ULV 4622- LAW OF EVIDENCE II

TUTOTIAL 1 ( WEEK 2)

1. Define “Similar Fact Evidence”.

2. Explain the forms of SFE with examples.

3. What is the general rule on the admissibility of SFE?

4. Give arguments for and against excluding SFE.

5. Explain the decision in MAKIN V AG FOR NEW SOUTH WALES (1894) AC 57

1. Define Similar Fact Evidence

SFE is the evidence of facts which are similar but not the same as the present charge and are
unconnected to the present. As a general rule, such evidence is not admissible.

SFE is the evidence adduced in court to prove that the accused has previously guilty of
misconduct other than that charged; and such evidence of previous misconduct by the accused is
made admissible to prove guilt by virtue of them being similar to that of the offence of which the
accused is currently being charged.

2. Forms of SFE with examples.

1. A previous conviction for a similar offence

2. A previous charge for a similar offence

3. A previous misconduct similar to the present charge

4. Factual background (Helen Bailey case / R v Smith brides in the bath case)

5. Accused is charged in a single proceeding for several count. If there is similarity between 2
counts, SFE may be introduced between the 2 counts (Lee Kwang Peng)

3. General rule on the admissibility of SFE

GR= SFE is not admissible

Makin v AG for New South Wales

Facts: a husband and wife were charged with murdering a baby they were fostering and burying
it in their backyard. There were evidence of bodies of other babies found buried in the backyard
of their previous residences was offered as evidence. The similar fact evidence was rendered
admissible not because it rebutted the defence of accidental death, but also to show a system of
modus operandi in adopting the children for money and then murdering them.

Lord Hershell: (1st limb)

It is undoubtedly not competent for the prosecution to adduce evidence tending show that the
accused has been guilty for criminal act 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.
2nd limb – SFE can only be admitted if it is both relevant and probative value outweighs the
unfair prejudicial effect

Malaysia

Rauf bin Haji Ahmad v PP

Wong Kok Wah v PP

Fact: Accused was charged with being in possession of uncustomed goods, the evidence of a
prosecution witness that he had been arrested for carrying certain goods of the accused which
were “headache powders”, similar to those in respect of which the accused was charged, was
held SFE inadmissible as it is evidence tending to suggest that A had committed a similar
offence on a different occasion and it merely showed that the accused was likely to have
committed the offence charged.

Poon Soh Har & Anor v PP

Where the accused persons were charged with drug trafficking, the fact that they had trafficked
heroin in the past did not mean that they were trafficking when arrested. Evidence of the past
merely raised suspicion that they were having heroin for the purpose of trafficking but that did
not prove that they did in fact traffic on the day in question. It was held that the admission of the
evidence of past criminal acts could not justified on any ground and was therefore, rejected.

4. Argument for and against SFE

Against SFE:

1. the risk that the trial judge may conclude that A is guilty just because he has committed
similar offences in the past without properly evaluating the evidence in the present charge

2. it is to guard against this risk that SFE is excluded as GR

R v Bond

1. Prejudicial effect (pre judging that the A is more likely to commit the offence because of his
previous conviction)

2. Unfair
3. Natural justice – A will only be prepared to answer the current charge

** Exclude for the interest of justice

Argument for SFE

- The law has evolved and has created certain exceptions to the general rule against SFE in
the interest of justice. Where these exceptions apply SFE will be admissible
- SFE admissible when probative value outweighs the prejudicial effect

Admissiblity of SFE under statutory and common law exception can be seen in the case of
Junaidi bin Abdullah, on the principle laid down in Makin & Boardman, we are of the opinion
that adducing SFE is justifiable on the grounds of relevancy & necessity to rebut any defence
which would otherwise be open to the accused, in addition to those under S.14, 15.

Statutory

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

S.14 / Facts showing the existence of any state of mind … refd Teo Koon Seng v R , PP v Teo
Ai Nee & Anor- it was held that a lapse of ten years between the two instances of possession of
infringing goods rendered inadmissible the fact of previous possession , X v PP

S.15 when there is question whether an act was accidental or intentional or done with particular
knowledge or intention …

3 requirement under Section 15:

there must be an issue as to whether the act was accidental or intentional or done with a
particular knowledge or intention, that issue must form part of a series of similar occurrences, in
all those similar occurrences the person doing the act must have been concerned.
Rauf Hj. Ahmad v. Public Prosecutor stressed that (in addition to the above condition), the facts
sought to prove must also be directly connected with the offence charged so much so that it
forms part of the evidence upon which it is proved.

Section 14& 15 should be read together.

Common law

Makin / Boardman / DPP v P test

1. Makin

Specific purpose test : SFE will only be admitted to rebut the defence of accident, to show the
modus operandi, to rebut any other defence

2. Boardman – did not overrule Makin, reformulated the test

SFE doesn’t depend on specific categories under Makin, a high degree of relevance will be
required. The evidence is so highly relevant that to exclude it would be an affront to common
sense. A strong degree of probative force is required. Such a probative force is derived where
there is a striking similarity. The similarity is so striking that when judged by experience or
common sense it could not arise from pure coincidence

PP v Veeran Kutty

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.
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.

3. DPP v P

Probative value outweighs the prejudicial effect but striking similarity is not a prerequisite for
SFE evidence to be admissible.

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.