QUESTION 8

Ah Seng and Appu, were jointly charged with robbery pursuant to Section 390 of the Penal
Code. They both have previous convictions of house breaking and theft.

At the trial, Appu admitted that he and Ah Seng took part in the robbery but added that he was
forced to do so by threats made by Ah Seng on his life. He testified that five years ago, he was
homeless and roaming the streets when Ah Seng met him and gave shelter and food. Ever since,
he had followed Ah Seng on various house-breaking ventures in the vicinity. He went on to
state that he was very frightened of Ah Seng. The prosecution then proceeded to cross-examine
Appu on his previous convictions.

Ah Seng’s evidence was that he had not taken any part in the robbery and denied ever meeting
Appu. Following this, the assigned counsel for Appu applied for and was granted leave by the
court to cross-examine Ah Seng on his previous convictions.

At the end of the trial, the judge convicted both Ah Seng and Appu with 5 years imprisonment
adding that “both the accused need to learn some lessons in prison because they have trouble
with the law in the past.”

With reference to the provisions of the Evidence Act 1950 and case law, consider the
correctness of the court’s decision in allowing cross-examination of Ah Seng and Appu’s
previous convictions, as well as whether the judge is correct in convicting both the accused
based on their bad character?

Ist Issue:
The first issue is whether the court’s decision in allowing cross-examination of Ah Seng and
Appu’s based on their previous conviction is correctly made? / the first issue is whether the
prosecution is allowed to cross examine ah seng and appu based on their previous conviction?

General rule:

Generally, character evidence is not relevant and thus not admissible as the court is to
try the case and not the man. Character evidence refers to a person’s conduct or previous acts.
However, there are several exceptions provided under the EA1950, which allow for the
admissibility of character evidence.

Law:
According to Section 54(2), a person charged and called as a witness shall not be asked,
and if asked shall not required to answer any question tending to show that he has committed,
or been convicted of or been charged with any offence other than that were with he is then
charged, or is of bad character, unless it falls within subsection 2(a)-(c).
 Section 54(2)(c): a person is not required to answer any question which relates to a bad
character unless he (accused) has given evidence against any other person charged with the
same offence. In order to utilize section 54(2), the accused must be called as a witness. Cross-
examination of the previous convictions or commission of the accused should be allowed in
the event the accused has given evidence against his co-accused. The prerequisite in applying
this paragraph is that the accused must be jointly charged with the same offence as the co-
accused.

In the case of R v Lovett, “same offence” should be interpreted literally. In the case of
Murdoch v Taylor, it is now established that evidence against a co-accused means evidence
which supports the prosecution’s case in a material respect or which undermines the defence
of the co-accused.

In this instance, it does not matter whether the evidence is given by the accused with
hostile intent. However, 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”.

In the case of R v Varley, V dan D were jointly charged with robbery. At the trial, D
admitted that they had both participated in the robbery but stated that he had been threatened
by V to do so. V denied that he had taken any part in the robbery and alleged that D’s evidence
was untrue. D’s counsel applied for and was granted leave to cross-examine V on his previous
conviction. On appeal, the court held that the leave to cross examine his previous conviction
should be granted.

Guidelines (R V VARLEY) (what amount to ‘giving evidence against’) :

a. If it is established that person jointly charged has given evidence against the co-accused,
that co-accused has a right to cross-examine the other as to previous convictions and the trial
judge has no direction to refuse an application.
b. Such evidence may be given by the accused either in chief or during cross examination.
c. It has to be objectively decided whether the evidence supports the prosecution case in
a material respect or undermines the defence of the co-accused. A hostile intent is irrelevant.
d. If consideration has to be given to the undermining of the other’s defence case, care
must be taken to see that the evidence clearly undermines the defence, inconvenience to or
inconsistency with the other’s defence is not itself sufficient.
e. Mere denial of participation in a joint venture is not itself sufficient to rank as evidence
against co-accused. For the proviso to apply, such denial must lead to a conclusion that if the
accused did not participate, then it must have been the other who did.
f. Where one accused asserts or in due course would assert one view of the joint venture
which is directly contradicted by the other, such contradiction may be evidence against co-
accused.

Application:

In applying to the issue above, Ah Seng and Appu are jointly charged with the same
offence which is an offence under Section 390 of the Penal Code for committing robbery. They
both were also called as a witness during cross-examination.Therefore, they fulfill the
prerequisite requirement under Section 54(2)(c) of Evidence Act 1950.

1. Appu
 In Appu’s situation, it can be said that Appu has given evidence against Ah Seng when
he said that he was forced to commit the offence after being threatened by Ah Seng and that he
was afraid of Ah Seng. Here, the evidence given by Appu does not only contradicts the
evidence of Ah Seng, but it also implies that he was forced and Ah Seng was the mastermind.It
also led to a conclusion that if he did not participate in the robbery, Ah Seng must have done it
anyway. Therefore, it fulfils one element under the guidelines laid in the case of R v Varley,
which resulted to Appu’s evidence amounted to ‘giving evidence against’ Ah Seng. Hence,
Appu can be cross-examined by the prosecution on his previous conviction. As conclusion, the
court’s decision in allowing cross-examination of Appu based on his bad character (previous
conviction) is correctly made.

2. Ah Seng

In applying to Ah Seng situation, he testified that he had not taken any part in the
robbery and denied ever meeting Appu. This is not just a mere denial as he not only denied in
involving with the robbery but also denied ever meeting Appu. here, it leads to a conclusion
that if he did not participate in the robbery, then it must have been Appu who did it as Appu
had already admitted that he committed the act. This amount to “giving evidence against”
Appu. Those statement implies that Appu is lying when he gave the statement that he was
threatened by Ah Seng to commit the robbery. Hence, by giving statement against Appu, Ah
Seng can be cross-examined in regard to his previous conviction under Section 54(2)(c).
Therefore, the court’s decision in allowing cross-examination of Appu based on his bad
character (previous conviction) is correctly made.

Conclusion:

To conclude, since both Appu and Ah Seng gave evidence against each other, they can be
cross-examine in regards to their previous convictions. Therefore, the court’s decision in
allowing cross-examination of Ah Seng and Appu’s based on their previous conviction is
correctly made.

2nd Issue:

The second issue is whether the conviction of both the accused based on their bad character is
relevant and admissible? whether the judge is correct in convicting both the accused based on
their bad character?

General rule:

Section 5 of the evidence act places great emphasis on the need for evidence tendered
in court to be relevant to the facts in issue or relevant facts. This means that evidence which is
not part of the same transaction or has no connection to the main facts is generally not
admissible. Therefore, previous acts or misconduct of a person which is unrelated to the current
victim or the current facts in issue cannot be brought to the court.
Law:

As a general rule, Similar Fact Evidence to show previous misconducts of an accused

to prove the current offence is not admissible due to the presumption in the criminal justice
system that an accused is presumed innocent until proven guilty. Furthermore, the previous
misconducts that may have been happened a few years ago do not really relate to the actus reus
and mens rea of the current crime as it happened to a different victim, in a different time and
at a different place.

Due to the prejudicial nature of evidence, the admissibility of SFE is subject to a strict
test of its admissibility under the common law principles. Normally, the evidence of previous
misconduct is relevant if it can fulfil the rigid conditions of admitting similar facts evidence.

According to Section 14 and section 15, evidence of SFE is admissible only if it is

relevant for specific purposes to show state of mind to show act done intentionally.

There are 2 features of section 14 and 15 both consent with mens rea. First the evidence
is admissible only if it is relevant for the specific purposes specified in those provisions, such
as showing the state of mind and establishing that the act was done intentionally. Secondly,
mens rea.

For section 14 to be applicable, the evidence shows the relevant state of mind must exist
with reference to a particular fact in question. To establish knowledge, the prosecution must
adduce evidence of the fact that the accused persons had been convicted of similar offences
previously.

For section 15, it requires the accused’s act to have performed part of a “series of similar
occurrences” which can be equated with “system” in makin’s theory

-JUDGE C

Application:

Applying to the situation, Ah Seng and Appu, were jointly charged with robbery
pursuant to Section 390 of the Penal Code. They both have previous convictions of house
breaking and theft. However, the nature of robbery and their previous act of house breaking
and theft is in a different nature and could not be brought as an evidence of SFE in court.

This is because the act is not similar and it does not form part as a series of similar
occurrences. It also does not relate to the particular fact in question. Thus, it does not fall within
the strict test of the admissibility of SFE.

Conclusion:

Therefore, the Similar fact evidence is not relevant and admissible. Thus, the court's
decision in convicting both the accused on their bad character of their previous conviction is
wrongly made.

-Put relevant case to show abt bad character.

-if this the obly evidence given, then judge not correct bcs you should tried the wrong not the man