ULV4622- Law of Evidence II

Similar Fact Evidence

Introduction

 In general rule, evidence led during a trial should be confined to

those that can answer the fact in issue. This general principle is
based on the legal maxim of res inter alios actae.

 In addition, there is also a rule that evidence of bad character

involving a party in the proceeding is shall not be admissible. In a
criminal proceeding, s 54(1) of the Evidence Act 1950 states that
the fact that an accused has a bad character is irrelevant
unless the accused himself or herself brings evidence to show
that he or she has a good character. (You will study this in the
next topic)

 However, there is an exception to the above. It is known as “similar

fact evidence”. Similar fact evidence is evidence which is similar to
the fact in issue but unconnected to it. For example, circumstances
that happened before the fact in issue occurred.

 The principle of similar fact evidence has been explained by the

Privy Council in the case of Makin v AG for New South Wales
(1894) AC 57:

It is undoubtedly not competent for the prosecution to adduce

evidence tending to show that the accused has been guilty of
criminal acts other than those covered by the indictment, for
the purpose of leading to the conclusion that the accused is a
person likely from his criminal conduct or character to have
committed the offence for which he is being tried.

On the other hand, the mere fact that the evidence adduced
tends to show the commission of other crimes does not render
it inadmissible if it be relevant to an issue before the jury, and
it may be so relevant if it bears upon the question whether the
acts alleged to constitute the crime charged in the indictment
were designed or accidental, or to rebut a defence which would
otherwise be open to the accused.

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 Thus, based on the second limb of the above decision, adducing

evidence that shows the previous acts done by a person may be
relevant and admissible in order to show that what has been done
was not accidental, the act was intentional or to rebut the defence
that might be raised by the person.

See also (R v Bond [1906] 2 KB 389; R v Smith [1915] 11 Cr App

Rep 229; R v Straffen [1952] 2 All ER 657)

Similar Fact Evidence in the Malaysian Context

 Evidence of similar facts are relevant and can be admissible under

three sections which are s 11(b), s 14 and s 15 of the Evidence Act
1950.

 Section 14 is a section that allows an evidence that show existence

of state of mind or of body or bodily feeling. For example, any
fact that indicates intention, knowledge etc.

 However, reference to the Explanation 1 of s 14 indicates that in

order to be admissible under this section the facts must show or
have an immediate reference to the fact in issue.

Explanation 1 - A fact relevant as showing the existence of a

relevant state of mind must show that the state of mind exists
not generally but in reference to the particular matter in
question.

 ILLUSTRATIONS

(o) A is tried for the murder of B by intentionally shooting him

dead.

The fact that A on other occasions shot at B is relevant as

showing his intention to shoot B.

The fact that A was in the habit of shooting at people with

intent to murder them is irrelevant.

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ULV4622- Law of Evidence II

BOOTA SINGH v PUBLIC PROSECUTOR [1933] 2 MLJ 195b

Section 14, illustrations (i) and (o) Evidence Ordinance, shew

that the fact that appellant had tried to misbehave with
deceased and wanted to stab her on 10th January, 1932, is
relevant as showing appellant's intention towards deceased.

See also X v PUBLIC PROSECUTOR [1951] 1 MLJ 10;

SABARUDIN BIN NON & ORS v PUBLIC PROSECUTOR [2005] 4
MLJ 37 (CA).

 Section 15 is another section that allows the admissibility of similar

facts evidence. Section 15 must be read together with s 14 of the
Evidence Act 1950.

 Section 15 allows a relevant fact to be admitted in order to

determine whether an act was accidental or intentional or done
with a particular knowledge or intention, the fact that the act
formed part of series of similar occurrences, in each of which
the person doing the act was concerned.

 ILLUSTRATIONS

(a) A is accused of burning down his house in order to obtain

money for which it is insured.

The facts that A lived in several houses successively, each of

which he insured, in each of which a fire occurred, and after
each of which fires A received payment from a different
insurance office, are relevant as tending to show that the fire
was not accidental.

 Similar to s 14, a fact which may be admitted under s 15 must be of

the same specific kind which is similar to the fact in issue.

 If we look at both ss 14 and 15 of the EA 1950, they are the

reflection of the common law position on the application similar fact
evidence. Both sections can be used to prove “mens rea” of the
accused but the principle under the common law is said to be wider

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as it does not distinguish on its application. This is because the

common law approach emphasise on the probative value of the
evidence for the admissibility of similar fact evidence. This will be
further explained below via the case Boardman v DPP [1975] AC
521.

 Section 11(b) states that:

Facts not otherwise relevant are relevant-

(b) if by themselves or in connection with other facts they

make the existence or non-existence of any fact in issue or
relevant fact highly probable or improbable.

See also illustration (b) of the section.

R v RAJU & ORS v R [1953] 1 MLJ 21

In this country such evidence of similar acts is often

admissible under section 15 of the Evidence Ordinance,
though certain types of evidence of similar offences or acts
may be admissible under sections 14 and 11. Generally
speaking the evidence of similar facts may be relevant for the
following purposes, though this list may not be exhaustive: —

1. To negative accident;
2. To prove identity;
3. Where mens rea is the gist of the offence, to prove intention;
and
4. To rebut a defence which would otherwise be open to the
accused.

See also Junaidi bin Abdullah v Public Prosecutor [1993] 3 MLJ

217ABUBAKAR BIN ISMAIL v REGINA [1954] 1 MLJ 67; ISMAIL
v HASNUL; ABDUL GHAFAR v HASNUL [1968] 1 MLJ 108; PP v
Dato Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1; PP v Mohd
Amin Bin Mohd Razali & Ors [2002] 5 MLJ 406; Re Teoh Beng
Hock [2010] 1 MLJ 715.

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 However, there has been a debate whether similar fact evidence

can really be relevant under s 11(b) of the EA 1950?

 Augustine Paul argued that similar fact evidence cannot be admitted

under s 11(b) based on several reasons:

1. The application of s 11(b) as decided by the cases such as

Ranggayan v Innasimuthu AIR 1956 Mad 226 and ISMAIL v
HASNUL [1968] 1 MLJ 108 (FC) show that it has limitations. It
does not admit collaterals facts which are not reasonably
conclusive and practically no connection with the other. The fact
to be proved and the fact sought to be given under this section
must be so immediate to render co-existence of the two highly
probable.

2. Since similar fact evidence has been declared relevant by ss 14

and 15, therefore, s 11 cannot be said to reinforce the law of
relevancy by rendering relevant on what has been declared
relevant (Redundancy)

3. Augustine Paul also supported his argument by referring to an

article by Jeffrey Pinsler, “Similar Fact Evidence: The
Principles of Admissibility” [1989] 2 MLJ lxxxi.

 According to Jeffrey Pinsler, s 11(b) was never intended to be

grouped as provisions that would make relevant similar fact
evidence by Sir Fitz James Stephen in his Stephen's Digest of the
Law of Evidence. It was actually meant to be a residuary category to
ss 6 to 10 as to cover facts which might not be covered by those
provision.

 However, Jeffrey Pinsler was of the view that s 11(b) could be

used to admit similar fact evidence dealing with actus reus.
This view is also supported by the Singapore case of LEE
KWANG PENG V PUBLIC PROSECUTOR [1997] 3 SLR 278 and
the recent article written by the learned author Mageswary Siva
Subramaniam, ‘Similar Fact Evidence In Malaysia: A Review Of
Section 11(b) Of The Evidence Act 1950’, Asia Pacific Law
Review Volume 26 2018 Issue 1, pg 59-76.
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The Purpose of Admitting Similar Fact Evidence

 If we follow strictly the ratio in Makin’s case, it would appear that a

similar fact evidence can only be adduced for specific purposes
mentioned in the second limb of Makin’s case (e.g to rebut
defence by the accused). See also R v RAJU & ORS v R [1953]
1 MLJ 21.

 It is not open for the prosecution to simply call similar fact evidence
in anticipation of a supposed defence which was never raised and
which is unlikely to be raised by the defence. This is because the
nature of similar fact evidence if allow to be admitted would be
prejudicial to an accused.

Junaidi bin Abdullah v Public Prosecutor [1993] 3 MLJ 217

There must be a real anticipated defence to be rebutted and

not merely 'crediting the accused with a fancy defence' as
emphasized by the Privy Council in Noor Mohamed v R 9 at p
192.

Why Similar Fact Evidence can be admitted despite the fact it is

prejudicial?

 In the case of Public Prosecutor v Ang An An [1970] 1 MLJ 219,

Raja Azlan Shah J held that:

Such evidence was admissible because they were specific

features which made each of them bear a striking resemblance
to the others; they show that the accused was doing a series of
acts according to a particular pattern.

 To ignore such an evidence will go against ordinary common sense.

See R v Robinson [1953] 37 Cr App R 95; Boardman v DPP
[1975] AC 521; and Junaidi bin Abdullah v Public Prosecutor
[1993] 3 MLJ 217.

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Reformulation of the Rule in Makin’s Case

 In the case of Boardman v DPP [1975] AC 521, the House of

Lords has reformulated the determining factor before evidence of
similar facts can be admitted. The admissibility of similar fact
evidence is not depending on the specific purposes for which the
evidence is adduced. In determining the admissibility, the court
must consider whether the probative force of the evidence
outweigh the prejudicial effect it might have.

Boardman v DPP [1975] AC 521

…that there were circumstances in which, contrary to the

general rule, evidence of criminal acts on the part of an
accused other than those with which he was charged became
admissible because of their striking similarity to other acts
being investigated and because of their resulting probative
force; that it was for the judge to decide whether the prejudice
to the accused was outweighed by the probative force of the
evidence and to rule accordingly.

 Both Makin’s case and Boardman’s case have been adopted and
accepted by the Malaysian courts.

PUBLIC PROSECUTOR v VEERAN KUTTY & ANOR [1990] 3

MLJ 498

…the Boardman case [1975] AC 421 is applicable in our courts

as it has merely modified the ratio in the Makin case [1894] AC
57, the latter case having been relied on and accepted in our
courts for a long time (please see, eg PP v Ong Kok Tan [1969]
1 MLJ 118) and the reasoning of the learned Law Lords in
Boardman [1975] AC 421 has impeccable logic.

Junaidi bin Abdullah v Public Prosecutor [1993] 3 MLJ 217

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ULV4622- Law of Evidence II

On the principle laid down in Makin's case and Boardman's

case, we are of the opinion that where the purpose of adducing
evidence of similar facts or similar offences is justifiable on the
ground of relevancy and necessity to rebut any defence which
would otherwise be open to the accused (in addition to those
under ss 14 and 15 of the Evidence Act 1950), it is admissible
in evidence provided the probative value of such evidence
outweighs its prejudicial value.

Is it essential for the evidence to be in striking similarity to the fact

in issue before it can be admitted as similar fact evidence?

 No. It is not essential. The essential element is that the evidence

must have probative force.

DIRECTOR OF PUBLIC PROSECUTIONS V P [1991] 93 Crim

App R 267

…It is not appropriate to single out ‘striking similarity’ as an

essential element in every case in allowing evidence of an
offence against one victim to be heard in connection with an
allegation against another.

 The principle laid down in the above case has been affirmed by the
Federal Court in Public Prosecutor v Mohamad Roslan bin Desa
– Mahkamah Persekutuan Rayuan Jenayah No 05–28–2007(K)
(Unreported). The Federal Court, in a judgment delivered by Arifin
Zakaria CJM (as he then was) stated the following as the proper
test for admission of similar fact evidence:

The courts below rejected the similar fact evidence on the

basis that there was no striking similarity between what
happened in the earlier case and the present case. It should
perhaps be noted that the House of Lords in DPP v P had
retracted from the test laid down in Boardman as to the
requirement of ‘striking similarity’ and said that it was
inappropriate to single out ‘striking similarity’ as an essential
element in every case. But following Boardman it was held that
the essential feature of admissibility of such evidence is
whether its probative force in support of the charge is

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ULV4622- Law of Evidence II

sufficiently great to make it just to admit the evidence

notwithstanding that its prejudicial effect on the accused
tending to show that he was guilty of another offence. Whether
the evidence has sufficient probative value to outweigh its
prejudicial effect must in each case be a question of degree.
The test has since been authoritatively laid down in DPP v P in
terms of probative value as against its prejudicial effect. There
is force in saying that the decision in DPP v P is in line with ss
14 and 15 of the Evidence Act as ‘striking similarity’ has never
been a requirement of the said sections.

See also Public Prosecutor v Yap Chai Yee [2016] 1 MLJ 1; and
Mohammad bin Abdullah v Public Prosecutor [2011] 4 MLJ 549

Does similar fact evidence applicable in Civil Cases?

 Yes. It may be admitted in civil cases. For example, illustration (c),

(d), (e), (f), (g), (k), (m) and (n) of s 14 of the Evidence Act relate to
civil matters.

Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1 All ER

763 (CA)

In civil cases the courts will admit evidence of similar facts if it

is logically probative, that is if it is logically relevant in
determining the matter which is in issue; provided that it is not
oppressive or unfair to the other side; and also that the other
side has fair notice of it and is able to deal with it.

See also Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141; &
Mahadeva Krisanon v Teja Singh [2011] 1 CLJ 1016

Additional reading

1. Ramalinggam Rajamanickam et al “The Position of Similar Fact

Evidence in Malaysia” [2015] 6(4) Mediterranean Journal of
Social Sciences 539.

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***THANK YOU***

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