Chapter 6: Similar Fact Evidence

A. Criminal Cases

1. When does this arise?

 Straffen - When accused is being charged for an offence and evidence of other misconduct is sought
to be admitted
 Boardman - Where accused in one proceeding for several counts – got SFE among the counts – then
evidence of one count may be admissible in relation to others

2. General rule
 General rule: character is irrelevant – exception – SFE
 Cannot use evidence of act not covered by the charge
 When accused is charged in one proceeding for several counts, the evidence on one count is
inadmissible in relation to another
 Makin – evidence to show accused guilty of previous criminal acts = inadmissible
 R v Raju – cannot use SFE to prove AR, but can use SFE for MR and identity

3. Malaysia – Exceptions = S.14, 15 and 11(b)

 R v Raju – court referred to S.14, S.15 and S.11(b) as exceptions to the rule against inadmissibility of
evidence of bad character
 S.14, S.15 and S.11(b) needs to be considered to determine whether evidence is admissible
 Junaidi – principle in Makin and Boardman – probative value of such evidence outweighs its
prejudicial effect, S.14, S.15 are all independent exceptions
 C.f. Azahan – even if the evidence is relevant under S.14 or 15, the judge would still have to see
whether the probative value of the evidence outweighs its prejudicial effect for it to be admitted
although it said that it followed Junaidi, but both approaches seem different

a. S.14
 Allow in SFE to address MR – repeated attempts on 1 victim
 MR – state of mind such as intention, knowledge, good faith, negligence, rashness, ill-will or good will
 Evidence is tendered by a specific purpose.
 Explanation to S.14 – the evidence must show that the state of mind exists in reference to the
particular matter, not just generally
 Teo Koon Seng – the evidence to show that the accused was in the habit of extorting money from
other people was inadmissible.
 But even if evidence is relevant under S.14 – Azahan: would still require the judge to see if the
probative value of evidence outweighs its prejudicial effect for it to be admitted
 Junaidi – each exception is independent, can use S.14 by itself

b. S.15
 Allow in SFE to address MR (many different victims, Makin category = talk about the facts)
 To be relevant under S.15, must satisfy 3 things:
a. There must be a question of whether the act was accidental or intentional, or whether it was
done with a particular knowledge or intention
b. S.15 does not apply unless it is sought to be proved that the act forms part of a series of similar
occurrences. The other instances must be similar to the instance charged.
c. Accused must have been concerned in each of the similar occurrences
 But even if evidence is relevant under S.15 – Azahan: would still require the judge to see if the
probative value of evidence outweighs its prejudicial effect for it to be admitted
 Junaidi – each exception is independent, can use S.15 by itself
 PP v Ang An An – evidence that accused had on previous occasion conveyed passengers was
admissible – PP has to show that he transported them with intent to make money, use SFE to prove
intent and to rebut any possible defence.
 Wong Yew Meng – charge of drug trafficking – proved that the accused was in possession of
scheduled drugs, it was held that evidence adduced from two self-confessed drug addicts that they
 had bought drugs from the accused previously was admissible under S.15 – to show that possession
could not have been accidental

c. S.11(b)
 Similar Straffen case – talk about the facts
 S.11 – facts are relevant when they make the existence of facts in issue or relevant facts “ highly
probable” or “improbable”
 S.11 admits evidence based on probativeness (ability to prove)
 Abu Bakar bin Ismail – accused was charged with making false endorsements on application forms for
driving licenses, the fact that he had done the same thing eight times within a month prior to that
made it highly probable that he did commit the offence he was charged with

4. Common Law Exceptions

 Current test now is from Boardman – probative value of evidence outweighs its prejudicial effect
 Makin – general rule – cannot tender a person’s person crimes as evidence
o Exceptions:
a. to rebut the argument whether it is natural causes/accident or
b. to rebut the defence which would otherwise be open to the accused
o Means the evidence must be tendered for specific purpose
o In this case, 6-7 babies were found dead before this baby
 R v Smith – Facts: the third wife died. The second and first wife also died – all died due to seizure and
in bathtub
o Court admitted evidence of the deaths of the other 2 wives to show design and to rebut
natural causes – if an accident benefits a person and the accident has happened a few times
– then got strong, irresistible inference that the occurrences of so many incidents cannot
happen unless it was a design
 R v Straffen – to prove identity of accused (pattern of operation similar) – the way of killing is similar –
previous convictions admissible
o Accused charged with murder of young girl after escaping from prison – girl killed in unusual
way – accused had two previous convictions for such unusual murders of young girls
o Due to the unique similarity between the two attacks, it was highly probable that it was
perpetrated by the same person
 Makin test modified – subject to modifications in Boardman v DPP
o Boardman – headmaster committed buggery with 2 boys because of similarity of facts –
especially passive role by headmaster (details given by both boys were similar)
o People viewed with suspicion – children and complainant of sexual offences
o But Makin was never overruled – just the basis of admissibility was altered – the purpose not
so important anymore – it is more of whether the evidence was of such high degree of
relevance that probative value > prejudicial effect
o Boardman was applied in Junaidi bin Abdullah (SC) and PP v Veerankutty (HC) – M’sia use this
test
- Veerankutty: “such evidence if adduced, would be so strikingly similar to the evidence
relating to the evidence relating to the charge, that its probative value would have
overridden its prejudicial effect”. Boardman case is applicable in our courts
- Junaidi bin Abdullah:
 S.14, 15 – for MR
 S.11(b) – for identity
 Problem – open floodgates for AR if use Boardman as standalone test – because the
act does not allow
 Raju case – can only use SFE for MR and identity, not AR
- Azahan bin Mohd – say must prove S.15 or S.14, then still ask the question in Boardman
– makes it harder for the SFE to come in

o Test: the evidence of other misconduct is admissible if probative value > prejudicial effect
o The higher the similarity, the higher the probative value; prejudicial effect – allow evidence x
connected with current case. The evidence must positively assist the judge on the issues
 before him and not merely show that the accused had bad character. Striking similarity is not
an essential pre-requisite for the evidence to have probative value.

5. Cases:
 R v Gurney – charged with breaking in with intent to rape – need to prove got intent – previously the
same thing happened and he was convicted (shows MR)
o Court relied on the similarities – presence of weapon, single woman whom he knew lived
alone, delayed period whilst in house with nothing stolen
o But on appeal – evidence was more prejudicial than probative – should not have been
admitted

B. Civil Cases (rarely uses SFE)

1. General rule –
 Evidence of other incidents which are not the subject matter of current proceeding = inadmissible
 S.52 – character of any person to render probable or improbable any conduct is ireelvant

2. Statutory Exceptions
a. S.14
 Broader than SFE – only 1 element of it talks about SFE – S.14 allows SFE to address MR issue – to
show existence of a person’s state of mind eg: intention or knowledge
 Repeated attempts on 1 victim
 Must have already had evidence for AR because x use SFE to prove AR
 Explanation 1 to S.14 – evidence relating to the state of mind of person must show that the state of
mind exists not only generally but in reference to the particular matter in question
b. S.15
 Makin’s category
 Allow in SFE to address MR issue – many different victims
 To be relevant under S.15, must satisfy 3 things:
a. There must be a question of whether the act was accidental or intentional, or whether it was
done with a particular knowledge or intention
b. S.15 does not apply unless it is sought to be proved that the act forms part of a series of similar
occurrences. The other instances must be similar to the instance charged.
c. Accused must have been concerned in each of the similar occurrences

c. S.11(b)
 Straffen case
 S.11 – facts are relevant when they make the existence of facts in issue or relevant facts “ highly
probable” or “improbable”
 S.11 admits evidence based on probativeness (ability to prove)

d. Common law exception:

 Mood Music Publishing – Plaintiff brought action against D for infringement of copyright of their
musical work. Plaintiff wanted to adduce evidence which showed that on 3 other cases, the
defendants had reproduced musical works which were subject to copyright
 Held: evidence was relevant and admissible to show that on other occasions, the defendants had
reproduced works subject to copyright. To admit the evidence, must prove 3 things:
a. 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
(basically Boardman)