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JUNAIDI BIN ABDULLAH v PP: PRINCIPLES OF SIMILAR FACT EVIDENCE (Second and Third Issues)

Posted on Monday, December 10, 2012 by hafiz


After discussion on the first issue in the case of Junaidi Bin Abdullah v.PP before, this entrance will focusing on the second and third issues of the principle of similar fact evidence in the case. The second issue relates to the court's decision that in addition to the situations under ss 14 and 15 of the Act, similar fact evidence is only admissible if the probative value of such evidence outweighs the prejudicial value. The question that arises is the application of the 'probative value' approach under the Act. P Nair is of the view that in looking at the scheme of the Act, and the fact that it is based on the concept of relevancy where relevancy determines admissibility, it will not be possible to say, that relevant evidence may be inadmissible. Section 136(1) reads:

When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise.

The word used is 'shall' and this indicates a mandatory requirement. If the Act wishes to give the court discretion, there should have been an express provision for it, such as the one in s 120(3) on the power of the court in restricting cross-examination. From ss 5 and 136(1), therefore, it would appear that the court has no discretion to reject relevant facts. This would also mean that the Boardman formulation cannot apply under ss 14 and 15, as the court has no discretion to do so. How then was it applied in Junaidi? Nair suggests that it can be done by applying the said formulation when determining whether a fact is relevant or not. If the probative value is higher, then and then only will the fact become relevant and admissible. This view is supported by s 136 of the Act which states clearly that the judge shall determine whether the evidence is relevant or not. The judge, after all, can only make his decision after hearing submissions from counsel on the prejudicial effect and the probative value of the said evidence. Be that as it may, the court should explain the possibility of applying the 'probative value' approach which is important for a fair trial.

Returning to the present case, the court's view may also be interpreted this way -- that apart from ss 14 and 15, s 11(b) can be used to negate defences and admit evidence provided the probative value of such evidence outweighs its prejudicial value. In Junaidi, the judge accepted the evidence of physical possession of the revolver during the robbery as vital to the defence and relevant under s 11 of the Act to cast a reasonable doubt on the prosecution case that the revolver was not in the appellant's possession at the time of arrest if such evidence was accepted as probable. The court felt that since the evidence of the armed robbery formed a vital part of the defence in the circumstances of the case, the probative value of such evidence would outweigh itsprejudicial value as evidence of bad character.

The third issue relates to the court's statement, 'On the principle laid down in Makin's case and Boardman's case ...'. It would appear that not only is a 'specific purpose' needed to enable a fact to be brought as similar fact evidence but the fact must also be probative. This is, as explained earlier, only possible under ss 14 and 15 if the court considers the probative value before making a decision on relevancy of the fact. It looks as if the 'specific purpose' approach, which is wider, is also applicable under s 11(b), before the probative value is considered under that section.
One question still remains to be answered. The relevant portion of s 15 reads: '... the fact that the act formed part of a series of similar occurrences ...'. The word 'series' seems to lay some importance on the number of occurrences. There must be more than two occurrences to enable facts to be admissible as similar fact evidence. The 'probative value' approach however does away with numbers; it does not matter if there are only two occurrences. For as long as the probative value outweighs the prejudicial value, the fact in question is accepted as similar fact evidence.
In conclusion, courts in Malaysia should begin referring to the specific provisions in the Act when determining the application of Makin and Boardman because there is a great need for clearer interpretation of the relevant law.

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