Widgets

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 merely 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
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

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.

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.

The question has arisen that since the prohibition of commenting is on the prosecution, can the judge comment.  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
·         The accused has a right not to testify;
·         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
·         If he gave evidence of his good character he would be deemed to have thrown the shield away
·         If he cast aspersions on the reputation of the prosecutor or the complainant he would be said to have thrown the shield;
·         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
To demolish the defence that the accused  puts forward and this goes to the issue;
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 Starland 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.

[Character evidence-evidence regarding someone’s personality traits; evidence of a person’s moral standing in a community, based on reputation or opinion]

So you are talking about two things when you are talking about character, you are talking about disposition and you are talking about reputation.  When admissible generally, in general terms, character affects the credibility of the witness, it goes to the creditworthiness of the witness. Section 58 of our Evidence Act defines character for the purposes of this Act. So basically it is to the effect that character denotes disposition as well as general reputation of a person.

And the next question then is, what do you mean when you talk about disposition or when you talk about reputation? Disposition refers to the inherent qualities of a person and these are the qualities that a person acquires through their upbringing, education or material conditions in life. And essentially here 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 the material condition in which you live or because of your level of education. All those things are going to contribute to your disposition. So your tendency to act or to refrain from acting in a particular manner, which is disposition, is a factor of not only your upbringing but also your education and the material condition in which you grew up. And the way in which you tell a person's disposition is through observing that person. When you observe a person you are able to discern what their disposition is. So in essence when you are talking of a person's disposition, you are talking about a person’s inclination: how are they inclined to react to a particular thing or to behave in a particular set of circumstances? And you are saying that is going to be a factor of different things, whether you were born or brought up in a resource challenged environment or a resource-endowed environment.

What is reputation? On the other hand reputation is more specific than disposition. It refers the general estimation with which a person is held. When you say that a person has a reputation you are talking about the general estimation in which a person is held, for instance, you may have the reputation of being a liar. So people general perceiver of you to be a person that tells untruth and that and that is the way in which people perceive of you. That has nothing to do with your inherent qualities. And these people would be people among whom you live or whom you work with, people who know you personally. May be people that have been attending evening classes with you; they will know that they will not be able to live their pen around you and you gain that reputation. Or if a person is your instructor you know that they will come in the second hour of class. So that is the estimation in which people you work with, who you live with or who know you personally hold you in, how if they were asked to rate you, how would they rate you. When a person says so and so is a drunk, that is the reputation the person has and it is the net effect of the interaction that people have with that person. Is this clear? So when you are talking about disposition, disposition you have no control over because you could actually refine yourself a little bit if you were brought up or do not have a sufficient level of education and therefore your disposition a bit rough, you could work on that. But a lot of it has to do with what it is that you are predisposed to do, whereas reputation is going to be the estimation that people hold you in and they are actually holding you in that regard because they do know, have lived with you, have work with you and because of the way in which they have interacted with you, they have a basis for saying that you will behave in a particular way.

The definition of character at section 58 is traceable to English legal history and in English legal history there is no necessary distinction between disposition and reputation. So in English legal history you have the term   disposition and reputation used interchangeably like if they were the same.

And among the early English cases that considered the evidence of character is the case of R v Rowton (1865) 34 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 good moral character called a person who testified that he had no knowledge of the neighbourhood. And you can see here when a person is giving evidence of his good moral character, it is in a sense to establish or to try to say that if I am a person of good moral character the essence of  indecent assault is actually something that I would not be engaged in. So you are basically trying to show that because you are a person of a particular character you are unlikely to have done what you did. But here you have the prosecution calling another person to rebut this evidence of good character and that person testified in the following manner: He said he had no knowledge of the neighbourhood opinion. He did not know what this guy’s reputation was, because a neighbourhood opinion is actually your reputation, the estimation in which your classmates hold you. Or the people amongst whom you live. He said he had no knowledge of the neighbourhood opinion. But his own opinion was that the accused was a man capable of the grossest indecencies and the most flagrant immorality. He said that this is also the opinion of his brothers who were pupils of the accused held. So essentially this man is testifying to his opinion and that of his brothers who were pupils of the accused. But he is saying he is certainly oblivious of what the neighbourhood is thinks of the man. But he and his brothers were of the opinion that this accused person was a man capable of the grossest indecency and most flagrant immorality. And the question was whether this evidence was admissible. Was the evidence of this man talking about his own opinion and that of his brothers admissible? And the court held it was not admissible because it was based on the witness’s own opinion as opposed to the opinion of the community. There was actually a strong dissent in this case. Two judges dissented arguing that the evidence ought to have been admitted because it was based on this man's intimate knowledge of the accused rather than that of the general community. But because the majority view was that the evidence was not admissible, it wasn’t admitted and the reason it was not admitted is because if you are talking of reputation you have to talk of the general estimation amongst a group of people not just a certain category of the people amongst whom the person lives. And what essentially in this case seems to be happening is that the court was over-emphasizing the need for big numbers to hold a similar view of a person before evidence of their character along the light that opinion most was admissible. Is this clear? So essentially what is being said here and when we look the next item of evidence we will be looking here is the evidence of opinion. Opinion evidence is not admissible., And as a general rule when you are talking about character you are dealing with fairness to the accused person. And this is why there is all this hair-splitting about disposition and about reputation.

And here you are not talking about as the person’s disposition, because we said disposition is the inherent qualities that you are. You are talking about how a person is rated in the community in which they live. And the court here was of the belief that they could not actually say this is the person’s reputation because this was just the view of a small group of people, it was a person’s own opinion. And even though we have the dissenting view that it ought to have been admitted because the opinion was based on the witness’s intimate knowledge of the accused, the court still was of the view that because it is not the view of the community. SO if I have seen or I know you are capable of stealing, and I am trying to demolish your defence, may be you said you go to church every Sunday and you are good person. You go to church every Sunday. In your bag or your pocket they are going to find the holy book and a person that carries the holy book everywhere is not likely to be a thief.  But may be there is a person that knows actually that over and above carrying the holy book you have an affinity for other people’s things. And you will not hesitate to dispossess others of their possessions. If that is not the view of the whole class or the community amongst whom you live, that is not your reputation and the court is going to have difficult admitting that. But essentially the principle is that the court tend to use disposition and reputation interchangeably and it is a lot more difficult to put your fingers on disposition. How do you say because a person is this way they are predisposed to act in a particular way, may be because they were brought in a food-challenged place if they found it anywhere they are likely to take it for themselves…wouldn’t that be the disposition? But essentially reputation might be stronger because you are saying that people know that you do not leave your things lying around if this person is there. They are like to take them for themselves and they have no qualms about that.

When is evidence of character admissible? Actually before that you should look at the case of Malindi v R 1967 1 AC 43. Just to get again a judicial rendition of how you define character.

So when is evidence of character admissible? And there is a distinction between criminal and civil cases. You are unlikely ever to be asked a question, when is evidence of character admissible? But you will have to be able to spot a court trying to admit evidence of character when it should not be admitted. And essentially I am telling you that there is a difference in civil and criminal cases and we are going to start with civil cases.

In civil cases, the general principle or policy is to reject evidence of the character of the parties. And this principle or policy is provided for in section 55 of the Evidence Act. Section 55 of the Evidence Act contains the principle that in civil cases in general evidence of the character of the parties will be reject. So under section 55, evidence of character in civil cases cannot be led to argue that a person is of a particular character and therefore did committed a particular wrong. So you could not use as your ammunition in trying to establish the commission of a wrong by a person or the incurrence of liability in a civil case by a person merely by bringing their character before the court. Is that clear?

And the argument here is that the business of the court is to try the case before the court. So you are not supposed to be interrogating or inquiring into a person’s entire life. You are supposed to try the matter before you. And if you begin to bring extraneous matters about a person’s bad character or good character or character as it may be, what you are in essence doing is making this person have to defend his whole life when in essence what he has come to court to do, or what the court is there to do is to establish a particular matter that has come to the court at that particular time. Can you see how difficult it would be for people that decide that they will leave their things to life behind and look ahead. Because every time you would say they did this at this time. So it is likely that they would do it again.

So essentially then we are saying that the general principle is that in civil cases evidence of character will not be admissible. There are however three instances when evidence of character will be admitted. And these are:

1.      when such character is in issue or directly relevant to the issue. An example here is when you have a libel suit. If there is a libel suit and justification is pleaded, then the person pleading justification must be permitted to show that the person in instituting the libel suit is—you have a libel suit before you as a court and justification is pleaded, the party pleading justification must be permitted to show that the person institution the libel suit is of the character present in the alleged libelous matter. And you can see here that if you didn’t let evidence of character be admitted it would be impossible to establish that kind of defence. Is this clear? And we have looked at this section 5 of the Evidence Act and the principle is reiterated at section 55 (1), which reads: ”In civil cases, the fact that the character of any person concerned is such as to render probably or improbable any conduct imputed to him is admissible except in so far as such character appears from facts otherwise admissible.” So if you look at that last bit of this provision you will see, in so far as such character appears otherwise admissible. And may be then you need to go back to section 5, which reads: “Subject to the provisions of this Act and of any other law, no evidence shall be given in any suit or proceeding except evidence of the existence or non-existence of a fact in issue, and of any other fact declared by any provision of this Act to be relevant.” Here the operative words are “evidence of the existence or non-existence of a fact in issue”, and you can see in a libelous matter the justification goes to the court of the existence or non-existence of the claim. And that is why we are saying under section 5 and section 55 (1) the first instance under which evidence of character will be admitted in civil cases is where the character is in issue or directly relevant to the fact in issue and I went on to give you the example of a liable suit.

2.      The second instance is when the character is such as to affect the quantum of damages and you will remember from your Evidence I, when we were looked at relevance and admissibility, generally looking at section 5 to 16, we looked at a provision of the Evidence Act that deals with what facts may be relevant and we pointed out that facts that touch on the quantum of damages are going to be relevant, as provided for in section 12. So section 12 is the authority for that preposition as well as section 55(2). And an example here is a defamation suit. A defamation suit you know is the vindication of a person’s reputation. So if you can show that the plaintiff has no reputation anyway, that is relevant in quantum of damages. E.g., let us say that you called a matatu tout a rouge and they say that you lowered their esteem in the eyes of right thinking members of society, then you get to get factors that may go to establish whether that person has the reputation that they are claiming to have. Because if you are saying that their esteem has been lowered in the eyes of right thinking people, we need to know how right thinking people ordinarily perceive of you. Because may be you have no reputation, or may be you are overrating your reputation. So when the character is such that as to affect the quantum of damages evidence of character will be admissible in civil cases. And that is section 55(2) and section 12 of the Evidence Act.

3.      The character of the witness is always relevant to his credit. So character is relevant in establishing whether you are credit worthy or not credit worthy. And this is provided for at section 154 of the Evidence Act (on cross-examination as to credibility): When a witness is cross-examined he may in addition to the questions referred to hereinbefore be asked any questions which tend to (a) to test his accuracy, veracity or credibility, (b) to discover who he is and what is his position in life. So you can see that (a) covers your accuracy, veracity and credibility.  So even though such questions may hurt on your character they will be allowed under section 154 which we will be look at when we look at the examination of witnesses and cross-examination particularly.

But for the purposes of the evidence of character and especially character in civil cases, having said that by dint of section 55 the general principle is that evidence will be rejected. There are three instances when it will be admitted. The first one being where it is in issue or directly relevant to the issue. Two, where it affects the quantum of damages. And three, where it is relevant to in determining the credibility of the witness. Absent those three instances, then you do not call for evidence of character because we said the duty of the court in any particular matter is to try the issue before it, not to try the person or to examine or inquire the person’s whole life.

In criminal cases a distinction is made between evidence of good character and evidence of bad character. Under section 56 the fact that the accused person is of good character is admissible. And the admissibility of the good character evidence pertaining to the accused person has reigned for a long time before 1898 when the accused was not a competent witness. The admissibility of good character evidence of the accused person is a principle that obtained even before 1898, that is the period when the accused person was not competent to testify. And when we look at the law on competence and compellability, we will see what it is that the accused person became a competent witness and what rules obtain even those with a competent witness. Suffice it here to say that this principle that the evidence of good character of an accused person is admissible is a principle that has reigned for a long time. And before an accused person was competent to testify, the  evidence of his good character when to the likelihood of his committing an offence or not. So essentially when you led evidence of good character of an accused person you are trying to establish that this is a good person, so they are unlikely to have committed this particular offence. So it did go to the credibility of the accused person because in any event they were not allowed to testify. It went to their disposition that being good people or being a good person you are unlikely to have stolen or to have murdered a person, etc. So if you have an accused person charged with stealing and there was evidence of their good character, that would call on the court to investigate that matter critically because you are saying that it would be unlikely that a good person should accused of murder. So if this person is being accused of stealing and murdering there may be some facts that people have gotten wrong. So you are not using this evidence in terms of deciding whether this is a person that is credible, that should be believed or not believed. You are admitting it to sort of disprove their having committed an offence and if indeed they are being accused of an offence, that matter should be investigated because there could be a mistake. Is this clear?

So after the accused was made a competent witness by statute passed in 1898, then evidence of good character went more to credibility than to the likelihood of their having committed an offence. So essentially when you are talking about evidence of good character, one going to credibility versus on the other hand going to likelihood of committing an offence or the issue as it might be called you are talking about two things, you are on the credibility side you are saying that is he or he reliable or trustworthy. Or on the other hand, you are asking the question can he or she, judging from their character, do a particular thing.

What about bad character? Section 56 categorically says that evidence of good character is admissible. What about bad character? After statutes made the accused person a competent witness 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 may be drawn or could be drawn against him. So after the statute made the accused person competent to testify there is a problem here because the accused has an option to testify or not to testify and this, as I am saying, put the accused person in a dilemma. If he opt not to testify then an adverse inference could be drawn against him. People could say that one who refuses to testify has something to conceal. Again this is a matter that will become clearer as we look at competence and compellability. But suffice it here to say that there is this dilemma. Because the accused person can choose to testify or not to testify. But they are scared that if I do not testify people might think that I am refusing to testify as an accused person because I have something to hide or to conceal. On the other hand, remember we said the option to testify puts the accused person in a fix or in a dilemma; if they say, no, I do not want to testify a bad inference could be drawn. If on the other hand they chose to testify, and have a previous record, they could be cross-examined on the previous record. So it is a no-in situation for the accused person. If you keep quiet people may begin to say the reason that this guy or this person isn’t talking is because they have something to conceal. If on the other hand, you testify you might begin to be asked questions and especially if you have a previous record, if you have skeletons in the closet. Those skeletons may be brought out because you have chose to talk and therefore you may be cross-examined on that.  And this is why you in the Criminal Procedure Code and the Constitution the right to silence on the part of the accused person. The right to silence on the part of the accused person is meant to guarantee that your failure to say anything is not going to lead t an adverse inference being drawn against you. And in fact under section 127 (2) (ii)—which again we will revisit when we look at competence and compellability -- it is explicitly provided that the prosecution has no right to comment on the silence of an accused person. If an accused person decides to keep quiet as they are mandated to do by the constitution(Article 50); they could keep quiet or keep silent. And what about the Criminal Procedure Act?… What section? In any event the Criminal Procedure Act and the Constitution provide for the right to silence and in terms of evidence there is the explicit provision that if an accused person decides to keep silent this is not going to be mad the subject of comment by the prosecution, so that the prosecution has no right to comment on the silence of the accused person. This is protecting the accused person. Remember we said once you are given the option to testify or not to testify. You worried that if you say nothing people will say you have something to hide and if you have previous antecedents and you don’t want your closet opened and your skeletons dragged out, then you don’t know where you are. And so the Evidence Act by providing that the prosecution should not comment on the silence of an accused person that keeps protected the accused person should he choose to remain quiet. And essentially the comment would be such comments that might lead to adverse inference being drawn. May be we should have somebody read section 127 (2) (iii):

“the failure of the person charged (or of the wife or husband of that person) to give evidence shall not be made a subject of any comment by the prosecution.”

“Shall not be made a subject of any comment by the prosecution”, but that is being read in light of subsection 2 which is to the effect that “in criminal proceedings every person charged with an offence, and the wife or husband of the person charged, shall be a competent witness for the defence at every stage of the proceedings, whether such person is charged alone or jointly with any other person:

Provided that the failure of the person charged (or of the wife or husband of that person) to give evidence shall not be made a subject of any comment by the prosecution.”

And we will look again at this when we are looking at the subject of competence and compellability but for the purposes of this Act, is there to show the protection that is given to the accused person.

And the question has arisen that since this prohibition of commenting is on the prosecution, can the judge comment? Basically under section 127 (2) (iii)the subject or the object of the prohibition against commenting on the silence of the accused person is the prosecution. And the question has arisen as to whether the judge can rightly rightly or lawfully comment on that silence. And in the case of the R v Bathhurst (1968) 2QB 99. This case considered that question, the question whether the prohibition also binds the judge. And it was stated in that case that the judge could only properly tell the jury that

1.         the accused has a right not to testify

2.         he could tell the jury that they must not assume that the accused is guilty because he does not testify, even though he has been deprived of the chance to test the story told in cross-examination.

So essentially then if the accused chose not to testify this should not be made the object of comment by the prosecution and the judge can only comment about it, according to the case of R v Bathhurst by informing the jury that the accused does not actually have to testify. And even if he doesn’t testify you should not assume that he is guilty. But if the accused person opts to testify, and goes to the witness box, he is treated like an ordinary witness, can be cross-examined.

What is the provision of law on how you deal with witnesses? Remember the privilege of witnesses. What section of the law? Section 158, I think. In the case of Marxwell v the DPP (1935) 18 EACA 309. In that case it was intimated that the accused person had a shield protecting him from cross-examination on his previous record or antecedent. So you couldn’t drag out skeletons the closet. He had a shield unless he threw the shield away or unless the evidence of such previous record or antecedent had a bearing on his guilt in the present case. So it was intimated in Marxwell v the DPP the accused person had a shield which protected him from cross-examination on his previous antecedents or record. And he could throw this shield away or he may actually be cross-examined if there was a relationship between the previous antecedents and the case under investigation. And in that case examples of ways in which the accused person could throw the shield away were outlined as follows:

1.      if the accused person gave evidence of his own good character he would be deemed to have thrown the shield away.
2.      he would be said to have cast aside the shield if he casts aspersions on the reputation of the prosecutor, or the complainant, or the prosecution witness. And we will be looking at this in greater detail because most of them have actually been nulled in the statutes, our Evidence Act.
3.      if he gave evidence against a co-accused with whom they were charged with the same offence, he would be deemed to have thrown the shield away.

It would seem that apart from instances, that is firstly where the accused gives evidence on his good character, or secondly where he casts aspersions or imputations on the character of the prosecution, complainant or the prosecution witness, or thirdly where he gives evidence against a co-accused with whom they are charged with the same offence. Other than those three instances, the accused would be treated like an ordinary witnesses and could not be asked irrelevant questions. And again when we look at the subject of the examination of witnesses will see what questions are permissible, what kind of questions can lawfully be put to an accused … a witness and this would include an accused person unless they have thrown the shield away.

Sections 57 and 156 embody the rules, the rules established in the case of Marxwell v the DPP. The rules are embodied in our Evidence Act, section 57 and 156.

Read section 156: “A person charged with an offence and called as a witness for the defence may be asked any questions in cross-examination notwithstanding that the answer may tend to incriminate him as to the offence charged.”

So essentially in cross examination a person can be asked any question and it doesn’t matter that the answer to that question would incriminate you. Then section 57 provides that evidence from examination on that character is inadmissible unless any of the five exceptions to the rule apply. Under section 57 evidence of cross-examination of an accused person on that character evidence is inadmissible unless one of the five exceptions to that section apply. And section 57 is titled, “Bad character in criminal cases.” And under section 57 (1)

In criminal proceedings the fact that the accused person has committed or been convicted or charged with any other offence other than with which he is then charged or is of bad character is inadmissible and then it goes to “unless”. And this is why I am saying that bad character evidence is inadmissible unless any of the five exceptions to that section are satisfied.

You can see right there that there seems to be a contradiction between section 156 and section 57. What is the contradiction? Or is there a contradiction? We have said that under section 156 a person charged with an offence and called as a defence witness may be asked any question in cross-examination notwithstanding that the answer to such s question may tend to incriminate him on the offence charged. And section 57, which is to the effect that in criminal proceedings the fact that the accused person has committed or been convicted of or charged with any offence other than that with which he is then charged, or is of bad character, is inadmissible. Do you see the contradition? That the one mandates admission of all evidence, the other limits instances in which evidence of bad character may be admitted. Is this clear?

And scholars of evidence have tried to explain away this apparent contradiction and if you look at Cross on Evidence he actually tries to reconcile those two views by saying that under section 156 one would have to be looking at the narrow construction and permission there would only be granted for questions that incriminate an accused person directly. So he argues on the one hand for narrow construction of this apparent contradiction limiting section to instances where questions submitted would be those that incriminate an accused person directly and disallowing those questions that indirectly incriminate the accused person. So you would be basically looking at direct incrimination as opposed to indirect incrimination.

The other view is where you have the broader construction where  both direct and indirect  incrimination are allowed irrespective of whether the accused person has thrown away the shield. And it is that contradiction remains because we do not have as yet a judicial interpretation or judicial rendition on this two sections of the Evidence Act which seem to run contrary to each other. So while we could talk of the narrow construction, the broad construction as proferred by Prof. Cross we cannot say there is a definitive rendition of what is the position we have an apparent contradiction in the law and until we have a judicial interpretation it is going to be difficult to know whether it is both direct and indirect irrespective of whether we throw away the shield or whether we are talking about a broad and narrow. The narrow being that you only allow questions that directly incriminate. The second one where you would allow both direct and indirect examination whether or not the shield has been thrown out under default. I am saying that broad or narrow construction isn’t really helpful absent a judicial interpretation of these two sections of the law which seem to run contrary to one another.

Section 57 has exceptions we said: In criminal proceedings the fact that the accused person has committed or been convicted of or charged with any offence other than that with which he is then charged, or is of bad character, is inadmissible. So I would like now to go to what follows unless, and I said there are five exceptions to that rule. And these five exceptions are contained section at 157 (aa) to (d). Under section 157 (1) (aa) evidence of bad character will be admissible as evidence of a fact in issue or is directly relevant to a fact in issue. So if the evidence of bad character comprises of the fact in issue or a fact directly relevant to the issue then that will be admissible.

Secondly, where it comprises similar facts evidence and section 57 (1) (a) provides that it would be admissible unless the proof that he has committed or been convicted of such other offence is admissible under section 14 or section 15 of the Act or to show that he is guilty of the offence with which he is then charged. And you know that sections 14 and 15 deal with similar facts evidence. So here you would need to re-visit your notes on similar facts evidence, when is similar facts evidence admissible, because in those kinds of instances evidence of bad character will be admissible. You will remember when we looked at the evidence of similar facts we discussed that the reason that similar facts evidence is generally disallowed is because it is evidence that is likely to have a great prejudicial effect against the accused person. And it is actually admitted as an exception to the general rule. And here again it would be that similar facts evidence of bad character that would be admitted as an exception to the rules established  at section 57.

And here we should look at the case of the R v Cockar(1960) 2 QB 207. Cockar was charged with breaking and entering with intent to steal. In his defence he alleged he entered for the sake warmth and sleep. Evidence was adduced of a similar charge in the past where he had also pleaded entry for similar reasons, namely warmth and sleep and he had been acquitted of previous charge. He was convicted based on the evidence of the previous such incident. He was convicted on the basis of the evidence of the previous antecedent and he appealed on the grounds that the conviction was based on inadmissible evidence of the previous offence. The court held that the conviction should be quashed because the matter 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). So essentially what is being said here is that for similar facts evidence to be admissible as an exception to section 57 it has to have resulted in a conviction. Because if it did not result in a conviction then it means that the matter was not conclusively established.

The third exception is contained at paragraph (b), section 57 (1) (b): Evidence of bad character is admissible where the accused has personally or by his advocate asked questions of a witnesses for the prosecution with a view to establishing his own good character, then he could be question on bad character. And here again we go back section 56. Remember we said under section 56 that evidence of a good character of an accused person is admissible. But giving evidence of a good character of an accused person lays he path open for the prosecution to counter that evidence. So if an accused person is telling the court through evidence that he is a good person the prosecution can proceed to show that he is not nearly s good as he is telling the court, by bring in evidence of bad character. To give an example, if a person is asking a prosecution witness, Am I not the pastor in your church? Haven’t you seen me going to pray every day? Then the accused lays himself bare for the prosecution to show that after prayer time they are engaged inextraneous activities that are not very compatible with that which they are alleging as good character on your part.

And essentially advocates will advise their clients, especially if they have a previous record or previous antecedents, they have skeletons in the closet, you would be advised not to go talking about your good character. Because when you talk about your good character is admissible yes, but it opens you up under section 57 (1) (b) to bring up questions that would establish that you probably are not as of the good character that you are trying to tell the court.

And here again we revisit the case of Marxwell v DPP (1935) 18 EACA 309. Marxwell, 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. And 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 state this principle: “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 fairly cross-examined on that issue to show the contrary.” And the reason that you have cross-examination on the accused after he gives evidence of his good character is for two purposes:

1.      to demolish the defence that the accused puts forward. So that does to the issue. So you are trying to show even though he is telling us that he is a good person he is really not a good person.

 to demonstrate that the accused is an unreliable person even in court. So this is going to discredit. And of course again here you can see the tight rope that the accused person walks. Yes, your evidence of good character is admissible but once you bring if forward, then we can ask you questions and we can bring out all those things that you do not want us to bring out. And the whole issue as to whether this provision was intended to prevent the accused person from preparing his defence has arisen. Was this provision at section 57 intended to hamper the accused’s defence? And case law is to the effect that when an accused person merely denies an offence or assets that he is innocent that should not be constructed as an assertion of good character and should therefore not open the way for cross-examination on previous antecedent. So it allows the accused person leeway to be able to establish a defence to asset that he is innocent without always being said to have asserted that he a person of good character. So mere denial of an offence or assertion of innocence should not be construed as an assertion of good character as this would result in incapacitating the accused person from being able to prepare for his defence. If each time he say no, I did not commit the offence you are deemed to be saying you are a person of good character, then it is impossible for you to prepare a defence at all. So a line has to be line between mere denials of an offence or protestation of innocence as against assertion of good character where he says I have good clean moral life, as opposed to where you say, I did not commit the offence. When you say I did not commit the offence that should not be read to mean that you are saying you are good person. And the case to look at here is the case of the R v  Ellis (1910) 2QB 746.

[You cannot put one aspect of your character in issue and leave out another part. Once you put your character in issue you open a Pandora’s box. We are entitled to know all part of your character. So a person that puts their character on the line cannot be said to have put boundaries on what character they want the court to know. We are entitled to know all about their character.]

R v Ellis (1910) 2QB 746.

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 really consistent with an intention to defraud.  So essentially he was trying to show absence of 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.  So essentially here the line is being draw between assertion of good character and establishment of a defence. And that line can be thin. But you can see that you say each time an accused person seeks to deny an offence or seeks to establish that he didn’t have an intention to commit the offence, what you are doing is to establish that you are good person, then you are denying him an opportunity to defend himself. He couldn’t prepare his defence.

And essentially what the courts have done is to draw the line based on this premise. 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. So you would be looking at to what purport is this evidence that the accused person is giving, that we want the court to have the assumption that he is an innocent person and therefore he is unlikely to have committed an offence or is here trying to establish  that he actually did  not commit the offence …

And again here we should look at the case of the R v Samuel (1956) 40 C.A. R 8

You can see that section 57 is dealing with instances where the accused would throw away the shield but giving evidence of his good character. And the question had arisen to what happens where the accused rather than giving the evidence of his good character, gives evidence of his bad character. And legal opinion here is to the effect that this does not entitled the prosecution to bring more evidence of bad character. So if an accused person comes to the witness box to be cross-examined, say he is accused of stealing, and he begins to say, You were saying I stole one million shillings. You know I had also stolen two million and I had been convicted for it. And the question is, would this entitle the prosecution to bring more evidence of bad character? And legal opinion is to the effect that it won’t entitle the prosecution to bring more evidence of bad character. And the case to look at here is the case of Ali bin Hassan v R (1968) EA 1972 (Z).

R v Winfield (1939) 14 ALL ER 164 (CA).

The accused in this case was charged with indecently assaulting a woman.  Evidence was given of the accused’s 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 this is going to answer the question as to whether it has to be relevant.  The accused charged with indecently assaulting a woman, evidence given of the accused’s good character, he had previous conviction for larceny, the court allowed the prosecution to cross-examine him on his previous antecedents, much as this was a try for assault. And the question was whether this was proper. Was it proper for the court to allow cross-examination of the previous antecedent? And the court held, yes, because there is no such thing in legal procedure as putting a part or a fraction of a prisoner’s 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.

Starland v. DPP, where 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 questioned 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.  And the court stated, “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 a claim of good character.” 

 Again answers to the question whether it has to be related or otherwise… Good character in issue or your character in issue, the court is entitled to know about your all about your character because you have brought it forth.

Another question that has been asked is what happens when it is not the accused who asserts his good character but a witness gives that evidence of his own volition without any prompting. Because you see this is anticipating as situation where the accused or his advocate gives evidence of his good character. What about a situation a witness without any prompting gives the evidence of the good character of the accused person. The question is, would this open up the accused person to be interrogated on his bad character.

And the answer to this question is to be found in the case of the R  v Reid (1923) 1 KB 104, which answers this question by averring that such an occurrence does not entitle the prosecution to bring in previous antecedents. Because this is a situation that is not covered under paragraph (b). Paragraph (b) is to the effect that where the accused personally or by his advocate asks questions of a witness with a view to establishing his good character. So where a witness without any prompting of their own volition gives evidence of the good character of an accused person that is not a situation that is contemplated here and that is the effect of the case of the R v Reid.

The fourth exception at 57 (1) (c) is where nature or conduct of the defence is such as to involve imputations on the character of a complainant or of a witness for the prosecution. So even an accused person, if there is an issue in his defence that casts aspersion on the character of the complainant or a prosecution witness then he can be questioned on the previous antecendent. And the authority for this preposition is the case of Rivers  Arthuston Royston v R (1953) 20 EACA 147.



Rivers Arthuston Royston v R (1953) 20 EACA 147.

The accused here was charged with obtaining cash by false pretences from various persons.  He admitted receiving the money but denied the existence of false pretences. So he was admitting the acteus reus but denying the mens rea. In cross-examining the prosecution witness with a view to furthering his defence to the charge of false pretences, he cast aspersions on their character (put their character in doubt).  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 indeed 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.” 
And this is what is being referred to as the need for “integral part of the defence theory”, because again if it is an integral part of the defence and if you say once they raise it they are going to be cross-examined on their previous antecedent then it is unfair they will not be able to prove their case respectively. And the question to be asked seems to be whether the imputations or the aspersions that are cast on the character of the prosecution witnesses is integral to the defence that the accused person is trying to put forward without which the accused cannot prove their case fairly or square before the court.

Omondi v R  (1967) EA 802 (K)

The appellants here were charged with robbery with violence.  During cross-examination the first appellant suggested that a 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 the evidence on past convictions.  And the court held that to challenge the evidence of a witness for the prosecution is not to cast aspersions on the character of a witness within the meaning of section  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 to 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. Whilst they are saying that to challenge the evidence of a prosecution is not to cast aspersions, but if you are saying that the witness for prosecution is a person that should not to be believed, then the court also need to know if you yourself as a prisoner or accused ought to be believe as well. And basically you see, once there is difficulty drawing a borderline between what would be a reasonable defence and what amounts to casting aspersions. And in essence if you look at the cases where this matter has been discussed, where section 57 (1) (c ) has been discussed, it is not clear really. It seems like in one case they will hold the view amounting to casting aspersions whereas in the other one they will say it is actually an integral part of the defence.  And you also should look here the case of Abdulla Katwe v Uganda (1964) EA 477 (U). We also look at the case of Selvey v DPP (1970) AC 304 (1968) 2 ALL ER (1960) 2 WLR 1494.

Selvey v DPP (1970) AC 304

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 his previous convictions of indecency. He was convicted and appealed.  And the court held that cross-examination of an accused on previous convictions of bad character was permissible under the Act 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’s 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 the integral part of the defence theory. Because if you look at the first part of the holding there saying there was relation of an accused person on previous convictions of bad character it is persmissible under the Act if the nature and conduct of the defence involved imputation on a prosecution witness not withstanding that the imputations were necessary part of an accused  answering the charge. And what they do is to heave a way out by saying that the trial court actually has a discretion to disallow that. And essentially what seems to be the case is that is not clear at what point the integral part of the defence theory will operate and when the court will insist on applying an ordinary reading of the provision at section 57 (1) (c) where you don’t go looking beyond what the words mean. But you can also see that even though they are saying that the accused can be cross-examined any time the leeway of discretion on the part of the judge, means that at certain point the judge can say no we don’t allow that for cross-examination.

In Kenya, and actually East Africa looking at the cases of Abdulla Katwe and Omondi, cross-examination on previous antecedents is not permissible if it is vital for the defence to raise issue of the character of the prosecution witness.  So in East Africa cross-examination of previous antecedent is not permissible if it is vital for the defence to raise the issue of the character of the prosecution witness or the complainant. And over and above that, the court still has discretion to disallow evidence of previous antecedents where its probative force is outweighed by prejudicial effect. On the one hand if it is an integral part of the defence in our region the previous antecedent will not be allowed to be brought in by the prosecution. So if by the nature of the defence that the accused person is setting up, they would have to cast aspersion on the character of the complainant, or a witness, or the prosecution. That will not open up the way for the prosecution to bring up the antecedents of bad character. And even in instances where that happens, where actually the way is opened up, where the casting of aspersions was not an integral part of the defence, the courts still have a discretion to disallow the evidence where its probative force is outweighed by its prejudicial effect. And that is provided for at the proviso to section 57 and also in the position taken in the case of Omondi v R.  If you look at the paragraph just after (d) you will see that it is stated that:

“Provided that the court may, in its discretion, direct that specific evidence on the ground of the exception referred to in paragraph (c) shall not be led if, in the opinion of the court, the prejudicial effect of such evidence upon the person accused will so outweigh the damage done by imputations on the character of the complainant or of any witness for the prosecution as to prevent a fair trial.”

So there is still discretion, and that is the proviso at section 57 as well as the rendition in the case of Omondi v R.

The fifth exception is contained at section 57 (1) (d): unless the accused has given evidence against any other person charged with the same offence. So an accused person can be questioned on his previous antecedent where he gives evidence against any other person charged with the same offence.

Murdoch v. Taylor And here you need to look at the case of Murdoch v. Taylor (1965) AC 574, HL. Where it was stated that evidence against a co-accused is evidence supporting the prosecution case. If you give evidence against a co-accused you are in essence giving 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.

And here again it is critical that the evidence that a person gives against the co-accused be supportive of the prosecution case. It is not enough to say that the evidence of the co-accused contradicted the evidence given by the other co-accused. It has to be looked at and read to actually support the prosecution case and it is only when it supports the prosecution case that the way is then open to question this person on their previous antecedents.  So essentially then for evidence of an accused bad character to be adduced the exceptions at sections of 57 have to obtain. If they do not obtain then you cannot given evidence of bad character. This is not like good character. Remember we said that good character at section 56 is always admissible.  But then once you give evidence of your good character, you open yourself up to being questioned on your bad character and that is by the authority of section 57  (1) (b), and also the cases that we have looked at.
 But again this is different from what happens after conviction. And you know that after conviction, the prosecution can punish the court with details of previous antecedents to enable the court to mete out the appropriate sentence. So when you are talking about section 57 we are talking about pre-conviction, whereas when you give evidence of previous antecedents to assist the court in sentencing that is not the same as what we are talking about here when we talk about evidence  of bad character.

 
 
 

Like Us on Facebook

Contact Form

Name

Email *

Message *