JUNAIDI BIN ABDULLAH v PP: PRINCIPLES OF SIMILAR FACT EVIDENCE (First Issue)[1994] 3 MLJ ccxxii
Posted on Monday, December 10, 2012 by hafiz
Similar fact evidence
concerns circumstances in which an accused person's previous misconduct, other
than that which gives rise to the offence charged, is made admissible to prove
guilt, by virtue of them being similar to the offence. The similar fact
evidence rule has long been accepted by judges to be applicable under ss 11(b),
14 and 15 of the Evidence Act 1950. Although these sections have been
recognized as such, their application in the similar fact area have been a
major problem in Malaysia as well as in Singapore. Judges feel the need to
refer and have long referred to English formulations of the rule, particularly
the formulation enunciated in Makin v A-G for New South Wales. Lord
Hershell in Makin formulated what he regarded to be the rule of
admissibility:
“It is undoubtedly not competent for the
prosecution to adduce evidence tending to show 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.
[The first limb.] On the other hand, the mere fact that the evidence adduced
tends to show 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 second limb.]”
This formulation will hereinafter be
called the 'specific purpose' approach. It became the rule from the time it was
formulated, until 1975, when the House of Lords reformulated it in Boardman
v DPP. Lord Wilberforce's formulation of the rule in Boardman requires
a balance between probative force and prejudicial effect in assessing the
admissibility of similar fact evidence. In short, if the admission of the fact
seems to victimize the accused, then it should not be admitted as evidence.
Lord Wilberforce in the case above, identified the principle as follows:
“... the admission of similar fact evidence ... is
exceptional and requires a strong degree of probative force. This probative
force is derived ... from the circumstance that the facts testified to by the
several witnesses bear to each other such a striking similarity that they must,
when judged by experience and common sense, either all be true, or have arisen
from a cause common to the witnesses or from pure coincidence.”
In the same case, Lord Salmond said:
“... if the crime charged is committed in a uniquely or
strikingly similar manner to other crimes committed by the accused the manner
in which the other crimes were committed may be evidence upon which a jury
could reasonably conclude that the accused was guilty of the crime charged. The
similarity would have to be so unique or striking that common sense makes it
inexplicable on the basis of coincidence.”
The formulation will hereinafter be
called the 'probative value' approach. The 'probative value' approach has
attracted the attention of Malaysian judges in their task of interpreting the
similar fact evidence provisions, particularly ss 14 and 15 of the Act. Indeed,
as early as Raju v R, the courts had considered the 'probative value'
approach. The court felt that evidence should not be admissible just because it
was technically admissible. The High Court case of PP v Veeran Kutty &
Anor also considered the 'probative value' approach. In September 1993, the
Supreme Court considered the 'probative value' approach in Junaidi bin
Abdullah v PP. In this case, The appellant was charged for possession of a
revolver under s 57(1)(a) of the Internal Security Act 1960 and was duly
convicted at the end of the trial. He subsequently appealed. The ground of
appeal which was directly in issue in the case was the admission of evidence of
similar fact made by a witness for the prosecution (PW2) on the accused being
seen handling a firearm at night during the course of a robbery. It was
submitted that this evidence was prejudicial and, therefore, inadmissible
because of bad character evidence.
The Supreme Court held that since
evidence of the armed robbery was a material fact in issue, for the purpose of
creating a doubt on the possession of firearm by the appellant, and since this
line of defence had been indicated by the defence during the cross-examination
of the prosecution witness, evidence by PW2 was admissible to rebut the
defence. For the admissibility of evidence pertaining to the armed robbery, the
Supreme Court referred to the formulation enunciated in Makin. The court
also referred to the decision of the High Court in GEL Ewin v PP which had similarly divided the rule into two
distinct parts. The Supreme Court in deciding on the admissibility of the armed
robbery also referred to the 'probative value' approach formulated by Boardman's
case, where Lord Morris said:
“But as Viscount Simon pointed out in Harris v DPP [1952]
1 All ER 1044 at p 1047 evidence of other occurrences which merely tend to
deepen suspicion does not go to prove guilt, so evidence of 'similar facts'
should be excluded unless such evidence has a really material bearing on the
issues to be decided. I think that it follows from this that, to be admissible,
evidence must be related to something more than isolated instances of the same
kind of offence.”
In Junaidi, after discussing both principles,
Mohamed Azmi SCJ, delivering the judgment of the court, said:
“On the principle laid down in Makin's
case and Boardman's case, we are of the opinion that where the purpose
of adducing evidence of similar facts or similar offences is justifiable on the
ground of relevancy and necessity to rebut any defence which would otherwise be
open to the accused (in addition to those under ss 14 and 15 of the Evidence Act 1950), it is admissible in evidence
provided the probative value of such evidence outweighs its prejudicial value.
There must be a real anticipated defence to be
rebutted and not merely 'crediting the accused with a fancy defence' ...
Three issues need to be discussed here. The
first issue relates to that part of Mohamed Azmi SCJ's
statement which reads:
... where the purpose of adducing evidence of
similar facts or similar offences is justifiable on the ground of relevancy and
necessity to rebut any defence which would otherwise be open to the accused (in
addition to those under ss 14 and 15 of the Evidence Act 1950), ...
The issue is what does the phrase 'in
addition to those under ss 14 and 15' mean? As similar fact evidence is mainly
applicable under ss 14 and 15, Makin's second proposition cannot be used
without limitation as the application of similar fact evidence is only allowed,
under those sections, in proving a person's state of mind. Rebutting a defence
can also mean negating the actus reus. The court referred to the case of Ewin
v PP, which does not mention the particular section of the Act when applied
to the similar fact formulation. If rebutting a defence is directly relevant to
show that the act was intentional and not accidental, then and then only would
the stated purpose apply to s 15.
It is respectfully submitted that the
time has come for the court to refer to the specific sections when applying the
principles of similar fact evidence, as the relevancy of facts is controlled by
the Act. Section 5 reads that evidence may be given in any suit or proceeding
of the existence or non-existence of every fact in issue and of such other
facts as are hereinafter declared to be relevant, and of no others. Section 4
reads that one fact is said to be relevant to another when the one is connected
with the other in any ways referred to in the provisions of this Act relating
to relevancy.
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