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GOOD AND BAD CHARACTER EVIDENCE

Posted on Sunday, December 16, 2012 by Nurul Suffina Ahmad




Character’ in English Law generally refers to the general reputation of a person. Reputation here means what others think about her or him. However, under our Act, ‘character’ includes both reputation and disposition. Disposition means inner qualities, traits, integrity or honour, or natural tendency in a person which can be inferred from his acts. As a general rule, character of a party to an action whether in civil or criminal is not relevant. Evidence of character will result in unfair prejudice to him. However, there are number of exceptions to the general rule some of which are found in section 52 to 55 of the Evidence Act 1950 (hereinafter referred to as ‘the Act’)




Under sec.52 of the Act for example, which applies to civil cases only, character of a party is not relevant unless it is the fact in issue. Thus, in civil cases, a party’s character cannot be proved for the purpose of showing that any conduct attributed to him is probable or improbable. However, a party’s character is relevant whenever it affects the amount of damages, which he ought to received. [see Sandison v Malayan Times Ltd and Ors [1964] MLJ 332]


Meanwhile, section 53 of the Evidence Act applies to criminal cases and makes the character of the accused relevant. Under criminal law, a person is presumed innocent until proven guilty. In support of this presumption, evidence of good character of the accused is made relevant. It has been said in some cases that the innocent or criminality of an accused can easily be judged by looking at his character and the accused must be allowed to prove his innocence with the help of his good character. [See Habeeb Mohammed v State of Hyderabad AIR 1954 SC 51]. However, the fact that a person is of bad character is not relevant under this section for raising general inference that the accused is likely to have committed the offence charged. Therefore, the guilt of the accused must be proved by independent evidence and not only on the basis of his character. 


Next, I would like to elaborate more on the relevancy of evidence of previous bad character of the accused. Section 54 of the Act provides that, previous bad character of the accused is not relevant except in reply. Generally, this section lays down the general rule that in criminal proceedings, the fact that the accused has a bad character is irrelevant except in the cases mentioned therein. The section consists of two subsection. It is necessary to consider them separately so that the distinction between them could be made more apparent. It must be noted that, under section 54(1) of the Act, evidence of bad character is only admissible if evidence of his good character has been given. Such evidence of bad character of the accused need not be given by the accused himself. Similarly, evidence of bad character of the accused may be given by way of independent evidence or during cross examination of the accused himself.




The case of  Shanmugam v PP [1963] MLJ 125 (HC) highlights the distinction between both the subsections. As noted earlier, under section 51(1) evidence of bad character can only be led when he has put his character in issue and not that of the prosecution witnesses, but section 54(2) provides that such evidence may be adduced even if imputations are cast on the character of witness. Furthermore, the prohibition under section 54(1) can also be found under section 52(2)(b). However, there is a difference between both the provisions. The use of words ‘…unless evidence has been given that he has a good character…’ in section 54(1) mean that the evidence of good character is not restricted to the evidence of the accused only and it could also have come from other resources. On the other hand the use of the words ‘he has…; or has given evidence of his good character…’ in section 54(2)(b) mean that the evidence of his good character must come from the accused only.


Section 54(2) starts off with 4 types of question which an accused shall not be asked, and if asked, shall not required to answer. They are:
  • Those tending to show that he has committed other offences; 
  • Those tending to show that he has been convicted of other offences;
  • Those tending to show that he has been charged with any other offences ; and
  • Those tending to show that he is a bad character.
Subsections (a), (b) and (c) then relate to the situations in which such questions may be asked.


However, before I put this discussion to an end, it must be noted that Section 54 has no application to character evidence being rendered admissible by other provisions of the Act.  per Wylie CJ in Wong Foh Hin v PP [1964] MLJ 149, 151 (FC) ;

Section 54 deals with evidence of character in these term…
            The annotation to that section at page 347 of Monir (4th Edition) shows that there are Indian authorities (not available in Jesselton) which establish that this section does not make inadmissible evidence which is otherwise admissible.
       
Part of that annotation reads:-
            ‘It should, however, be remembered that evidence which is otherwise relevant cannot become irrelevant merely because, besides being relevant on the point on which ot is tendered, it incidentally discloses the bad character of the accused, the evidence does not, for that reason, become irrelevant.’

The other provisions of the Act under which such evidence may be adduced are as follows:

  • Section 6- Res Gastae 
If the evidence forms part of the res gastae, it is admissible as it is on an entirely different footing to evidence tending to show the previous bad character of an accused person  
  • 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. See Wong Foh Hin v PP [1964] MLJ 149  
  • Sections 15 and 15 - Similar Facts Evidence :
If the facts sought to be proved are so connected with the offenc charged as to form part of the evidence upon which it is proved then it is admissible. See Rauf bin Haji Ahmad v PP [1950] MLJ 190 (per Thomson J)



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