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Similar Facts Evidence Introduction
SIMILAR FACT EVIDENCE
What is SFE: Answer is in the term itself, facts which are similar but not connected to the fact in issue and similar but not the same. The rule is reflected in the maxim “res inter alios actae” all evidence that has nothing to do with the present dispute will be excluded. So if not connected with the present charge cannot be brought in as evidence, therefore not admissible for similar fact evidence. It cannot be brought in just because it is similar.
Example, after moving to Melaka, high theft and arrested and charged but the prosecution found evidence to show had 3 previous conviction for the same offence in Penang, so can this evidence be brought it, the answer is NO. It is similar but not connected and not admissible because it is unfair and prejudicial to the accused. Judge based on the evidence of the present charge.
Under certain exceptional situation, SFE can be allowed in:
- Example of “the lone ranger has struck again” then in this case can bring in the evidence, it is not an ordinary similarity, and it is a striking similarity. There is a difference in it. Want to establish identity.
Take note, SFE cannot be studied in isolation but with character of evidence because it is a sub-species of character evidence, they are together. The rule is bad character evidence not admissible and SFE is considered to be bad character evidence. The focus of SFE is on criminal law.
Various ways party can bring in SFE by prosecution with the standard rule of NOT ADMISSIBLE unless EXCEPTION APPLIES:
- A previous conviction for a similar offence, but not confined to this only but also previous misconduct or behaviour (as in not charged and prosecuted but there’s evidence to show did something wrong and that evidence can be brought in as well)
- A previous charge for a similar offence (meaning charge not found guilty)
- Previous misconduct similar to the present charge
- Factual background (example the Bride in the Bath case). Wife dying is not misconduct but a factual background.
- Accused is charged in single proceedings for several counts. If there is similarity between 2 counts, SFE may be introduced between the 2 counts.
General rule: Not admissible and in the 5 forms SFE comes, not admissible and the classic case that lays down this principle is:
- Makin v AG for NSW [1984] AC 57
- Husband and wife charged with murder of a baby and this baby is not their biological child but given out for fostering.
- The mother of the child is probably a single mum and couldn’t bring up the child and pass it to the couple and gave them money and the prosecution story is they don’t want t spend the money looking after the child, so took the money, killed the child and buried in the garden.
- If charged for murder the probably defence would be accident which is plausible and this was anticipated by the prosecution and in order to rebut this, he wanted to bring up the evidence but they found total of 13 dead babies and they were not charged for the 13 other dead babies but this 1 baby only.
- Can you bring in evidence of the other 13 dead babies? He wants because want to rebut the defence it sounds like a system, take the money from their money, keep alive for short while and pocket the money. So this means, there were intention and premeditated murder and evidence which is enough to hang both of them.
- This is very important but the rule: facts which are similar are not admissible. Look at page 181 and new book page 253. There is an extract from the judgement “Cannot bring in evidence of SFE” and the court established the general rule.
- This judgment is wrong, because he started on telling the general rule and the exception allowed is where you are bringing it in to rebut the defence of accident to show system.
- On the fact of this case, he is bringing it for the basis of the defence rebuttal, so court allowed evidence to be brought in.
- Important at 2 levels, established the general rule and second also established the exception.
- Raud bin Hj Ahmad v PP [1950]
- Court made it very clear, the general rule in the case of Makin applies in this country, SFE not admissible as a general rule. Exception also applies clearly.
- Wong Kok Wah v PP [1955] MLJ 46
- Here again the judge made very clear, SFE is not admissible in this country so Makin applies in this country.
WHY EXCLUDE SFE?
- R v Bond
- Prejudicial effect ( pre judging that the A is more likely to commit the offence because of his previous conviction)
- Unfair
- Not fair from the prospect of natural justice. He only comes prepared to face the present charge so not fair to dig up his past
- Time and cost not the main reason, main reason is prejudicial, unfair and breach of natural justice
Prosecution always wants to bring in SFE to show A is capable of committing this crime but need to convince court bringing it in to establish system, simply saying to show his character it sounds prejudicial and court will not allow it.
*Fully self typed out & structured based on what I've learnt and understood from the lecture class*
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