evidence-similar fact evidence

Similar fact evidence

BOARDMANPRINCIPLE

DPP v PPRINCIPLE

MAKINPRINCIPLE

SIMILARFACT

EVIDENCE

Similar fact evidence• Similar fact evidence concerns circumstances in which an accused person's

previous misconduct, other than that which gives rise to the offence charged, is made admissible to prove guilt, by virtue of them being similar to the offence.

• The similar fact evidence rule has long been accepted by judges to be applicable under sections 11(b), 14 and 15 of the Evidence Act 1950 for ease of understanding, these provisions are reproduced below.

• Section 11 provides facts not otherwise relevant are relevant (b) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

• Section 14 provides facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

• Section 15 provides when there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

Similar fact evidence• Under section 14 of the EA 1950, the general principle of law is that all

evidence of res inter alios actae is not admissible.

• This is a technical phrase which signifies acts of others. Evidence excluded under this rule are the acts and declarations of a party with a third party, on the ground that they have nothing to do with the present dispute. In criminal cases such evidence of previous acts or conduct not covered by the charge for which the accused is being tried is not admissible.

• This rule was spelt out in clear terms by the Privy Council in Makin v AG for New South wales [1894] AC 57. In citing that case with approval, Thomson J said in Rauf Bin Haji Ahmad v PP [1950] MLJ 190 that “The general principle as to this type of evidence is contained in the following much quoted passage from the judgment of Lord Herschell, L.C., in the case of Makin v Attorney-General for New South Wales (1894) AC 57 at p 65 "It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried."

Similar fact evidence• The reason for the exclusion of such evidence is to be found in the following passage from

the judgment of Kennedy J. in the case of Rex v Bond (1906) 2 KB 389 at p 397:- "It may be laid down as a general rule in criminal as in civil cases that the evidence must be confined to the point in issue: ... When a prisoner is charged with an offence it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment which alone he can be expected to come prepared to answer. It is therefore a general rule that the facts proved must be strictly relevant to the particular charge and have no reference to any conduct of prisoner unconnected with such charge."

• An illustration of the general rule where evidence was erroneously admitted to suggest that the accused had committed a similar offence on a different occasion is provided by the case of Wong Kok Wah v R [1955] MLJ 46 where in this case at the trial of the appellant for being in possession of uncustomed goods, evidence was given by prosecution witness that he had been arrested for carrying certain goods of the appellant which were Headache powders similar to those in respect of which the appellant was charged. This witness stated that the appellant gave him the goods when he was going off duty and that the appellant asked him to take the goods to a rubber go down and wait for him. The witness said he was arrested before he could reach his rendezvous (meet). Held: (1) the evidence of the witness was clearly evidence tending to suggest that

the appellant had committed a similar offence on a different occasion; (2) such evidence was not admissible as it went to show merely that the appellant was likely to have committed the offence charged and therefore should not have been admitted.

Similar fact evidence• In Yong Sang v PP [1955] MLJ 131, where this was an appeal against the conviction

of the appellant on a charge of having terrorist documents under his control in contravention of reg. 6D(1) of the Emergency Regulations. The appellant was driving a lorry when it was stopped by a party of home guards. There were 11 people altogether in the lorry including the regular driver of the lorry. The lorry was searched and in the seat of the driver were found two letters which were terrorist documents within the meaning of the Emergency Regulations. The appeal was brought on two main grounds: (a) the evidence was wrongly led that the appellant had been seen on two occasions in association with terrorists, and (b) there was no proof that the appellant knew of the presence of the terrorist documents in the lorry.

• Held: (1) the evidence of association with the terrorists tended to show that the appellant was the sort of person who was likely to commit the offence and was therefore wrongly admitted.

• In Balasingham v PP [1959] MLJ 193 “Evidence that the appellant "caused trouble to others" is evidence that he is a person likely to have committed the offence, and is irrelevant and inadmissible”. In Chew Ming v PP [1960] MLJ 11 “Theoretically no offence is committed except by a person who by reason either of psychological or moral deficiency is likely to commit offences. In that sense any evidence as to character or disposition has at least some limited probative value. However, the accepted rule of law is that such general evidence is not admissible, and to make any evidence of disposition admissible there must be some particular connection between it and the identity of the person who has committed a crime”.

Similar fact evidence• In Poon Soh Har v PP [1977] 2 MLJ 126, Held: (1) the

evidence in respect of past criminal activities of the appellants was inadmissible; (2) the evidence in this case was inadequate to convict the appellants on the charge they were tried;

(3) to possess a drug for the purpose of trafficking is something totally different from the act of "trafficking" as defined in section 2 of the Act; (4) there was no evidence on which the second appellant could have been convicted of any offence under the Act. As for the first appellant, he was guilty of the offence of having in his possession 55.2 gms of heroin in contravention of section 6(a) of the Act. He was sentenced to 10 years' imprisonment.

Similar fact evidence• Exceptions to the general rule• Generally, the evidence of bad character of the

accused is inadmissible because it has prejudicial effect. However, there is an exception to the general rule because it is directed at the probative of the guilt. Under the Act there are three exceptions to the general rule. These three exceptions are contained in sections relating to what is commonly referred to as “similar fact evidence”. They are section 11 (b), 14 and 15 of EA 1950.

Similar fact evidence• The Makin’s case• Makin v. Attorney General for New South Wales

(1894) AC 57 is a famous decision of the Privy Council where the modern common law rule of similar fact evidence first originated. A husband and wife were charged with murdering a child they were fostering and burying it in their backyard. During their trial evidence of twelve other babies found buried in the backyards of their previous residences was offered as evidence. The appeal was based on whether this evidence was admissible or whether it was unfairly prejudicial to their defence.

• Lord Hershell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances. Their Lordships of the Privy Council laid down the following two principles namely:

Similar fact evidence• The Makin’s case• “It is undoubtedly not competent for the

prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried”. and

Similar fact evidence• The Makin’s case• “On the other hand, the mere fact that the evidence

adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other”.


Makin’s case

SFE isinadmissible

SFE isadmissible

Prejudice Relevant

1st Limb 2nd Limb

Categorization approach

Similar fact evidence• Evidence of similar facts can only be admitted if it is both relevant and probative to a

degree that it substantially outweighs the unfair prejudicial effect. The Makins approach was applied in the Malaysian cases below:

• X v. PP [1951] MLJ 10 where the appellant in this case was charged and convicted under Regulation 4C(1) of the Emergency Regulations, 1948. The case for the prosecution was that the appellant, who was a tapper on an estate in Johore, on or about the 14th October, 1950, went to the bungalow of a member of the staff of the estate, and told him that the bandits came and wanted some money from him, that the appellant first asked for 10% of his salary and, when told by him that he had no money, the appellant then asked him to give at least $ 10, and that when he refused to do so the appellant insisted that he should give $ 10 on pay-day. Evidence was led by the prosecution to show that the appellant consorted with bandits who visited the same estate on the 27th October, 1950, and that during their visit he aided and abetted them. This evidence was admitted after a submission by the Deputy Public Prosecutor that it was admissible under section 11(b) of the Evidence Ordinance, 1950, as going to show that the money demanded was, in fact, intended for the use of the bandits. On hearing of this appeal Mr. Nair, on behalf of the appellant, submitted that the evidence as to the latter incident was inadmissible as it tended to show that the accused had been guilty of a criminal act other than the one covered by the charge, that the two acts did not form part of the same transaction and that an interval of fourteen days is too remote, alternatively, "that if the evidence was admissible on any technical ground it should not have been admitted because it was too prejudicial to the accused".

Similar fact evidence• While it is not competent for the prosecution to adduce evidence tending to show that the

accused has been guilty of a criminal act other than that covered by the charge, for the purpose of leading to the conclusion that he is a person likely from his criminal conduct to have committed the offence for which he is standing his trial, the mere fact that the evidence adduced tends to show the commission of another offence does not render it inadmissible if it be relevant to an issue before the Court, and it may be so relevant if it is indicative of a state of mind, such as intention.

• Under section 11 of the Evidence Ordinance facts not otherwise relevant are declared to be relevant "if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable", and section 14 of the Ordinance provides that facts showing the existence of any state of mind, such as intention, are relevant when the existence of any such state of mind is in issue or relevant. In order to make out their case, the prosecution had to satisfy the Court, inter alia, that the money demanded by the appellant was intended for the use of persons who intended or were about to act or had recently acted in a manner prejudicial to public safety or the maintenance of public order.

• In our opinion, the evidence which was led as to the conduct of the appellant during the incident which took place on the 27th October, 1950, makes it highly probable that his statement regarding his object in making the demand correctly represented his intention at that time. We are also of the opinion that his conduct on the occasion of the second incident was relevant as indicating that his intention as expressed at the time the demand was made was in fact his intention, regarding the use to which the money was to be put. In our view, therefore, the evidence complained of by Mr. Nair was admissible under section 11 and also under section 14 of the Evidence Ordinance, and the appeal is accordingly dismissed. Evidence which is indicative (pointing) of the state of mind is admissible under sections 11(b) and 14.

Similar fact evidence• Evidence of similar facts can only be admitted if it is both

relevant and probative to a degree that it substantially outweighs the unfair prejudicial effect. The Makins approach was applied in the Malaysian cases below:

• R. v. Raju & Ors. [1953] MLJ 21 where this appeal raises an important point as to the principles which should guide the Court in admitting evidence of similar facts. The 1st and 2nd appellants appealed against their conviction in the lower Court on two charges of corruption and the 3rd appellant against his conviction of abetting these offences. There was no evidence that the first two appellants received the sums of money as charged. There was some evidence that the 3rd appellant received the moneys but no evidence that he passed them to the first two appellants. However evidence was admitted that on different occasions certain persons had paid money to the 2nd appellant. The learned President considered these similar facts as relevant and admissible because they showed system (Coordination).


• The Boardman case: Reformulation of the rule in Makin’s case

• In Boardman v DPP [1975] AC 412, the House of Lords reformulated the rule relating to the admissibility of similar fact evidence. In this case the appellant, the headmaster of a boarding school for boys, was charged with, inter alia, buggery (The English term buggery is very close in meaning to the term sodomy) with S, a pupil aged 16, and inciting H, a pupil aged 17, to commit buggery on him. At the trial, the judge ruled, and directed the jury, that the evidence of S on the count concerning him was admissible as corroborative evidence in relation to the count concerning H, and vice versa. The jury convicted the appellant, and his appeal against conviction on the counts concerning S and H on the ground, inter alia, that the judge's ruling as to the admissibility of the boys' evidence had been wrong (was dismissed by the Court of Appeal). On appeal by the appellant:-

• Held, dismissing the appeal, that there were circumstances in which, contrary to the general rule, evidence of criminal acts on the part of an accused other than those with which he was charged became admissible because of their striking similarity to other acts being investigated and because of their resulting probative force; that it was for the judge to decide whether the prejudice to the accused was outweighed by the probative force of the evidence and to rule accordingly; and that, on the facts of the present case, the judge had been entitled to direct the jury as he had done.

Similar fact evidence• The Boardman case: Reformulation of the rule in Makin’s case• The main similarities in the testimonies of S and H were in the accused’s

approaches towards them: he woke them at night in the school dormitory, spoke in certain tone of voice, invited them to do the act in the sitting room and indicated that he wished to be the passive partner.

• The House of Lords reformulated the determining factor for the admission of similar fact evidence by declaring that the essence of the exclusionary rule is to allow such evidence if it has a sufficient degree of probative force so as to override any prejudicial effect that it might have.

• Lord Cross and Lord Hailsahm proposed that if the evidence is “so very relevant” or “strikingly similar” that to exclude it would be an affront (insult) to common sense, then it should be admitted. Lord Salmon stated “The similarity would have to be so unique or striking that common sense makes it inexplicable (strange) on the basis of coincidence (chance/luck/accident)”. Applying this principle to the facts their Lordships were unanimously of the view that the similarity of the evidence was sufficient to justify the admission. The possibility of prejudice which might arise if S and H had been conspiring against the appellant was unlikely in the circumstances of the case.


Boardman case

SFE isadmissible

Probative value Striking similarity

Similar fact evidence• Malaysian cases adopting Boardman’s principle• 1. PP v Veeran Kutty [1990] 3 MLJ 498 where

two accused and some others took part in a robbery at Batu Gajah on 7 September 1983. They were apprehended outside the town after being chased by police. During the chase they were observed to have been holding a pistol each. When arrested, they were no longer in possession of the pistols. After being interrogated, both accused led the police back to the place where they were arrested and two pistols and 11 rounds of ammunition were recovered. They were subsequently charged under the Internal Security Act 1960 for unauthorized possession of firearms. In the course of the trial the prosecution sought to admit the accused's cautioned statements and the defence sought to introduce evidence of the armed robbery. Both applications were objected to by the respective opposing parties. Held, convicting both accused: Similar fact evidence may be allowed if it has a sufficient degree of probative force to override any prejudicial effect that it might have and that the said sufficient degree would exist if such evidence of similar fact is very relevant as being strikingly similar that to exclude it would be an affront to common sense. The evidence of the armed robbery was therefore admissible.

Similar fact evidence• Malaysian cases adopting Boardman’s principle• 2. Junaidi bin Abdullah v PP [1993] 3 MLJ 217 where the appellant was

convicted for possession of a firearm under s 57(1)(a) of the Internal Security Act 1960 ('the Act') and was sentenced to death. The appellant appealed on the grounds that:

(a) the trial judge was wrong in law in not examining the evidence at the close of the prosecution's case to determine whether a prima facie case had been established by the prosecution and to record his reasons for so finding;

(b) the trial judge was wrong in admitting prejudicial and inadmissible bad character evidence although no objection had been raised by the defence counsel; and

(c) that the government chemist was not competent to give evidence of the serviceability of the revolver as an expert witness.

• Held, dismissing the appeal: Where the purpose of adducing evidence of similar facts or similar offences was justifiable on the ground of relevancy and necessity to rebut any defence which would otherwise have been open to the accused (in addition to those under ss 14 and 15 of the Evidence Act 1950), evidence of bad character was admissible in evidence, provided that the probative value of such evidence outweighed its prejudicial effect. There must be a real anticipated defence to be rebutted and not merely crediting the accused with a fancy defence. Here, the evidence of the physical possession of the revolver by another person during the earlier robbery was vital to the defence and relevant under s 11 of the Evidence Act 1950 to cast a reasonable doubt on the prosecution case that the accused was in possession of the revolver at the time of the arrest. Therefore, the prosecution was entitled to adduce evidence to rebut such a defence.

Similar fact evidence• The DPP v P’s case

• In Director of Public Prosecutions v P [1991] 3 WLR 161 the defendant was tried and convicted of two indictments of rape against his two daughters. The basis of his appeal was that the daughters had colluded in their evidence, and by allowing evidence from daughter to stand in the indictment against the other, the jury had been unduly prejudiced by the cumulative evidence. The defendant argued that the test laid down by the House of Lords in DPP v Boardman 1975, for cross-admissibility of multiple allegations, was that there should be a striking similarity between the offences alleged (as the term `striking similarity' would be understood when considering the admissibility of Evidence. In fact, in this case, the offences, although despicable if they were proved, were `commonplace' rapes with no striking features at all. The House of Lords held that, although `striking similarity' was one of the criteria by which the cross-admissibility could be determined, it was not the only one. Whether the evidence had sufficient probative value to overcome the inevitable prejudice it would create against the defendant was to be determined on the facts of each case. In the present case, the large number of points of similarity between the offences, even though these similarities were not in themselves particular striking, was sufficient that their probative value was very high.

Similar fact evidence• The DPP v P’s case

• Here the House of Lords retreated (move away) from the law laid down in the Boardman case relating to the requirement of striking similarity and said that it was inappropriate to single out striking similarity as an essential element in every case. However, following Boardman, it was held that the essential feature of admissibility of such evidence was that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.

DPP v P’s case

SFE isadmissible

Probative value Striking similarity

Similar fact evidence• Cases that followed DPP v P • PP v Teo Ai Nee & Anor [1995] 2 SLR 69 where Yong Pung How said that

“With the abandoning of the requirement that such evidence should have ‘striking similarity’ in the modern test set out in DPP v P, the test for admissible ‘similar fact’ evidence is that its probative force in support of the allegation that an accused person committed a crime must be sufficiently great to make it just to admit the evidence, and sufficiently great to outweigh any prejudice to the accused in tending to show that he is guilty of another crime.”

• Lee Kwang Peng v PP [1997] 3 SLR 278, 290 where it was stated that the similar facts sought to be adduced need not bear a striking similarity to the facts of the case to warrant admission however the fact must necessarily be probative.

• Tan Meng Jee v PP [1996] 2 SLR 422, 434-435 where it states that the similar facts can be 'similar' but not striking. The more 'similar' the evidence, the more probative. If the possibility of prejudice is higher, then the degree of similarity needs to be correspondingly higher before the evidence is admissible. There is no magic in the term 'similar'. In reality, what is 'similar' enough is only so because its prejudicial effect has been outweighed by the sheer (total) probity of the similar fact evidence.

Similar fact evidence• Note that Singapore Evidence Act has section

2(2) that receives principles of English Common Law, which is absent in the Malaysian Ordinance. If we accept that the Malaysian Evidence Act is a facilitative Act, the courts can readily receives new principles at Common Law. At the moment our courts are stuck at Veeran Kutty and Junaidi. Maybe we can receive the Singapore decisions that endorse DPP v P in the future. Our lawyers have to make our judiciary aware of these new developments.

Similar fact evidence• Similar fact evidence also applies to civil cases• Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1

All ER 763. The plaintiffs owned the copyright of a musical work. The defendants supplied a musical work for use in a television play. The plaintiffs complained that that work infringed the plaintiffs' copyright in their work. The defendants conceded that the works were very similar and that their work had been composed after the plaintiffs', but asserted that the similarity was coincidental. The plaintiffs brought an action for infringement of copyright and procured evidence which indicated that in three other cases the defendants had reproduced musical works which were subject to copyright. The plaintiffs, having given the defendants notice of their intention, sought to adduce that evidence at the trial of the action.

• Held - In civil cases the courts would admit evidence of similar facts if it was logically probative and it was not oppressive or unfair to the other side to admit the evidence. Since the issue in the action was whether the resemblance between the two works was mere coincidence or the result of copying by the defendants, the evidence procured by the plaintiffs concerning the other three cases was of sufficient probative weight to render it admissible…

Similar fact evidence• Similar fact evidence also applies to civil cases

• Hales v Kerr [1908] 2 KB 601. The plaintiff in an action of negligence alleged that he had contracted an infectious disease through the negligence of the defendant, a barber, in using razors and other appliances in a dirty and insanitary condition. In support of his case he tendered the evidence of two witnesses who deposed that they had contracted a similar disease in the defendant's shop: Held that, as the negligence alleged was not an isolated act or omission, but was a dangerous practice carried on by the defendant, the evidence of these witnesses was admissible.

Similar fact evidence• Similar fact evidence also applies to civil

cases

• Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141 where the judge referred to learned authors of Kerr on Fraud & Mistake, 7th Edition, at p. 674 that "Evidence of similar frauds on the part of the defendant committed on other parties in the same manner are admissible in evidence, if they tend to prove the motive or intention which actuated the defendant in the transaction under investigation. In a vast number of cases such evidence is the only means of establishing fraud. ...".