Bab 2 Outline Character

UNIVERSITI TEKNOLOGI MARA
TOPIC OUTLINE
CODE : LAW591
COURSE : LAW OF EVIDENCE II
LEVEL : Bachelor of Laws (Honours)
CREDIT UNIT : 3.0
STUDENT LEANING TIME : 14.0 hrs
FACE-TO-FACE (F2F) : 6.0 hrs
NON FACE-TO-FACE (Non F2F) 8.0 hrs
TOPIC CREDIT UNIT : 0.3
CONTACT HOURS : Lecture : 4.0 hrs/2 weeks
Tutorial : 4.0 hrs/2 weeks
Studio/Lab : Nil
PART : 02
PRE-REQUISITE : Attended Introductory Lecture.
TOPIC OUTCOMES
At the end of this module, students shall be able to:
1. know and understand the meaning of character evidence and appreciate the different
meaning of character evidence between the common law and Malaysian law of
evidence.
2. Know and understand what amount to good and bad character as well as the
admissibility of character evidence in criminal and civil cases especially on the
protection against the admissibility of bad character and its exceptions;
3. Know, understand and be able to demonstrate a knowledge of relevant case law and
legislation on the admissibility of character evidence; and,
4. Able to Identify issues and problems by listening, reasoning and analyzing legal
issue/problem relating character evidence in a problem;
5. Be able to solve problems by applying case law and relevant legislation on character
evidence.
© Mohd Yunus Bin Abu Samah Ijazah Sarjana Muda Undang-Undang (Kep.) , UiTM
Fakulti Undang-Undang, UiTM
M/Pelajaran : Undang-Undang Keterangan II Tarikh Kuatkuasa : 1hb. Julai 2009
Kod : LAW591 No Keluaran : 1
Bahagian : 02 Muka Surat : 1
TOPIC OUTLINE
2.1 Meaning
Phipson on Evidence at page 417
"The expression "Character" mean in law either a person's general reputation in a
particular respect (for example, for truthfulness or sexual morality) or his disposition
in a particular respect (for example , towards committing or not committing a specific
type of crime)."
General reputation refers to external factor where by how the society perceived a
man. Mean while disposition refers to an internal factor of a person such as his
behavior.
R v Rowton [1861-1873] All ER Rep 549; [1861-73] All ER Rep 549

Explanation of section 55 of the Evidence Act 1950.
2.1.1 Admissibility of Character Evidence Where Character Directly In Issue

Fountain v Boodle (1842) 3 Q. B. 5.
Hurst v Evans (1917) 1 K.B. 352
R v B, R v A (1979) 1 W.L.R 1185
Lim Baba v Public Prosecutor (1962) 28 MLJ 201 (HC)
2.2 What amount to Bad Character?

Two main categories of evidence that amount to evidence of bad character:
1. evidence that the accused has a disposition to commit offences of the same type
as that for which he is on trial (see Evidence Of Disposition), and
2. evidence that the accused, or another witness, can not be trusted to tell the truth
(see Evidence Of Untruthfulness)
However an accused may have a blemish on his character in any number of ways.
There are three main categories:
a. The accused who has minor or long past convictions (the convictions group).
b. An accused who has no convictions but who admits the commission of other
crimes or in respect of whom there is evidence that he has committed other
offences (the criminal group).
c. The accused with no past convictions who is charged with two offences based
on the same incident, to the lesser of which he pleads guilty (the concurrent
group).
2.3 What amount to Good Character?

An absence of criminal convictions.
Vye Directions
R v Vye [1993] 3 All ER 241
R v Timson And Hales [1993] Crim LR 58, CA.
R v Aziz [1995] 3 WLR 52 HL,
What is position in Malaysia?
2.4 Admissibility of Character in Civil Cases

Section 52, EA.
Sandison v Malayan Times Ltd. [1964] MLJ 332
2.5 Admissibility of Character Evidence in Criminal Cases

Section 53, EA: Good character relevant.
2.5.1 General Protection Against Accused Bad Character.

Section 54(1)
Loke Soo Har v Public Prosecutor [1954] MLJ 149
Girdari Lall & Ors v Public Prosecutor [1946] MLJ 87
Wong Foh Hin v Public Prosecutor [1964] 1 MLJ 149
2.5.2 Shield Against Question of Bad Character

Section 54(2) provided that
(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….”
Section 1(f) of the Criminal Evidence Act 1898, s. 1(f)
"tending to show"
Jones v Director of Public Prosecution (1962) A.C. 635, (1962) All E.R.
569 HL
2.5.3 Throwing Shield By Producing Evidence of Good Character (Exceptions

to Section 54(1), EA).
First the protection conferred by Section 54(1) shall be lifted or thrown
way if :
“(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.
2.5.4 Throwing Shield in Under Section 54(2)(a), EA.

“unless –
(a) the proof that he has committed or been convicted of that other
offence is admissible evidence to show that he is guilty of the
offence wherewith he is then charged;
2.5.5 Throwing Shield in Under Section 54(2)(b), EA.

(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
2.5.6 Throwing Shield Under Section 54(2)(b), EA Limb I.
2.5.7 Throwing Shield Under Section 54(2)(b), EA Limb ii.

Loke Soo Har v Public Prosecutor (1954) 1 MLJ 149
a. Previous meritorious or law-abiding conduct: R v Samuel (1956) 40
Cr. App. R. 8 (C.C.A)
b. His religious observance: R v Baker (1912) 7 Cr. App R 252 (C.C.A)
c. He has been in regular employment: R v Powell (1986) 1 All ER 193
(C.A)
d. He is happily married: R v Coulman (1927) 20 Cr. App. R 106
(C.C.A)
OK Nair v Regina [1954] 1 MLJ 206
2.5.8 Throwing Shield in Under Section 54(2)(b), EA Limb iii.

(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
R v Butterwasser
Selvey v Director of Public Prosecution (1970) A.C. 304, (1968) 2 All E.R
497
1. That the prosecutor was a drunken wastrel: R v Homes(1899) 43
S.J. 219
2. That the witness for the prosecution had committed the offence: R v
Hudson (1912) 2 KB 464
3. That the prosecution witness had received stolen goods and that he
was being pursued by the accused with the view to catching him and
not as alleged by the charge, assaulting him with intent to rob: R v
Sargvon (1967) 51 Cr. App. R. 394
4. Was immoral: R v Jones (1909) 26 T.L.R. 59
5. Had kept a disorderly house: R v Morrison (1911) 6 Cr. App. R. 159
6. Was party to unlawful homosexual act: R v Bishop (1974) 2 All. E.R.
1206 (CA)
7. Was connected with rogues and got money out of people without
repaying it: R v Wilson (1915) 11 Cr. App. R. 251
8. Bribe the accused to confessed : R v Wright (1910) 5 Cr. App. R.131
9. That the witness had called the accused "a horrible liar": R v Roppolt
(1911) 6 Cr. App. R. 156, R v Rouse (1904) 1 KB 184
10. The police had used bribes and threats to extract admission from
the accused; R v Wright (1910) 5 Cr. App. R. 131
11. That the whole of the evidence of the prosecution was concocted if
that was really the basis of the defence; R v Cherk (1955) 2 QB 469
12. That the police officer's evidence of a conversation with the accused
was a complete fabrication; R v Levy (1966) 50 Cr. App. R. 238
13. that a witness had invented a story out of malice towards the
accused; R v Dunkley (1927) 1 KB 323
Cases the court held did not amount to casting imputation on the
character of the prosecutor or the prosecution witnesses.
1. Allegation that the evidence given for the prosecution was untrue; R
v Rouse (1904) 1 KB 184: Where part of the evidence of a
prosecution witness was put to the accused who replied: "It is a lie,
and he was a liar". Held: it did not justify a subsequent cross-
examination on his record.
2. mere unconsidered remark that the identification of the accused was
"a put-up job": R v Preston (1909) 1 KB 568
3. Allegation by the accused that he was overcharged by the
prosecutor; R v Morgan (1910) 5 Cr. App. R.157
4. The prosecutor was an habitual drunkard; R v Westfall (1912) 7 Cr.
App. R 176
5. Failure of the police to call witnesses; R v Westfall (1912) 7 Cr. App.
R 176
6. Assertion the prosecution witness swore on a particular occasion; R
v McLean (1978) Crim. L.R. 430 (it is hard to imagine that a modern
court would hold that evidence of habitual swearing truly amount to
an imputation on a witness's character.)
7. Assertion that the accused was only acting under the orders of a
detective; R v Bridgwater (1905) 1 KB 131 (CCA)
TUTORIAL QUESTIONS
1. Mamak was charged in the Magistrates court for the offence of possession of
4.74 kilograms of heroine.
At the hearing, Constable Joe from the anti narcotic division of Jalan Merbau
Police Station gave evidence that he arrested Mamak at a pasar malam along
Jalan Hijau where Mamak had a stall displaying pirated VCDs. He said that
he recognized Mamak as Mamak had been arrested by him previously at a
kopitiam at Jalan Melor offered to sell pirated VCDs to him. Prior to that
Constable had frequent Mamak stall to buy pirated VCDs.
On the night in question Constable Joe together with a raiding party lead by
Inspective Apom received a tipped off by his informer Gopal that a big drop
was planed at Jalan Hijau. The heroine was found in a sling back in the
drawer of Mamak stall.
At the hearing Gopal who was also called as witness for the prosecution. On
cross-examination it was discovered that Gopal was supplying pirated VCDs
to Mamak until two months later when Mamak stopped selling VCDs and
diversified to pushing drugs. Out of vengeance Gopal tipped of the police.
The information was passed to the police while he was in Section 17 Police
Station after his warehouse was busted by the police. He was hoping that by
supplying the information to the police, they would go ‘easy’ on him.
Mamak was convicted. He now appeal against his conviction.

i. As defence counsel write a submission on your client grounds of
appeal.
ii. As deputy public prosecution write a reply to the appellant’s
submission.
2. Peter, Paul and Jack are jointly charged with theft, an offence contrary to section 379
of the Penal Code. Each of them has several previous convictions for the same
offence. Munster, their friend, who has now turned prosecution witness, could
connect them with the offence.
Consider the following situations :-
i. Peter did not give evidence but during cross-examination his counsel puts it
to Munster that he has two previous convictions for theft which Munster
admitted to be true. Can the prosecution lead evidence of Peter 's previous
convictions ?
ii. Paul says in evidence that Munster is a liar. Can the prosecution cross-
examine Paul on his previous convictions ?
(20 marks)

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UNIVERSITI TEKNOLOGI MARA

At the end of this module, students shall be able to:

R v Rowton [1861-1873] All ER Rep 549; [1861-73] All ER Rep 549

2.1.1 Admissibility of Character Evidence Where Character Directly In Issue

2.2 What amount to Bad Character?

2.3 What amount to Good Character?

2.4 Admissibility of Character in Civil Cases

2.5 Admissibility of Character Evidence in Criminal Cases

2.5.1 General Protection Against Accused Bad Character.

2.5.2 Shield Against Question of Bad Character

2.5.3 Throwing Shield By Producing Evidence of Good Character (Exceptions

2.5.4 Throwing Shield in Under Section 54(2)(a), EA.

2.5.5 Throwing Shield in Under Section 54(2)(b), EA.

2.5.6 Throwing Shield Under Section 54(2)(b), EA Limb I.

2.5.7 Throwing Shield Under Section 54(2)(b), EA Limb ii.

2.5.8 Throwing Shield in Under Section 54(2)(b), EA Limb iii.

Mamak was convicted. He now appeal against his conviction.

Consider the following situations :-

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