SLIDE 3

In the late 19th century, children being born out of wedlock would commonly be given to
couples who are willing to care for them in exchange for a small fee. Those couples are
usually called as baby farmers. The appellant in this case, Mr and Mrs Makin are the baby
farmers.

What happened in this case is that the Makins took the child in, but the money given to raise
and care for the child was insufficient. The child was eventually found buried in a drain in the
backyard of a neighbouring property. The Makins were charged with murdering the child.

The Makins argued that they had taken in the child but had given him back and did not know
what happened thereafter. However, it was soon discovered that there were in fact 12 other
babies buried in neighbouring properties connected to the Makins' house. As such, the
prosecution had adduced the aforementioned evidence that 12 babies had been received by
Mr and Mrs Makin from other mothers and their bodies were found buried in the garden. In
the end, Mr Makin suffered the death penalty by hanging, while Mrs Makin was given life
imprisonment.

The Makins appealed. They contended that the evidence of 12 other babies, as similar fact
evidence, was not admissible to the court.

Basically, similar fact evidence is factual evidence of past misconduct of the accused for the
purpose of inferring that the accused did commit certain criminal act.

SLIDE 4

Hence, in this case, the main issue considered by the court is on the charge of murder of the
one child, could evidence of the bodies of 12 babies buried in neighbouring properties be
admitted.

SLIDE 5

As provided by Lord Herschell, the general rule is that propensity evidence is prohibited. His
Lordship stated:
It is undoubtedly incompetent 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.

In short, it means that the evidence which shows that an accused has been charged for his past
crimes or he is at the highest possibility to perpetuate the sort of wrongdoing charged is
inadmissible to conclude that the accused did commit the offence which he is currently
charged.

SLIDE 6

However, two exceptions to the general rule were established in this case. In summary,
similar fact evidence is admissible if it is:

i. To show that the current misconduct was designed and rebut the likelihood of it being
accidental (in other words, to show that the accused acted intentionally), or
ii. To rebut the defence raised by the accused.

In this case, the similar fact evidence falls within the exception because it was brought in to
rebut the defence raised by the accused that “they actually wished to adopt and maintain the
child and the death of child was accidental or coincidental”. Such similar fact evidence has
showed a systematic course by the murderer to prove that the baby was deliberately killed. In
other words, this similar fact evidence was brought in to prove the mens rea of the Makins.

Therefore, the court held that this similar fact evidence is relevant to the issue to be tried by
the jury and it is admissible to the court.

The appeal is dismissed.

S.11(b)

Facts not otherwise relevant are 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

- Arguably, we can say that S.11(b) admitting similar fact evidence. Also, there are
several Malaysian Courts admitted SFE under S.11(b).
- In my humble opinion, S.11(b) contradicts the scheme of the Evidence Act which
imposes safeguards for certain types of evidence such as similar facts (14-15),
hearsay (17-41), opinion of third person and etc. If similar fact evidence is
admissible by virtue of S.11(b), this would mean that all other evidence should be
admissible under this section, which is so general that it literally encompasses all
evidence that makes the non-existence or existence of any relevant fact in issue highly
probable or improbable? This would make the remaining sections of Part 1 of the
Evidence Act redundant.
- In my view, similar fact evidence should not fall under the ambit of S.11(b) but S.14
and S.15 of EA.

Prof Jal: S.15 is more appropriate in this sense.