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Published : March 05, 2011 | Author : saarth1989
Category : Criminal law | Total Views : 23968 | Rating :

Saarth Dhingra 4th year law student in Nirma University, Ahmedabad

As per Webster, "character is a combination of the peculiar qualities impressed by nature or by habit of the person, which distinguish him from others". Character means the collective qualities or characteristics especially mental and moral, that distinguish a person or thing. Character is the estimation of a person by his community.

The word ‘character' includes both reputation and disposition." Character lies in the man; it is the mark of what he is.

Webster defines "reputation" to be good name; the credit, honour or character which is derived from a favourable public opinion or esteem, and character by report. Reputation is the common or general estimate of a person with respect to character or other qualities.

Woodroffe states that "Reputation means what is thought of a person by others and is constituted by public opinion. It is the general credit which a man has obtained in that opinion."

Reputation and character are not synonymous terms. Character is what a man or a woman is morally while reputation is what he or she is reputed to be i.e. reputation is the estimate which the community has of the person‘s character.

Disposition is a natural tendency, an inclination; a person‘s temperament. It is the prevailing spirit of mind, resulting from constitution. It is the aptitude or tendency of character.

The word 'disposition' is used to give the meaning a tendency to act, think or feel in a particular way. Character certificate given by the employer or character certificate given by the Heads of the Educational Institutions are the good examples of 'Disposition'. 'Disposition' comprehends or springs and motives of action. It is a permanent, settled and respects the whole frame and texture of the mind.

` The disposition is the prevailing spirit of mind, resulting from constitution. It is the aptitude or tendency of character. Character is often used in the sense of the social estimate formed of a man, his reputation for good or bad.

The distinction between reputation and disposition is:
i) Reputation means the general credit of the person among the public but disposition means the inherent qualities of a person.

ii) Reputation is what other people think about him while disposition is what he is in reality.

iii) A man may be reputed to be a good man but in reality he may have a bad disposition.

iv) General reputation is a sort of common adjective to all, while disposition of a man may depend upon many traits, some good and some bad.

As character includes both reputation as well as disposition, character means the general credit of the person in the estimation of others plus the nature and inherent qualities of a person. But disposition of a person can be known only to those persons who are closer to him. A person may have very high reputation but his disposition may be very bad.

"Character is a combination of quality distinguishing a person, the individuality of which is the product of nature, habits and environment." "Is a man honest, is he good—natured, is he of violent temper, is he modest and retiring or imprudent forward — These all constitute traits of character."

Although strictly speaking character is to be distinguished from reputation, yet reputation is more commonly considered as having reference to the dispositions or character of a person. Thus it is said of a person that he bears a good reputation meaning that the person in question has reputation for being a person of good character.

In civil action, as a general rule, evidence of character of any person concerned (a party to a suit) is not admissible for the purpose of raising an inference as to his conduct. In other words, that a party did or did not act may not be established in civil actions, by showing that his character is such as to predispose him to one course or to the other. So the exclusion of evidence of a character of a party as a basis of inference as to his conduct is practically absolute in civil cases. In civil cases the evidence of character is generally inadmissible unless the character is of the substance in issue.

Under Section 52 the expression 'the character of any person concerned' is used. Therefore, it may appear to include persons who are called as witnesses, but the content of the section refers, only to the parties of the proceedings.

Character admissible in civil cases:

There are certain cases in which character is a fact in issue or a relevant fact e.g. in a suit for libel, if the libel consisted in attributing bad qualities to the plaintiff and the defendant justices the existence of these qualities, the existence of these qualities would be a fact in issue and evidence of character may be led. The character of a female chastity has been received in evidence in action for breach of promise for marriage.

Best states that "To admit character evidence in every case, or to reject it in every case, would be equally fatal to justice; that to draw a line or to define with precision where it ought to be received and where it ought to be rejected, is as embarrassing a problem as any Legislature can be called upon to solve."

In Abdul Shakur and others v. Kotwaleshwar Prasad and others, it has been held that where the contention that certain pronotes had been obtained from the insolvent while he was under the influence of drink, has been found to be baseless, mere general bad character of the insolvent would be quite irrelevant in a civil case to prove want of consideration.

Defendant Good Character in Civil Cases
Generally speaking, the good character of a party to civil proceedings, whether defendant or claimant, is not admissible, unlike the normal situation with regard to defendants in criminal cases. As Baron Martin noted in A-G v Radcliff, in most cases, no presumption would arise: ‘. . . from the good character of the defendant, that he did not commit the breach of contract or of civil duty alleged against him’. Of course, if a party to litigation has his credibility attacked by unwarranted aspersions on his character, he can call evidence of his good character to rebut the allegation.

Defendant Bad Character in Civil Cases
A defendant’s character can be attacked in civil proceedings with a view to undermining his credit, just like that of any other witness. There is no special regime for defendants in civil trials, unlike the situation that governs the accused in criminal proceedings. Thus, for example, a defendant with previous convictions can have them put to him in cross-examination.

Perhaps more significantly, past misconduct can be indicative of present behaviour in civil as well as criminal matters and thus can be used to establish propensity under the common law ‘similar fact’ doctrine. The legal use of this type of evidence was neglected in civil cases, at least when compared to the extensive jurisprudence on its criminal counterpart. It was only rarely mentioned in judgements, and then often by reference to criminal case law on the topic.

Ironically, however, given the abolition of the similar fact doctrine in criminal trials under s. 99(1) of the CJA 2003, it is only in civil cases that it will be encountered in future. A number of cases, stretching back over a century, are indicative of the doctrine at work. Thus, in Hales v Kerr, evidence from a barber’s customers that they, too, had become infected with ring-worm, after having been cut and bandaged by the defendant in the recent past, was admitted to support the plaintiff ’s claim to having been negligently infected in a similar fashion.

It suggested that the defendant had an unhygienic system of work.

In Mood Music publishing Company v. De Wolfe Ltd., Lord Denning derived a Two stage test to determine the admissibility of evidence.

The following questions were to be ascertained before admitting the evidence

i) Whether the evidence provided was relevant with the Fact in Issue?
ii) Whether such evidence should be admissible or not?

This test was revisited in case of O’Brien v Chief Constable of the South Wales Police. In practical application of this test the risk of prejudice is likely to be far more acute than in the vast majority of cases where the matter is presided over by a professional judge, who is experienced in ‘putting aside irrational prejudice’.

This might be particularly important where the extrinsic evidence is of a scandalous nature; for example, the previous misconduct cited consists of allegations of what would amount to serious crimes if proved.

Additionally, the risk of excessively prolonging and distorting the litigation process will also vary enormously, and needs to be weighed up against the probative value of the evidence and any other case specific factors.

In the light of O’Brien, it might be argued that, despite the term still being in use, there is, in reality, no longer a special doctrine of similar fact evidence in civil cases. Many of the conclusions reached in the case are explicable by other evidential principles, such as simple relevance or as a response to the Civil Procedure Rules. However, this would be an exaggeration, as there is still a residual discretion to reject such evidence simply because it might occasion reasoning or moral prejudice, rather than for any other reason; this is a hallmark of the similar fact doctrine at common law. Nevertheless, this is likely to be exercised only rarely, jury trials, perhaps, apart. In the light of Lord Bingham’s observation in O’Brien, that similar fact evidence can be very important, even decisive’ in civil cases other litigants may be encouraged to adduce such evidence in future. Against this, the case may also remind the courts that a general exclusionary rule means that evidence of extrinsic defendant misconduct should not be abduced informally.

In criminal proceedings, previous good character is relevant:-

In criminal proceedings, the fact that the person accused is of a good character, is relevant." In criminal enquiries the relevancy of character evidence is different from civil cases.

In criminal cases, the accused is allowed to prove his good character, either in chief or by cross-examination. But so far as concerns proof of the accused's good character by another witness, what must be deposed to is, not particular good acts by him, but his general reputation in the community. Strictly the witness‘s own opinion of his character is irrelevant, but in particular considerable latitude is allowed and a witness is often asked to say what he knows of the accused's character. The evidence of character is primarily relevant as to credibility i.e. it makes his testimony more worthy of belief.

Good character in criminal cases is a weak evidence. However, in certain cases, good character may become favourable evidence in favour of an accused in doubtful cases and where the prosecution fails to prove the guilt of the accused beyond the reasonable doubts. Good character presumably includes good reputation which a man may be in his own circle as well .as his real disposition as distinct from what his friends and neighbours may think of him.

When the accused in a bribery case pleads and produces evidences of good character, which the Court regards as satisfactory, it must be taken in consideration to decide whether the guilt is proved beyond reasonable doubt Phipson states that "Good character is not a defence, for no one would then be convicted, as everyone starts with a good character. The defendant is, however, entitled to rely on the fact that he is of previous good character as making it less likely that he would have committed the offence. If there is any room of doubt, his good character may be thrown in the scales in his favour."

In Habeeb Mohammad v. State of Hyderabad, [AIR l954 SC 51] it has been held that in criminal proceedings a man's character is often a matter of importance in explaining his conduct and in judging his innocence or criminality. Many acts of an accused person would be suspicious or free from all suspicions when the character of the person by whom they are done is known. Even on the question of punishment, an accused is allowed to prove general good character.

Bar on the proof of previous bad character in criminal proceedings:

The general evidence of good character of the accused is always relevant. This is not so with regard to general evidence of bad character. In criminal proceeding the fact that the accused person has a bad character is irrelevant and cannot be proved. The reason is that the prosecution must prove the guilt of accused with the necessary evidence in support of the charge. But the prosecution cannot take the help of bad character of the accused in order to establish its case. lf the prosecution is allowed to prove bad character of the accused, then that would prejudice the mind of the Court. It makes the Court biased against the accused. if evidence of bad character of the accused is permitted t0 be proved the Court may come to the conclusion that he has committed the offence in question. Therefore, this would prejudice the fair trial to which the accused is entitled. However, there are three exceptions to the rule of the irrelevance of bad character in criminal cases.

The first exception: The previous bad character is relevant in reply, if the evidence has been given that he has good character. In Indian system of Law, an accused starts with a presumption of innocence; his bad character is not relevant, unless he gives evidence of good character in which case, by way of rebuttal, evidence of bad character may be adduced. The prosecution gets the right to prove the bad character of the accused. In cases of defamation, malicious prosecution etc., the question of reputation is to be considered. In such cases, the bad character of the party may be adduced as evidence.

The second exception: The evidence of bad character can be proved in cases in which the bad character is in issue. In case of binding over proceedings for keeping good behaviour under Sections 109, and 110, Cr.P.C. and in proceedings for the offence of dacoity under Sections 400, 401, Indian Penal Code. the bad character of the person involved would be a fact in issue. Under Section 110, Cr.P.C.. a person is to be bound down if he is by habit a robber. a house-breaker or is so desperate and dangerous as to render his being at large hazardous. In an Inquiry under Section 110 Cr.P.C. the very character of the accused is in question and so the evidence to that effect is admissible. The evidence that the accused had committed similar criminal acts previously is admissible upon the issue to decide whether the act was intentional or accidental. If the evidence of bad character is introduced in order to establish a relevant fact which cannot be proved separately the evidence of bad character is admissible.

In Public Prosecutor; APHC v. Bandana Ramayya, [2004 Cr.L.J. 3510 (AP)] it has been held that in a rape case, where the medical evidence clearly points out that there was a forcible intercourse, the bad character of the prosecutrix becomes irrelevant. If the bad character is itself a fact in issue, only then evidence can be placed.

The third exception: A previous conviction is not admissible in evidence against the accused, except where he is liable to enhanced punishment under Section 75 of the Indian Penal Code, on account of previous conviction, or unless evidence of good character be given, in which case the fact that the accused had been previously convicted of an offence is admissible as evidence of bad character.

Under Section 75 of the IPC, a person who has been previously convicted by a Court of an offence punishable under Chapter XII or Chapter XVII of the IPC with an imprisonment of three years or more, is liable for enhanced punishment if he had, again committed an offence under those chapters subsequently. may be proved as evidence of bad character

In re: Kamya, it has been held that only after conviction of the accused, the charge for the previous conviction has to be framed for giving enhanced punishment. In such case, the prosecution has to prove the previous conviction of the accused. The trial judge may, at his discretion, proceed or refrain from proceeding, with the trial on the charge of previous conviction.

A defendant can call evidence to establish his ‘good’ character. * is may be given during examination-in-chief by the defendant in person, by one of his witnesses, or be elicited from a prosecution witness on his behalf during cross-examination. In British law only Reputation is counted in Character and not Disposition.

In R. v. James Rowtan the accused was tried for committing an indecent assault on a boy of 14 years and at the trial he gave evidence of his good character. ‘In order to rebut the evidence of good character the prosecution called a witness and asked "what is the accused’s general character for decency and morality?’ He said, "I do not know the opinion of my neighbours but in my opinion and the opinion of my brothers who were also his pupils that he is a person capable of the grossest indecency and flagrant immorality. The court said, this is evidence of disposition, not evidence, of reputation and therefore inadmissible.

In R v Redgrave , the defendant was accused of an offence of gross indecency in a public lavatory ( i.e a ‘homosexual’ offence). At his first trial he was allowed to adduce cards and letters from various girlfriends, to suggest that he was not homosexual and thus was not likely to have committed the offence of which he was accused. (For evidential purposes, if no other, these must be considered analogous to specific creditable incidents.) * is trial produced a hung jury, and a retrial was ordered. The (different) judge presiding at the second trial did not allow evidence of the correspondence to be given and the defendant was convicted. The defendant appealed on the basis that it was wrong for such evidence to have been excluded. Dismissing his appeal, the Court of Appeal upheld the decision in Rowton forbidding the adduction of evidence of specific incidents.

Defendant’s bad character in criminal suits.
Prior to the advent of the Criminal Justice Act 2003, the adduction of defendant bad character evidence in criminal cases was governed by a complicated mixture of common law principles and statute. Thus, evidence adduced to suggest guilt via propensity was largely ruled by the common law ‘similar fact’ doctrine. Evidence that was produced to undermine defendant credit was primarily regulated by s. 1(3) of the 1898 Evidence Act (supplemented by common law provisions).

One of the main aims of the 2003 Act was to put all of the rules governing bad character in criminal cases, whether for defendants, witnesses or third parties, and whether going to credit or directly to the issue in a case, into a single statute. However, there were other concerns about the old regime, several of which were explored in the Law Commission report, Evidence of Bad Character in Criminal Proceedings which (in part) prompted the statutory reforms.

Section 101 of the Criminal Justice Act 2003, Defendant’s bad character

In criminal proceedings evidence of the defendant’s bad character is admissible (1) if, but only if—
(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.

Under s. 101(1)(a) defendant bad character evidence can be admitted with the agreement of ‘all parties to the proceedings’. For practical purposes, in most situations, this will be contingent on the accused person wishing to adduce it, although, presumably, there might be exceptional circumstances in which a co-accused might object to its admission. Nevertheless, a defendant could then have recourse to s. 101(1)(b), which allows him to adduce such evidence in person or via an answer to a question ‘asked by him in cross-examination and intended to elicit it’.

Section 101(1)(c), in part, replicates a specialist provision that previously existed at common law. It allows the adduction of a defendant’s previous misconduct if it is ‘important explanatory evidence’. Guidance on what is meant by this is given in s. 102, which provides that it can be admitted if, without it, the jury or court would find it ‘impossible or difficult properly to understand other evidence in the case’ and (rather superfluously) its value for understanding the case as a whole is ‘substantial’.

R v Beverley , the defendant was accused of participating in a conspiracy to import cocaine. He had two previous convictions. One of these, from more than five years earlier, was for possession of cannabis with intent to supply, and one was from two years previously, for simple possession of cannabis. These were adduced at trial under s. 101(1)(d), as showing a propensity to commit the type of offence with which he was charged. However, on appeal, the conviction was quashed, on the basis that one of the convictions was old, and one was of a different character (simple possession), that they involved a different type of drug, and related to offences of a vastly lesser degree of seriousness, both in size and complexity, to the large-scale conspiracy charged in the instant case.

Although, as these cases suggest, most situations where evidence is adduced under s. 101(1)(d) will require either an ‘unusual’ offence or one committed in an unusual manner, or, alternatively, several previous offences, in exceptional cases this will not be so.

For example, in R v Isichei , a defendant’s single conviction for importing cocaine some six years earlier was admitted under s. 101(1)(d), as it was adduced not to suggest a propensity to commit such offences, but to support the identification of a complainant in an assault occasioning ABH and robbery indictment, who had heard the defendant demanding money for ‘coke’.

A defendant’s bad character can be adduced under s. 101(1)(e) if it has ‘substantial probative value in relation to an important matter in issue between the defendant and a co-defendant’.

In Ibrahim Musone v The Crown, it was held that where two prison inmates were accused of murdering a third prisoner in his cell with a knife, and were running ‘cut-throat’ defences (blaming each other for the crime), one of the defendants was allowed to adduce evidence of an earlier murder, allegedly perpetrated by his co-accused, to suggest that it was more likely that he (the co-accused) had indicted the fatal wound. This was because the earlier killing was considered to have substantial probative value with regard to an important matter in issue between the two co-defendants (i.e who was more likely to be violently homicidal), and so was admissible under s. 101(1)(e).
Under s. 101(1)(f) evidence of a defendant’s bad character can be adduced to ‘correct a false impression given by the defendant’. This selectiveness about the adduction of past crimes can be seen in R v Campbell, where the defendant, accused of assaulting his girlfriend, had numerous previous convictions, for a variety of offences, including violence, dishonesty and criminal damage, reaching back over 20 years. However, at trial, only two previous and recent convictions for assaulting former or current girlfriends were admitted, pursuant to s. 101(1)(d), being adduced on the issue of the defendant’s propensity to use violence towards women.

Section 101(1)(g) deals with those situations in which the defendant has made an ‘attack on another person’s character’. Section 101(1)(g) will not invariably be applied where there has, technically, been some kind of ‘attack’. R v Nelson . In this case, the defendant, while being questioned by the police on an affray charge, had stated that his neighbour was a liar and a user of class A drugs. As it transpired, the neighbour did not give evidence at the defendant’s trial. However, the first instance judge held that there had been an attack on the character of another, which fell within the terms of s. 106(1)(g) of the Act. As a result, the accused man’s previous drugs convictions were adduced.

The general rule is that character evidence is inadmissible. Since it is very difficult to assess the character of the person, evidence of character is rendered inadmissible. It is said that it is only God, the angels and the person himself know anything about the character of a man.

The accused will be regarded as a person of good character if evidence is adducted or elicited to show that he has no previous convictions or no convictions of any relevance or significance. A previous character whether good or bad will be an indicator as to the present conduct of the person. It can affect the way a witness’s testimony is viewed, i.e go to credit. In civil cases character evidence is inadmissible unless the character evidence is itself in issue. The evidence is excluded from civil proceedings on grounds of public policy. Due to the following reasons good character evidence is not admissible in civil proceedings.

i) Evidence of unconnected circumstances will prejudice the party
ii) The party would not have an opportunity to defend effectively as he would be unsure about what part of his career would be attacked.

The accused having a good character is entitled to the benefit of the ‘Vye direction’ consisting where relevant of a propensity limb and credibility limb.

Defendants in criminal cases with good characters are always entitled to the ‘second limb’ of the Vye direction on propensity.

Defendants in criminal cases with good characters who give evidence are also always entitled to a ‘first limb’ credibility direction.

Occasionally, ‘blemished’ defendants without previous convictions who admit to offences, or those with previous convictions that are minor or distant, may be refused or granted good character directions, depending on the circumstances of the case.

According to the Indian laws in criminal proceedings the evidence of bad character of the accused is irrelevant and cannot be proved. But the prosecution cannot take the help of bad character of the accused in order to establish it’s case. If evidence of bad character of accused is permitted to be proved the court may come to the conclusion that he has committed the offence in question. Therefore this would prejudice the fair trial to which the accused is entitled. However there are three exceptions to this rule

i) When the accused gives evidence of good character then the prosecution has a right to prove the bad character of the accused.
ii) The prosecution has a right to prove the bad character in cases in which the bad character is itself in issue.
iii) A previous conviction is relevant as evidence of bad character of the accused.

Defendant bad character in criminal cases is now almost entirely regulated by Part 11 of the Criminal Justice Act 2003, and s. 101 in particular. Bad character usually consists of convictions, but can extend to other areas of reprehensible conduct in an individual’s life.

Evidence of the accused’s ‘bad character’ is inadmissible unless it falls within the scope of one of the gateways to admissibility in section 101 (1) (a-g) of the Act. Whenever the prosecution (but not a co-defendant) attempts to adduce such evidence under s. 101(1)

a trial judge has a discretion to refuse to admit it, whether from the Act itself or as a result of s. 78 of the Police and Criminal Evidence Act 1984, even if one of the gateways is, prima facie, satisfi ed. The similar fact doctrine developed at common law survives in civil cases, despite being abolished in criminal trials. Such evidence appears to require less probative force that was formerly the case in criminal hearings to be admitted in civil forums. However, the court can have regard to a wider range of policy factors than was the case in criminal trials when deciding whether to exclude such evidence.

# Krishnamachari V.Law of Evidence.(Hyderabad: S.Gogia & Company) 2009
# Dr. V. Krishnamachari, Law of Evidence,(Hyderabad: S.Gogia & Company) 2009 p 325
# AIR 1958 All. 54
# (1854) 10 Exch 84
# Raymond Emson,evidence,(Palgrave Macmillan) 4th Edition p 39
# [1908] 2 KB 201
# [1976] 1 All ER 763
# [2005] 2 WLR 1038
# [2005] 2 WLR 1038
# [2005] 2 WLR 1038
# [AIR l954 SC 51]
# [2004 Cr.L.J. 3510 (AP)]
# [AIR 1960 AP 490]
# (1865) 10 Cox. Cr.C.25
# (1981) 74 Cr App Rep 10
# [2006] Crim LR 1065
# [2006] EWCA 1815
# [2007] EWCA 1237
# [2007] 2 Cr App R 28
# [2007] Crim LR 709

Authors contact info - articles The  author can be reached at: nirma@legalserviceindia.com

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