CHARACTER EVIDENCE

*DISCLAIMER*

The notes below are adapted from the Kenyatta University, UoN and Moi University Teaching module and the students are adviced to take keen notice of the various legal and judicial reforms that might have been ocassioned since the module was adapted. the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

EVIDENCE OF CHARACTER

Character of a witness means not only the witness’s disposition but his/her general reputation in the community.  When admissible generally character affects the credibility of the witness.  Section 58 of E.A. defines Characters as follows:

“Character denotes both disposition as well as general reputation of a person

disposition refers to the inherent qualities of a person and these are the qualities that a person acquires through their up bringing,; education or material conditions in life. Essentially the argument is that you are going to be predisposed to act in a particular way because of the way you were brought up, or because of how you live and your education and the material condition in which you grew up.  The way to tell a person’s disposition is thro observing that person.   This is a person’s inclination, how are they likely to behave under particular circumstances?

Reputation is more specific than disposition, it refers to the general estimation with which a person is held.  For instance you may have the reputation of being a liar and people will perceive of you as someone who lies.  These will be people with whom you work and people who know you generally.  It is the net effect of the interaction that you have with other people.  With disposition, you have no control over, you could try but a lot of it has to do with what one is predisposed to but with reputation it is the way the people perceive of you.

Definition of character at S. 58 is traceable in English legal history.  There is no distinction here between reputation and disposition and they are used interchangeably as if they were the same.  Amongst the early English cases that conceded the evidence of character is the case of

R v.   Rowtown(1865) LJMC 57

In this case the accused was charged with indecent assault and he gave evidence of his good moral character.  The prosecution to rebut this evidence of this good moral character called a person who testified that he had no knowledge of the neighbourhood’s opinion but his own opinion was that the accused was a man capable of the grossest indecency and the most flagrant immorality. He said that this is also the opinion of his brothers who were the accused’s pupils held.  The question was whether this evidence admissible.  The court held that it was not admissible because it was based on the witness’s own opinion as opposed to the opinion of the community.  There was a dissent and two judges dissented arguing that the evidence ought to have been admitted because it was based on the witness’s intimate knowledge of the accused rather than that of the community.  The court was still of the view that since it was not a general neighbourhood opinion, it was not admissible.

 In this case the court was overemphasising the need for big numbers to hold a similar view before the evidence could be admitted.  Courts seem to use disposition and reputation interchangeably and it seems confusing.

Malindi v. R (1967) 1 AC 93

When is the evidence of character admissible?

There is a distinction between criminal and civil cases.

CIVIL CASES

In civil cases the general policy is to reject evidence of the character of the parties and this is provided for in Section 55 of the Evidence Act.  It contains the principle that in civil cases in general, evidence of the character of the parties will be rejected.  Evidence of Character in civil cases cannot be lead to establish the commission of a wrong by a person nearly by bringing their character before the court.  The argument is that the business of the court is to try the case before the court.  One is not supposed to be interrogating or inquiring into a person’s entire life and if one brings extraneously details about the person’s character you are making a person defend their whole lives.  The general principle is that in civil cases, evidence of character will not be admissible.  There are however 3 incidences when it will be admitted

(a)           When such character is in issue or directly relevant to the issue; for example where you have a libel suit and justification is pleaded, then the person pleading justification must be permitted to show that the person instituting the libel suit is of the character presented in the alleged libellous matter.  S. 55 (1) …  section 5 is relevant here, evidence of character will be admitted where the character is in issue or directly

(b)          When the character is such as to affect the quantum of damages  Section 12 is authority as well as Section 55(2)  an example is again a defamation suit which is vindication of a person’s reputation.  If you can show that a person has not reputation, than is relevant to the quantum of damages.  Evidence of character will be admissible in this case.

(c)           The character of a witness is always relevant to his credit.  Section 154 of the E.A.  cross examination as to credibility.  Accuracy, veracity and character.  Where it is relevant in determining the credibility of the witness.

Outside those 3 incidences, then own cannot call for evidence of character.

CRIMINAL CASES

A distinction in criminal cases is made between evidence of good character and evidence of bad character in S. 56 the fact that an accused person is of good character is admissible and the admissibility of the good character evidence pertaining to the accused person has reigned even before 1898, i.e. the period when the accused person was not competent to testify. Before the accused person was competent to testify the evidence of good character went to establish their disposition that being a good person you were unlikely to have stolen or murdered etc.  for example if an accused person was accused of stealing that would call on the court to investigate the matter.  After the accused was made a competent witness, then evidence of good character went to credibility than to their likelihood of having committed an offence. 

Section 56 states that evidence of good character is admissible.  After statutes made the accused competent in 1898 the accused was given an option to testify or not to testify and this put the accused person in a dilemma, if he chose not to testify, an adverse inference might be drawn or could be drawn against him.  People may draw an inference that one who refused to testify has something to conceal. 

On the other hand, if they chose to testify and had a previous record, they could be cross-examined from the previous records and this is why you have in the CPC and the Constitution the right to silence on the part of the accused person which is meant to guarantee that the right to keep silent is not going to invite an inference that something will be held against you.  The prosecution has no right to comment on the silence of an accused person.

It is explicitly provided that the prosecution has not right to comment on the silence of an accused person. S. 77 mandates an accused to keep silent.

The question has arisen that since the prohibition of commenting is on the prosecution, can the judge comment.  Under S. 127 (2) (3) and in the case of

R v. Bathhurst (1968) 2 QBD 99

This case considered the question whether prohibition binds the judge.  The judge could only properly tell the jury that

(i)            The accused has a right not to testify;

(ii)          They must not assume that the accused is guilty because he does not testify even though they have been deprived of the chance to test the story told in cross-examination.

If the accused person chose not to testify, it should not be made a subject by the prosecution but if the accused person opts to testify, he is treated like an ordinary witness and can be cross-examined. 

What is the provision of law on how one deals with the witnesses?

Section

In the case of Maxwell v. DPP (1935) AC

In that case it was intimated that the accused person had a shield protecting him from cross examination from previous record or antecedents unless he threw the shield away or unless the evidence of such previous records or antecedents had a bearing of guilt on the present case.  Examples of ways in which an accused could throw the shield away

(i)            If he gave evidence of his good character he would be deemed to have thrown the shield away

(ii)          If he cast aspersions on the reputation of the prosecutor or the complainant he would be said to have thrown the shield;

(iii)         If he gave evidence against a co-accused with whom they were charged with the same offence.

It would seem that apart from these 3 incidents the accused would be treated like an ordinary witness and could not be asked irrelevant questions.

Sections 156 and 57

S. 57 and 156 embody these rules.

In cross examination a person can be asked any question and it does not matter that that question is incriminating.  Under S. 57 evidence or cross examination of an accused on bad character evidence is inadmissible unless one of the 5 exceptions to that section apply.

S. 57 (2)  in criminal proceedings, the fact that the accused person has committed or been charged with an offence other than that with which …

Bad character evidence is inadmissible unless one of the 5 exception apply

Scholars of evidence have tried to explain away the apparent contradiction and Sir Cross on Evidence tries to reconcile those views by saying that under S. 156 one would have to be looking at the narrow construction of the contradiction limiting S 156 to instances where questions permitted would incriminate the accused person directly and disallowing those that do not incriminate him indirectly.

The other view is the broader construction where both direct and indirect incriminations are allowed irrespective of whether the accused has thrown or not thrown away the shield.  The contradiction remains as we do not yet have a judicial interpretation.  There is no definitive rendition.

Section 57 has exception.

Unless

The five sections of S. 57 (aa) to (d)  under S. 57 1(aa) evidence of bad character will be admissible as evidence of fact in issue

 Where it comprises similar fact evidence, Section 57 (1) (a) provides that it will be inadmissible unless …

R V.   Cockar

Cockar was charged with breaking and entering with intent to steal.  In his defence he alleged that he had entered for the sake of warmth and sleep.  Evidence was adduced of a similar charge in the past where he had also pleaded for similar evidence and had been acquitted of that similar charge.  He was convicted based on the evidence of the previous antecedent and he appealed on the ground that the conviction was based on inadmissible evidence of the previous offence.  The court held that the conviction should be quashed because the matters relating to the previous antecedent did not result in conviction and was therefore outside the purview of the English equivalent of Section 57 (1) (a).

The court is saying here that for similar fact evidence to be admissible as an exception to S 57 (1) (a) it has to have been a conviction.

Section 57 (1) (b)

Evidence of bad character is admissible where the accused has personally or by his advocate asked questions of a witness for the prosecution with a view to establishing his own good character then he could be questioned on bad character.  Here we go back to S. 56 where we said that evidence of good character is admissible but it lays the path open for prosecution to counter that evidence.  If an accused person is telling the court that he is a good evidence, the prosecution can show the court that he is not such a good person after all.  The accused lays himself bare for the prosecution to show the court that he is not as good as he alleges.

Maxwell v. DPP

Maxwell a medical doctor was charged with illegally procuring an abortion.  He denied the offence and stated that he had a good clean moral life and upon his assertion that he had a good clean moral life, the trial judge allowed the prosecution to cross-examine him on another charge where he had been charged with procuring an abortion but he had been acquitted.  It was held that the previous charge was not evidence of bad character because it did not result in a conviction.  But over and above that the court stated

“if the prisoner by himself seeks to give evidence of his own good character for the purpose of showing that it is unlikely that he committed the offence charged, he raises by way of defence an issue as to his good character so that he may be fairly cross-examined on that issue to show the contrary.   The reasons that you have cross examination on the accused is for two purposes

(i)            To demolish the defence that the accused  puts forward and this goes to the issue;

(ii)          To demonstrate that the accused is an unreliable person even on oath, so this goes to credit.

The accused walks a very tight rope and one wonders whether this Section 57 intended to hamper the accused defence and case law is to the effect that when an accused person denies an offence or asserts that he is innocent does not assert to good character. Mere denial of an offence or assertions of innocence should not be construed as good character as this would incapacitate the accused from preparing a defence and a line has to be drawn between mere denials as against assertions of good character.

R. V. Ellis (1910) 2 QB

Ellis dealt with antiques and was charged with obtaining cheques from customers by false pretences concerning the cost price of the antiques.  He cross-examined prosecution witnesses with a view to showing that his conduct towards the customers was not consistent with an intention to defraud.  The prosecution sought the court’s leave to cross-examine him on previous antecedents but the court declined pointing out that the accused by examining the prosecution witnesses was not asserting his good character. He was attempting to establish his innocence. 

If the accused person gives reasons for his innocence dependent on the court’s assumption that he is an honest man, then this can amount to evidence of good character (to what purport is this evidence that the accused person is giving what assumption does he want the court to have?)

R V. Samuel (1956) 40 C.A. R 8

Ali bin Hassan v. R

R v Winfield

The accused was charged with indecently assaulting a woman.  evidence was given of the accused good character.  He had a previous conviction for larceny.  The court allowed the prosecution to cross-examine him on his previous antecedent much as this was a trial for assault and the question was whether this was proper.  The court held Yes because there is no such things in legal procedure as putting a part or a fraction of a prisoners character in issue and leaving the other part.  A prisoner that puts his character in issue must be deemed to have put  his whole  character in issue.

This issue was carried further in Stallen v. DPP

On a charge of forgery an accused person put his good character in issue by saying in cross-examination that he had never been charged with any offence.  The prosecution asked him in cross-examination whether on leaving a certain employment, he had been question about an alleged forgery.  The accused denied. He was convicted and he appealed. And the court held that the accused may be cross-examined as to any evidence given in the examination in chief including statements as to his good character.  The court went on to state “an accused who puts his character in issue must be regarded as putting the whole of his character in issue. He cannot assert his good character in certain respects without exposing himself to an inquiry about the rest of his record so far as that tends to disprove claim of goods character.”   When one puts their good character in issue, the court is entitled to know about your whole character because you have brought it forth.

What happens when it is not the accused who asserts his own character but a witness without any prompting, with this open up the accused person to be interrogated on his good character.

R V. Reid (1923) 1 KB 104

Which answered this question by asserting that such an occurrence does not entitle the prosecution to bring in previous antecedents.

57(1) © - where nature or conduct of the defence is such as to involve imputations on the character of the complainant or of a witness for the prosecution.  If an accused person raises an issue in his defence that casts aspersions on the complainant or witness he can be questioned on the good character

Rivers  Artheston Royston V. R

The accused was charged with obtaining money by false pretences from various persons.  He admitted receiving the money but denied using false pretences.  In cross examining the prosecution witness with a view to furthering his defence, to the charge of false pretences, he cast aspersions on their characters.  The court thereupon allowed the prosecution to cross examine him on his previous antecedent.  He was convicted and appealed against conviction on the ground that the previous antecedents were wrongly admitted.  The court of Appeal held that the previous antecedents were wrongly admitted and in their words, “where imputations involving the character of prosecution witnesses are an integral part of the defence, without which the accused cannot put his case before the jury, fairly and squarely, he cannot be cross-examined on his previous criminal history.  (this is what is being referred to as an integral part of the defence)

Omondi V. R (

The Appellants were charged with robbery with violence.  During cross examination the first appellant suggested that the Police Sergeant who had given evidence against him was deliberately committing perjury.  Thereafter the court allowed the prosecution to put questions to the first Appellant touching on his first convictions.  The Appellants were convicted.  They appealed challenging admissibility of evidence of past convictions.  The court held that to challenge the evidence of a witness for the prosecution is not to cast aspersions on the character of the witness within the meaning of S. 57.  the court emphasised the latter part of Section 57 (1) (c) which in their wording meant that if the defence involves a proposition that the jury ought not believe the prosecution, or one of he witnesses for the prosecution, then the jury also needs to know what kind of character the prisoner has.  It looks like in this case the line is very thin, if you are saying that the witness for prosecution is not to be believed, then the court need to know if you are to be believed.  What amounts to casting aspersions, it is not clear since they will hold it as casting aspersions in one case and in the other as an integral part of the defence.

Abdulla Katwe V. Uganda

Selvey v. DPP

This was a trial on a charge of buggery.  The defence was that the complainant was a male prostitute soliciting the appellant.  The trial court allowed the appellant to be cross-examined on previous convictions of indecency. He was convicted and appealed.  The court held that cross-examination of an accused on previous convictions of bad character was permissible under the Acct if the nature and conduct of the defence involved imputations on a prosecution witness notwithstanding that the imputations were necessary as part of the accused answer to the charge.  It also held that the trial court had a discretion to refuse to permit cross examination of an accused person as to the previous convictions even though the cross-examination was permissible under the Act. 

Legal opinion seems to suggest that selveY v. dpp overrules it is not clear when the integral part of defence theory will operate and when it is casting aspersions.  The leeway of discretion on the part of the judge is that the

In Kenya, and East Africa, cross-examination on previous antecedents is not permissible if it is vital for the defence to raise issue of the character of the complainant.  Over and above that the court still has discretion to disallow evidence of previous antecedents if they are casting aspersions on the complainant, where the way is opened up the courts still have a discretion to disallow evidence where its probative force is outweighed by its prejudicial effect.

 Immediately after (d)

S. 57   “provided that the court may …  proviso to S. 57 as well as rendition to the case of Omondi v. R

Paragraph 57 (1) (d)

An accused person can be questioned on his previous antecedent if he gives evidence against any other person charged with an offence

Murdoch v. Taylor

Where it was stated that evidence against a co-accused is evidence for the prosecution against the co accused and it therefore undermines your defence as an accused person opening up the way for the prosecution to question him on his previous antecedents.

It is critical that the evidence that a person gives against the co-accused be supportive of the prosecution case as this is only when the way is opened to question the person on their previous antecedents.  For evidence of an accused bad character the sections of 57 (1) (b) .  this is different from what happens after prosecution where the prosecution can furnish the court with documents of previous antecedents to assist the courts in sentencing.

OPINION EVIDENCE

What is opinion?

Opinion is defined to mean any inference which one may draw from perceived data.  It is whatever you infer from what you see, smell, hear, feel etc and the general rule in evidence is that a witness should confined himself/herself to what they perceive to leave the court to draw the inferences.

It is however not always possible to separate perceived facts from opinions in some cases they are intertwined and it would be impossible to separate the two.  The court might sometimes need the opinion of people better placed than itself to draw the inferences and it is in these situations that he court allows the inferences.

E.A. outlines the number of incidences when the court may be called to draw the inferences where facts and opinions are so intertwined and the court needs assistance by hearing opinions of experts better placed that itself.  In all instances where people are called to give opinion evidence, it is a general rule that evidence be direct.

The first instances is where experts are called to give evidence, and experts are people that are possessed of special skills in the field in which they are called to opine or testify and the basis for admission of expert opinion is S. 48 of the Evidence Act.

R v. Silverlock (1894) 2 QB 766