CHAPTER TWO: CHARACTER EVIDENCE

GENERAL RULE
General rule: The character of a party to an action (civil or criminal)
is not relevant as evidence because the business of the court is to
try the case and not the man. (Thompson v Church)
WHAT CHARACTER EVIDENCE IS
Character evidence (CE) is either a persons 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)
Reputation refers to external factors e.g. what the society perceives
of a man
Disposition refers to internal factors e.g. his behaviour
Harbhajan Singh v State of Punjab
The differences between reputation and rumour:
reputation implies a definite and final formation of opinion by
the community while rumour merely implies a report that is
not yet finally credited
reputation is predicated upon a general trait of character while
rumour is thought of as signifying a particular act or
occurences
THE POSITION IN ENGLAND (Common law position)
R v Rowton [1861-1873] All ER
In this case, the accused, James Rowton was charged with having
committed an indecent assault upon a 14 year-old boy. Several
witnesses were called by the Defence to give good CE, while a
witness was called by the Prosecution to contradict the good CE
given by the Defence.
Issue was which was admissible: reputation or disposition?
Held: Evidence showing disposition could not be admitted as CE.
THE POSITION IN MALAYSIA
The position is unlike that in England
Section 55 of EA provides that character includes both reputation
and disposition and both of these must be general in nature with
limited exception to its application in Section 54 for evidence of
bad character in criminal cases
Any reference of CE by Sections 52-55 must refer to reputation +
disposition

CHAPTER TWO: CHARACTER EVIDENCE

THE ADMISSIBILITY OF CE IN MALAYSIA

CIVIL CASES
GENERAL RULE: Section 52 provides that CE in civil cases is
generally not relevant except when his character appears
relevant from the facts

CE in civil cases is
admissible if it is
either

1. A FACT IN ISSUE OR
RELEVENT FACTS (INCLUDING
SIMILAR FACT EVIDENCE)
(SECTION 52)

2. AFFECTING THE AMOUNT OF

DAMAGES HE OUGHT TO
RECEIVE (SECTION 55)

CE cannot be used to suggest a conduct probable or improbable

Lim Baba v PP [1962] 2 MLJ 201
CE is only relevant if the character of the plaintiff/defendant is in the
fact in issue or credibility of the witness (Ismail Khan J)
Fountain v Boodle (1842) 3 QB 5
Action was based on libel
The issue that arose was whether the governess was competent,
lady-like and good tempered while working with her employee.
Eyewitness could be called to assert or deny her competency, good
manner and temper.
RATIONALE: It will not be fair to put a presumption that a person
having good character will not breach a contract or his duty in civil
cases (Attorney General v Radlofmf)
EXCEPTION:

CHAPTER TWO: CHARACTER EVIDENCE

Section 55 provides that CE is relevant if the fact that the
character of a person is such as to affect the amount of damages
which he ought to receive
Sandison v Malayan Times Ltd (A case on libel)
The plaintiff (was the senior expatriate and General Manager of
Rubber Industry) sued the defendant for a newspaper article with a
headline RRB Expatriate Packed Off For Corruption
The court held that although the publication was in fact defamatory
in their ordinary and natural meaning, the summary dismissal had
left him with little residue of credit to be further damaged by the
libel in the defendants newspaper.
Thus, the court awarded him ONE CENT DAMAGES
DP Vijandran v Karpal Singh & Ors [2000] 3 MLJ 22
Facts:
Upon losing and ordered to pay the first defendant taxed costs, the
plaintiff issued a cheque to him. But the cheque was dishonoured
because it was from a closed account. So, the Plaintiff made
arrangement for a valid replacement cheque which had been
delivered to the first defendant on March 1st, 1996. But, the next
day, the first defendant issued a press statement alleging that the
plaintiffs conduct in issuing a dishonoured cheque amounted to a
serious offence of cheating, rendering him unfit to be on the Rolls of
advocates and solicitors in the Country. The second and third
defendants published the content of the press statement.
One of the issues that arose:
Whether the evidence of a particular act of the plaintiff was relevant
so as to affect the amount of damages.
Held:
As per Section 55, Samrathmal v Emperor, and Plato Films Ltd
v Speidel; only general evidence of character or reputation/bad
reputation in a sector of his life is admissible, and not for instance,
evidence of a particular conviction/specific acts of misconduct
CAUTION!!!
The evidence of bad CE must related to the specific sting of the
libel; confined to the particular area of his life or character that has
been libelled (Sarkar on Evidence, 15th Edn , p 990)
Example: if the libel charge refers to a homosexual act, then
evidence that he was generally a person of bad character would be
inadmissible in mitigation of damages

CHAPTER TWO: CHARACTER EVIDENCE

CRIMINAL CASES
Governed by Sections 53 and 54 of the 1950 EA
GOOD CHARACTER EVIDENCE
Section 53 provides that good CE is relevant in criminal
proceedings
This is due to the existence of presumption of innocence in criminal
cases (Munuswamy Sundar Raj v PP while citing Habeeb
Mohammed v State of Hyderabad)
EXAMPLES OF GOOD CE that were held admissible:
i.
Attending Sunday Mass regularly (R v Ferguson)
ii.
Earning honest living for a considerable time (R v Powell)
iii.
Being a married man with a family in regular work (R v
Coulman)
iv.
To have performed kind or honest deeds such as returning lost
property to its owner (R v Samuel)
Good CE must be substantiated with positive proof
Syed Ismail v PP
The accused, his brother in law and one Penghulu were charged
under the Prevention of Corruption Act 1961. All three were
convicted at the first trial. Upon appeal, appeal was upheld and a retrial was ordered. During the re-trial, all were jointly tried and the
accused was convicted and sentenced to a six-month imprisonment.
He appealed. One of the grounds was that the learned President of
the Sessions Court failed to take into account his good CE in
assessing his credibility.
Held: must adduce positive evidence beyond merely asserting his
educational backgrounds and administrative experience and the
absence of any complaints lodged against him is at best a negative
affirmation of his good character.
GOOD CE IN MITIGATION AND SENTENCING
Good CE will carry good weight during mitigation and assessment of
sentences
Khoo Ban Hock v PP
The sentence was reduced by the higher court due to the GCE
The principle of CLANG OF PRISON GATES

CHAPTER TWO: CHARACTER EVIDENCE

This principle provides that it is a very grave punishment if a person
with an unblemished record is convicted and found himself in the
prison.
Siah Ooi Choe v PP
This is a case where the accused was convicted for abetting an
offence under section 406 (a) of the Companies Act by inducing a
bank through deceitful means to give credit to his company. This
case affirmed this principle and shortened the sentence from a ninemonth imprisonment to only a three-month imprisonment.
However, if a person has a bad record, the good CE will not assist
the mitigation
Cobiac v Liddy
Previous convictions of the accused defeated the claim of good CE

CAUTION!!!
a) Good CE will not necessarily outweigh positive evidence with regard
to the guilt of a person (Munuswamy Sundar Raj v PP)
b) Only good CE showing general reputation and disposition is allowed,
not specific instances of good charact (Section 55 which applies
to sections 52-55)
BAD CHARACTER EVIDENCE
General rule: Bad character evidence (BCE) is not relevant as per
Section 54 (1) of EA (THE SHIELD) unless good CE has been
given
GCE breaks the shield
This is one of the most deeply rooted and jealously guarded
principles of our criminal law (Viscount Sankley LC in Maxwell v
DPP)
Girdari Lal v PP
The court held that the production of police photograph and putting
it in evidence tantamount to saying that the accused is of bad
character
Loke Soo Har v PP
The court held that the use of photographs of known pickpockets to
identify the accused and adducing it in evidence tantamount to
showing the bad character of the accused and thus not admissible
Kiew Foo Mui v PP*
a) Evidence which referred to the accused fleeing from the scene
of the crime in a stolen car was held to be inadmissible as the
defence had not attempted to adduce evidence of the

CHAPTER TWO: CHARACTER EVIDENCE

accuseds good character or impugn the character of
any of the prosecutions witnesses under S 54.
b) Furthermore, the failure on the part of the counsel of the
accused to object on the tendering of such character evidence
will not make irrelevant evidence of character be relevant and
admissible.
RATIONALE
1. It is irrelevant in showing the guilt of the accused
2. Its prejudicial effect often outweighs its probative value. This
is because BCE is used to make a general inference that the
accused is likely to have committed the offence charged,
which is too prejudicial towards the accused.

BREAKING THE SHIELD

CHAPTER TWO: CHARACTER EVIDENCE

Two provisions
that allow you
to break the
shield

PROVISO TO S 54 (1)
This shield exists
throughout the trial
until GCE is admitted
by the Accused (if the
Accused is put on the
witness stand by the
Defence)
*breaks normally during
exam in chief or reexam when the
accused is put on the
witness stand*

SECTION 54 (2)
This shield will only be made
available when the accused is
charged & called as a
witness.He shall not be asked
and if asked, he shall not be
required to answer any
questions on:
i. has committed
ii. been convicted of
iii. been charged with
any offence other than that
where he is then charged

This is the reason why lawyers normally dont put their clients (the
accused) on the witness stand)
In essence, there are five ways: (i) proviso to Section 54 (1); (ii)
Section 54 (2)s not tending to show; (iii) Section 54 (2)(a); (iv)
Section 54 (2) (b); and (v) Section 54 (2) (c).
1. PROVISO TO SECTION 54 (1)
Shield breaks when good CE is admitted to show that the
accused has a good character
This proviso protects the accused throughout the trial
Loke Soo Har v PP (BCE was not allowed)
Convicted for murder. Appealed because of BCE. The Police
Investigator used the following words, I showed him 4 to 5
photographs. They were photographs of known pick-pockets
living in that area
Held:
Ordered a re-trial

CHAPTER TWO: CHARACTER EVIDENCE

Kiew Foo Mui v PP (BCE was not allowed)
Cannot adduce BCE because the accused did not adduce GCE
Wong Foh Hin v PP (BCE was allowed)
Charged for the murder of his daughter. The wife complained
to the headsmen some time before that the husband had
molested the daughter. Upon caught red handed, both the
husband and the daughter left the room and the daughter
went missing. The headsmen told him off that if not he would
be reported to the police
BCE was allowed to show motive that he wanted to keep his
daughters mouth shut (as per Section 8 of EA)
R v Winfield
The accused insisted upon calling a witness to ask her about
his character in regard to women. The court held that if the
accused chooses to put his character in issue, he must bear
the consequences.
Hence, whenever good character is brought into the court by
the accused, he can be cross-examined as to his bad
character
GCE can be adduced: (1) by the defence himself; and (2)
through the cross examination of the prosecutions witness by
the defence counsel
2. SECTION 54 (2)S NOT TENDING TO SHOW (THIS DOESNT REALLY
BREAK THE SHIELD. IT ONLY PROVIDES THAT THERES NO SHIELD TO
BEGIN WITH)
If the court already knew of the bad character, it will not fall
under TENDING TO SHOW
TENDING TO SHOW means to make known to the court for
the first time of the accuseds bad character (Jones v DPP)
Situations of NOT TENDING TO SHOW:
1. The accused volunteered in exam-in-chief that
suggested he has committed other offences of bad
character (he bragged about it)
2. The court has been made aware of the questionable
nature of the accuseds past. (Selalunya bila the
accused dah pernah kene charged/convicted before the
same judge)
Jones v DPP
At the trial, the appellants alibi was that he was
with a prostitute. He later changed his alibi during
cross-examination. This evidence was strikingly
similar to that which Jones had given at an earlier
trial for rape.

CHAPTER TWO: CHARACTER EVIDENCE

Held: Theres no shield as the court was already
made aware that the accused had the habit of
lying when the accused changed his alibi

3. SECTION 54 (2) (a) OF EA

Provides an exception to the general prohibition against the crossexamination of the accused on his or her bad character
Allows the accused to be asked about misconduct which has already
been admitted in chief as part of the prosecutions case, usually
evidence related to similar fact evidence
Junaidi bin Abdullah v PP
The accused was charged for possession of firearm and ammunition
The issue was whether SFE of such evidence which reflected bad
character evidence of the accused person was relevant and
admissible
Held: since adducing SFE is necessary under sections 14 & 15
(following Makins and Boardmans test), the evidence of the
accused was regarded as relevant and admissible. This evidence of
bad character can be adduced under S 54 (2) (a).
4. SECTION 54 (2) (b) OF EA
Can be divided into three limbs:
i.
The first limb asserting good character
Applicable when the accused gives evidence
during cross examination. So if the accused either
personally or by his advocate asked questions at
the witnesses for the prosecution with a view to
establish his own good character, the prosecution
can cross examine him on his bad character
Thus, this provision allows the prosecution to ask
any question to the accused during crossexamination which can reflect the accused bad
character if he attempts to assert or establish his
own good character
Established in two ways:
a) The accused or his counsel at the
prosecution stage, through an examinationin-chief asks questions to the prosecution
witness for the purpose of establishing the
accuseds good character
b) At the defence stage, the accused himself of
through his witnesses gives evidence of his
good character

CHAPTER TWO: CHARACTER EVIDENCE

However, the shield is not lost where the
assertion of good character is elicited by the
prosecution or is volunteered by a witness
(The King v Redd), or is made in the
opening of the defence case but not in
evidence (R v Ellis)
ii.

iii.

The second limb casting imputations against the character

of the prosecutor or the prosecutions witness
During cross-examination as well
Evidence of bad character of the accused may be
admissible if he or by his advocate casts imputations on
the character of the prosecutor or the witnesses for the
prosecution
R v Bishop
The accused was tried with theft from a bedroom. In
evidence, he explained the presence of his fingerprints
in the room by saying that he had a homosexual
relationship with one of the prosecutions witness. The
court dismissed his appeal and held that the character
of a witness was impugned by an allegation of
homosexual conduct made against him. An imputation
of homosexual immorality against a witness might
reflect on his reliability and an accused who made such
an attack should be subjected to the risk of crossexamination of his record
Examples are as follows:
a) Previous meritorious/law abiding conduct
R v Samuel (1956)
Saya orang baik-baik.
b) He is in regular employment
R v Powell
c) He is happily married
R v Coulman

The third limb* - assertions of good character (the most talked

about)
When the accused is called as a witness
The conduct of the accused or his defence cast imputations on the
character of the prosecution or the prosecutions witness
Refer to section 146 because 2 146 allows you to injure the
character of their witnesses. But if you do this, you will take away
that shield
However, in practice, it is almost impossible to raise certain
defences without making imputations on the character of the
witnesses
Examples:

CHAPTER TWO: CHARACTER EVIDENCE

a. Self-defence
The accused charged for causing hurt to the victim. He may
rely on self-defence and say that the victim himself tried to
attack him
b. Provocation
That the victim provoked him with abusive words. In this
endeavour, he casts imputations on the prosecutions
witness.

1. Selvey's case
Casting imputations on the
character of the witness witha
view of establishing a defence
will not throw away the shield.
A mere attack on the witness'
credit will not throw it away

2. Selvey v Director of Public

Prosecutor
Left with the court's discretion
to throw away the shield
depends on the nature and
gravity of the attack on the
prosecution witness

Cases where the shield was thrown away (not exhaustive)

A. R v Homes prosecution (complainant) was a drunken wastrel
B. R v Hudson witness for the prosecution had committed the
offence
C. R v Sargvon The prosecution witness received stolen good
(taktau facts lebih kes ni)
D. R v Jones was immoral
E. R v Morrison had kept a disorderly house
F. R v Bishop was party to an unlawful homosexual act
G. R v Wilson was connected with rogues and got money out of
people without paying it back
H. R v Wright bribed the accused to confess
Cases where the shield was not thrown away

CHAPTER TWO: CHARACTER EVIDENCE

A. R v Rouse
Allegation that evidence given for the prosecution was untrue
It is a lie and he was a liar
It didnt justify a subsequent cross examination on his record
B. R v Preston
Mere unconsidered remarks that the identification of the accused
was a put up job
5.

SECTION 54 (2) (C) OF EA

If he has given evidence against any other person (his co-accused)
charged with the same offence (where he was jointly charged with
his co-accused)
Two keywords: same offence and has given evidence against
SAME OFFENCE
R v Lovett
The meaning of same offence is of itself, its literal meaning. Which
means that it refers to when the accused is jointly tried with the coaccused
HAS GIVEN EVIDENCE AGAINST
Murdoch v Taylor (House of Lords)
Evidence which supports the prosecutions case in a material
respect or which undermines the defence of the co-accused. Must
advance the prosecutions case in a significant defree

CAUTION!!!
MAXWELL V DPP
EVEN IF THE SHIELD IS BROKEN, HE CANNOT BE ASKED ANY QUESTION
TENDING TO SHOW THAT HE HAS COMMITTED, BEEN CONVICTED OF OR
CHARGED WITH ANY OFFENCE OR IS OF BAD CHARACTER. SUCH
QUESTION MUST BE RELEVANT EITHER TO THE ISSUE OR ELSE TO THE
CREDIBILITY OF THE ACCUSED