Question: Justify Section 54(2), Evidence Act and Section 146, if any.
In my point of view, Section 54(2) Evidence Act and Section 146 Evidence Act don’t have any conflict. First and foremost, law of evidence provided a shield or protection against accused bad character. According to Section 54 (1) Evidence Act 1950 in criminal proceedings the fact that the accused person has a bad character is irrelevant. There are 2 shields which are first is general protection against accused bad character under Section 54 (1) Evidence Act 1950 and second is the shield against question put to accused that tend to disclose his bad character in the event he is called as witness or put on the witness stand based on Section 54 (2) Evidence Act 1950.
In justifying these 2 sections which are Section 54 and Section 146, it is very important to look at this case (Sharma Kumari’s case). In Sharma Kumari A/P Oam Prakash V Public Prosecutor [2000] 6 MLJ 282, the words in Section 54 and Section 146 of the Evidence Act 1950 are clear. Bad character evidence per se is not relevant, but the section makes it clear that the bar can have exceptions. Section 146 specifically provides that questions may be put to test his accuracy, veracity or credibility. It widened the area of exceptions. If all evidence of a criminal act is barred as evidence of bad character, no crime could be proven. Such an interpretation is a gross misinterpretation of the law. In the present case, even if the questions relate to matters that were indecent or scandalous because the appellant is a married woman at the time, the questions were clearly not intended simply to insult or annoy, but clearly relate to facts in issue or matters necessary to be known and in which the court has the discretion to admit into evidence.
According to Section 54(2), Evidence Act previous bad character not relevant except in reply. A person charged and called as a witness 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 of or been charged with, any offence other than that wherewith he is then charged, or is of bad character, unless in paragraph (a) the proof that he has committed or been convicted of that other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged. In paragraph (b) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or in paragraph (c) he has given evidence against any other person charged with the same offence.
Clearly Section 54 is not an absolute bar against evidence of bad character. Other sections submitted upon are the following, Section 146 Questions lawful in cross-examination, when a witness may be cross-examined he may, in addition to the questions hereinbefore referred to, be asked any questions which tend (a) to test his accuracy, veracity or credibility; and (b) to discover who he is and what is his position in life; or to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
In my opinion, the essence is that Section 54 cannot be defeated by resort to or misuse of Section 146 and Section 148. Now, Section 54 is in that part of the Evidence Act dealing generally with character evidence. Section 146 is a specific section as to questions lawful in cross-examination. The issue here is whether cross-examination that tends to show bad character is barred under Section 54 even though it is for the purpose of, as the prosecution maintains, testing the veracity of the appellant. In Mohamed Noor bin Othman & Ors v Haji Mohamed Ismail bin Haji Ibrahim & Ors [1988] 3 MLJ 82 at p 84, Hashim Yeop A Sani SCJ (as he then was) speaking for the Supreme Court said: “... it is trite law that where the words of a statute are clear there is no room for the court to go beyond the expressed language of the statute.” In Magor & St Mellons Rural District Council v Newport Corp [1951] 2 All ER 839, the House of Lords held that in the construction of a statute the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in any gaps disclosed, and that to do so would be to usurp the function of the legislature. The judicial function then is that of interpretation, it does not include the power of amendment under the guise of interpretation". To restrict the meaning of Section 146 by an earlier and general section such as Section 54 would amount to an amendment of Section 146.
Let us focus on the question given as to throwing shield under Section 54 (2) (b) limb III Evidence Act 1950, the shield under Section 54 (2) will be thrown away if when the accused is called as a witness, the conduct of the accused or his defence cast imputation on the character of the prosecution or the prosecution’s witness.
Initially, position before Selvey’s case, casting imputations on the character of the prosecution or the prosecution’s witness for proper development of the defence the shield is not thrown away. Mere attack on the witness’s credit, which the shield is thrown away. In R v Butterwasser, in an attempt to discredit the prosecution or the prosecution’s witness, counsel for the appellant attacked the character of complainant. Lord Goddard CJ in this case mentioned that, “this was a serious case, but, having regard to the nature of the defence set up, and the general circumstances, we do not feel able to apply the provisions of the proviso to s 4 of the Criminal Appeal Act and to say that the jury would necessarily have come to the decision they did if the evidence which has been attacked had not been given. It was evidence on a vital matter, and when evidence is given with regard to the bad character of the prisoner which ought not to have been given, in my experience this court has always quashed the conviction. In these circumstances, we feel that the conviction should be quashed.”
However, position post Selvey’s case, it left with court’s discretion to throw away the shield depending on the nature and the gravity of the attack of the prosecution or the prosecution’s witness. In Selvey v DPP, The appellant was charged with buggery, the complainant being a young man aged 21. He denied the charge and declined to answer questions. At the trial the evidence for the prosecution included medical evidence that the complainant had been sexually interfered with on the day in question and also indecent photographs found in the appellant's room by the police. The appellant in his own evidence, while denying the charge, said that the complainant had told him in his room on the afternoon in question that he had already on the same day allowed an act of buggery on his person for oe1 and would do the same again for money. On appeal, on the grounds, inter alia, that as the nature of his defence necessarily involved the imputation against the complainant, the judge in accordance with "the general rule" should have exercised his discretion under section 1 (f) (ii) of the Criminal Evidence Act, 1898, n1 in his favour by excluding his previous record. and that the jury should have been warned that it had not been formally proved. Held, dismissing the appeal, (1) that a judge had an unfettered discretion under section 1 (f) (ii) of the Act of 1898 to admit or exclude the previous record or character of an accused and to allow cross-examination on it; and there was no general rule that the discretion should be exercised in favour of the accused, even where the nature of his defence necessarily involved his making imputations on a prosecution witness.
In Selvey v DPP, House of Lord mentioned that, (1) the words of the statute must be given their ordinary natural meaning. (2) The section permits cross-examination of the accused as to character both when imputations on the character of the prosecutor and his witness are cast to show their unreliability as witnesses independently of the evidence given by them and also when the casting of such imputations is necessary to enable the accused to establish his defence. (3) In rape cases the accused can allege consent without placing himself in peril of such cross-examination. This may be because such cases are sui generis (per Devlin J. in Rex v. Cook [1959] 2 Q.B. 340, 347), or on the ground that the issue is one raised by the prosecution. (4) If what is said amounts in reality to no more than a denial of the charge, expressed, it may be, in emphatic language, it should not be regarded as coming within the section (Rouse [1904] 1 K.B. 184). Applying these propositions to this case, it is in my opinion clear beyond all doubt that the cross-examination of the accused was permissible under the statute. So, in this case clearly showed that the judge apply Section 54 and Section 146 Evidence Act (Malaysia) accordingly and it shows judge used his discretionary power to allow or not to throw away the shield and bad character of the accused can be brought out. The fact is, the court or judge may allow or has discretionary power to not allowing questions to be asked to witnesses or accused because likely to shake his credit by injuring his character. But, the questions must not too excessive or ask the unnecessary questions to him.
According to Section 146 Evidence Act, cross examination as to the credit of a witness is most relevant in a case where everything depends on the judge’s belief or disbelief in the witness’s story. In Lim Baba v PP , the appellant was charged and convicted by the President of the Sessions Court under section 366 of the Penal Code for abducting a woman of 19 years with intent to have illicit sexual intercourse with her and sentenced to one and half years' imprisonment and a fine of $ 200. Per Ismail Khan J in Lim Baba v PP [1962] 1 MLJ 201, 202 (HC) mentioned that, “again under Section 146 of the Evidence Ordinance a witness may be cross-examined as to credit by injuring his character. Questions could be put relating to facts in issue or matters necessary to be known in order to determine whether or not the facts in issue existed. If they are put to shake the credit of a witness the Court has complete dominion over them and may forbid questions even though they have some bearing on the question before the Court. But if they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed, the Court has no discretion to forbid such questions though they may be indecent or scandalous (Mahomed Mian v Emperor AIR 1919 Pat 515, 516). In a Privy Council case Bombay Cotton Manufacturing Company v Motilal Shivlal ILR (1915) 39 Bom PC 386, it was observed by Sir George Farwell, in speaking of cross-examination addressed to the credit of a witness in the box, that "it is most relevant in a case ... where everything depends on the judge's belief or disbelief in the witness's story”.
Moreover, in Sharma Kumari A/P Oam Prakash V Public Prosecutor [2000] 6 MLJ 282, Abdul Wahab J mentioned in page 312, the words of Section 54 and 146 are clear. Bad character evidence per se is not relevant, but the section makes it clear that the bar can have exceptions. Section 146 specifically provides that questions may be put to test his accuracy, veracity or credibility. It widened the area of exceptions. The following illustration will clarify the issue. Evidence that a person murdered someone is always capable of being interpreted as evidence of bad character. But if he is charged with murder, evidence that he did murder the victim as charged is relevant and always admissible. Evidence that he had murdered another person might well be barred, although there are exceptions. If all evidence of a criminal act is barred as evidence of bad character, no crime could be proven. Such an interpretation is a gross misinterpretation of the law.
Therefore, in my point of view, Section 146 is another exception to Section 54. Court has discretion to throw away the shield or not. Once the shield has been lifted, the accused might not be protected and the prosecution can ask the accused on his bad character. Section 146 is wider because not only refer to accused witness but to all witnesses. If in use of Section 146 is to ask the witnesses or accused by not too excessively and ask relevant questions, probably the court will only say to injure allow under Section 146. For example, Section 146 can be used in cross-examination to shake his credit by injuring his (any witness or accused himself) character, although the answer to such question might tend directly or indirectly to criminate him. However, if the used of Section 146 “excessively” like asking so many questions unrelated to witness bad character or ask unnecessarily questions or the questions are too excessive, so court may not allow based on Section 146.
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