Relevancy of Character Evidence

(s. 52-55)

I. MEANING OF CHARACTER- S. 55

A. EXPLANATION S . 55
In sections 52, 53, 54 and 55 the word ‘character’ includes both

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.

Reputation Disposition

 ‘Reputation’ is the common knowledge of the community  Disposition’ refers to the

about the person inherent qualities of a

 It is the estimation in which a person is held by others and not person- Bhagwan Swarup

the opinion which he may have of himself v State of Maharastra AIR

 REPUTATION vs RUMOUR 1965 SC 682

 Case: Harbhajan Singh v State of Punjab  Example:

o Reputation implies definite and final formation of opinion  a man may be reputed as

by the community. (eg. kaki gaduh/kaki minum/penagih a good man but in reality

dadah, etc) he may have a bad

o Rumour implies merely a report that is not finally credited. disposition

o A bad general reputation can be proved but not rumours

or suspicions.

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 II. ADMISSIBILITY IN CIVIL CASES

A. GENERAL RULE : S . 52
“the fact that the character of any person concerned in such as to render (make) probable (likely)

or improbable any conduct imputed to him is irrelevant, except so far as his character appears

from facts otherwise relevant

1. This section provides that evidence of character does not assist in the
determination of the issues involved in a civil case.

B. EXCEPTION TO BAD CHARACTER IN CIVIL CASES – S. 55 (CHARACTER RELEVANT FOR

DETERMINATION CIVIL REMEDIES E.G. DAMAGES

1. 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.

2. Because in certain types of civil actions the amount of damages to be awarded

would depend on character of a person.

Sandison v Malayan A defamation case where the previous conduct of the plaintiff was
Times Ltd [1964] considered by the court in assessing damages.

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 Examples in application of the sec 55, 52

divorce case:
Contract case the husband was not allowed to tender
D is sued for breach of contract. evidence of his general character for
humanity to disprove a particular act of
He denies that he was in breach and wishes cruelty.
to adduce evidence of good reputation in the
business world with a view of showing that he Rational:
is a person who is unlikely to breach contract. The fact that a person has not committed any
The fact that D has a good reputation in the civil wrongs does not necessarily mean that
business world is not relevant if the sole he has a good character.
purpose of such evidence is to show that D On the other hand, it may be generally said
was unlikely to have broken the contract that a person of good character is unlikely to
commit a crime.

III. ADMISSIBILITY IN CRIMINAL CASES

A. EVIDENCE OF BAD CHARACTER – SECTION 54

Types of bad character

commission of an Other reprehensible

evidence of disposition
offence behaviour

previous
previous acquittals
convictions/offences

Other  Oxford English Dictionary : behaviour is “reprehensible” if it invites “censure,

reprehensible rebuke or reprimand”.

behaviour  examples of “other reprehensible behaviour” :

o lies, drinking to excess, failing to pay one’s debts, and disobedience,

absenteeism and other forms of serious misbehaviour when at work.

o sexual misbehaviour, at any rate where this is of a kind of which most

people disapprove, at least officially: prostitution, resort to prostitutes,

promiscuity, and cheating on a spouse or partner.

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evidence of Evidence of “bad character” includes not only evidence that the person in

disposition question has actually committed criminal offences or other reprehensible acts,

but also evidence of his “disposition towards” doing this

1. general rule : evidence of bad character is not relevant!

Muthusamy v PP[1948]  Charged for house trespass & assault

 Evidence tending to show that the accused is a quarrelsome person

and that he had quarrelled before and on other occasions is

irrelevant

Balasingham v PP The evidence was that the accused had caused trouble to others. (kaki

gaduh)

PP v Choo Chuan Wong Edgar Joseph Jr disallowed questions put by the

[1992] prosecution to the witness as to whether he was a gangster.

B. EXCEPTION TO BAD CHARACTER EVIDENCE IN CRIMINAL CASES

1. Statutory exceptions

Exceptions Explanation

if the bad 14. Facts showing existence of state of mind or of body or bodily feeling
character has
propensity
towards the act Facts showing the existence of any state of mind, such as intention, knowledge,
complained of
good faith, negligence, rashness, ill-will or good-will towards any particular
this is known as
‘similar facts’ person, or showing the existence of any state of body or bodily feeling, are
evidence
relevant when the existence of any such state of mind or body or bodily feeling

is in issue or relevant.

Explanation 1--A fact relevant as showing the existence of a relevant state of

mind must show that the state of mind exists not generally but in reference to

the particular matter in question.

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 Explanation 2--But where upon the trial of a person accused of an offence the

previous commission by the accused of an offence is relevant within the

meaning of this section, the previous conviction of that person shall also be

relevant fact.

Refer kes Boardman ngan kes Makin v AG dalam nota similar facts

if the bad 6. Relevancy of facts forming part of same transaction

character is
Facts which, though not in issue, are so connected with a fact in issue as to form
part of res
gestae part of the same transaction are relevant, whether they occurred at the same

time and place or at different times and places.

Kanapathy v R (1960) - If the evidence complained of forms part of res gestae

it is admissible as it is on entirely different footing to evidence tending to show

the previous bad character of an accused.

Contoh2 lain:

 dalam kes fitnah, perbuatan tertuduh dahulu yang mmg suka tipu ada

ada hasad dengki ngan mangsa leh jadi fakta yang relevan.

 kes fitnah: rahim thamby chik tuduh raja muda Selangor murtad –

amalan2 terdahulu raja muda tu adalah satu fakta yang relevan

If the bad 8. Motive, preparation and previous or subsequent conduct

character is
part of the
evidence of (1) Any fact is relevant which shows or constitutes a motive or preparation for
motive
any fact in issue or relevant fact.

Wong Facts the appellant was convicted of the murder of his daughter.
Evidence was admitted at the trial of an incident 3 months
Foh
before the daughter's death where the wife had complained to
Hin v the village headman that the appellant had "interfered with his
daughter and that the matter had been disposed of by the
PP
village headman stating that if this occurred again the matter
(1964) would be reported to the police.

Held - the evidence of the incidents was admissible.

- It was not rendered inadmissible merely because it tended

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 to show bad character or the commission of another
offence;
- in this case as there was only circumstantial evidence of the
murder, strong and convincing evidence of motive would
probably have high evidential value.
relevant for 173A, 294 CPC
determination
Ada explain kat bawah
of criminal
sentences
Bad character is 53. In criminal cases previous good character relevant
relevant to
rebut good
character In criminal proceedings the fact that the person accused is of a good character
evidence under
is relevant.

**means, once defence bawak fasal good character of accused under s. 53, then

the prosecution can rebut guna bad character under s. 54

54. Previous bad character not relevant except in reply

(1) 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.

(2) A person charged and called as a 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

that wherewith he is then charged, or is of bad character, unless—

……

(b) 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; or

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 ……

(c) he has given evidence against any other person charged with the same

offence.

Explanation 2--A previous conviction is relevant as evidence of bad character.

Cases untuk explanation 2 : R v Butterwasser

 If the accused does not give evidence of this nature, his previous convictions

may not be led by the prosecution

 In this case, the trial judge permitted the prosecution to lead evidence of the

accused’s previous convictions, the conviction was quashed.

Maksud “evidence against” dlm 54 (2)(c) : Murdoch v Taylor

 evidence which supports the prosecution’s case in a material respect or

undermines the defence of the co-accused

Evidence of bad 54. Previous bad character not relevant except in reply
character is
…………..
relevant if it is a
fact in issue Explanation 1-This section does not apply to cases in which the bad character

of any person is itself a fact in issue.

Evidence of bad 54 (2) (a)

character is
(2) A person charged and called as a witness shall not be asked, and if asked
relevant if the
proof that he shall not be required to answer, any question tending to show that he has
has committed
committed, or been convicted of or been charged with, any offence other than
or been
convicted of that wherewith he is then charged, or is of bad character, unless—
that other
offence is
admissible (a) the proof that he has committed or been convicted of that other offence is
evidence to
admissible evidence to show that he is guilty of the offence wherewith he is then
show that he is
guilty of the charged;
offence
wherewith he is
then charged Example:

1st charge : robbery

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 2nd charge after conviction of the 1st : illegal possession of firearms

2. common law exception – refer segala kes common law dlm ni

IV. EVIDENTIARY VALUE OF BAD CHARACTER EVIDENCE

Bhagwan  Even though bad character is relevant through the exceptions, the
Swarup v evidentiary value is rather weak.

State of  like all criminal cases, the golden rule is that The accused person cannot be

Maharashtra convicted unless the court is satisfied beyond reasonable doubt that he is

guilty

 It cannot outweigh the positive evidence with regards to the guilt of the

accused

Syed Ismail v It may be useful in doubtful cases to tilt the balance in favour of the accused

PP Facts The accused in a bribery case pleads and produces evidence of good

Choo Chan character which the court regards as satisfactory, and if it appears to the
Teik court that a person possessing such a character would not be likely to act,

in the circumstances proved to have existed at the time, in the manner

alleged by the prosecution, such improbability must be taken into account

in determining the question whether or not there is a reasonable doubt as

to the guilt of the accused.

or it may also afford a background for appreciating his reaction in a given

situation.

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 V. CHARACTER EVIDENCE ALSO PLAYS A PROMINENT ROLE IN THE
SENTENCING PROCESS

A. IT IS ACCEPTED PRACTICE FOR THE COURT TO INQUIRE WHETHER OR NOT THE

ACCUSED PERSON HAS PREVIOUS CONVICTIONS BEFORE IMPOSING SENTENCE.

1. Section 173A and 294 of the Criminal Procedure Code require the court to
have regard to the character of the accused before imposing the sentence prescribed

in those sections. Good character is a matter that must be taken into account in

assessing sentence.

2. Contoh character affect the amount of punishment:

Siah Ooi Facts the appellant was charged for having abetted an offence under

Choe v Companies Act by inducing a bank, through deceitful means, to give credit to

PP his company.

[1988] The appellant pleaded guilty to the charge and was convicted and sentenced to

a term of nine months' imprisonment.

He appealed against the sentence.

The appellant had an unblemished (Clear) record before the commission of the

present offences.

Held the "clang of prison gates" principle 1 should apply.

This was a case par excellence where a short term of imprisonment was

adequate punishment; a term of imprisonment of three months would be

adequate in all the circumstances. The sentence of nine months' imprisonment

was set aside and a sentence of three months was substituted.

VI. EXAMPLES WHERE EVIDENCE OF BAD CHARACTER WAS EXCLUDED

Balasingham v PP the evidence was that the accused "caused trouble to others".

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If an immediate custodial sentence is the appropriate way to emphasise specific deterrence in the case of an offender
of prior good character, the deterrent effect may be achieved by a short term of imprisonment
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R v Bartlett where the accused was charged with indecent assault evidence was given

that an obscene photograph was found in his possession at the time of his

arrest.

VII. EFFECT FO WRONGFUL ADMISSION OF BAD CHARACTER

EVIDENCE

A. S.167 EA: DISCRETION OF THE COURT.

1. Shall not vitiate a decision if it appears that without that evidence (bad
character) there was sufficient evidence to justify the decision.

B. KIEW F OO MUI V PP)[1995]

1. If not, convictions will be quashed because gravely prejudicial to the accused

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