Admissibility of similar fact evidence in Malaysia?

What is similar fact evidence? It is actually referring to an accused person’s pervious misconduct so called bad character other than that which gives rise to the offence charged. For example, A is charged under an offence of murdering B, and before being charged, A did murder somebody else like C and D, thus the act towards C and D is considered as similar fact evidence.

In our previous post, we did discuss the position of common law in admitting the similar fact by discussing the case of Makin v AG for New South Wales as well as the case of Boardman v DPP.

In the former case, Lord Hershell formulated the rule of admissibility where the similar fact evidence is admissible if it is relevant to an issue before the jury and yet it also admissible if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

On the other hand, for the latter case, it was focused at the point of probative value as known as probative value approach as to convict the accused by admitting the similar fact evidence, all the crimes committed by the accused must contain similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence. It does mean that the act of accused must be SIMILAR in all the crimes he committed, for example A would put a rose on the top of deceased’s head after he has murdered him/her, if the next victim also has a rose on top of her head, hence this similar fact will be admissible and taken into consideration if A is being charged.

So the question arises as to does Malaysian Court adopt the same approach laid down under common law? The answer will be yes. It can be seen through our decided case and provisions under Evidence Act 1950 including section 14, 15 and 11 of the said act.

In Malaysian case of Junaidi bin Abdullah, Mohamed Azmi SCJ had adopted the principles laid down in Makin case and Boardman case where he said that similar fact evidence will be admissible provided the probative value of such evidence outweighs its prejudicial value. Although it is seemed similar fact evidence is admissible, lawyer still needs to be caution when adopting our provision in tendering such evidence.

As stated in Makin case, similar fact evidence is only admissible if it can be proven whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.  This judgment actually can be separated into 2 parts, firstly to prove whether the act was designed or accidental, it is dealt with state of mind which is mens rea, secondly to rebut a defence can be meant to negate the actus reus.

Thus, for similar fact evidence to prove the mens rea, it is only allowed under those sections in proving a person’s state of mind which is section 14 and 15. For rebutting the defence, section 14, 15 are not relevant at all since 14 and 15 have nothing to do with actus reus. So, how to admit the similar fact evidence when it is needed to rebut a defence? It can be admissible under section 11 of Evidence act as to prove whether the fact in issue or relevant fact is high probable or improbable.

As a conclusion the common law principles may prove to be good law and are well accepted, they must always be read in line with our own provisions under Evidence Act to avoid the inconsistency.

Written by Lee Kah Sheng (Sean)