Exceptions to Similar Facts Evidence - Common Law & Evidence Act 1950
The main significance is going to be in criminal proceedings than civil and take note SFE brought forth by the prosecution but sometimes the defence can also bring in so. Last week looked at the gene rule which is clear, can’t bring it in because highly prejudicial and it can be unfair. We will spend more time looking at the exceptions.
Why do we exclude SFE? Because it is
unfair and for the interest of justice but it is the exact same reason why we
have created exceptions whereby we allow SFE in. If we don’t allow SFE can be
injustice.
1. Case of Makin
- Is unique because in first limb court established general rule and second
limb allowed exception.
- Accused was convicted.
Current test to determine admissibility of
SFE which is probative value outweighs prejudicial effect. If apply this test
to Makin will realise every time you bring in SFE will be prejudice but on the
facts of Makin, it outweighs the probative effect and therefore SFE allowed.
Exceptions:
A.
Statutory
- Section 11(b) (There is dispute, 2 different school of
tort, some say allow some say argue this is not an exception to SFE) EXAM
-
Section 14 (not controversial,
no dispute, no debate, certain law SFE can be brought in here)
-
Section 15 (not controversial,
no dispute, no debate, certain law SFE can be brought in here)
B.
Common law
-
Makin/ Boardman test
Start on common law because the statute is
influenced by the common law, then look at statute for the purpose of
understanding. There are 2 levels of exceptions so far concerned in this
country.
2. R v Raju [1953] MLJ 131
- “In this country such evidence of similar acts is often admissible under
S.14, 15 and 11”
- So he is one of the judges that
put forth that Section 11 is part of the exception, he made implied
assertion to the reference of common law here.
- Must bring it in for a specific purpose and no other purpose than that
specific one
3. Junaidi [1993] 3 MLJ 217
- Here no reference to section 11, he only referred to 14, and 15 but here he
said “ on the principle laid down in Makin & Boardman, we are of the
opinion that for the purposes of adducing SFE is justifiable on grounds on
relevancy & necessity, in addition to those under Section 14 and 15
- But he says this is in addition to 14 and 15, which is the principle in
Makin. SO based on this, we have 2 levels of exception; one is the common law
and the statute. But as far as statute is in concern, 14 and 15 is an exception
to SFE and no dispute about that.
- Court made it very clear that for Makin revolve around defences but here
can be an anticipated defence because like in Makin it was an anticipated defence
but there must be a real anticipated
defence and not some fancy one.
- (You can see judges are creating exceptions but controlling very tightly
which is correct)
In exam question on SFE will have to come
with cover common law, statute and probably cover all 3 sections.
B. COMMON LAW EXCEPTIONS
The common law influences the 3 sections
(mentioned above) and to appreciate the sections of 14 & 15 need to start
with common law first. The current common law test to determine admissibility
is the probative value outweighs prejudicial effect.
MAKIN
A.
First limb
-
GR: SFE not admissible
B.
Second limb
-
Exceptions
Makin test is called the specific purpose
test and that purposes are:
§ Rebut defence of accident
§ To show system/ modus operandi (designed) to show intentional and clearly
not accident
§ To rebut any other defence which is put forth by the accused
The
exception is very narrow and this is rightly so because SFE by its very nature
is very prejudicial and unfair but in certain very exceptional situation, the
degree of unfairness is the question so need to know this test.
Principle of Makin has already been incorporated
in Malaysia. The cases in first lecture (2 cases in Malaysia)
BOARDMAN
TEST
-
In 1970’s HOL re formulated Makin’s test
with this case
- It is very important Makin was not
overruled it remains good law but what the HOL claims it did, says it reformulated.
-
So when refer to the test, can’t refer it
as the Makin test but refer as Makin/Boardman test
- This is the headmaster who had sexually
assaulted 3 boys and this is a residential school and there is a hostel
- All 3 boys said story was basically the
same, in the early hours of morning A would approach them and ask them to lay
the active role and he plays the passive role
- All the boys are underage boys and nature
of the offence is sexual so when dealing with child witnesses and sexual
offences, you need to find a thing called corroboration
-
Corroboration is independent evidence that
corroborates story of victim
-
So in instances with several victim, bring
in one story to corroborate with the other
-
Here there are 3 charges, they want to
bring each of the victim’s story but this is SFE and clearly cannot bring in
SFE
-
Here he did not raise a defence but mere
denial only
- The trial judge came to the conclusion can bring in SFE for corroboration purposes,
convicted and now appeal based on Makin
-
If you look at Makin, bring in SFE to rebut
defence of accident or any other specific defence by showing system but here didn’t
ask specific defence so technically Makin test don’t apply. (this is his
grounds of appeal)
-
Here HOL made clear, the SFE exception not
confined to Makin only, we are not going to overrule it but reformulating it.
- Require high degree of relevance which is
very probative is required. Where there is a striking similarity between the
facts of one case and the facts of the
SFE and this striking similarity is something cannot be just a mere coincidence
because it is so striking have to be more
than a mere coincidence and to leave out SFE is not common sense.
- So the common sense test is it must be
probative and there must be striking similarities being something unique and
not mere stock trade.
- On the facts of this case, there was
something similar between the 3 boys’ stories. The active and passive role is
striking and in most cases of this kind the older man will play the active role
so in this case it was unique because it is the other way around. The evidence
was therefore probative and not mere stock trade.
-
So the exception to SFE has been
reformulated from Makin to Boardman test.
Impact of Boardman: it expanded the exception here. Makin
was the defences and system issue but there is a controlling mechanism is that there
should be a striking similarity
of being something unique and stock trade, there is a bit of danger and hope
judges exercise their discretion wisely but potential for abuse is there.
The test has further evolved
DPP V P
TEST
- Father charged for raping his 2 daughters
it is incest and the prosecution wanted to hear the charge together so facing 2
different counts and they will be heard together
- The nature of offence is child witnesses
and sexual offences so we need corroboration and it can come in many forms;
medical evidence, DNA etc but another form of corroboration is witnesses is
corroborating one another
- For daughter No.1 to corroborate story of
daughter No.2 so in the end it is SFE cannot bring it in unless there is
exception and when this case was decided the exception was Boardman
-
The facts here, the similarity here in
both cases there was prolonged cause, not isolated incident of sexual assault,
force was used, will get into trouble is girls tell and both cases father paid
for the abortion
- Trial judge says SFE can be brought in and
now A appeals to HOL saying Boardman test not satisfied there must be striking similarity
it must be unique and not stock trade.
- The facts heard would be stock trade in
this instance, where there is incest it is usually prolonged and there is force
and naturally there will be threats and if daughters get pregnant father will
pay for abortion. So Boardman test not satisfied
- He has a good ground of appeal but judges
in HOL disagreed they said it has been misinterpreted all the while where test in
Boardman is that probative outweighs prejudicial, when there is striking similarities
there is probative yes, but not necessarily, it is not a prerequisite so
reformulated again as long as probative outweighs prejudicial is enough.
Through Makin, Boardman and P, the law
becomes wider and wider. We are now very dependent on the judge to see whether
it is more probative or not. At the end of the day SFE as an exception
Makin/Boardman/DPP v P test (probative outweighs prejudicial) notice it is
becoming wider and if on the facts of the case in exam can satisfy Makin, can
therefore satisfy the other two and so on, so cannot discard any one of the 3
cases.
CASE LAWS
ON APPLICATION OF MAKIN/BOARDMAN TEST
4.
R v Smith
-
Bride in the bath case, accused charged
with murder of wife, drowned in the bath tub.
-
Plausible story until look into his
background, moved from one town to another and with different names and finds
women who is reasonably well off and convince them to marry him and it would
usually be against family wishes and ask to go and make mutual will & get
insurance
- Will ask the landlord if there is a bath
tub
-
Became obvious he had a good system and
had modus operandi, marry them ask them to buy insurance and convince them they
are not feeling well to get the doctor to certify so and give them some prescription
that they are suffering from headache
-
If you want to rebut defence of accident
that the 2 other wives died the same way
-
He always told the police, I broke the
door down and I found her drown and the police figured the door was not broken
but open
- Applying the test, bring evidence 2 other
wives died in the same circumstance and the Makin test applied for design, he
raised defence of accident and SFE here brought in to show system and modus
operandi
-
It is probative and there is something
striking and unique as well
-
So very good decision
5.
R v Bond
- Accused is charged with procuring illegal
abortion and his defence was accident that he was giving medical examination
and accidentally aborted
- Prosecution wants to bring in evidence of
another witness to testify A does perform illegal abortion and she was also
inform the court he had told her, “I have helped many young women”
-
This is SFE evidence and admissible to
rebut defence of accident such as Makin
6.
R v Wilson
- He is charged with rape of young women and
he is facing another charge for sexually affecting another women and there are
2 different charges and victim and sexual offences you need corroboration and
prosecution wants to bring in testimony of another victim
- Both incident has similarities, meet them
in a club and offer to give them a lift home and sexually assault them and his
defence is mistake
- “Mistakenly believe they had consented to
intercourse” in both cases, this is his defence, but this is NOT UNIQUE so cannot
bring in SFE because facts of 2 victims is STOCK TRADE & COMMON, hence not
admissible.
- The importance here, it shows how judges
are applying their discretional and not simply allowing SFE under
circumstances, cannot just look at nature of crime
-
The test is probative outweighs
prejudicial and not on striking similarities
-
Boardman no longer applies but can still
influence the court
7.
R v Straffen
- Accused is charged with murder of killing
young girl by strangling her and her boy was found in a public place, no
attempt to conceal her body and no sexual assault and the A was previously
charged and convicted for 2 other murders who are young girls, strangled and no
attempt to conceal and not sexually interfered with and he was already in prison
for the 2 previous charge and escaped from prison, during that short time one
more girl ended up dead as the same manner of previous girls
- After caught, he was charged, it was
mistake of identity and prosecution wants to bring in evidence he had done 2
other crimes in similar fashion and can bring in the evidence of the 2 other
crimes = CAN BRING IN
- It is probative, and unique because no
sexual assaulted and something like this guy’s signature and hi modus operandi
and can bring in other convictions to rebut defence of mistaken identity
- SFE not to rebut accident but to establish
identity (UNIQUE situation)
8.
R v Thompson (EXAMPLE OF SFE BEING ABUSED)
-
Also known as powder puff case
- There is pattern. The accused charged for
assaulting 2 young boys in a public toilet and these boys made a police report
and told the police the man who assaulted them in the toilet had made an
appointment to meet them one week later
- The boys went the second time but this
time police were there to catch them and when the man approached the boys, he
observed the man given them money and at that point arrested him
- They then searched him and found powder
puff and in his house found obscene photos of young boys
- The evidence prosecution wants to bring is
they found the powder puff and the obscene photos. These 2 evidence is SFE
evidence facts which are similar but not connected, nothing to show it is
connected because not like he showed the obscene pictures first then assaulted
them or put the powder and later assaulted them
- It is pure SFE. Dealing separately, the
magazines and photos not admissible and the powder puff also nothing, not found
on the victim
- If you carry a powder puff, you can tell
the character of the person but the court say it is admissible to show his
characteristic is as such having unusual tendency and therefore prejudicial
- The argument is in the powder puff that
was found with him because seems to suggest he is a homosexual although it doesn't necessarily show he is homosexual or he could have assaulted
- This is the CLASSIC CASE to show danger of
SFE and prejudice, no probative value at all. If to say you carry powder puff
and therefore homosexual and hence could have assaulted them, it is very
prejudicial. The child pornography is a different matter as it can go to state
of mind. The issue is it probative?
-
Severely criticized and highly unlikely
that we follow but this is an important case on danger of SFE.
THE COMMON
LAW TEST AND MALAYSIAN CASES
- Does the reformulated test apply in
Malaysia? Meaning DPP v P, clearly Makin applies so the new test applies.
-
Hence the new test probative vs
prejudicial
-
Striking similarity is not a prerequisite
-
Augustine Paul states that the reformulated
test apply in Malaysia
9.
Rauf bin Ahmad [1950]
10. Wong Kok Wah v PP [1955] MLJ 46
11. PP v Veeran Kutty [1990] 3 MLJ 498
12. PP v Teo Ai Nee [1995] 2 SLR 69
- Argued in 1990’s if Singaporean court
starts referring to DPP v P the same applies to Malaysia and now we have Malaysian
cases our judges made it very clear, it will eb the reformulated DPP v P test
13. Azahan Aminallah [2005] 5 MLJ 334 (EXAMPLE OF BEING SFE ABUSED)
-
COA decision, appeal from sessions court
and the charge is rape, incest
-
Accused at trial court facing raping his
15 year old daughter, faces one count
-
Alleged to have raped her in 1996 and
facing one count
- On first day of hearing, he did not have a
lawyer so the hearing was adjourned and postponed to get a legal aid lawyer
- Then came the next date, everyone was
there, legal aid lawyer did not turn up then he put in another application for
another postponement and sessions court say no, proceed with hearing
- The main witness against him is his
daughter and the testimony she gave is the other 3 times, the evidence that is
coming in is SFE and he was only charged for the rape of 1997
- The judge should have stopped the
prosecution, if bringing in SFE must satisfy the probative vs prejudicial test
but the judge didn’t do it, prosecution allowed.
-
Just because it is not objected, should
have been scrutinized by the judge, nothing was done
- At the end of prosecution stage, they said
they want to amend the charge, to include all previous ones and judge allowed
and this man has no legal representation
- The judge said prima facie case established,
and asked A to enter defence and not subject to cross examination because gave
testimony from the dock and he said the girl said all those influenced by his
wife
- Judge said didn’t believe it and the SFE
should not have been allowed and can only be allowed if there is an exception
and the
-
COA was so surprised
“without leave of court SFE that was highly prejudicial…ask prosecution to justify…accused layman unrepresented by counsel…balance up probative value against its prejudicial effect, section 15 of EA…not carried out…not shown the probative value would outweigh…serious misdirection, grave injustice…”
- COA referred to several cases, Boardman, DPP v P
nothing with striking similarity but to probative value vs prejudicial
so in short DPP v P applies in Malaysia and no need to have a striking
similarities
-
Ordered retrial
14. R v Z
- Accused was charged with rape and the
defence is mistaken believe of consent he thought they consented
- But in order to rebut such defence,
prosecution want to bring in evidence he had 3 previous charges of rape and
with the same defence put into it
- Prosecution wants to bring in SFE to rebut
his defence of mistaken belief
- The 3 previous charges, 2 resulted in an
acquittal, 1 resulted in a conviction, the accused argued that for SFE you
cannot bring in previous charge which is acquitted
-
So question SFE is it only confined to
previous charges resulted in conviction?
- HOL makes it clear can include to charges
resulted acquittal as well provided the test is satisfied that probative value
outweighs prejudicial
-
Duration to determine probative value
15. R v Barrington
-
Not necessarily coffined to previous
conviction, can be a moral misconduct as well
-
It I wide and not confined to charges and convictions,
now can include acquittal and also misconduct which does not amount to a crime
16. PP v DSAI [1999] 2 MLJ 1
-
Usually SFE is tendered will be tendered
by prosecution but here by defence
- Here court made very clear, SFE is as much
open to defence as it is to prosecution but the test for defence would be
defence not probative outweighs prejudicial but whether cogent enough to raise reasonable doubt
17. PP v Mohamad Roslan [2011] 4 MLJ 826
- COA was using the old Boardman test of
striking similarity as a prerequisite
- At FC, made clear we are no longer using
the Boardman striking similarity requirement and the new test is DPP v P
probative outweighs prejudicial and not necessary to have striking similarities
A. STATUTORY EXCEPTIONS (EVIDENCE ACT 1950)
I. SECTION 15
Section 15 is very narrow.
§ Because of accidental or intentional
§ There has to be a series of act (cannot be isolated situation)
§ The same person must be involved in the series of act
The cases you immediately think of bringing in under
Sec.15 would be Makin, Smith (there was issue of act whether
accidental/intentional, same person involved in all occurrence and there was a
series – known as a system section)
AP in his commentary said 15 should not be read independently
but read with Section 14.
1.
PP v DSAI
-
In addition to the 3 conditions identified
in the section
- It must be of the same specific kind,
there has to be some form of proximity
in time, in method and a nexus between the 2 set of facts
-
Refer to this case where there exist these
requirements in addition to Section 15 requirements.
Note: Section 15 can be used to bring in SFE evidence? Prosecution must have
already established actus reus through direct evidence prima facie, then can
use Section 15 to bring in previous evidence to show this is not an accident
but intentional. Cannot jump in to Section 15 is have not established the
ground work. Will not apply to AR only to MR. Section 15 will be admitted to
rebut accident by establishing system.
2.
Junaidi [1993] 3 MLJ 217
-
Court did not refer to 11(b), only made
reference to Section 14 & 15
-
In addition you have Makin Boardman test
- Here established can’t simply attribute a
fancy defence to the accused to bring in section 15 to rebut accident
- There must be a real anticipated defence
through the case not just any defence but the defence on accident ONLY THEN you
can bring in SFE under Section 15 and need to satisfy the conditions of Section
15 + DSAI
-
So difficult to bring in evidence under
Section 15 because very narrow
3.
Teo Koon Seng [1936]
- We did when we referred in Section 14
because usually prosecution will raise both Section 14 and 15 together
- Here, the charge is on extortion and the
prosecution adduced witnesses who would come and testify accused has habit of
extorting people and done this is previous occasion
-
Prosecution want to adduce evidence of
previous act of extortion under Section 15.
- Q: can they do so? – They will fail
because court said there’s nothing to suggest he is going to raise the defence
of accident because you can’t accidentally extort a person although other elements
of Section 15 were satisfied. There is no issue of whether it is accidental or intentional
so REJECTED.
-
Can only bring it in when there is issue
of accident, intentional or particular knowledge.
4.
PP v Ang An An
-
Accused charged with operating a private
vehicle as a commercial vehicle without license (kereta sapu)
- In order to support charge against him,
they brought in evidence that police officers had observed his activities on
several days and he has habit picking them up and sending them to particular
spot and collect money to show he is running that illegal business
- Q for court: can bring in evidence of
observation made by police officers on other occasions? In short, observations are
SFE evidence. You have to bring it in under one of the section.
-
Court in this case made reference under
section 15 and judge came to conclusion can bring in evidence to bring in
evidence of accident and he stated “settled law past observation relevant under
Section 15 EA question is what manner they would done it – show past acts are
specific kind, a series of act” this case summary of section 15
- There is already evidence of AR, left to
prove whether accidental or intentional so can bring in under Section 15 but
the condition must be of same specific kind and the requirements of Section 15
-
This is a good case.
5.
PP v Mohamad Fairus
- Here, the court made very clear, you can
bring in SFE evidence under Section 15 if you the prosecution have already brought
in direct evidence of AR and established a prima facie case in terms of AR
- Then and only then for the purpose of
showing act was intentional and not accidental and satisfied requirements of
section 15, can bring it in
-
Must have direct evidence of AR before you
can turn to Section 15
*both section 14 &15 are quite narrow by looking
at the cases*
II. SECTION 14 (Deals with state of mind)
Sec.14 is a bit wider because it covers a lot more mens rea because not only accidental and
intentional but can cover on recklessness and there’s no issue on the same type
of occurrence for the same person being involved. That is why judges said
Sec.14 & 15 must be read together. But although 14 is wide, it has been
narrowed down but clearly not as narrow as 15.
Look at explanation 1 and explanation 2 and it cannot
be read in isolation.
It is interpreted in a narrow way by the judges and it
was done so because of explanation 1 which requires that it cannot be general
but must be specific.
*read together Section 14 and Section 15*
They ought to be read together because there’s
connection to the two sections that Section 15 is an extension of Section 14. Section
14 compared to S.15 would be wider and both dealing with mens rea type of SFE. Go
back to common law cases.
The case prosecution brought in SFE to establish mens
rea: Makin, Smith.
The case the prosecution brought in evidence but not
so much in relation of mens rea but to establish actus reus: Streffan (mistaken identity)
– When saying so denying both mens rea and actus reus.
This defence affects to the root of the crime as well. A case like this you can’t
discuss under both section but for Makin you can.
First limb
of Section 14 is relevant and explanation 1 tells you why given narrow application
and explanation 2 shows you can bring in SFE under Section 14.
Note: courts have taken a restrictive approach to this
section based on explanation 1 and the illustrations to the section.
6.
Teo Koon Seng [1936]
-
Here court made very clear will take restrictive
approach towards interpretation of Section 14
-
Allows only those which ahs immediate
reference to the fact in issue can be brought in.
7.
PP v Teo Ai Nee [1995] 2 SLR 69
- It is a Singaporean case but they have the
same type of Section 14 so we can refer to their judgements. The court again
made it very clear in referring to explanation 1 in interpreting the section
that before SFE evidence can be brought in under Section 14, it must show a
specific intent and not general intent.
-
He further referred to illustrations
- So the 2 cases here shows nothing general
can be brought in, must be very very specific and interpret largely based on
the illustrations which is restrictive.
8.
X v PP
- This is a case where the accused was
charged with aiding gangsters to demand money from their victims on the 14th
of October
- Prosecution wanted to bring in evidence
that he was seen hanging around with these gangsters about 14 days before the
actual incident.
- Court referred to Section 11(b) and
Section 14 and under both section court came to the conclusion can allow this
evidence in.
9.
Anthony Ler Wee Teang v PP [2002]
- Did this case last trimester, the man who
shared his thoughts to get someone to kill his wife and was charged for
conspiracy to murder his wife. It can be brought in because very specific
- But not so much in SFE although involving
section 14because statement made to the particular crime. Just to show how
judges interpret
Summary of
Section 14: it is to codified common law but suggested that
Makin, Boardman and DPP test is wider than what can be brought in under Section
14 because not confined to mens rea rebuttal but this section is largely
confined in establishing mens rea. Can refer to Streffan and Thompson
where defence was on mistaken identity, SFE brought in to rebut identity and
these two cases if you discuss under Section1 4, you cannot bring in the SFE
evidence because goes to root of crime of actus reus so clearly common law is
wider.
So that is why we still refer to common law and why we
still want common law, because our own sections are not there except Section
11(b) which is quite wide.
III. SECTION 11(b) – Last part
of SFE
Whenever SFE is being brought it, it is to support
inference that accused committed the crime. So the logic to argue 11(b) to admit
it is very simple which is to say the commission of the crime is highlight
probable.
The logic of bringing in similar fact evidence based
on the perception that when you bring it in, you make the present charge highly
probable as compared to without SFE. Test for Section 11(b) is high probability
and common law current test is probative outweighs prejudicial and there is a
big difference between these 2 tests. Probative is more difficult to satisfy
hence a more narrow test. So it can be said that Sec.11(b) is quite wide which
is why a lot of judges are against S.11(b).
Very controversial part because break up into 3 limbs.
-
Yes/No/Maybe
A. YES
SFE may be admitted on the basis that the
evidence renders it highly probably that it was the accused who committed the
offence
10. R v Raju 1953] MLJ 131
11. Abu Bakar v Ismail
-
Charged for making false endorsement in
license
-
Making endorsement without verifying you
have a license in Malaysia (charged for corruption)
-
Evidence brought in was with 8 previous
incidents made endorsements without checking
- One of the sections discussed by the court
is 11(b) and the court stated that
“does the fact that on 8 previous commission make it highly probable…material to this charge or to prove having done this before…”
court concluded the evidence objected to the person likely to commit
the 2 acts he was charged
- In short court referred to 11(b) makes it
highly probably that he did not look at the license before he endorsed in as
his present charge and was SFE allowed and admitted. This is totally different
from test in common law. Here used high probability case
12. X v PP [1951]
B. NO
Leading advocate here is AP
(i)
First reason why they said no
13. DSAI
-
Referred to section 54 and accepted the
interpretation of Section 11(b).
-
Can’t bring in SFE under section 11(b)
(ii)
Accepted interpretation of Section 11(b)
(second reason why they said no)
14. Rangayyan v Innasimuthu [1955]
- The court interpreting Section 11 came to
conclusion it will only apply to facts which are immediately connected to the
fact in issue
- SFE = similar but not connected. So by the
own definition cannot fit under Section 11(b) because 11(b) need to be
connected so how to argue 11(b) allows SFE.
- 11(b) demands there must be some form of
connection that is why Augustin Paul said 11(b) won’t work
15. Ismail v Hasnul [1968]
- FC decision here, court stated Section 11
don’t admit facts which has no practical connection with the main fact
-
So there is consistency ‘only facts
connected/immediately connected” why? Because it is in the section.
(iii)
Stephan’s interpretation (third reason)
-
Jeffrey Pinsler (extract in page 195) said
only apply to facts which are connected to bring in SFE. In his article he went
on to state the sections that deals with SFE are 14 & 15 that is it.
16. P v Pharbudas Ambaram [1874]
- Court made it very clear that Section 11
of IEA should not be construed in the widest significance but limited by
Section 54
- So in same idea with AP in DSAI, 54 should
prevail over Section 11, so SFE cannot be brought in under Section 11.
- Hence even though coaching, if not
connected SFE cannot be brought in.
C. MAYBE
-
Jeffrey Pinsler & Pharbudas are the
culprit
- Jeffrey said if at all to come in under
11(b) can bring in SFE evidence of AR because mens rea taken care by Section 14
& 15 otherwise the two sections become redundant.
- So next question what test? The statutory
test of highly probable of common law test? He said you use the common law test
and he got this idea from Pharbudas where the court came to conclusion if at
all Section 11(b) allows SFE would be no wider than the current common law test
which is probative outweighs prejudicial
- Conclusion of conventional wisdom of 11(b)
is SFE not admissible but since 14 & 15 don’t cater for actus reus SFE, so
can use section 11(b) but test is probative outweighs prejudicial
Take note, Sec.15 the type of SFE bringing in is to
rebut accident, Sec.15 evidence related to mens rea. Section 14 is to show
state of mind, bodily feeling doesn’t really come in for SFE so it affects mens
rea. So both these provision when you bring in SFE you are bringing in on mens
rea. But on Sec.11(b) nothing said on mens rea so would it be mens rea? Actus
reus? It can be both because it is too general because not confined to one
element only as long as anything highly
probable can be brought it.
Writers said that since S.14 & 15 bring in mens
rea, so Sec.11(b) you cannot bring in mens rea but only actus reus. So the
interpretation of SFE evidence relating to actus reus comes in under 11(b) and
for those relating to mens rea comes under S.15 and when it is on accidental
comes under S.15
At common law, if we use Makin, Boardman and DPP v P
test, it is wider than all the 3 sections because you can bring in both. Lately
there has not been much reference to 11(b).
DOES THE COMMON LAW TEST APPLY TO THE SECTIONS?
-
Without consideration of Section 11(b)
- Current approach suggest that Section 14
&15 impliedly requires the balancing test as put forward in Makin/Boardman/DPP v P
-
Wording of section by itself has nothing
to suggest judges to use common law balancing test
-
But our judges having sentimental
attachment to common law try to incorporate it whenever possible so it was
impliedly incorporated into Section 14 & 15 of the common law test
-
So in addition to satisfy requirements of
that section to bring in SFE under that section, you also need to show
probative outweighs prejudicial and the court needs to do balancing of it and
if the court doesn’t do so can be prejudicial in the case of Azahan.
17. Tan
Meng Jee v PP 1998] 1 MLJ 537
-
A balancing process must take place when
bringing in SFE through Section 14 & 15
- If you look at Section 14 & 15 nothing
showing to refer to common law test? No but yet they incorporated
18. PP v Teo Ai Nee [1995]
-
Position was further reinforced in this
case
19. Azahan Aminallah [2005]
-
14 & 15 impliedly requires us to bring
in common law test
20. PP v Mohd Razlan bin Lisa
-
FC judgement from 2011 and judges made it
very clear they incorporate balancing test as far as Section 14 & 15
requires it from DPP v P test
Should we incorporate common law under Section 14
& 15? Or statute is enough to protect? This is for us to answer based on the understanding of this discussion.
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