lOMoARcPSD|3990813
Syarisa Rozlan
SIMILAR FACTS OF EVIDENCE (SFE)
1. DEFINITION & GENERAL RULE
- SFE: Evidence of the accused previous
misconduct which he committed similarly to
the current charge.
- Similar does not mean ‘same’, it could be any
similarity (ex: how he commit an offence,
category of victim he pick, his nature of crime
etc)
- Wtv similar facts in the previous misconduct
that can be brought forwards by the prosecution
against the accused.
- General rule:
Noor Mohamad v The King
Accused was tried for the murder of his wife and
his wife was poisoned with potassium cyanide.
The conviction was based on the evidence that
some 2 years earlier, his previous wife was died
in the same way.
Held: The evidence is not relevant to prove the
charge bc the evidence was highly prejudicial as
we do not look at the acc’s previous criminality
conduct to prove whether he commits the crime
he currently charge.
**General rule: SFE to show previous
misconduct of an accused to prove the current
offence is not admissible.
COMMON LAW POSITION
1. SPECIFIC PURPOSE TEST (first test
admitting SFE).
Makin v AG of New South Wales
Acc person (Makin – H&W) was charged for murder
of baby. The prosecution wished to produce
evidence of other witnesses that both of the acc
persons had been receiving other babies in a similar
manner under the pretext of wishing to adopt the
babies. Furthermore, the remains of few babies were
found buried in the garden of houses previously and
currently occupied by them and the remains of these
babies were found buried in similar ways.
Held: Court accept the evidence with a condition
that there must be a specific purpose for prosecution
to bring in SFE. In this case, the specific purpose is to
rebut the defence of accident raised by the accused.
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2. STRIKING SIMILARTY TEST
- It does not matter for what purpose you bring in
SFE, but you must show that there must be
striking similarity facts.
- Facts which is so unique in that particular case
(ex: cannot just to show habit or coincidence).
R v Sims
Accused has been charged for 6 counts of
homosexual offences involving four men and all
the men gave evidence that the accused invited
them to his house and commit the offence.
Held: the evidence of one charge was admissible
on another charge bc the act they describe is
strikingly similar. And the court gave the idea of
what is striking similarity that the incident must
show:
a) Underlying unity
b) Striking resemblance
c) Unusual features
d) Uniquely similar or system (modus
operandi)
R v Smith
The bride in the bath case. Acc was charged for a
murder of his wife, but evidence was offered by
prosecution of two other murder (previously alleged
to be committed by the accused). The acc married
rich women and made financial arrangement before
their marriage. All victims were drowned in bathtub
and alleged that it was an accident during
honeymoon.
Held: Court allowed this evidence bc there has been
a motive, acc picked particular type of victim, and all
of them died in the bathtub during their honeymoon.
**What should look into is whether it fulfils
requirement in R v Sims.
3. PROBATIVE VALUE TEST
Borgman v DPP
criticised specific purpose test and affirm striking
similarity test. But added that SFE should not be
admitted if it is too prejudicial. Thus, SFE can be
admitted if the probative value outweigh its
prejudicial effect.
In this case, the accused was charged with outraging
modesty of 2 school boys. The accused was the
 lOMoARcPSD|3990813
Syarisa Rozlan
SIMILAR FACTS OF EVIDENCE (SFE)
principal of the school. The modus operandi of the
accused is the accused always make a night check in
every dorm and invited student of him to his room.
In his room, he will asked the victim to conduct gross
indecency. The way how the accused do that is by
using:
a) his authority as a principal.
b) pick a specific time where other
students is asleep.
c) being passive during the act.
Held: There could be a possibility of fabrication or
concoction and prejudicial effect that the court will
reject the evidence from the boys. But what could has
been stated by the boys during cross-examination is
consistent. The striking similarity should be looking
at their stories rather than their physical attributes.
The court further affirm the striking similarity and
stressed out that there should be no prejudicial effect
to accused person. The evidence must have more
probative value than prejudicial effect (this depends
of the facts of the case)
**Must find what is so similar and usually the acc’s
modus operandi.
MALAYSIAN POSITION
- usually admitted under section 15 ‘similar
occurrences’ (reflect specific purpose and
striking similarity)
- section 11 just to show the act of accused is
highly probable or improbable to commit the
crime.
- Section 14 just to show existence of state of
mind or body.
1) Section 11(b)
- Not connected to the FII but can be connected
if they are facts which highly probable or highly
improbable.
- Ex: Admit alibi under section 11 bc alibi is not
a defence but merely suggested that it is highly
improbable for the acc to commit the offence
(usually homicide cases)
- It actually would prove whether the acc
person is highly probable to commit the
crime.
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- just admit the evidence of probability that the
acc committed very high bc the acc acted in the
similar manner as previously.
RV Raju & Ors v R
There were 3 accused and were charged for
corruption but the 3rd accused was charged with
abetting the corruption. When they were
arrested, 1st and 2nd accused doe sot have the
money, only the 3rd accused has the money in his
possession. The charge is concerning abetting
corruption.
Held: Court disallow the evidence of probability
under section 11:
o They were not charged for the previous
misconduct (1st and 2nd accused).
o To use evidence of system would be
actually highly prejudicial towards 1st
and 2nd accused.
o 3rd acc has been doing the particular act
systematically and probability of the
acc committing the crime of abetting
corruption is highly probable.
AbuBakar Ismail v R
Accused person was charged for making
false statement for the purpose of granting
driving license. Accused is an assistance
licensing officer. He should actually look at
the Malaysian driving license then only can
tick the box that he has seen the applicant
driving license.
Held: The probability is very high for the
accused to commit the crime and evidence
of other witnesses which states that the
accused has been doing this under section
11.
2) Section 14
- Facts showing the existence of state of mind or
of body or bodily feeling.
- Explanation 1: state of mind must show that
the state of mind not exist generally but must be
specific (ex: cannot admit evidence of habit or
normal thing to do under section 14)
- If have knowledge, ill will, intention etc then
can admit evidence under section 14.
- state of mind (intention) : illutration (e) –
(j)(o)(p)
 lOMoARcPSD|3990813

Syarisa Rozlan
SIMILAR FACTS OF EVIDENCE (SFE)
- Knowledge: illustration (a) – (d) Azahan Aminallah v PP
- negligence: illustration (n) The accused was charged with rape of his daughter.
- Bodily feeling: (k)(l)(m) Accused applied for legal aid and court gave
postponement. But when the case was tried agan, the
PP v Teo Ai Ni & Anor
accused was not presented and applied for
Where the court explained how section 14 works. adjournment again but court refused accused remain
Accused was charged for possession of infringing unpresented). When the trial begins, he faced one
copies. PP bring in evidence of similar facts to show charge and after complainant gave evidence that this
the existence of state of mind which is knowledge. has occurred several times. Thus, another 2 charge
The court stated that to prove the existence of state was added. Accused convicted and appealed until
of mind, the state of mind must not be general, COA.
it must refer to particular matter in question
and this requirement is very high. The court referred COA held: although the evidence of similar fact is
to various illustration under the Act: relevant but it is highly prejudicial. Here the court
applied probative value test, and rejected the
- illustration (a) where the accused must be in evidence:
simultaneous possession of infringing goods, but o Acc ready to face a single charge but the
this was not shown in the case. prosecution with leave of the court
- The court also referred to illustration (c) adduce SFE which is highly prejudicial
where the subject matter must be the same of and none tried to explained this to acc.
the previous offences, but does not present in o Acc was charged with 3 other counts
this case. o Acc was unpresented.
- Illustration (o) where it states that the Thus, this is a prejudicial effect against the accused.
intention and knowledge must be specific, but [relevant but not admissible]
does not present as well.
FINAL:
3) Section 15 - FII:
- 3 conditions has to be fulfil: o if referring to previous misconduct, the
o There must be issue where the act is issue would be whether the
accidental or intentional. previous
o There must be facts which forms part misconduct/charge/conviction
is relevant and admissible.
of the series of similar occurrence.
- LAW:
o In doing so, the accused must be the o Section 11,14, or 15 (choose)
person concerned. o apply all common law test
(specific purpose-Mankin, Striking
Maidin Pitchay & Anor v PP similarity-Smit or Sims, probative
Appellant was charged with using of a vehicle as value test-borgman)
passenger vehicle without valid license (taxi sapu). - if guna section 11: what is highly probable effect?
- if guna section 14: must show that state of mind
He used his own car to bring people from one place
must be specific not general
to another place. Authority pretending to be a - if guna section 15: must apply 3 requirements
passenger and in one occasion he was arrested. PP ** do not forget to buat application
bring in another 60 other occasion of evidence to whether the similar facts is strong or not
strengthen their case and in these 60 occasion he (probative value test).
charged the passengers. Under section 15, the **usually SFE combined with Identity.
specific purpose is to show that the act is not but So discuss identity first. if identiti is good
then PB outweigh prejudicial.
intentional and there are striking similarity as he **section 54(2)(a) is exception to the
picked up passengers at the same place, same charge SFE. As this section applies SFE.
and act as a taxi driver.

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