Question 5

Andy, Ben and Catherine are jointly charged with theft of video machines brought to their shop
for repairs by David. They all pleaded not guilty. Andy testified in his own defence. He claimed
that Ben had asked him to help steal the machines but he had refused. Andy has several
convictions for criminal trespass and one conviction of forgery. At trial, counsel for the
prosecution and for Ben cross-examine Andy on these convictions.

Ben does not give evidence but through his counsel claimed that he had nothing to do with the
theft. He calls several witnesses to give evidence that he has done extensive charitable works for
local pensioner’s club for many years including the recent one, which was organizing charitable
fundraising car wash held on March 2013 at the club’s garden. Ben however has no previous
convictions.

Catherine testified at the trial and claimed that David, who is a prosecution’s witness had falsely
implicating her out of resentment because she refused to have an affair with him. Catherine has
previous convictions for theft in 2001 and 2008. The prosecution cross-examined her on all her
previous convictions.

In arriving at his decision, the judge took Ben’s good character as relevant to his credibility and
his propensity to commit the offence and acquited him. He refers to Andy and Catherine’s
convictions briefly by saying that they had ‘a bit trouble with the law in the past’ and convicted
both of them.

Advise Andy, Catherine and the prosecution whether they have any grounds of appeal; confining
your answer to the issue of character evidence.

The first issue is whether Andy’s bad character evidence is relevant and admissible/ prosecution allowed
to cross examine Andy.

An accused is competent to give evidence on behalf of himself though it is not compellable.

Section 146(c) states that when a witness is being cross-examined, he may be asked any questions
which tend to shake his credit by injuring his character, although the answer to such questions might
tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him
to a penalty or forfeiture. In the case of R v Sweet-Escott, the court held that the purpose of cross-
examination as to credit is to show that the witness ought not to be believed on oath. Thus, any cross-
examination which tends to injure his credit must relate to his likely standing after cross-examination
with the tribunal which is trying him. In the case of Syed Ismail v PP, when a person is accused for
pejury it would be useless to put weight to their testimony as they cannot adhere to the truth as they
could fabricate the truth.

It has to be duly noted that this provision has to be read together with the proviso of Section
120(3) that when the cross examination is related to the credit of the accused, the court may use its
discretion to limit the cross examination to a proper extent, although the question might be permissible
to other witnesses. It can be seen in the case of Lim Baba v PP, the court held that if questions are out
to shake the credit of witness, especially the accused, the court has complete control over it and may
forbid questions.

In applying, Andy as the accused is a witness when he testified. He is then exposed to cross-
examination that may injure his character. The cross-examination was done on Andy’s previous
convictions for criminal trespass and forgery. As the case mentioned above, the cross-examination does
not relate to Andy’s current charge which goes against the principle of the case. The fact that Andy was
convicted for the previous crimes does not necessarily prove that Andy is guilty for the current charge
as they were different types of crimes. The questions being put to Andy can only be used by the court
to not believe him oath as opposed to convict him based on his previous convictions. In addition, Andy’s
forgery crime would mean that he was convicted for lying through documents which would intensely
support that he could be regarded to have inability to tell the truth. The court may also limit the questions
being put to Andy during cross-examination. Therefore, Andy’s previous convinctions of bad character
is not relevant. Fisrt issue (s54(2)(c), r v barley, does not support and diminish ben’s defence, but bcs
andy not given anything againt barley, prosecution cannot cross examine him. Second issue forgery,
s146, must explain why forgery might injured the credibility of witness. Offence against honesty,
cheated, forged document, they willing to go to that extent, thus they have high probability to andy
testified in

The second issue is whether the evidence of Catherine’s bad character is relevant and
admissible under Section 54(2)(b).

Under general rule, character evidence under civil and criminal law is not relevant and
admissible because it will result to an unfair prejudice to the parties. However, there are circumstances
which the court allowed the admissibilty of both evidence of good and bad character of the accused.

Section 54(2) basically provides instances where the shield against bad character evidence of
the accused person be broken. Section 54(2)(b) states that a person charged and called as witness shall
not be asked, and if asked shall not be required to answer, any question tending to show that he has
committed, or been convicted of or been charged with, any offence other than wherewith he is then
charged, or is bad character unless he has personally or by his advocate asked questions of the
witnesses for the prosecution with a view to establish his own good character, or has given evidence
of his good character, or the nature or conduct of the defence is such as to involve imputations on
the character of the prosecutor or the witnesses for the prosecution

Section 54(2)(b) can be divided into 2 limbs. The first limb is about asserting good character
and the second limb which our main focus is with regards to the casting imputations against the
character of the prosecutor or the prosecutions witness. Evidence of bad character of the accused may
be admissible if he or by his advocate casts imputations on the character of the prosecutor or the
witnesses for the prosecution. The allegation made may not necessary refers to the commission of
criminal offence, allegation made on the basis of immorality may also be sufficient.

In R v Jenkins, on a charge of receiving stolen property, questions were put to the prosecution
witness who was married woman to suggest that she had spent the night with the accused. The court
held that the defence had cast imputations on the character of the prosecution’s witness thus it was fair
and proper for the prosecution to ask questions tending to show that the accused had committed or been
convicted of an offence other that that which was under investigation. Similarly in, R v Bishop, the
court held that the accused’s appeal was dismissed and character of a witness impugned by an allegation
of homosexual conduct made against him. An imputation of homosexual immorality aganist a witness
might reflect on his reliability and an accused who made such an attack should be subjected to the risk
of cross-examination of his record.

In R v Britzman ; R v Hall, the court held that the nature and conduct of the appellant’s defence
involved imputations on the character of the police officers because when the accused denied the alleged
conversations had ever taken place, he was implying that they had fabricated a substantial and vital part
of their evidence. Based on this case, the court came out with three guidelines on how judges should
exercise their discretion so as to allow or prohibit the cross-examination of the accused person’s bad
character.

Firstly, the denial of truth does not amount to casting imputation on the character of the
prosecution or prosecution’s witness. There is a clear distinction between denial of truth and casting
imputation. In R v Rappolt, the court held that when the accused said that the prosecution’s witness is
horrible liar that even his own brother wouldnot speak to him, was considered as casting imputations
not a denial of truth. Secondly, whether the imputations involved are necessary to the defence. In The
King v Preston, where the court held that where the accused alleged impropriety in the conduct of an
identification parade, the accused had actually cast an imputation on the character of the police.
However, the imputation made was necesary imputation on the defence case, thus cross-examination
on the accused’s previous convictions should not be allowed. Lastly, there is no need for the prosecution
to rely on Section 54(2)(b) if the evidence against the accused is overwhelming. If the evidence against
the accused is overwhelming and are capable of proving each element of the offence charged, the
prosecution does not need to rely on section 54 to cross-examine the accused on his bad character. The
court is entitled to convict the accused if the prosecution manages to prove beyond reasonable doubt
that the accused had committed the offence.

In application, based on the facts that Catherine testified at the trial and claimed that David,
who is a prosecution’s witness had falsely implicating her out of resentment because she refused to have
an affair with him falls under the second limb of Section 54(2)(b) specifically under casting
imputations. Catherine has made an imputation about the prosecution’s witness, David which related to
the issue of affair which quite similar to the case of R v Jenkins in which in that case the accused cast
imputations to the prosecution’s witness saying that the prosection witness who was married woman
had spent the night with the accused. Eventhough, the testimony of Catherine does not related to
criminal offence, but it related to the immorality conduct which can also be sufficient to be considered
as casting imputations as stated in the case of R v Bishop. The guidelines laid down under R v
Britzman; R v Hall that relevant to this question is guideline number two which regards to whether
the imputation made by Catherine to David is necessary to the defence case. When Catherine making
such testimony talking about her affair related to David, it does not in anyway necessary for the defence
case as what is happening in the King v Preston’s case but it was just a statement made by Catherine to
injured the character of David as prosecution’s witness. Thus, based on these the guideline, it can be
said that the casting imputation made by Catherine should not be done because it is not necessary and
detrimental to the defence case. Therefore, based on the discussions above, the evidence of Catherine’s
bad character is not relevant and admissible under Section 54(2)(b).
Explain what is necessary and not necessary, contrast the situation. i.e Necessary casting of
imputations could be when the the defence said id parade made by police is not true,

Last issue is whether the evidence of ben’s good character is relevant and admissible

Good character given by witness 53 +55

-might be relevant , melvani, syed ismail,, must be general not specific

Not relevant bcs judge ad

The issue is whether the judge made right decision misdirected himself about vye’s direction

Propensity – can for witness or not

Credibility – only for witness give evidence

Judge has wrongly directed himself in rlation to credibility of ben

Be doesn’t give evidence

The general rule is stipulated in Section 53 where in criminal proceedings the accused good
character is relevant.

In the case of R v Vye, the accused’s age and crime-free record shows his general good
character and that he would have no tendency to commit crime. In addition, the accused and the victim
had a fairly good relationship and it is believed by the court that the intercourse was consensual making
the accused as a credible witness. Thus, the conviction was quashed. Based on this case, Vye’s direction
is used to outline the relevancy of an accused good character. Good character can only be used for
specific purposes namely for credibility, his tendency to commit crime and mitigation of sentence.

Evidence of good character will carry good weight during mitigation and assessment of
sentences. In Melvani v PP, the accused good character was taken into account when his sentence was
reduced from 3 years to 2 years. However, in Cobiac v Liddy previous conviction of the accused
defeated the claim of good character evidence.

In applying, Ben’s good character evidence is a specific good character. His good character is
not a good evidence in law to acquit him of the charges as good character evidence can only be used to
show his credibility, tendency to commit crime and to mitigate sentence. It can be said that the judge in
deciding to acquit Ben based on his specific good character has erred in law when the evidence was not
related to the requirement stated in Vye’s direction. The fact that Ben was specifically involved in
charity programs does not mean that he would not be guilty of the charge. In addition, Ben was only
giving his testimony through the dock (at box) not th accused box and not as a witness. This puts low
weight to his character evidence as he is not subject to cross-examination. Therefore, the prosecution
may appeal to the decision as Ben’s good character can only be used if the character is his general
character and not specific good character. It is not relevant for the court to consider Ben as a credible
witness.