Similar fact evidence

General rule
1. Evidence of any act or conduct not covered by the charge for which the accused is
being tried is inadmissible.
2. Where the accused is charged in one proceeding for multiple counts, the evidence on
one count is inadmissible in relation to the other.
3. Makin – if the evidence the prosecution seeks to adduce consist of evidence tending
to show that the accused has been guilty of criminal acts other than those covered by
the indictment for the purpose of showing that the accused is someone who has a
general criminal disposition, then such evidence by its very nature is inadmissible.
However is evidence is tendered for some other reason it may be relevant. This was
echoed in Ang An An where Raja Azlan Shah J explained the admissibility of
misconduct on other occasions if it tends to rebut a defence which can be said to be
open to the accused, provided always that such evidence is relevant for some reason
other than its tendency to establish guilt by proof of disposition.
4. Poon Soh Har – where the accused person were charged with drug trafficking, the
fact that the accused had trafficked heroin in the past did not mean that they were
trafficking when arrested. Evidence of trafficking in heroin in the past merely raised
suspicion that they were having heroin for the purpose of trafficking. Exceptionally
the court has admitted of propensity where the previous acts showed a very strong
propensity to commit a particular crime. (example use Straffen where the court
admitted two previous unusual murders of young girl committed by the accused to
establish the accused’s identity as the murderer of the a girl who had also been killed
in the same unusual way when he had escaped from Broadmoor)
Exceptions to the general rule
1. Raju – court said that in addition to Makin, similar fact evidence can be admitted
under s.11(b), 14 and 15. In Junaidi Supreme Court held on the principle laid down
in Makin and Boardman, that in addition to s.14 and 15, SFE is admissible in
evidence provided the probative value outweighs the prejudicial effect.
As a rule of judicial practice, it is required to consider whether the SFE is
sufficiently substantial to make to make it desirable in the interest of justice that
it should be admitted. (similar train of thought is found in Azahan which requires
balancing…)
2. s.14,15,11(b) and the common law exceptions need to be considered in order to
determine if the evidence is admissible.
In Junaidi and Veeran Kutty, the supreme court and the high court respectively
applied Boardman which had modified the test in Makin and hence the test in
Boardman applies in Malaysia.
3. Different approach have been adopted in Junaidi and Azahan. In Junaidi, the
supreme court held on the principle laid down in Makin and Boardman, that in
addition to s.14,15 SFE is admissible in evidence provided the probative value
 Similar fact evidence

outweighs the prejudicial effect. This suggest that the exceptions under the Act and
common law are independent.
4. However in Azahan, the court of appeal said that even if the evidence is relevant
under s.14 and 15, the judge will still have to see if the probative value outweighs the
prejudicial effect in order for it to be admitted.
Section 14
1. Facts showing the existence of any state of mind such as intention, knowledge, good
faith, negligence etc towards any person, or showing the existence of any state of
body or bodily feeling are relevant when the existence of any such state of mind or
body or bodily feeling is in issue or relevant.
2. Evidence is tendered for a specific reason namely to prove a person’s state of mind
when his state of mind is relevant. This section provides for the relevancy of facts
showing the existence of a person’s state of mind.
3. Person’s state of mind must be relevant.
4. Actus Reus must be proved by evidence which goes directly to the issue and the
evidence of other incidents only goes to show the accused’s state of mind.
5. James – s.14 only refers to the state of mind. Cannot be used to prove actus reus.
6. Expalnation 1 provides that the evidence relating to the state of mind of a person must
show that the state of mind exist not generally, but in reference to the particular matter
in question. Hence, general habits and tendencies are inadmissible under s.14.
7. Teo Koon Seng, on a charge of extortion, evidence that the accused was in a habit of
extorting money from other people was held to be inadmissible. The court recognised
the danger of admitting evidence of the other offences to prove dishonesty where such
other evidence had no other connection with the issue before the court.
8. Illustrations make it clear that both previous and subsequent events may be relevant to
prove state of mind.
9. Explanation 2 provides that where the previous commission of an offence is relevant
under the section, the previous conviction would also be relevant.
10. Illus a b c o p – Illus o
11. Even if evidence is relevant under s.14, court would still require to see if the probative
value outweighs the prejudicial effect in order for it to be admitted – Azahan
12. Junaidi – supreme court held that in addition to s.14,15, SFE is admissible in
evidence provided that the probative value outweighs its prejudicial effect which
suggest that each exception is independent.
Section 15
1. When there is question whether an act was accidental or intentional or done with a
particular knowledge or intention, the fact that the act formed part of a series of
 Similar fact evidence

similar occurrence, in each of which the person doing the act was concerned, is
relevant.
2. Evidence is tendered for a specific purpose.
3. For evidence to be relevant under s.15, 3 things must be satisfied:
1. There must be a question of whether the act was accidental or intentional, or
whether it was done with a particular knowledge or intention. If this does not
apply, then s.15 cannot be utilised.
2. Section 15 does not apply unless it is sought to be proved, that the act forms part
of a series of similar occurrence. In other words, the other instances must be
similar to the instance charged.
3. The accused must be concerned in each of the similar occurrence.
4. Section 15 only goes to show the state of mind and not actus reus which must be
proved separately by evidence going directly to the issue.
5. Under this section, evidence is received not because a person committing one offence
is likely to commit another offence of similar nature, but to show intention or
knowledge of the accused and to rebut the defence of accident, mistake or innocent
intent.
6. Azahan applies so judge with have to see if the probative value outweighs its
prejudicial effect in order for it to be admitted.
7. PP v Ang An An – on a charge of using a motor vehicle as a public service vehicle
without a valid license, evidence to show that the accused had on previous occasion
conveyed passengers was admissible under s.15 to anticipate and rebut any possible
defence which would otherwise be open to the accused.
Such evidence is not to be substituted as proof of the alleged facts which constitute
the offence, but when the existence of these facts has been established by evidence
and only question is whether it was accidental or intentional, then past observation
become admissible provided s.15 conditions are satisfied.

8. Maidin Pitchay & Anor – on a charge of using a motor vehicle as a public service
vehicle without a valid license, it was held that evidence of police observation of the
car made prior to the date of the offence covered by the charge is admissible under
s.15, the court appeared to equate s.15 with Makin.
9. However, Makin is wider than s.15 as it extend to proving or establishing the actus
reus and is not confined merely to evidence showing state of mind.
10. Wong Yew Ming – on a charge of drug trafficking, where it was proved that the
accused was in possession of scheduled drugs (AR), it was held that evidence adduced
from two self-confessed drug addict that they had bought drugs from the accused to
show on previous occasion he had sold drugs was admissible as SFE and was
admitted under s.15. AR was proved by evidence direct to issue.
 Similar fact evidence

11. However, Wong Yew Ming was distinguished in Mohamad Fairus Omar where the
court held that where AR has not been established( no evidence that the accused had
custody and control let alone possession of drugs), evidence cannot be adduced to
show that the accused has on previous occasion sold dangerous drugs.
Section 11(b)
1. Provides that facts not otherwise relevant are relevant when they make the existence if
facts in issue or relevant facts highly probable or improbable.
2. Admits evidence based on probativeness. Decisions such as Junaidi have referred to
and used s.11(b) as a SFE exception though some are of the view that s.11(b) is not a
SFE exception
3. Arguments that s.11 should not be used to admit SFE includes:
1. Evidence act was intended to codify English law of the late 19 th century. At that
time SFE was admitted for specific purpose. It wasn’t until 1975 that evidence
was admitted based on its probativeness. IF Sir James Stephen intended s.11(b) to
admit SFE, he was 100 years ahead of his time
2. S.11(b) which admits evidence based on probative force is wider than s.14 and 15
and hence would render those sections redundant. This could not have been the
intention of the legislature.
3. Unlike s.14 and 15 none of the illustration in s.11 are examples of SFE.
4. S.11 was intended by Stephen to be a residuary section for s.6-10 which are
limited to facts which are specifically connected to facts in issue and not facts
similar to the facts in issue which can only be admitted under s.14 and 15.
4. However cases have referred to and used s.11(b) as SFE exception.
1. Abubakar bin Ismail, where the accused was charged with making false
endorsements on application forms for driving license, the fact that he had done
the same thing 8 times within a month immediately prior to the two occasion for
which he was charged made it highly probable that he did commit the offence for
which he has been charged applying s.11(b).
2. X v PP and R v Raju are other cases which suggest that s.11(b) admits SFE
evidence.
3. Junaidi, Mohamad Azmi SCJ – that the evidence of physical possession of the
revolver during the robbery was vital to the defence and relevant under s.11 of the
EA 1950 to cast a reasonable doubt on the prosecutions case that the accused was
in possession of the revolver at the time of his arrest.
Common Law Exception
1. Current test under the common law is whether the probative value of the evidence
outweighs its prejudicial effect. This is as a result of the HOL decision in Boardman.
2. A good starting point is Makin which was the main case before Boardman and
which has been referred to in many local cases including R v Raju, R v Veeran
Kutty.
 Similar fact evidence

3. In Makin, Lord Hershell said that you can bring in evidence of the other misconduct
if it is relevant to an issue before the trier of fact. In Makin, it was stated that the
evidence may be so relevant:
- If it bears on the question of whether the acts alleged to constitute the crime he is
currently charged with were designed or accidental.
- If it rebuts a defence which would otherwise be open to the accused.
- Makin demonstrated a specific purpose or categorisation approach. In other words
for evidence to be tendered it has to be tendered for a specific purpose. Over the next
80 years till the decision in Boardman, categories of relevance developed. For
example, the evidence may be tendered to rebut the defence of accident, mistaken
identity, mistake or innocent association.
4. It should be noted that unlike s.14 and 15 which admits similar fact evidence to show
to accused’s state of mind, Makin under the second limb is not confined to merely to
evidence showing state of mind and can even extend to proving actus reus as can be
seen in cases like Thompson and Straffen.
5. Test in Makin is now subjected to the modification in Boardman. In Boardman, the
court admitted evidence of how to headmaster committed bugger with two boys
because of the similarity of the facts especially the passive role played by the
headmaster. Note that Makin was never overruled. Only the basis of admissibility was
altered. The categories of relevance were not so important. What was of primary
importance was the degree of relevance.
If high degree of relevance then probative value outweighs prejudicial effect.
In R v P, the house of lord held that striking similarity was not essential element in
order for the evidence to have probative value.
Boardman was applied in the Supreme Court in Junaidi and Veeran Kutty
Veeran Kutty – Peh Swee Chin J said that boardman is applicable in our courts as it
merely modified the ratio in Makin, the latter case having been relied on and accepted
in our courts for a long time.
Junaidi – Mohd Azmi SCJ applying the principle laid down in Makin’s case and
Boardman’s case said that ‘in addition to those under ss.14 and 15, SFE is admissible
in evidence provided the probative value of such evidence outweighs the prejudicial
effect.
Azahan bin Mohn Aminallah – court of appeal held that in deciding whether to
admit SFE, must carry out a balancing exercise by weighing the probative value of
such evidence against the prejudicial effects as impliedly required by sections 14 and
15. Based on the decision in Azahan, even if the evidence is relevant under s.14 or 15,
the judge would still have to see if the probative value outweighs its prejudicial effect.
The CA said that the failure to do this balancing exercise would be a serious
misdirection and could occasion a serious miscarriage of justice.
6. SFE is admissible to (categories of relevance):
 Similar fact evidence

1. Show design, to rebut natural causes or accident; R v Smith

2. Prove system (to rebut the defence of accident or mistake) R v Bond
3. Prove identity of the accused R v Straffen
4. Prove guilty passion R v Ball
7. Noor Mohamed v R, such evidence must positively assist the judge on the issues
before him and not merely show that the accused is of bad character. In other words, it
must have real material bearing on the issues to be decided.
8. R v Bond – a doctor who procured a miscarriage of a lady, the court admitted
evidence of a girl who alleged that he carried out an illegal abortion on her and told
her that he had put dozens of girls right.
Evidential Value of SFE (how to know if it is of probative value?) Degree of relevance
plus classification of relevance)
1. Such evidence must positively assist the judge on the issue before him and not merely
to show that the accused is of bad character –
Noor Mohamad – Privy Council rejected the evidence of the other incidents as it
only had a superficial similarity to the circumstances of the offence charged - echoed
Makin.
2. However, as seen in cases such as R v P – striking similarity not a requirement
3. Below
1. Show design, to rebut natural causes or accident; R v Smith
2. Prove system (to rebut the defence of accident or mistake) R v Bond
3. Prove identity of the accused R v Straffen
4. Prove guilty passion R v Ball
5. Serial killer type – R v W – no special rule in identification cases requiring
striking similarity.
Prejudicial Effect – Moral and reasoning prejudice
1. The prejudice suffered by the defendant is of having evidence of other crimes he is
not charged for being tendered to prove his guilt.
2. May overwhelm the mind of the trier of fact
3. However, in Malaysia, trials are by judge alone. Judge is both trier of fact and of law
and is legally trained on what matters are relevant and how they are to be used.
4. His reasoning must be stated in his written judgement.
5. These factors reduce the risk of having a man being pronounce guilty by wrongful
reliance on SFE.
SFE in civil cases – essay
1. General rule is that evidence of other incidents which are not the subject matter of the
current proceeding is inadmissible. However, there are exception to this rule.
2. Statutory exceptions are ss. 14, 15 and 11(b)
3. Explain section 14 and 15 as above
 Similar fact evidence

4. The common law exception for the admissibility of SFE in civil cases was applied in
Mood Music Publishing Co Ltd v De Wolfe Ltd. In this case, the plaintiff brought
an action against the defendants for the infringement of copyright of their musical
work. The defendants contended that the similarity was coincidental. The plaintiff
was allowed to adduce evidence which showed that on three other cases, the
defendants had reproduced musical work which were subject to copyright. It was held
that the evidence was relevant and admissible to show that on other occasion the
defendant had reproduced work subjected to copyright.
5. In order to admit evidence. 3 things must be satisfied
a. The evidence must be logically probative
b. It must not be oppressive or unfair to the other party
c. Sufficient notice must have been given to the other party of the intention to
use the evidence.