Similar Fact Evidence (SFE)

The general principle is that evidence of an accused’s previous conducts, which are unrelated
to the current facts in issue, tendered to prove the current offence are inadmissible due to its
high prejudicial effect, and the presumption that an accused is presumed innocent until
proven guilty.
- Makin v AG of New South Wales: When the accused were charged for the murder of
a baby, the prosecutor wished to produce evidence that both of the accused have
been receiving other babies in a similar manner, under the supposed reason of
wishing to adopt the babies. When the body of the baby (of the current charge) was
found buried in the backyard of the house, there was also evidence of the remains of
a few other babies found buried in similar ways in the backyard of houses previously
and currently occupied by them.
- The general principle as per Lord Herschell: It is incompetent for the
prosecution to adduce evidence to show that the accused had been guilty of
similar criminal acts other than that covered by the charge for the purpose of
leading to the conclusion that the accused is likely, from his criminal conduct,
to have committed the current offence.
- However, exceptions to the general principle was established in this case:
Similar fact evidence is admissible if it is to show that the current misconduct
was designed, to rebut the likelihood of it being accidental, or to rebut the
defence raised by the accused.
- Thus, if the evidence is tendered merely for the purpose of showing that the
accused were likely to behave in such a way, then it would be inadmissible
under the general principle.
The approach taken in Makin’s case led to the Common Law formulation of two tests:
Specific Purpose Test
- SFE is admissible if it is tendered to show that the crime for which the accused is
currently being charged was designed, or that it was not accidental, or to rebut a
defence that might be open to the accused.
- Makin’s case: Evidence of previous murders of other babies were tendered to rebut
the defence raised by the accused that they only wished to adopt the baby, and that
the baby’s death was accidental. Therefore, the Privy Council admitted the evidence
as it suggested that the current charge for the murder of the baby was not accidental.

- The purposes of admitting SFE as provided in Makin’s case were further developed
into several other sub-categories for which SFE is admissible:
- To show design or to prove system
- R v Smith: The accused was charged for murdering his wife, who died in a
bathtub after insuring her life in his favour. The circumstances in which her
body was found were inconsistent with a death that would occur as a
consequence of an epileptic fit, which the accused used as a defence. The
 prosecution adduced evidence that the accused had previously married two
other women, who had also died in their bathtubs in a manner inconsistent
with epilepsy, and that in their cases too, he stood to gain financially from their
deaths. The court admitted the evidence, and the accused was convicted for
murder.

- To show identity
- R v Straffen: The accused, who was charged for the murder of a young girl by
way of strangulation, had confessed to previously murdering two young girls
which exhibited similar features in the way he left the victim. In this case, the
accused strangled the young girl without any attempt at sexual interference or
any attempt to conceal her body. The evidence of the previous murders were
admitted by the court as it tended to identify the person who murdered the
victim in the current charge, with the person who confessed in his statements
to have murdered the two girls a year before, in exactly similar circumstances.

- To rebut the defence of mistake or innocent association

- R v Ball: A brother and sister were charged with incest during various periods
in 1910. It was proved that they had occupied the same bedroom at the
material times. The court admitted evidence showing that the accused had
cohabited as man and wife at an earlier period when they had a child, and thus,
they were convicted.

- The exceptions proposed by Makin’s case were too wide that it led to the creation of
a non-exhaustive list for admitting SFE, thus causing the general principle to be
ineffective.

Strikingly Similar Test (introduced in R v Sims)

- SFE is admissible if the repetition of the previous misconducts and the current charge
are strikingly similar. The likelihood of coincidence is lesser when similar allegations
are made, and the more striking the similarities, the more unlikely for it to be a
coincidence.
- The similarity of facts must be more than a mere repetition, and not simply of habit.
The various incidents must show a striking resemblance, unusual features, or a
unique similarity.
The strikingly similar test introduced in R v Sims was further refined to include the element of
probative value outweighing its prejudicial effect, thus leading to the formulation of the
probative value approach.
- DPP v Boardman: The appellant, the headmaster of a boarding school, was charged
for committing buggery with a pupil, and with inciting another pupil to commit
buggery with him. The main similarities in the testimonies of both pupils were in the
way the accused had approached them: he woke them up at night in the dorm, spoke
 in a certain tone of voice, invited them to do the act in the sitting room, and indicated
that he wished to be the passive partner. Held: The similarity of the evidence was
sufficient to justify admission as the possibility of prejudice which might arise if the
pupils had been conspiring against the appellant was unlikely in the case.
- The essence of the exception to the inadmissibility of SFE is to allow such
evidence if it has a sufficient degree of probative force so as to override any
prejudicial effect that it might have.
- The similarity would have to be so unique or striking that common sense
makes it inexplicable (unexplainable) on the basis of coincidence.

- Probative value is not provided by mere repetition of SFE. It is dependent upon three
principle factors (as per Cross on Evidence):
- The cogency (strength) of the evidence showing the accused’s bad character
- The extent to which proof of such character supports the inference sought to
be drawn from it
- The degree of relevance of that inference to some fact in issue in the
proceeding

- Harris v DPP: Evidence of other occurrences which merely tend to increase suspicion
does not go to prove guilt. Thus, evidence of similar facts should be excluded unless
such evidence has a material bearing on the facts in issue (it must relate to something
more than isolated instances of the same offence)
Similar Fact Evidence under the Evidence Act
- RV Raju & Ors v R: In Malaysia, evidence of similar acts is often admissible under Sec.
15, though certain types of evidence of similar offences or acts may be admissible
under Secs. 14 and 11(b).
Sec. 11(b): 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.
- Evidence of similar acts is admissible to make the existence of a fact in issue highly
probable within the meaning of the provision.
Sec. 14: Facts showing the existence of any state of mind, body or bodily feeling is relevant
when the existence of such state of mind, body or bodily feeling is in issue or relevant.
- This provision embodies the approach taken in Boardman’s case, whereby the
probative value of the SFE must outweigh its prejudicial effect in order for it to be
admissible.
- Evidence tendered to show the existence of any state of mind, body or bodily feeling
is relevant if it carries probative value.
- E.g: To establish the knowledge of a person or an accused.
- Illustrations (b), (c)
 - Explanation 2 of Sec. 14 allows SFE of an accused’s previous acts or conviction to be
tendered in order to show the existence of any state of mind, body or bodily feeling.

- PP v Veeran Kutty & Anor: The prosecution was allowed to adduce evidence of the
commission of an armed robbery (previous conviction) by the accused prior to them
being caught in possession of firearms and ammunition.
- The evidence of the accused being armed with revolvers is similar in nature to
the fact in issue, which is the possession of firearms.
- Thus, the prejudicial effect of the evidence of an armed robbery has been
overridden by its striking similarity, making it admissible.

- This provision is also applicable to civil cases where SFE is adduced.

- Illustrations (c), (d), (e), (f), (g), (k), (m), (n)
- Mood Music Pubishing Co Ltd v De Wolfe Publishing Ltd: In claiming that the
defendants had infringed their copyright, the plaintiffs adduced evidence of
the defendants’ past infringements of the plaintiffs’ copyright.
- In civil cases, the courts will admit evidence of similar facts only if it is
logically probative (logically relevant in determining the fact in issue)
Sec. 15: In determining 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 is
relevant.
- This provision adopts the specific purpose approach in Makin’s case.
- The accused’s act must have formed part of a ‘series of similar occurrences’, which
can be equated with a ‘system’.
- Evidence that the accused committed other acts of a similar nature to the act
for which he is charged, will show system, thus negating the possibility of an
accident.
- Illustrations (a), (b), (c)

- RV Raju & Ors v R: Evidence of similar facts may be relevant for the following purposes:
- To negative accident
- To prove identity
- To prove intention (only where mens rea is the gist of the offence)
- To rebut a defence open to the accused
- When tendering SFE, the prosecution should tender it for a specific purpose, and if
admitted, it should be made clear for what purpose it is admitted.

- Junaidi Abdullah v PP: The accused was charged with being in possession of a revolver
without lawful excuse. A witness allegedly saw the accused handle a firearm while
committing robbery the night before he was arrested. The evidence was tendered to
rebut the defence of the accused that he was not in physical possession of the firearm.
The court admitted the SFE based on both, principles in Makin’s and Boardman’s case.
 - Where the purpose of adducing evidence of similar offences is justifiable on
the ground of relevancy and necessity to rebut any defence open to the
accused, it is admissible provided that the probative value outweighs its
prejudicial effect.
The fact that more recent cases have showed an inclination towards the application of
Boardman’s case is proof that courts in Malaysia have accepted the probative value approach.
However, in tendering evidence under Secs. 14 and 15, the SFE must first be proven to be
relevant under the provisions.
Only upon establishing its relevance under the provisions should the probative value
approach in Boardman’s case be applied.
- Azahan Mohd Aminallah v PP: A court when deciding whether to admit SFE must carry
out a balancing exercise by weighing the probative value of such evidence against its
prejudicial effect as impliedly required by Secs. 14 and 15.