For similar fact evidence, we shall refer to the landmark case Makin
v. Attorney General for New South Wales [1894] AC 57. The brief
fact of this case is A husband and wife were charged with murdering a
child they were fostering and burying it in their backyard. During their
trial evidence of twelve other babies found buried in the backyards of their
previous residences was offered as evidence. The appeal was based on
whether this evidence was admissible or whether it was unfairly prejudicial to
their defence.
Lord Herschell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances.'It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant 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. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other'.
Lord Herschell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances.'It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant 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. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other'.
In short, evidence of similar fact only could be admitted when
it is not merely relevant and probative, In R v Smith, 1915,
(11 Cr App R, 229), the ‘brides in the bath’ case, the
defendant was accused of one murder but evidence was offered of two more. The
admission of this evidence followed similarly from the improbability that three
different women with whom he had gone through a form of marriage, and who had
made financial arrangements from which he would benefit, had all drowned in the
bath by accident shortly afterwards.
Although the leading cases in which the similar fact principle was established concerned the crime of murder and the admission of similar facts which were not disputed, from the beginning of the twentieth century onwards there was growing pressure on the judiciary to lower the threshold for the admission of such evidence in order to obtain convictions in sexual cases. This pressure was particularly strong in relation to cases involving allegations of homosexuality. Later in the case of In the case of R v Sims, (1946, 31 Cr App R 158) the Court considered an appeal which turned on whether allegations of buggery made by three different men against the accused could be admitted within the same trial in support of one another. However, In the judgment drafted by Denning J, the Court ruled that the principle applied to strikingly similar facts in such cases as Makin and Smith should be extended and applied to similar allegations. The judgment failed to present any sound rationale for changing the law in this manner.
Some how later, in the case of DPP v Boardman (1975), which concerned allegations made by three adolescent boys against their male teacher, the House of Lords lent its own authority to the judgment in Sims, while rejecting its view of homosexuality. At the same time that it did this, however, it drew attention to the grave dangers which might follow from this change in the law. Lord Cross pointed out that that there was a marked difference between cases which involved allegations and the cases (such as Makin and Smith) which involved counts of murder and undisputed evidence of previous deaths. In the original cases there was, said Lord Cross, ‘no question of any witness for the prosecution telling lies’. ( the witness for case In AG v Makin is a deceased and the case of R v Smith the deceased is the wife, so deceased in fact unable to tell lies). Lord Wilberforce underlined this view and warned against the danger that, as a result of the extension of the similar fact principle, innocent defendants might find themselves facing a series of grave allegations, all of which were false.
The general test prescribed by DPP V Boardman was a cautious one. In deciding the question of admissibility, the judge should weigh the probative value of the evidence against its prejudicial effect. If the similar fact evidence was so weak, so unreliable or so contaminated that its probative value was outweighed by its capacity to prejudice a jury, then it should be excluded. In their judgment their Lordships reinforced the caution embodied in this test by placing particular stress on the need for there to be ‘striking similarities’ between allegations before the possibility of their being admissible could even be considered.
Later about year 1990 onwards, the principle of DPP v Boardman seems have been replaced by few cases. In the case of DPP v P, Lord Mackay went on to reject the requirement that allegations, in order to be admissible, should be ‘strikingly similar’. In doing so he wrongly claimed that this requirement applied only to cases where identification was at issue. Bear in mind that , the judgment will let the defendant or accused suffered more from false allegations. 1995, in R v H, the second safeguard which had been put in place by Boardman was also removed. Lord Mackay, who once again gave judgment, made explicit what had already been implicit in his earlier judgment and held that, in ruling on the admissibility of a series of similar allegations, the judge should generally assume that the allegations in question were true. ( My own opinion= this clearly not practicable because the judge in the end has to access whether the probative value is higher than prejudicial effect, if the judge has to assume the allegations in questions were true then all the evidence sure admissible.)
In short, the principle of innocence until proven guilty or the presumption of innocence of the accused has been seriously affected. Because these decisions have permitted, and indeed encouraged, the admission of evidence which is both highly unreliable and massively prejudicial, innocent defendants have again and again found themselves facing large numbers of allegations, all of which are false.
Although the leading cases in which the similar fact principle was established concerned the crime of murder and the admission of similar facts which were not disputed, from the beginning of the twentieth century onwards there was growing pressure on the judiciary to lower the threshold for the admission of such evidence in order to obtain convictions in sexual cases. This pressure was particularly strong in relation to cases involving allegations of homosexuality. Later in the case of In the case of R v Sims, (1946, 31 Cr App R 158) the Court considered an appeal which turned on whether allegations of buggery made by three different men against the accused could be admitted within the same trial in support of one another. However, In the judgment drafted by Denning J, the Court ruled that the principle applied to strikingly similar facts in such cases as Makin and Smith should be extended and applied to similar allegations. The judgment failed to present any sound rationale for changing the law in this manner.
Some how later, in the case of DPP v Boardman (1975), which concerned allegations made by three adolescent boys against their male teacher, the House of Lords lent its own authority to the judgment in Sims, while rejecting its view of homosexuality. At the same time that it did this, however, it drew attention to the grave dangers which might follow from this change in the law. Lord Cross pointed out that that there was a marked difference between cases which involved allegations and the cases (such as Makin and Smith) which involved counts of murder and undisputed evidence of previous deaths. In the original cases there was, said Lord Cross, ‘no question of any witness for the prosecution telling lies’. ( the witness for case In AG v Makin is a deceased and the case of R v Smith the deceased is the wife, so deceased in fact unable to tell lies). Lord Wilberforce underlined this view and warned against the danger that, as a result of the extension of the similar fact principle, innocent defendants might find themselves facing a series of grave allegations, all of which were false.
The general test prescribed by DPP V Boardman was a cautious one. In deciding the question of admissibility, the judge should weigh the probative value of the evidence against its prejudicial effect. If the similar fact evidence was so weak, so unreliable or so contaminated that its probative value was outweighed by its capacity to prejudice a jury, then it should be excluded. In their judgment their Lordships reinforced the caution embodied in this test by placing particular stress on the need for there to be ‘striking similarities’ between allegations before the possibility of their being admissible could even be considered.
Later about year 1990 onwards, the principle of DPP v Boardman seems have been replaced by few cases. In the case of DPP v P, Lord Mackay went on to reject the requirement that allegations, in order to be admissible, should be ‘strikingly similar’. In doing so he wrongly claimed that this requirement applied only to cases where identification was at issue. Bear in mind that , the judgment will let the defendant or accused suffered more from false allegations. 1995, in R v H, the second safeguard which had been put in place by Boardman was also removed. Lord Mackay, who once again gave judgment, made explicit what had already been implicit in his earlier judgment and held that, in ruling on the admissibility of a series of similar allegations, the judge should generally assume that the allegations in question were true. ( My own opinion= this clearly not practicable because the judge in the end has to access whether the probative value is higher than prejudicial effect, if the judge has to assume the allegations in questions were true then all the evidence sure admissible.)
In short, the principle of innocence until proven guilty or the presumption of innocence of the accused has been seriously affected. Because these decisions have permitted, and indeed encouraged, the admission of evidence which is both highly unreliable and massively prejudicial, innocent defendants have again and again found themselves facing large numbers of allegations, all of which are false.
by
LIEW PEI PEI
A132417
Further discuss on similar fact on civil cases
ReplyDeleteSimilar Fact Evidence (SFE) may also admitted in civil cases. In the Court of Appeal of Mood Music Publishing Co. Ltd v. De Wolfe Ltd, the dispute issue is about infringement of copyright of the musical work. In allowing the admissibility of such evidence, it was explained by Lord Denning,"the admissibility of evidence as to 'similar facts' has been much considered in criminal law... the criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice; and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it."
His lordship further explained that In civil cases, the courts will admit evidence of similar facts if it is logically probative, that is if it is logically relevant in determining teh matter which is in issue; provided that it is not oppessive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it.
(shinyi)