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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