RELEVANCY (SIMILAR FACTS EVIDENCE)

The general rule is that, facts which are relevant merely from their general
similarity to the main fact, and not from specific connection therewith are not
admissible.
For example, in criminal trial, it is now a trite law that the court should not
infer that simply because a person has committed a similar act, therefore he
must have done it again.
The inadmissibility of such evidence is referred to as similar fact evidence, and
forms one of the four great canons of the law of evidence at common law
(others being character, opinion and hearsay).
Like all general rules, this rule also provides an exception to its admissibility.
Similar fact evidence is evidence that a party (especially the accused) has on
previous occasions misconducted himself in a way similar to the misconduct
being alleged against him in the proceeding before the court. The evidence
frequently takes the form of a previous conviction.
In general, the prosecution may not offer similar fact evidence as part of its
case unless it can be shown to be relevant to an issue before the judge, for
example by rebutting some defence advanced by the accused.
Thus, if a person is charged with fraud contends that he was honestly
mistaken, the fact that he has committed similar frauds on previous occassions
may be admissible.
For example in the case of Noor Mohammed v The King the accused was tried
for the murder of his wife by poisoning her with potassium cyanamide. The
conviction was based on the evidence that some two years earlier his previous
wife has died in the same way. The Privy Council held that this evidence was
not relevant to prove the charge against him of murdering other woman. The
Privy Council stated:
“If it was not relevant it was at the same time highly prejudicial... By
looking at the previous history of criminality of the accused, the court may
blindly jump to the conclusion that the accused should be guilty... Evidence of
the accused having committed crimes other than that with which he is charged
is not admitted.”

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COMMON LAW POSITION – The Specific Purpose Test
The leading case on point where similar fact evidence was admitted is Makin v
AG for NSW [1894] AC 57. The Makins were charged with the murder of a child
who had been left with the Makins by the mother. The child’s body was
discovered in the Makins garden and after searches in the gardens of other
houses they had lived in, several other babies’ bodies were found. The Makins
argued that the death of the baby was an accident and the prosecution wanted
to call evidence of other bodies, which had been found to show that although
one death could be explained away as an accident, the death of a dozen or so
could not be.
The Privy Council upheld the judge’s ruling that the evidence is admissible
stating that
“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 the
conclusion that the accused is a person likely from his 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 that
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.”
In addition to those mentioned by Privy Council in Makin’s case, further
categories were created for evidence showing system; evidence designed to
rebut the defence of innocent association or mistake; or evidence adduced to
show identity, and many others. Whenever evidence could be fitted into one
of these categories it was held to be admissible.
The problem with the Makin’s test is that, to admit similar fact evidence, the
party must fit the similar facts in one of the categories / compartments.
Arguments were adduced that the party may introduce new category if they
want to adduce similar fact evidence, as long as there is a specific purpose for
introducing such evidence. However, when is this going to stop?

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COMMON LAW POSITION – The Probative Value Test
The Makin’s test of specific purpose has been criticized in Boardman V DPP
[1975] AC 421.
The facts were that Boardman was a headmaster at a boys’ school in
Cambridge. He faced charges in relation to two of his pupils, S and H. Each boy
said that Boardman had visited him late at night in their dormitory. He then
invited each to his room where he suggested that the boy took the active part
in the act of buggery.
With regard to S, the charge was that of buggery itself, with regard to H, it was
incitement. At trial, the prosecution was allowed to have both counts tried
together. However, the accused argued that the jury would be unduly
prejudiced by hearing these two similar allegations and that there should be
separate trials. The judge dismissed the application for separate trials and
directed the jury that they were entitled to take into account S’s evidence
when deciding the count with regard to H and H’s evidence on the S count.
The House of Lords had to decide whether the judge was right. It was held that
the evidence of the accused’s misconduct was admissible on each count,
provided the judge could rule out the possibility of the boys getting together to
concoct the story and he could rule out the possibility of stories being a
coincidence.
The House of Lord also held that the facts of present case were on the
borderline of admissibility. The mere fact that each boy said that they were
invited to play the active part did not by itself appear to be sufficiently
remarkable that it could be said that the possibility of coincidence could be
ruled out. But, there were sufficient other similarities between the two boys’
stories that there was no real likelihood of coincidence. Boardman’s decision
had effected a revolution in thinking about the problems of similar fact
evidence. The 'categories' or 'pigeon-hole' approach was decisively rejected.
The question of admissibility of prior acts of misconduct was to be determined
by the degree of probative force possessed by that evidence, and the extent to
which it would unfairly prejudice the right of an accused person to a fair trial.
Several Lords in this case stressed that the admissibility of similar fact evidence
should turn on its cogency rather than its category.

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Lord Wilberforce wrote: 'The basic principle must be that the admission of
similar fact evidence ... is exceptional and requires a strong degree of
probative force.’

COMMON LAW POSITION – The Striking Similarity Test

The expression 'striking similarity' was coined by Lord Goddard CJ in R v Sims
[1946] 1 All ER 697. In that case, the accused had been charged in an
indictment with six counts alleging homosexual offences involving four men.
Each man give evidence that the accused had invited them to his home and
there committed the offence against them. The accused admitted that the men
had come to his house but said that it was for an innocent purpose.
The Court of Appeal held that the evidence on one count was admissible on
the other counts because 'the acts they described bear a 'striking similarity'.
This dictum was approved by the House in Boardman.
Lord Wilberforce held that, ‘this probative force is derived, if at all, from the
circumstance that the facts testified to by the several witnesses bear to each
other such a striking similarity.
The same idea is sometimes expressed by saying that the various incidents
must show an 'underlying unity', 'striking resemblances,‘ 'unusual features',
'uniquely similar' or 'system.'
It should be pointed out that to be of significance, the similarity has sometimes
to be dissimilar from any other person's criminal activities and peculiar to the
accused.
The same idea were sometimes expressed by various other cases saying that
the various incidents must show an 'underlying unity', 'striking resemblances,‘
'unusual features', 'uniquely similar' or 'system.'
It should be pointed out that to be of significance, the similarity has sometimes
to be dissimilar from any other person's criminal activities and peculiar to the
accused.
The difference between 'mere general resemblance' and 'striking similarity' is
one of degree. The fact that an extrinsic event is of the same legal type as the
one in question is insufficient. There must be specific similarity in procedure,
circumstances or mode of execution.
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For example in R v Smith which is famously known as the ‘brides in the bath’
case. The accused was charged of one murder but evidence was offered of two
more. The admission of this evidence followed similarly from the improbability
that three different women with whom the accused had gone through a form
of marriage, and who had made financial arrangements from which he would
benefit, had all drowned in the bath by accident shortly during their
honeymoon.
In R v Gurney, the question was did the accused intend to rape or did he
intend to steal? The issue arose out of whether a previous conviction for a
similar offence, committed in 1987, should be admitted. The present incident
occurred seven months after release from the prison sentence imposed for the
earlier offence. The prosecution contended that the jury were entitled to hear
of it to enable them to draw the correct inference which was that he had
entered the flat with intent to rape. The previous offence concerned a woman
waking to the sound of breaking glass. She went out of her bedroom door to
find the accused standing in front of her. She recognized him as a neighbour.
He started to attack her, and when her children disturbed him by screaming,
he produced a knife and then ran out. Nothing was stolen from the house.
The prosecution relied on seven factors in support of its application:
(1) both violent intrusions occurred at night;
(2) both women were believed to be living alone;
(3) the accused lived nearby in both cases;
(4) in both he wore a leather jacket;
(5) he carried a weapon;
(6) he did not run away when confronted by the householder; and
(7) although he was in the house for what was, in burglarious terms, a
substantial period of time, nothing was taken, nor was there any evidence of
an attempt to steal.
The judge, in deciding to admit the evidence, referred to the influencing
similarities as: (i) the presence of the weapon; (ii) single women whom he
knew lived alone; and (iii) a delayed period whilst he was in the house with
nothing stolen. He was satisfied that the evidence was relevant to the issue of
the accused's intention.

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On appeal, it was contended that the evidence was more prejudicial than
probative and should not have been admitted. The Court of Appeal referred to
R v P and held that whether the evidence had sufficient probative value to
outweigh its prejudicial effect must in each case be a question of degree. The
court was satisfied, applying that test, that the evidence was admissible as
potential proof of Gurney's intent when he entered the flat.
Thus, it is submitted that the true view is as follows:
any 'similar fact' evidence must pass the test of 'positive probative value'
before it can be admitted;
if the 'similar facts' are 'strikingly similar' the test in (a) will likely, but not
necessarily, be passed; and
'similar facts' may not be 'strikingly similar' to the facts in issue and yet still
pass the test in (a).

MALAYSIAN POSITION
Evidence of past criminal activities is not admissible if it is not relevant and
merely shows that the accused is the sort of person who is likely to have
committed the offence for which he is charged – Poon Soh Har & Anor v PP
[1977] 2 MLJ 126 – In this case, the fact that the appellants had trafficked in
heroin in the past did not mean that they were trafficking when arrested.
Evidence of trafficking in heroin in the past merely raised the suspicion that
they were having the heroin for purposes of trafficking but did not prove that
they did traffic on the day in question.

MALAYSIAN POSITION – Section 11 (b)

In Malaysia, evidence of similar facts is governed under Section 15. However,
in some instances, certain types of similar offences or acts may be admissible
under Section 11 and Section 14.
In R V Raju & Ors v R [1953] MLJ 21, the 1st and 2nd appellants appealed
against their conviction in the lower Court on two charges of corruption and
the 3rd appellant against his conviction of abetting these offences. There was
no evidence that the first two appellants received the sums of money as
charged. There was some evidence that the 3rd appellant received the moneys
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but no evidence that he passed them to the first two appellants. However
evidence was admitted that on different occasions certain persons had paid
money to the 2nd appellant. The learned President considered these similar
facts as relevant and admissible because they showed system.
On appeal, the court discuss the admissibility of similar facts under the
Evidence Act 1950. The court also added that since there were no direct
evidence to implicate the 1st and 2nd appellants, the conviction against them
should be quashed and the court ordered a retrial for the 3rd appellant.
In Abubakar Ismail v R [1954] 1 MLJ 67, the appellant, an Assistant Licensing
Officer, was convicted on 2 charges with making a false statement for the
purpose of obtaining the grant of a driving licence. In each case the application
form was endorsed by the appellant to the effect that he had seen the
applicant's Federation driving licence, which thus exempted the applicant from
the necessity of passing a driving test in Singapore. Evidence to show similar
endorsements by the appellant was produced. One of the grounds of appeal
was whether such evidence of similar acts was admissible.
The court in admitting the evidence, referred to Section 11(2) — "Facts not
otherwise relevant are relevant 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.”
The fact in issue was whether, upon the dates referred to in the charges,
Federation driving licences were produced to the appellant or not. Does the
fact that on the 8 previous occasions the appellant made similar endorsements
without any Federation driving licence being produced make it "highly
probable– that no Federation driving licences were produced upon the 2 dates
which are material to these charges? Or does it merely tend to prove that the
appellant, having done this before, is the sort of man who would probably do it
on the 2 occasions charged.
The court held that the evidence of similar acts in this case went far beyond
showing that the appellant, having committed similar acts previously, was a
person who was likely to have committed the 2 acts with which he was
charged, and that the evidence of the previous 8 cases was relevant to the
issue which was before the Court.

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MALAYSIAN POSITION – Section 14
Under Section 14, facts showing existence of any state of mind or 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.
It is to be noted that both Section 14 and 15 must be read together in the
context of the law of evidence relating to similar fact evidence.
Section 15 is an extension of Section 14 and thus is wider in its application. The
important distinction between both the sections is that under Section 15, the
fact sought to be proved must form part of a series of Under Section 14, the
facts made relevant are:
Facts showing existence of any state of mind such as intention, knowledge,
good faith, negligence, rashness, ill-will or good-will towards any particular
person when the existence of any such state of mind is in issue. (Illustration (e)
to (j), (o) and (p) deal with intention; (a) to (d) deal with knowledge; and (n)
with negligence and knowledge)
Facts showing the existence of any state of body or bodily feeling when the
existence of any such body or bodily feeling is in issue. (Illustration (k), (l) and
(m) deal with bodily feeling. similar occurrences and Section 14 is not
restricted in this way.
Explanation 1 to the section prescribes that 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. Thus, the
facts that may be admitted under the section are restricted to those that have
an immediate reference to the facts in issue.
Illustration (a), (b), (c), (n), (o) and (p) provide example of the restriction placed
on the section by this explanation.
Section 14 is also applicable to civil cases where illustrations (c) – (g), (k), (m)
and (n) relate to civil matters.
Refer to Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1 All ER 763 – in
civil cases, the courts will admit of similar facts if it is logically probative and
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.

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MALAYSIAN POSITION – Section 15
Section 15 of the Evidence Act 1950 states that when there is a 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
occurrences, in each of which the person doing the act was concerned, is
relevant.
Refer also illustrations (a) – (c).
The section requires three conditions to be satisfied before it can be invoked.
They are:
There must be an issue as to whether an act was accidental or intentional or
done with a particular knowledge or intention;
That issue must form part of a series of similar occurrences; and
In all those similar occurrences, the person doing the act must have been
concerned.
In PP v Veeran Kutty [1990] 3 MLJ 498, the two accused and some others took
part in a robbery. They were apprehended outside the town after being chased
by police. During the chase they were observed to have been holding a pistol
each. When arrested, they were no longer in possession of the pistols. After
being interrogated, both accused led the police back to the place where they
were arrested and two pistols and 11 rounds of ammunition were recovered.
They were subsequently charged under the Internal Security Act 1960 for
unauthorized possession of firearms. The defence sought to introduce
evidence of armed robbery.
In the instant case, the evidence of the armed robbery, should the prosecution
adduce evidence of it, would certainly have shown that both accused, while
being armed with revolvers, committed armed robbery, the evidence of both
the accused being armed with revolvers would be similar in nature to the fact
in issue, the possession of firearms, and would have been evidence of similar
fact as well.
The prosecution in the instant case, when about to, or just beginning to
adduce the evidence of both the accused being armed with revolvers robbing
the victim in question, voluntarily decided not to do so. Such evidence, if
adduced, would be so strikingly similar to the evidence relating to the charge

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of having in their possession or control the firearms and the ammunition in
question, that its probative force w The court when admitting evidence of
similar facts must carry out a balancing test by weighing the probative value of
such evidence against its prejudicial effect. Where the court fails to carry out
this test, such failure will constitute a serious misdirection occasioning a
serious miscarriage of justice –
Azahan Bin Mohd Aminallah v PP [2005] 5 MLJ 334
In this case, the appellant was first charged in the sessions court on 26 January
1997 with the rape of his 15-year-old daughter 'in early December 1996'. He
claimed trial and the case was fixed for hearing on 8 January 1998. However,
when the case was called on for trial on that date, the appellant applied for
legal aid. The matter was then postponed to 24 June 1998. On 24 June 1998
the appellant applied for an adjournment as his counsel had not arrived. The
court refused the adjournment and proceeded with the trial. ould have
overridden its prejudicial effect.
His daughter — PW2 — the prosecution's principal witness testified inter alia
of several other incidents of sexual intercourse with the appellant sometime in
1991 and 1995. At the conclusion of the prosecution's case, in consequence of
the evidence of PW2, the first charge against the appellant was amended and
three other charges were framed against him.
These charges were read to him but there was nothing in the record to show
that the prosecution's evidence was explained to him pursuant to s 257 of the
Criminal Procedure Code ('CPC'). The appellant was called to enter his defence.
He chose to make an unsworn statement from the dock. However, the sessions
court rejected the appellant's unsworn statement as a bare denial, convicted
him on all four charges, and sentenced him to 18 years' imprisonment and two
strokes of the rotan, on each charge. The appellant appealed to the High Court.
The High Court merely endorsed the sessions court's findings and held there
had been no procedural error by the trial court.
The appellant thus appealed to the Court of Appeal.
The Court of Appeal allowed the appeal, quashed the conviction of the
accused, and went on to state that:
This was a case where the appellant had come into court prepared to face a
single charge. However, the prosecution in the course of the trial, without

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seeking the leave of the court, adduced highly prejudicial similar fact
evidence of previous acts of sexual intercourse. The sessions court judge
should have intervened at once and asked the prosecuting officer to justify the
course he proposed to embark upon. This was especially necessary since the
accused, a layman, was unrepresented by counsel.
A court when deciding whether to admit similar fact evidence must carry out
a balancing exercise by weighing the probative value of such evidence
against its prejudicial effect as impliedly required by section 14 and 15 of the
Evidence Act 1950. The court would be justified in admitting the evidence
where its probative value is outweighed by its prejudicial effect.
In the instant case, PW2's evidence as to the appellant's previous acts of
intercourse with her was relevant, and admissible. However, this did not
relieve the court of determining whether the probative value of her evidence
outweighed its prejudicial effect. Nowhere in the judgment of the sessions
court was there the kind of balancing exercise dictated by section 14 and 15 of
the Evidence Act. This was a serious misdirection and occasioned a serious
miscarriage of justice.
In Wong Yew Ming v PP [1991] 1 MLJ 31, the court admitted the fact that
evidence of similar fact offered by the prosecution’s witness is prejudicial.
However, the court still admitted the testimony as additional evidence to show
knowledge on the part of the accused and the possession of the drugs was not
accidental.

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