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Similar Fact Evidence(SFE) crimes does not render it inadmissible if it is

relevant to an issue before the jury; and it may


INTRODUCTION
be so relevant.
SFE is evidence which renders the existence or non-
The rule in Makin was reformulated by the House of
existence of fact in issue probably by reason of its general
Lords in
resemblance thereto, and not by reason of its being
connected therewith. Boardman v Director of PP

R v Straffen It was held that similar fact evidence can only be


admitted if its probative value outweighs its prejudicial
Two or more facts are similar if they have striking and
effect.
significant features
This rule has also been adopted and applied in Malaysian
General Rule: Generally, such evidence is inadmissible,
Case – PP v Veeran Kutty & Anor
because SFE usually had it prejudicial effect outweighs its
probative force. SECTION 14

Facts showing the existence of any state of mind…are


relevant when the existence of any such state of mind..is
If we were to admit it, it is like we are placing heavy
in issue or relevant.
reliance on such similarity when determining whether a
particular person did in fact behave in particular manner THIS SECTION COMES INTO OPERATION ONLY WHEN THE
on a particular occasion. EXISTENCE OF A STATE OF MIND OR BODY IS IN ISSUE.

SFE is therefor admissible in proving mens read/ when


the accused seeks to rely on a defence of good faith.

Azahan bin Mohd Aminallah v PP


It would be an injustice to the accused to adduce
evidence in similar previous incidents in order to prove A court when deciding whether to admit similar fact
his guilt. evidence must carry out a balancing exercise by weighing
the probative value of such evidence against its
prejudicial effect as impliedly required by s 14 and 15.
MALAYSIA POSITION
Facts: the appellant in this case was charged and
Notwithstanding the General Rule, our Evidence Act convicted of the rape of his daughter. At the trial,
have been interpreted as providing for the admissibility evidence was adduced of previous acts of sexual
of SFE under certain specific circumstances. intercourse which had taken place between him and his
daughter.
Malaysian courts have adopted the propositions laid
down in Held: The appeal court have carefully examined the
record and nowhere in the judgement of the lower court
Makin v AG is there the kind of balancing exercise dictated by ss 14 &
In this case, Lord Herschell laid down two propositions 15. This is a serious misdirection. It occasioned a serious
with regard to the admissibility of SFE: miscarriage of justice as the sessions court acted on SFE
to add three further charge on the accused.
1. It is not permissible for the prosecution to adduce
evidence merely for the purpose of showing that To sum, this is a case riddled with serious errors because
the accused is a person likely, from his criminal of poor investigation and prosecution – appeal allowed,
conduct or character, to have committed the conviction quashed and sentence set aside.
offence which he is being tried; in other words, PP v Md Alim bin Samad
propensity evidence is inadmissible.
2. However, the mere fact that the evidence Whilst the prosecution may not adduce evidence to show
adduced tends to show the commission of other that the accused has been guilty of any criminal act other
than that covered by the charge, the mere fact that the be a real anticipated defence to be rebutted and not
evidence adduced tends to show the commission of merely crediting the accused with fancy defence.
another offence, does not render it inadmissible. It is
Wong Yew Ming v PP
admissible if it is relevant to an issue before the court or
if it is an indication of a state of mind such as intention. SFE is admissible not because it tends to show that a
person committing one offence is likely to commit
Teo Koon Seng v R
another but to show knowledge or intention of an
It is not open for the prosecution to call evidence to accused and that the commission of the offence is not
anticipate a supposed defence which was never put up accidental.
and which is never likely to be put up.
F: in the context of the Act PW’s 8 evidence is in our view
Yong Sang v PP clearly admissible. The prosecution wanted to show that
on previous occasions the applicant had sold drugs and
Evidence of a previous offence to show not that an
therefore had been trafficking drugs. In our law when the
accused has committed a particular offence with which
statutory amount of drug is proved to be in the
he is charged but that he is sort of person likely to have
possession of any person the presumption is invoked and
committed it is inadmissible.
the person shall be presumed until the contrary is proved,
Facts: the appellant was convicted on a charge of having ‘to be trafficking’ the said drug. Under the Act possession
documents received from a terrorist. This evidence was of the statutory amount of drug is trafficking. The
deduced from the fact that on two or three occasions he evidence is relevant to show knowledge and that the
was seen in the company of terrorists. possession of the drug by the applicant was not
accidental.
H: The evidence in question here did not fall within any of
the recognized exception to the rule. Jacob v PP

It is highly prejudicial evidence = conviction cannot stand. Evidence submitted in accordance with the accordance
with the provisions of s 15 should be confined to the
SECTION 15 rebuttal of a defence of accident, mistake or other
This section is concerned only with similar fact evidence innocent condition of mind.
of mens rea that forms part of series of occurrences. SECTION 11(b)
Narrower than s 14 Re Teoh Beng Hock
Thus, it can be said evidence that is not similar fact Section 11(b) and 15 permit similar fact evidence to be
evidence or evidence that does not relate to a series of considered where such evidence has a material bearing
similar occurrences is not admissible under section 15. on the issues to be decided.
Maidin Pitchay v PP Facts: regarding the magistrates’ ruling to call S I20 as a
Section 15 enables the prosecution to offer similar fact witness, the magistrates’ cited ss 11(b), 14 and 15 of the
evidence in advance to rebut a defence which would EA on SFE.
otherwise be open to the accused, and that such evidence His basis is that ‘it happened at the same location in
is admissible even though it may tend to show the SPRM Selangor and might involve the same persons who
commission of other crime. are witness
Junaidi bin Abdullah v PP

The purpose of adducing evidence of similar facts or


similar offences is justifiable on grounds of relevancy and
necessity to rebut any defence which would otherwise be
open to an accused, PROVIDED the probative value of
such evidence outweighs its prejudicial value. There must
OVERALL

R v Raju & Ors

Section 11, 14 & 15 permit similar fact evidence to be


admitted for the purpose of inter alia, negativing
accident, proving identity, proving intention,and
rebutting a defence. When evidence of this kind is
tendered, the prosecution should tender it for a specific
purpose; if it is admitted, it should be made quite clear
for what purpose.

Junaidi bin Abdullah v PP

Evidence of a different offence which forms a vital part of


a defence is allowed as the probative value of such
evidence outweighs its prejudicial value as evidence of
bad character. To exclude such evidence would deny an
accused the opportunity of testing his defence and the
prosecution the opportunity to rebut a defence which
would otherwise be open to an accused.

F: The evidence of physical possession of the revolver


during the robbery was vital to the defence – to exclude
such evidence in trial would be against the interest of
justice.

Lee Kwang Peng v PP

Similar fact evidence which does not fall within sections


14 & 15 is admissible by virtue of section 11(b)