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

 However, SFE may be admissible if:

 The act sought to be proved are so connected to the offence
charged
 The fact are material to the question of whether it is design or
accident
 The fact proved are for te purpose to rebut any defence
o Wong Kok Wah v PP
 Accused was charged for possessing uncustomed goods
 Prosecution tendered evidence to show that accused had committed the
same offence previously
 Held: such evidence is inadmissible since the witness is not an accomplice

Exception to General Rule

 Statutory Exceptions
o S. 11(b) EA: Facts 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.
o S. 14 EA: Facts showing existence of state of mind are relevant
 Note: Refer Explanation 2
o S. 15 EA: Facts bearing on question whether act was accidental or intentional is
relevant
 S. 15 is also a codification of the Makin test
 Common law exceptions:
o Makin v AG for NSW (Makin Test)
o R v Boardman (Boardman test)
o DPP v P (latest test)
 The Malaysia courts recognised the existence of both statutory and common law
exceptions:
o R v Raju
Similar Fact Evidence

 Accused was charged with corruption by receiving bribes on two

occasions.
 Evidence: Accused had received bribe money on an entirely different
occasion.
 Held: SFE is not admitted in the case as the purpose is to show that
Accused is likely to have commit the offence.
 SFE may be admissible in Malaysia under s.15,s.14 & s.11
 Note: Court recognize s. 11 as an exception
 Generally, SFE may be relevant to:
 Negative accident (S.15/CL)
 Prove identity (CL)
 Prove intention (s.14)
 Rebut a defence (CL)
o Junaidi Bin Abdullah v PP
 Accused was charged for possession of firearms
 Prosecution tendered evidence to show him carrying the revolver while he
was caught red-handed.
 Held: SFE is admitted to rebut the Accused’s defence that the revolver
was held by another person at all times
 Admitted for the purpose to rebut the defence of accused
 Based on the test laid down in Makin and Boardman, the admission of
SFE is justifiable on grounds of relevancy and necessity to rebut any
defence in additional to the exceptions in s. 14 and s. 15 of EA
 Note: the court did not recognize s. 11 as an exception in this
paragraph but do so in a later part of judgment
Similar Fact Evidence

Common Law Exceptions

 The latest test: Whether the probative value of the SFE outweighs its prejudicial effect
 The test was first formulated in Makin, and later reformulated in Boardman and DPP v P
 Makin Test (Narrowest) [Specific Purpose Test]
o Makin v AG for NSW
 As a general rule, SFE is inadmissible.
 However, SFE may be admitted if it is used to:
 Rebut the defence of accident
 Show system or design
 Rebut any other defence
 Followed in Rv Raju & Junaidi bin Abdullah
 Boardman Test (Wider than Makin Test)
o R v Boardman
o Headmaster was charged with committing buggery with one pupil and inciting
another pupil to commit buggery with him while he took the passive role.
 SFE does not depend on the specific categories under Makin.
 A high degree of relevance and strong degree of probative force is
required for SFE to be admissible
 SFE is admissible where the probative value outweighs its prejudicial
effect
 Such probative value will arise where there is a striking similarity
between SFE and the current charge
 Striking similarity: must unique and not merely stock trade.
 Note: Boardman Test did not overrule Makin Test but only reformulated
it
o DPP v P Test (Widest)
 RvP
 Father was charged with rape and incest against his two daughters.
Evidence showed that that he had used force and threatened his daughters.
Similar Fact Evidence

 Reformulated the Boardman test by stating that striking similarity

is not a prerequisite for SFE to be admissible
 So long as the probative value outweighs the prejudicial effect,
SFE may be admissible
 Such probativeness could exist where there is a striking similarity
but this is not a prerequisite
o Note: Not necessarily need to show striking similarity to
adduce SFE, but if there is some striking similarity then
SFE may still be admissible
 Illustrative cases
o R v Smith (Brides in Bath Case) [Applied Makin]
 Accused married a girl who fell to her death after undergone marriage
ceremony. Before her death, she has drafted a will which leave all her
assets to the accused.
 During investigation, it was found out that accused had previously married
two other women who also died by falling into bath tubs after going
through marriage ceremony with the accused
 Held: SFE is admissible to rebut the defence of accident and to establish
modus operandi
 Three wives who died in similar situations each time and accused
benefits everytime
 This shows that this is no accident and may be caused by design
o R v Bond [Applied Makin]
 Accused was charged with procuring illegal abortion but claimed that it
was accident as he was giving examination to the said woman
 Evidence: Witness who testified that accused had performed abortion on
her and told her he had put right dozens of others
 Held: SFE is admitted by the court as it was to rebut the defence (show
modus operandi)
o R v Wilson [Applied Makin]
 Accused charged with rape. Raised mistake of consent
Similar Fact Evidence

 Evidence: Previous charge for indecent assault. Victim was called.

 In both cases, accused met victims in a club & offered a lift and attacked
them on the way back
 Held: Inadmissible as both stories are not unique/strikingly similar but a
mere stock trade. Modus operandi cannot be established
 Note: Good decision to illustrate the test works as the judge applie the test
and ruled that it was not fulfilled hence the evidence cannot be admitted
o R v Straffen [Applied Makin]
 Accused escaped prison, charged for murdering a young girl who was
found dead in the area where he was at large. Raised defence of mistake of
identity
 Evidence: Accused was convicted for murder previously. All the victims
are young girls, all strangled, body not concealed and not sexually
assaulted
 Held: Admissible as SFE shows a unique system which is not a stock
trade (victims not assaulted) and proved modus operandi to rebut the
defence
 Note: Good case as it shows how the test operates if applied correctly
o R v Thompson [Applied Makin]
 Accused was charged for indecent assault of two boys. Victims reported to
police and alleged that accused agreed to assault them again on a later day.
 On that day, police saw the Accused meeting with the boys and paid them
money before arresting him.
 A powder puff was found on the Accused and obscene photos of young
boys were later found in his house. Accused raise defence of mistake
 Evidence: powder puff & obscene photos
 Powder puff is unconnected to the charge as it only shows who
accused is (homosexual)
 Obscene photos are also unconnected to the charge
 Held: Evidence admitted as it showed his propensity to commit unnatural
acts
Similar Fact Evidence

 The evidence established his identity as a homosexual

 Note: bad decision as it was decided based on who Accused is and not
what he did (just because he carried a powder puff which indicates he is
gay)

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

 Noor Mohamed v The King

o It would be unjust to admit evidence of a character gravely prejudicial to the
accused even though there may be some tenuous ground for holding it technically
admissible. The decision must then be left to the discretion and the sense of
fairness of the judge.
 R v Scarrott
o Scarman LJ: Positive probative value is what the law requires
o Such force is not provided by a mere repetition of similar facts but there must be
some features which can provide an underlying link
o The link is not to be inferred from mere similarity
Statutory Exceptions [Common Law (widest) > S. 11(b) > s. 14 > s. 15 (narrowest)]
 S. 14 EA: Facts showing existence of state of mind is relevant
o Explanation 1: Fact showing the state of mind must also show the existence of the
state of mind in that particular matter
o Explanation 2: where an accused’s previous commission of an offence is relevant,
the previous conviction is also relevant
o Illustration (a): “at the same time he was in possession…” – need to be
particularised
 S. 15 EA: Facts to determine whether an act was accidental or intentional is relevant
o Both ss. 14-15 applies to SFE in relation to Mens Rea
o Note: Generally should be read together
 S. 11(b) EA: facts are relevant if by themselves they make the existence or non-existence
of any fact in issue or relevant highly probable or improbable

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

 Junaidi bin Abdullah

o There must be a real anticipated defence to be rebutted and not merely crediting
the accused with a fancy defence
 Teo Koon Seng v R
o Accused charged with extortion but he did not raised defence of accident
o Evidence: two witnesses who testified accused is in the habit of extorting
o Held: s. 15 is inapplicable since the accused did not raise accident as defence
 PP v Ang An An
o Accused was charged with driving a private vehicle as a public transport without
license (illegal taxi)
o Evidence: He did the same on previous occasions
o Held: SFE may be admitted under s.15. However, s.15 is only applicable to MR
and not AR. There must be evidence to established AR before s. 15 can be
invoked
 Wong Yew Ming v PP
 Maidin Pitchay v PP
 PP v Mohamad Fairus

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)

Does the Common law test apply to the sections?

Similar Fact Evidence

 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