StuDocu is not sponsored or endorsed by any college or university Chapter 1 Similar Fact Evidence Law of Evidence II (Multimedia University) Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) SIMILAR FACT EVIDENCE INTRODUCTION Definition - Evidence of facts which are similar to the fact in issue but which are unconnected to the charge. Rule of evidence - “res inter alios acta alteri nocere non debet” – all evidence that has nothing to do with the present dispute will be excluded. - Commonly referred as res inter alios actae. - See Stephen JF, A Digest of the Law of Evidence (Macmillan & Co) 13-21,138; AP 166. General Rule - Such evidence is not admissible. - Reason: SFE is a sub species of Bad Character evidence. Bad Character evidence is not admissible as a general rule as it is prejudicial against the Accused. (S.54(1) and (2) EA 1950) - The rules of justice and fairness demands that a person should be judged based purely on the evidence of the present charge and not based on any previous conduct unconnected to the charge. Forms of SFE - In criminal proceedings SFE is usually introduced by PP. - It can be introduced in the following forms: (a) Previous conviction for a similar offence (b) Previous charge for a similar offence (c) Previous misconduct similar to the present charge o Never been charge or conviction. Mere complaint, police report etc o Harvey Weinstein/Bill Cosby/ Jeffrey Epstein (d) Factual background o Story of ex-wife (to show design) o Helen Bailey’s case/brides in the bath case (e) Accused is charged in a single proceeding for several counts. If there is similarity between 2 counts, SFE may be introduced between the 2 counts. o Lee Kwang Peng/Boardman GENERAL RULE S.54 (1) & (2) → Previous bad character not relevant except in reply. MAKIN V AG FOR NSW [1894] AC 57 → Facts: 2 accused-charged with the murder of 1 baby → Evidence: 12 dead babies were found buried in the backyard of 3 properties occupied → Purpose: to show system/modus operandi (designed) → If designed, can rebuts defence of accident → Held: As a GR, P cannot adduce evidence of other criminal conduct unconnected to the charge. SFE cannot be admissible when unconnected (1st Limb) Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) WONG KOK WAH V PP [1955]MLJ 46 → Spencer Wilkinson. J: it is evidence tending to suggest that the A had committed a similar offence on a different occasion & such evidence is never admissible to show that an A is likely to have committed the offence charged. Reason - The risk that the trial judge may conclude that the A is guilty just because he has committed similar offences in the past without properly evaluating the evidence in the present charge. - It is to guard against this risk that SFE is excluded as GR. (risk of prejudice) - R v BOND [1906] → Prejudicial effect (pre judging that the A is more likely to commit the offence because of his previous conviction) → Unfair → Natural justice – A will only be prepared to answer the current charge. → Interest of justice. EXCEPTIONS 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. NOTE: SFE will be admissible where its probative value outweighs its prejudicial effect. Statutory Common Law s.15 Makin s.14 Boardman s.11(b) DPP v P test *No dispute on S.14 and 15, but for 11 there are different schools of thought. RV RAJU v R [1953] MLJ 21 → “In this country, such evidence of similar acts is often admissible under s.15, s.14, s.11 EA.” → The law on the admissibility of SFE is perhaps one of the most difficult branches of law of evidence. → Generally speaking, SFE may be relevant: o To negate accident (s.15/CL) o To prove identity (CL) o To prove intention (s.14) o To rebut a defence (CL) JUNAIDI BIN ABDULLAH [1993] 3 MLJ 217 → On the principle laid down in Makin & Boardman, we are of the opinion that for the purposes of adducing SFE is justifiable on grounds of relevancy & necessity, in addition to those under s.14 & s.15. → In later part of the judgment, the court also referred to s.11(b) as a tool to admit SFE. COMMON LAW EXCEPTIONS The current test to determine admissibility is probative value outweighs its prejudicial effect (DPP v P test) The evolution of this test from the first version to its current form: Makin > Boardman > DPP v P Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) Makin test Makin v AG for NSW [1894] AC 57 → Specific purpose test. → SFE will only be admitted: o to rebut the defence of accident o to show system/modus operandi o to rebut any other defence The Makin approach was the test to be applied for SFE for more than 80 years until the HL reformulated the test in Boardman. Boardman test R v Boardman [1975] AC 421 → NOTE: Did not overrule Makin test, only reformulated it. → Headmaster charged with buggery and incitement to commit buggery. → Victims: 2 students aged 16 & 17. → Evidence of both victims were similar. → Accused raised no specific defence but denied the charge. → Falls under the last form of SFE (factual background). → Widen the Makin test. SFE does not depend on specific categories under Makin. Not necessary for it to have MO and system. → 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 probative value will arise where there is a striking similarity between SFE and the current charge (striking similarity: unique and not merely stock trade) → The similarity is so striking that when judged by experience or common sense it could not arise from pure coincidence. → Where the probative value outweighs its prejudicial effect. DPP v P test DPP v P [1991] 3 All ER 337 → Father charged with rape of daughter. → Prolonged course of assault, use force, threaten them, paid for abortion. → 2 counts of rape, however corroboration from 2 girls were not allowed. → At trial, PP was allowed to use one witness as corroboration. → Accused argued that it is not “striking” even though it is similar → Court reformulated the Boardman test: striking similarity is not a prerequisite for SFE evidence to be admissible. The test in Boardman is simply that the probative value outweighs the prejudicial effect. Such probativeness could exist where there is a striking similarity but this is not a prerequisite. → However, striking similarity may still be a prerequisite for SFE evidence to be admissible certain cases, for example in cases of mistaken identity. In order to establish identity, still have to satisfy Striking Similarity. Lee Kwang Peng v PP [1997] 3 SLR 278 → 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. Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) CASE LAW ON APPLICATION OF THE COMMON LAW TEST R V SMITH [1915] 11 APP REP 229 → Summary: Killed wives no. 1, 2, 3 in bath. Claimed to be epilepsy – previously suggested to wives and doctor that wives had epilepsy. → Charge: Murder of wife, drowned her in bathtub → Motive: claim insurance / inherit money → Defence: had fits and drowned (accident) → Evidence: 2 other women married to A also drowned in the bath and A had benefitted from their death → Purpose: To show system/MO – that it is designed – intentional – not accident – to rebut defence of accident → Trial Judge (Scrutton J): “…then comes the purpose and the only purpose for which you are allowed to consider the other deaths. If you find an accident which benefits a person and you find that the person has been sufficiently fortunate to have the accident happen to him a number of times, benefitting him each time, you draw a very strong frequently irresistible inference that the occurrence of so many accidents benefitting him is such a coincidence that it cannot have happened unless it was [a] design.” R v BOND [1906] 2 KB 389 → Charge: illegal abortion / procuring a miscarriage. → Defence: accident. → Evidence: witness testified that A had performed an illegal abortion on her and told her he had put right dozen of others. → Admissible? – Makin specific purpose test. → Yes – it shows system – rebuts accident. R V WILSON [1973] CR APP REP 169 → Charge: Rape / ABH → Defence: Mistake of consent → Evidence: Previous charge for indecent assault on another woman → Similar facts: Met the victim in a club, offered a lift. On the way home, attacked the victim. → Held: Not admissible as there is no evidence to show system. To show there must be some special features or trademark. On the facts the similar facts was too common (stock trade). R V STRAFFEN [1952] 2 QB 911 → Charge: murder of young girl by strangulation → Defence: mistaken identity → Evidence: had previously been charged and committed for killing 2 other girls. Was in mental ward. He escaped for 4 hours, at which time the third girl was killed. → Facts: all 3 cases – young girl, strangled, body not concealed, not sexually assaulted. → Admissible? – no sexual assault = system → Probative. R V THOMPSON[1918] AC 221 (Powder Puff Case) → Charge: Gross indecency with 2 boys → Defence: Mistaken identity Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) → Facts: incident took place on 16/03 in a public lavatory and the man asked them to meet him again on 19/03. On 19th, the police kept watch. A had approached the boys and gave them money. → Evidence: powder puffs and obscene photos of boys. → Held: evidence is admissible as it showed his propensity to commit unnatural acts (evidence of his sexuality) to establish his identity as the man who had committed the offence on 16/03. APPLICATION IN MALAYSIA Does the reformulated common law test apply in Malaysia? - YES - Augustine Paul states that the reformulated Makin/Boardman test will apply in Malaysia. Makin Test RAUF BIN HJ AHMAD V PP [1950] → “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." WONG KOK WAH V PP [1955] MLJ 46 → 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. Makin/Boardman test: JUNAIDI BIN ABDULLAH [1993] 3 MLJ 217 → Case involving possession of a revolver without lawful excuse within a security area (ISA 1960) → Defence: Complete denial / police had fabricated evidence. → Evidence of PW: Saw accused handling a firearm in the course of a robbery. → On appeal: Wrong in admitting evidence that is prejudicial and on bad character. PP V VEERAN KUTTY [1990] 3 MLJ 498 → 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. Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) → 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. DPP v P test PP V TEO AI NEE [1995] 2 SLR 69 → Yong Pung How: “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.” AZAHAN BIN MOHD AMINALLAH V PP [2005] 5 MLJ 334, CA → Accused charged under S.376 PC for raping his 15yo daughter in an oil palm estate in 1996. On the day fixed for the hearing, the accused being unrepresented, applied for legal aid, and the trial was postponed. At the next date of hearing, the accused sought another adjournment as counsel assigned to him by the Legal Aid Bureau was not present in court. Sessions Judge refused the application and proceeded the trial without the accused being represented. → In her evidence-in-chief, the complainant alleged that the accused also raped her a few times prior to the incident in 1996. → At the close of the case for the prosecution, the charge against the accused was amended as regards the hour of the alleged rape, and three additional charges for rape were framed against the accused relating to similar offences allegedly committed in 1996, 1994 and 1991 respectively. → The accused was then called upon to enter his defence, and he chose to make an unsworn statement from the dock, videlicet, that the allegations of rape against him were fabricated by the complainant at the behest of his adulterous wife. → This statement was summarily rejected by the session judge as a bare denial, and the accused was convicted on all the four charges and sentenced to 18 years imprisonment and 2 strokes of whip with respect of each charge. → Accused appealed to HC but the HCJ dismissed it and affirmed the decision of SCJ. → COA: In the course of the trial, the prosecution had adduced, without the leave of court, SFE of previous acts of sexual intercourse that is highly prejudicial to the accused. The SCJ ought to have intervened at once and asked the prosecution to justify the course it took, especially when the accused, a layman, was unrepresented by counsel. → A trial court, in deciding SFE, must weigh and balance up the probative value of such evidence against its prejudicial effect, as impliedly required by ss.14 & 15 of the EA1950. No such balancing exercise was carried out by the SCJ here, nor was it ever shown that he probative value of the complainant’s SFE would outweigh its prejudicial effect. This was a serious misdirection occasioning a grave miscarriage of justice. Indeed, the SCJ had acted on the SFE to add 3 further charges against the accused. → Further, this was a case where the appellant had come into the court prepared to face a single charge. However, the P in the course of trial had, without seeking the leave of court, adduced highly prejudicial SFE of previous acts of sexual intercourse. Once the question was put to previous acts, the normal course for the SCJ to have taken is to have intervened at once and asked the P to justify the course he proposed to embark upon. This was especially necessary Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) since the accused, a layman, was unrepresented. We find this to be a most unsatisfactory feature of this case. → A court when deciding whether to admit SFE must carry out a balancing exercise by weighing the probative value of such evidence against its prejudicial effect impliedly required by ss.14 & 15 EA1950. The court would be justified in admitting the evidence where its probative value is outweighed by its prejudicial effect. PP V MOHAMAD ROSLAN BIN DESA (UNREPORTED), FC → Ariffin Zakaria CJ: “The Courts below rejected the similar fact evidence on the basis that there was no striking similarity between what happened in the earlier case and the present case. It should perhaps be noted that House of Lords in DPP v. P had retracted from the test laid down in Boardman as to the requirement of "striking similarity" and said that it was inappropriate to single out "striking similarity" as an essential element in every case. But following Boardman it was held that the essential feature of admissibility of such evidence is whether its probative force in support of the charge is sufficiently great to make it just to admit the evidence notwithstanding that its prejudicial effect on the accused tending to show that he was guilty of another offence. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree. The test has since been authoritatively laid down by DPP v. P in terms of probative value as against its prejudicial effect. There is force in saying that the decision in DPP v. P is in line with ss. 14 and 15 of the Evidence Act as "striking similarity" has never been a requirement of the said sections.” WHAT IS PROBATIVE? Essentially a question of fact. It is not possible to provide for exhaustive list of probative or prejudicial matter. However, guidelines are provided by court in some cases: PP v Mohamad Roslan bin Desa → Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree. Noor Mohamed v The King → The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenous ground for holding it technically admissible. The decision must be left to the discretion and the sense of fairness of the judge. R v Scarrot [1978] QB 1016 (Scarman LJ): → Positive probative value is what the law requires, if similar fact evidence is to be admissible. Such probative value is not provided by the mere repetition of similar facts; there has to be some feature or features in the evidence sought to be adduced which provides a link – an underlying link as it has been called in some of the cases. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so commonplace that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration. Al Bakhtiar bin Ab Samat v PP [2012] 4 MLJ 713, CA → S.14 & 15, Makin, Junaidi, Azahan & Mohd Roslan Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) → We also find it useful to recall the words of Scarman LJ in R v Scarrott [1978] QB 1016 on this issue of similarity of facts: → “Positive probative value is what the law requires, if similar fact evidence be admissible. Such probative value is not provided by the mere repetition of similar facts; there has to be some feature or features in the evidence sought to be adduced which provides a link, an underlying link as it has been called in some of the cases. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration. The authorities are clear that the similarity test is not a prerequisite for the admission of similar fact evidence.” → We too have carefully examined the records of appeal before us and nowhere do we find in the judgment of the learned trial judge the kind of balancing exercise as dictated by ss 14 and 15 of the Evidence Act before admitting the similar fact evidence against the appellant. Again, this is a misdirection. ISSUE OF PREVIOUS ACQUITTAL R v Z (Prior Acquittal) [2002] 2 A.C 483 → Charge: rape → Defence: mistake of consent → Evidence: 4 previous charges of rape. 3 acquittal + 1 conviction. Had raised same defence in all cases. → Acquittal can be admitted as SFE. Provided probative value outweighs prejudicial effect (note number of acquittals and time lapse) COLLUSION Conspiracy to make false allegations and concoct evidence. R v Ananthanarayanan [1994] 2 All ER 847 → SFE should be excluded where there is a possibility of collusion between the witnesses. → Where there is a risk of collusion, it affects admissibility. → “In our judgment it should now be made clear that the question whether such evidence should be ruled out or not is one which goes to the legal admissibility of that evidence. The test for the trial judge to apply is…: he must ask himself whether there is a real (as opposed to a merely speculative or fanciful) risk that the evidence is not independent. The risk can arise not only when there may have been deliberate concoction, but, as had been said, from media publicity or because one witness may have been innocently influenced by his or her knowledge of another’s account.” R v H [1995] 2 AC 596, HL → Risk of collusion does not affect admissibility but only affects weight. → Note: this is also provided in Criminal Justice Act 2003 (UK) STATUTORY EXCEPTIONS EVIDENCE ACT 1950 – S.14, S.15, S.11(b) S.14 & S.15 Should be read together as in most cases both will be applied together. Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) S.14: wider S.15: more restrictive Both apply to SFE in relation to mens rea (MR). Section 14 - 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. - Explanation 1 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. - Explanation 2 But where upon the trial of a person accused of an offence the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of that person shall also be relevant fact. Courts have taken a very restrictive approach to this section based on explanation 1 and the illustrations to the section. Also see: Illustration – a, b, i, j, o and p TEO KOON SENG V R [1936]1 MLJ 9 → S.14 should be applied to only those facts which have an immediate reference to Fact in issue. PP V TEO AI NEE [1995] 2 SLR 69 → Held: court made a reference to Expl 1 and illustrations are reiterated that the section requires proof that the state of mind existed not generally but in reference to the particular matter in Q. Note: S.14 is influenced by the common law exceptions to SFE. But the common law exceptions are much wider as it can also include evidence of SFE to establish both mens rea (MR) & actus reus (AR) while S.14 deals with SFE evidence for the purposes of establishing state of mind only (MR). Case law are wider: Makin – intentional as opposed to accidental. R V SMITH [1915] 11 APP REP 229 – intentional as opposed to accidental. To rebut defence of accident – MR. R V STRAFFEN [1952] 2 QB 911 – denying identity (aka denial of actus rea) R V THOMPSON [1918] AC 221 – denying identity (aka denial of actus rea) Section 15 - 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 series of similar occurrences, in each of which the person doing the act was concerned, is relevant. - See: Illustrations in S.15 - S.15 = codification of Makin & Smith 3 conditions must be satisfied: (a) accidental or intentional or done with a particular knowledge or intention (b) act formed part of series of similar occurrences (c) the person doing the act was concerned Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) (s.15 is referred to as the systems section and is a codification of Makin) PP v DATO SERI ANWAR IBRAHIM (NO.3) [1999] 2 MLJ 1 → SFE under this section must be of the same specific kind as the fact in issue and the court will consider if there is proximity in time, in method and a nexus between the 2 set of facts. Note: S.15 will not apply to AR only to MR. There must be independent direct evidence of AR. SFE evidence under s.15 will only be admitted to rebut accident by establishing system. To show act was done with intention / with knowledge. Elements of S.15 TEO KOON SENG V R [1936] → Extortion → Evidence: 2 witnesses – Accused was in the habit of extorting money. → Defence: did not raise defence of accident. → Can S.15 apply? → NO. PP v ANG AN AN [1970] 1 MLJ 217 → Illegal taxi (kereta sapu) → Evidence: he had on previous cases used his car to take passengers. → Can be admitted under S.15? → Yes, to rebut anticipated defence. → Impact: S.15 only applied to MR not AR. AR must have been established by independent evidence before S.15 can be invoked to asmit SFE to rebut accident/show intention/knowledge. Maidin Pitchay v PP [1968] 1 MLJ 82 → Drug cases → A claims that he has no knowledge or the possession was accidental. → Evidence: A had on previous occasions sold drugs. → S. 15 applies. Wong Yew Ming v PP [1991] 1 MLJ 31 → SFE admitted under S.15. AR of possession had been established by independent evidence. PP v Mohamad Fairus [1998] 5 MLJ 729 → SFE not admitted under S.15. AR of possession had not been established by independent evidence. Al Bakhtiar AB Samat v PP → Charge: S.39(B) DDA 1952 → Defence: No knowledge of the drugs (others had access to the room. → Evidence: He was arrested in respect of the cannabis found on him earlier on the same day at another location. → Why: to rebut his defence of no knowledge (S.15/S.140) → Can the evidence be admitted? No. Does not fulfil conditions as in PP v Anwar Ibrahim (No. 3). Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) Section 11(b) Facts not otherwise relevant are relevant - (a) if they are inconsistent with any fact in issue or relevant fact; (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. Note: illustration (b) Logic - SFE may be admitted on the basis that the evidence renders it highly probable that it was the accused who has committed the offence. - Basis: Wording of the section. - The argument is centered on the logic that of the accused has committed similar acts in the past evidence of those similar facts renders it highly probable that he may have committed the facts of the present charge and therefore similar fact evidence can be admitted under S.11(b) of the Act. - Controversial. Debatable. Not universally accepted. - Note: SFE admitted under s.11(b) applying the “Highly probable” test. S.11 is applicable R V RAJU [1953] MLJ 131 → Spenser Wilkinson: “In this country, such evidence of similar acts is often admissible under S.15, S.14 & S.11.” Junaidi v PP [1993] 3 MLJ 217 → Case involving possession of a revolver without lawful excuse within a security area (ISA 1960) → Defence: Complete denial / police had fabricated evidence. → Evidence of PW: Saw accused handling a firearm in the course of a robbery. → On appeal: Wrong in admitting evidence that is prejudicial and on bad character. → Mohd Azmi SCJ: the evidence of physical possession of the revolver during the robbery was vital to the defence and relevant under s 11 of the Evidence Act 1950 to cast a reasonable doubt on the prosecution's case that the accused was in possession of the revolver at the time of his arrest, and thereby tilt the balance in the appellant's favour (if such evidence was accepted as probable) that the revolver could not have been in his right hand at the time of his arrest. Since the evidence of the armed robbery formed a vital part of the defence, it was difficult not to agree in the circumstances of this case that the probative value of such evidence would outweigh its prejudicial value as evidence of bad character. To exclude such evidence in the trial would be against the interest of justice, as it virtually meant denying the accused the opportunity of testing his defence in the cross-examination of prosecution's witnesses. It would also deny the prosecution the opportunity to rebut a defence which would otherwise be open to the accused. Note: In RV Raju & Junaidi – the court accepted that s.11(b) can be a tool to admit SFE. Test – probative outweighs prejudicial effect. Used for AR Abu Bakar bin Ismail v R [1954] 1 MLJ 67 → Charge: 2 false endorsements on license applications → Evidence: done the same on 8 other occasions in 1 month → Impact: renders it highly probable that he did commit the current charge → Note: SFE admitted under S.11(b) by applying the “Highly Probable” test Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) X v PP [1951] 1 MLJ 10 → Aiding and abetting bandits -14/10 → Evidence: 27/10 (14 days later) he had consorted with bandits → Held: evidence can be admitted under S.11(b) as it makes it highly probable the money was intended for the bandits. → Also applied S.14. → Note: applied high probability and not probative test / specific purpose test. Re Teoh Beng Hock [2010] 2 CLJ 192 → T. Sivanesan to be called as a witness to give evidence of torture and violence being perpetrated against him at the same place and by the MACC officers during an investigation. → Held: Based on ss 11(b) and 15 of the Evidence Act 1950 alone, I am of the opinion that the magistrate did not erred in law to allow similar fact evidence to be considered ie to allow SI20 to be called as a witness to give evidence of torture and violence being perpetrated against him at the same place and by the MACC officers during an investigation. Such similar fact evidence does have material bearing on the issues to be decided by the magistrate in the inquest (see R v Raju & Ors v R and Harris v Director of Public Prosecutionsas cited by the MACC). The magistrate's ruling will allow the family of the deceased the leeway to rebut the evidence of SI19 and the MACC that they do not threaten or torture anyone under investigation or interrogation by them. There is evidence given by the pathologist of pre-fall injuries. The family of the deceased do not believe that the deceased committed suicide; they believe that there must have been assault that led to the deceased's fall from the 14 floor of Plaza Masalam. It is in the interest of justice that the family of the deceased be given the opportunity to bring in SI20 to rebut the evidence given by the MACC witnesses who deny any form of violence being perpetrated by them. → Abd Khalid bin Sbd Hamid v PP [1995] 1 MLJ 692: It was contended that those exhibits should not have been admitted as being prejudicial to the appellant, as it tends to show that the appellant has been guilty of criminal acts other than those covered by the charges, as infringing the similar fact rule. → In relation to the crime charged, I am of the opinion that the evidence of P17 and P20 being in the possession of Paramadas was vital to the prosecution and relevant under s 11 of the Evidence Act 1950. The evidence is relevant and probative as showing system, and to rebut a possible defence of innocent association as well as identification. I am of the view that the probative force is sufficiently great to make it just to admit the evidence. Its probative value outweighs its prejudicial value. Its existence throws light on the probabilities of the case and forms a further link in the chain of proof. S.11 is not applicable Augustine Paul J – DSAI (No.3) → Be that as it may, it must be observed that s 11 must be construed as being limited in its operation by s 54 of the Evidence Act 1950. So construed s 11 renders inadmissible the evidence of one crime (not reduced to legal certainty by a conviction) to prove the existence of another unconnected crime, even though it is cognate. RANGAYYAN V INNASIMUTHU [1956] AIR Mad 226 → Accepted Interpretation of s.11(b) → S.11 only applies to facts immediately connected to fact in issue. ISMAIL V HASNUL [1968] 1 MLJ 108 Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) → S.11 does not apply to collateral facts with no connection with the main facts. Stephen’s Digest, Sir James Stephen’s (drafter of the Evidence Act) interpretation → Suggests that he did not intend for s.11 to admit SFC (facts similar but unconnected). S.11 was drafted to admit facts which are connected to the fact in issue. → Only s.14 & 15 were drafted to admit SFE. Jeffrey Pinsler in SFE: The Principles of Admissibility [1989] 2 MLJ lxxxi. → Suggests that to admit SFE under s.11(b) would make s.14 & 15 redundant. S.11 may be applicable LEE KWANG PENG V PUBLIC PROSECUTOR [1997] 3 SLR 278 → There were originally 3 complainants, each of whom alleged 3 incidents of molest against the appellant. The appellant denied the charges and alleged that the complainants had conspired to bring false charges against him. The complainants were aged between 2 and 14 at the time of the offences, which spanned a period of around 2 years. The appellant was a male taekwondo instructor and was 33 years old at the date of trial. The offence occurred during informal “trial training session” → SFE was not only admissible for the purposes of establishing an accused person’s mens rea under ss 14 & 15 EA, but was also admissible under s 11(b) to prove that the accused person committed AR of offence. → The SFE sought to be adduced need not bear a striking similarity to the facts of the case to warranty admission unless identity was in issue. Otherwise, the question as to what facts bore sufficient probative value to justify their admission notwithstanding the potential prejudice to the accused was in each case a question of degree (See R v P [1991] 3 All ER 337 & Tan Meng Jee v PP [1996] 2 SLR 422) DOES THE COMMON LAW TEST APPLY TO THE SECTIONS?? Current approach suggests that both s.14 &s.15 impliedly requires the balancing test as put forward in Makin/Boardman/ DPP v P. Section 14 & 15 - Court must carry out the balancing exercise between the probative value and prejudicial effect of the SFE (CL test: Makin/Boardman/P) - CL test is the overreaching test to determine admissibility. - Based on the principle in Lee Kwang Peng, the CL test will also apply to S.11(b) to admit SFE on AR. Becky Watts case 2015 → Victim was age 16. → Murdered in her own bedroom by her step-brother Nathan Matthews, who then dismembered her body and hid it in suitcases in a neighbour’s shed. → Accused: Nathan Matthews & girlfriend Shauna Hoare → Charge: Murder → Defence: Accident → Evidence: o Text and Facebook messages between Matthews and Hoare suggested a shared sexual interest in teenage girls and evidence they had already considered kidnapping one. o Pornographic websites bookmarked on phone. Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) o Among the pornography found on devices in the house was a video about the rape of a teenage girl. → Motive: The pair planned to kidnap Becky for sexual purposes. → Court to do balancing test. Stephen Port’s case (2016) → Charge: murder of 4 young men and raping 4 others. → June 2014 – a young man was found dead outside the flat of one Stephen Port. The victim died of drug overdose. → At the end of summer 2014, three weeks apart, the bodies of 2 young men were found in the same East London churchyard by the same woman walking her dog. Police deemed their deaths non-suspicious and that they had ided of drug overdose. → September 2015 – another body was found propped up on the other side of the churchyard wall. Again, it was a young gay man who had died of drug overdose. → Coincidence? Court must do balancing test. WHEN CAN SFE BE INTRODUCED IN CRIMINAL CASE Can be adduced at Prosecution stage or at Defence stage. Best to adduce at Prosecution case to establish prima facie case. Junaidi bin Abdullah [1993] 3 MLJ 217: → There must be a real anticipated defence to be rebutted and not merely “crediting the accused with a fancy defence”. SFE IN CIVIL CASES Mood Music Publishing Co Ltd v De Wolfe [1976] 1 All ER 763 – pg 261 → 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. 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: 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. Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193
Copyright © 2020 by Lim Shu Ting (Audrey) PP v Alias Md Yusof [2019] 7 CLJ 618 → 2 separate charges for corruption under MACC Act 2009. → Acquitted on both charges. P appealed only in relation to the first charge. → Issue: can evidence of the second charge be introduced as SFE in relation to the first charge? → Held: SFE not admissible. → Stephen Chung J: We refer to ss. 14 and 15 of the Evidence Act 1950 on similar fact evidence. Makin v. AG for New South Wales [1894] AC 57 laid down the principle on the admissibility of similar fact evidence, which consists of two limbs: see Junaidi Abdullah v. PP [1993] 4 CLJ 201; [1993] 3 MLJ 217. The judge has to decide whether the evidence which it is proposed to adduce is sufficiently substantial having regard to the purpose to which it is professedly directed to make it desirable in the interest of justice and fairness: Boardman v. DPP [1974] 3 All ER 887. This was never submitted before us. → We also took note of the fact that the respondent was acquitted and discharged under the second charge and the appellant did not file any appeal against that acquittal and discharge. That meant that the appellant had failed to prove its case against the respondent that he had corruptly received the RM1,500. Therefore, the appellant could not rely on the evidence adduced in respect of the second charge as similar fact evidence that the respondent had corruptly received the RM1,500. Downloaded by HASSENA BINTI MOHAME . ([email protected]) lOMoARcPSD|3973193