Similar Fact Evidence In Malaysia (Part 2)

SFE (Part 2)

Statutory exceptions:

S. 15 – accidental or intentional; part of series of similar occurences; same person

Makin is wider in application.

S. 14 – covers the entire state of mind

Both s. 14 and s. 15 involve mens rea.

S. 11(b) – existence or non-existence of any fact in issue or relevant fact highly probably or improbably.

S. 14

1. R v Straffen – defence was mistaken identity (actus reus) – s. 14 and s. 15 not applicable. Some argued that SFE can be admitted in relation to actus reus by using s.11(b)

2. Explanation 2 to s. 14 clearly shows SFE can be allowed as an exception. S. 15 is more restrictive.

3. Teo Koon Seng v R – before allowing SFE it requires a great deal of particularity and an immediate reference to the fact in issue.

4. PP v Teo Ai Nee – Prosecution has to prove that state of mind existed particularly, not generally

Note: Courts have taken a very restrictive approach on this section based on Explanation 1 and the illustrations to the section.

5. X v PP

Accused was charged with aiding and abetting bandits. Prosecution wanted to bring in evidence that in previous occasions, he was seen hanging out with bandits, to show state of mind and that he was consorting with them. Court used s. 14 and s.11(b) to admit. S. 15 was rejected because no issue as to accidental or intentional.

6. Anthony Ler Wee Teang v PP

Statement could be brought in because it was particular and showed state of mind.

Note: s. 14 is influenced by the Makin/Boardman/DPP v P test, but the common law principle is much wider as it can also include evidence of actus reus.

S. 15:

3 conditions:

a. accidental or intentional or done with particular knowledge or intention

b. act formed part of series of similar occurrences

c. the person doing the act was concerned. (s. 15 is known as the systems section)

PP v DSAI (No. 3)

SFE must be of the same specific kind as the fact in issue and the court will consider if there is proximity in time, in method and a nexus between the 2 set of facts.

Note: s. 15 will not apply to AR, only MR. There must be independent direct evidence of AR. SFE evidence under s.15 will only be admitted to rebut accident by establishing system.

Cases

1. Junaidi bin Abdullah – cannot use s. 15 to bring in SFE unless there is a real anticipated defence, not just a fancy defence.

2. Teo Koon Seng v R – s. 15 can only be used if there is an issue of accident

3. PP v Ang An An – Accused of driving ‘kereta sapu’. Private vehicle used illegally as a commercial vehicle. He was observed by police officers ferrying people in his car. On the 3^rd day they arrested him. Issue: can the prosecution bring in day 1 and 2 in relation to the charge for day 3? S. 15 is used.

Azlan Shah: Evidence of past observations are relevant under s.15 of EA, used to anticipate any defence the accused might raise. Provided that it is accidental or intentional. Must have direct evidence of actus reus. Must be part of a series of similar occurrences. Same person must be involved.

4. PP v Mohamad Fairus Omar

Same principle as in Ang An An. Drug possession. Previously accused had possessed drugs (can’t bring in s. 15 unless there is direct evidence of possession of drugs. S. 15 is confined to mens rea – accidental or intentional)

S. 11(b)

• SFE may be admitted on the basis that the evidence renders it highly probably that it was the accused who has committed the offence.

• Controversial

Is S. 11(b) an exception to SFE?

There are three answers to this, yes, no and maybe.

YES

SFE may be admitted on the basis that the evidence renders it highly probable that it was the accused who has committed the offence - R v Raju [1953] MLJ 131

1. Abubakar Bin Ismail v R [1954]

Accused was charged with endorsing a license without checking the documents properly. This is a licence which had to be endorsed in Singapore. Two counts of not ensuring or not verifying whether the person already had a licence in Malaysia. The evidence that was brought in was that in a number of other occasions, he had endorsed the documents without checking whether the person already had a valid licence in Malaysia. They raised S. 11(b) and the court held in 8 other occasions the same offences were done and it was highly probable that these two occasions were done in the same. Court allowed the evidence to be brought in under S. 11(b) because they were relevant to the fact in issue.

2. X v PP [1951]

Court discussed S. 14 and S. 11(b) and held that for S. 11(b) the test was high probability and not high probativeness (high probability is a lower and easier test compared to high probativeness).

Note: SFE admitted under S. 11(b) applies the “Highly probable” test.

NO

a)      Augustine Paul – DSAI: S. 11(b) subject to S. 54

The judge came to a conclusion that S. 11(b) was not an exception for SFE to be brought in. The reasoning given was because it was subject to S. 54.

b)      Accepted Interpretation of S. 11(b)

Rangayyan v Innasimuthu [1955]

The case dealt with the interpretation of S. 11(b). S. 11 only applies to facts which are immediately connected to the fact in issue. Since the definition of SFE is another event similar but not connected, therefore S. 11(b) does not apply to SFE.

 Ismail v Hasnul [1968] (FC case)

S. 11 does not admit collateral facts which are not conclusive and no connection with the main facts.

c)      Stephen’s interpretation

Stephen is the person who drafted the Evidence Act. In his commentary, he said it does not apply to things which are similar but not connected to the fact in issue.

Note: Jeffrey Pinsler

He wrote an article, on the SFE and principles of admissibility, and said, the major difficulty of the interpretation of S. 11(b)… 11(b) are limited to facts which are connected to the facts in issue and events which are similar but not connected can only be brought in under S. 14 and S. 15. Further, to allow SFE to be brought in by S. 11(b) would make S. 14 and S. 15 redundant.

R v Pharbudas Ambaram [1874] 11 BHC 90

Indian case where the judges stated S. 11 should not be construed in its widest significance but considered as limited in its application to S. 14, so construed S. 11 cannot be used to bring in one crime to prove another crime even though it is cogent.

MAYBE

Jeffrey Pinsler

What if used to bring in actus reus instead of mens rea. What should be the test then, high probability or common law test of high probativeness test. It should be high probativeness test. S. 14 and S. 15 only deals with mens rea, causing a gap in the law. Therefore, in order to deal with the gap in the law, should bring in SFE for actus reus through S. 11(b).

R v Pharbudas Ambaram [1874] 11 BHC 90

Also stated that S. 11(b) should be applied to the actus reus which are not covered by S. 14 and S. 15 and the test should be high probativeness test.

Conclusion:

S. 11(b) is not an exception to SFE, it was never drafted or intended to be an exception. However, if at all it could be argued to be an exception to SFE, it can only be allowed for actus reus and the test must be the probativeness test, which is the current common law test which is also applicable in this country.

Does the Common Law Test apply to the sections?

• Current approach suggest that both S. 14 & S. 15 impliedly requires the balancing test as put forward in Makin/Boardman/DPP v P.

1. Tan Meng Jee v PP [1998] 1 MLJ 537

While the plain wording of the EA does not adopt the probative approach, it makes it quite clear that… A balancing process must take place, which is inherent to the EA is one of degree and not one of substance…

Principle that emerges is that when S. 14 and S. 15 are being argued, it must go through the balancing test, which is the common law test where probative must outweigh prejudice.

2. PP v Teo Ai Nee [1995] 2 SLR 69

3. Azahan Bin Mohd Aminallah v PP [2005] 5 MLJ 334

Referred to PP v Teo Ai Nee

A trial judge deciding whether SFE should be allowed must go through the weighing process by weighing the probative value against the prejudicial effect towards the accused which is impliedly interpreted into S. 14 and S. 15.