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Character Evidence (Good & Bad/ Civil & Criminal)
WHAT IS THE
MEANING OF CHARACTER EVIDENCE
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Section 55 explanation
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Refers to reputation and disposition (general
and not in particular)
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But what type of evidence to bring it? It
has to be general (general reputation or general disposition) and not
particular
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Is there an exception to that? Look at the
explanation à s.54 meaning as far as Section 54 is concern can bring in particular details of your character (previous conviction)
YES can bring in but you cannot bring in particular evidence of your good character.
All of these are from the explanation.
DIFFERENCE
OF REPUTATION AND DISPOSITION
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REPUTATION
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DISPOSITION
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What others think of you
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What your real character is (based on based on observation, opportunities
to observe and perception)
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1.
Bhagwan Swarup v State of Maharashtra [1965] –More important
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There is a real distinction here, may be
reputed to be a good man but in real a bad person.
2.
Harbhajan Singh v State of Punjab [1961]
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The court looked at what is the difference
between reputation and rumour (reputation is finalized opinion of the community which takes a long time to form)
Note: GR àonly evidence of general reputation and disposition and not of particular
acts by which it is shown. The exception would be s.54 which allows particular
evidence of ad character in the form of previous convictions.
3.
R v Redgrave (has to be general)
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Committing homosexual offences in public
toilet
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To rebut charge, want to bring in evidence
of love letters from girlfriends, photos from girlfriends and the valentine day
cards to establish he is not a homosexual
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NO: can’t bring in evidence which is
particular so this evidence is not admissible
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This case brought to the explanation above
of what type can be brought in
When we talk about good character and bad
character for the purpose of this chapter, we are referring to character of
parties, for civil claimant, plaintiff and defence, if it is a criminal case we
are dealing with the reputation and disposition of the accused mainly as well
as the prosecutor/victim. The reputation and character of witnesses other than
parties will be dealt under the final chapter of ‘Witnesses’.
WHAT IS THE
PURPOSE OF ADDUCING CHARACTER EVIDENCE?
i.
To establish credit worthiness – if you are accused person to say you
didn’t commit this crime, so highly unlikely you are lying now, but if bring in
bad character evidence when you now say you didn’t commit it, there is doubt in
your credit worthiness. Hence this is the main reason instead of guilt and this
falls under weight (how the court will evaluate your testimony). Once it
becomes issue of court, this can help to determine liability when it comes to
defamation. In criminal it becomes issue to either make or break the case would
be SFE. So in certain situation, it can determine liability in civil and
criminal for guilt? YES.
ii.
To effect liability.
In exam, need to think why want to bring
it in whether because of guilt or credit worthiness because if SFE it is for
guilt.
IS IT
ADMISSIBLE?
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No and why? The reason is that the
function of the court is to hear and decide cases based on evidence and the
law. Not the function of the court to decide whether you are guilty or liable
based on your character.
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Please take note a man with bad character
may be innocent of the particular crime he was charged with and otherwise.
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Even when we allow evidence of good
character, only of general and not particular. Why? Just because I did one
isolated act of kindness that doesn’t make me a good person and otherwise.
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“None are all evil”
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“Character is not in issue. The business
of the court is to try the case and not the man”
4.
R v Thompson
5.
R v Rowton
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Read in relation to Redgrave, here again
court establish that it has to be
general and cannot be particular and add on another limb to it, the
evidence of your good character that you bring in must relate to the trade in
the charge.
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If let’s say charge is murder and the
evidence for good character coming in about you being an honest person, it won’t
relate but if the crime is
theft and the issue of honestly brought in, then will be relevant.
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It does
not extend to the opinion of witnesses (meaning it cannot be my opinion
that you are a good person but opinion of the neighbourhood, not of one man)
Character
evidence relevant to trial and not sentencing.
6.
DP Vijandran v Karpal Singh [2000] 3 MLJ 22
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DP Vijandran is a leading light of MIC and
suppose to replace samyvellu
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Both of them had intense conflicts
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Mr.V glorious political career cut short
with a video scandal and he is not a married man at time of incident, had lot
of partners and have habit of filming and it was for his own private viewing
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Women involved didn’t know and there was
breaking in his house and the video tapes were stolen and theory that it was an
inside job and one suspect is his nephew
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He then made police report and then
surfaced in public and widely distributed
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Karpal singh accused him of being an actor
and he then sued Karpal singh for defamation, when he sued for defamation, KS
brought in expert from all around the world to look at the video and look the
actor is Vijendran as he claimed and called expert from Japan and his evidence
was that the man is the Dr.
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That would mean when KS called him a porn
actor, he was justified and he lost the claim against KS for defamation and was
asked to pay costs
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He later then issued cheque to pay to KS
and bounced and the moment he was informed it bounced, he then rectified it immediately
and KS called for press conference and said not only porn star but dishonest
man, so again part 2.
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But the evidence before the court was very
clear, it was an honest mistake and immediately corrected and it was nothing to
show he was unfit to be a lawyer and the court went and state that KS just
wanted to go for the kill and at the end of the day, 2nd case VJ won
the case
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The issue come to the assessment of
damages must take into account that he is a porn actor and that he has no reputation
actually, so that the Malaysian court take note that he was in the video can
that take effect to bring in the evidence?
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i. this is particular (not general and should be general)
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ii. It must relate to the charge and in civil case must relate to
defamation (here bringing in evidence to private sphere and defamation in
professional capacity)
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Hence said not related and at the end of
the day, his porn evidence cannot be brought in 2nd defamation case
because it was on professional dishonesty and the first was sexual immorality,
the 2 are not linked.
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Even in defamation case where character
can be regarded, it must be related to the charge.
*done with character evidence in civil,
now moving on to CE in criminal cases*
GOOD
CHARACTER EVIDENCE IN CRIMINAL CASES
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S. 53 as general rule, where GR, it must
be general, relate to charge, and opinion of community
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You cannot read 53 in isolation, need to
read with 54 and if reading with 54, you are at risk and the floodgates will
open, evidence of bad character can now be used against you in court.
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Trying to tell is look at the risk, be
aware of it and choose which is the better option
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What amounts to evidence of good character
is subjective, look back at principles of R v Redrave & R v Rowton
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Evidence of good character if accepted is
very weak evidence and cannot outweigh the positive evidence of the guilt of
the accused. Where there is clear cut probative evidence just because you have
good character, court can still find you guilty, but can tilt the balance.
7.
R v Davidson [1803]
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If you do not know which way to decide, character
can have an effect but if crime really established, character would not make a
difference. So only when there the 50-50.
7.
Syed Ismail
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Court shared the same ideas where the
accused person in bribery case pleads and shows evidence of good character and
if appears to court the person would not act in circumstances proved as alleged
by the prosecution, such improbability should be taken into account.
PART 2
BAD
CHARACTER IN CRIMINAL CASES
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GR: BC is irrelevant in criminal cases but
subject to exceptions of the section
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.54(1) & (2)
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SFE will prevail
.png)
SECTION 54(1)
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Clear cannot bring in evidence of bad
character but if good character given under s.53 (can be brought in to rebut)
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Purpose is for rebuttal of good character
and only affects credit worthiness don’t affect guilt
Exceptions &
Methods To Adduce BC Evidence
i.
Evidence of GC given
ii.
Where BC is already a fact in issue before the court (explanation 1 saying the section don’t apply where bad character itself
it already an issue before the court – so you don’t have a shield)
iii.
SFE (BC evidence already rendered admissible under SFE
rules – prevails under s.54 which s.11(b) don’t prevail over 54)
iv.
BC already rendered admissible under any other provisions of EA (Bhoota Singh where he had a fight with persona made police report 9
months earlier and that would be BC evidence when brought in but already
admissible under s.8 already override under s.54(1). So s.54(1) is misleading.
The relevancy sections some deals with different methods and read differently
so you cannot use the same universal interpretation for all sections.
SECTION
54(1)
§ This section based on the wording itself you can see only one exception
where it has been tendered under section 53.
§ Take note this method of reading 54(1) can be quite misleading although on
the face only identifies one exception, but that is not the only method
prosecution can bring in bad character evidence. Can even bring in where
accused hasn’t given evidence of his good character
§ The exceptions will be looked at not just from the point of view section
54(1) but the entire section 54(1), evidence act and law of evidence (3 ways).
§ Take not of explanation one, the rule of 54(1) won’t apply where your bad
character is already an issue in court, similar fact evidence prevail cannot
use this section.
§ Bad character going to be revealed, which prevail? The provision that
allows bad character evidence will prevail and example would be section 8 of
EA.
EXCEPTIONS
& METHODS TO ADDUCE BC EVIDENCE
i.
Evidence of GC given
ii.
Where the BC is already a fact in issue
before the court
iii.
SFE (BC evidence already rendered
admissible under the SFE rules
iv.
BC already rendered admissible
HOW WILL GC
BE GIVEN RESULTING IN THE LOSING OF SHIELD UNDER S.54 (1)
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Where evidence of good character had been
given by something done by the defence council. A will lose his shield under s.54
(1) if evidence of his GC has been elicited by the A or his counsel. You may
not be my witness but witness of prosecution and in that you reveal my client’s
good character, defence who is the one who asked the defence = then you lose
your shield
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The effect: where evidence of GC given as
a result by something done by the prosecution, the witness will not lose his
shield. The exception kicks in when GC evidence given and who was responsible
for it? It is the defence
a.
By the A as a witness
b.
By defence witness during exam in chief
c.
During cross examination of prosecution
witness by defence
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If evidence of GC is given by the P during
the cross examination of the A/defence witness or it is volunteered (unprovoked
statement) by witness, the A will not lose his shield.
1.
R v Stronach [1988]
2.
R v Redd [1923]
DIFFERENCE
BETWEEN 54(1) & 54(2)
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Sec.54(2) only applies where accused is a
witness different from s.54(1)
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This rule established in the case below
3.
Shanmugam v PP [1963]
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The defence council attack on the witness
and the accused was not called on the witness but then prosecution say now that
they attacked the witness, they want to bring in evidence of bad character and
witness was not called cast imputation.
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It was held cannot bring in bad character
evidence because when imputation is cast they can bring in only if the accused
is a witness, when they are not too bad cannot bring in.
It does not apply where accused bad
character is already an issue in court and the authority on this is explanation
1. The case we will be looking at is:
4.
Wong See Har v PP [1968]
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Accused charged for extortion and
collected money and the charge was that he collected money for his brother
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Then prosecution brought in evidence that
he was member of a secret society and that is evidence of bad character and
cannot bring in because defence have not given evidence of good character.
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But the court disagreed and look at
explanation 1 of s.54 and the court say it has been brought to the court,
revealed to the court (extort money, for brothers) and issue to the court, we
know that you are a gangster, hence explanation 1 applies.
§ Admissibility of character evidence under other provisions of EA/SFE: if
bad character evidence has been rendered admissible under other provisions,
this section has no application
5.
R v Smith
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Brought in bad character evidence on
ground SFE was satisfied.
6.
Wong Foh Hin v PP [1964]
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Father murdered daughter, incest,
prosecution want to bring in evidence on the incest and defence argue you
cannot bring it in for evidence of bad character unless given evidence of good
character
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The position of the court: section 54(1)
will not stop the admissibility of the evidence, just because it reveals your
bad character, section 8 will prevail over section 54(1) = admissible.
7.
Rauf Haji Ahmad
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Court said SFE, Makin test will prevail
over s.54(1)
In Sarkar, writers argue that s.14, s.15,
s.8 and s.9 will prevail over 54(1). These are the sections that can override
s.54(1) + (Makin Boardman test above).
8.
Kiew Foo Mui [1995]
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When defence didn’t bring in good
character evidence and when prosecution brought in inadmissible bad character
evidence and did not object does not render it admissible. Remember Azahan’s
case under SFE. It is the duty of the court to disallow it.
TYPES OF BC
EVIDENCE
If we look at section 54(2), suggest that
where you’ve lost your shield and BC evidence coming in, it can be specific,
particular and general and does not have to relate to the charge and this is
different completely of the rule we have for good character evidence. You are
very confined until the moment the person loses his shield.
9.
R v Winfield [1939]
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Here the charge was for indecent assault
and the accused had given evidence of his good character. In order to rebut his
evidence of good character, the prosecution brought in evidence of his previous
character concerning dishonesty and not related here but the court said they
can bring it in.
EXAMPLE OF BC EVIDENCE
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Notorious pickpocket
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Trouble maker
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Possession of obscene materials
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Stole money from a church box, etc
S.54(1) not
as simple as it looks,
1. Who
asked the question, who is responsible?
2. Are
there other admissible evidence even if you have not given your GC
SECTION 54(2)
It kicks in
(as far as exam is in concern) only talk about it only if the accused is a
witness, otherwise doesn’t go near it because it will not apply and the GR: you
cannot be asked and if you have been asked, you don’t have to answer on the
question of your bad character. Use Shanmugam case of where s.54(2) applies
where accused is a witness.
EXCEPTIONS
Clearly identified
in paragraphs and that section 54(2) is a tool for cross examination of the A and not just to adduce evidence.
a.
Evidence of BC admitted to show guilt
(SFE)
b.
Good character evidence given to, has cast
imputations on P/PW
c.
Has given evidence against co-a
All English
cases here because EA taken from another act.
10.
R v Butterwasser [1948]1 KB 4
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The defence lawyer attacked the victim’s
character during cross examination
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The accused is not called as a witness and
the trial judge allowed prosecution to call another witness as a rebuttal
witness and this witness gave evidence that the accused has previous conviction
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Where you have done nothing more than
attacking bad character of prosecution unless accused is a witness
See s.54(2)
à ‘any question tending to show’
11.
Jones v DPP [1962] AC 635
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Here the court had to interpret what do
you mean by ‘tending to show’
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The court in this case came to the
conclusion it means revealing to the court for the very first time meaning if
your bad character has already been revealed to the court or you done something
that puts your BC issue to the court, then you are not protected
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We have something similar to this act
under explanation 1 (similar to the case of wong see har) meaning to
say you are protected if nothing is revealed to the court.
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Accused charged with murder of a young
girl, 3 months before, he was charged and convicted for raping another girl. 3
months before when he was charged with rape, he raised the defence of alibi
that on the night in question (time of incident) he was with a prostitute, he
went home and had a huge fight with his wife. Now he is facing the charge of
murder
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Now when called as witness, he used alibi
defence which is word for word same alibi he used in the 3 months before when
he was charged with rape
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During trial, prosecution did not bring up
his previous conviction for it but during defnce case when he used this alibi,
prosecution wants to cross examine him where he used the same alibi for his
previous defence
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Issue: can they do so? Of course defence
argued they didn’t bring in defence of good character, no element of SFE and
did not bring in GC character
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But the court allowed because by putting
forward that alibi, when he raises the issue of the alibi which is identical to
the previous case = the issue is already before the court and therefore lose
shield under s.54(1) and hence can bring this in to rebut your alibi
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In here the court interpreted ‘tending to
show’ the issue raised for the first time
12.
Maxwell v DPP [1935] AC 309
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Acquittal cannot be questioned
13.
R v Cokar [1960] 2 QB 207
14.
Stirland v DPP [1944] AC 315
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Issue: assuming you have done something
within the definition of s.54(2) either good character etc one of it and you
have lost your shield, does that mean the prosecution now entitled to ask
anything on your bad character r judge still has discretion as to what
questions can be permitted and otherwise?
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Cross refer to s.120(3) à it is very clear when it come to cross examination of AP, the court has
discretion and court can stop
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Here just because you have lost your
shield, the judge still has discretion to determine what will and will not be
permitted, it is not automatic.
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This is further supported by our s.120(3)
provision
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Permitted where necessary for credit
worthiness and if not for this reason and overwhelming evidence on accused, not
necessary
15.
R v Rouse [1904] 1 KB 184
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Issue: is a denial of charge evidence of
good character when he takes the stand? See whether merely denying the charge
(because won’t result in the loss of shield). Not evidence of good character.
16.
R v Clark [1955]
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Support Rouse, mere denial is not evidence
of GC.
17.
R v Ellis
Second limb of Paragraph (b) – 2nd
limb
a.
What is imputation
ü
Example, imputation of sexual morality
considered as attacking witness or prosecutor
ü
Allegation that it was the witness who
committed the crime
ü
Allegation that the prosecution had
planted evidence (malicious prosecution etc)
b.
Can be general/specific
c.
Can be something that suggest criminal
conduct on the prosecution witness or prosecutor/immoral
d.
(Q of fact highly subjective)
e.
By whom and when. It could be the accused
where he takes the stand and say prosecutor is doing is out of malice and
police officer framed me (very serious allegations)
f.
By A
g.
Evidence in chief of DW (the defence is
asking question and defence is responsible)
h.
Cross examination of PW (defence council
is responsible and therefore if there is an attack, you bear the
responsibility)
*refer again to rouse case*
The
statement made by the witness? He called prosecution witness a liar. This is
casting an imputation or strongly worded denial? Court came to the conclusion
it is a strongly worded denial. Mere denial doesn’t amount to good character so
he did not lose his shield when he uttered that sentence. Compare with the case
below.
18.
R v Rappolt [1911]
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Saying he is so horrible that his own
mother won’t talk to him and here the court said it is casting imputation and
it is a question of fact which the judge decides.
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(in exam although casting imputation is
dependant the court will decide based on Selvey and Britzman guidelines
although depending on facts)
19.
Selvey v DPP [1970]
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Accused charged with burglary/sodomy and
the victim is a very young man and X called as main prosecution witness
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The first question DC asked him: Did you ask
the accused is he would give you one palm? Did you tell him that you were with another
man this afternoon and he has given one pound? à implication of prostitution
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The natures of the question are they
casting an imputation?
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Court decided:
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i. court has discretion to allow cross examination or
not of imputation has been casted
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ii. What amounts to casting an imputation? (court said
nothing more than part of his defence you were only denying the charge and
putting forth a reasonable defence and not casting an imputation but to explore
a reasonable defence) – if it is nothing more than a mere denial = not casting
imputation. However if it goes beyond the reasonable exploration of defence and
the purpose is to blacken character of prosecution witness = imputation cast
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even if that is imputation, not automatic
can cross examine up to judge’s discretion
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two levels: what is an imputation, even if
there is an imputation court has a discretion
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Court came to the conclusion on the
attempt of defence lawyer to blacken prosecution witness and that it is an
imputation.
20.
R v Britzman [1983]
-
The court explored the guidelines further.
Once again the court made it very clear where imputations have been casted, judges
have discretion to allow or otherwise
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The cross examination would be allowed if
the imputation is unfair and unjustified
-
If it is nothing more than a mere denial,
you would not lose your shield
-
(so both the cases are in line and nothing
new there but should take note of what the court said in elaborating)
21.
R v Turner
Take note
of s.146(a) when it comes to rape cases there are only certain types of
question you can ask the victim, you cannot ask her anything relating to her
sexual activities and etc with other partners unless you can show her sexual
history with other partners relevant to the court.
Paragraph (c) – S.54(2)(c)
This
paragraph is not meant for the prosecution but for the benefit of the co-a so
the co-a defence should be given the position with the purpose to rebut your
evidence against his client. These cases show how the court applied the
principles.
22.
R v Varley [1981]
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Guidelines
i.
Lose shield if the evidence materially
undermines the co-a defence/case or materially supports the prosecution case
against the co-a. Contradiction can be considered as giving evidence of the
other party but at the end of the day court has discretion.
23.
Murdoch v Taylor [1965]
-
This case submitted that although P cannot
use para (c) to cross examine, but they can although not automatic right.
Next week
start on opinion, midterm: SFE & character evidence, postponed to Week 8
and no increase of chapters to be covered, cover both. It can be combined.
*End of Character evidence*
