Similar Fact Evidence
Similar Fact Evidence
Similar Fact Evidence (SFE): Evidence of facts which are similar to the fact in issue but
which are unconnected to the charge.
As a general rule, SFE is inadmissible
o It is a sub species of Bad Character Evidence which are inadmissible as it is
prejudicial against the Accused
Forms of SFE:
o A previous conviction for a similar offence (convicted)
o A previous charge for a similar offence (previously charged but not convicted)
o A previous misconduct similar to the present charge (not charged nor convicted
previously)
o Factual Background (eg: Brides in the Bath Case)
o Accused is charged in a single proceeding for several counts of offence. SFE may
be adduced if there is similarity between the 2 counts. (eg: Lee Kwang Peng)
Generally, SFE is inadmissible: Makin v AG for NSW
o 2 accused were charged with the murder of one baby. They adopted babies from
various people with payment to take care of them.
o One mother tried to get her baby back, was told that baby died accidentally and
buried in backyard.
o During the digging, 13 other dead babies were found.
o H: Generally, SFE is inadmissible (there are exceptions)
Rationale of the general rule: to safeguard the Accused from being convicted based on
evidence of previous offences without proper evaluation of the current evidence
o R v Bond
SFE is excluded because it has prejudicial effect; it can be unfair to the
Accused and the rules of natural justice requires that Accused to only
answer the current charge
The General Rule is applicable in Malaysia
o Rauf bin Hj Ahmad v PP
Court referred to R v Bond and held that SFE is inadmissible as a general
rule
Similar Fact Evidence
Malaysian Position
The common law tests are applicable in Malaysia
Makin Test
o Applied in Rauf bin Haji Ahmad v PP
o Wong Kok Wah v PP
Boardman Test
o Junaidi bin Abdullah
o PP v Veeran Kutty
Two accused charged under ISA for possession of firearms.
Evidence: Prosecution tendered accused's cautioned statements and the
defence sought to introduce evidence of the armed robbery.
Held: Admissible. SFE may be allowed if it has a sufficient degree of
probative force to override any prejudicial effect that it might have and
that the said sufficient degree would exist if such evidence of similar
fact is very relevant as being strikingly similar that to exclude it would
be an affront to common sense.
DPP v P test
o PP v Teo Ai Nee (Singapore Case)
Held: SFE is admissible if its probative force is sufficiently great to
outweigh any prejudice to the accused
o Azahan bin Mohd Aminallah v PP (Court of Appeal)
Accused charged with one count of rape against his own daughter
He was unrepresented on the first day of trial and trial was adjourned to
obtain legal aid.
Similar Fact Evidence
Defence counsel failed to appear on second day of trial, trial judge refused
to adjourn and proceed
Daughter was called as witness and testified that accused had rape her
many times. Charge was later amended and accused faced more charges
Note: Prosecution is tendering bad character evidence & SFE.
Defence Counsel was not there to object. Court should’ve at least
request Prosecution to justify the admission of this but it did not
In his defence, Accused claimed his wife is having an affair and his
daughter conspired with her to get rid of him. He was found guilty by SC
and HC.
On appeal to Court of Appeal, held:
Trial judge ought to have intervene the prosecution and ask for
justification of such evidence especially when accused was
unrepresented
Court when deciding to admit SFE or not, must balance between
the probative value of such evidence and its prejudicial effect on
the accused as required by ss. 14-15 of EA.
Acquittal
o PP v Mohamad Roslan bin Desa
Accused was charged for murder
Evidence: Previous charge of culpable homicide & Accused’s modus
operandi is to damage the car tyre of the victims who, if stop by, will be
robbed
Court of Appeal applied Boardman Test and ruled there is no striking
similarity
Federal Court: Applied DPP v P test and ruled that whether evidence has
sufficient probative value to outweigh its prejudicial effect is a question of
fact
Note: Court referred to ss. 15-15 of EA but not s. 11(b)
o RvZ
Accused was charged with rape and raised mistake of consent
Similar Fact Evidence
Evidence: Previous charges (4) for rape with the same defence; 3
acquittals and 1 conviction
Accused appeal on the ground that SFE can only be admitted for precious
convictions or charge and not previous acquittals
Held: Previous Acquittals may be still admitted as SFE as long as its
probative value outweighs its prejudicial effect.
Court must however, take note on the number of acquittals and
time lapse
o R v Barrington
Previous misconduct need not to amount to a crime for SFE to be
admissible
o PP v DSAI (No. 3)
Defence may also adduce SFE
The test is whether it is cogent to raise reasonable doubt
Collusion
R v Ananthanarayanan
o Issue before the court was whether SFE should be excluded when there is a
possibility of collusion?
o Held: where there is a possibility of collusion, SFE must be excluded
o Note: Bad decision and critised. If witnesses live together (DPP v P) or attends
same school (Boardman), SFE is excluded.
RvH
o If there is collusion, SFE may still be admitted but given on a lesser weight.
o Collusion affects weight and not admissibility
Probative Force
PP v Mohamad Roslan bin Desa
o whether evidence has sufficient probative value to outweigh its prejudicial effect
is a question of fact
Similar Fact Evidence
s. 14
Courts have taken a restrictive approach based on Explanation 1 and illustration
Teo Koon Seng v R
o S. 14 should only be applicable to facts which have immediate reference to the
fact in issue
PP v Teo Ai Nee
Similar Fact Evidence
o Court referred to Explanation 1 and illustrations and ruled that s. 14 requires proof
that the state of mind existed not in generally but particularly in the matter
Antony Ler Wee Teang v PP
Note: s. 14 is influenced by the common law exceptions but it only covers MR whereas
common law exceptions are wider (covers both AR and MR)
o Makin v AG (Established MR but no particularity)
o R v Smith (MR established but no particularity)
o Cf: R v Straffen
Can never fall within ss. 14-15
o R v Thompson
s. 15 EA
Codification of Makin test
Note: Illustration (a) is similar to R v Smith
More persuasive than s. 14
Note: “series of similar occurrences” means it should be more than twice based on
illustrations
Conditions:
o Accidental or intentional
o Act formed part of series of similar occurrences
o The person doing the act must be the same
PP v DSAI (No. 3)
o For SFE to be admissible under s. 15, it must be of the same specific kind as the
fact in issue
o The corut will consider is there proximity in time, method and a nexus between
the 2 facts
S. 15 will only be applicable to MR (similar to s. 14)
o Hence there must be independent direct evidence which will establish AR of the
offence
SFE under s. 5 will be admitted to rebut accident by establishing system/modus operandi
Similar Fact Evidence
s. 11(b) EA
SFE may be admitted under s. 11 as the evidence renders it highly probable that
accused has committed the offence
S. 11(b) as an exception
o R v Raju
Spencer Wilkinson J recognised s. 11(b) as an exception
o Abu Bakar bin Ismail v R
Accused was charged with 2 false endorsements on his license
applications
Evidence: He had done the same 8 times
Impact of the evidence is to render it highly probable that accused
commit the offence in the current occasion
Similar Fact Evidence
Held: admissile.
Note: SFE is admissible under s.11(b) by applying “Highly Probable
Test” which is very wide and very dangerous (Accused need not to raise
any defence for SFE to be admissible)
o X v PP
Accused was charged with aiding and abetting bandits
Evidence: He had consorted with the bandits sometime later
Held: Evidence is admissible under s. 11(b) as it makes it highly probable
that the money was intended for bandits
Note: Court also applied s. 14 but the test is high probable test and not
specific purpose test
o Re Teoh Beng Hock (inquest)
One witness was called by the defence and testified he was tortured while
being questioned
Impact: If it was done to the witness, it is highly probable they did it again
to accused
Held: Admissible under s. 11(b) as it is material to the issues to be decided
Note: only admissible in the interest of justice
o Abdul Khalid bin Abdul Hamid v PP
Accused charged with corruption.
Exhibits which contain letters of previous corruption
Held: Such evidence was vital to the prosecution and thus relevant under
s. 11 of EA. It is relevant and probative as showing system, and to rebut a
possible defence raised by Accused
S. 11(b) is not an exception
o PP v DSAI (No. 3)
A. Paul J: the application of s. 11 is limited by s. 54. S. 11 would render
inadmissible the evidence of one crime to prove the existence of another
unconnected crime
o R v Pharbudas Ambaram
o Interpretation of s. 11(b) that is accepted
Similar Fact Evidence
Rangayyan v Innasimuthu
S. 11 only applies to facts immediately connected to fact in issue
Ismail v Hasnul
S. 11 does not apply to collateral facts with no connection to the
main fact
o Interpretation of Sir James Stephen
Stephen’s Digest suggested that the did not intend for SFE to be
admissible under s.11 but only s. 14 and s. 15
Similar Fact Evidence: The Principles of Admissibility [1989] 2 MLJ
lxxxi.
Suggests that to admit SFE under S.11(b) would make s.14 & s.15
redundant
s. 11(b) may be an exception
o Jeffery Pinsler
Ss. 14-15 deals with MR only
There is no specific provision to admit SFE to prove AR and there is a
lacuna
o R v Pharbudas Ambaram
S. 11(b) was not intended to be wider than common law
o Lee Kwang Peng v PP
3 complainants alleged 3 incidents of assault during taekwondo training (9
assaults)
Accused charged with 9 counts but later reduced
Claimed that complainants conspired to bring false charges
Held: SFE was not only admissible for establishing MR under ss. 14-15
but also admissible under s. 11(b) to prove that Accused had committed
the AR of the offence
The test is that the probative value of the evidence outweighs its
prejudicial effect (SFE needs to bearing a striking similarity)
Current approach: both ss. 14-15 impliedly requires the balancing test (probative force vs
prejudicial effect)
Tan Meng Jee v PP
PP v Teo Ai Nee
Azahan Bin Mohd Aminallah v PP
PP v Mohamad Roslan Bin Desa
Al Bakhtiar bin Ab Samat v PP
o Referred to R v Scarrott
o Held: positive probative value is what the law requires for SFE to be
admissible. Such probative value is not provided by repetition of similar
facts as there must contain some features in the evidence which provides
an underlying link.
For ss. 14 – 15, Courts must carry out the balancing exercise between the probative value
and prejudicial effect of the SFE