Similar Fact Evidence— Accused Previous Convictions As Part Of Prosecution Case

Question 1

Rule

Answer 1

Normal rule-prosecution —cannot adduce evidence of misconduct—on part of the accused —other than the misconduct with which —he or she is charged

Past convictions, allegations, confessions to other crimes are excluded

However — admitted in exceptional cases—-although basis in which this is done is unclear

1) «categories of relevance» approach (Makin v AG)
2) striking similarity (Boardman v Dpp)
3) probative value outweighs prejudicial effect —now understood as «positive probative value»
(Dpp v P)

Question 2

Current test?? Uncertain

Answer 2

Dpp v p

probative value outweighs prejudicial value

Question 3

Development of rule

Answer 3

Makin—-boardman—-dpp v p—-Cb v dpp—-dpp v Bk,

Question 4

Makin v AG for New South Wales

Answer 4

—Murder of adopted baby
—baby bones—garden of old house
—garden of other places they lived in—13 other babies
—charged
—sought to introduce this evidence— INADMISSIBLE

LATER ADMISSIBLE— MAKIN TEST—Lord Herschel

Test—Need to be relevant to an issue before the jury

Question 5

Makin test —applied in People AG v Kirwan

Answer 5

Accused charges —murder of brother
—recently spent time in prison —-prosecution sought to introduce this as evidence

2 reasons

1) deceased body—expertly dismembered —accused was a butcher in prison
2) deceased had £200 in his house— when brother killed

Accused was spending freely
Arrested with £80 on him

Difficult to apply Makin test ( previous misconduct had to be relevant and strikingly similar to facts )

Question 6

Striking similarity applied in Boardman v Dpp

Answer 6

Headmaster—boys boarding school—charged on 3 counts
HOFL— concerned with only 2 counts—buggery of 1 boy and incitement. To commit buggery with other

Unusual features

Story of boy 1 —corroborated the other

Feature:

• awoke early morn in dorm
• low voice
• taken to boardmans sitting room—acts of buggery

Held -ADMISSIBLE—- striking similarity

Question 7

Issue with striking similarity test

Answer 7

Time consuming —required trial judge to examine much evidence

Unclear meaning of —“striking”

What is striking in one age—mightn’t be in another —leading to inconsistencies

Question 8

Dpp v P

Answer 8

HOFL—reexamined judgement in boardman

Accused-convicted of rape and incest of 2 daughter

Wanted cases tried separately

Striking similarity applicable ??

• prolonged nature of abuse
• use of force
• contrôle over them

Accused behaviour not strikingly similar to child abuse cases

Striking similarity INADMISSIBLE

case went to HOFL

HOFL—- reinterpreted Boardman—-probative force derived from —striking similarities

Question 9

Probative force > prejudicial effect ( current test??)

Answer 9

Test approved in CB v Dpp

Many counts of indecent assault and rape —of 3 daughters —1962-1974

Resquested order prohibiting trial—die to delay

Evidence of daughters— striking similarity

—All abused @very young age 
—A sense of mother 
—Subject to sexual acts and 
—self gratification 
—Threats of violence 

Test applied —Probative force > prejudicial effect

However — in 2011 case of Dpp v McNeill— sc — said Makin test was still test which applied

Confusion in more recent case of dpp v linen 2021– unsure as to which test to apply

— night club — 2 diff girls— rape of 1 and sexual assault of other— drugging ??—- Makin test again??

Question 10

Leading Irish case —people (dpp) v bk aka dpp v Kelly

Answer 10

Applicant—-worked in residential home for children
—charged 10 counts of sexual offences —against various boys

Trial— only proceeded with 4 counts

Held—- count 1 and 2– happened in dormitory

Count 8&9— in caravan

Held— should not have been tried on all counts together

Conviction should be quashed

Count 1 and 2— indecent assault and buggery against 1 boy

Count 8&9– charged—ATTEMPTED buggery of 2 other boys

Should’ve been tried separately ??—tried together — NO “sufficient similarity

Barron j—- ADMISSIBLE— probative value > prejudicial effect
(( applied principles from Makin, Boardman, dpp v p and B v Dpp))

Barron j— counts relating to 1 boy should’ve been tried separately to 2 other boys ?

Count relating to 2 other boys (similar enough- tried together- alleged to have been committed in unusual but identical circumstances)

Question 11

Previous misconduct cases— look @misconduct together with the other evidence in the case

Answer 11

R v ball

• brother and sister -incest —same house —1 bed

Claimed— no sex
Previous occasions —sex —evidence admitted — guilty passion —Makin

R v bond
—doctor— convicted — instruments on his gf— intent to procure abortion
— claimed — carrying out medical examination for venereal disease

Evidence from old gf and cohabitee-1 boated performing many other abortions

Makin test applied

Admissible

Question 12

Cases with strong probative force WITHOUT striking similarity

Answer 12

Pfennig v R - Australian

Pfennig— charged with murder—of 9 yr old
—disappeared without a trace
—-boys bike and clothes—found @spot near river
—appellant —admitted speaking to him day of disappearance —@ spot
—previous abduction and rape—evidence permitted

NOT strikingly similar BUT—probative force

R v straffen

Bad character evidence— relevant to fact In issue

Facts
—charges of strangling 2 young girls
—escaped from broadmoor— another girl strangled in vicinity of prison —-during Brief 4 hr escape

Charged with murder
—prosecution sought to admit evidence of previous murder charge

Firstly— test applied —sting similarities due to :

• same method —manual strangulation
• no sexual interference —motiveless killing
• no attempt to conceal body

However, FINAL test applied — probative value > prejudicial effect

Question 13

Misconduct MUST BE LINKED to accused —in order to have probative force

Answer 13

R v Mansfield

—Mansfield convicted of arson—3 offences
—application for separate trials—rejected
—alleged similarities—sufficiently striking —to warrant admission of evidence

—offences occurred within period of 3 weeks

SIMILAR METHOD— starting fire —acting suspiciously
Told lies—when questioned by police
3rd fire— waste paper bin from his room—found near site of fire

Not linked inHarris v Dpp

—8 counts of larceny
-acquitted on 7 counts
—convicted on 8 counts

Same method of entry — only part of money stolen

On first 7 counts—- connection was —he was on duty in the area

8th count— on duty and found near office— shortly after alarm

—stolen money found in nearby bin

Conviction quashed —first 7 counts —-could not be relied on

Question 14

Look @ misconduct together with the other evidence in the case

Answer 14

Eg R v Ball ( relevant)

R v Bond. ( Makin test) ( abortions)— however, would’ve also satisfied p test