WHY IS IT GENERALLY INADMISSIBLE ? WHAT IS THE RATIONALE TO ADMIT SIMILAR FACT EVIDENCE ?
HOW DOES IT ADMISSIBLE UNDER THE LAW ?
In other words, similar fact evidence is evidence concerning the accused’s acts on occasions other than the one he is now charged, to prove his guilt by reason of their striking similarity. Although they are not connected, the subject matter in question must be the same.
For example, if A was charged with murder of B by cyanide poisoning, the similar fact shows that A’s former wife died the same way under the same circumstances, but if A had never been charged with causing the death of his former wife, the similar fact evidence could not be admitted. So in order to be admissible, the law required the similar fact evidence to have a certain degree of probative value to provide an underlying link in relation with the accused’s state of mind. Let's have a look on the law and its principle in dealing with similar fact evidence.
Makin v Attorney General for New South Wales (1894) is the first leading case governing the admissibility of similar fact evidence.
Facts: a husband and wife were accused of murdering infant whose body was found buried in a garden which they formerly occupied.
Similar fact evidence: 12 other bodies had been found on the premises occupied at different times by the accused.
The accused: the child died of natural causes. It was accidental.
The court: evidence is admissible.
Reasoning: the discovery of dead bodies of babies in similar circumstances was relevant to show that the defence of accident was most improbable.
Lord Herschell L.C. laid down two principles:
For example, if A was charged with murder of B by cyanide poisoning, the similar fact shows that A’s former wife died the same way under the same circumstances, but if A had never been charged with causing the death of his former wife, the similar fact evidence could not be admitted. So in order to be admissible, the law required the similar fact evidence to have a certain degree of probative value to provide an underlying link in relation with the accused’s state of mind. Let's have a look on the law and its principle in dealing with similar fact evidence.
Makin v Attorney General for New South Wales (1894) is the first leading case governing the admissibility of similar fact evidence.
Facts: a husband and wife were accused of murdering infant whose body was found buried in a garden which they formerly occupied.
Similar fact evidence: 12 other bodies had been found on the premises occupied at different times by the accused.
The accused: the child died of natural causes. It was accidental.
The court: evidence is admissible.
Reasoning: the discovery of dead bodies of babies in similar circumstances was relevant to show that the defence of accident was most improbable.
Lord Herschell L.C. laid down two principles:
- Propensity evidence is inadmissible. (Propensity evidence is evidence merely to show that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.)
- The similar fact evidence is admissible and so relevant ONLY IF it relates to the issue of whether the acts alleged to constitute the crime charged were designed or accidental OR it rebuts a defence which would otherwise be open to the accused.
The chart above highlighted the key points of Makin's principle. The Makin’s principle consists of two limbs. The first limb is the general rule or known as the exclusionary rule. Section 54(1) of the Evidence Act 1950 is in line with this rule whereby in criminal proceedings, the fact that the accused has a bad character is irrelevant, unless evidence has been given that he has a good character.
The second limb is the only exception to the first limb or known as the inclusionary part. If the evidence relates to the issue of proving mens rea, or when there is no plea of guilt by the accused, then such evidence will be relevant under this limb. Both section 14 and 15 of the Evidence Act 1950 adopt this principle.
Section 14 provides for the relevancy of facts showing the existence of the accused’s state of mind ‘in reference’ to the matter in question. Section 15 provides the relevancy of facts formed part of a series of similar occurrences in which the accused doing the act was concerned, and when the issue of mens rea is debatable. It is important to note that both sections only operate when the accused’s state of mind is in issue. In other words, they only refer to the mens rea, not actus reus. Hence, the similar fact evidence cannot be adduced to prove the crime was actually committed by the accused. Otherwise it will become a propensity evidence which is inadmissible.
Yet, Makin’s principle under the second limb is not confined merely to evidence of showing state of mind, it can even extend to prove actus reus. Reference can be made to the case of:
-R v Straffen. A young girl was murdered in an unusual way. The accused had escaped from a mental institution and was recaptured shortly after the murder occurred. He had been seen near the crime place. The fact that the accused had confessed on two previous convictions for such unusual murders of young girls, was relevant to prove his identity.
-R v Thompson. The accused was charged with homosexual offences against boys who told the police that he had arranged to meet them at a place. The police found powder puffs on him and photos of naked boys in his home. The evidence is relevant to show he was a homosexual.
Thus, it is obvious that the Makin’s principle offers a wider approach than the Evidence Act 1950. However the decision of Thompson case and Straffen case will not be the same today as there was a reformulation of the Makin’s Principle by another leading case of Boardman v DPP [1975].
Boardman v DPP [1975] requires a balance between probative force and prejudicial effect in assessing the admissibility of similar fact evidence.
Facts: the headmaster was charged with committing buggery with two boys.
Similar fact evidence: the accused had visited the boy’s dormitory in early morning and invited the boy to his sitting room and asked each boy to take the active role while he assumed the passive role in acts of buggery.
The court: evidence is admissible.
Reasoning: the combination of the stories of the two boys were sufficient to justify admissibility.
Lord Wilberforce: the probative value must outweigh the prejudicial effect.
The second limb is the only exception to the first limb or known as the inclusionary part. If the evidence relates to the issue of proving mens rea, or when there is no plea of guilt by the accused, then such evidence will be relevant under this limb. Both section 14 and 15 of the Evidence Act 1950 adopt this principle.
Section 14 provides for the relevancy of facts showing the existence of the accused’s state of mind ‘in reference’ to the matter in question. Section 15 provides the relevancy of facts formed part of a series of similar occurrences in which the accused doing the act was concerned, and when the issue of mens rea is debatable. It is important to note that both sections only operate when the accused’s state of mind is in issue. In other words, they only refer to the mens rea, not actus reus. Hence, the similar fact evidence cannot be adduced to prove the crime was actually committed by the accused. Otherwise it will become a propensity evidence which is inadmissible.
Yet, Makin’s principle under the second limb is not confined merely to evidence of showing state of mind, it can even extend to prove actus reus. Reference can be made to the case of:
-R v Straffen. A young girl was murdered in an unusual way. The accused had escaped from a mental institution and was recaptured shortly after the murder occurred. He had been seen near the crime place. The fact that the accused had confessed on two previous convictions for such unusual murders of young girls, was relevant to prove his identity.
-R v Thompson. The accused was charged with homosexual offences against boys who told the police that he had arranged to meet them at a place. The police found powder puffs on him and photos of naked boys in his home. The evidence is relevant to show he was a homosexual.
Thus, it is obvious that the Makin’s principle offers a wider approach than the Evidence Act 1950. However the decision of Thompson case and Straffen case will not be the same today as there was a reformulation of the Makin’s Principle by another leading case of Boardman v DPP [1975].
Boardman v DPP [1975] requires a balance between probative force and prejudicial effect in assessing the admissibility of similar fact evidence.
Facts: the headmaster was charged with committing buggery with two boys.
Similar fact evidence: the accused had visited the boy’s dormitory in early morning and invited the boy to his sitting room and asked each boy to take the active role while he assumed the passive role in acts of buggery.
The court: evidence is admissible.
Reasoning: the combination of the stories of the two boys were sufficient to justify admissibility.
Lord Wilberforce: the probative value must outweigh the prejudicial effect.
Compare with the Boardman’s approach, it seems that the Makin’s Principle emphasizes to rebut the accidental feature pursuing after a relatively low standard of proof of relevancy. While the Boardman’s approach reformulated the rule by shifting the emphasis to the degree of relevance in which the similar fact evidence possess a strong degree of probative force that outweighed its prejudicial effect.
In conclusion, Boardman’s approach altered the basis of admissibility whereby:
(a) Admissibility is no longer based on a specific purpose to rebut a particular type of defence raised.
(b) Evidence is admissible so long as it has a sufficient degree of probative value as to override any prejudicial effect.
(c) There was no possibility of collaboration between the witnesses.
Malaysia had long time relied on Makin’s Principle in ruling the cases and the position now is in addition to that, we follow the Boardman’s approach. The following cases were referred:
-PP v Veeran Kutty (1990). Held: The evidence of similar fact is relevant as being strikingly similar that to exclude it would be an affront to common sense.
-Junaidi bin Abdullah v PP (1993). Held: Where the purpose of adducing similar fact evidence is justifiable on the ground of relevancy and necessity to rebut any defence, it is admissible provided its probative value outweighs its prejudicial value.
-Azahan bin Mohd Aminallah v PP (2005). Held: The balancing test must be carry out to prove that the interest of justice outweigh any prejudicial dangers.
Viewing the above cases, obviously all of them are in favour of Boardman’s approach. In Junaidi case, the Makin’s Principle and Boardman’s approach were relied in addition to section 14 and 15 of the Evidence Act 1950. It was also held in Azahan case that even if the evidence is relevant under section 14 or 15 of the Evidence Act 1950, the judge would still have to see if the probative value outweighs the prejudicial effect. So what will then be the function of section 14 and 15? In fact both sections expressly stated that the evidence is tendered by a specific purpose, that is to show the accused’s mens rea. The Boardman’s approach however does not require such a purpose, but rather a strong probative force that outweigh the prejudicial effect. If it would be a question of probativeness, does it mean that the relevancy of similar fact evidence comes within section 11(b) of the Evidence Act 1950 which specifically deals with the test of probability? Well, I would say that the law is just far beyond what the Act covered.
Prepared by : Yap Wan Ying (A132700)