According to Keane, similar fact evidence means the disposition of accused towards wrongdoing of specific act of misconduct on other occasions. Generally, any evidence used to show that accused guilty of offences other than the charged framed in indictment is inadmissible for proving he or she is indeed committed of the charged offence. However, it is subjected into exception as propounded in the case of Makin v AG for New Wales where there are two limbs of rule, viz, exclusionary and inclusionary. Under the former limb, prosecution is forbidden to adduce evidence tending to show the guilty of criminal acts other than those covered in indictment. This is so eminent in confining the admissibility of evidence to the fact in issue and accused could prepare to answer the charge framed against him. By its inclusionary part however, evidence would be admissible if those facts are so relevant to determine whether the alleged act is designated or accidental and this constitute an exception to the general rule of inadmissibility of similar fact evidence. Moreover, any evidence that used to be applied in rebutting the defence also admissible as similar fact evidence under the rule of inclusionary. 

            In R v Smith, the accused was charged with murder of his futures wife. Prosecution has adduced the evidence that accused previous wives also dies in similar circumstances. Justice Lush ruled that the tendered similar fact evidence should be admissible as they show an irresistible inference that the occurrences of so many incidents (murdering) could not be happened unless it was designated and not coincidence. It is an evidence of system and not isolated in toto. Review on the case of Makin should be done in parallel with another case of DPP v BoardmanBoardman symbolizes a significance revolutionary on similar fact evidence. The question of admissibility of prior criminal acts must be determined by the judge in light of the degree of probative force possessed by the similar fact evidence. This is so pertinent in safeguarding the right of accused in having a fair trial. Compared with the Makin case, Boardman stressing more on the ratio of cogency rather than category enunciated in the Makin case. Thus, probative value should be the justification for the admissibility of similar fact evidence. 

            In Malaysia, Boardman principle has be adopted in the case of PP v Veeran Kutty & Anor as it has been affirmed by Jusice Peh Swee Chin. This has been followed by the case of Junaidi bin Abdullah v PP. Supreme Court reinforced that similar fact evidence is admissible and justifiable if the rationale of probative value outweighs its prejudicial value. Probative value is eminently rests on the probability of rendered evidence to draw desired inference or possible material disposition. In the case of R v Sims, the accused had been charged in an alleged homosexual offence with six counts of similar prior criminal acts. The similar fact evidence was admissible as those acts were strikingly similar. Striking similar is closely related with the quantum of probative value attached to the tendered similar fact evidence in determining the question of admissibility. However, it is subjected to the discretion of judges by applying their common sense guided to certain precise analogy or precedent. 

            Discussing similar fact evidence could not be diverted from the central principles of criminal justice. Wigmore stipulated that admissibility of similar fact evidence is depending on the deep tendency of human nature to punish due to the fact that he is a bad man and not he is guilty of offence charged. However, the negative side of similar fact evidence is degrading the quality of judgment as it is limited on the reflection of accused’s character rather than the merit of findings in the commission of crime. Judge would be influenced in considering the standard of proof. Proof of guilt might be fall short of proof beyond reasonable as the benefit of doubt in favour of accused has been deprived. However, it is not absolute to say that the evidence of bad character or previous offences never carries any weight. The development of similar fact evidence also could be reviewed in the Royal Commission on Criminal Justice. They has recommended that admissibility of similar fact evidence should not be restricted if there is a striking similarity in the evidence.  The implied reasoning of this disposition could be divided into three grounds. First, people with criminal records are more likely to offend criminal acts. Second, the statistically verified effect where perpetrators of particular offence, namely sexual offender is likely to re-offend again. Third, the concealment of the record of an accused in certain extent of fact demonstrates a deception during the trial. The similar fact evidence becomes persuasive for the judges in making appropriate decision. 

             In the Evidence Act 1950 (EA 1950) of Malaysia, similar fact evidence is prima facie relevant as enshrined under section 14 and 15 of EA 1950. The illustrations shown in section 14 used to apply the elements of simultaneous possession, concurrency of events and similarity of the previous criminal acts with the current charge stated in the indictment. Moreover, state of mind of the offender would be considered as well in determining the admissibility of similar fat evidence. Even though inclusionary rule stipulated in Makin case comprises the consideration on Actus Reus and Mens Rea, section 14 of EA 1950 only concerned primarily on the state of mind. Under section 15 of EA 1950 similar fact evidence only would be admissible if it is relevant to determine whether the alleged misconduct is designated or accidental. Admissibility of similar fact evidence must be carefully applied in cases where the tendered evidence must has immediate rationale inference to the fact in issue as the principle has been adopted in our EA 1950.

            In a nutshell, similar fact evidence only admissible after prosecution able to pass the test of positive probative rather than striking similarity. This underlying principle has been laid down in the case of R v Lunt, where the court explained that in order to decide whether the evidence is positively probative in the crime charged against accused, issue to which the evidence directed must be identifiable. For instance, similar fact evidence could be admissible when the issues involve identification, proving intention or rebut a defence of accidental offences instead of designated. The consideration on the aspect of bad character in admissibility of similar fact evidence is not neglected. As the admissibility of similar fact evidence always subjected to the discretion of the presiding judges to exclude the evidence if it would prejudices the minds of judges and out of proposition to its true of evidential value. Thus, balancing process would be taken as a great caution step to prevent discrimination towards innocent accused.


12/13/2012 02:18:11 pm

It provides me a clearer picture as to my understanding towards similar fact evidence.....

12/13/2012 04:59:17 pm

Would you think that similar fact evidence is reliable? :)

12/13/2012 08:43:33 pm

In whatever evidence being tendered there is always a border to be maintained and therefore its similar in this present case whereby a balance need to be struck as a precautionary step in order to prevent discrimination regards to the innocent accused and i always belief in the fundamental principle of criminal law, which need to be uphold in whatever circumstances whereby an accused is presumed innocent until being proven guilty.

Keith Gan
12/14/2012 01:50:36 pm

All in all, scrutiny of Malaysian Evidence Act 1950 seems to suggest that there is no room for the importation of the Boardman v. DPP principle in Malaysia. Its scope and application by the Malaysian Courts have always come under close scrutiny and comments as the Malaysian Judiciary often adopt a critical and analytical approach when deciding on the question of admissibility of similar fact evidence. Therefore, it is of paramount important for a court in order to 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 sections 14 and 15 of the Evidence Act 1950. Thus, the court would be justified in admitting the similar fact evidence where its probative value is outweighed by its prejudicial effect. Be that as it may, I am of the opinion that the admission of the similar fact evidence, at least for the purposes identified in sections 14 and 15 of the Evidence Act 1950, should be governed by the balancing test adopted by the House of Lords in Boardman’s case. Such an approach is warranted both in principle as well as on the wording of the legislation itself.

12/15/2012 05:43:23 pm

Dear Keith Gan, I am totally in your side by saying that specific purposive approach should be implemented effectively under the admissibility of similar fact evidence in certain exceptional cases. The purported approach is so pertinent in ensuring the element of mens rea under s14 and 15 of Evidence Act being fulfilled. Even the scope of application under common law similar fact evidence as propounded in the case of Makin is much more wider, but one thing that we could not deny is similar fact evidence should be considered as well in Malaysia context through the application of balancing process between probative value and prejudicial value. This is not against the principle of justice as the right of accused would not be easily impair without sufficient ground.

6/2/2014 11:13:57 pm

can u tell me whats the difference between S14 illustration (a) and (o) 'in habit of shooting other people' that have different decision on the admissibility of evidence?


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