CHARACTER EVIDENCE

1. Meaning of character

Character bears at least three distinct meanings in the context of the law of evidence

a) may refer to the reputation in which a person is held in his community, among
those by who he is known
b) may refer to the disposition of a person to behave in a certain way
c) may refer to specific incidents in the personal history of the subject, e.g
previous convictions for criminal offences.

Situations in which evidence of character is relevant is provided in SS 52, 53, 54 & 55 EA

Except for S 54, the other sections only allow for evidence of general reputation and
general disposition, and not of particular acts by which reputation or disposition is shown.

What is Reputation?

• Refers to what others think about the person concerned. It concerns and refers to the
general credit which the person has obtained amongst the public. It is a definite
and final formulation of opinion and based upon a general trait of character. This is
different from rumour which is based on a single incident, act or occurance.
See DP Vijandran v Karpal Singh & Ors (2000)3 MLJ 22
Plato Films Ltd v Speidal (1961) 1 AER 876

‘Character’, ‘reputation’ and ‘rumour’ to be distinguished.

‘Character’ is what a person actually is, and ‘reputation’ is, what neighbours say,
what he is. Thus a man may have, in fact, a good character and yet suffer from
bad reputation or vice versa. ‘Reputation is what is reputed. It is the common
knowledge of the community or a general opinion is respect of a person. It is the
estimation in which a person is held by others and not the opinion which he may
have of himself. ‘Reputation’ is composite hearsay, but it is admitted in evidence
on grounds of necessity. ‘Reputation’, however, is distinguished from ‘rumour’.

Professor Wigmore:
“Reputation, being the community’s opinion, is distinguished from mere rumour in
two respects. On the one hand, reputation implies the definite and final formation
of opinion by the community; while rumour implies merely a report that is not yet
finally credited. On the other hand, a rumour is usually thought of as signifying a
particular act or occurrence, while a reputation is predicated upon a general trait
of character, a man’s reputation, for example, may declare him honest, and to-day
rumour may have circulated that this reputed honest man has defaulted yesterday
in his accounts.”
 What is Disposition ?

Refers to the inherent qualities of a person, the way he acts or reacts to a situation. It is his
real self as opposed to reputation of what he is considered to be. A person may be
reputed to be a good person but may have a bad disposition.

Disposition evidence is of value not only upon the witnesses' perspicacity but also on
their opportunities to observe a person as well the person's cleverness to hide his real
traits. But a disposition of a man can make up many traits either good or bad but only
evidence to a particular trait which is familiar to the witness is of use.

2. Relevance of character evidence

3. CHARACTER EVIDENCE IN CIVIL CASES

• Relevant sections - ss52 & 55 EA

Evidence of character does not assist in the determination of the issues involved in a
civil case. It becomes relevant when it is an issue before the court. The obvious
example will an action for defamation. The extent to which the plaintiffs character will
be a fact in issue affecting liability will depend upon what is pleaded and the
defences raised. Depending on the issues raised by the pleadings, the plaintiffs
character may prove to be in issue in its widest sense, including general reputation,
disposition to behave in certain ways and specific prior conduct.

On the issue of damages, it will be the general reputation of the plaintiff that is in issue,
since the action is brought to recover damages for injury to reputation. What
must be decided is the plaintiffs reputation prior to publication of the defamatory matter,
and the extent to which that reputation has been injured or diminished.
See S55 EA - this is corollary to S12EA (in suits in which damages are claimed, any fact
which will enable the court to determine the amount of damages which , he ought to be
awarded is relevant)

Sandison v Malayan Times Ltd and Ors [1964] MLJ 332 (HC)
Scott v Sampson (1982)8 QBD 491
Plato Films Ltd v Speidal (1961) AC 1090
Goody v Odhams Press Ltd (1967) 1 QB 333
John Lee & Anor v Henry Wong Jan Fook [1981] 1 MLJ 108 (FC)

4. CHARACTER EVIDENCE IN CRIMINAL CASES

• Relevant sections : SS53,54 & explanation to S55

• S53 - In criminal proceedings the fact that the person accused is of good
 character is relevant

• Role & Scope of character evidence

i) In determining the innocence or guilt of the accused his character

may play a prominent part.
In criminal proceedings a man's character is often a matter of importance
in explaining his conduct and in judging his innocence or criminality.
However it is considered weak evidence in the sense that it cannot out
weigh positive evidence in regard to the guilt of a person.

It may be useful in doubtful cases to tilt the balance in favour of the

accused or it may also afford a background for appreciating his reactions
in a given situation but it must give place to acceptable positive evidence.
See Bhagwan Swarup v State of Maharastra Air 1965 SC

' In cases of bribery, like all criminal cases, the golden rule is that the
accused person cannot be convicted unless the court is satisfied beyond
reasonable doubt that he is guilty...where the accused person in a bribery
case pleads and produces evidence of good character which the court
regards as satisfactory, and if it appears to the court that the person
possessing such a character would not be likely to act, in the
circumstances proved to have existed at the time, in the manner alleged
by the prosecution, such improbability must be taken into account in
determining the question whether or not there is reasonable doubt as to
the guilt of such accused person.'

Per Raja Azlan Shah J in Syed Ismail v PP [1967] 2 MLJ 123

ii) Character evidence in sentencing -

Character evidence plays an important role in the sentencing
process. It is accepted practice for the court to inquire whether or
not the accused person has previous convictions before imposing
sentence.

See SS 173A & 294 CPC

Good character again is a matter that must be taken is assessing sentence.

5. DIFFERNCE IN APPROACH ON CHARACTER EVIDENCE IN CIVIL AND

CRIMINAL CASES

Baron Martin in A.G. v Radloff (1854)10 Exch 84

'In criminal cases evidence of the good character of the accused is most properly
and with good reason admissible in evidence, because there is a fair and just
 presumption that a person of good character would not commit a crime, but in civil
cases such evidence is with equal good reason not admissible because no
presumption would fairly arise, in the very great proportion of such cases, from the
good character of the defendant, that he did not commit the breach of contract or a
civil duty alleged against him.'

S54(l) EA

• Contains 2 sub-sections (1) & (2)

• S54(l) allows bad character evidence of the accused to be led by the prosecution in reply
to his adduction of good character.

Must be noted that under this subsection evidence of bad character of the accused is
only admissible if evidence of his good character has been given. Such evidence of good
character need not be given by the accused himself. Evidence of bad character of the
accused may be given by way of independent evidence or x-examination of the accused
himself.

Thus in Shanmugam v PP [1963] MLJ 125(HC)

The court pointed out that where an accused has not put his character in issue but
merely attacked the character of the prosecutor (or his witness) in x-examination,
evidence cannot be called by the prosecution to prove that he is a man of bad character.
See PP v Choo Chuan Wang [1992] 2 CLJ 1242

• S54(2) only comes into being pursuant to an amendment in 1971, where we have now S
54(2)(a), (b) & (c). This is a replica of the UK's S l(f)(i), (ii) & (iii) of the Criminal Evidence
Act 1898.
• Hence frequent reference have to be made to English decisions on interpretation
ofS54(2)(a),(b)&(c)
S54(2) provides a general prohibition on questioning previous bad character-

A person charged and called as a witness shall not be asked, and if asked shall
not be required to answer , any question tending to show that he has committed, or
been convicted of or been charged with, any offence other than wherewith he is
then charged, or is of bad character.

This section prohibits the prosecution/co-accused from asking questions of the accused
on his previous commission of an offence, previous convictions, previous charges and on
matters which show his bad character.

Sub sec (2) (a), (b) & (c) then refers to situations when the prohibited questions can be
asked.

• S 54(2) together with S I20(3) EA makes the accused person a 'competent'

witness but not a 'compellable' one in respect of his own defence.
 • The 'prohibition' in S54(2) gives the accused a 'shield' or 'protection' against
highly prejudicial revelations of prior convictions or bad character generally

• But it is to be noted that the shield is not a cast iron shield since there are
vulnerabilities.

• Note some important phrases in S 54(2)

(a) the words 'shall not be asked' - indicating that the prohibition is
only restricted to the x-examination of the accused.
Hence the prohibited questions may be asked of the accused by his own
counsel in examination-in-chief.

(b) the words 'tending to show'

would mean 'reveal to the jury for the first time' see
Jones v DPP (1962) AC 635

Hence if the accused had himself disclosed matters prohibited by the subsection
in the course of exam-in chief the accused may be x-examined on without
offending the section as the question asked would not disclose to the jury
anything that they did not already know.

(c ) words 'committed or been convicted' and 'been charged with'

'charged means 'charged in the court of law'

See Stirland v DPP (1944) AC 315

See Maxwell v DPP (1935) AC 309

(d) words 'any offence' refers to offences committed before the

offence charged see R v Coltress (1978) 68 Cr App R 193

S 54(2)(a)

• Relates to x-examination on similar fact evidence

• X-examination under this head will bear directly upon the question of guilt - there must be
a strong link between past misconduct and present guilt. X-examination is allowed not
only on the bare details of the offences but also on the facts behind them.

• Similar fact evidence is evidence of prior conduct on the part of the defendant which is
relevant to guilt as charged because the prior conduct bears a striking similarity to the
facts of the offence now in question that the tribunal of fact should be driven to the
conclusion that the latter must be the work or act of the person who committed the prior
conduct. It finds
 primary use in rebutting defences such as accident, lack of intent and lack of knowledge
and tends to prove the opposite facts of intent etc.

S 54(2) (b)

• Provides for 2 exceptions:

1st limb - relates to the accused's good character being established

How done? - i) via x-examination of prosecution witness

ii) accused himself giving evidence of own good character

■ What constitutes 'assertion of good character'

It can be assumed that the rule will cover any evidence adduced by the defence which is
not otherwise relevant to the issue of guilt and which in fact has the effect of inviting the
jury to infer that the defendant is a man less likely, from whatever considerations of
character, to have committed the offence charged than would otherwise have appeared to
them to be the case.

In Rv Redd (1923) 1KB

Accused gave evidence on his own behalf. He was not represented. He called a witness
who without being asked gave evidence of accused's good character. Prosecution was
then allowed to x-examine on accused's previous conviction.
Conviction was quashed on appeal. Court held that accused was not seeking to give
evidence of his own good character via his own witness.

Rv Ellis [1910] 2 K.B. 746 (CCA)

The accused , an antique dealer, was charged with obtaining cheques from customer
named Dickens by false pretences. He had agreed to sell at cost plus 10% profit. The
prosecution alleged that he had represented the cost to be higher than it really was. In
the course of his examination- in –chief assused answered questions about his conduct
towards the customer with a view to negativing any intent to defraud. The Court of
Criminal Appeal held that he ought not to have been asked questions under s 1(f)(ii) (s
54(2)(b)EA) because evidence had not been given with a view to establishing good
character. To lose his shield under s 1 (f)(ii) he must have asked questions of the
witnesses for the prosecution, or he must have given evidence with a view to
establishing his good character. He was questioned as part of the general examination
as to the surrounding circumstances of the alleged crime.

R v MaIindi (1967)AC439

Here court held that where evidence of good character is a relevant part of the
accused's defence, the shield is not lost.

R v Ferguson (1909) 2 Cr App R 250

The accused was charged with stealing 4 pamphlets from a church. He stated in
evidence that he had attended mass and service for over 36 years and had never taken
any article from his faith and had bought the pamphlets when in church saying his
prayers. Here the accused was held to have lost his shield.

R v Baker (1912) 7 Cr App. Rep. 252

Accused stated in his evidence that for 4 years he had been earning an honest living.
This let to the loss of his shield.

In R v Coulman (1927) 20 Cr. App. Rep. 106

In a case of indecent assault of 2 males under 16, the accused lost his shield when
he gave evidence that he was married with 3 children and in regular work. The
court held that that amounts to assertion of good character.

Rv Samuel (1956) 40 Crim App R 8

The accused was held to have been properly convicted of larceny by finding and
retaining a camera bearing the name of its owner. He threw away his shield by putting
his character in issue in referring to occasions on which he had taken steps to restore
lost property to those entitled to it, and was accordingly x-examined about his previous
convictions for theft.

2nd limb - when imputation is cast on the prosecution?

It seems that any charge of faults or vices, reputed or real, will amount to an imputation
on character. The classic case would to attribute to the prosecutor or his witness of the
actual offence charged but the same result will follow where the charge made involves
some other offence, or behaviour which is not criminal but might be thought morally
discreditable, in the light of current public opinion.

Such imputation may be made by x-examination of the prosecutor or his witness or in

evidence by the defendant.

Rv Rouse (1904) 1 KB 184

Accused responded to the prosecutor's allegation by saying 'No, it's a lie,and he is a liar'
Court held this was not sufficient to lead to the loss of the accused's shield
The accused's response was merely a denial of guilt which was done forcefully

Darling J :

'Merely to deny a fact alleged by the prosecution is not necessarily to make an attack on
the character of the prosecutor or his witnesses. Such a denial is necessary and
 inevitable in every case where the prisoner goes into the witness box, and is nothing
more than a traverse of the truth of an allegation made against him; to add in x-
examination that the prosecutor is a liar is merely an emphatic mode of denial, and does
not affect its essential quality'.

R v Rappolt (1911) 6 Cr App R 156

The accused was to have lost his shield when he conveyed his denial by saying that the
prosecution witness was such a horrible liar that even his brother would not speak to him

Rv Hudson (1912) 2 KB 464

Where the lies of the prosecution was said by the accused to be designed to conceal the
fact that the witness had committed the offence. Accused lost the shield.

Rv Goodwin (1993) 2NZLR 153

The accused said that he had no knowledge of the knife found in his car or of how it
came to be there. The judge ruled that this constituted an imputation that the knife had
been planted by the police.
On appeal, it was held that it was open to the accused to deny knowledge of an
incriminating fact without necessarily importing an imputation.

The above cases distinguish between denials and allegations.

In Rv Jones (1923) 17Cr App 117

This distinction was applied in the context of confession evidence.

Lord Hewart CJ stated :

'It is one thing for the appellant to deny that he had made the confession; but it is
another to say that the whole thing was a deliberate concoction on the part of the
inspector'

In other words, the emphasis switched from defence to attack on the integrity of the
witness.
The use of the words 'nature' and 'conduct' implies that the very assertion of certain lines
of defence may itself lead to the loss of the shield. Indeed it has been held that even
where the making of such imputations is an indispensable part of the defence , and it is
regretted, the shield will be lost.

In Rv Bishop [1975] QB 274

The accused was charged for burglary. His fingerprints were found in the complainant's
room. The accused's explanation was that this was because he was having a
 homosexual relationship with the complainant who had given evidence as a prosecution
witness.
The court held that an imputation may consist of an allegation that the prosecution
witness committed some offence or it may consist of an allegation of human behaviour
which was not criminal but which might be thought morally distastable in the light of
current public opinion. Even -though the evidence here was part of his defence in
the sense that it negated trespass, the court held that it would still amount to an
imputation.

In Selvey v DPP [1970] AC 304

The accused was charged with buggery, with M. In addition to the allegation that no such act
had ever occurred, it was suggested to M in x-examination (inevitably, since it was the
defence) that M had offered to commit buggery with the defendant in return for money, and had
falsely accused the defendant when the offer was refused. It was held that the defendant lost
his shield. The prosecution was£ allowed to x-examine the accused on his previous convictions
for indecent assault on young boys and persistently soliciting for an immoral purpose.

The House of Lords in this case reviewed all the English cases and the position was
summarized by Viscount Dilhorne :

1. The words of the statute must be given their ordinary natural meaning

2. The section permits cross-examination of the accused as to character both

when imputations on the character of the prosecutor and his witness are cast to
show unreliability as witnesses independently of the evidence given by them
and also when the casting of such imputations is necessary to enable the
accused to establish his defence.

3. In rape cases the accused can allege consent without placing himself in peril of
cross-examination . This may be because such cases are sui generis
(per Devlin J in R v Cook ), or on the ground that the issue is one raised by the
prosecution.

4.If what is said amounts in reality to no more than a denial of the charge, expressed, it
may be, in emphatic language, it should not be regarded as coming within the
section..'

Purpose of the x-examination

- to discredit the accused

Position clarified by Darling J in R v Morrison (1911) 6 Cr App R 159

'The only use to be made of these previous convictions is to show that when you
have to rely on his (prisoner's) word as contradicting something stated by
somebody else ...you have not the word of a person who has done nothing
wrong .. you have only the word of a man whose past career has been what you
 know it had been'

S54(2)(c)

• This exception applies where the accused has given evidence against any other person
charged with the same offence.

• What constitutes 'same offence'

Commissioner of Polis v Hills [1980] AC 26

Held by the House of Lords that for the offences charged to be regarded as the same for
the purposes of section 1 (f) (iii) of the Criminal Evidence Act 1898 they must be the
same in all material respects including the time at which the offence was alleged to have
been committed, and a distinct and separate offence similar in all respects to an offence
committed later, no matter how short the interval between the two, could not properly be
regarded as "the same offence"

In England, as a result of the above case, the words '...with the same offence' in the
proviso were amended to read as '...in the same proceedings' pursuant to S 1(1)
Criminal Evidence Act 1979. No such amendment has been made to our equivalent
provision.

In R v Lovett [1973] 1 All ER 744

L was charged with stealing a TV set and G. his co-accused, was charged with handling
it. L cast serious imputations on a witness for the prosecution and gave evidence
against G. G's counsel immediately cross-examined L on his previous convictions. He
was convicted and G was acquitted.
The Court of Appeal held that x-examination under s l(f)(iii) was improper because the
two accused were not charged with the same offence.

What constitutes 'Has given evidence against'

The House of Lords in Murdoch v Taylor (HL)[1965] AC 574 stressed that what has to
be considered is the effect of the defendant's evidence on the case for the co-defendant
The expression 'given evidence against' does not connote any hostile intent by the
defendant towards the co-defendant What is material is the impact of the evidence, not
the motive with which it was given. An objective assessment must be made of the effect
likely to be produced on the jury.
A defendant will have given evidence against the co-defendant if his evidence either
supports the prosecution case against the co-defendant in a material respect, or
undermines the case for the co-defendant, thereby making it more likely that the co-
defendant will be convicted.

In R v Bruce & Ors [1975] 1 WLR 1252

 B & M were charged jointly with robbery. They were convicted by the jury of theft. M's
defence was that there had been a plan to rob, but that he had not been a party
to it. B's defence was that there had never been a plan to rob at all.
The Court of Appeal held that B had not 'given evidence against' M within the meaning
of the section. Although his evidence contradicted that of M, its effect, if believed, was to
render it more likely that M would be acquitted, there having been no plan to commit the
offence charged.

In R v Varley [1982] 2 All ER 519

The accused and one Dibble, were accused of participating in a robbery. Dibble's
defence was that although he did participate, he was acting under threats on his life
made by Varley. Varley's defence was that he had not been involved at all. He argued
that such a defence ought not to be construed as amounting to giving evidence 'against'
Dibble.

The Court of Appeal, by--way of guidance, laid down the following propositions:

1) If it is established that a person jointly charged has given evidence against

the co-defendant that defendant has a right to cross-examine the other
as to previous convictions and the trial judge has no discretion to refuse
an application.

2) Such evidence may be given either in chief or during cross-examination

3) It has to be objectively decided whether the evidence either supports the

prosecution case in a material respect or undermines the defence of the
co-accused. A hostile intent is irrelevant.

4) If consideration has to be given to the undermining of the other's defence

care must be taken to see that the evidence clearly undermines the
defence. Inconvenience to or inconsistency with the other's defence is not
of itself sufficient.

5) Mere denial of participation in a joint venture is not of itself sufficient to

rank as evidence against the co-defendant. For the proviso to apply,
such denial must lead to the conclusion that if the witness did not
participate then it must have been the other who did.

6) Where the one defendant 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 the co-defendant.

Purpose of x-examination in co-accused cases

The only purpose of such x-examination is to attack the credibility of the accused -
see Murdock v Taylor

Can the co-accused counsel x-examine as of right or does the judge have a
discretion to disallow the x-examination?

See the Varley guidelines above cf S 120(3) EA (no similar provision in English law)

Can the prosecution x-examine under S 54(2)( c)?

There is nothing in the Evidence Act nor the English equivalent that prevents x-
examination by the prosecution under the above provision. This course was
envisaged by the court in Murdoch v Taylor but the court held that it would be
subject to the discretion of the judge.
When will the prosecution want to x-examine under this section?