Evidence Assignment- Character Evidence

Issue

1. Whether the prosecution can adduce bad character of Don.

Law

Character in English Law generally refers to the general reputation of a person. Reputation here
means what others think about her or him. However, under our Evidence Act, character
includes both reputation and disposition. Disposition means inner qualities, traits, integrity or
honour, or natural tendency in a person which can be inferred from his acts. As a general rule,
character of a party to an action whether in civil or criminal is not relevant. Evidence of character
will result in unfair prejudice to him. However, there are number of exceptions to the general rule
some of which are found in section 52 to 55 of the Evidence Act 1950.

Under section 54 of the Evidence Act 1950, the rule is that in criminal proceedings, accused
bad character is irrelevant unless it falls under the circumstances mentioned in the section. It
must be noted that the guilt of the accused must be proven by independence evidence and not
of his character.

One of the circumstances that permits the prosecution to adduce the evidence of bad character
of the accused is given under section 54(2)(b). This particular paragraph of the section states
that one, when an accused himself, or through his counsel asks questions to the prosecution
witnesses with a view to establish his own good character, or two, if he himself adduced
evidence of good character or three, when the conduct of the defence imputes the character of
the prosecutions witness, then it is permissible for the prosecution to bring in the evidence of
bad character of the accused.

The character of the prosecution witness that the defence tries to impute is not limited to
general character only. It can also be specific. As decided in the case of R v Jenkins1, the court
held that an immoral character of the prosecution witness is considered sufficient for the
defence to impute her. However, there has been an argument on whether casting imputations
under this section is to be read literally or that when the nature or conduct of the defence is so
unnecessary and unjustified to impute the prosecution witness only then will the court allowed

1
(1945) 44 LGR 42
the prosecution to cross-examine the accused on his bad character. R v Hall2 case offers a
guideline on how judges should exercise their discretion on whether to allow or prohibit cross-
examine by the prosecution. Factors that need to be taken into considerations are one,
Distinctions between a denial of truth by the accused and an attack on the character of the
prosecution witness itself, too, Whether imputations involved are necessary for the defence and
three, That there is no need for the prosecution to rely on this subsection if the evidence against
the accused is overwhelming.

Nevertheless, different situation applies in rape cases. When the defence casts an imputation
on the complainant herself, for example, the defence alleged that the complainant consented to
such act of intercourse, the court will not regard it as casting imputation on the prosecution
witness. The rationale is that, lack of consent is a fact in issue which the prosecution needs to
prove. This view is supported by the case of R v Turner3. In this case, appellant by his counsel
in cross-examination of prosecutrix suggested to her that she not merely consented to
intercourse, but also offered to commit an act of gross indecency on him, and appellant in his
examination-in-chief gave evidence to the same effect.

Application

As discussed above, it could be possible to bring in such evidence under subsection 2 (b) of
section 54 of the Evidence Act. The reason is because, it appears that Don tried to impute
Lolitas character by saying that she had seduced him in several occasions in the hope to have
sexual intercourse with him. Plus, he claimed to be framed by Lolita because he had turned her
down. Impliedly, Don is trying to establish Lolitas immoral character and cannot be trusted.

Therefore, if section 54(2)(b) is to be read literally, the prosecution can adduce evidence of
Dons bad character which is his previous convictions of the same offence which is rape.
However, if we follow the guideline given in the case of R v Hall, the prosecution cannot do
such. This is because, these imputations on Lolitas character is necessary to the defence case.
In the case of R v Ryan4 the court held that in prosecutions for rape the question of consent on
the part of the woman is usually an important one; and evidence of her character for chastity is
admissible as bearing upon the probability of consent. Besides, as mentioned above, when it

2
[1983] 1 ALL ER 369
3
(1944) 30 CrAppR 9 ; [1944] KB 463
4
2 Cox Cr. c 115
comes to rape cases, when the defence is trying to establish that the sexual intercourse is
consented by the complainant, then it will not amount to an imputation to the prosecution
witness character. Nonetheless, in this situation, Lolita is only 15 years old, thus the offence that
Don has committed is statutory rape. For this offence, consent is irrelevant. This is supported in
the case of State V. Smith 5
Therefore, in Dons case, his allegation towards Lolita can be
considered as imputation to the prosecutions witness. So, as it amounts to impute to Lolitas
character, the prosecution can adduce Dons bad character and the court can admit such
evidence of his previous conviction.

2. Whether evidence of good character adduce by Don is relevant and admissible.

Evidence of good character of the accused is admissible under section 53 of Evidence Act
1950. However only general reputation and disposition are permissible to be adduce in court.6
Under criminal law, a person is presumed 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 innocent 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. [Habeeb Mohammed v State of Hyderabad]7. Reference shall also be made to the
Vyes Direction 8
which gives out 2 rationales why good character is relevant. One, when the
accused testify, his good character is relevant to determine his credibility. Two, to determine his
tendency to commit the offence.

Therefore, the judge should direct his mind that he should take into account the accused's good
character in deciding whether or not to believe that it was likely that the accused committed the
offence, and also in relation to the credibility of the accused in the denial of the charge.

Application

Don had repeatedly throughout the trial said that he is innocent. He also states that he is a law
student at a local university and he came from a wealthy family. All of this good character
evidence that he adduce is relevant and admissible in court as it is general in nature and not
9
specific. However, in the case of Tsang Kai Mong Elke v Public Prosecutor the defence

5
289 S.W. 590; 1926 Mo. LEXIS 606
6
Explanation in Section 55 of the Evidence Act 1950
7
AIR 1954 SC 51
8
R v Vye [
9
[1994] 1 SLR 651 (CCA)
 10
relied on the case of R v Berradge to support the argument that the good character of the
accused was relevant to her credibility as a witness. However, the court held that the evidence
of the good character and good family background of the accused did not assist her in view of
the nature of her defence.

Therefore, even if Don argue that he is a law student, and that he comes from a wealthy family,
the offence that he commit is rape. The evidence of good character that Don adduce therefore,
did not assist the nature of his defence. His defence is that Lolita consented to the sexual
intercourse. Nevertheless, it could be argue that another defence put forward by Don is that he
has been mistakenly identified by Lolita. This is because, when he said that he comes from a
wealthy family, it could be inferred that he did not have to work as pizza delivery man.
Therefore, Lolita had mistaken his identity with someone else. Besides, he had also try to
adduce the defence of alibi.

Therefore, to conclude, his evidence of good character is admissible and relevant. It must be
remembered however, that character evidence carry a very low weight. The judge has need to
remind himself that sometimes people do commit serious offences for the first time and
evidence of good character cannot prevail over convincing evidence of guilt.

10
(1990) 91 Cr App R 131