Character Evidence

Dr Mohd Munzil Muhamad

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 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].

• 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)

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 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.

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 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.

• The distinction between reputation and rumour has been explained in the case of
Harbhajan Singh v State of Punjab AIR 1961 Pun 215:

‘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’
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 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).

 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.

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 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.
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 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.
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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)

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 Admissibility of Character Evidence in Criminal
Cases
• Sections 53 and 54 of EA deal with admissibility of character evidence in
criminal cases.
• Section 53 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.

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 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:
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.

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•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.
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 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.

See also Munuswamy Sundar Raj v Public Prosecutor [2013] 5 MLJ 48 (CA) &
Thankgod Chukwujindu Enenmuo v Public Prosecutor [2018] MLJU 688v (CA)
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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.
• If this happens, evidence of bad character of the accused may be given
by way of independent evidence (including during the Prosecution
case) or cross-examination of the accused himself or herself (if the
accused testify in the Defence stage) 14
 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.

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• However, failure to object the bad character evidence adduce by the
prosecution when an 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 from adducing it, since
inadmissible evidence does not become admissible simply by reason of
failure to object.

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 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.

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 The gist of s 54(2)
• 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;

Subsection (2) (c) he has given evidence against any other person charges with the same offence. 18
 Application of Section 54(2) of EA 1950
• ***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.
• Thus, if one of the acts mentioned in s 54(2) of EA happens but the
accused does not testify in the defence’s case, can it still be
applicable?

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 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 is a main distinction with s 54(1).
• 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.

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

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 Evidence of Previous Acquittal
• In the case of MAXWELL V DPP [1935]AC 309, the House Lords ruled that
previous acquittal was irrelevant and cannot be regarded as evidence of bad
character.
• Similarly in R V COKAR [1960] 2 QB 207 (CCA)- The prosecution were not
permitted to cross-examine the defendant in order to show that he had
formerly been acquitted of the same type of offence as in the present
charge.
• However, in R v Z [2000] 2 AC 483 the House of Lords explained that
previous acquittal can be admissible as Similar Facts showing his guilt of the
offence for which he was being tried, subject to the judge's discretion to
exclude it after weighing its prejudicial effect against its probative force.

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 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.
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(i) When the accused or his advocate ask questions to the prosecution
witnesses to establish the accused’s good character.

• This circumstance may happen when the accused or his advocate cross-
examine Prosecution’s witness to establish the good character during the
Prosecution case.
• But the bad character evidence of the accused is asked when the accused
give testimony during Defence stage. i.e. When the Prosecution cross-
examine the accused person.
• Section 54(1) of EA 1950 may also be invoked to justify the tendering of
bad character evidence of the accused person.
***An accused may himself ask question to Prosecution’s witnesses if the
accused represent himself and not represented by any defence counsel
during the trial.
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(ii)When the accused himself or herself has given evidence of good
character.

• This obviously can only happen when the accused testified during
the Defence stage.
• Section 54(1) of EA 1950 may also be invoked to justify tendering of
bad character evidence against the accused person.

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 (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.

• This is another distinction as compared to s 54(1) of EA 1950

• Similar to s 54(2) (a), there is no need for evidence of good character
evidence to be adduced before bad character evidence of the accused
person can be given!!!
• Defence imputation of character of the prosecutor conducting the trial
or prosecution witnesses can take place either during Prosecution case
or Defence case.

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 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 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.
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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.

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• 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 provided the conditions under s 54(2) of EA is
fulfilled!!!
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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.

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 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 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.
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 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.
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 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.
 
• 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.

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• 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)

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Other Provisions Under the Evidence Act 1950 to be
Considered When Dealing with Bad Character Evidence
• 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 bad character unless it falls under the circumstances in s 54 of EA)
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• Section 146A- Restrictions on Evidence at Trials for Rape.
• In a rape case, the general rule is that a 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).

• 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.

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• 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) of s 146A.
(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. 37
• 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!!!

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THANK YOU

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