
by way of defence an issue as to his good character, upon which he may then be
fairly cross-examined to show the contrary.
- However, in R v Stronach: The shield is not lost where the assertion of good character
is elicited by the prosecution; volunteered by a witness; or made in the opening of the
defence’s case.
Third limb: Where the conduct of the accused or his counsel casts imputations on the
character of the prosecutor or the prosecution’s witnesses.
- Although Sec. 146(c) allows the prosecutor or defence counsel to shake the credibility
of witnesses, attacking the prosecution’s witnesses will cause the accused to lose his
shield.
- R v Jenkins: By putting questions upon the prosecution’s witness to suggest
that she had spent the night with the accused, the defence had cast
imputations on her character, which rendered it fair and proper for the
accused to be asked questions tending to show that he had committed or been
convicted of an offence prior to the one he is charged with.
- R v Bishop: The character of the prosecution’s witness was impugned by an
allegation of homosexual conduct made against him. Such imputation of
homosexual immorality against a witness might reflect on his reliability, thus
causing the accused to be subjected to the risk of cross-examination of his
record.

- Other illustrations where the shield was thrown away due to imputations being cast
upon the prosecution’s witnesses:
- The witness had committed the offence (R v Hudson); the police had used
bribes and threats to extract admission from the accused (R v Wright); the
witness had invented a story out of malice towards the accused (R v Dunkley)
- However, there are circumstances in which it would be impossible to raise certain
defences without making imputations on the character of the prosecution’s witnesses.
- Self-Defence:
- E.g: Where an accused is charged for causing hurt to a victim who was
called as the prosecution’s witness. The accused wanted to rely on the
self-defence that the victim had first attacked him. By doing so, he had
cast imputations on the prosecution’s witness.
- Provocation:
- E.g: Where the accused submitted that the prosecution’s witness had
provoked him with abusive words. By doing so, he had cast imputations
on the prosecution’s witness.

- Position before Selvey v DPP:


- Casting imputations for the purpose of proper development of a defence
would not cause the shield to be thrown away.
- The King v Preston: In alleging the impropriety in the conduct of an
identification parade, the accused had cast an imputation on the
character of the police. However, such imputation was necessary for
the defence’s case.

- However, a mere attack on the witness’ credit would cause the shield to be
thrown away.
- R v Butterwasser: In an attempt to discredit the prosecution’s witness,
the counsel for the accused attacked the character of the complainant.
Held: The court in considering the nature of the defence set up and the
general circumstances of the case felt that the shield had been thrown
away and was no longer applicable.

- Selvey v DPP: The accused, who was charged with buggery of a young man, was found
to have cast imputation on the complainant when he alleged that the complainant
told him in his room that he had already, on the same day, allowed an act of buggery
on his person for £1 and would do the same again for money.
- The question arose as to whether the trial judge had a discretion under
Sec. 1(f)(ii) of the Criminal Evidence Act 1898 (in pari materia with Sec.
54(2)(b)) to preclude the prosecution from cross-examining the accused about
certain prior convictions once the shield is lost.
- HOL held: Such discretion does exist and it should be exercised where it
would be unfairly prejudicial to allow all previous convictions to be put to the
accused.
- Cross-examination on the accused’s bad character is only permitted if
imputations are cast on the prosecutor or the prosecution’s witnesses
to show their unreliability as witnesses.
- In cases of rape, if the accused alleges that the complainant consented
to the act, despite having cast imputations on the complainant’s
character, such imputation is necessary for the accused’s defence as
consent is an element of rape.
- Thus, the accused can allege consent without placing himself in
peril of cross-examination.
- If what is said amounts to no more than a denial of the charge,
it cannot be said to fall within the provision.

- Position post-Selvey v DPP:


- It is left within the court’s discretion to throw away the shield depending on
the nature or gravity of the attack on the prosecutor or prosecution’s
witnesses.

- Other cases in which the conduct of the defence did not amount to casting
imputations on the prosecutor or prosecution’s witnesses:
- Allegation that the evidence given for the prosecution was untrue
- R v Rouse: Where part of the evidence of the prosecution’s witness was
put to the accused who replied: “It is a lie, and he was a liar”, such
conduct did not justify a subsequent cross-examination on the
accused’s record.
- Mere unconsidered remark that the identification of the accused was “a put-
up job” (R v Preston)
- Allegation by the accused that he was overcharged by the prosecutor (R v
Morgan)
Sec. 54(2)(c): Where the accused has given evidence against his co-accused.
- It is a prerequisite for the accused to be jointly charged with the same offence as the
other co-accused.
- If the accused is jointly tried with the co-accused but for different offences, the
provision cannot be invoked.
- R v Lovett: Cross-examination of the accused’s record was held to be improper
as the two accused persons were not charged with the same offence.

- Murdoch v Taylor, ‘evidence against a co-accused’: Evidence which supports the


prosecution’s case in a material respect or which undermines the defence.
- If the evidence only contradicts what the co-accused had said without
advancing the prosecution’s case in any significant degree, it will not be
regarded as evidence against the co-accused.

- Mere denial of participation is not sufficient to rank as evidence against the co-
accused.
- For the provision to apply, such denial must lead to a conclusion that if the
accused did not commit the crime, then it must have been the co-accused.

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