LAW578

LAW OF EVIDENCE 2
CHARACTER EVIDENCE (L1)
HABIBAH OMAR
habibomar597@gmail.com;
habib597@gmail.com
©HabibahOmar@UiTMLaw 0192792145
 CONTENT

❖ Definition of Character Evidence

❖ Character Evidence in Civil Cases

❖ Character Evidence in Criminal Proceedings

❖ Character Evidence under other provisions of the

Evidence Act 1950

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 CHARACTER EVIDENCE (CE)

GENERAL RULE

Character Evid (CE) are generally NOT RELEVANT EVIDENCE to be produced in Court

R v Whitmore [1999] – the business of the court is to try the case and not the man and even a very bad
man has a righteous case

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 DEFINITION OF
CHARACTER EVIDENCE
SECTION 55
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.

C/F COMMON LAW (R v Rowton) - character reflects only reputation of a person

REPUTATION
(what people sees of you; widespread belief/estimation of the DISPOSITION
community/public that a person has a particular habit or
characteristic) (how individual behaves)

* distinct character of a person - inner

*A favourable and publicly recognized n
ame or standing of a person/goodwill of
* What a public/community perceive
a business for merit,
about a person – reflects final achievement, reliability, etc.
opinion of the public For e.g. the singer is honourable; the
politician is honest
* natural tendency/inclination of a
qualities, traits, integrity, honour, natural
person to act or think in a particular
tendencies inferred from a person’s acts
way/the habit/usual attitude/mood of
BHAGWAN SWARUP V STATE OF a person/morality
MAHARASHTRA AIR 1965 SC 682 For e.g. bad temper, judgmental,
A man may be reputed to be a good man, homosexual, flirting
but in reality, he may have a bad disposition.

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 DISTINCTION BETWEEN CHARACTER
EVIDENCE (CE) AND OTHER RELEVANT

•Refer to similar occurrences that may reflect actions or

circumstances in which a fact occurs

c/f SFE • Similar occurrences must be repeated at least once

• TUBE HOME (M) SDN BHD v P. SHANMUGAM [2010];
• MOOD PUBLISHING CO LTD V DE WOLFE LTD [1976]

• Refer to why a person do a particular act – s.8

• WONG FOH HIN v PP [1964]

c/f MOTIVE

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CHARACTER EVIDENCE IN CIVIL CASES

GENERAL RULE:

Section 52 IN CIVIL CASES CHARACTER TO PROVE CONDUCT IMPUTES IRRELEVANT

“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”

EXCEPTION :
1. S. 52 - When character is in issue (character is relevant to the FII or a Relevant facts)
Example : Defamation cases - Evidence of bad character must relate to the
specific sting of the libel.
Sandison v Malaya Times Ltd [1964]; John Lee & Anor v Henry Jan Fook [1980]
2. S. 55 - When issue of character affects amount of damages
DP Vijandran V Karpal Singh & Ors [2000]; Karpal Singh v VP Vijandran [2001]
CHARACTER EVIDENCE IN CRIMINAL CASES:
GOOD CHARACTER EVIDENCE
Munusamy Sundar Raj v PP [2013] quoting Habeeb
Mohammed – Good character may indicate the innocence and
criminality of the accused

RATIONALE : PRESUMPTION When tendering GCE, the Accused must bring positive proof as
to the excellence of his character – Syed Ismail v PP
OF INNOCENCE - [1967]

GENERAL RULE Evidence of GC and general disposition cannot OUTWEIGH

positive evidence with regards to the guilt of a person –
Munusamy Sundar Raj v PP [2013]
A person who has led a morally
S.53 sound and lawful existence is
less likely to have committed a
GOOD CE (GCE) IS crime than someone with history
ALWAYS RELEVANT of bad actions and immoral
IN CRIMINAL behaviour Previous convictions defeat the claim of GC
PROCEEDINGS Cobiac v Liddy [1969]

Guilty Plea reflects GC in sentence assessment

GCE & MITIGATION
Melvani v PP [1971]

Sentence reduced due to GCE

Khoo Ban Hock v PP [1988]; Siah Ooi Choe v PP [1988]
 CHARACTER EVIDENCE IN CRIMINAL CASES:
BAD CHARACTER EVIDENCE (BCE)
* Evidence of the Acd photograph in the police
SITUATIONS record Girdari Lall [1946]
GENERAL RULE WHERE SHIELD * Photograph of known pick pocket in the area
REMAINS INTACT
s. 54(1) Loke Soo Har [1954]
(BCE cannot be c/f
Bad Character Evidence is generally NOT brought in Court) * Evidence of motive
RELEVANT in Criminal proceedings Lim Kong [1962]; Wong Foh Hin [1964]
R v Whitemore
INSTANCES WHERE S.54(1)
s.54(2) SHIELD AGAINST BCE PROVISO
BE BROKEN
When an Accused person is charged** and (BCE can be brought
called as a W, he shall not be asked of his BCD; if S. 54(2)(a)
in Court)
asked, he is not required to answer questions that
he previously committed/charged/convicted of an {Explanation 1 to S.53
offence or of his bad character – No SHIELD on BCE if S. 54(2)(b)
BCE is the FII – Wong
** refer to Stirland v DPP (charged in court and See Har}
not merely suspected) S. 54(2)(c)
RATIONALE
* Ground of Public Policy and fairness
* Provide a SHIELD where BCE cannot
be brought as evidence in Court
** Failure of Counsel to object on BCE
will not make irrelevant evidence of BC
be relevant and admissible
(Kiew Foo Mui v PP [1995]; Lim Hong
Siang v PP [2009])
INSTANCES WHERE SHIELD ON BCE CAN BE BROKEN:
S. 54(1) PROVISO

* The evidence of the Accused R v Winfield [1939]

CASE:
SHIELD BROKEN IF:
S.54(1) PROVISO

GC is tendered - The Accused charged for

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
* GCE can be given by
anybody (not necessarily the
Accused)
* GCE of the Accused is given
via:
** Cross-examination by the
Defence of PW
** Calling of witnesses by the
Defence for the purpose of the
establishment of the Accused
GC through Ex-in-chief
indecent assault upon a woman
and he insisted on calling a
Witness with regards to his
character concerning women
HELD :
There is no such thing as
putting half of your character in
issue
Shield broken and the PP was
allowed to bring evidence of
the Accused bad character
 S.54(2)(a)
The Accused previous conviction
*
* On SFE

How Applied
s.54(2)(a)

CASES
must first be admitted under SFE
The proof that he has (S.14 Explanation 2; S. 15 of the > Junaidi B Abdullah v PP
committed or been Evidence Act) [1993]
convicted of that other * PP must seek the Court’s > Jones v PP [1962]
permission to cross-ex on the
offence is admissible Accused BCE
evidence to show that he is * Cross-Ex of the Accused BC
guilty of the offence happens at the defence stage * The effect of evidence of
* Cross-Ex of the Accused BC
wherewith he is then happens when the Accused gives BC - R v Vye - Cross-ex
charged evidence in Court of the Accused BCE is to
* PP cross-examined the Accused show:
on his bad character which relates
Explanation 2 to S.54(2) to the Accused misconduct duly > that he is guilty
A previous conviction is established at the Prosecution’s (propensity or
relevant as evidence of bad stage likelihood of the
* The Accused previous crime must
character have been proved – not allowed if Accused committing
previous charge has been the crime);
* The accused must be called as a acquitted or discharged (R v
Witness to utilise this provision Cokar; R v Pommell)
(SHIELD OF BCE broken at the > to affect his credibility
Defence stage due to his previous
conviction)
 S. 54(2)(b)

S. 54(2)(b)
He (the Accused) has
personally or by his The Accused/his * GCE elicited at the
counsel asks P’s stage SHIELD NOT BROKEN if
advocate asked questions PW volunteers to give
of the witnesses for the questions to PW to * PW cross-ex by evidence of the Accused
prosecution with a view to establish the the Defence as to GC – R v Redd [1923]
establish his own good THE ACCUSED Accused GCE the Accused GCE
character, or has given ATTEMPTS TO
evidence of his good ESTABLISH HIS
character, or the nature or OWN GOOD
CHARACTER SHIELD NOT BROKEN if the
conduct of the defence is * At defence stage during
Accused merely made an
such as to involve EIC to show lack of
Accused person assertion of his BC to
imputations on the propensity
character of the himself gives suggest lack of disposition
* Accused can be cross-
prosecutor or the THE DEFENCE evidence of his GC to commit the crime –
ex by the PP on his BC
witnesses for the CASTS IMPUTATION R v Bracewell [1978]; R v
Maxwell v PP [1935]
prosecution ON THE Redgrave [1982]
CHARACTER OF
* The accused must be THE PP OR PW
called as a Witness to
utilise this provision
(SHIELD OF BCE broken
at the Defence stage due
to the Accused/Defence
Counsel’s actions)
 S. 54(2)(b)

S. 54(2)(b)
He (the Accused) has
personally or by his
advocate asked THE
questions of the ACCUSED
witnesses for the ATTEMPTS
prosecution with a view TO
to establish his own good ESTABLISH
character, or has given HIS OWN
evidence of his good GOOD
character, or the nature CHARACTER * ‘character’ can
be general or LITERAL
or conduct of the INTERPRETATION
defence is such as to specific
R V Hudson [1912];
involve imputations on character; not
R v Jenkins [1946]
the character of the confined to
THE allegation of
prosecutor or the ‘Nature or conduct of
witnesses for the
DEFENCE commission of
crime defence’ refers to the way
prosecution CASTS “CASTING NATURE OR
* Claim of the defence is conducted/
IMPUTATION IMPUTATION”: CONDUCT OF THE
immorality may the nature of the defence is
* The accused must be ON THE how DEFENCE INVOLVES
amount to such that PROPOSE THE
called as a Witness to CHARACTER defined? ‘UNNESESSARY’ OR
casting of JURY/JUDGE ought not to
utilise this provision OF THE PP ‘UNJUSTIFIABLE’
imputation on believe the PP or PW upon
(SHIELD OF BCE broken OR PW IMPUTATION
character the grounds that the
at the Defence stage due R v Preston [1909];
PP/PW witness conducts
to the Accused/Defence R v Jenkins R v Britzman; R v
make them unreliable
Counsel’s actions) [1946]; Hall [1983]
witness
R v Bishop R v Preston; R v Jenkins
[1975]
 ** A mere allegation the Complainant
(W) consented to sexual intercourse
with the Accused WILL NOT S. 146A, EVIDENCE ACT
RAPE CASES AMOUNT to casting of imputation of
1950
the character of the PW;
* Consent needs to be proven in rape Cross-ex of the complainant
GR: Cannot question PW cases character allowed only
(Complainant) of his/her sexual R v Turner [1944] (a) to rebut P’s evidence tendered
activities with persons other than R v Selvey [1970] (Evidence of PW’s previously
the Accused character by the Accused tend to show that (b) Establishment of identity
PW committed buggery for money – (c) Question of consent
CASTING Accused wanted to leave an impression that
IMPUTATION PW was ‘that kind of person’)
ON THE
PP/PW
CASTING IMPUTATION vs MERE DENIAL

How will the court decide? CASTING IMPUTATION

R v Britzman; R v Hall R v Rappolt
R v Bishop
Guideline: R v Tanner
(a) If it is only a mere denial, however R v Jenkins
OTHER CASES empathic or offensively made = R v Clark
SHIELD NOT BROKEN
(b) If the evidence reflects that there is
no chance of mistake, MERE DENIAL
misunderstanding or confusion =
LIKELIHOOD OF SHIELD BEING
R v Rouse [1904]
BROKEN
 S. 54(2)(c)
An Accused person has given evidence
against any other person charged with
the same offence (his co-Accused)

* The accused previous commission and conviction of an offence can be cross-examined

* The accused must be giving evidence as a witness against his Co-Accused for the right to cross-
examined the Accused on his bad character be allowed.
* The Accused person is giving evidence against his Co-Acd either during Ex-in-Chief or Cr-Ex.
* Judges have no discretion to refuse application of the Co-A to cross-examine the A’s BCE

‘has given evidence against’ HOW WILL THE JUDGE

‘same offence’
Murdoch v Taylor [1965] DECIDE?
To be interpreted refer to the evidence of the accused person must:
literally (a) support the P’s case against the Co-Accused materially R v Varley [1982]
R v Lovett [1973] (b) Undermined the defence of the Co-Accused Court to decide OBJECTIVELY
whether the Accused evidence
‘undermines’ – makes the acquittal of the Co-Acd less likely – R v
support the P’s case materially
Bruce [1975]
NOT ‘evidence against’ when evidence of an Accused merely
OR undermines the defence of
contradicts the Co-A without advancing the P’s case – Murdoch v the Co-Accused
Taylor [1965]
 CROSS-EX OF WITNESSES – s. 146
When a witness may be cross-examine, he may, in addition to the
questions hereinbefore referred to, be asked any questions which tend-
(a) To test his accuracy, veracity or
credibility (b) To discover who he is and what
his position in life
Sharma Kumari A/P Om Prakash v PP
[2000]
(c) 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
R v Sweet –Escott [1971]; Lim Baba v PP [1962]
Accused can be cross-examined relating to an
offence and his answer can incriminate him –
cross refer s. 120(3)