Chapter 5- Similar Facts Flashcards
What constitutes similar fact evidence?
See in general Westley v Attorneys Fidelity Fund.
Similar facts occur where there are at least two sets of facts which seem to be similar. NB looking for factual similarity. One set of facts consists of the fact in issue and other set of facts that a party would like to present as probative material. Similar facts not only refer to the act as an element of delict or crime but may also be NB in establishing things like motive, intention, and other inferences that may be necessary to prove.
What is the origin of the rule about similar fact evidence?
Rules applicable are primarily Common Law rules. Section 252 of CP Act has effect that the rule, as was applied on 30 May 1962 in English Law, forms part of our law. Certain statutory additions and amendments have created exceptions to the Common Law rule and cognizance must be taken on both Statutory and Common law to understand rule fully.
What does Van der Merwe say about similar facts?
Similar fact evidence is evidence which refers to the conduct of a party on an occasion or occasions other than the occasion in dispute, but which is also of such a nature that it is logically connected with or substantially similar to the conduct on the occasion which forms the subject of the dispute.
What is the place of similar facts in the Law of Evidence?
Primarily evidential material which is defendant for its admissibility on its relevance to other admissible similar evidence. One first has to decide whether the evidence is admissible before one cane accord it any evidential value or cogency. Fits perfectly with other rules already mentioned.
It is encountered in both civil and criminal cases, but seems that civil courts don’t show same reluctance to admit it as criminal courts. It need not always be the subject of either a crime or a delict.
What is the general rule in regards to similar facts evidence?
General rule that similar facts inadmissible. A court may not infer that an event has happened merely because similar events have happened on other occasions. Evidence which is relevant to a fact in issue only on this reasoning, is inadmissible.
A court may not infer that a person has performed a particular wrongful act merely because he has a propensity to perform wrongful acts.
What is the reason for the rule relating to similar facts?
May be many reasons why similar facts inadmissible. In general believed to be detrimental and waste of time to admit a number of side issues. It may also be that a person may be unfairly surprised and not prepared to defend him against all incidents that he was involved in before. Another reason may be that it may encourage police not to look for actual perpetrator but rather to look for someone who committed similar acts on previous occasions.
Real reason for inadmissibility is that similar facts are irrelevant, because no reasonable inference may be drawn from such evidence, it is inadmissible.
It is irrelevant unless a nexus can be proven.
What does D T Zeffertt say about nexus’ that provide relevance for similar facts?
Relevance is a ‘variable standard’; it doesn’t exist in a vacuum; it exists, and can only exist, in circumstances of a particular case. See M 1995.
What could the nexus be called that needs to be proven in order to prove relevance of similar facts?
It could be said that the nexus is the building of walls, and application os the rule is the roof. The roof can’t be put up before the walls have been built.
The nexus must be discussed/proven first.
What are the guidelines to determine relevance (the nexus)?
READ PAGE 72-75!!!!!
These are merely guidelines and not a closed (or/ exhaustive) list of categories of relevance:
1) Continuous conduct- because of continuance, SF allowed;
2) Improbability of coincidence- use SF to rebut coincidence;
3) Common source-use common source witnesses/evidence as SF;
4) Common locality/place;
5) Rebuttal of an otherwise available defence;
6) Striking similarity;
7) Cumulative application of different sets of SF.
In terms of the application of the rule of similar facts, what elements may the rule be used to prove in a case?
1) The act;
2) Opportunity, means and ability;
3) Identity and Alibi;
4) Systematic conduct/ system (modus operandi);
5) Ineptention;
6) Motive;
7) Negligence.
How has the similar facts rule with regards to the act, be applied in practice?
Although evidence of the commission of other although evidence of the commission of other acts which are similar to the act in dispute doesn’t prove the act, it makes the inference that the accused also committed the act in question, irresistible.
- In Gokool- policeman faced numerous counts of extortion, court held that designed system and carried it out.
- In Jones v S- presence of accused at 15 veld fires, with direct evidence that started one of them.
The repetition of acts may in combination, have the effect that a court can’t come to the conclusion that the commission of the specific act was a coincidence?
How has the similar facts rule with regards to opportunity, means and ability, be applied in practice?
Where the fact in issue is whether person was able to commit a crime, or whether he had the means, or whether there was an opportunity to commit the crime, similar facts may be used to prove such a fact in issue.
- In Dlamini- evidence (SF) that accused stabbed another person shortly before a murder was committed, rebutted alibi and showed he had means (the knife) to commit murder.
- In E- evidence of accused having venereal disease from sleeping around with women, used to rebut defence of impotence.
- In Christiaans- possessed considerable quantities of sherry made inference that he sold sherry irresistible.
How has the similar facts rule with regards to identity/alibi, been applied in practice?
State often faced with problem that no direct evidence to connect accused with specific offence. To overcome this hurdle, evidence of other offences which had been committed in similar ways has to be found. The peculiarity of the offence, opportunity to commit it and the propensity of the accused to commit crimes rope that nature then become crucial to the admissibility of such evidence.
- Peculiar facts in M 1963: attacks at similar places, in same manner and at same time and similar appearance and attire of person committing the acts.
- in M 1985: resemblance between two rapes not sufficient to prove accused person’s identity.
- In Thompson: charged with committing indecent acts with 2 boys.
- In D 1991: Rapist used the words “sleep down” in two different rapes.
Etc.
If an accused pleads an alibi, the State may adduce evidence of his presence near the scene of the offence, even if that evidence discloses another crime committed by the accused.
How has the rule of similar facts with regards to systematic conduct/ system (modus operandi), been applied in practice?
Question often arises whether the evidence on one count is admissible on other counts. Put differently: may the court use the evidence on one count as relevant evidence on another? This problem is often the result of single evidence being led on each of multiple counts of the same nature and extent, where there is an uncanny similarity in the way the offences had been committed. Usually offences of sexual nature and this court obliged to apply additional cautionary rules in its evaluation of other evidence.
- In R 1977: Accused, training camp leader, charged with 9 counts crimen iniuria emanating from indecent acts with boys aged between 9-14.
- In Yengeni 1991: evidence of modus operandi of the police was allowed to decide whether confession was made voluntarily.
If SF evidence merely discloses a general disposition to dishonesty, it would be inadmissable. There must be other evidence to which this evidence is relevant, in other words, there must be evidence that an offence has been committed and SF evidence must be such that it makes the inference that it was the accused who committed the act of the current offence, irresistible.
How has the rule of similar facts with regard to intention, been applied in practice?
As presence of intention is question of inference, often very difficult yo adduce sufficient cogent evidence to justify such an inference. To this end evidence of similar conduct is used to prove
intention.
It will usually be knowledge and knowledge of unlawfulness that may be proved. (See Mavuso 1987)
- In Pharenque 1927: State was allowed to question accused about previous convictions for theft by false presences in order to rebut defence of being bond fide in 30 charges of theft by false presences that he was facing.
- In Keller and Parker 1915: accused charged with theft by false presences. State alleged sold glass pieces as diamonds. To disprove defence that they thought was diamonds, State allowed to lead evidence of previous attempts to sell glass as diamonds.
- In Lipsitch 1913: Accused denied that knew what gold looked like.
Evidence that accused has previously made plans to commit offence is also admissible, even if only expressed intention to commit such an offence. Sf evidence also been used to prove common purpose. (See Mtembu 1950)
