Character evidence

Good character Bad character

Character evidence• Section 52 to 55 of the Evidence Act 1950 deal with the

relevancy of character evidence. • Character evidence in civil cases• Section 52 provides in civil cases character to prove conduct

imputed (ascribed) irrelevant. It states that “In civil cases 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”. This section provides that evidence of character does not assist in the determination of the issues involved in a civil case.

• The exception to this rule can be found in section 55 where it provides for character as affecting damages where it states “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”. The principle underlying this section is based on the fact that in certain types of civil actions the amount of damages to be awarded would depend on character of a person. Character evidence thus becomes a relevant fact in certain type of cases like defamation cases; evidence of character of the plaintiff would be relevant.

• In Sandison v Malayan Times Ltd [1964] MLJ 332 is a defamation case where the previous conduct of the plaintiff was considered by the court in assessing damages.

Character evidence• Character evidence in criminal cases• As for criminal cases, section 53 provides that “In criminal proceedings the fact that

the person accused is of a good character is relevant”. • Per Mahajan J in Habeeb Mohamed v State of Hyderabab AIR 1954 SC 51 states “In

criminal proceedings a man’s character is often a matter of importance in explaining his conduct and in judging his innocent or criminality. Many acts of an accused person would be suspicious or free from all suspicion when we come to know the character of the person by whom they are done. Even on the question of punishment an accused is allowed to prove general good character”.

• However character evidence is a very weak type of evidence as stated by Subba Rao J in Bhagwan Swarup v State of Maharashtra AIR 1965 SC 682. Raja Azlan shah said in Syed Ismail v PP [1967] 2 MLJ 123 that “In cases of bribery, like all criminal cases, the golden rule is that the accused person cannot be convicted unless the court is satisfied beyond reasonable doubt that he is guilty. This rule admits of no qualification in relation to the character of the accused or of the witnesses. It cannot be argued that if the accused is of bad character, persons who show tendencies towards perjury and fabrication of evidence may be relied upon when giving evidence against him, though if the accused's character is exemplary their evidence would be regarded as worthless on account of their inability to adhere to the truth. But where the accused person in a bribery case pleads and produces evidence of good character which the court regards as satisfactory, and if it appears to the 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 reasonable doubt as to the guilt of such accused person”.

Character evidence• Character evidence in criminal cases• However character evidence is a very weak type of

evidence as stated by Subba Rao J in Bhagwan Swarup v State of Maharashtra AIR 1965 SC 682.

• Raja Azlan shah said in Syed Ismail v PP [1967] 2 MLJ 123 that “In cases of bribery, like all criminal cases, the golden rule is that the accused person cannot be convicted unless the court is satisfied beyond reasonable doubt that he is guilty. This rule admits of no qualification in relation to the character of the accused or of the witnesses. It cannot be argued that if the accused is of bad character, persons who show tendencies towards perjury and fabrication of evidence may be relied upon when giving evidence against him, though if the accused's character is exemplary their evidence would be regarded as worthless on account of their inability to adhere to the truth. But where the accused person in a bribery case pleads and produces evidence of good character which the court regards as satisfactory, and if it appears to the 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 reasonable doubt as to the guilt of such accused person”.

Character evidence• Character evidence in criminal cases• Character evidence also plays a prominent role in the

sentencing process. It is accepted practice for the court to inquire whether or not the accused person has previous convictions before imposing sentence. 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.

• Per Wee Chong Jin CJ in Melvani v PP [1971] 1 MLJ 137 states “Another ground was that the trial judge failed to take into consideration the evidence of good character… Similarly good character is always a circumstance which a court ought to consider in assessing sentence. Taking into consideration the fact that he had pleaded guilty, the fact that he had a good character, the fact that for a person in his situation in life a sentence of imprisonment however short it may be would be a real punishment for this offence in every sense of the word for him and the fact that his other two co-accused were sentenced to a lesser term of imprisonment I would reduce the sentence to a similar term of two years”.

Character evidence• Character evidence in criminal cases• In Siah Ooi Choe v PP [1988] 2 MLJ 342, the appellant was

charged for having abetted an offence under section 406(a) of the Companies Act (Cap.50, 1985 Ed.)  by inducing a bank, through deceitful means, to give credit to his company. Three other similar charges of similarly inducing three other banks on three separate occasions to grant credit to his company were taken into consideration for the purpose of determining the sentence. 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, allowing the appeal (2)   the charge preferred against the appellant is one of the lowest levels in terms of criminality under section 406(a) of the Companies Act; (4)   in the circumstances of this case and in particular the background of the appellant's character and his contribution to society and the country, the "clang of prison gates" principle should apply. The principle is that in the case of a man with an unblemished record, the fact that he has a criminal conviction and finds himself in prison is a very grave punishment and a short prison term should in certain circumstances suffice. This was a case par excellence where a short term of imprisonment was adequate punishment; (5)   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.

Character evidence• Section 53 must be read with section 54 of the Act. section 54

provides for the previous bad character not relevant except in reply where is states that in subsection (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.

• Explanation 1 clearly provides that “This section does not apply to cases in which the bad character of any person is itself a fact in issue”.

• (See Wong See Har v PP [1968] 1 MLJ 32) and explanation 2 provides that “A previous conviction is relevant as evidence of bad character”. Section 54 lays down the general rule that in criminal proceedings, the fact that the accused has a bad character is irrelevant.

Character evidence• Examples of cases where evidence of bad character was excluded• In the case of Lim Kong v PP [1962] MLJ 195 Adams J referred to some cases where

evidence led showed that the accused either had previously convicted or was guilty of some grave moral misconduct.

• In the case of Loke Soo Har v Public Prosecutor [1954] MLJ 149 evidence came out that the accused was a notorious pickpocket.

• In the case of Balasingham v Public Prosecutor [1959] MLJ 193 the evidence was that the accused "caused trouble to others".

• In the case of R v Bartlett [1959] Cr LR 285 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.

• In Austin's case [1958] Cr Cases and Comment 93 on a charge of stealing, evidence was given that the accused had falsified an income tax return and had been convicted. In Rodley's case 9 Cr App R 69 evidence of immoral conduct subsequent to the commission of housebreaking with intent to rape was held to be inadmissible.

• In Morrissey's case 23 Cr App R 189 questions were asked tending to establish that the accused had previously robbed church money boxes.

• In Taylor's case 25 Cr App R 46 as a result of questions by the Judge it was necessary to disclose previous convictions by defence counsel. Here the conviction was quashed.

• In Palmer's case 25 Cr App R 97 the jury about to try the prisoner happened to overhear counsel in the previous case referring to his client as the son of a notorious shoplifter, who was the accused to be tried by that jury.

Character evidence• Examples of cases where evidence of bad character was excluded

• In Muthusamy v PP [1948] MLJ 57, Taylor J said that evidence adduced to show that the accused is a quarrelsome person and that he had quarreled before and on other occasions is irrelevant.

• In Girdari Lall v PP [1946] MLJ 87 the police photograph of the first accused was produced and put in evidence. It mounted on a card with several other photos of Indians. It bore a police number and was a combined profile and full face photo. McElwaine CJ said that it was obviously a police record and putting it in evidence was tantamount to saying that the accused was of bad character.

• His Lordship also referred to the case of Lai Ah Kam v R [1939] MLJ 306 where the Colony Court of Criminal Appeal following R v Dwyer [1925] 2 KB 799 quashed a conviction because such a photograph was shown to the jury.

• In PP v Choo Chuan Wong [1992] 2 CLJ 1242, Edgar Joseph Jr in disallowing questions put by the prosecution to the witness as to whether he was a gangster said at page 1250 that “…the learned deputy…asked him if he was a gangster but, upon objection being taken by learned counsel for the defense, I disallowed the question on the ground that the question, if answered in the affirmative, would be evidence of bad character and such evidence would be inadmissible”.

MOTIVESIMILAR

FACTEVIDENCE

RESGESTAE

EXCEPTIONS

Character evidence• Admissibility of character evidence under other

provisions of the Act

• It must be noted that section 54 has no application to character evidence being rendered admissible by other provisions of the Act.

• In Wong Foh Hin v PP [1964] MLJ 149 the appellant was convicted of the murder of his daughter. Evidence was admitted at the trial of an incident 3 months before the daughter's death where the wife had complained to the village headman that the appellant had "interfered with his daughter and that the matter had been disposed of by the village headman stating that if this occurred again the matter would be reported to the police. On appeal the sole question was whether the evidence of the above incident and also evidence of a similar incident just before the daughter's death were properly admitted. It was contended for the appellant that (i) the evidence of the incidents which suggested an incestuous relationship between the appellant and his daughter amounted to evidence of bad character and was therefore inadmissible (it) and alternatively if it was admissible the trial Judge should have exercised his discretion to exclude it on grounds that its pre-judicial effect far outweighed its probative value.

• Held: (1) the evidence of the incidents was admissible. It was not rendered inadmissible merely because it tended to show bad character or the commission of another offence; (2)   in this case as there was only circumstantial evidence of the murder, strong and convincing evidence of motive would probably have high evidential value.

Character evidence• The other provisions of the Act under which such

evidence may be adduced are as follows:

a) Section (Evidence of res gestae)• 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. Per Buttrose J in Kanapathy v R [1960] MLJ 26 states “The whole of that evidence was, in my opinion, clearly part of the res gestae and was material and relevant. It is on an entirely different footing to evidence tending to show the previous bad character of an accused person which would have been inadmissible”.

Character evidence• The other provisions of the Act under which such evidence may be

adduced are as follows:

b) Section 8 (Motive)• If the evidence of bad character indicates the motive in respect of

the offence for which the accused is charged then it is admissible. In Wong Foh Hin v PP [1964] MLJ 149, the judge states “The evidence objected to is clearly the strongest possible evidence of motive. This applies to the evidence of both incidents. For the evidence concerning the interview with the Orang Tua on the first occasion shows how strong the motive must have been when the wife went off in the night time on the second occasion. It showed that applicant was likely to be very concerned that this time there would be a police investigation and the daughter would be the most important person the police would interview and the most dangerous from his point of view”.

Character evidence• The other provisions of the Act under which such

evidence may be adduced are as follows:

c) Similar fact evidence • If the acts sought to be proved are so connected with the

offence charged as to form part of the evidence upon which it is proved then it is admissible. Per Thomson J in Rauf Bin Haji Ahmad v PP [1950] MLJ 190 where amount the issue discussed were on the admissibility of evidence tending to show accused is guilty of criminal acts other than those charged states “ Such evidence therefore cannot be admitted unless it be relevant to the issues actually in contest and as to when it is so relevant”.

Character evidence• Application of the section a) Evidence of subsequent conduct• Evidence of subsequent conduct is not evidence of bad character. In PP v Omar

Bin Daud (Penang Criminal Trial No 58-3-84, unreported) Counsel for the first accused asked the second accused about his attempt to escape from prison while on remand. Counsel for the second accused objected to this line of questioning saying that if the question is allowed it would lead to the introduction of evidence of bad character against second accused. In overruling the objection, Edgar Joseph Jr J said at pages 51 – 52 that “I was of the view, however, that the evidence sought to be elicited by the question would not be evidence of bad character; it merely evidence of the subsequent conduct of the accused and would be admissible under section 8 of the Evidence Act”.

b) Evidence of other pending charges• Evidence relating to other charges “pending” against the accused is not

admissible under section 54 of the Act as it tends to show that he had committed those other offences. (See Datuk Haji Harun Haji Idris v PP [1977] 2 MLJ 155).