Character Evidence

1. The Meaning of Character

Here, therefore, the term "character" refers only to the character of a person, and
particularly to that of a litigant or a witness. It is usually asserted that, in the law of
procedure, character means reputation and not nature or disposition, but this
assertion is only partially true.

If it were true that a judge who has to take a person's character into account may
only consider his reputation and not his actual disposition, one would have to say
that the law is on the wrong track. It would mean that factum probans and factum
probandum were being confused, that the means of proof was being substituted for
the fact to be proved, because to any thinking person it must be clear that if a
person's character is at all relevant to a court, then it is his true nature or disposition
that is relevant, and not the opinion that the community has formed of him.

In the case of R v Rowton, the court emphasises precisely this point:

It is necessary to consider what is the meaning of evidence of character. Does it

mean evidence of general reputation or evidence of disposition? I am of the opinion
that it means evidence of general reputation. What you want to get at is the tendency
and disposition of the man's mind towards committing or abstaining from committing
the class of crime with which he stands charged; but no one has ever heard the
question what is the tendency and disposition of the prisoner's mind? Put directly.
The only way of getting at it is by giving evidence of his general character founded
on his general reputation in the neighbourhood in which he lives. That . . . is the
sense in which the word "character" is to be taken, when evidence of character is
spoken.

2. Character in Civil Matters

The characters of the plaintiff and the defendant in a civil matter are usually
irrelevant and therefore inadmissible. Obvious exceptions are where the claim is for
damages resulting from things such as defamation, breach of promise, seduction,
divorce and fraud.

By its very nature, an action for defamation centres on the plaintiff's character.
Character evidence may be relevant in two respects. The first is where the defendant
pleads the truth of the allegedly defamatory words. It is then not reputation but the
truth of an allegation that is in issue. Usually a witness will give evidence of specific
events. Where, for example, it is stated that the plaintiff is unfit to hold the office of
prosecutor, the evidence in a case of defamation will probably relate to his conduct
as a prosecutor in court, or where it is stated that he is a liar, attempts will be made
to prove specific lies. The truth of the defamatory words may also be relevant in
cases where the defendant pleads privilege and alleges that he had an honest belief
in the truth of what he said.
Secondly, character evidence may be adduced to determine damages or satisfaction
(solatium), regardless of what defence was pleaded. It is possible that this evidence
may cover specific facts but
apparently only in the exceptional cases when the mitigating factors on which the
defendant relies, are to be found in the circumstances in which the defamatory
allegation was made, or in the truth of the allegation.

3. Character in Criminal Cases

3.1. In terms of s227(1) evidence on the character of an accused will be

admissible or inadmissible if such evidence would have been admissible or
inadmissible on the 30th May 1961 - (residuary clause).

3.2. General Rule

The general rule is that the accused may adduce evidence of his own good
character, but the prosecution is prohibited from adducing evidence of his bad
character, subject to specified exceptions.

The accused is always entitled to adduce evidence on his good character, either by
testifying himself or by calling witness to testify on his behalf.

3.3. The accused’s bad character

General Rule: inadmissible.

But once the accused has adduced evidence as to his good character, the
prosecution may respond by Adducing evidence of the accused’s bad character,
Cross-examine the accused’s character witnesses and Cross-examine the accused,
if he has given evidence as to his good character.

3.4. Cross Examination

Where the accused has called witnesses to testify about his good character, the
state may of course cross-examine such witnesses, to test the accuracy of their
evidence. If the accused has given evidence about his own good character, the state
may cross-examine him on this evidence. Section 197 of the Criminal Procedure Act
places certain limits on the questions which may be asked in this regard.

In summary, an accused may not generally be questioned on his bad character, nor
may evidence be presented in this regard. Exceptions relate to fairly obvious
situations. Normally the previous convictions of an accused are irrelevant and
therefore inadmissible. The characters of other parties to a case will also usually be
inadmissible, unless relevant for a particular reason.