similar fact evidence Flashcards
what is SFE?
Evidence that a party to the proceeding has behaved
on other occasions in the same way as he is alleged to have behaved in the case currently
being considered by the court
two sets of facts in determining SFE
o (1) facts that are now in issue before the court
§ These are the facts upon which the court must make a decision
o (2) facts similar to the facts in issue before the court, but these facts themselves are
not in issue
NDUNA V S on when SFE is admissible
- SUFFICIENTLY RELEVANT to some issue
- if its relevance does NOT ONLY go to CHARACTER
o Logically, the same conditions render the same results, but practically, difficult to convince court that the conditions on both occasions were sufficiently similar to meet the admissibility requirements.
DELEW case on difficulty to admit SFE
o FACTS: Amusement Park owner wanted to show that he was overcharged for electricity. To do this, he presented evidence from previous accounts, which were much smaller.
o HELD: Court refused to consider the previous accounts because some other factor may have caused the variation, which was overlooked.
HOLLINGTON V HEAD as another example of difficulty of admitting SFE
o FACTS: Plaintiff alleged he purchased item from Defendant, who gave him a warranty.
To prove this, he called witnesses who also purchased the same items from Defendant and received warranties.
o HELD: The fact that others were given a warranty does not, without more, mean that a warranty was given to the Plaintiff.
LAUBSHER V NATIONAL FOODS as anither example of difficulty to admit SFE
o FACTS: Plaintiff sued Defendant for damages alleging that his pigs died due to contaminated food that he bought from the Defendant. During the trial, the Plaintiff wanted to present evidence of
other farmers whose pigs also ate the Defendant’s food and similarly died. The court excluded the evidence about the other farmers because it amounted to inadmissible similar fact evidence.
o HELD: Different situations were not similar enough: pig food not purchased at the same time, pigs did not fall ill in same period after eating food, circumstances on different farms were not similar
Parties involved when considering SFE
Similar facts involve not only one of the parties (Plaintiff/Defendant; Applicant/Respondent) or (State/Accused), but may also involve a witness, like a complainant in criminal matters.
▪ (Often in sexual offence matters).
Purpose of SFE
To show that the party to the litigation or witness behaved on some other occasion in the same way they are alleged to have behaved at the occurrence in contention
Admissibility of SFE
and give reasons for this stance
its generally inadmissible because it is irrelevant
- The probative value of the evidence is usually outweighed by the prejudice that could result from the admission of the SFE
- May cause confusion and waste time, as well as contaminate the independent mind of the court.
when and how can SFE be admitted?
o When the Similar Fact Evidence is BOTH logically and legally relevant, it may be admitted in criminal and civil matters
S V MAVUSO
on admission of SFE
o Magistrate allowed cross-examination of Accused on past dagga trade convictions. Accused’s defence - although dagga was found in his possession, he never had anything to do with it, didn’t know how it smelled.
o HELD: SCA held that such evidence was inadmissible because there was insufficient similarity.
▪ Had the state presented details of the circumstances of the previous convictions and specifically established that the accused knew the smell of dagga, it may have passed the relevance test.
▪ The definition of trade in dagga was such that the accused didn’t need to have personally handled the dagga.
Justifications for
exclusionary rule
of similar fact
evidence:
▪ Such evidence is mostly irrelevant.
▪ The prejudicial effect outweighs the probative value.
▪ It is premised on wrong inferential reasoning - inferences must be drawn from proven facts and be the only reasonable inference from the proven facts.
▪ Accused cannot be expected to defend charges brought by State AND to defend other misconduct or past conduct for which they were not charged.
▪ It may result in unfair procedure - accused may be surprised when confronted with their past conduct.
▪ Collateral issues may arise, which extend the length of the trial, making it more expensive and wasting judicial resources.
▪ May undermine proper administration of justice – relying on past offences is easier than proving guilt on a current alleged offence.
▪ It may offend the idea behind rehabilitation, where a rehabilitated person may start on a clean slate.
▪ SAPS may retreat to poor investigations and overly rely on suspect’s past criminal record - may also place undue pressure on accused and induce involuntary and/or unconstitutional confessions + admissions.
Formulation of a rule
Navigating the many prejudicial factors associated with SFE make it diff to formulate a rule against SFE
Zeffert & Paizes on formulation of rules related to SFE
o theres no precise formular or precision to include or exclude SFE
In essence, the judge has to decide whether it would be wise or silly to exclude similar fact
evidence that, to a greater or lesser extent, implicated the accused.
The Makin rule
This rule, from a foreign jurisdiction (New South Wales [Australia]), can be advanced as follows:
(a) It is not competent for State to present evidence of previously committed crimes that is not part of the charge sheet for the mere purpose that the court conclude that the accused has a propensity (inclination or tendency) to commit the offence that he is charged with.
(b) That said, there may be circumstances where such evidence is admissible.
(c) It may be that such evidence of previous crimes beyond the charge sheet is relevant.
(d) Such evidence will be admissible if relevant to an issue before the court.
(i) It may be relevant to show the impugned conduct (what the current trial is about) was intentional rather than accidental; OR
(ii) it may be relevant to rebut any defence available for the accused to take.
What does Makin rule do?
MAKIN TEST ALLOWS SIMILAR FACT EVIDENCE TO BE ADMITTED IF IT HAS SOME RELEVANT, PROBATIVE PURPOSE BUT WILL BE INADMISSIBLE IF IT ONLY SERVES TO SHOW PROPENSITY OF THE ACCUSED.
Elaborate on the condition that conduct must be intentional rather than accidental through the Makin case
EVIDENCE OF PROPENSITY MAY BE ADMISSIBLE IF IT SHOWS INTENT (AS OPPOSED TO AN ACCIDENT)
o The MAKIN V ATTORNEY GENERAL FOR NEW SOUTH WALES
▪ Husband and wife are charged with the murder of a young child found buried in their garden. They fostered the child and received insufficient money for the child’s maintenance.
▪ The state accused and charged both with murder. Their defence was that the child died by accident, and they admitted to being guilty only of an irregular burial offence.
> The above facts are consistent with both the state’s version and the version of the accused.
> State then presented further evidence of similar facts: Skeletal remains of other babies were found buried in the garden of previous houses occupied by the accused, and 4 women said that they
had given their babies to the accused in exchange for inadequate maintenance money, and these babies had disappeared.
This evidence (or similar facts) was relevant to the impugned murder charge, as it assisted the state in proving that the death of the deceased child was not accident but intentional.
Evidence of similar facts was admitted.
Similar facts were not intended exclusively to show a propensity to commit crimes but to reveal the identity of the murderers (relevance goes to identity).
o NOTE: Could be said that evidence was relevant because it showed the probability of the defence rather than being relevant for revealing identity of murderers. Fact that so many babies in their foster
care ended up dead and buried in their yard makes their version of events improbable.
elaboratate on the condition that EVIDENCE MAY REBUT ANY DEFENCE AVAILABLE TO THE ACCUSED
o S v MAVUSO
▪ Accused may say that he was unaware that dagga was indeed dagga and, as such, he had no intention to commit crime he is being accused of.
▪ To rebut this defence of a lack of knowledge, state may lay a factual basis regarding a previous conviction, where it may be established that he factually knew the smell and appearance of dagga.
shortcomings of Makin rule
1) Makin says that if the similar facts relate exclusively to a propensity, then and in that event it cannot be admissible.
2) Makin Rule doesn’t explain several cases in which the propensity to commit a crime has been admitted → Evidence so admitted went exclusively to accused’s propensity to commit a specific crime.
case illustrating shortcomings of Makin rule
R V STRAFFEN
o FACTS: Accused was charged with murder of young girl. Evidence was allowed regarding the murder of 2 other young girls. The following similarities/modus operandi/crime signature was presented:
1) All three girls were strangled.
2) Not one of the girls was sexually molested/raped.
3) There was no evidence of a struggle.
4) There were no attempts made to hide the bodies despite such concealment being readily open to the murderer.
> Here, the propensity of the accused is so highly relevant that it is admissible despite the potential prejudice.
▪ Straffen was charged with the murder in the other 2 matters, but he was unfit to stand trial owing to a cognitive disability.
▪ HELD: The evidence was relevant owing to the murderer’s identity.
- The only evidence the State had was that the accused was in the area where the murder was committed.
- Without the SFE, which goes directly to the propensity of the accused (signature + modus operandi), there would have been no prima facie case against the accused
What is the difference between cases where SFE would be excluded, compared to cases like Straffen where it would be admissible.(what determines whether ir not relevant evidence is admissible?)
o The difference“degree of resemblance”
o BUT what the further question is then “What is the degree of similarity?”
o Although evidence of a propensity(natural tendency to behave in similar way), when it is highly unique, can point to the perpetrator’s identity;
o Makin rule: provides that evidence of propensity per se and without more is inadmissible BUT should have said that if the propensity is highly unusual, peculiar, and aberrant, it may be admissible.
o Zeffert + Paizes: Makin can work as formulation provided that a rider be added that, in some instances, ‘propensity’ in itself may be so highly relevant to a particular issue that it may be admissible.
The Nexus
Requirement
Rule
o Nexus requirement: Because of shortcoming of Makin rule, courts use this instead when confronted with similar fact evidence
o In term of this rule, for Similar Fact Evidence to be admissible:
▪ There must be a nexus between the two sets of facts (the Similar Facts Evidence and the Impugned Conduct)
* They must somehow be connected and may not be connected merely because they resemble each other.
How does the nexus need one to show that similar facts must be relevant?
▪ This will be when it can be shown that Similar Facts have probative value because they relate to credibility, identity, probabilities, etc.
o Similar Facts will only have probative value if they give rise to facts and/or a reasonable inference that can assist the court in adjudicating the dispute.
o The reference to a nexus or link should not be applied pedantically(strictly)
case illustrating nexus requirement rule
THE DPP V BOARDMAN
o HELD: the following principle is very important: ‘Similar fact evidence is only admissible where the probative value exceeds its prejudicial(detrimental) effect ’.
o This formulation was accepted in S v D
o The court applauded the MAKIN rule but added the principle of a benefit (probative value) v prejudice.
