R v Moss
| Jurisdiction | Bahamas |
| Judge | Smith, J. |
| Judgment Date | 17 May 1991 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Criminal Side |
| Date | 17 May 1991 |
Supreme Court
Smith, J.
Criminal Side
Evidence - Admissibility of prejudicial character evidence — Prosecution giving evidence of accused's previous jail sentence while testifying — Evidence Act, section 32 — Admissibility of evidence of bad character of accused — Editing from statement of accused of parts more prejudicial than probative.
Practice and procedure - Trial by jury — Discharge of jury — Circumstances in which a jury may be discharged without being required to give a verdict.
For the second time in this session a situation has arisen where the drastic step of discharging a jury has to be considered after a prosecution witness has given extremely prejudicial character evidence while testifying against an accused person. It would seem therefore that something should be said here on the effect on a trial of that kind of evidence. It is with that in mind that I thought It necessary, now that such evidence had been given in this case, to reduce my ruling to writing with the reasons why the step I take should be taken.
A witness for the prosecution has testified inadvertently or otherwise, that the accused said he was in jail previous to the date of the commission of the offence for which he was being tried. The character of the accused is not an issue. There may be no more powerfully prejudicial evidence of the character of an accused person during his trial than the revelation that he has been to jail before the date of the offence for which he is then being tried; and such testimony is evidence of bad character. One would assume that unless the evidence of the rape in a rape trial is totally unbelievable, it is unlikely that a jury trying the accused will acquit him if they learnt that he has previously been to jail for rape.
Section 32 of the Evidence Act provides:
“32. In Criminal proceedings evidence may be given of the good character of the person accused, but evidence may not be given of his bad character, unless witnesses have been called or questions have been asked to show that he bears a good character.”
Section 33 of the said Act provides special rules with reference to the giving of evidence of the previous convictions of an accused. The facts of this case and the conduct of the trial so far do not show that this case falls within those special rules.
The effect of these two sections is that the evidence of the bad character of an accused person is not admissible except in certain circumstances which do not arise in this case.
Section 39 of the said Act provides as follows:
“39. Save as in section 37 of this Act mentioned, evidence of character shall be confined to general reputation only, and shall not relate to particular acts of good or bad conduct.”
Section 37 relates to rape cases. This is a case of murder.
This local statutory position is to be viewed, as it has always been viewed by the courts in this jurisdiction, in the light of what has developed and is developing on the same subject in the English Courts.
In the generally accepted authoritative treatise on evidence, Phipson on Evidence, the authors in dealing with this matter of the bad character of an accused states, even in connection with the beginning of a trial, that:
“In opening a case to the jury, no communication must be made, in criminal cases, if any previous conviction against the accused unless it is an ingredient of the case.”
Phipson's authors go on to state that “generally, previous convictions are not admissible against the accused until after a verdict of guilty” and mention that there is a rule of evidence that previous convictions are only provable after verdict.
The authors state when the courts have also ruled that such evidence of previous convictions may be rendered. The court ruled exceptions do not cover the facts of this case and the way it has proceeded. I do not think it necessary to cite any specific case.
Courts have always taken the reference to the fact that the accused was at an earlier time in jail as powerful evidence of his previous conviction for soma offence or other or, at the least some testimony of bad character.
Phipson on Evidence makes further reference to the effect of evidence of previous convictions or disposition to commit crime in the following statement gathered from several decided cases. Phipson states:
523. “centuries of experience of the jury system have clearly shown that once it is revealed to a jury that the accused has a previous criminal record his case is prejudiced in their eyes adversely out of all proportion. Further, if a man has been punished for his previous crimes, it is manifestly unfair that in every future trial (upon charges of which he may of course be quite innocent) his whole past career should be raked up. Similar considerations apply to previous conduct on the part of the accused which falls short of a conviction but shows or tends to show a disposition to commit crime. Thus, within certain limits, the accused must be given protection, if his previous character renders this necessary.”
525. “Thus, in criminal cases, to prove that the defendant committed the crime charged, evidence may not be given either that he: (1) bore a bad reputation in the community; or (2) had a disposition to commit crimes of that kind; or (3) hard on other occasions committed particular acts of the same class evincing such a disposition. Where such evidence is inadvertently given, it is best to start a fresh, but it may be sufficient for the judge to warn the jury to disregard that evidence.
Again, there is no need to cite any specific case.
Towards the end of the second day of this trial, yesterday, one of the last witnesses for the prosecution was a policeman Charles Johnson. It appears from the depositions that, in answering this policeman when he was cautioned, the accused said that the child of whom he is alleged to have caused the death by setting fire to the house in which the child slept and was the young daughter of the wife of the accused, was not his child because she was conceived while he “was in jail”.
There was earlier evidence from the wife that she and her husband, the accused, were apart for about (3) years and this young child had indeed been conceived in an illicit affair she had with a man other than her husband. She too made reference in the preliminary inquiry to the fact that the separation was because of the husband being in jail. When she gave evidence here however, I warned against the reference to the accused, her husband, being in jail and there was no evidence of that given by her.
When the police witness came to the part where a reference to the accused being in jail would be made I warned of the need for care as to what could develop. No one took any particular notice of the warning. I can only surmise that it was thought the reference to the accused being in jail way not sufficiently serious to cause the concern I adumbrated.
Charles Johnson went on to state that the accused, in reacting to his cautions in relation to the death of the child said “that ain't mine, my wife had her while I was in jail”.
In the English case of R v. Featherstone [1942] 2 All E.R. 672 the court of Criminal Appeal had to deal with an inadvertent reference to the accused being in jail.
The head note of the report states:
“During the course of a trial for larceny and receiving stolen property, counsel for the prosecution asked a witness if she knew the appellant was, and she replied, “Yes, I was told he had been in prison once.” The judge directed the...
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