Recent Judicial Decisions
| Author | W. H. D. Winder |
| Published date | 01 December 1966 |
| DOI | 10.1177/0032258X6603901210 |
| Date | 01 December 1966 |
| Subject Matter | Article |
W.
H.
D.
WIN
D E
R,
M.
A
.,
L L • M.
Legal Correspondent
of
the Police Journal
BAD
CHARACI'ER
Malindi v. Reginam
Those who can be described as bad characters enjoy, with
others, the advantage of normally being protected from questions
at their trial tending to show that they are
"of
bad character".
Decisions on the scope of this particular protection are fewer than
those on the similar protection under the Criminal Evidence Act,
1898, from questioning as to previous convictions. Malindi v.
Reginom [1966] 3 All E.R. 285, an appeal to the Judicial Com-
mittee of the Privy Council from Southern Rhodesia, was con-
cerned with the propriety of cross-examination as to bad character
under legislation similar to the English Act. There was no sug-
gestion that the appellant had been convicted of or been charged
with any other previous
"offence".
He was charged
On
indictment with conspiring to commit arson
and malicious damage and with committing arson. There was a
political background to the case and he gave evidence to the effect
that he was opposed to illegal action of the kind charged. In
cross-examination he was questioned about certain passages in
his personal notebooks (dating from the year earlier), including
aparticular passage in which the use of violence was commended
and asserted to be necessary.
The
Judicial Committee held that
these questions should have been excluded. The appeal, however,
was dismissed as there had been no miscarriage of justice in view
of the considerable positive evidence warranting conviction.
The
reason for this ruling on the cross-examination was that
underlying the cross-examination was a risk of suggesting that the
appellant had a disposition to resort to violence, shown by his
writings in or about 1961, and that reliance could be placed on
such disposition in deciding whether he did or did not conspire
with others in 1962 to resort to violence.
"That
is an approach
against which the law resolutely takes a stand", said Lord Morris
of Borth-y-Gest.
"Character"
in the context of the legislative
provision might mean a person's actual moral disposition. As
the appellant had not asserted his good character in his evidence-
in-chief, the right course would have been to disallow the questions
put in cross-examination. As to the meaning of
"character"
in
this connexion the Judicial Committee applied the dictum of Lord
December 1966 626
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