UNAM

FACULTY OF LAW
LAW OF EVIDENCE

CHARACTER EVIDENCE & SIMILAR FACT EVIDENCE

LECTURER: LIZAZI EUGENE LIBEBE

 LESSON OBJECTIVES

EXPLAIN AND APPLY THE RULES PERTAINING TO:

• CHARACTER EVIDENCE
• SIMILAR FACT EVIDENCE
APPLICABLE IN CIVIL AND CRIMINAL CASES
 CHARACTER EVIDENCE

• INTRODUCTION
 CONCERNED WITH WHAT EVIDENCE PERTAINING TO CHARACTER & DISPOSITION MAY BE
ADDUCED
 TWO CATEGORIES:
 GENERAL REPUTATION IN THE COMMUNITY YOU LIVE (MORAL & ACTUAL CHARACTER)
A PERSON’S DISPOSITION TO THINK OR ACT IN A PARTICULAR WAY (TRAITS)
 RULES PERTAINING TO CHARACTER EVIDENCE IN CRIMINAL & CIVIL CASES DEALT WITH BELOW
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES

• THE CHARACTER OF THE ACCUSED

 SECTION 227 OF CPA (AMENDED BY SECTION 17 OF ACT 8 OF 2000)
 SECTION 227A OF CPA “EVIDENCE OF SEXUAL CONDUCT OR EXPERIENCE OF COMPLAINANT OF
RAPE OR OFFENCE OF AN INDECENT NATURE”
 GENERAL RULE: ACC MAY ADDUCE EVIDENCE OF OWN GOOD CHARACTER BUT PROSECUTION
PROHIBITED TO ADDUCE EVIDENCE OF HIS BAD CHARACTER, SUBJECT TO EXCEPTIONS..
 R v ROWTON 1865 LE & CA 520 540, 169 ER 1497 1506 (ON EVIDENCE OF ACCUSED’S GOOD
CHARACTER): “SUCH EVIDENCE IS ADMISSIBLE BECAUSE IT RENDERS IT LESS PROBABLE THAT WHAT
THE PROSECUTION HAVE AVERRED IS TRUE. IT IS STRICTLY RELEVANT TO THE ISSUE”
 EVIDENCE OF ACCUSED’S BAD CHARACTER CONSIDERED DISPROPORTIONATE & IRRELEVANT IN
ENGLISH LAW (AND BASIS FOR SOUTH AFRICAN LAW)
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES

• THE CHARACTER OF THE ACCUSED

 PAST BEHAVIOR A GOOD INDICATOR OF LIKELY FUTURE BEHAVIOR?
 DISPOSITION EVIDENCE MAY BE LOGICALLY RELEVANT IN ESTABLISHING THE LIKELIHOOD OF A
PARTICULAR BEHAVIOR OCCURRING?
 GENERALIZED APPLICATION OF SOCIAL PSYCHOLOGY & ACCURACY OF PAST BEHAVIOR AS
PREDICTOR OF FUTURE BEHAVIOR. PREJUDICIAL?
 WAYS ACCUSED MAY ESTABLISH GOOD CHARACTER: TESTIFYING HERSELF; CALLING
WITNESSES OR BY XX OF PROSECUTION WITNESSES
 THE PROSECUTION CAN RESPOND BY INTRODUCING EVIDENCE OF BAD CHARACTER &
ACCUSED MAY RENDER HIMSELF LIABLE TO XX AS TO BAD CHARACTER IN TERMS OF SECTION
197 OF THE CPA
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES

• EVIDENCE OF THE ACCUSED’S BAD CHARACTER

 THREE WAYS THE PROSECUTION MAY RESPOND:
 ADDUCING EVIDENCE OF BAD REPUTATION
CROSS-EXAMINING CHARACTER WITNESSES
CROSS-EXAMINING THE ACCUSED
 IF THE ACCUSED ATTACKS THE CHARACTER OF PROSECUTION WITNESS BUT DOES NOT
ADDUCE EVIDENCE AS TO HER OWN GOOD CHARACTER, PROSECUTION MAY NOT ADDUCE
EVIDENCE OF ACCUSED’S BAD CHARACTER ( R v PALUSZAK 1938 TPD 427)
 R v BUTTERWASSER 1948 1 KB 4, 1947 2 ALL ER 415: DEFENCE’S XX OF STATE WITNESS AS TO
THEIR PREVIOUS CONVICTIONS DID NOT PERMIT THE PROSECUTION TO CALL A POLICE
OFFICER TO TESTIFY AS TO ACCUSED’S PREVIOUS CONVICTIONS. THE ATTACK ON
PROSECUTION WITNESS DIRECTED AT PUTTING THEIR CHARACTER IN ISSUE & NOT CHARACTER
OF ACCUSED..
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES

• SECTION 197 OF THE CPA: “PRIVILEGES OF ACCUSED WHEN GIVING EVIDENCE”

“…ACCUSED MAY NOT BE ASKED OR REQUIRED TO ANSWER ANY QUESTION TENDING TO
SHOW…..THAT HE IS OF BAD CHARACTER…UNLESS:
(a) HIMSELF OR LEGAL REPRESENTATIVE ASKS ANY QUESTION OF ANY WITNESS WITH A
ESTABLISHING HIS GOOD CHARACTER…..
(b) HE GIVES EVIDENCE AGAINST ANOTHER PERSON CHARGED WITH THE SAME OFFENCE OR
OFFENCE IN RESPECT OF SAME FACTS…
(c) THE PROCEEDINGS AGAINST HIM ARE DESCRIBED IN SECTION 240 OR 241 OF THE CPA..
(d) THE PROOF THAT HE HAS COMMITTED OR BEEN CONVICTED OF SUCH OFFENCE IS
ADMISSIBLE EVIDENCE TO SHOW THAT HE IS GUILTY OF THE OFFENCE WITH WHICH HE IS
CHARGED…
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES
• SECTION 197 OF THE CPA
 DO NOT PERMIT EVIDENCE OF BAD CHARACTER TO BE ADDUCED BY PROSECUTION
 ONLY MAKES PROVISION FOR CROSS-EXAMINATION OF ACCUSED

• SECTION 197(a) PROTECTS ACCUSED AGAINST XX DIRECTED AT SHOWING BAD

CHARACTER OR PREVIOUS CRIMINAL RECORD
 HOWEVER, ACCUSED WILL LOSE THIS PROTECTION/SHIELD BY: ADDUCING EVIDENCE AS TO
HIS OWN GOOD CHARACTER; ATTACKING THE CHARACTER OF A PROSECUTION WITNESS; OR
BY TESTIFYING AGAINST ANY OTHER PERSON CHARGED WITH THE SAME OFFENCE OR IN
RESPECT IN RESPECT OF THE SAME FACTS…
 SECTION 197(A) COMPLEMENTS THE COMMON LAW RULE WHICH PERMITS THE PROSECUTION
TO ADDUCE EVIDENCE OF BAD CHARACTER IN SUCH CIRCUMSTANCES.
 ONCE ACCUSED PUT HIS CHARACTER IN ISSUE HIS WHOLE CHARACTER WILL BE SUBJECT TO
XX
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES

• SECTION 197(a)
 IN STIRLAND v DPP 1944 AC 315 326-7: “AN ACCUSED WHO PUTS HIS CHARACTER IN ISSUE
MUST BE REGARDED AS PUTTING THE WHOLE OF HIS PAST RECORD IN ISSUE. HE CANNOT
ASSERT HIS GOOD CONDUCT IN CERTAIN RESPECTS WITHOUT EXPOSING HIMSELF TO
INQUIRY ABOUT THE REST OF HIS RECORD SO FAR AS THIS TENDS TO DISPROVE A CLAIM OF
GOOD CHARACTER”.
 IF ACCUSED IS LED BY THE PROSECUTION INTO MAKING ASSERTIONS AS TO HIS GOOD
CHARACTER, THIS WILL NOT PUT ACCUSED’S CHARACTER IN ISSUE (R v BEECHAM 1921 3 KB
464).
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES

• SECTION 197(b)
 MAKES ACCUSED LIABLE TO XX AS TO CHARACTER IF SHE GIVES EVIDENCE AGAINST ANY
OTHER CHARGED WITH THE SAME OFFENCE OR OFFENCE IN RESPECT OF THE SAME FACTS
 HOWEVER, THE PERSON WHO HAS BEEN CHARGED WITH THE SAME OFFENCE, CONVICTED &
SENTENCED PRIOR TO TESTIFYING WILL NOT BE CONSIDERED AN ACCUSED (S v DLAMINI 2008
1 SACR 501 (N)).
 EVIDENCE AGAINST A CO-ACCUSED SUPPORTS THE PROSECUTION CASE IN A MATERIAL
RESPECT & UNDERMINES DEFENCE OF CO-ACCUSED. ACCUSED’S INTENTION IN GIVING SUCH
EVIDENCE IS NOT RELEVANT ( MURDOCH v TAYLOR 1965 AC 574).
 HOWEVER, IF ONE ACCUSED MERELY DENIES THAT HE TOOK PART IN A JOINT VENTURE, IT
DOES NOT CONSTITUTE GIVING EVIDENCE AGAINST A CO-ACCUSED UNLESS IT IMPLIES THAT
HIS CO-ACCUSED DID PARTICIPATE IN IT
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES
• SECTION 197(b)
 THE WORDING OF SEC 197(B) CONFERS NO DISCRETION TO RESTRICT CROSS-EXAMINATION
ON GROUNDS OF IRRELEVANCY (S v MAZIBUKO 1988 3 SA 190 (A) 197).
 HOWEVER, IN S v PIETERSEN 2002 1 SACR 330 (C) 334I WAS STATED THAT… THE COURT HAS
A DISCRETION RESTRICT AND CONTROL THE AMBIT OF XX IN SEC 197(B). THE DISCRETION
MUST BE EXERCISED IN LIGHT OF PRINCIPLES GOVERNING RELEVANCE. THE XX MUST BE
RELEVANT TO THE ISSUE OF CREDIBILITY & MUST NOT PREJUDICE THE ACCUSED BEING CROSS-
EXAMINED IN THE CONDUCT OF HIS DEFENCE TO THE EXTENT THAT HIS RIGHT TO A FAIR TRIAL
IS UNDERMINED.
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES

• SECTION 197(c)
 PROVIDES FOR CHARGES RELATING TO STOLEN PROPERTY
 ACCUSED MAY BE QUESTIONED IN RESPECT OF HER PREVIOUS CONVICTIONS AND BAD
CHARACTER
 RATIONALE???
 TO ALLOW THE PROSECUTION IN A RECEIVING CHARGE TO XX ON MATTERS WHICH THEY
COULD BE ENTITLED TO PROVE UNDER SECTION 240 & 241 OF THE CPA (ZEFFERT, PAIZES &
SKEEN)
 SUPPORTED BY A LITERAL INTERPRETATION OF SECTION 197(C)???
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES
• SECTION 197(d)
 ACCUSED MAY BE CROSS-EXAMINED AS TO PREVIOUS OFFENCES IF PURPOSE OF SUCH
EVIDENCE IS TO SHOW THAT HE IS GUILTY OF THE OFFENCE WITH WHICH HE IS CHARGED.
 THE COURTS HOLD THAT THE SECTION DOES NOT PROHIBIT THE ACCUSED BEING ASKED
QUESTIONS RELEVANT TO AN ISSUE BEFORE THE COURT EVEN IF SUCH QUESTIONS TEND TO
SHOW BAD CHARACTER OR TO REVEAL THE ACCUSED’S PREVIOUS CONVICTIONS.
 THUS IT CAN BE SAID THE SECTION MERELY CONFIRMS THE SIMILAR FACT RULE.

• CHARACTER OF COMPLAINANT
 COMPLAINANT SUBJECT TO XX IF TESTIFIES
 XX TO EXPOSE THE WITNESS’S CREDIBILITY OR LACK THEREOF
 HOWEVER CHARACTER OR DISPOSITION OF COMPLAINANT NOT RELEVANT TO CREDIBILITY
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES

• CHARACTER OF COMPLAINANT
 GENERALLY, EVIDENCE SOLELY DIRECTED AT ESTABLISHING COMPLAINANT’S GOOD
CHARACTER & BAD CHARACTER PROHIBITED (R v WOOD 1951 2 All ER 112)
 NEVERTHELESS, IN A FEW EXCEPTIONAL CATEGORIES COMPLAINANT’S CHARACTER VIEWED
RELEVANT
 RAPE OR INDECENT ASSAULT & CRIMEN INIURIA
 COMMON LAW RULE: ACC MAY ADDUCE EVIDENCE OF COMPLAINANT’S BAD REPUTATION
FOR LACK OF CHASTITY & DEFENCE MAY QUESTION COMPLAINANT AS TO HER PREVIOUS
SEXUAL RELATIONS WITH ACC.
COMMON LAW CRITICIZED: (a) XX OF SEXUAL HISTORY TRAUMATIZES & HUMILIATES THE
VICTIM & EVIDENCE IT ELICITS IRRELEVANT (b) EVIDENCE OF THIS NATURE INADMISSIBLE IN
OTHER CASES (C) POSSIBILITY OF SUCH XX DETERS VICTIMS FROM REPORTING THE OFFENCE.
 CHARACTER EVIDENCE
CHARACTER IN CRIMINAL CASES

• CHARACTER OF COMPLAINANT
 SECTION 227 OF CPA AMENDED IN RSA IN 2007 TO PROVIDE FOR SEXUAL HISTORY
EVIDENCE, FOR GENDER-NEUTRALITY & LEAVE OF COURT
 S v M 2002 2 SACR 411 (SCA)
 S v ZUMA 2006 2 SACR 664 (C)
 CRIMEN INIURIA
 PROVE INSULT TO THE COMPLAINANT’S DIGNITY
EVIDENCE ESTABLISHING THAT COMPLAINANT NOT TYPE OF PERSON WHO WOULD HAVE
BEEN INSULTED IN THE CIRCUMSTANCES, WILL BE REGARDED AS RELEVANT (R v VAN TONDER
1932 TPD 90).
 CHARACTER EVIDENCE
CHARACTER IN CIVIL CASES

• CHARACTERS OF THE PARTIES CONSIDERED IRRELEVANT

• HOWEVER, RELEVANT IN SPECIFIC CASES IN RESPECT OF AN ISSUE OR IN QUANTIFICATION OF
DAMAGES
• EXAMPLE: AN ACTION OF SEDUCTION (VIRGINITY OF PLAINTIFF ESSENTIAL ELEMENT, SO
EVIDENCE WHICH SHOWS THAT THE PLAINTIFF HAS A PERMISSIVE DISPOSITION WILL BE
REGARDED RELEVANT) see VAN STADEN v RUDY 1908 EDC 7.
• EXAMPLE: DEFAMATION ACTION A PARTY WHO FAILS IN HER DEFENCE MAY ADDUCE
EVIDENCE OF THE PLAINTIFF’S GENERAL BAD REPUTATION IN MITIGATION OF DAMAGES (see
SENGKE v BREDENKAMP 1948 1 SA 1145 (O)).
• EVIDENCE OF CHARACTER MAY ALSO BE ADMITTED IN TERMS OF THE “SIMILAR FACT RULE”
 SIMILAR FACT EVIDENCE (SFE)
• INTRODUCTION
“evidence which refers to the peculiar or immoral or illegal conduct of a party on an occasion
or occasions other than the incident or occurrence in contention, but which is also of such a
character that it is pertinent to or in essentials similar to the conduct on the occasion which
forms the issue or subject-matter of the dispute” per Friedman ACJ in S v M 1995 1 SACR 667
(BA) @ 684 .
 Similar facts are often relevant & admissible for purposes of proving character.
 Similar facts directed to show that a party to proceedings has behaved on other occasions in
the same way as he is alleged to have behaved in the circumstances presently considered by
court.
 SFE generally inadmissible because it is irrelevant, admissible only when both logically &
legally relevant - See S v Jones 2004 1 SACR 420 (c).
 SIMILAR FACT EVIDENCE
• THE RATIONALE FOR EXCLUSION OF SFE
Generally irrelevant because its prejudicial effect outweighs its probative
value – how?? Example??
 May result in procedural inconvenience due to litigation of collateral issues
making the trial length, costly & placing additional demand on judicial
resources… (disclosure?)
 Has potential to undermine the proper administration of justice e.g. Sloppy
investigation techniques & discourages rehabilitation.
A fair trial is put in jeopardy if irrelevant SFE is admitted – Article 12 Const.
 SIMILAR FACT EVIDENCE
• THE FORMULATION IN MAKIN v ATTORNEY-GENERAL FOR NEW SOUTH WALES 1984
AC 57 (PC) 65
The most influential formulation..
Not competent for the prosecution to adduce similar fact evidence for purposes of
leading to a conclusion that accused committed the offence he is being tried.
Further, SFE not inadmissible if relevant to the issue & may also be relevant if it
bears upon the question whether the acts alleged to constitute the crime charged in
the indictment were designed or accidental, or to rebut a defence which would
otherwise be open to the accused.
Facts of the case??
SFE may not be admitted if it is used only to establish propensity & that accused is
guilty because he has a propensity to act in a particular way.
 SIMILAR FACT EVIDENCE
• INADEQUACIES OF THE MAKIN CASE FORMULATION
 Fails to explain several cases.
 In many cases, propensity itself is so highly relevant to the issue in a particular case, that
evidence of propensity itself is admitted.
 R v Straffen 1952 2 QB 911 “…was difficult to argue that the probative value of the evidence
was not based on propensity, since it established that the accused possessed a propensity of
the most unusual kind : he was a strangler of small girls, in peculiar circumstances, and for
no apparent motive. It was this peculiar propensity that was highly relevant to an issue,
namely the identity of the killer, which made the evidence admissible”.
 Similarly, in S v Moti 1998 2 SACR 245 (SCA): the court held that evidence of a common
modus operandi & the appellant’s direct involvement in similar cases of robbery was relevant
in that it corroborated evidence identifying the appellant. Although the SFE was admissible
for identification purposes it could not be used to sustain an inference that the appellant
participated in the robbery.
 SIMILAR FACT EVIDENCE

• INADEQUACIES OF THE MAKIN CASE FORMULATION

 IN R V BOND 1906 2 KB 389 @ 424: ‘In proximity of time, in method or in circumstances
there must be a nexus between the two sets of facts, otherwise no inference can be safely
induced therefrom”.
 The nexus requirement: there must be a link between the facts in issue (the probandum) and
the similar fact (the probans).
 You cannot draw inferences from one transaction to the other which is not specifically
connected with it merely because the two resemble each other. They must be linked together
by the chain of cause and effect in some assignable way before you can draw your
inferences..
 The “nexus requirement” can determine the relevance of evidence & its probative value in
that it can give rise to reasonable inferences in deciding the facts in issue.
 SIMILAR FACT EVIDENCE
• INADEQUACIES OF THE MAKIN CASE FORMULATION
 Makin case - interpreted by many lawyers as establishing rigid categories in which SFE will be
regarded as relevant.
 The danger of categorization – may lead to casuistry, insoluble metaphysical problems as to the
confines of the categories, and to the error of thinking that, because evidence slots into a
category, it will be admissible.

• THE FORMULATION IN DDP v BOARDMAN 1975 AC 421

 Court stressed that it was the application of principle that was of prime importance, the principle
being that SFE is admissible only where its probative value exceeds its prejudicial effect.
 The Makin rule was not rejected rather it was applauded, therefore Boardmann must simply be
read as revealing the underlying principle in Makin case.
 Boardman case clearly demonstrates that in similar fact cases it is the degree of relevance that is
important, not the kind of relevance..
 SIMILAR FACT EVIDENCE
• THE REQUIREMENT OF SIMILARITY
Probative value or force of SFE determined by the degree of similarity.
Striking similarity – when judged by experience and common sense – either all be
true or coincidence.
READ MORE:
The test for coincidence.
Coincidence and a nexus.
The degree of similarity.
 SIMILAR FACT EVIDENCE
• OTHER EVIDENCE
The question must always be whether the SFE taken together with other
evidence would do more than raise or strengthen a suspicion that accused
committed the offence with which he is charged… (DDP v Boardman case
supra).
Relevance of SFE also determined by the strength of other available evidence.
 R v BALL 1911 AC 47 HL.
 S v D 1991 2 SACR 543 (A).

• EXAMPLES OF THE EXCLUSION OF SFE

 LAUBSCHER v NATIONAL FOOD LTD 1986 1 SA 553 (ZS)
 S v MAVUSO 1987 3 SA 499 (A)
 SIMILAR FACT EVIDENCE

• AN ALTERNATIVE OR NEW APPROACH???

Necessity & desirability of sfe??
Mistakes or errors?
Invoking the cautionary rule to guard against the errors or dangers of sfe.
Can you draw a distinction with character evidence??
Reform?? How??
 CONCLUSION
• ANY QUESTIONS, COMMENTS ETC…..???
• TAKE HOME POINTS…!!!!!
• NEXT CLASS TOPICS:
OPINION EVIDENCE