BY: MAZLINA MAHALI

LAW541 – LAW OF EVIDENCE 1

TOPIC 5 – RELEVANCY (SIMILAR FACTS EVIDENCE)

CONTENT

INTRODUCTION COMMON LAW POSITIONSpecific Purpose TestProbative Value TestStriking Similarity Test MALAYSIAN POSITIONSection 11(b)Section 14Section 15

INTRODUCTION

The general rule is that, facts which are relevant merely from their general similarity to the main fact, and not from specific connection therewith are not admissible.

For example, in criminal trial, it is now a trite law that the court should not infer that simply because a person has committed a similar act, therefore he must have done it again.

The inadmissibility of such evidence is referred to as similar fact evidence, and forms one of the four great canons of the law of evidence at common law (others being character, opinion and hearsay).

Like all general rules, this rule also provides an exception to its admissibility.

Similar fact evidence is evidence that a party (especially the accused) has on previous occassions misconducted himself in a way similar to the misconduct being alleged against him in the proceeding before the court. The evidence frequently takes the form of a previous conviction.

In general, the prosecution may not offer similar fact evidence as part of its case unless it can be shown to be relevant to an issue before the judge, for example by rebutting some defence advanced by the accused.

Thus, if a person is charged with fraud contends that he was honestly mistaken, the fact that he has committed similar frauds on previous occassions may be admissible. The judge may however, in his discretion exclude otherwise admissible similar fact evidence if he considers that it would have an adverse effect on the fairness of the proceeding.

For example in the case of Noor Mohammed v The King the accused was tried for the murder of his wife by poisoning her with potassium cyanamide. The conviction was based on the evidence that some two years earlier his previous wife has died in the same way. The Privy Council held that this evidence was not relevant to prove the charge against him of murdering other woman. The Privy Council stated:“If it was not relevant it was at the same time highly prejudicial... By looking at the previous history of criminality of the accused, the court may blindly jump to the conclusion that the accused should be guilty... Evidence of the accused having committed crimes other than that with which he is charged is not admitted.”

COMMON LAW POSITION – The Specific Purpose Test

The phrase similar fact evidence now is popularly understood to mean all evidence, which shows that on some other occasion the accused has acted in a similar manner.

The leading case on point where similar fact evidence was admitted is Makin v AG for NSW [1984] AC 57. The Makins were charged with the murder of a child who had been left with the Makins by the mother. The child’s body was discovered in the Makins garden and after searches in the gardens of other houses they had lived in, several other babies’ bodies were found. The Makins argued that the death of the baby was an accident and the prosecution wanted to call evidence of other bodies, which had been found to show that although one death could be explained away as an accident, the death of a dozen or so could not be.

The Privy Council upheld the judge’s rulling that the evidence is admissible stating that“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 the conclusion that the accused is a person likely from his conduct or character to have committed the offence for which he is being tried. 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 relvant to an issue before that 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.”

In addition to those mentioned by Privy Council in Makin’s case, further categories were created for evidence showing system; evidence designed to rebut the defence of innocent association or mistake; or evidence adduced to show identity, and many others. Whenever evidence could be fitted into one of these categories it was held to be admissible.

The problem with the Makin’s test is that, to admit similar fact evidence, the party must fit the similar facts in one of the categories / compartments.

Arguments were adduced that the party may introduce new category if they want to adduce similar fact evidence, as long as there is a specific purpose for introducing such evidence. However, when is this going to stop?

COMMON LAW POSITION – The Probative Value Test

The counter-argument in Harris v DPP [1952] 1 All ER 1044 states that, it is not possible to compile an exhaustive lists of similar facts evidence.

The right or correct approach is to look at whether the similar fact, taken together with other evidence, would strengthen or raise suspicion that the accused could have committed the offence or would point so strongly to his guilt.

The Makin’s test of specific purpose has been criticized inBoardman V DPP [1975] AC 421.

The facts were that Boardman was a headmaster at a boys’ school in Cambridge. He faced charges in relation to two of his pupils, S and H. Each boy said that Boardman had visited him late at night in their dormitory. He then invited each to his room where he suggested that the boy took the active part in the act of buggery.

With regard to S, the charge was that of buggery itself, with regard to H, it was incitement. At trial, the prosecution was allowed to have both counts tried together. However, the accused argued that the jury would be unduly prejudiced by hearing these two similar allegations and that there should be separate trials.

The judge dismissed the application for separate trials and directed the jury that they were entitled to take into account S’s evidence when deciding the count with regard to H and H’s evidence on the S count.

The House of Lords had to decide whether the judge was right. It was held that the evidence of the accused’s misconduct was admissible on each count, provided the judge could rule out the possibility of the boys getting together to concoct the story and he could rule out the possibility of stories being a coincidence.

The House of Lord also held that the facts of present case were on the borderline of admissibility. The mere fact that each boy said that they were invited to play the active part did not by itself appear to be sufficiently remarkable that it could be said that the possibility of coincidence could be ruled out. But, there were sufficient other similarities between the two boys’ stories that there was no real likelihood of coincidence.

Boardman’s decision had effected a revolution in thinking about the problems of similar fact evidence. The 'categories' or 'pigeon-hole' approach was decisively rejected. The question of admissibility of prior acts of misconduct was to be determined by the degree of probative force possessed by that evidence, and the extent to which it would unfairly prejudice the right of an accused person to a fair trial. Several Lords in this case stressed that the admissibility of similar fact evidence should turn on its cogency rather than its category.

Lord Wilberforce wrote: 'The basic principle must be that the admission of similar fact evidence ... is exceptional and requires a strong degree of probative force.’

For his part, Lord Cross, quoting Viscount Simon in Harris v DPP, asserted that it is impossible 'to compile an exhaustive list of the sort of cases in which 'similar fact' evidence ... is admissible'. According to Lord Cross, the admissibility decision should turn on the degree of probative value.

Like Lord Cross, Lord Hailsham declared that the admissibility of similar fact evidence could not be governed 'by categorization’ or ‘simplistic labels.’ His Lordship added that the probative value of similar fact evidence depends upon the context in which they are tendered, the task which they are expected to perform, and the assistance which they receive from other evidence given before or after they are received.

Lord Salmon declared that there is a sufficient degree of probative value to warrant admitting similar fact evidence when the similarity between the stories testified to by the alleged witnesses to the charged and uncharged crimes is 'so unique or striking that common sense makes it inexplicable on thebasis of coincidence'.

COMMON LAW POSITION – The Striking Similarity Test

The expression 'striking similarity' was coined by Lord Goddard CJ in R v Sims [1946] 1 All ER 697. In that case, the accused had been charged in an indictment with six counts alleging homosexual offences involving four men. Each man give evidence that the accused had invited them to his home and there committed the offence against them. The accused admitted that the men had come to his house but said that it was for an innocent purpose.

The Court of Appeal held that the evidence on one count was admissible on the other counts because 'the acts they described bear a 'striking similarity'.

This dictum was approved by the House in Boardman. Lord Wilberforce held that, ‘this probative force is derived, if at all, from the

circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity.

The same idea is sometimes expressed by saying that the various incidents must show an 'underlying unity', 'striking resemblances,‘ 'unusual features', 'uniquely similar' or 'system.'

It should be pointed out that to be of significance, the similarity has sometimes to be dissimilar from any other person's criminal activities and peculiar to the accused.

The same idea were sometimes expressed by various other cases saying that the various incidents must show an 'underlying unity', 'striking resemblances,‘ 'unusual features', 'uniquely similar' or 'system.'

It should be pointed out that to be of significance, the similarity has sometimes to be dissimilar from any other person's criminal activities and peculiar to the accused.

The difference between 'mere general resemblance' and 'striking similarity' is one of degree. The fact that an extrinsic event is of the same legal type as the one in question is insufficient. There must be specific similarity in procedure, circumstances or mode of execution.

For example in R v Smith which is famously known as the ‘brides in the bath’ case. The accused was charged of one murder but evidence was offered of two more. The admission of this evidence followed similarly from the improbability that three different women with whom the accused had gone through a form of marriage, and who had made financial arrangements from which he would benefit, had all drowned in the bath by accident shortly during their honeymoon.

The Court of Appeal in R v Scarrot however, had warned that too much importance should not be attached to this label.

Lord Mackay in R v P made it clear that the presence of a striking coincidence is not the universal test for the admissibility of similar fact testimony.

Quoting extensively from the speeches in Boardman, Lord Mackay stressed that it was wrong 'to single out "striking similarity" as an essential element in every case'. The judge has simply to consider whether the probative force of the other misconduct is 'sufficiently great to make it admissible evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime'.

In R v Gurney, the question was did the accused intend to rape or did he intend to steal? The issue arose out of whether a previous conviction for a similar offence, committed in 1987, should be admitted. The present incident occurred seven months after release from the prison sentence imposed for the earlier offence. The prosecution contended that the jury were entitled to hear of it to enable them to draw the correct inference which was that he had entered the flat with intent to rape. The previous offence concerned a woman waking to the sound of breaking glass. She went out of her bedroom door to find the accused standing in front of her. She recognized him as a neighbour. He started to attack her, and when her children disturbed him by screaming, he produced a knife and then ran out. Nothing was stolen from the house.

The prosecution relied on seven factors in support of its application:(1) both violent intrusions occurred at night;(2) both women were believed to be living alone;(3) the accused lived nearby in both cases;(4) in both he wore a leather jacket;(5) he carried a weapon;(6) he did not run away when confronted by the householder; and(7) although he was in the house for what was, in burglarious terms, a substantial period of time, nothing was taken, nor was there any evidence of an attempt to steal.

The judge, in deciding to admit the evidence, referred to the influencing similarities as: (i) the presence of the weapon; (ii) single women whom he knew lived alone; and (iii) a delayed period whilst he was in the house with nothing stolen. He was satisfied that the evidence was relevant to the issue of the accused's intention.

On appeal, it was contended that the evidence was more prejudicial than probative and should not have been admitted. The Court of Appeal referred to R v P and held that whether the evidence had sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree. The court was satisfied, applying that test, that the evidence was admissible as potential proof of Gurney's intent when he entered the flat.

COMMON LAW POSITION - Conclusion

Thus, it is submitted that the true view is as follows:

(a) any 'similar fact' evidence must pass the test of 'positive probative value' before it can be admitted;

(b) if the 'similar facts' are 'strikingly similar' the test in (a) will likely, but not necessarily, be passed; and

(c) 'similar facts' may not be 'strikingly similar' to the facts in issue and yet still pass the test in (a).

MALAYSIAN POSITION

Evidence of past criminal activities is not admissible if it is not relevant and merely shows that the accused is the sort of person who is likely to have committed the offence for which he is charged – Poon Soh Har & Anor v PP [1977] 2 MLJ 126 – In this case, the fact that the appellants had trafficked in heroin in the past did not mean that they were trafficking when arrested. Evidence of trafficking in heroin in the past merely raised the suspicion that they were having the heroin for purposes of trafficking but did not prove that they did traffic on the day in question.

Refer also Yong Sang v PP [1955] MLJ 131

MALAYSIAN POSITION – Section 11 (b)

In Malaysia, evidence of similar facts is governed under Section 15. However, in some instances, certain types of similar offences or acts may be admissible under Section 11 and Section 14.

In RV Raju & Ors v R [1953] MLJ 21, 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. On appeal, the court discuss the admissibility of similar facts under the Evidence Act 1950. The court also added that since there were no direct evidence to implicate the 1st and 2nd appellants, the conviction against them should be quashed and the court ordered a retrial for the 3rd appellant.

In Abubakar Ismail v R [1954] 1 MLJ 67, the appellant, an Assistant Licensing Officer, was convicted on 2 charges with making a false statement for the purpose of obtaining the grant of a driving licence. In each case the application form was endorsed by the appellant to the effect that he had seen the applicant's Federation driving licence, which thus exempted the applicant from the necessity of passing a driving test in Singapore. Evidence to show similar endorsements by the appellant was produced. One of the grounds of appeal was whether such evidence of similar acts was admissible.

The court in admitting the evidence, referred to Section 11(2) — "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.”

The fact in issue was whether, upon the dates referred to in the charges, Federation driving licences were produced to the appellant or not. Does the fact that on the 8 previous occasions the appellant made similar endorsements without any Federation driving licence being produced make it "highly probable– that no Federation driving licences were produced upon the 2 dates which are material to these charges? Or does it merely tend to prove that the appellant, having done this before, is the sort of man who would probably do it on the 2 occasions charged.

The court held that the evidence of similar acts in this case went far beyond showing that the appellant, having committed similar acts previously, was a person who was likely to have committed the 2 acts with which he was charged, and that the evidence of the previous 8 cases was relevant to the issue which was before the Court.

Refer also to Ismail v Hasnul; Abdul Ghafar v Hasnul [1968] 1 MLJ 108 and Nasib Singh v Jamilah [1972] 1 MLJ 255

MALAYSIAN POSITION – Section 14

Under Section 14, facts showing existence of any state of mind or 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.

It is to be noted that both Section 14 and 15 must be read together in the context of the law of evidence relating to similar fact evidence.

Section 15 is an extension of Section 14 and thus is wider in its application. The important distinction between both the sections is that under Section 15, the fact sought to be proved must form part of a series of similar occurrences and Section 14 is not restricted in this way.

Under Section 14, the facts made relevant are:a. Facts showing existence of any state of mind such

as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person when the existence of any such state of mind is in issue. (Illustration (e) to (j), (o) and (p) deal with intention; (a) to (d) deal with knowledge; and (n) with negligence and knowledge)

b. Facts showing the existence of any state of body or bodily feeling when the existence of any such body or bodily feeling is in issue. (Illustration (k), (l) and (m) deal with bodily feeling.

Explanation 1 to the section prescribes that a fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists not generally but in reference to the particular matter in question. Thus, the facts that may be admitted under the section are restricted to those that have an immediate reference to the facts in issue.

Illustration (a), (b), (c), (n), (o) and (p) provide example of the restriction placed on the section by this explanation.

Refer to PP v Teo Ai Nee & Anor [1995] 2 SLR 69

“Explanation 1 to s 14 would have required the appellant to prove that the state of mind existed not generally but in reference to the particular matter in question. The particularity required was very high. Illustration (a) could not assist the appellant's case because it required that the accused be in simultaneous possession of subject-matter of the previous charges as well as the subject-matter of the present charge. Here, there was a lapse of ten years between the two instances of possession of infringing goods. Illustration (c) required the subject-matter of the previous complaints to be the same as the present charge. But the sound recordings in the previous charges and that for the present charge were not the same. Illustration (o) demonstrated how particular and specific this state of knowledge should be. This was not satisfied on the facts, as was previously explained.”

Explanation 2 provides that previous commission of offence is relevant under within the meaning of this section and the previous conviction of that person shall also be relevant. Section 54(2)(a) must be read together with this explanation.

See illustration (b) for example.

Section 14 is also applicable to civil cases where illustrations (c) – (g), (k), (m) and (n) relate to civil matters.

Refer to Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1 All ER 763 – in civil cases, the courts will admit of similar facts if it is logically probative and relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it.

Example of cases under Section 14a. Where evidence of other facts

admitted to show intention – see X v PP [1951] MLJ 10;

b. Where evidence of other facts admitted to show negligence – Ngooi Lee Jin v R [1941] MLJ 3;

c. Where evidence of facts admitted to show knowledge – Abubakar Ismail v R [1954] MLJ 67

MALAYSIAN POSITION – Section 15

Section 15 of the Evidence Act 1950 states that 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.

Refer also illustrations (a) – (c).

The section requires three conditions to be satisfied before it can be invoked. They are:

a. There must be an issue as to whether an act was accidental or intentional or done with a particular knowledge or intention;

b. That issue must form part of a series of similar occurrences; and

c. In all those similar occurrences, the person doing the act must have been concerned.

In PP v Veeran Kutty [1990] 3 MLJ 498, the two accused and some others took part in a robbery. 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. The defence sought to introduce evidence of armed robbery.

In the instant case, the evidence of the armed robbery, should the prosecution adduce evidence of it, would certainly have shown that both accused, while being armed with revolvers, committed armed robbery, the evidence of both the accused being armed with revolvers would be similar in nature to the fact in issue, the possession of firearms, and would have been evidence of similar fact as well.

The prosecution in the instant case, when about to, or just beginning to adduce the evidence of both the accused being armed with revolvers robbing the victim in question, voluntarily decided not to do so. Such evidence, if adduced, would be so strikingly similar to the evidence relating to the charge of having in their possession or control the firearms and the ammunition in question, that its probative force would have overridden its prejudicial effect.

The court when admitting evidence of similar facts must carry out a balancing test by weighing the probative value of such evidence against its prejudicial effect. Where the court fails to carry out this test, such failure will constitute a serious misdirection occasioning a serious miscarriage of justice - Azahan Bin Mohd Aminallah v PP [2005] 5 MLJ 334

In this case, the appellant was first charged in the sessions court on 26 January 1997 with the rape of his 15-year-old daughter 'in early December 1996'. He claimed trial and the case was fixed for hearing on 8 January 1998. However, when the case was called on for trial on that date, the appellant applied for legal aid. The matter was then postponed to 24 June 1998. On 24 June 1998 the appellant applied for an adjournment as his counsel had not arrived. The court refused the adjournment and proceeded with the trial.

His daughter — PW2 — the prosecution's principal witness testified inter alia of several other incidents of sexual intercourse with the appellant sometime in 1991 and 1995. At the conclusion of the prosecution's case, in consequence of the evidence of PW2, the first charge against the appellant was amended and three other charges were framed against him.

These charges were read to him but there was nothing in the record to show that the prosecution's evidence was explained to him pursuant to s 257 of the Criminal Procedure Code ('CPC'). The appellant was called to enter his defence. He chose to make an unsworn statement from the dock. However, the sessions court rejected the appellant's unsworn statement as a bare denial, convicted him on all four charges, and sentenced him to 18 years' imprisonment and two strokes of the rotan, on each charge. The appellant appealed to the High Court. The High Court merely endorsed the sessions court's findings and held there had been no procedural error by the trial court. The appellant thus appealed to the Court of Appeal.

The Court of Appeal allowed the appeal and quashed the conviction of the accused and went on to state that:

a. This was a case where the appellant had come into court prepared to face a single charge. However, the prosecution in the course of the trial, without seeking the leave of the court, adduced highly prejudicial similar fact evidence of previous acts of sexual intercourse. The sessions court judge should have intervened at once and asked the prosecuting officer to justify the course he proposed to embark upon. This was especially necessary since the accused, a layman, was unrepresented by counsel.

b. A court when deciding whether to admit similar fact evidence must carry out a balancing exercise by weighing the probative value of such evidence against its prejudicial effect as impliedly required by section 14 and 15 of the Evidence Act 1950. The court would be justified in admitting the evidence where its probative value is outweighed by its prejudicial effect.

c. In the instant case, PW2's evidence as to the appellant's previous acts of intercourse with her was relevant, and admissible. However, this did not relieve the court of determining whether the probative value of her evidence outweighed its prejudicial effect. Nowhere in the judgment of the sessions court was there the kind of balancing exercise dictated by section 14 and 15 of the Evidence Act. This was a serious misdirection and occasioned a serious miscarriage of justice.

In another case of Maidin Pitchay & Anor v PP [1968] 1 MLJ 82, the appellants were convicted by a magistrate of offences under the Road Traffic Ordinance 1958. The first appellant was charged for used of a motor vehicle and the second appellant, who was the registered owner of the said vehicle, for permitting its use as a public service vehicle without a valid license and using the said vehicle without there being in force a policy of insurance in respect of third party risk.

At the trial, two police constables testified that they had kept watch over the said vehicle almost daily and during that period, had seen and recorded particulars of their observations. The first appellant was observed by police to have been using the same car in all 60 trips for conveyance of passengers of different racial origins. On the date of the commission of the alleged offence, the first appellant was stopped by the police and found to be carrying 5 passengers.

The defence was called. The first appellant denied carrying passengers concerned for hire or reward but averred that he has intended to give them a free lift. The second appellant's defence was a general denial of the charge. He denied giving any authority to the first appellant to convey passengers for hire or reward.

The court in dismissing the appeal held in view of the statutory presumption under section 144 of the Road Traffic Ordinance 1958, the question of whether or not on the material date the conveyance of passengers was for hire or reward does not arise in a prosecution under this section. It was to be presumed. It was for the defence to show that the passengers were not carried for hire or reward. The obvious way, besides a bare denial, of proving a negative proposition such as this, was for the accused to call evidence to show that the incident in respect of which he is charged was an isolated one and that all the passengers happened to be in the car through circumstances which are fortuitous and not intentional.

Refer also to PP v Ang An An [1970] 1 MLJ 217

In Wong Yew Ming v PP [1991] 1 MLJ 31, the court admitted the fact that evidence of similar fact offered by the prosecution’s witness is prejudicial. However, the court still admitted the testimony as additional evidence to show knowledge on the part of the accused and the possession of the drugs was not accidental.

See also PP v Mohamad Fairus Bin Omar [1998] 5 MLJ 729

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