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Question 5

Aqmar Farzana & Associates


Yong, Tong and Hong are jointly charged with robbery of a mini market. They each have a
number of previous convictions for the same offence. The prosecution rely on the evidence
of Samy, who testified that he was tricked by the three accused into driving them to the mini
market in question but upon learning of their plan to rob it, he fled from the scene.
Yongs counsel through rigorous cross-examination of Samy gets him to admit that he had
five previous convictions for theft. Yong elects to remain silent when the defence is called.
Consider whether the prosecution may lead evidence of Yongs previous convictions.
1. Tong in his evidence asserts that whatever Samy stated in his evidence was a pack of
lies. Consider whether the prosecution may cross-examine Tong on his previous
conviction.
2. Hong testified that he was invited by Yong and Tong to come along to help them rob the
mini market and he refused the invitation but was put under duress and he merely
agreed to ride in the car. Consider whether Yongs counsel may cross-examine Hong on
his previous conviction.
3. Assuming Yongs counsel does not cross-examine Hong on his previous convictions,
may the prosecution do so, and if they may, consider why would they want to take such
action.
Support your answer with reference to the provisions of the Evidence Act 1950 and decided
cases.

Facts In Issue
Whether Yong, Tong and Hong are guilty of the offence robbery ?
Issue
Whether the character evidence brought by the prosecution are relevant
and admissible ?

1. Whether the prosecution may lead evidence of Yongs previous


convictions ?
-QUESTION FOCUSES ON S.54(2)(b) BUT COULD NOT BE ADMITTED AS
YONG ELECTED TO REMAIN SILENT.
Section 146 of the EA allows a witness to be crossed examined to test
his credibility in (a) and to shake his credit by injuring his character
although such question directly criminate him in (c). This is as per
Sharma Kumari Oam Prakash v PP where it widens the exception of
inadmissibility of bad character evidence per se, and allows it in testing
credibility of a witness by injuring his character.

Yongs counsel cross-examined Samy and eventually got him to admit


that he had five previous convictions for theft is permissible as per
Section 146 of EA (not relevant for this question, person can commit
robbery but still be an honest man) where its objective is to shake
Samys credibility as the star PW by injuring his character. The purpose
of cross-examined Samy to his previous convictions is to show that
Samy is not to be believed on oath as per R v Sweet-Escott.
However so, since Yong elects to remain silent when the defence is
called, the prosecution is left with few options to lead the evidence of
Yongs previous conviction. Prosecution cannot rely on proviso Section
54(1) of EA as there was no good character evidence adduced by Yong
and neither can they rely on Section 54(2) of EA because Yong elects to
remain silent thus prosecution has no opportunity to cross exam him to
his bad character.
The only way to lead evidence of Yongs previous conviction is through
other relevant provision such as similar fact evidence. A previous
conviction can be admitted as similar fact evidence by invoking Section
14 together with Section 11(b) of the EA as fact showing the existence
of state of mind and if connected with other facts they make an
existence of RF/FII highly probable or improbable. Explanation 2 of
Section 14 of EA states on previous conviction of a person may be a
relevant fact thus admissible as an exception to general inadmissibility
of bad character evidence. SFE MUST BE BROUGHT INTO DURING
PROSECUTION STAGE, NOT DEFENCE STAGE.
Therefore, the prosecution may only rely on the certificate of conviction
to be adduced under Section 14 of EA read together with Section 11 of
EA to show the similar state of mind of Yong and high probability that
Yong had the same intention in committing robbery in present. the
previous convictions of Yong are still relevant and admissible however
with a lower weight attached to it.
2. Whether the prosecution may cross Tong on his previous conviction ?
PRELIMINARY ANSWERS. BECAUSE EACH OF THE ACCUSED WERE
CONVICTED OF SAME OFFENCE, PP MAY BRING EVI OF BAD CHARACTER
UNDER S.54(2)(A) READ TOGETHER WITH S. 14 EA ONLY IF PP WANTS TO
PROVE STATE OF MIND.
WRITE GUIDLINES (R V HALL AND R V BRITZMAN) AND READ IT WITH R V
ROUSE AND R V RAPOULT.
R V HALL :- COURT SHOULD NOT ALLOW XE ON BAD CHARACTER IF IT IS
ONLY A DENIAL OF TRUTH.

The general rule of character evidence in criminal proceeding is


encapsulated under Section 54(1) of the EA 1950 which reads that
evidence of bad character of an accused person is irrelevant. This is
because such evidence is generally too prejudicial compared to the
probative values it holds.
However so, there are few exceptions provided under the EA which can
be seen under the proviso of Section 54(1) and Section 54(2) of the EA.
The distinguishing element of invoking these two sections is the precondition required by Section 54(2) of EA where the accused must first
be called as witness to give testimony under oath, thus allowing the
prosecution to conduct cross-examination towards the accused.
Generally, Section 54(2) prohibits any question being asked, if asked
not required to answer if such question tends to show the accused has
been convicted with other offence he is currently charged.
Section 54(2)(a) further provides the exception to it by allowing the
prosecution to cross exam the accused on his previous conviction if it is
an admissible evidence initially. This is related to similar fact evidence.
Furthermore, Explanation 2 of Section 54 itself reads that a previous
conviction is relevant as of bad character.
A previous conviction can be admitted also as similar fact evidence by
invoking Section 14 together with Section 11(b) of the EA as fact
showing the existence of state of mind and if connected with other
facts they make an existence of RF/FII highly probable or improbable.
Explanation 2 of Section 14 of EA states on previous conviction of a
person may be a relevant fact thus admissible as an exception to
general inadmissibility of bad character evidence.
Abu Bakar Ismail v R may be referred to show on the similar 8
previous occasions indicated the state of mind of the accused on
specific offence he has committed make it highly probable that he
commits such same offence again and such previous commission
evidence is admissible under Section 14 and 11 of EA.
In the material fact given, Tong is called as witness and about to be
cross-examine on his previous conviction. The prosecution may crossexam Tong on his previous conviction as such conviction is an
admissible evidence by virtue of Section 14 and Section 11 of EA in
showing the state of mind and high probability that Tong commits
robbery before and in current case. The certificate of conviction may be
tendered by the prosecution and be admitted under Section 14 and 11

of EA and subsequently during cross examination of Tong, the


prosecution may ask questions relating to the previous robbery Tong
had been convicted for by virtue of Section 54(2)(a) of EA. This
evidence carries more weight as the prosecution may ask the accused
who testify under oath of on his previous conviction rather than merely
adduce it under Section 14 and 11 of EA.
Besides that, Section 54(2)(b) on the second limb provides another
exception to allow the prosecution to cross- exam the accused on his
bad character if the accused casts imputations on the character of the
PW. The character of PW referred to, is wide in nature as it includes
immorality. This is as per case R v Jenkins where the defence casted
imputation on PW who was a married woman which alleged have
committed adultery and R v Bishop where an imputation of
homosexuality immorality was casted against PW.
However so, there are factors that need to be considered for the judge
to allow or prohibit the cross examination of the accused on his bad
character. In cases concerning casting imputation to PW, a denial of
truth does not amount to casting imputation of PW. This is pursuant to
the case R v Rouse and Burrell where upon being asked the accused
answered that PWs statement was not true, its a lie and hes a liar.
The court ruled that, the answer was merely an emphatic denial and
prosecution still not entitle to cross the accused on his bad character.
R v Hall was of the verdict that such denial on the lengthy conversation
ever took place has eventually allowed the prosecution to cross
examined the accused as it was a denial of truth in which it casted
imputation on PW a police officer fabricated the vital evidence.
In the case at hand, Tong asserted that Samy lied in his evidence thus,
this constitutes an imputation casted against Samy, a PW by Tong. This
falls under the second limb of Section 54(2)(b). Claim made by Tong
against Samy was a denial of truth as he was claiming that Samy is
creating a story that he was tricked by three of them into driving them
to the mini market and upon knowing the plan to rob, he fled and this is
pursuant to R v Hall.
(Conclusion) Therefore, prosecution is entitled to cross examine Tong
on his previous conviction based on second limb of Section 54(2)(b)
since Tong had casted an imputation to Samy, a PW.
3. Whether Yongs counsel may cross examine Hong on his previous
conviction ?

Another exception to the general principle of inadmissibility of bad


character evidence is provided under Section 54(2)(c), when the
accused has given evidence against his co-accused. The pre-condition
of invoking this section is that the accused must be jointly charged with
the same offence as the other co-accused. Same offence provided
under this section is literally of same offence as per R v Lovett where in
this case the offence committed was stealing television set while the co
accused in the same proceeding contributed in handling it. The cross
exam as to his previous conviction was improper as the offences were
not the same offence.
The evidence given against the co-accused simply means that the
accused gives evidence in support of prosecutions case or undermines
the defence of co-accused. In Murdoch v Taylor, once it is satisfied
that the accused has given evidence against the co-accused, the court
has no discretion to refuse any application of the co-accused to cross
exam the accused to his bad character.
MURDOCH V TAYLOR :- IF ACD GAVE EVI AGAINST CO-ACD, CO-ACD CAN
GIVE EVI
AGAINST ACD
R V VARLEY :- DENIAL OF PARTICIPATION IS NOT ENOUGH.
EVI MUST SUPPORT PP CASE. LOOK UP IN CHARAC EVI
NOTES.
Pursuant to the case of R v Varley, D admitted participated with the
robbery with V but he was threatened by V. V denied such allegation
and contended he did not take part of the robbery and D was lying. Ds
counsel cross examined V for his previous convictions as V had given
evidence against D because such evidence showed that D was lying
and ultimately D actually participated in the robbery willingly. The cross
examination against V by Ds counsel was permitted.
In the material fact given, Hong testified that Yong and Tong invited
him and put him under duress to help in the robbery. Since all three of
them were jointly charged under the same offence of robbery, Section
54(2)(c) is applicable as the pre-condition is met, pursuant to the
principle in R v Lovett. The evidence given by Hong was in a way an
evidence against Yong and Tong as he claimed the two had put him
under duress to help in the robbery. This evidence undermines the
defence available to both Yong and Tong and indirectly supporting the
prosecutions case as to establish the mens rea of both Yong and Tong
to rob the mini market. By virtue of R v Varley, the statement by Hong
ultimately shows Yong who elects to remain silent, does so, not

because of innocence but and this establishes mens rea on Yongs part
likewise to Tong.
Therefore, Yongs counsel may cross examine Hong on his previous
conviction as Hong had given evidence against Yong and this is
pursuant to Section 54(2)(c) of EA.
4. Whether the prosecution is entitled to cross exam Hong on his previous
convictions ?
Section 54(2) of EA is applicable during cross examination of the
accused by the prosecution. This section prohibits any question which
is tending to show that the accused has committed or convicted of
any offence other than what he is being charged. Tending to show
here means tending to reveal it to the judge for the first time. This
simply means when the defence revealed in chief examination that he
has a bad character, and subsequent to that, the prosecution may
cross-examine accused of his bad character since the bad character
about to be cross examined is not a new revelation to the judge. The
prosecution then is no longer tending to show as the defence has
done and revealed it already. This can be seen in Jones v DPP on the
true construction of section 1 (f) of the Act of 1898, in pari material
with Section 54(2) of EA.
The prosecution in this case may cross examine Hong by referring to
the fact that he had himself revealed during chief examination by the
defence that he merely agreed to join in the robbery by taking a ride in
the car. The prosecution may cross based on the reason that such
question is no longer tending to his bad character for the first time to
the judge because he had done it himself pursuant to Jones v DPP.
However, this only allows the prosecution to ask question relating to
what the accused has revealed only and not other previous convictions.
Therefore, the prosecution may not cross examine Hong on his
previous convictions as he only revealed in chief examination on the
offence he is now being charged with.
TENDING TO SHOW IS USED WHEN ACD OR COUNSEL THEMSELVES
ADDUCE BAD CHARCTER, SUCH AS JONES V DPP.
MURDOCH V TAYLOR :XE UNDER S.54(C) CAN BE USED BY BOTH DEF AND PP. EVENTUALLY
PURPOSE OF XE OF PP AND DC IS DIFF. DC WANTS TO PROVE THAT
CLIENT DIDN'T PARTICIPATE IN CRIME. RIGHT OF XEID NOT ONLY FOR

PP, IT ID SLSO IN RELATION TO PARA C, IF ACD IS DUFFERENTY


REPRESENTED COUNSEL A CAN EXAMINE ACD B VOCE VERSA.
OBJ TO XE HONG IS JUST TO DISPROVE YONGS PARTICIPATION.
PP CAN ALSO USE SFE TO PROVE STATE OF MIND.
However, evidence of pending charges is not admissible. This is
pursuant to the case of Datuk Haji Harun Bin Haji Idris v PP where the
question on the cheque used to pay for the swimming pool in his house
and the second cheque paid into his personal account to be recouped
later out of UMNO money and these questions were irrelevant and
inadmissible as it relates to the other pending charges against the
accused.