BWR 310

Study Unit 1
Introduction

Welcome to the Law of Evidence!

Ground Rules
• LoE = conceptually challenging and intellectually demanding
 Well-known for its capacity to throw up mind-numbing puzzles
 Rules are often counter-intuitive — If you guess, chances are you’ll guess
wrong
• Ground Rules
Read the study guide
• Don’t ask LAZY questions
• Don’t ask what the scope is for tests/exam
• Don’t ask when marks will be available
• Perusal:
 Must complete a query sheet
 You can lose marks in perusal!

Historical Development of Law of Evidence

Schwikkard & Van der Merwe Principles of Evidence (4 ed 2016) 4—8.
• South African LoE belongs to Anglo-American “family” (United Kingdom, Australia,
New Zealand, Canada, United States)
• Common heritage = English common law system —
 Based on rules essentially and originally designed for
trial by jury
• English LoE stricter than other systems in ruling out evidence
• Judges feared that juries would attach undue weight to untrustworthy
evidence
• Reason for exclusionary rules

Place of Law of Evidence in Legal System

 LoE = Branch of Adjective Law

Sources of Law of Evidence

• South African LoE is not based on Roman-Dutch authority
• South African LoE is found in local statutes:
 Civil Proceedings Evidence Act (CPEA) 25 of 1965
 Criminal Procedure Act (CPA) 51 of 1977
 Law of Evidence Amendment Act 45 of 1988 [Hearsay Act]
 Electronic Communications and Transactions Act 25 of 2002
 If statute silent on specific topic — English law in force on 31 May 1961 (when SA
became an independent republic) is our common law
• Practically, South Africa has considerable body of local case law on evidence
 These cases (if decided according to English common law rules and principles
as on 31 May 1961) are binding i/t/o law of precedent
• If total lacuna — South African court may find guidance in:
 English cases after 31 May 1961 — persuasive value, but never binding
 LoE of other Anglo-American jurisdictions — e.g., Australia, Canada, United
States
• Constitution:
 Supreme law — all rules of evidence must comply
  Any statutory/common law rule that conflicts with Bill of Rights =
unconstitutional
 Unless saved as constitutionally permissible limitation on fundamental
right/freedom (s 36)
 Some common law rights of accused have hardened into constitutional rights
 S 35:
 Right to be informed of certain rights
 “Passive” defence rights — presumption of innocence; right to remain
silent; right not to incriminate oneself; right not to testify at trial
 “Active” defence right — right to adduce and challenge evidence
 “Due process” right — right to a fair trial

Monday, 28 February
 RELEVANCE AND ADMISSIBILITY
o Learning Objectives
After completing this study unit you should be able to:
a. Distinguish between the concepts “relevance,” “admissibility” and “assessment”;
b. Recognize and explain why the concept of relevance is one of the most important foundational concepts
in the Law of Evidence to master;                         
c. Evaluate the rationale for the concept of relevance;
d. Explain the relationship between relevance and admissibility;
e. Define the concept of relevance and explain each component of that definition;
f. Explain the concept of relevance in terms of the relation between an item of evidence and a material fact
at issue in the case, and apply the knowledge to a set of facts;
g. Explain, pursuant to the example in R v Dhlamini 1960 (1) SA 880 (N), the concept of relevance in terms of
the relation between an item of evidence and a material fact at issue in the case.

- Admissibility
o LoE (law of evidence) sets certain requirements before court can take evidence into
account
o Admissibility rules aimed at excluding certain types of evidence
o E.g. if a piece of evidence is here-say, it would be a very relevant piece of evidence, but if
it doesn’t comply with the rules against heresay, a court will nevertheless will find that
that piece of evidence is NOT admissible
- Assessment
o Once evidence has been deemed admissible, the rules of assessment assist the court in
how to evaluate the evidence
o Evidence assessment mean the court:
• Analyses all evidence
• makes credibility findings
• draws interferences
• considers probabilities

2. CONCEPT OF RELEVANCE
• One of most important foundational concepts in LoE to master
• Why?
• It is a Precondition for admissibility of evidence
 Irrelevant evidence is inadmissible (s 210 CPA (criminal procedure act) [-]
 Courts: Evidence is admissible if it is relevant to an issue in the case [+]

- Rationale
o Only information that can assist the court should be admissible (allowed into evidence)
 o Evidence is inadmissible if it:
• has the potential to confuse the issues
• causes undue delay
• wastes time
• leads to needless presentation of cumulative issues
• leads to incurring unnecessary expense etc.

o E.g., In a prosecution for assault, the court decides to admit evidence of the results of a
polygraph (lie detector) test with regard to the truthfulness of a witness/party
o This will require the parties to lead evidence on a lot of issues not directly related to the
material facts of the case:
• Was the polygraphist competent?
• Was polygraphist an expert in this fairly novel “technique” of determining
credibility?
• Did the polygraphist ask appropriate questions during the session?
• Did the polygraph machine function properly?
• How reliable is the final result?
o Polygraph example cont’d]:
• Drawn-out and time-consuming investigation of collateral issues will leave the
court with the following unsatisfactory result :
o The opinion of third-party on whether witness / party is truthful / untruthful
according to test that has not yet received broad acceptance in scientific
world
o At any rate, it is the duty of the court to make findings of credibility

Relevance is the first — but not necessarily only — hurdle that evidence must clear to be
admissible
Thus: All admissible evidence is relevant
But not all relevant evidence is admissible
e.g., privileged information (even if highly relevant and the only evidence)
e.g., evidence obtained in breach of constitutional right in violation of s35 of the
constitution
 McMunigal “Using graphics to teach evidence” (2006) Saint Louis University Law
Journal 1177—1178

*NB FOR ASSIGNMENT

Relevance is not inherent characteristic of any item of evidence
Relevance exists only in relation between an item of evidence and material fact (what is being
focused on)
in the case(*)
Thus: relevance cannot be decided in a vacuum
Question of relevance cannot be divorced from the facts of the particular case
before court [S v Zuma 2006 W]
3. R V DHLAMINI [1960 N]: CRIMINAL CASE
- Prosecution (P) alleges that accused (A) stabbed deceased (D) to death in cul-de-sac at around
22:00
- A raises alibi defence — at the time of murder, he was at a dance 16 km from cul-de-sac
where D was killed
- P wants to call witness (N)
- N’s testimony will be that, on the evening in question and some 140 m from the cul-de-sac, at
around 21:50, A also stabbed her with a knife after she had rejected his advances
- A objects — basis of objection is that N’s evidence is irrelevant (and highly prejudicial to A)
because it relates to criminal conduct that was not part of the charge against A (not charged
with assault to N, thus unfair)
- As the judge, would you overrule or sustain A’s objection?
o It depends:
• If P wants to lead N’s evidence [item of evidence] to prove prior misconduct
[not material fact in issue] — N’s evidence inadmissible because ir relevant to
any issue in case
• If P wants to lead N’s evidence [item of evidence] to disprove alibi defence
[material fact in issue] — N’s evidence admissible because highly relevant to
question of alibi

EVIDENCE MUST RELATE TO THE MATERIAL FACT IN THE CASE!

• Study Units 3 — 6 :
 Previous consistent statements

 Similar fact evidence

 Character evidence

 Opinion evidence
• ALL Dependant on relevance for admissibility
• General rule = above are inadmissible because irrelevant
• Exceptions

13 March 2022
PREVIOUS CONSISTENT
STATEMENTS

LEARNING OBJECTIVES

After completing this study unit, you should be able to:

(a) Explain that previous consistent statements are, as a general rule, inadmissible because they
are irrelevant;
(b) Define previous consistent statement;
(c) Evaluate the rationale for the general rule against the admissibility of previous consistent
statements;
(d) Discuss and apply the facts and ratio of R v Roberts 1943 28 Cr App R 102 as an example of
a previous consistent statement from case law;
(e) Name and identify the numerus clausus of exceptions to the general rule against the
admissibility of previous consistent statements;
(f) Discuss and apply each of the following exceptions to the general rule in detail:
1. To rebut an allegation of recent fabrication
2. Prior identification in the form of the so-called “dock identification";
3. Prior identification in the form of the identification parade;
4. Complaint by the victim of a sexual offence, particularly:
i. each of the common law requirements for applicability of this exception and
the criticism thereof;
ii. the provisions of sections 58 and 59 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007;
iii. the extent to which each of the common law requirements has been amended
by sections 58 and 59;
iv. the application of the “first reasonable opportunity” requirement in S v S
1995 (1) SACR 50 (ZS); and S v Cornick 2007 (2) SACR 115 (SCA);
v. the exception to the principle of limited evidential value as applied in S v S
1990 (1) SACR 5 (A);
5. Refreshing memory
4. RELEVANCE

Relevant evidence = evidence with the potential to make the existence of any fact in issue
more probable or less probable
- Pre-condition for admissibility

NOTE
- Previous consistent statements
- Similar fact evidence
- Character evidence
- Opinion evidence

Dependant on relevance for admissibility

General rule = inadmissible because irrelevant
Exceptions

5. INTRODUCTION: PREVIOUS CONSISTENT STATEMENTS

PREVIOUS CONSISTENT STATEMENTS (PCS) ‘it was an accident’ example

- Oral/written statement made by a witness some time prior to testifying in court that is the
same/sustainability similar to witness testimony in court
- GENERAL RULE: PCS = inadmissible because irrelevant
- General rule against admissibility of previous consistent statement also called “rule against
narrative” / “rule against self-serving statements”
- Corroboration should come from independent source and witness cannot corroborate
herself by pointing out that she had said the same thing before
- Witness may not be asked during exam-in-chief / cross-exam if made previous statement
consistent with evidence in court
- Previous consistent statement by witness may also not be proved by calling another witness
- What about previous inconsistent statement?
o Generally admissible because relevant to credibility
6. RATIONALE FOR THE RULE
against previous inconsistent statements

- Inherently unreliable

 A lie can be repeated as often as the truth

- Danger of easy fabrication

 Risk of “self-made” evidence

- Superfluous (unnecessary)

 In ordinary course, witness’ evidence would be consistent with what she said
on other occasions about same topic/incident

Time-consuming and duplicative

- Previous consistent statement has very little probative force – it does not amount to
independent factual confirmation

7. EXAMPLE FROM CASE LAW

- Rex v Roberts [1942]:

o Accused (A) testified at trial that killing his girlfriend was an accident
o Not permitted to testify that, two days after the killing, he had told his father that killing
was an accident
o Court:
• “[A] party is not permitted to make evidence for himself. That law applies to
civil cases as well as criminal cases . . . The reason for the rule [is] that such
testimony has no evidential value. It is because it does not assist in the
elucidation of the matters in dispute that the evidence is said to be
inadmissible on the ground that it is irrelevant.”

8. EXCEPTIONS TO THE GENERAL RULE

- Under influence of English common law — certain crystallised exceptions to general rule
(3):
 o Numerus clausus – closed list
• To rebut an allegation of recent fabrication
• Prior Identification
• Complaints in sexual cases

TO REBUT ALLEGATION OF RECENT FABRICATION

- Recent = any time between the incident and the trial

- Situation — At trial, cross-examiner alleges / suggests to witness that she fabricated her
testimony

o E.g., specific evidence not elicited during exam-in chief, but for first time on cross-exam

• Cross-examiner accuses/suggests to witness that, only reason why only came to

light now, is because she fabricated the testimony
- Attack must specifically be on witness’s so-called fabricated testimony, not general assault on
witness’s credibility

- On re-examination, witness may rebut accusation/suggestion of recent fabrication by

showing that, prior to her testimony, she had made oral/written statement consistent with
testimony in court

- Any time between incident and trial

- Previous consistent statement admitted for its relevance

o Because it has potential to rebut an attack on credibility of the witness

• CLEARLY RELEVANT

- Previous consistent statement not admitted for:

o Truth of content of statement

o Corroboration of witness’s testimony
(remember: general rule prohibiting self-corroboration)
- Evidential (probative) value of previous consistent statement is to show that witness’s story
was not concocted on later date

o Consistency is proved to refute allegation / suggestion of recent fabrication

PRIOR IDENTIFICATION – “DOCK IDENTIFICATION”

 - Identification in court (so-called “dock identification”):

o Prosecutor asks witness to point out accused in court

o Of very little probative value
- Prior identification obviously carries more weight

o [R v Rassool 1932 NPD]: Has probative value and is relevant to show from very start
that witness who makes “dock identification” is not identifying accused for first time, but
has identified him on some previous occasion in circumstances giving real weight to
identification
o Only fact that same person was identified is admissible

PRIOR IDENTIFICATION – IDENTIFICATION PARADE

- Police officer testifies that witness identified accused in identification parade

- Police officer gives evidence of process followed during holding of parade

- Prescribed safety precautions for holding identification parade have profound effect on
evidential value:

o At least 8 people
o Because part of investigative process — right to have legal representative present
o Right to take photographs of identification parade
o Participants must be approximately of same height, build, general appearance, gender,
clothing*
o No requirement that behind one-way mirrors
o No two state witnesses may be present at the same time at any identification parade (must
be kept in separate rooms)
o Overarching requirement = fairness — goal is to prevent improper influencing of
witness

One guy in civilian clothes, the other seven in police uniforms

One guy battered and bruised, the rest not

One guy disheveled/clearly spent night in jail, the others refreshed and clean-shaven
COMPLAINT BY VICTIM OF SEXUAL OFFENCE
• Common-law rule:
 Evidence of voluntary complaint made by victim within reasonable time (at
first reasonable opportunity) after commission of alleged sexual offence =
admissible as previous consistent statement

• Common law REQUIREMENTs governing admissibility of complaint (previous

consistent statement):
 Complainant must testify

 Complainant must have been victim of sexual offence

 Complaint must have been made at first reasonable opportunity

 Complaint must have been voluntarily (no duress or coercion)

 Complaint can only be admitted for limited purpose of proving consistency

between the previous consistent statements and the testimony in court

• Common-law rule has been subject of severe criticism:

 Does not have rational basis

 Potentially prejudicial to both complainant and accused

 Allows accused to argue that if victim did not make complaint at first
reasonable opportunity, the court should draw negative inference about
credibility of victim

 Fails to take into account research that confirms that silence on part of victim
is often legitimate psychological response to post-traumatic stress caused
by violent sexual nature of the crime
• Common-law rule has been abolished by statute in Canada and substantially
modified by statute in Namibia
• In South Africa, ss 58 and 59 of Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 attempt to address these problems (Law reform
commission)

SA law Reform Commission looked into the common law position

• S 58 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007:

 Court may not draw any inference only from absence of previous consistent
statement (complaint) by complainant in sexual offence matter
• S 59 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007:

 Court may not draw any inference only from length of any delay between
commission of alleged sexual offence and reporting thereof
• Neither ss 58 or 59 makes any clear reference to conditions for admissibility of
previous consistent statements in sexual offence cases

 UTILITY OF THESE SECTIONS ARE LIMITED

 If the purpose was to completely revamp the common law rule, s58 + 59 did
not accomplish that

• Complainant must be victim of sexual offence:

 Offence must be of sexual nature — must be a victim and violence / some

physical element

 “Victim” includes people who may voluntarily participate but cannot give
consent:
• Children
• Mentally disabled

 (ss 58 & 59 expanded definition of “sexual offence” — See Schwikkard & Van
der Merwe 124—125)

• Complaint must have been voluntary:

• Not as result of intimidation
 State v T [1963 A]: Victim’s mother threatened to hit her if she refused to
disclose what accused had done to her
 Not as result of leading/suggestive questions

 “Why are you upset?” / “What happened to your clothes?” will not render
complaint inadmissible
  “Did X touch your private parts?” / “Did X assault you?” will render answer
inadmissible*
Can be in response to questions - as long as not leading/suggestive
 ss 58 & 59 has not altered this common-law requirement

 If complaint obtained as a result of violence/threat of violence — inherently

unreliable and lacks probative value — becomes irrelevant and inadmissible

 Also: coerced complaint may be excluded pursuant to s 35(5) of Constitution*

Evidence obtained in manner that violates any right in Bill of Rights must be excluded if
admission thereof would render the trial unfair or otherwise be detrimental to
administration of justice.

Victim must testify:

• Consistency cannot be shown if the victim does not testify in court
• If the victim does not testify — both fact that complaint was made and content of
that complaint inadmissible
• Also, complaint will simply amount to hearsay if maker of complaint (the victim) is
not called to witness box
• ss 58 & 59 has not altered this common-law requirement

• First reasonable opportunity:

• What amounts to “first reasonable opportunity” largely depends on
circumstances of each individual case
• Essentially means that “complaint must be made at earliest opportunity
which, under all the circumstances, could reasonably be expected, and also it
must be made to the first person to whom the complainant could reasonably
be expected to make it” [S v Banana 2000 ZSC]
• Interpretation of “first reasonable opportunity” in court’s discretion and depends on
three factors:
• Presence/absence of person to whom victim could reasonably be expected
to make first complaint
• Whether/not victim was old enough/mentally developed enough to
understand unlawful nature of act
 • Whether complainant, as result of lapse of time, possibly could have made
false complaint [S v V 1961 O]
• Complaints by young children have been admitted after periods of 5 days, 7 days, 10
days, and even 6 weeks

• First reasonable opportunity — application in case law:

• S v S [1995 ZS]:
• Accused (A), a school teacher, charged with rape of 11 year old girl at school
while in his care
• After rape, girl did not immediately report rape to school because wanted to
tell her mother first
• Judge held this was natural reaction of a young girl who had been through
traumatic experience
• When girl arrived home, she merely told her mother that teacher had
touched her private parts
• Judge held this erratic behaviour to be natural for sexually innocent 11 year
old girl* (Schwikkard & Van der Merwe 121—122)
• At time girl had formed intention to tell her mother, she had been bleeding from her
vagina, but when she reached home the bleeding had stopped.
• She was also unaware that what A had done was unlawful.
• Complainant had history of misbehaviour and was frequently detained at school as
punishment.
• She did not want to trouble her mother with what she assumed was merely another
form of punishment.

• First reasonable opportunity — application in case law:

• S v Cornick [2007 SCA]:
• Complainant (C), 14 years old at time of rape, had waited over 19 years
before making complaint
• C had psychologically buried traumatic memory of rape
• Chance meeting with one of the rapists revived C’s buried memory, and she
laid charge of rape
• Appellants argued that it was improbable that complainant, if she had in fact
been raped, would not have told her grandparents or mother about rape
 • SCA described case as “unusual”
• SCA held that there were plausible explanations for lengthy silence:
• C had been brought up by elderly and conservative grandparents who
never discussed matters of intimate nature with her
• C had distant relationship with her mother who had also never
discussed sex or physiology with her
• C had never had a boyfriend
• S v Cornick [continued]:
• In these circumstances she did not realise what was happening to her when
the three accused took turns raping her despite her protestations
• Not improbable that young woman who had buried the memory of traumatic
event for many years would not appreciate, until her mid-twenties (at time
when discussion and publicity about rape had become common), full extent
of what had happened to her
• Rape convictions of appellants confirmed

• First reasonable opportunity:

• “First reasonable opportunity” requirement is remnant of Middle Ages — essential
for rape victim to have “raised the hue and cry”
• Now generally accepted that complainants in sexual offence cases do not
necessarily make immediate/prompt reports
• Authors opine that ss 58 & 59 have done away with this common-law requirement

• Limited evidential value:

• Common law — complaint only serves to prove consistency on part of victim
 Cannot create probability in favour of prosecution’s case

 Cannot corroborate victim

 Can prove consistency

• Ashworth: Evidential value of previous consistent statement:
 The fact that witness telling particular story at trial told exactly the same
story to the police soon after the alleged offence cannot supply
corroboration although it may well strengthen the evidence and rebut any
suggestion of recent fabrication.
  Repetition of story does not corroborate it — and this is corollary of general
proposition that the confirmatory evidence must come from independent
source
• Limited evidential value:
• However, there is one exception:
 General proposition does not apply in one carefully circumscribed set of
circumstances where self-corroboration is possible — by means of victim’s
distressed condition after alleged incident
• S v S [1990 A]:
 Extremely shocked condition (“uiters geskokte toestand”) of complainant
when se reported the rape considered strong corroboration of her testimony
that she was raped

 Two qualifications on this type of corroboration: Court must be satisfied that

• distraught condition not faked; and
• If genuine, not attributable to something other than alleged incident
• ss 58 & 59 has not altered this common-law rule that the complaint has limited
evidential value – can only prove consistency

• Present recollection refreshed:

• While giving evidence, witness may refresh memory from document that contains
statement made previously (witness forgets)
• Earlier statement:

 has no independent probative value

 does not become evidence

 only used as aid for practical purposes

• Only what witness says in box is evidence

• Past recollection recorded:

• Distinguished from present recollection refreshed
• Content of statement received as evidence
 • No independent oral testimony
 Thus, issue of previous consistent statement does not arise

SIMILAR FACT EVIDENCE

LEARNING OBJECTIVES

After completing this study unit, you should be able to:

(a) Explain the concept of “similar fact evidence,” and appreciate that it involves
two different sets of facts;
(b) Discuss and apply the admissibility of similar fact evidence;
(c) Evaluate the rationale for the general rule against the admissibility of similar fact
evidence, as well as its continued applicability after the abolishment of the jury
system in South Africa;
(d) Explain and comment on the types of prejudice to the accused that could result
from the admission of similar fact evidence;
(e) Discuss and evaluate the evolution of the similar fact evidence rule pursuant to
the following cases: Makin v Attorney-General of New South Wales 1894 AC 57
(PC) 65; R v Straffen (1952) 36 Cr. App. R. 132; DPP v Boardman 1975 AC 421;
and S v D 1991 (2) SACR 543 (A);
(f) Explain, and apply to a set of facts, the relationship between the nexus
requirement and coincidence, in particular the test for coincidence, as well as
examples from the following cases: R v Bond 1906 2 KB 389; and R v Smith
(1916) 11 Cr App Rep 229;
(g) Explain, and apply to a set of facts, the dependence of the relevance of similar
fact evidence on other available evidence pursuant to R v Ball 1911 AC 47 (HL);
(h) Discuss, and apply to a set of facts, the exclusion of similar fact evidence in
accordance with Laubscher v National Foods 1986 (1) SA 553 (ZS).
9. RELEVANCE

• Relevant evidence =
• evidence with the potential to make the existence of any fact in issue more
probable or less probable
• Pre-condition for admissibility

10. LECTURES 3-6

 Previous consistent statements
 Similar fact evidence
 Character evidence
 Opinion evidence
• Dependant on relevance for admissibility
• General rule = inadmissible because irrelevant
• Exceptions

11. WHAT ARE SIMILAR FACTS?

• Similar facts = evidence that party to proceeding (accused) has behaved on other
occasions in the same way as she is alleged to have behaved in the case currently
considered by court
• There are two sets of facts:
• (1) Facts now in issue in court
• (2) Facts similar to the facts in issue, but themselves not in issue
• E.g.:
• George is charged with dealing in dagga
• State wants to introduce evidence showing that George has dealt in dagga on
previous occasions
12. ADMISSIBILITY OF SIMILAR FACTS

• Similar fact evidence generally inadmissible because irrelevant

• To be admissible — Most important evidentiary aspect is that there must be a link
(nexus) between similar fact and fact in issue
• Link/nexus must be more than mere similarity — must be linked by chain of
cause and effect in some assignable way
• Link/nexus must have relevance other than solely to the character of the
accused

• Similar fact evidence will only be admissible if relevant to fact in issue currently
• Some rational connection between facts not enough — degree of relevance
that counts
• If to be admitted — similar facts must have inherent power (probative
value) to assist in proving/disproving issue — i.e., give rise to reasonable
inference in deciding facts in issue

• Similar fact evidence:

• May amount to character evidence — must also conform to evidentiary
requirements of character evidence
• Treated as circumstantial evidence from which court must draw reasonable
inference
• May amount to crime/delict or simply form of immoral (but not illegal)
conduct
• Commonly used in criminal cases by state against accused, but accused may
also use it to establish defence
• Similar conduct prior to, as well as subsequent to, facts in issue may be
admissible

• Reason for development of rule against similar fact evidence was to prevent juries
from being prejudiced by such evidence
• Evidence of accused’s previous bad conduct/bad character may unfairly
prejudice jury
 • Jury may decide that, because accused behaved badly in the past, she must
be guilty of doing so again, even if there is insufficient evidence to prove
current crime charged
• Zeffert & Paizes:
• As a general rule, state is not allowed “even to hint at anything” indicating that
accused has criminal disposition/bad character to further forbidden line of
reasoning — i.e., accused is bad/has criminal disposition and is therefore
guilty
• Evidence, whose sole purpose is to support inference that accused’s bad
character/criminal propensity is relevant to guilt, is necessarily irrelevant and
inadmissible
• But trial by jury abolished in South Africa
• Do we still need rule against similar fact evidence?
• Bottom line: Constitutional right to fair trial must control admissibility of similar
fact evidence
• and fair trial is put in jeopardy if irrelevant similar fact evidence is admitted

• Apart from Constitutional imperative — similar fact evidence generally irrelevant

because its prejudicial effect outweighs its probative value (NB PHRASE) -
harms more than it helps
• Types of prejudice are numerous & varied:
• Usually irrelevant — does not relate directly to issue before court
• Accused must defend, not only against offence charged, but also against past
misconduct
• Procedurally inconvenient:
• Accused taken by surprise
• Raises many collateral issues — distracting, time-consuming and
expensive to investigate
• Undermines proper administration of justice:
• Encourages inefficient and sloppy police investigation — overworked police
force may focus on suspect’s previous record of bad conduct, i.e., search for
and arrest “usual suspects” (past offenders); & past offenders are vulnerable
because police can apply undue pressure on them to induce involuntary
confessions
13. EVOLUTION OF SIMILAR FACT RULE

• The many prejudicial factors associated with similar fact evidence have made
formulation of workable general rule for determining admissibility extremely
difficult
• What follows is a brief discussion of evolution of rule – how did the rule against
similar fact evidence evolve?

• Makin v Attorney-General for New South Wales (Australian case appealed in

London)
[1894 PC] (appeal to Privy Council from NSW):
• Makins — H & W — who in 19th century jargon were “baby farmers”
• parents (who could not afford to raise their children) would pay Makins an
amount that was clearly insufficient for the children’s care
• in return the Makins undertook to give board and lodging (“fostering”) to
children of poor
• Makins charged with murder of young child in their care
• Child’s body found buried in their garden
• Pled not guilty — claimed that child had died of natural causes
• Facts were ambivalent i.e. consistent both with allegation that child was murdered to
gain maintenance money and defence that child died of natural causes accompanied
by “unnatural burial.”
• Prosecution attempted to lead two important pieces of evidence:
• Skeletal remains of other babies had been found in their garden
• Testimony from four other women who had given their babies to Makins
(having paid an amount insufficient for babies’ maintenance) and whose
babies had also vanished
• Clear that this evidence would be highly prejudicial to accused
• Trial court accepted similar fact evidence nut the Makins appealed this
• Privy Council determined that trial court correctly received similar facts:
• Prosecution cannot lead similar fact evidence to show that accused were guilty of
prior criminal acts for purposes of reasoning that accused, because of such criminal
conduct/bad character, also committed crime charged
• i.e., similar facts cannot be admitted merely to show that accused had propensity to
commit offence charged
 • Similar facts can be admitted if relevant to issue before court:
• May be relevant if bears on question whether acts constituting the crime were
designed/accidental or
• to rebut defence open of accused (Remember R v Dhlamini)*
• Remember Rex v Dhlamini: A’s defence on charge of murder was that he had been
16 km away at relevant time

• Makin formulation was inadequate to explain several cases

• What about many cases where propensity itself is highly relevant to issue in case?
• E.g., the “very peculiar maniacal propensity and bizarre practices” of accused
in R v Straffen [1952 QB]

• Rex v Straffen [1952 QBD]:

• Accused (A) charged with murder of young girl (L)
• Prosecution tendered evidence relating to two other girls
• All three girls:
• had been strangled
• without being sexually molested
• killed for no apparent motive
• In all three cases:
• no evidence of struggle
• no attempt to hide the bodies, although concealment would have been easy
very peculiar, specific circumstances
• A had been previously charged with murder of two other girls
• but he was found unfit to plead on ground of insanity and committed to
institution
• A escaped from institution
• was seen near place where L’s body found
• L was murdered during brief period of A’s escape
• Court admitted similar fact evidence on ground that it was relevant to identity
• Court clearly only paying lip service to Makin
• Difficult to escape conclusion that probative value of similar fact evidence was based
on propensity
 • Established that A had propensity of most unusual kind:
• A was strangler of small girls in peculiar circumstances and for no apparent
motive
• It was this peculiar propensity that was highly relevant and made evidence
admissible

• Formulation of rule in DPP v Boardman [1975 AC]: broadened the definition of sfe

• Similar fact evidence, as item of circumstantial evidence, is exceptionally

admissible when its probative value (w/r/t fact in issue) outweighs its prejudicial
effect

• Boardman accepted by AD in S v D [1991]:

• But SA courts have given Boardman flawed emphasis
• Probative force derives from “striking similarity”
• Criticism:
• Probative force can derive from striking similarity
• But incorrect to single out “striking similarity” as criterion in every case to
determine whether/not probative force outweighs prejudice
• Operation of principle cannot be restricted in such way
• No single manner of resolving inquiry

14. NEXUS AND COINCIDENCE

• Recall:
• To be admissible — Most important evidentiary aspect is that there must be a
link (nexus) between similar fact and fact in issue
• Link/nexus must be more than mere similarity — must be linked by
chain of cause and effect in some assignable way
• Link/nexus must have relevance other than solely character
• “In proximity of time, in method or in circumstance there must be a nexus
between the two sets of facts, otherwise no inference can be safely deduced
therefrom” [R v Bond 1906 KB]
• Test of coincidence:
• Difficulty with similar fact evidence —
What constitutes a sufficient nexus?
• McEwan proposes to see test i/t/o “whether similar fact evidence can be
explained away as coincidence” —
• similar facts will have no relevant probative value if their connection
with facts in issue can be explained away as coincidence
• similar fact evidence relevant and admissible if nexus goes beyond
mere coincidence
• Nexus lies in extreme unlikelihood of coincidence

• R v Bond [1906 KB]:

• Accused (A) — medical practitioner — convicted of unlawfully using instruments
upon woman (J) with intent to procure abortion
• A’s defence — instruments used on J in course of lawful medical examination,
abortion was accidental, thus he did not have intent
• Court admitted evidence of another woman (T):
• A had intentionally performed similar operation on her 9 months earlier
• A had told her that “he had put dozens of girls right”
• Both women had been living with A in his house before abortions and both were
impregnated by him
• Why was similar fact evidence admissible?
• No “striking similarity” between unlawful abortions
• Similar fact evidence significant because it made defence of accident
implausible when raised by man with apparent expertise in abortion
• Nexus in Bond can be found in extreme unlikelihood of coincidence

• R v Smith [1915 Cr App Rep]:

• Accused (A) charged with murder of woman with whom he went through a bigamous
marriage ceremony
• She had been found dead in bath
• A had recently taken out life insurance on her life (i.e., A stood to benefit financially
from her death)
• A’s defence — her death caused by epileptic fit
 • At trial, evidence given that:
• two other women had died on subsequent dates
• A had gone through form of marriage with each
• both had died in their baths in circumstances similar to victim in present case
• in each case A stood to benefit financially by woman’s death
• On appeal the court held that similar fact evidence correctly admitted — sufficiently
relevant to rebut A’s defence
• Court: Occurrence of so many accidents that benefited A could not reasonably be
explained on basis of coincidence:
• “Either all three deaths were accidental, or else [A] was responsible for each
of them. The improbability of coincidence may therefore . . . establish the
required link.”

15. OTHER EVIDENCE

• Relevance of similar fact evidence will also be determined by strength of the other
available evidence

• R v Ball [1911 AC]:

• Accused (A) — brother & sister — charged with incest (at time when incest was
secular crime):
• Main prosecution evidence:
• A held themselves out as being married
• A seen together at night in house with only one furnished bedroom, containing
a double bed showing signs of occupation by two people
• Brother seen coming from bedroom in half-dressed state, while woman was in
a nightdress
• This evidence equivocal — could have led to inference that illegal act had taken place
but not necessarily so (Zeffert & Paizes: “brothers and sisters may occupy same bed
quite innocently”)
• Similar facts admitted by court:
• three years prior (before incest was secular crime, but only religious one) A
had lived together as H &W
 • A shared a bed
• baby had been born and A registered as its parents
• Prior conduct had strong probative force given the other evidence — i.e.,
circumstances in which they were presently cohabiting
• If, e.g., evidence in present case had been that A lived in same house but occupied
separate bedrooms — probative value of similar fact evidence greatly diminished

16. EXCLUSION OF SIMILAR FACT EVIDENCE

• Loubscher v National Foods [1986 ZS]:

• Plaintiff (P) — a pig farmer — claimed that his pigs had died after eating
contaminated food sold by defendant (D) — National Foods (was seeking damages)
• P attempted to admit evidence from neighbouring pig farmers who had lost pigs after
they had eaten D’s food
• Court rejected the evidence as insufficiently similar and therefore irrelevant for four
reasons:
• Evidence did not show that other farmers bought their pig food during the
same time period as plaintiff
• Evidence did not show that all the farmers' pigs had become ill within the
same period of time after eating it
• Evidence did not show that conditions on the pig farms were similar or that
all farmers took the same care of their pigs
• No evidence that the food that all the farmers fed their pigs came from the
same batch

17. SUMMARY: IS THE SIMILAR FACT EVIDENCE RELEVANT AND

THEREFORE ADMISSIBLE?

• Is there a ‘striking similarity’; R v Boardman as adopted in S v D

• [Can also say that the two sets of facts are not similar enough/not
sufficiently similar with reference to Loubscher v National Foods]
• Does probative value outweigh prejudicial effect;
• R v Boardman as adopted in S v D

• Can the two sets of facts be explained away as mere coincidence; R v Smith
• [Also ‘McEwan’ or R v Bond in relation to the ‘coincidence’ test]

• A sufficient nexus does not exist between the two sets of facts; R v Bond
[NOTE: Instead of ‘nexus’ can also say that the chain of cause and effect is broken or
that in proximity of time, method and circumstance, there is not a strong enough link]

• The evidence relating to _______ does not bear on the question of whether [the
death] was designed or accidental, nor does it rebut the accused's defence; Makin
v Attorney General for New South Wales