ULV4622- Law of Evidence II

Character Evidence

Introduction

 As a general rule, character evidence is not an issue before the

court and is not admissible during trial. This is because a court
should deal with the case and not the man. A very bad man may
have a righteous cause. [Thompson v Church [1791] 1 Root 312
as quoted in Sarkar on Evidence Vol I (15th edn Wadhwa & Co
1999) 963].

 However, character may be relevant to a particular case if it falls

under the circumstances in sections 52 to 55 of the Evidence Act
1950 (EA) which deal with the relevancy of character evidence.

Meaning of Character

 The meaning of “character” is defined in the explanation of s 55

which states:

Explanation—In sections 52, 53, 54 and 55 the word

“character” includes both reputation and disposition; but,
except as provided in section 54, evidence may be given only
of general reputation and general disposition, and not of
particular acts by which reputation or disposition is shown.

 The difference between reputation and disposition was explained

in the case of Bhagwan Swarup v State of Mahasrashtra AIR
[1965] SC 682:

Disposition means the inherent qualities of a person;

reputation means the general credit of the person amongst the
public. There is a real distinction between reputation and
disposition. A man may be reputed to be a good man, but in
reality he may have a bad disposition.

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 The distinction between reputation and rumour has been

explained in the case of Harbhajan Singh v State of Punjab AIR
1961 Pun 215:

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 in respect of
a person.

‘Reputation, being the community’s opinion is distinguished

from mere rumour in two aspects. 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, reputation, for
example, may declare him honest, and yet today rumour may
have circulated that this reputed honest man has defaulted
yesterday in his accounts’

Examples of Bad Character Evidence

 DPP cross-examined an accused and asked him if he was a

gangster (PUBLIC PROSECUTOR V. CHOO CHUAN WANG
[1992] 3 CLJ Rep 329).

 Evidence that the appellant "caused trouble to others" is evidence

that he is a person likely to have committed the offence
(Balasingham v PP [1959] 1 MLJ 193).

 Witness was shown photographs of known pickpockets living in the

area and that the witness identified the accused from them (Loke
Soo Har v PP [1954] 1 MLJ 149).

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See also Lim Kong v PP [1962] 1 MLJ 195; Wong Foh Hin v PP
[1964] 30 MLJ 149; Palldas v PP [1988] 1 CLJ 661.

Admissibility of Character Evidence in Civil Cases

 Sections 52 and 55 deals with civil cases. Section 52 states that:

In civil cases the fact that the character of any person

concerned is such as to render probable or improbable any
conduct imputed to him is irrelevant, except so far as his
character appears from facts otherwise relevant.

 Based on s 52, evidence of character in civil cases is irrelevant

unless it is an issue in the trial.

 One example where character of the parties in civil proceeding will

be relevant is in defamation cases when a defendant raises a
defence of justification.

 On the other hand, s 55 states that:

“In civil cases the fact that the character of any person is such
as to affect the amount of damages which he ought to receive
is relevant”.

 Section 55 must be read together with s 12 of EA which allows any

fact to be proved in order for a court to determine the amount of
damages ought to be awarded in a suit for damages.

 However, based on the explanation in s 55 of EA, only evidence of

general reputation and general disposition is admissible to prove
bad or good character in determining the amount of damages.

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DP Vijandran v Karpal Singh & Ors [2000] 3 MLJ 22

I can do no better than to rely on the case of Samrathmal v

Emperor AIR 1932 Nagpur 158, where Staples J said at p159:

…It is true that evidence under s 55, Evidence Act, about the
character of a person is relevant in connexion with the amount of
damages in civil cases, and a case of defamation is a quasi-civil
case. At the same time only general evidence of character or
reputation can be given and not for instance, evidence of a
particular conviction. In the present case the only evidence
adduced by the applicant was that the complainant was once found
guilty of using false weights. Such evidence is inadmissible in
evidence under s 55, Evidence Act and according to the ruling
cited.
The House of Lords had occasion to consider this issue in Plato
Films Ltd v Speidel [1961] 1 All ER 876… The issue before the
House of Lords was whether particular acts of misconduct could
be pleaded and proved in mitigation of damages. The House of
Lords held that in an action for defamation, evidence of the
plaintiff's bad reputation in a sector of his life, relevant to the
alleged libel was admissible in mitigating damages but evidence of
specific acts of misconduct was inadmissible. This is truly the
rationale behind our s 55 of the Evidence Act 1950.

Datuk S Nallakaruppan & Ors v Datuk Seri Anwar bin

Ibrahim and other appeals [2015] 4 MLJ 34

Furthermore, the explanation to s 55 makes it very clear that only

evidence of general reputation and general disposition is
admissible to prove bad or good character. It cannot be proved by
a particular act. 

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Can previous criminal convictions of a person be used as bad

character in civil proceedings?

 No. It cannot be used in civil proceedings.

Datuk S Nallakaruppan & Ors v Datuk Seri Anwar bin

Ibrahim and other appeals [2015] 4 MLJ 34 (CA)

In civil proceedings, s 52 and s 55 are the relevant provisions.

Under these two provisions, conviction for criminal offence is not
relevant as evidence of bad character.

See also Dato’ Seri Anwar bin Ibrahim v Khairy Jamaluddin [2016] 6
MLJ 226 (HC)

Admissibility of Character Evidence in Criminal Cases

 Sections 53 and 54 of EA deal with admissibility of character

evidence in criminal cases.

Section 53 of EA - In criminal cases previous good character

relevant.
 This section states that “In criminal proceedings the fact that the
person accused is of a good character is relevant”.

 An accused’s good character evidence may play a role in

determining he or she is guilty or innocent.

Munuswamy Sundar Raj v Public Prosecutor [2013] 5 MLJ 48 (CA)

[5] It will be useful to produce one or two paragraphs from Janab's

Key to Criminal Procedure and Evidence (2nd Ed), at pp 854–855
where the learned author Hamid Sultan bin Abu Backer had this to
say:

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This section only applies to criminal cases and makes the

character of the accused relevant. A person is innocent until
proven guilty. In support of this presumption evidence of good
character of the accused is made relevant. It has been said in some
cases that the innocence or criminality of an accused can easily be
judged by looking at his character and the accused must be
allowed to prove his innocence with the help of his good character .
 However, it is important to note that an accused must adduce
positive evidence to show that he or she is of a good character (i.e.
through testimony of other witnesses etc)

Syed Ismail v PP [1967] 2 MLJ 123

In the instant case there is no positive proof as to the excellence of
the appellant's character. The appellant has neither pleaded nor
produced evidence of his character beyond stating his educational
background and administrative experience. To say that no
complaints have been lodged against him is at best a negative
averment.
 It has been decided in Munuswamy Sundar Raj v Public
Prosecutor [2013] 5 MLJ 48 that s 53 of the Evidence Act 1950
stands as a statutory defence to an innocent accused and if the
defence is properly nurtured to establish a story which is not
inherently incredible, it may be used to rebut the prosecution case.

Weight of Good Character Evidence

 Though may be admissible, good character evidence is a very weak

type of evidence.

Bhagwan Swarup v State of Mahasrashtra AIR [1965] SC 682

But, in any case, the character evidence is a very weak evidence; it

cannot outweigh the 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.

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See also Munuswamy Sundar Raj v Public Prosecutor [2013] 5 MLJ

48 (CA)

Section 54. Previous bad character not relevant except in reply.

 The general rule is embodied in s 54(1) which states that “In

criminal proceedings the fact that the accused person has a
bad character is irrelevant, unless evidence has been given
that he has a good character, in which case it becomes
relevant”

 The most important thing is that bad character evidence can only be
led if the accused bring evidence about his or her good character.
This could happen if the accused brings good character evidence
when testifying in courts or through testimony of other witnesses.

Shanmugam v PP [1963] 1 MLJ 125 (HC)

The fact that an accused person has a bad character is irrelevant
unless evidence has been given that he has a good character.
Where an accused has not put his character in issue, but has
merely attacked the character of the prosecutor in cross-
examination, evidence cannot be called by the prosecution to
prove that he is a man of bad character.

 Failure to object the bad character evidence led by the

prosecution when the accused did not bring good character
evidence does not amount to waiver and will not make the
evidence admissible!

KIEW FOO MUI & ORS v PUBLIC PROSECUTOR [1995] 3 MLJ 505

(SC)

The appellants were seen fleeing from the scene of the crime in a
stolen station wagon. This was plainly evidence which could imply
that the appellants were men of bad character…Admittedly, the
defence had not objected to the admission of this evidence but this
did not relieve the judge of the duty of stopping the prosecution

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from adducing it, since inadmissible evidence does not become

admissible simply by reason of failure to object.

Exceptions under s 54(2) of EA

 Section 54(2) was only added in the EA 1950 in 1971 mirroring the
Criminal Evidence Act 1898 (UK). Initially, s 54 only contains
subsection (1) and the two explanations.

 Section 54(2) is the exceptions to the general rule as enumerated in

s 54(1) of EA.

 The gist of s 54(2) is as follows:

A person charged and called as a witness shall not be asked,

and if asked shall not be required to answer questions:

(i) tending to show that he has committed other offences;

(ii) tending to show that he has been convicted of other offences;
(iii) tending to show that he has been charged with any other
offences; and
(iv) tending to show that he is of bad character unless it falls
under one of the circumstances in subsection (a) to (c): -

Subsection (2) (a)- He may however, be asked any of those

questions if the proof that he has committed or convicted of
that offence is admissible to show he is guilty of the offence
that he is charged for;

Subsection (2) (b)- He or his advocate has asked questions of

the witnesses for the prosecution with a view to establish his
good character; or he himself given evidence of his good
character or cast imputations on the character of the
prosecution;

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Subsection (2) (c) he has given evidence against any other

person charges with the same offence.

***Section 54(2) is only applicable when the accused is called as a

witness. Please refer to your Criminal Procedure Code where an
accused who is called to enter defence is given three options: (1)
Give evidence under oath in the witness box; (2) Give unsworn
statement from the dock; or (3) Remain silent
.
Section 54(2)(a)

 The gist of s 54(2)(a) is that the prosecution may ask the

accused questions pertaining to his or her bad character in
order to show that he is guilty of the offence he is facing
although the accused did not do anything to raise evidence of
good character or attacking the character of witnesses called
by the prosecution.

 This provisions allow other relevant evidence which may disclose

the accused character which are admissible under different
circumstances. For example, similar fact evidence under s 14 and s
15 of EA or evidence of the accused’s conduct which is admissible
under s 8 of EA.

SHARMA KUMARI A/P OAM PRAKASH v PUBLIC PROSECUTOR

[2000] 6 MLJ 282
 
Bad character evidence per se is not relevant, but the section
makes it clear that the bar can have exceptions…Evidence that a
person murdered someone is always capable of being interpreted
as evidence of bad character. But if he is charged with murder,
evidence that he did murder the victim as charged is relevant and
always admissible. Evidence that he had murdered another person
might well be barred, although there are exceptions. If all evidence
of a criminal act is barred as evidence of bad character, no crime
could be proven.

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See also LIM KONG v PUBLIC PROSECUTOR [1962] 1 MLJ 195

Section 54(2)(b)

 Section 54(2)(b) explains the circumstances where the conduct of

the accused or his advocate during the trial will open for the
prosecution to bring evidence of the accused’s bad character such
as:

(i) When the accused or his advocate ask questions to the

prosecution witnesses to establish the accused’s good
character.

(ii) When the accused himself or herself has given evidence of

good character.

(iii) When the defence imputes the character of the prosecutor who
is conducting the trial;

(iv) When the defence imputes the character of the prosecution

witnesses.

Selvey v Director of Public Prosecutions [1970] A.C. 304 (HL)

The appellant was charged with buggery, the complainant being a

young man aged 21. The appellant in his own evidence, while
denying the charge, said that the complainant had told him in his
room on the afternoon in question that he had already on the same
day allowed an act of buggery on his person for £1 and would do
the same again for money. Thereupon the trial judge of his own
motion asked whether the appellant was asking the jury to
disbelieve the complainant because he was "that sort of young
man." The appellant replied: "Yes." The judge sent the jury out, and
in their absence ruled that in view of the attack on the

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complainant's character the jury ought to know the appellant's

previous record of convictions which included a number of
convictions for similar homosexual offences. The record was then
put to the appellant in the presence of the jury.

It was held that:

That as there was a real issue about the conduct of an important
witness which the jury would have to settle in order to reach their
verdict, the judge in this case had exercised his discretion
correctly to enable them to know the previous record of the man on
whose word the complainant's character was being impugned.

 See Rex v. Preston [1909] 1 K.B. 568; Rex v Hudson [1912] 2

K.B. 464 (on imputation towards prosecutor).

 See also: Rex v. Jenkins (1945) 31 Cr.App.R. 1; Stirland v.

Director of Public Prosecutions [1944] A.C. 315; R v Bishop
[1975] QB 207; R v Lee [1975] 62 Cr App R 33; R v Britzman
[1983] 1 All ER 369; Rex v. Turner [1944] 1 All E.R. 599.

 However, it must be noted that imputation is not the same as the

accused denial of committing the crime. If the accused merely
deny the truth of the prosecution case, it should not be
regarded as an act of imputation which permits the
prosecution to bring bad character evidence of the accused (R
v Rouse [1904] 1 K.B. 184)

 The insertion of s 54(2) (b) of EA also has diluted the ratio in

Shanmugam v PP [1963] 1 MLJ 125 which was discussed in
above. This is because the case stated that evidence of bad
character of an accused cannot be made if the accused merely
attack the character of prosecution witnesses and not raising his or
her own good character. So now if the accused attack the
character of the prosecution witnesses, prosecution in turn
can bring evidence of the accused’s bad character!!!

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Section 54(2)(c)

 This section is applicable in a trial that involves multiple accused

charged with the same offence.

 Therefore, the moment an accused has given evidence against the

co-accused, the prosecution or the co-accused has the right to
cross-examined the other as to his or her bad character including
previous convictions.

R v Varley [1982] 2 All ER 519 (CA)

For the purposes of section 1 proviso (f) (iii) of the Criminal

Evidence Act 1898 in deciding whether evidence given by an
accused person is “evidence against” his co-accused the following
established principles should be applied:
(1) If it is established that a person jointly charged has given
evidence against a 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 a co-defendant. For the
proviso to section 1 (f) (iii) to apply such denial must lead to the

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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.

Explanation 1 of Section 54

 Explanation 1- “This section does not apply to cases in which

the bad character of any person is itself a fact in issue.”

WONG SEE HAR v PUBLIC PROSECUTOR [1968] 1 MLJ 32

In the present case the accused was charged with extortion. In this
case it was apparent that the complainant thought that the
appellant must be a member of a secret society…His evidence
therefore is evidence which is relevant to a fact in issue and as
such therefore becomes relevant under section 54 of the Evidence
Ordinance, 1950…It was part of the threat that the appellant was a
member of a secret society and therefore in a case of extortion it
becomes a relevant fact.

See also cases: PUBLIC PROSECUTOR v DATO' SERI ANWAR BIN

IBRAHIM & ANOR [2001] 3 MLJ 193 (SODOMY I); WONG FOH HIN v.
PUBLIC PROSECUTOR [1964] 1 MLJ 149.

Explanation 2 of Section 54

 According to Explanation 2 – “A previous conviction is relevant

as evidence of bad character”

 According to Augustine Paul, this explanation serves no useful

purpose right now in the light of the specific provisions in s 54(2) of
EA which provide for the relevancy of the accused’s past
convictions.

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 It is important to note that as mentioned earlier, Explanation 2

is among the original provisions before the insertion of s 54(2)
in 1971.

 In addition, it is iterated that Explanation 2 does not applicable to

civil suits as mentioned in above based on the decision in Datuk S
Nallakaruppan & Ors v Datuk Seri Anwar bin Ibrahim and other
appeals [2015] 4 MLJ 34 (CA) and Dato’ Seri Anwar bin Ibrahim
v Khairy Jamaluddin [2016] 6 MLJ 226 (HC)

Other Provisions Under the Evidence Act 1950 to be Considered

When Dealing with Bad Character Evidence

(1) Section 120 (3) of EA which states:

In criminal proceedings the accused shall be a competent

witness in his own behalf, and may give evidence in the same
manner and with the like effect and consequences as any other
witness:

Provided that, so far as the cross-examination relates to the

credit of the accused, the court may limit the cross-
examination to such extent as it thinks proper, although the
proposed cross-examination might be permissible in the case
of any other witness.

 In other words, although an accused is a competent witness.

There is a limit in what expects of the cross-examination may be
made. (i.e. cannot simply ask about his or her character unless it
falls under the circumstances in s 54 of EA)

(2) Section 146A- Restrictions on Evidence at Trials for Rape.

 In a rape case, the general rule is that, mere allegation that the
complainant consented to sexual intercourse will not amount to an
imputation of a character of the witness/complainant. This is
because if the sexual intercourse was consensual, it is not a rape
and it is the duty of the prosecution to prove lack of consent (Rex v.
Turner [1944] 1 All E.R. 599).

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 However, in 1989, s 146A has been introduced into the EA to

restrict evidence or questions that may be asked to
complainant in a rape case. The gist of this section is that, it is
not permitted to tender evidence or to ask question during
cross-examination concerning the sexual activity of the
complainant with any person other than the accused unless it
falls under the exceptions in subsection (a) to (c).

(a) it is evidence that rebuts, or a question which tends to

rebut, evidence of the complainant’s sexual activity or absence
thereof that was previously adduced by the prosecution;

(b) it is evidence of, or a question on, specific instances of the

complainant’s sexual activity tending to establish the identity
of the person who had sexual contact with the complainant on
the occasion set out in the charge; or

(c) it is evidence of, or a question on, sexual activity that took

place on the same occasion as the sexual activity that forms
the subject matter of the charge, where that evidence or
question relates to the consent that the accused alleges he
believed was given by the complainant.

 In other words, in rape cases if the accused asks questions to the

complainant (who is one of the prosecution witnesses) on matters
that fall under s 146A (a) to (c), this action cannot be regarded as
an attempt by the accused to impute the character of the
prosecution witness as mentioned by s 54(2) (b). Therefore, if the
accused asks questions on s 146A (a) to (c), the Prosecution
cannot invoke s 54(2) (b) to bring evidence of the accused’s
bad character!!!

*******THANK YOU*******

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