What is Similar Fact Evidence in Malaysia?

Similar Fact Evidence (SFE) in Malaysia (Part 1)

What is SFE? - Evidence of facts which are similar to the fact in issue but which are unconnected to the charge.
E.g. X is charged with murder of his wife and 2 years ago, X had assaulted his wife but not charged. The SFE is violence against the spouse. Someone who has assaulted his spouse is likely to attack her again.

General rule: SFE is not admissible Res inter alios actae: all evidence that has nothing to do with the present dispute will be excluded.
Note: SFE is a subspecies of bad character evidence.

Bad character evidence is not admissible or a GR. Can be examined together In criminal proceedings, SFE can be introduced in:
a) previous conviction for a similar offence
b) previous charge for a similar offence
c) previous misconduct similar to the present charge
d) factual background
e) accused is charged in a single proceeding for several counts.

If there is similarity between 2 counts, SFE may be introduced between the 2 counts.
 GR: SFE is not admissible.

1. Makin v Attorney General for New South Wales A husband and wife were charged with murder of a baby. The baby was found buried in the backyard. The baby was an adopted child. The couple looked after the child and gets a lump sum payment for adopting the child. Prosecution argued that the couple took the money and killed the baby. They found 13 other babies buried in the backyards of houses occupied by the couple previously. GR: SFE is not admissible. Exception: Can bring in SFE to show system, modus operandi, or to rebut the defence of accident or any other defence.

2. Rauf bin Hj Ahmad v PP – incorporated Makin into Malaysia

3. Wong Kok Wah v PP Accused was charged with importing goods without paying customs. Prosecution brought in witness who claimed to have worked for the accused. The witness was previously arrested because of goods in which the accused had not pay customs. SFE is not admissible.

Why exclude SFE?

R v Bond a. prejudicial effect (prejudging that accused is more likely to commit the offence because of his previous conviction)
b. unfair
c. natural justice – accused will only be prepared to answer the current charge d. time/costs – practical reasons

Exceptions to SFE The law has evolved and has created certain exceptions to the GR against SFE in the interest of justice. Where these exceptions apply, SFE will be admissible.

Note: SFE will be admissible where its probative value outweighs its prejudicial effect.

Exceptions: 1. statutory – s. 11(b), s.14, s.15 2. common law – Makin/Boardman test The existence of both statutory and common law exceptions were identified in the following cases:

1. R v Raju (Spencer Wilkinson J)
In this country such evidence of similar acts is often admissible under s.15, s.14 and s.11. S. 14 is to rebut accidents, the common law is to rebut defences or to prove identity. S. 11 could include common law.

2. Junaidi bin Abdullah v PP
On the principle laid down in Makin and Boardman, we are of the opinion that for the purposes of adducing SFE is justifiable on grounds of relevancy and necessity, in addition to those under s.14 and s.15. *Must discuss both statutory and common law Common law exceptions: Note: the current test to determine admissibility is probative value outweighs its prejudicial effect. It is a question of fact Makin Test 1st limb – GR: SFE is not admissible 2nd limb – exceptions to SFE Specific purpose test: SFE will only be admitted: a. to rebut the defence of accident b. to show system/modus operandi (designed) c. to rebut any other defence

Note: R v Raju Junaidi bin Abdullah

1. R v Boardman
A headmaster was charged with attempted buggery and incited buggery with 3 boys. Victims were his students (involves child witnesses and sexual offences). Prosecution wanted to bring in corroboration, using evidence between victims interchangeably. The striking similarity was that the accused always wanted to play the passive role. Accused appealed on the ground that SFE can only be used to rebut the defence.

House of Lords reformulated Makin’s test. Note: Did not overrule Makin, only reformulated the test. a. SFE does not depend on specific categories under Makin.
b. A high degree of relevance will be required. The evidence is so highly relevant that to exclude it would be an affront to common sense.
c. A strong degree of probative force is required. Such a probative force is derived where there is a striking similarity.
d. The similarity is so striking that when judged by experience or common sense it could not arise for pure coincidence.

Boardman test: 
a. Where the probative value outweighs its prejudicial effect
b. Such probative value will arise where there is a striking similarity between SFE and the current charge
c. Striking similarity: unique and not merely stock trade

2. DPP v P test (R v P)
Accused was charged for raping 2 of his daughters. He threatened his daughters not to tell and paid for their abortions. Prosecution wanted to bring in SFE (corroboration). Accused denies the charge. Makin is not viable. Boardman can be used if there is a striking similarity. However, it was stock trade. Therefore, striking similarity is no longer a prerequisite. Reformulated the Boardman test: striking similarity is not a prerequisite for SFE evidence to be admissible. The test in Boardman is simply that the probative value outweighs the prejudicial effect. Such probativeness could exist where there is a striking similarity but this is not a prerequisite.

Case law on application of Makin/Boardman test 

1. R v Smith (Brides in the bath)
Mr. Smith was charged with the murder of his wife and she was found dead in the bathtub, she had drowned. His defence: she had fits and drowned accidentally. He claimed that he knocked the door and she didn’t answer as she was already dead. He called for help from the landlady and the landlady verified his story. Prosecution found out that wife no.1 and no.2 drowned in the bathtub. He moves from town to town. He changes his name and married in a different name. He always pretended to be a business man, or an art dealer, etc. He always finds well to do women. In all cases, the parents would object, and the women were prepared to marry him regardless. He always asks the landlady whether ‘do you have a long bath?’ He convinces her to make a mutual will. He will ask the lady to get insurance and he is the beneficiary. He will go to the doctor and convince her and the doctor that something is wrong with her. It was found out that the door wasn’t broken. Court: SFE was allowed, there was a system/modus operandi.

2. R v Bond
Accused was charged with illegal abortion/procuring miscarriage. Defence was accident. Evidence: another patient on whom he had performed an illegal abortion. He told her that he had put a lot of girls ‘right’. Court allowed SFE

 3. R v Wilson
Accused was charged with rape. He had a previous charge still pending for indecent assault against another woman. Prosecution wanted to hear both counts together, and use evidence interchangeable (corroboration). Defence was that rape was accident. It was a mistake of consent. He picked up the woman in the club and offered to give a lift home. On the way home he attacked her. Makin and Boardman was not applicable. Court held: nothing striking, no system, no modus operandi, SFE not admissible.

4. R v Straffen
Accused was charged with murder of a young girl by strangulation. She was not sexually assaulted and her body was dumped in an open area (no attempt at concealing body). Accused was already in prison (mental health institution). He escaped and the girl was killed during that short period of time. Accused denied it. Defence: mistaken identity. He had confessed to killing 2 other girls in the past. They were also young girls, strangled, not sexually assaulted, and dumped in an open area. Prosecution wanted to bring in accused’s confession and there is a similarity between the 2 girls and the current victim. There was a striking similarity: not sexually assaulted, no attempt to conceal body. Makin test was used – to rebut the defence of mistaken identity.

5. R v Thompson (powder puff case)
Accused was charged with committing indecency in a public toilet with 2 boys. These boys after the assault (16th of March) made a police report, said that the man made an appointment with them to go back to the toilet for the man to sexually assault them again. The boys were there again. The accused was seen approaching them and gave them money. The police arrested him. Defence: mistaken identity. They searched him and found a powder puff. They searched his house and found indecent photograph of boys in his house. Can you bring that evidence in? It shows that he may be a homosexual. SFE cannot be used to show that the accused had certain tendencies. However, the judge allowed the powder puff, and SFE was admitted. It was clearly prejudicial.

Augustine Paul: the reformulated Makin/Boardman test will apply in Malaysia

Makin Test: Rauf bin Hj Ahmad v PP Wong Kok Wah v PP

Boardman test: Junaidi bin Abdullah PP v Veeran Kutty

DPP v P Test: PP v Teo Ai Nee (Singaporean case) Azahan bin Mohd Aminallah v PP (COA) – present law is DPP v P – referred to Teo Ai Nee PP v Mohamad Roslan bin Desa

1. Azahan bin Mohd Aminallah v PP
Accused was charged with raping his 15 year old daughter in an oil palm estate. Accused didn’t have a legal representative. Matter was postponed to appoint a lawyer. On the 2nd date, the legal aid lawyer didn’t appear. The judge didn’t postpone and proceeded. The daughter gave testimony that he had raped her many times. Prosecution wanted to add to the charge. They amended the charge to 4 counts. The Court found a prima facie case and he had no defence. He said that she was influenced by her mother that was having an affair with another man. HC confirmed the conviction On appeal, the COA referred to DPP v P, and held we should balance probative and prejudicial. The Sessions Court and HC were wrong because they admitted SFE without checking. The accused was also unrepresented.

2. PP v Mohamad Roslan bin Desa
The accused was charged with murder. He had a previous conviction of robbery that had caused the death of a person. COA ruled: can’t bring it in as there was no striking similarity. FC held: Courts below rejected SFE because no striking similarity. DPP v P made it clear that striking similarity was no longer a prerequisite. In England, SFE has been codified in the Criminal Justice Act 2003.

3. R v Z
Accused was charged with rape. Defence: mistake as to consent. He has 4 previous charges of rape against him. In 3 previous cases, he was acquitted. The 4th case he was convicted. Prosecution wanted to bring in 4 previous charges. Accused argued that 3 acquittals cannot be brought in. Trial judge held can only bring in previous conviction and not acquittal. The issue now was whether previous acquittal can be brought in. HL: Acquittal can be brought in provided probative value outweighs the prejudicial effect. Probative value: 1) number of previous acquittals 2) time lapse between the charges.

 4. R v Barrington
misconduct need not be criminal in nature.

5. PP v DSAI (No. 3)
Defence can also adduce SFE. If the defence was to adduce SFE, the test: whether it is cogent enough to raise a reasonable doubt.

6. R v Ananthanarayanan 
The appellant was convicted of indecent assault on four women. The complaints were all made the same time and evidence suggested that the complaints were not spontaneous but prompted by the social services department. Appellant argued that the evidence may have been contaminated. Held: there was a real possibility that the complaints were not truly independent of each other, and the judge shouldn’t have directed the jury that the evidence of the women was mutually corroborative. Evidence was disallowed.

7. R v H
Defendant was charged with sexual offences against his adopted daughter and his stepdaughter. The girls had discussed the matter and told the defendant’s wife. The defence alleged that there was a possible collusion and that the evidence was contaminated. The House of Lords held that the probative force and the prejudicial effect of such evidence must be considered. Even though there was a risk of contamination, the judge allowed the evidence as the probative force outweighed the prejudicial effect.