Chapter 7 - Similar Facts Evidence

Question 1

SFE

Overview

Answer 1

1) General principles
2) SFE in civil cases
3) Exception at common law - Makin’s Second Law
4) Exception at common law - Boardman’s Principle
5) Exception at common law - Principles in DPP v P
6) Exception under EA - To show specific state of mind - S.14
7) Exception under EA - To establish whether an act is done accidentally or intentionally - S.16
8) Exception under EA - When it makes existence or non-existence of facts in issue or relevant facts highly probable or improbable - S.11(b)

Question 2

GENERAL PRINCIPLES ON SFE

Overview

Answer 2

1) Rule against SFE
2) Application in Malaysia
3) Application in Singapore

Question 3

GENERAL PRINCIPLES ON SFE

Rule against SFE

Answer 3

Makin v AG for New South Wales:

• It is incompetent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than he is being charged for;
• This evidence is adduced 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.

Question 4

GENERAL PRINCIPLES ON SFE

Application in Malaysia

Answer 4

Wong Kok Wah v R:

• Headache Powders are a fairly common commodity.
• The evidence that the accused had been arrested carrying certain goods (‘headache powders’) which is similar to those in respect of which he was charged for was inadmissible because it merely showed that the accused was likely to have committed the offence charged.

Question 5

GENERAL PRINCIPLES ON SFE

Application in Singapore

Answer 5

Poon Soo Har v PP:

• the evidence in respect of past criminal activities of the accused was inadmissible as it offended against the principle laid down in Makin v Attorney-General of New South Wales.
• it tended to show that the appellants had been guilty of criminal acts other than that with which they were charged, for the purpose of leading to the conclusion that they were persons likely from their criminal conduct or character to have committed the offence for which they were being tried.

Question 6

SFE IN CIVIL CASES

Whether SFE is admissible in civil cases

Answer 6

1) English case - Mood Music Publishing Co Ltd v De Wolfe Ltd:

• The courts will admit SFE if it is logically probative;
• i.e. it is logically 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.

2) MY case - Barbara Lim Cheng Sim v. Uptown Alliance (M) Sdn Bhd & Ors [2013]:
- In civil cases the court 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.
3) Standard for probative value in civil case - Pannir Selvam Sinnaiyah & Anor v Tan Chia Foo & Ors (HC, 2019):
- Ref. Mood Music: in civil case, the probative value required is of a lower standard, and not as high as required in a criminal trial.

Question 7

SFE IN CIVIL CASES

Recent application

CA, 2020

Answer 7

Mahmood Ooyub v Li Chee Loong:

• OTF, the court allowed SFE to be adduced as it was satisfied that the probative value overshadows the prejudice that may be caused;
• the plaintiff was given every opportunity to explain the uncanny coincidences but no explanation had been given with respect to facts that are certainly relevant to the defendant’s assertion.

Question 8

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

Overview

Answer 8

1) General principles
2) Conditions for Makin’s second limb
3) Application in MY

Question 9

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

General principles

Answer 9

Makin v AG for New South Wales:

• The Makins were charged for murdering a baby which they had fostered & the baby was buried in the garden.
• The SFE was that there were other babies found in the properties in which the A had lived.
• Held by Privy Council: SFE was admissible as it was used to rebut the defence of accidental death and to show a system of the A’s modus operandi.

Question 10

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

Unique or unusual - overview

Answer 10

1) General
2) Showing a system or modus operandi
3) Showing specific purpose

Question 11

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

Unique or unusual - general

Answer 11

R v Wilson:

• Charge: rape
• SFE: assaulted other women in separate incidents.

Held:

• SFE is inadmissible if it was too common and did not amount to a system.

Question 12

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

Unique or unusual - Showing a system or modus operandi

Answer 12

R v Bond:

• Charge: procuring miscarriage;
• SFE: has procured miscarriage & told her that he has done it to dozens of other girls before.

Held:

• it is an evidence of a system on the part of the accused.
• When evidence is given of a system, it becomes permissible to prove any case which forms part of the system & the operation which the accused attempted on her;
• This is to corroborate the evidence she gave as to the statements the accused made to her.

Question 13

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

Unique or unusual - Showing specific purpose

Answer 13

R v Smith:

• Charge: Murder, but claimed the wife was drowned.
• SFE: two other women whom he married have died similarly.

Held:

The Court held that the SFE is admissible to show that the death of the woman could not have been an accident.
“If you find an accident which benefits a person (i.e. purpose) and you find that the person has been sufficiently fortunate to have that accident happen to him a number of times, benefiting him each time, you draw a very strong, frequently an irresistible inference, that the occurrences of so many incidents benefiting him is such a coincidence that it cannot have happened unless it was a design”.

Question 14

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

Unique or unusual - Showing specific purpose

Answer 14

R v Smith:

• Charge: Murder, but claimed the wife was drowned.
• SFE: two other women whom he married have died similarly.

Held:

• SFE is admissible to show that the death of the woman could not have been an accident.
• “If you find an accident which benefits a person (i.e. purpose) and you find that the person has been sufficiently fortunate to have that accident happen to him a number of times, benefiting him each time, you draw a very strong, frequently an irresistible inference, that the occurrences of so many incidents benefiting him is such a coincidence that it cannot have happened unless it was a design”.

Question 15

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

Not limited to mens rea only - overview

Answer 15

1) to rebut accused’s allegations
2) to show A’s criminal disposition to commit the offence
3) to rebut defence of accident

Question 16

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

To rebut accused’s allegation/defence

Answer 16

Thompson v R:

• Charge: gross indecency with two boys;
• SFE: indecent photographs & powder puffs;
• SFE is adduced to rebut his defence that he had not been correctly identified.

Question 17

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

To show A’s criminal disposition to commit the offence

Answer 17

R v Straffen:

• Charge: murder by strangulation;
• SFE: A’s confession to the murder of two other girl of which the circumstances were almost identical;
• SFE was admitted to show the A’s criminal disposition to commit the murder in question.

Question 18

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

To rebut defence of accident

Answer 18

Makin v AG for New South Wales:

• Charge: murdering baby;
• SFE: there were other babies found in the properties in which the A had lived.
• SFE was admissible to rebut the defence of accidental death and to show a system of the A’s modus operandi.

Question 19

EXCEPTIONS AT COMMON LAW - MAKIN’S SECOND LIMB

Application in Malaysia overview

Answer 19

1) Association with S.15

2) Examples of application S.15

Question 20

APPLICATION OF MAKIN’S SECOND LIMB IN MALAYSIA

Association with S.15

Answer 20

1) The law:
- S.15
2) Association & scope of S.15 - Maidin Pitchay & Anor v PP:

• The Court associated s. 15 EA with the 2nd limb of Makin.
• S.15 enables the prosecution to offer evidence in advance to rebut a defence which would otherwise be open to the accused and such evidence is admissible even though it may tend to show the commission of other crimes.
• The authority for this proposition is in Makin v AG for New South Wales.

Question 21

APPLICATION OF MAKIN’S SECOND LIMB IN MALAYSIA

Examples of S.15

Answer 21

1) Wong Yew Ming v PP:

• Charge: drug trafficking and the facts were that he was in possession of the drugs in question.
• SFE: A had on previous occasions sold dangerous drugs.

Held:

• Possession of the drugs is proved affirmatively.
• SFE was admissible to show that the possession in question could not have been accidental.
• However, it is to be noted that actus reus must be proven before S.15 is invoked, unlike Makin’s.

2) cf. PP v Mohd Fairus Omar:

• Charge: drug trafficking.
• SFE: A had on previous occasions sold dangerous drugs.

Held:

• cf. possession of drugs in Wong Yew Ming is made out.
• OTF, SFE was inadmissible because possession of the dangerous drugs in question was not made out.

i. e.
- Although S.15 has been associated with Makin’s, S.15 is only applicable when the actus reus has been established.

Question 22

EXCEPTIONS AT COMMON LAW - BOARDMAN’S PRINCIPLE

Overview

Answer 22

1) General principles
2) Scope of probative value
3) Application in Malaysia

Question 23

EXCEPTIONS AT COMMON LAW - BOARDMAN’S PRINCIPLE

General principles

Answer 23

1) Conditions for admissibility - Boardman v DPP:

• SFE is admissible if it can be shown that those offences shared with the offence which was the subject of the charge shared common features which is of an unusual nature and strikingly similar to one another;
• i.e. it would be weird to assert that the similarity is a form of coincidence.
• Judge had a discretion to admit the evidence if he was satisfied on two things:
• (a) that its probative force in relation to an issue in the trial outweighed its prejudicial effect; and
• (b) that there was no possibility of collaboration between the witnesses.

2) Duty of judge - Boardman v DPP:

• the judge should weigh the probative value of the evidence against its prejudicial effect.
• If the SFE was so weak, so unreliable or so contaminated that its probative value was outweighed by its capacity to prejudice a jury, then it should be excluded.

Question 24

EXCEPTIONS AT COMMON LAW - BOARDMAN’S PRINCIPLE

Scope of probative value

Answer 24

R v Scarrott & Azahan Mohd Aminallah v PP:

• Positive probative value is required if SFE is to be admissible.
• Mere repetition of similar facts do not give amount to probative value;
• There has to be some features in the evidence sought to be adduced which provides an underlying link.

Question 25

EXCEPTIONS AT COMMON LAW - BOARDMAN’S PRINCIPLE

Application in Malaysia - whether applicable

Answer 25

1) PP v Veeran Kutty:
- the Boardman principle is applicable in our courts as it has merely modified the ratio in case of Makin & the Makin having been relied on and accepted in our courts for a long time.
2) Junaidi bin Abdullah v PP:

• SFE is admissible is the purpose of adducing such evidence is relevant and necessary to rebut any defence which would otherwise be open to the accused (in addition to those under S.14 & S.15);
• this is so provided that the probative value of such evidence outweighs its prejudicial value.

Question 26

EXCEPTIONS AT COMMON LAW - BOARDMAN’S PRINCIPLE

Application in Malaysia - example

Answer 26

Azahan Mohd Aminallah v PP:

1) How to admit SFE:

• If SFE is to be admitted under S.14 or S.15 or S.11(b), balancing exercise under Boardman must be carried out.
• The court would be justified in admitting SFE where its probative value is outweighed by its prejudicial effect.

2) Failure to hold balancing exercise:

• Amounts to a serious misdirection & a grave miscarriage of justice.
• 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;
• This is impliedly required by S.14 and 15.

Question 27

EXCEPTIONS AT COMMON LAW - PRINCIPLES IN DPP v P

Overview

Answer 27

1) General principles

2) Application in Malaysia

Question 28

EXCEPTIONS AT COMMON LAW - PRINCIPLES IN DPP v P

General principles

Answer 28

DPP v P:

• While probative force may be derived from the striking similarity of the SFE, this was not a pre-requisite admissibility.
• House of Lords had retracted the requirement of ‘striking similarity’ and ruled that it was inappropriate to single out ‘striking similarity’ as an essential element in every case.
• However, it still requires SFE to have an enhanced relevance or substantial probative value before it is admissible against an accused in a criminal trial.
• i.e. principles in DPP v P is that striking similarity is not a pre-requisite.
• i.e. however, balancing exercise must still conducted.
• i.e. SFE is admissible only if the probative value is more than the prejudicial effect.

Question 29

EXCEPTIONS AT COMMON LAW - PRINCIPLES IN DPP v P

Application in Malaysia

Answer 29

1) PP v Mohamad Roslan bin Desa (FC):

• It is not necessary that there must exist “striking similarity”.
• But the judge still have to conduct balancing exercise;
• The trial judge has a discretion to exclude SFE if the prejudicial nature outweighs its probative value.

2) PP v Yap Chai Chee (CA):

• 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 in DPP v. P in terms of probative value as against its prejudicial effect.
• DPP v. P is in line with S.14 and 15 of the Evidence Act as ‘striking similarity’ has never been a requirement of the said sections.

Question 30

EXCEPTIONS UNDER EA - TO SHOW SPECIFIC STATE OF MIND

Overview

Answer 30

1) The law & scope

2) Conditions for admissibility

Question 31

EXCEPTIONS UNDER EA - TO SHOW SPECIFIC STATE OF MIND

The law & scope

Answer 31

1) The law:
- S.14
2) Scope - Teo Koon Seng v R:

• SFE cannot be used to assist the proof of essential ingredient of the offence;
• OTF, dishonest intention is an essential element of the offence which the accused is charged for;
• Held: No SFE can be admitted to prove dishonesty where such other evidence had no other connection with the issue before the court.

Question 32

EXCEPTIONS UNDER EA - TO SHOW SPECIFIC STATE OF MIND

Conditions for admissibility

Answer 32

1) The law:
- Explanation 1: state of mind must refer to the particular matter in question;
- Explanation 2:
2) Application - PP v Teo Ai Nee:
- The accused must be simultaneous possession of the subject matter in the previous charges & present charges.

Question 33

EXCEPTIONS UNDER EA - TO ESTABLISH WHETHER AN ACT IS DONE ACCIDENTALLY OR INTENTIONALLY

Overview

Answer 33

1) The law & scope
2) Conditions for admissibility - defence must be real
3) Conditions for admissibility - anticipation of defence

Question 34

EXCEPTIONS UNDER EA - TO ESTABLISH WHETHER AN ACT IS DONE ACCIDENTALLY OR INTENTIONALLY

The law & scope

Answer 34

1) The law:
- S.15
2) Scope - PP v Ang An An:
- When the existence of the facts constituting the offence has been established by evidence & the only question which remains to be decided is whether they were done accidentally or intentionally or with the particular knowledge or intention, then SFE becomes relevant and admissible under S.15;

• This is provided that:
• • (a) it is shown that such past acts are of the same specific kind; and
• • (b) they form part of a series of occurrences in which the person committing the act is concerned.

*and the balancing exercise is carried out as per Azahan Mohd Aminallah v PP.

Question 35

EXCEPTIONS UNDER EA - TO ESTABLISH WHETHER AN ACT IS DONE ACCIDENTALLY OR INTENTIONALLY

Conditions for admissibility - overview

Answer 35

1) Defence must be real

2) If defence is anticipated, offence must first be established

Question 36

EXCEPTIONS UNDER EA - TO ESTABLISH WHETHER AN ACT IS DONE ACCIDENTALLY OR INTENTIONALLY

Defence must be real

Answer 36

1) Principle - Junaidi bin Abdullah v PP:

• There must be a real anticipated defence to be rebutted;
• Not merely ‘crediting the accused with a fancy defence’.

2) Example - Teo Koon Seng v R:
- The Court held that the SFE was irrelevant and inadmissible as there was no issue arises as to whether A received the money accidentally or innocently.

Question 37

EXCEPTIONS UNDER EA - TO ESTABLISH WHETHER AN ACT IS DONE ACCIDENTALLY OR INTENTIONALLY

Anticipation of defence - principle

Answer 37

PP v Ang An An:

• SFE is relevant & admissible under S.15 to anticipate any possible defence which would otherwise be open to the accused.
• SFE is not to be substituted as proof of the alleged facts which constitute the offence, i.e. the offence must be established independently.

Question 38

EXCEPTIONS UNDER EA - TO ESTABLISH WHETHER AN ACT IS DONE ACCIDENTALLY OR INTENTIONALLY

Anticipation of defence - example

Answer 38

1) Wong Yew Ming v PP:

• The offence committed has been established and the only issue in question is whether the possession is accidental.
• Held: SFE was admissible to show that the possession in question could not have been accidental.

2) cf. PP v Mohd Fairus Omar:
- SFE was inadmissible because possession of the dangerous drugs in question was not made out.

Question 39

EXCEPTIONS UNDER EA - HIGHLY PROBABLE OR IMPROBABLE

Overview

Answer 39

1) the law & scope
2) conditions for admissibility
3) application & example
4) summary

Question 40

EXCEPTIONS UNDER EA - HIGHLY PROBABLE OR IMPROBABLE

The law & scope

Answer 40

1) The law:
- S.11(b)
2) Scope - R v Pharbudas Ambaram:

• S.11(b) is limited and does not let in every conceivable fact merely because it was probative in some way.
• The admissibility of SFE under S.11(b) was based on the categorization approach, not on the simple concept of “highly probability”.

3) Scope - PP v DSAI (No. 3):

• S.11 provides for the relevancy of collateral facts.
• The collateral facts sought to be admitted must be reasonably conclusive to show that it is consistent or inconsistent with a fact in issue.
• see: standard of probability / improbability below.

Question 41

EXCEPTIONS UNDER EA - HIGHLY PROBABLE OR IMPROBABLE

Conditions for admissibility - general

Answer 41

Sarkar on Evidence, ref. to in PP v DSAI (No. 3):

• in determining relevancy the court in the exercise of a sound discretion should:
  1) see that the connection between the fact to be proved and the fact sought to be given in evidence;
  2) determine whether the facts are so close or immediate as to render the co-existence of the two highly probable or improbable.

Question 42

EXCEPTIONS UNDER EA - HIGHLY PROBABLE OR IMPROBABLE

Conditions for admissibility - standard of probability & improbability

Answer 42

PP v DSAI (No. 3):

• The collateral facts sought to be admitted must be reasonably conclusive to show that it is consistent or inconsistent with a fact in issue.
• Only the facts of great weight in bringing the court to a conclusion one way or the other as regards the existence or non-existence of the facts in question is admissible.
• The standard of high probability or high improbability that is required before SFE can be admitted under this section is shown in the Illustration to the section.

Question 43

EXCEPTIONS UNDER EA - HIGHLY PROBABLE OR IMPROBABLE

Application & example

Answer 43

1) Abu Bakar bin Ismail v R:

• Charge: making false endorsement on application forms for driving licence.
• SFE: A had done the same thing 8 times within a month immediately before the 2 occasions for which he was charged.
• Held: SFE was admissible under s. 11 (b) because it made it highly probable that he committed the offence.

2) cf. PP v Jazri Johari:
- HC disallowed the attempt to adduce SFE on the ground that “the evidence of one crime not reduced to legal certainty as in a conviction cannot provide evidence of another unconnected crime”.

Question 44

EXCEPTIONS UNDER EA - HIGHLY PROBABLE OR IMPROBABLE

summary

Answer 44

• Courts have expressed some reluctance in applying S.11(b) to admit SFE;
• But it is ultimately left to the court to exercise its discretion to do so;
• When invoking S.11(b) to admit SFE, it is important that the balancing exercise is conducted to ensure that the requirement of high probability has been fulfilled.