Chapter 8 - Character Evidence Flashcards
(43 cards)
1
Q
CHARACTER EVIDENCE
Overview
A
1) General principles
2) Character evidence in civil cases - good & bad character
3) Character evidence in criminal cases - good character
4) Character evidence in criminal cases - bad character
2
Q
GENERAL PRINCIPLES ON CHARACTER EVIDENCE
Overview
A
1) Meaning of “character”
2) Meaning of reputation
3) Distinction between disposition & reputation
4) Scope of admissible character evidence
5) Weight of character evidence
3
Q
GENERAL PRINCIPLES ON CHARACTER EVIDENCE
Meaning of character
A
1) The law:
- Explanation 1 to S.55: includes both reputation & disposition.
4
Q
GENERAL PRINCIPLES ON CHARACTER EVIDENCE
Meaning of reputation
A
Harbhajan Singh v State of Punjab:
- Reputation implies the definite & final formation of opinion by the community;
- Reputation is predicated upon a general trait of a character.
5
Q
GENERAL PRINCIPLES ON CHARACTER EVIDENCE
Distinction between disposition & reputation
A
1) General:
- Disposition: inner qualities, traits, integrity or honour, or natural tendency in a person which can be inferred from his acts.
- Reputation: formation of opinion by the community, predicated upon a general trait of a character.
2) Bhagwan Swarup v State of Maharashta:
- Disposition may be made of many traits - some are good & some are bad;
- Reputation is the finalized opinion of a person by the community, which takes time to form.
- A man may be reputed to be a good man, but in reality he may have a bad disposition.
- The value of evidence on disposition of a person depends on witnesses’ perspicacity AND their opportunities to observe a person as well as the person’s ability to hide his real traits.
6
Q
GENERAL PRINCIPLES ON CHARACTER EVIDENCE
Scope of admissible character evidence
A
Datuk S. Nallakaruppan v DSAI (CA, 2015):
- Ref. Explanation to S.55:
– Only evidence of general character may be adduced and not evidence of particular acts or of a particular conviction.
7
Q
GENERAL PRINCIPLES ON CHARACTER EVIDENCE
Weight of character evidence
A
Bhagwan Swarup v State of Maharashta, ref. to by CA in Thankgod Chukwujindu Enenmuo v PP (CA, 2018):
- the character evidence is a very weak evidence;
- it cannot outweigh the positive evidence in regard to the guilt of a person.
8
Q
CHARACTER EVIDENCE IN CIVIL CASES - GOOD & BAD CHARACTER
Overview
A
1) The law
2) Scope of admissible character evidence in civil cases
3) Application on S.52
4) Application on S.55
5) Application on Explanation to S.55
9
Q
CHARACTER EVIDENCE IN CIVIL CASES - GOOD & BAD CHARACTER
The law
A
1) General rule - S.52:
- character evidence is irrelevant to render any conduct probable or improbable.
2) Exception 1 - S.52:
- if the character is the fact in issue, the character evidence becomes relevant.
3) Exception 2 - S.55 + S.12:
- character evidence is relevant to determine / if it affects the amount of damages.
10
Q
CHARACTER EVIDENCE IN CIVIL CASES - GOOD & BAD CHARACTER
Scope of admissible character evidence in civil cases
A
Datuk S. Nallakaruppan v DSAI (CA, 2015):
- The explanation to S.55 makes it very clear that only evidence of general reputation and general disposition was admissible to prove bad or good character.
- Character evidence admissible under civil cases could not be proved by a particular act.
- Therefore, under S.52 & 55, conviction for criminal offence is not relevant as evidence of bad character.
11
Q
CHARACTER EVIDENCE IN CIVIL CASES - GOOD & BAD CHARACTER
Application of S.52
A
Sandison v Malayan Times Ltd:
- OTF, P’s bad character is relevant to show what others thought of him.
- The character of P is in issue and thus relevant and admissible.
12
Q
CHARACTER EVIDENCE IN CIVIL CASES - GOOD & BAD CHARACTER
Application of S.55
A
DP Vijandran v Karpal Singh:
- In an action for defamation, evidence of the plaintiff’s bad reputation in a sector of his life relevant to the alleged libel was admissible in mitigating damages but evidence of specific acts of misconduct was inadmissible.
- Any evidence as to the character of the plaintiff must be confined to the particular area of his life or character that has been libelled.
13
Q
CHARACTER EVIDENCE IN CIVIL CASES - GOOD & BAD CHARACTER
Application of Explanation to S.55
A
Datuk. S Nallakaruppan v DSAI (CA, 2015):
- The defendant, by relying on the conviction of the plaintiff in the second sodomy case and the remark by the Federal Court as to the plaintiff’s act of homosexual activities in the first sodomy case, was in fact relying on particular acts to show general reputation and general disposition of the plaintiff.
- This was not correct and was not permissible by virtue of s. 55.
14
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - GOOD CHARACTER
Overview
A
1) What amounts to good character
2) Evidential value of GCE
3) Admissibility of GCE
15
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - GOOD CHARACTER
What amounts to GC
A
Examples:
- A had attended Sunday mass regularly; R v. Ferguson [1909]
- A had been earning an honest living for a considerable time; R v. Baker [1912]
- A was a married man with a family and in regular work; R v. Coulman [1927].
16
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - GOOD CHARACTER
Evidential value of GCE
A
1) Trite - Bhagwan Swarup v State of Maharashtra:
- GCE though admissible is weak & may not outweigh the positive evidence of the guilt of a person.
- In other words, evidence of good character may give credit to the accused, but in the face of positive evidence of his guilt, GCE cannot turn the scales in his favour.
2) Principle - Syed Ismail v PP:
- Good character must be proven by positive evidence.
- Good character can be used to show that a person possessing such a character would not likely to commit the offence in question.
- Such improbability must be considered by the court to determine whether there is a reasonable doubt.
3) Recent - Thankgod Chukwujindu Enenmuo v PP (CA, 2018):
- Ref. to Bhagwan;
- Held: No doubt good character is a good defence, but it is very weak evidence; it cannot outweigh the positive evidence in regard to the guilt of a person.
- OTF, the GCE adduced failed to rebut the presumption of knowledge under S.37(d) DDA.
17
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - GOOD CHARACTER
Admissibility of GCE - the law
A
S.53:
- GCE is relevant.
18
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - GOOD CHARACTER
Examples of application
A
1) Melvani v PP:
- Accused was charged for using counterfeit US currency, knowing it to be counterfeit & intending to use them as genuine.
- The accused’s good character was considered & his sentence was reduced from 3 to two years.
2) Siah Ooi Choe v PP:
- Principle of ‘clang of gates’ applied.
- A man with unblemished record, a criminal conviction and the sanction of prison are themselves grave punishment.
- Therefore, a short prison term would suffice.
3) R v Iorwerth Jones:
- When a man, aged 58 finds himself for the first time in his life with a criminal conviction, the mere fact that he goes there means that he necessarily is going to suffer financial loss.
- But the closing gate of the prison behind him for whatever length is a very grave punishment.
- In such a circumstance, against the background of the man’s character, a short prison term is ample.
19
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - GOOD CHARACTER
Recent application
CA, 2018
A
Thankgod Chukwujindu Enenmuo v PP:
- S.53 provides for relevancy of GCE for an accused in criminal proceedings;
- It has been said that the innocence or criminality of an accused can easily be judged by looking at his character;
- the accused must be allowed to prove his innocence with the help of his good character.
- Ref. Habeeb Mohammed v. State of Hyderabad: a man’s character is often a matter of importance in explaining his conduct and in judging his innocence or criminality.
- When a court is asked to judge a person’s conduct on particular occasion it may become pertinent to question the person’s conduct.
20
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - BAD CHARACTER
Overview
A
1) What amounts to bad character
2) Failure to object
3) Admissibility of BCE
21
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - BAD CHARACTER
What amounts to bad character
A
Examples, inter alia:
- Police photograph of A tendered as evidence; Girdari Lall v. PP [1946]
- A was a gangster; PP v. Choo Chuan Wang [1992]
- A is a quarrelsome person; Muthusamy v. PP [1948]
- A was a notorious pickpocket; Loke Soo Har v. PP [1954]
- A was the son of a notorious shoplifter; Palmer’s case
- A had caused trouble to others; Balasingham v. PP [1959]
- A had falsified an income tax return; Austin’s case [1958]
- A had robbed church money-boxes; Morrissey’s case
- A had dealt with dangerous drugs; Mohd Zaiham Mislan v. PP [2010] FC
- A had in his possession an obscene photograph; R v. Bartlett [1959]
22
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - BAD CHARACTER
Failure to object
A
Kiew Foo Mui v PP:
- Failure to object did not relieve the judge from the duty to stop the prosecution from attempting to adduce bad character evidence;
- Inadmissible evidence does not become admissible by reason of failure to object.
- However, objection must be taken immediately so as to not cloud the judge’s mind.
23
Q
CHARACTER EVIDENCE IN CRIMINAL CASES - BAD CHARACTER
Admissibility of BCE - overview
A
1) General rule
2) Exception - Explanation 1 to S.54 - BC is a fact in issue
3) Exception - S.54(1) - GCE has been adduced
4) Exception - S.54(2) - applicability overview
5) Exception - S.54(2)(a) - to show he is guilty of the offence he is now charged for
6) Exception - S.54(2)(b) - asking questions to establish own good character
7) Exception - S.54(2)(b) - casting imputation on P or PW
7) Exception - S.54(2)(c)
24
Q
ADMISSIBILITY OF BCE IN CRIMINAL CASES
General rule
A
S.54(1):
- BCE is irrelevant.
S.54(2):
- Accused called as a witness shall not be required to answer on his bad character evidence
25
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - Explanation 1 to S.54 - bad character is fact in issue
1) the law - Explanation 1 to S.54:
- when bad character of a person in itself is a fact in issue, S.54 does not apply;
- in such a case, BCE is admissible.
2) application - Wong Foh Hin v PP:
- A was charged for the murder of his daughter.
- Evidence of the incestuous relationship that A had with his daughter was adduced.
- Even though it amounts to bad character, it is relevant to show motive and thus admissible under s. 8 EA 1950.
26
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(1) - GCE is adduced
1) The law - S.54(1):
- if evidence has been given that he has a good character, his bad character is relevant & admissible.
2) Application - Kiew Foo Mui & Ors v PP:
- evidence that at the material time, the accused were seen fleeing from the scene of the crime in a stolen station wagon was plainly evidence which could imply that the accused persons were men of bad character.
- This evidence was inadmissible as there was no attempt made by defence to adduce accused's GCE.
- In such a case, defence's failure to object does not make it admissible;
- failure to object does not amount to waiver & inadmissible evidence does not become admissible by failure to object.
27
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2) - applicability overview
- only applicable if the accused elects to give sworn evidence.
- i.e. "shall not be asked";
- i.e. "if asked shall not be required to answer"
28
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(a) - to show that he has been guilty of the offence he is charged for
1) law & purpose - S.54(2)(a):
- To show that he is guilty of the offence he is now charged for;
- In such a case, BCE (i.e the proof that he has committed or been convicted) is relevant & admissible.
2) applicability:
- SFE criteria must be fulfilled before such evidence can be admitted;
- i.e. balancing exercise must be conducted.
29
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - the law
S.54(2)(b):
- accused has personally asked question to PW to establish his own good character; or
- accused has casted imputation on PW's character.
- in both of these situations, the BCE of the accused will become relevant & admissible.
30
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - accused asked question to PW to establish his good character - overview
1) Applicability
| 2) Example
31
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - asking questions to establish own good character - applicability
1) Elicited by prosecution - R v Stronach:
- This exception is not applicable if the GCE is elicited by the prosecution during cross-examination of A or from other witnesses.
- In such a situation, BCE of the accused cannot be adduced as it is irrelevant & inadmissible.
- An accused called as a witness shall not be required to answer on his BCE.
2) Witness volunteers such evidence w/o asked - R v Redd:
- This exception is not applicable if the witness volunteers such evidence without being asked.
- In such a situation, BCE of the accused cannot be adduced as it is irrelevant & inadmissible.
- An accused called as a witness shall not be required to answer on his BCE.
32
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - asking questions to establish own good character - example
R v Ellis:
- A dealer was charged with fraudulently obtaining cheques from a customer;
- Court questioned his conduct & his answers were with a view to negating any intent to defraud.
Held:
- He ought not to be asked question as the evidence had not been given with a view to establishing his good character.
Although it may have that tendency, the courts should not hasten to conclude that an assertion of innocence is always a claim to good character.
- i.e. in such a situation, BCE may be adduced to rebut such GCE.
33
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - casting imputation on P's or PW's character - overview
1) Examples of casting imputation
2) Denial or outright attack
3) Whether imputation is absolutely necessary
4) Scope of casting imputation - general
5) Scope of casting imputation - rape offence - English case
6) Scope of casting imputation - rape offence - S.146A
34
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - casting imputation on P's or PW's character - examples of casting imputation
1) R v Hudsons - allegation of plantation of evidence:
- Defence alleged that it was PW who had stolen the goods and planted them on the A;
- This amounted to casting imputations on the character of the PW.
2) R v. Jones - allegation of fabrication of evidence:
- Suggestion that PW had fabricated evidence was an imputation on the character of PW.
3) R v. Hall [1983] CA - denial of interrogation:
- P relied on evidence of 3 police officers that A had made a confession.
- A denied that the conversation had ever taken place.
- Issue was whether A’s denial involved imputation on the character of the 3 police officers.
- CA held in the affirmative & Court has a discretion to prohibit cross-examination.
4) R v Clark - denial of interrogation & concoction of evidence:
- A not merely denied that he had made a statement but went on to allege that the police had concocted it.
- It involved casting imputations on P’s character.
35
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - casting imputation on P's or PW's character - denial or outright attack
1) R v Rouse [1904]:
- Calling PW “a liar” did not amount to casting imputation on the PW’s character.
- It was merely an emphatic denial of the truth of the allegation against A.
2) cf. R v Rappolt [1911]:
- Calling the PW “such a horrible liar that even his own brother would not speak to him” amounted to casting imputations on the PW’s character.
36
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - casting imputation on P's or PW's character - whether imputation is necessary
1) Test:
- i.e. court must look at whether the imputation is necessary for the defence at the proceeding.
- if it is truly necessary, an accused should not be regarded as casting imputation on P or PW.
consequently, bad character evidence cannot be adduced as an exception to general rule. .
2) Example - R v. Cook:
- If the imputations are necessary for the defence and A does not go beyond developing his defence and blacken the character of the PW, the exception will not be activated.
- Therefore, the general rule applies & BCE is irrelevant & inadmissible.
3) Example - R v. Preston:
- A alleged impropriety by a police officer in the construction of an ID parade.
- The exception is not activated as what happened at the ID parade was pivotal to his defence.
- Therefore, the general rule applies & BCE is irrelevant & inadmissible.
37
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - casting imputation on P's or PW's character - general scope of casting imputation
1) Allegation of immorality - R v. Bishop:
- Not necessary refer to the commission of a criminal offence, an allegation of immorality is sufficient.
- OTF, it was held that allegation on homosexual tendency of PW amounts to imputation.
2) R v. Jenkins:
- The accused was charged for receiving a fur coat knowing it to be stolen;
- Questions put to PW (a married woman) that she had spent a night with A amounted to imputations on the character of the witness.
38
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - casting imputation on P's or PW's character - casting imputation for offence of rape - English case
1) English case - R v Selvey:
- The accused claimed that:
* The PW (the complainant) had been to bed with another man that afternoon & earned one pound;
* He asked the accused for one pound to go to bed with him;
* He had brought indecent photographs with him to the accused’s room where they were found by the police;
Held:
- These allegations amount to imputations on the character of the PW;
- This therefore entitled the prosecution to cross-examine the accused on his previous convictions, since the remarks of the defence had gone beyond boundaries.
39
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(b) - casting imputation on P's or PW's character - casting imputation for offence of rape - restriction under S.146A
1) The law - S.146A:
- Restrictions of evidence at trials of rape.
2) Application - Muhammad Zakwan Zainuddin v PP:
- The screenshots of Jannah’s WeChat where she is alleged to have had suggestive pictures with remarks that she offered sexual services in return for money is inadmissible pursuant to section 146A of the Evidence Act 1950;
- The fact that the complainant has a generally immoral character and the intention of the accused persons to introduce as their defence that she was likely to have consented to sexual intercourse is irrelevant and inadmissible.
40
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(c) - the law
S.54(2)(c):
- permits BCE to be adduced if the accused has given evidence against any other person charged with the same offence.
41
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(c) - the law
S.54(2)(c):
- permits BCE to be adduced if the accused has given evidence against any other person charged with the same offence.
42
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(c) - Meaning of giving evidence against
R v Varley:
- May be given either in e-i-c or cross-examination;
- To be objectively decided whether the evidence either supports the case for the prosecution in a material respect or undermines the defence of the co-accused.
Examples:
- Inconvenience to or inconsistency with the other’s defence is not of itself sufficient to mean giving evidence against;
- Mere denial of participation in the joint venture is not sufficient;
- Denial must lead to the conclusion that if the witness did not participate, then it must have been the other who did;
- Where one A asserts or in due course would assert one view of the JV which is directly contradicted by the other, such contradiction may be given against the co-A.
43
ADMISSIBILITY OF BCE IN CRIMINAL CASES
Exception - S.54(2)(c) - Meaning of same offence
R v Lovett:
- A was charged with stealing a television set whereas the co-A was charged with handling it.
- A had given evidence against co-A.
- CA held co-A cannot cross-examine A as they were not charged with the same offence.
