LAW OF EVIDENCE-CHARACTER EVIDENCE

CHARACTER EVIDENCE
This is covered by sections 50-54 of the Evidence Act. The term character is not expressly
defined by the Evidence Act however, it is explained by the proviso to section 54 which states
that in sections 50, 51, 52 and 54 the word character includes both reputation and disposition;
but, except as provided in section 52, evidence may be given of general reputation and general
disposition, and not of particular acts by which reputation or disposition were shown.
Disposition under character evidence refers to the tendency of a person to act or behave in a
particular way whereas reputation refers to the opinion of the members of the public about a
particular person.

General Principles in Character Evidence

The general rule is that evidence of character is not admissible. However, this rule has many
exceptions and the admissibility of character evidence will depend on a number of things e.g.

1. The nature of the case

2. Nature of the parties for instance is it evidence of the character of the accused, character of
plaintiff or character of defendant?
Character evidence in reference to an accused person (Criminal Proceedings). (Sections 51, 52
and 53).
According to section 51 of the Evidence Act it is provided that in criminal proceedings the fact
that the person accused is of good character is relevant. This is in line with the presumption of
innocence but character evidence is given pursuant to section 53 whereby it should be given in
relation to the offence charged.

Yowana Setumba v R (1957) EA 35

Held: Character evidence is admissible against the accused if the prosecution shows him as a
person of bad character. According to section 52 it is the general rule that in criminal
proceedings the bad character of the accused person is irrelevant. However, you can show it as
part of resgestae as evidence of past similar occurrences under section 14 of the Evidence Act.
Section 52 provides circumstances when bad character would be admissible. The bad character
referred to here is normally evidence of reputation and before such evidence can be admitted
it must be established that a substantial part of the community holds that view in the case of R
v Rowton (1965) 10 Cox 25

Exceptions to the general rule in admission of character evidence

Section 52(a) provides that the fact that an accused person has a bad character is irrelevant
unless evidence has been given or a question or questions asked by the accused person or his
or her advocate for the purpose of showing that he or she has good character. This means that
the accused will have put his character into issue and therefore the issue of his bad character
can be determined by allowing the prosecution to adduce evidence to show that his character
is bad. It is only the accused to put his character into issue. He cannot put the prosecutions
character in issue. If the accused alleges evidence of good character, it is an issue to be tried by
court. The accused can safely adduce the evidence of good character at mitigation level so as
to reduce sentence in case the accused is convicted. If the evidence of good character is
introduced early the prosecution can call evidence to rebut it according to the cases of R v
Bulterwasser (1947) 2 ALL ER 415 and Maxwell v DPP (1935) A.C 309

Stirland v DPP (1944) A. C 315

Facts: The rules determining bad character were discussed in this case. The accused person was
charged with forgery and he gave evidence of his good character. He called a witness to say
that he was a person who had never been convicted before and he was very moralistic.

Held: The court allowed the prosecution to adduce evidence of his bad character and on appeal
the following guidelines were laid down by the court: -
1. An accused person may be cross-examined as to his claims of good character in any evidence
he has given in chief and that a result of such cross-examination can prove his bad character
and that they are a way of testing his velocity that such accused past record can be put in
evidence, but this should be the whole of the accused’s past life, mere suspicion that someone
has ever committed a crime is not enough and it is not relevant to establish his bad character
and this is not enough to deny him his claim of good character.
2. During the trial the evidence of witnesses who can establish bad character may be adduced.
Another exception is governed by section 52(b) of the Evidence Act. It is provided that in
criminal proceedings the fact that an accused person has a bad character is irrelevant unless,
the proof that he or she has committed or been convicted of another offence is admissible to
shoe that he or she is guilty of the offence with which she is charged. This is in relation to
offences of a similar nature. There has to be a relationship between the previous and present
crime.

See the cases of R v Rodley (1913) 3 K.B 468 regarding previous convictions and Makindi v
R (1961) E.A 327 (previous beatings)
The 3rd exception is found in section 52(c) of the Evidence Act. It is provided that the fact that
an accused person has a bad character is irrelevant unless the nature or conduct of his or her
defence is such as to involve imputations on the character of the complainant or the witnesses
for the prosecution. In such a case prosecution will be free to adduce evidence to show that the
accused is of bad character and therefore lacks the credit to judge other people’s character.

This was discussed in the case of Royston v R (1953) 20 EACA 147

where it was stated that if the imputations of bad character are an integral part of the defence
of the accused without which he cannot put his case fairly and squarely then he cannot be
cross-examined on previous criminal history.
Katwe v Uganda (1964) EA 477
Rex v Turner (1944) 30 Cr. App. R 18
Facts: The appellant was convicted of rape, his defence was that of consent, on cross-
examination the complainant said that she did not see the appellant take out his person but she
admitted he took it out and she knew he was seeking sexual intercourse with her as he was
struggling at her clothes and he did not release her in any shape or form. The appellant gave
evidence himself to the same effect but he also said the complainant took hand of his person
and said I will do it. The trial judge held the above evidence was an imputation on the character
of the complainant and the prosecution was entitled to cross-examine the appellant on his
previous convictions. The prosecution then enlisted the fact that the appellant had been
previously convicted of assault on a female with intent to rubbish her and he was sentenced to
a months’ imprisonment. On appeal;

Issues: Whether evidence of such previous convictions was admissible in this case and whether
evidence of character was properly admitted?
Held: Under the Criminal Evidence Act of 1880 of UK a person charged and called as a witness
under the Act shall not be asked and if asked shall not be required to answer any question
tending to show that he has committed or been convicted or been charged with any other
offence other than that which he is currently charged or is of bad character unless the nature
and the conduct of the defence is such as to involve imputation on the character of the
prosecution or witnesses for the prosecution of bad character.

Court further said putting forward a defence of consent does not amount to making an
imputation on the character of the complainant where the accused charged with rape put
forward the defence that the complainant consented to the act he does not make an imputation
on her character so as to render himself liable to cross-examination on previous convictions or
bad character.

Abdulla Katwe v R (1964) E.A 477

Facts: The appellants were charged with conspiracy to commit robbery, the evidence being that
acting on information received, an Inspector of Police with five other officers all in plain
clothes went to patrol a road and they saw a car some yards in front of them trying to broke
them, five men with stones descended upon the Inspectors car. When the officers emerged the
five men withdrew but they were arrested and stones were found in their car and the number
plate was smeared with sand. At the trial Counsel for the appellants in cross-examination
suggested to the Inspector that he had fabricated the evidence, and the prosecuting officer
applied for leave to cross-examine one of the appellants on his previous convictions, the
magistrate ruled that the appellants had put their character in issue and therefore the prosecutor
was entitled to cross-examine the appellants on previous convictions. The 3rd and 5th
appellants admitted previous convictions and all the five appellants were convicted. On appeal
the issue was whether the evidence of bad character of the appellants was properly admitted at
the trial?
Held: It was suggested to the Inspector that he had fabricated evidence, by planting stones into
the appellants car and he had obscured the number plates of the car Counsel for the appellants
went beyond what was necessary for the proper and fair presentation of his clients’ case before
the court. Accordingly the magistrate had properly exercised his discretion in admitting
evidence of bad character of the 2nd appellant. It would have been otherwise if the appellants
had simply said the evidence was untrue such suggestion would not entitle the prosecution to
cross-examine any of the accused as to their character.

The principle is that a clear line should be drawn between words that are denial of evidence
and words which attack the conduct or character of a witness. It is one thing for the appellant
to deny that he performed the act, but it is another thing to say that the whole thing was a
deliberate and elaborate concoction on part of the prosecution which seems to be an attack on
the character of a witness. Court finally said in making imputations on the character of the
prosecution witnesses the defence had gone so far as to bring the imputations outside the scope
of protection under the rule in Royston’s case.

R v Rodley (1913) 3 K.B 468

Facts: This case discusses section 52(b) of the Evidence Act regarding previous convictions.
The appellant was indicted for having broken into a dwelling house in the night with intent to
lavish a woman. Prosecution’s evidence was to the effect that the appellant broke into the house
and went downstairs where he seized her, he pulled down her clothes and upon the woman’s
father coming downstairs the appellant went away. The defence at the trial was that evidence
of the prosecution was not true since the appellant went to the house for purposes of courting
the complainant with her consent and he did not intend or attempt to ravish her.
Prosecution tendered evidence that the appellant at about 2.00am on the same morning went to
the house of another woman about three houses from the complainant’s house gained access to
her bedroom and had a connection with her. It was contended that this evidence was admissible
to show the state of the appellants mind and body at the time when he broke into the
complainant’s home and coupled with the evidence of what happened when he was in the house
was admissible to show the intent of the appellant. This evidence was admitted and the
appellant was convicted on it and he appealed.

Held: This evidence was not relevant to any of the issues in the case and therefore not
admissible and citing the case of R v Fisher (1910) 1 K.B 149 court said the principle is that
prosecutors are not allowed to prove that the accused has committed the offence with which he
is charged by giving evidence that he is a person of bad character who is in the habit of
committing crimes, for that is equivalent to asking the court to say that because an accused has
committed other offences he must therefore be guilty of the particular offence for which he is
being tried, but if the evidence of other offences, does go to prove that he did commit the
offence charged, it is admissible because it is relevant in issue and it is admissible because it
proves that the accused committed another offence. Court finally said that the governing rule
must always be that any evidence to be admissible must be relevant to the issue.

Ali Bin Hassan Alias Mgwengwe v R (1960) E.A 121

Facts: The same issue of previous convictions was considered. The appellant was convicted by
a magistrate of aiding a prisoner to escape and obstructing a police officer in the due execution
of his duty. At his trial the appellant conducted his own defence, and in cross-examination of
a police constable he got from him the following answer ” Yes I know that you have recently
come out of jail where you were sent for being found in possession of a big quantity of wine “.
Later the appellant was cross-examined as to his bad character and previous convictions. On
appeal;

Issue: Whether evidence of bad character and previous convictions was wrongly admitted?
Held: The magistrate should not have committed the appellant to cross-examine the police
constable in the way he did for it was obvious that the appellant was bringing his bad character
in issue and at that stage his bad character was inadmissible in evidence. The Magistrate should
have stopped him and warned him of the danger he run in continuing with that line of
questioning.

The 4th exception is found in section 52(d) of the Evidence Act. Under that provision it is
provided that in criminal proceedings the fact that an accused person has bad character is
irrelevant unless he or she has given evidence against any other person charged with the same
offence as that which he or she is charged. The term giving evidence against co accused has
been a subject of debate in a number of cases as well as the term giving evidence which
undermines the defence of co accused. In all cases the courts have said that there is an objective
test that may be employed in such cases and that is what is the effect that evidence and if the
answer of such evidence is to lead to the conviction of the co accused then an accused would
be said to have given evidence against co accused. This was considered in the case of:

Murdock v Taylor (1965) 1 ALL ER 406

Facts: The appellant Murdock was charged jointly with one Linch with the offence of receiving
cameras knowing them to have been stolen. In cross examination the appellant said that he had
nothing to do with stolen cameras and that they were entirely linch’s responsibility. Further
answers of the appellant pointed to the conclusion that Linch alone was in control and
possession of the box containing the stolen cameras. Linch’s counsel was allowed to cross-
examine the appellant who admitted a number of convictions for theft. On appeal;
Issues: Whether the appellant gave evidence against Linch and whether therefore cross-
examination as to his previous convictions was rightly allowed?
Held: The evidence given by the appellant in cross examination was evidence against Linch
because it supported the prosecution’s case against Linch in a material particular and therefore
questions as to the previous convictions were properly allowed because they were relevant and
directed to the appellants credibility. In this case court laid down the following principles.

1. The evidence against co accused means evidence which support the prosecution’s case
against co accused in a material respect, or which undermines the defence of co accused, it also
means positive evidence which would rationally have to be included in any summary of
evidence in which the case which if accepted would warrant conviction of co accused.
2. Both must be charged with the same offence.
3. The material considerations in determining whether such evidence has been given is the
effect of the evidence in the minds of the court and this is an objective test. Evidence against
co accused is not limited to evidence given with hostile intent, once an accused has given
evidence against his co accused a trial judge has no discretion whether or not to allow the
former to be cross-examined by the co accused as to his previous convictions although the trial
judge must rule as to the relevancy of the proposed cross-examination. This means that it
should go to the credibility of the accused, who has given evidence against co accused. The
same matter was considered in the case of:

R v Bruce (1975) 1 W.L R 1252 (meaning of ‘evidence against’)

Facts: In this case 8 youths surrounded a passenger on a train and when they realized that he
was frightened they took money from him. They were all charged with robbery, one accused
called Mc Guinness said that there was a plan to rob but he said that he had played no part in
it. His Counsel was allowed to cross-examine another accused Bruce about his previous
convictions on the basis that Bruce had given evidence against Mc Guinness by denying that
there was a plan to commit robbery.
Issue: Whether evidence of Bruce’s previous conviction was admissible. Whether he had given
evidence against Mc Guinness?

Held: ‘Evidence against’ means evidence which supports the prosecution’s case in a material
respect, or which undermines the defence of co accused. That evidence cannot be said to be
given against co accused if its effect if believed is to result not in his conviction but his acquittal
of that offence. Court went ahead to say that Bruce’s evidence undermined the defence of Mc
Guinness. The previous convictions of Bruce were wrongly admitted. The appeal was
dismissed on the ground that if such evidence leads to an acquittal then it is not evidence against
co accused.

R v Davis (1975) 1 W.L R 345

Facts: The defendant and co accused were charged jointly with theft of a number of items
including a cross. The co accused gave evidence accusing the defendant of stealing that cross,
the defendant denied the theft and upon cross-examination by co accused he said that as he had
not stolen the cross and it was missing the co accused must have stolen it but that he was not
saying that he did. The defendant was cross-examined upon his previous convictions on the
ground that he had given evidence against co accused, he was convicted and he appealed and
on appeal;
Issue: Whether the defendant’s denials were evidence against co accused?
Held: Since the circumstances of the theft were such that either the defendant or co accused or
both had stolen the cross the defendant’s denial of the co accused’s accusation went to the root
of the case and must have undermined the co accused’s defence. The defendant’s denials were
evidence against co accused and that evidence of previous convictions was rightly admitted.

Character Evidence in Civil Cases (sections 50 and 54 of the Evidence Act)

This can either be the character of the plaintiff, defendant or the character of the witness.
Section 50 of the Evidence Act provides that In civil cases the fact that the character of any
person concerned is such as to render probable or improbable any conduct imputed to him or
her is irrelevant, except insofar as that character appears from the facts otherwise relevant. This
is subjective. The defendant may adduce the plaintiff’s evidence of bad character in order to
mitigate damages.

Evidence of bad character may be adduced to as well to establish that a particular instance of
bad behavior was not an accident but part of a series which were related. Evidence of bad
character is also important under section 54 of the Evidence Act which provides that in civil
cases the fact that the character of any person is such as to affect the amount of damages which
he or she ought to receive is a relevant fact. This question was raised in the case of:

Goodry v Oldham’s Press (1967) 1 Q.B 333

Facts: In August 1963, the great train robbery occurred, in the United Kingdom where 2.5
million pounds was stolen from the mail train. In March 1964, the plaintiff was convicted of
being armed with an offensive weapon and that of robbery of 120 mail bags, he was sentenced
to 30 years imprisonment, in July 1964, the defendant’s newspaper published a story which
was entitled A suburban house maid reveals how she was caught up in a great mail bag plot
and the article contained many references to the plaintiff and described the leading role played
by her. In September 1964 the plaintiff brought an action against the defendants claiming
damages for libel in the article. The defendant at first pleaded full justification but they
amended their defence to plead partial justification and also pleaded mitigation of damages,
saying that in July 1964, when they published the article, the plaintiff already had a bad
reputation as a thief and a robber and in support of the allegation, they gave evidence of her
previous convictions which amounted to seven including the dismissal of her appeal, against
the conviction for March 1964.

Issue: Whether evidence of bad reputation was admissible?

Held: Convictions with in a relevant period of the plaintiff’s life were cogent evidence that the
plaintiff had a bad reputation and were admissible in evidence in mitigation of damages and
therefore the defendants were rightfully allowed to give evidence of March 1964 conviction.
The same issue was raised in the case of:

Walters v Sunday Pictorial Newspaper (1961) 2 ALL ER 758

Facts: The defendants in their Sunday times referred to the plaintiff (A) as a notorious dodger
operator of land slum properties, B as a wile dodger and C the man whose estate agency was
described by Lord Godard then the Lord Chief Justice, as a fraudulent business man from the
beginning to the end. In their defence for libel the defendants admitted that the words were
defamatory but they pleaded the following defenses

1. Justification
2. Fair comment on a matter of Public Interest
3. That the words against C were a fair and accurate report of Judicial Proceedings.
4. In mitigation of damages that as a result of certain judicial proceedings the plaintiff had
already been brought into scandal odium and contempt and cited three Judicial Proceedings
one of them criminal and two civil actions involving fraud.
Issue: Whether those judgments referred to were admissible to establish bad reputation?
Held: The plea in mitigation of damages that the plaintiff had already been brought into the
public odium by the judgments in the proceedings referred to did not go beyond what was
permissible as evidence of bad reputation in a section of life relevant to the alleged libel.

Relying on Scott v Sampson (1882) 8. Q.B.D 491, Court said that in mitigation of damages
only general evidence of reputation may be adduced and it is not permissible to adduce
evidence of specific facts but however, it is permissible to plead such matters as directing
attention to the relevant sector of the plaintiff’s life.

Scott v Sampson
Facts: This was an action brought for publication in a paper called Referee a libel imputing to
the plaintiff that by threatening to publish in a journal called the theater defamatory statements
with reference to a deceased actress he had extorted a sum of money from one Green. The
defendants adduced in mitigation of damages evidence that the plaintiff had already a bad
reputation based on the evidence of rumours before the publication of the libel that the plaintiff
had been guilty of misconduct imputed on him in addition to evidence of previous acts of the
plaintiff which were said to have been of a discreditable character and called witnesses to show
that before publication those rumours had been told.

Issue: Whether evidence of rumours that the plaintiff had done what was charged against him
should have been admitted?
Held: Evidence of rumours before publication of the libel that the plaintiff had committed
offences charged and evidence of publication facts and circumstances tending to show the
misconduct of the plaintiff could not be admitted in reduction of damages. The following
principles were laid down: -
1. The law recognizes in every man a right to have the estimation in which he stands in the
opinion of others affected by the false statements to his discredit if such false statements are
made without lawful excuse, and damages result such damaged should be calculated entirely
on the estimation in which he was previously held. If he complains of any injury to his
reputation and he seeks to recover damages, before such damages can be awarded the court
should know if in fact he is a man of no reputation, to deny this would be to decide that a man
of the worst character is entitled to the same measure of damages with one of good reputation.
2. On the question of rumours, court said that to admit evidence of rumours and suspicion is to
give anyone who knows nothing about the plaintiff or who may have a grudge against him
question opportunity of spreading what he may have picked from the most disreputable source
and what no man of sense who knows the plaintiff’s character would believe. Unlike evidence
of general reputation, it is particularly difficult for the plaintiff to rebut such evidence for his
witnesses can only say that they have not heard such rumours.

Character of the defendant

In civil proceedings this is not ordinarily an issue although it may become so under the
circumstances of section 54 of the Evidence Act. However, it is the general rule that the
character of the defendant may not depend on whether the defendant has been convicted of a
criminal offence. What has to be established is his behaviour, in respect of civil matters at issue.
This is unlike in criminal matters where past conviction is relevant. In practice courts have
been reluctant to accept character of the defendant based on past conviction. This matter was
discussed at length in the case of:

Hollington v Hew thorn (1943) K.B 58

Facts: In an action arising out of a collision between two motorcars on the high way the plaintiff
alleged negligence on the part of the defendant driver, he sought to give evidence of a
conviction of the defendant of careless driving arising out of the same facts in a criminal matter.

Issue: Whether the evidence of the conviction was admissible? Court said that both on principle
and authority evidence of conviction was inadmissible as being res intarious acta (evidence of
previous conviction in not admissible in civil action for being contrary to justice) that the issues
before court in the criminal action are different from those in a civil action and it would
therefore be improper to use conviction in a criminal case to establish liability in civil
proceedings. This particular case has been strongly criticized not for the principles laid down
but about the decision in a particular case. It is as on principle that you cannot use a criminal
conviction to establish liability in civil proceedings. This was a traffic offence and the decision
has been highly criticized.

Character of Witnesses
It applies to both criminal and civil cases. Generally, the character of the witnesses is not
material in both criminal and civil cases. However, the nature of the adversarial system which
we operate involves competition and for this reason both sides strive to discredit the credibility
of each other’s witnesses. Witnesses are therefore usually subjected to serious searching and
scrutiny to establish whether they are telling the truth or not. A party to litigation is normally a
witness and as such is treated like any other witness. Under section 153, of the Evidence Act
permits a person who calls a witness to put any question to him or her which might be put in
cross-examination by the adverse party and under section 154 of the Evidence Act the
credibility of a witness may be impeached by calling witnesses to testify that he is
untrustworthy of credit. Under section 137 of the Evidence Act witnesses to the opposite side
may be discredited by bringing in their bad character and this usually happens during cross-
examination as provided under section 137(2) of the Evidence Act, where it is provided that
the examination and cross-examination must relate to the relevant facts, but the cross-
examination need not be confined to the facts to which the witness testified on his or her
examination in chief. A witness may be cross-examined as to his veracity or credibility and it
is during this time that evidence of bad character is usually brought up. Under section 137(3)
a party who calls a witness is allowed to re-examine his witness for the purpose of clarifying
evidence he may have given during cross-examination or to repair any damage which may have
been done to his credit. Evidence commending good character of the party’s own witnesses is
rarely led even though as going to the credibility of the witness. Although in general evidence
can be called to impair the credibility of a witness it is not led in chief to booster up that
credibility. Where evidence of character of an opponent’s witness is led it is subject to
conditions. The matter must be relevant at least to the witness’s credibility and secondly the
judge has the duty to prevent questioning of an unduly offensive, vexatious or embarrassing
character and also should prevent oppressive cross-examination. This is provided for under
sections 150 and 151 of the Evidence Act. Questions asked must be relevant not indecent or
scandalous and should not be intended to insult or annoy the witness. Under section 148, courts
can stop irrelevant questions.

Hobbs v Tinoign &Co. Ltd (1929) K.B 1

Held: Questions are proper only when the answers would seriously impair the credibility of the
witness and that they are improper if they relate to matters so remote in time or of such character
that if true, they could not seriously impair the credibility of a witness.