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(1987)

Approaches To The Admissibility Of


Similar Fact Evidence
INTRODUCTION
The use of similar fact evidence, especially against an accused in criminal
proceedings, is often a potent weapon at the hands of the prosecution. The
tendering of such evidence can greatly assist the court in determining crucial
issues but at the same time the indiscriminate use of such evidence can also
gravely prejudice the accused. The policies governing the admissibility of similar
fact evidence are clear enough. Essentially, they are to :
1 Admit as much relevant evidence as possible to assist the court in the
determination of issues;
2 Avoid undue prejudice to the accused.
It is the formulation of the rule that is difficult. This article will explore
the three approaches which courts here and in England have used. These
approaches would be discussed under the following headings :
Section I Prohibition against propensity evidence approach.
Section II Categorization approach.
Section III Boardman formulation.
SECTION I: PROHIBITION AGAINST PROPENSITY
REASONING APPROACH
1
The first formulation of the similar fact evidence rule is that all evidence
which utilizes the "propensity reasoning" is inadmissible. Propensity reasoning
refers to a line of argument which proceeds on the basis that because the accused
has committed other crimes or acts similar to that with which he has been
charged, he has a disposition to commit such kind of crimes or acts and thence
the inference is made that he is more likely to have committed the particular
crime which is the subject matter of the present charge. Put simply, evidence
may not be adduced if deduction of the kind "once a thief, always a thief is
involved as part of the chain of proof of guilt.
1 Generally, DK PiragoffSimilar Fact Evidence (1st edn 1981) ch 1-3; HA Hammelmann
"Evidence of Evil Propensity" (1949) 12 MLR I; Z Cown & PB Carter Essays on the
Law ofEvidence (1st edn 1955) ch 4.
Similar Fact Evidence
The source of this exclusionary rule is often attributed to the first leg of
the dictum by Lord Herschell in the case ofMakin v AGfor New South Wales:
2
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...
3
In most local cases, Makin is often cited as the authority for the inad-
missibility of propensity evidence. Thus in Tan Geok Kwang v PP,
4
the accused
was charged with being in possession of a revolver. The presecution sought to
lead evidence, inter alia, of contents of some documents found in the possession
of the accused. These documents related to some intelligence system and finance
of a body of bandits and would therefore tend to show that the accused was a
person who consorted with bandits. It thus purported to establish the accused
as a man disposed to commit crimes and thus more likely to be a person in
possession of the revolver. Since this was the very kind of reasoning prohibited
byMakin, Willan CJ ruled that the evidence was inadmissible.
Likewise in Poon Soh Har v PP,
5
the appellants were charged with
trafficking contrary to the Misuse of Drugs Act. The prosecution sought to
tender evidence of past criminal activities of the appellants to show that they
were involved in the selling and purchasing of heroin. The triai judge admitted
the evidence but on appeal the court ruled otherwise, ruling that such evidence,
adduced for the purpose of showing that the accused were from their past
record of trafficking more likely to be involved in the present offence, was
inadmissible since it offended the Makin principle.
The cases cited above illustrate the application of the "ban against pro-
pensity" evidence rule. Under this formulation of the rule, it follows that similar
fact evidence would be admissible if the evidence has probative value otherwise
than via propensity. In this type of evidence, the probative value does not
depend upon the assumption that the accused is likely to succumb to his proven
disposition as established by his past conduct. One method in which similar
fact evidence is relevant to an issue other than by an argument via propensity
is what Wigmore calls the "doctrine of chances": "the argument here is purely
from the point of view of the doctrine of chances - the instinctive recognition
of that logical process which eliminates the element of innocent intent by
2 [1894]AC57.
3 Ibid at p 65.
4 (1949) 15MLJ203.
5 [1977] 2 MLJ 126. Also Yong Sang v PP (1955) 21 MLJ 46. It is acknowledged here
that these and other local cases hereinafter cited are obtained from Prof A Ibrahim
"Evidence of System" [1977] JMCL 175.
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Singapore Law Review
multiplying instances of the same result until it is perceived that this element
cannot explain them all."
6
Whilst a more recent writer calls it the "objective improbability reasoning
process":
An objective improbability reasoning process is characterized by the use of a
deduction of the improbability of an innocent coincidence explaining a repetition of
similar factors. The greater the similarity, and the more unusual the recurring fact,
the greater the objective improbability that all these incidents, including that of the
offence charged, could re-occur in the absence of that same quality of mind, act or
other fact, which is the subject-matter of the issue in dispute sought to be proven
in the offence
charged.7
This reasoning process is most commonly used to rebut the defence of
accident. Thus in Makin a couple was charged with the murder of an infant
whose body was found buried in a garden which they formerly occupied. The
infant was taken in by the couple for adoption in consideration of a small
payment by the infant's mother. The prosecution sought to tender evidence
of a number of other bodies being found on the premises occupied at different
times by the accused, and also evidence that the accused received considerably
inadequate premiums for these other adoptions. The court allowed the admission
of the evidence. Such evidence of the prior deaths of other infants does not
purport to show any criminal disposition on the part of the accused. Rather it
tended to prove that there was a strong statistical likehood that the children
had been murdered or what is the converse, an objective improbability that the
deaths of these children had been coincidental.
Similarly in R v Smith
8
the accused was charged with the murder of a
woman with whom he had gone through a form of marriage. The court allowed
evidence of two other brides who had died in similar circumstances, since such
evidence was highly relevant to show that the woman against whose Smith was
accused of murdering had not died accidentally. Such evidence was admissible
since its probative value does not depend on propensity reasoning - in the
absence of any proof that Smith had murdered his other brides, it cannot be
said that Smith had any propensity to murder.
The objective improbability reasoning process has also been utilized in
the local case of Abubakar v R.
9
The defendant, a licensing officer who was
entrusted the duty of approving applications for driving licences, was charged
for making false statements that he had seen the applicants' driving licences.
6 Wigmore on Evidence (1940 3rd edn) II para 302.
7 Supra 1.Piragoff at p 30.
8 (1915)11 CrAppR229.
9 (1954) 20MLJ67.
(1987)
Similar Fact Evidence
The main issue was whether the applicant had produced a driving licence for
the appellant's inspection. The defendant did not deny that he made those
statements but his defence was that he was deceived by the forgeries of the
licence. The prosecution called evidence to prove that on eight earlier occasions
the appellant had made similar endorsements to the effect that he had seen
driving licences in the cases of eight applicants whose forms he filled in and that
in none of the eight cases had the applicant produced a driving licence for his
inspection. Brown J sitting in the Singapore High Court, quoted Makin as
authority for the proposition that evidence may not be admitted if the purpose
is to show propensity. He then went on to say that this was not the case with
respect to the evidence before him, since "... the evidence which is objected to
went far beyond showing that the appellant, having committed similar acts
previously, was a person who was likely to have committed the two acts with
which he was charged."
10
(emphasis added) Since the defence was that the
licence shown to him by the applicants were forgeries, the evidence of the
earlier eight cases would tend to rebut this defence by pointing to the strong
improbability that (in the absence of special explanation) many and similar
forgeries had been made. The evidence would thus have substantial relevance
via a "doctrine of chance" type of deduction and Brown J was right in saying
that the evidence "went far beyond" showing the accused's disposition. To
quote his Lordship again: "It seems to me impossible to say that the fact that
he had done the same thing eight times within a month immediately prior
to the two occasions on which he was charged was irrelevant to the issue of
whether he made the two false endorsements knowing that they were false."
11
Here a distinction should be drawn between two classes of cases, the first
class in which the earlier incidents constituting the similar fact evidence clearly
establish propensity on the part of the accused and the second class in which
the earlier are incapable of doing so. With respect to the first class, the similar
fact evidence can be utilised via propensity reasoning (thereby infringing the
Makin rule) as well as via objective improbability. This is because if the earlier
incidents prove that the accused is guilty of some crime, for instance, then
evidence of these earlier incidents could be argued as being probative by showing
criminal disposition on the part of the accused, as well as being probative
because it points to the objective improbability that the accused, having been
implicated in so many prior incidents, could not also have been involved in the
present crime. Thus Abubakar's case described above would be an illustration of
a case falling within the first class, although Brown J purported to apply an
objective improbability type of deduction to the fact that the accused had done
many times before the very thing for which he was charged. It should be noted
that evidence of the accused's involvement in the earlier occasions would also
tend to establish his propensity to falsify statements and thus render the
10 Ibid at p 69.
11 Ibid.
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Singapore Law Review
evidence probative via propensity. This argument will however be frowned upon
due to the "ban against propensity" rule, following the cases of Tan Geok
Kwang and Poon Soh Har.
However, with regard to the second class of cases, no propensity is
established by virtue of the fact that the accused's involvement in the earlier
incidents has not been proven. In the absence of such connection between the
accused and the similar facts, no propensity reasoning can be used. Evidence
falling within this second class would be "pure" non-propensity evidence since
it would be probative (if ever) only via an objective improbability non-propen-
sity mode of reasoning. An example of this latter class would be Makin (another
would be Smith) in which the accused's linkage with the deaths of the other
infants was not established. Without any proof that the accused murdered the
other infants, it could not be said that he had a propensity to murder infants
taken under his care: propensity reasoning simply cannot be employed. The
evidence could only be probative because of an appeal to the unlikelihood of
accident, that so many infants died in such similar circumstances, ie objective
improbability type of reasoning.
12
Another example of "pure" non-propensity evidence is in the series of
unlicensed taxis" cases.
13
In these cases, the defendants were charged with
driving a motor vehicle as a public service vehicle without valid licences contrary
to s 74(2) of the Road Traffic Ordinance. To prove their case the prosecution
needed to prove that the accused
1 accepted reward for the carrying of passengers;
2 was without a valid licence.
In most of these cases the prosecution was unable to prove direct payment
of transport fee by the passengers to the accused. Instead the prosecution sought
to introduce evidence of past observations by the police which showed frequent
carriage ofpassengers by the accused. In all except one case,
14
the court allowed
evidence of such observations. Such evidence is probative because of its appeal
to the improbability that the accused made so many trips at such considerable
expense without collecting a fare for such efforts. For example, in Darus, the
accused's explanation of the frequent trips made was that he had three acres
12 Supra 1, Piragoffiat pp 92-98.
13 The "unlicensed taxis" cases referred to are: Gun Kim Luu v PP (1961) 27 MLJ 35;
Abdul Hamid v PP (1962) 28 MILJ 44; Din v PP (1963) 29 MILJ 37;Darus v PP (1964)
30 MILJ 146; Ali bin Hassan v PP [1967] 2 MLJ 76;Maidin Pitchay v PP [1968] 1
M LJ82;PPv OngKok Tan [1969] 1 MLJ118;AngAnAnvPP [1970] 1 MLJ217.
Also the Australian case of Martin v Osborne (1963) 55 CLR 367 (Aust HC) discussed
in Cross On Evidence (5th edn) 386-387 and supra 1, Piragoff at pp 37-38.
14 Ali bin Hassan v PP.
(1987)
Similar Fact Evidence
of rambutan land which he visited daily and on the way he came across friends
who asked for lifts. Ong J was unable to accept this defence: "In my view, no
rambutan land, or indeed any other fruit farm, calls for at least three regular
visits a day, and $3 a day spent on petrol means a lot of mileage which was
totally out of the question for visits confined to the fruit planation. Casual
pick-ups of 143 persons in 15 days is a story impossible to swallow."
15
The probative value of the evidence is therefore by a strictly non-propen-
sity mode of reasoning, ie objective improbability of an innocent explanation.
No propensity thinking is utilized because propensity can only be established
if it is shown that the accused has received reward for all the previous incidents
constituting the similar fact evidence. Yet in none of these cases was it proved
that there was payment by passengers to the accused - without such proof, it is
not possible to show that the accused had a propensity to drive for reward.
16
Criticism
This formulation of the similar fact evidence rule can be criticised on the
ground that it does not explain why in certain cases like R v Ball" and R v
Straffen,
1 8
pure propensity reasoning, the type which is supposedly prohibited
by the established rule in Makin, has been utilized. Thus in Straffen, the
defendant was charged with the murder of a girl. It was a highly unusual murder
because there was neither sexual assault nor attempt to conceal the body.
Evidence was admitted that the defendant had strangled two other girls in
similar fashion, ie without assault and concealment, not withstanding the fact
that this evidence simply shows that the defendant was a man likely to commit
murder of that particular kind and would therefore infringe the Makin
exclusionary rule.
So too in Ball,
19
wherein the siblings were accused of having committed
incest. At the trial, evidence was tendered of their previous incestuous associa-
tion. The House of Lords held this to be admissible to show that they had a
"guilty passion toward each other." This would be tantamount to saying that
evidence was admissible to establish the siblings' propensity to engage in sexual
intercourse interse.
One is then left to say that either these two cases were wrongly decided
or that Makin was never authority for the exclusionary rule against propensity
reasoning. It is submitted that the latter is the better view. This is supported by
15 Supra 13, Darus at p 148.
16 Although a secondary conclusion from proof of the offence charged via objective
improbability reasoning is that the accused possessed the propensity to drive for reward.
17 [1911] AC47.
18 [1952] 2 QB911.
19 Also Thompson v R [1918] AC 221, 235.
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no less a judicial pronouncement than Lord Cross in Boardman v DPP
20
and
critiques by distinguished writers like Carter,
2 1
Hoffman,
22
etc. In Boardman,
Lord Cross expressed his view that :
Circumstances, however, may arise in which such evidence of propensity is so very
relevant that to exclude it would be an affront to common sense. Take, for example,
Reg. v Straffen [1952] 2 QB 911. There a young girl was found strangled. It was a
most unusual murder for there had been no attempt to assault her sexually or to
conceal the body though this might easily have been done. The accused, who had
just escaped from Broadmoor and was in the neighbourhood at the time of the crime,
had previously committed two murders of young girls, each of which had the same
peculiar features. It would, indeed, have been a most extraordinary coincidence if
this third murder had been committed by someone else and though an ultra-cautious
jury might still have acquitted him it would have been absurd for the law to have
prevented the evidence of the other murders being put before them although it was
simply evidence to show that Straffen was a man likely to commit a murder of that
particularkind.
2
3
The apparent conflict between the supposed rule in Makin and cases such
as Ball which utilized the propensity type argument can be reconciled on the
basis that the dicta of Lord Herschell means "simply that if evidence shows no
more than other instances of criminal conduct or bad character, and that the
evidence is not sufficiently probative towards proof of a fact in issue, it is
inadmissible.
24
Contrariwise, if evidence of propensity to commit a particular
kind of crime is sufficiently probative, it is admissible - as was the case with
Ball and Straffen.
Nor is propensity evidence disallowed in the Evidence Act.
25
Nowhere in
ss 14 and 15 is spelt out the requirement that similar fact evidence, the purpose
of which is to prove guilt by disposition, is inadmissible. S 14 says that evidence
is admissible whenever it is relevant to one of those issues of mens rea such as
"intention" etc. Explanation 2 which states that previous conviction is admissi-
ble, seems to suggest that the disposition argument is allowed. What probative
value can such evidence of the previous conviction of the accused have other
than one derived from the fact that the accused possesses a criminal disposition
as manifested by his former conviction and on that account, the trier of fact is
permitted to draw the inference that the probability of his committing the
offence is increased?
20 [1975] AC421.
21 Supra 1, Cowen & Carter at p 141.
22 Hoffmann "Similar Facts after Boardman" (1975) 91 LQR 193.
23 Supra 20 at pp 456-457.
24 Supra 1, Piragoff at p 67.
25 Cap 97 Singapore Statutes Rev Edn 1985.
(1987)
Similar Fact Evidence
For example, in illustration (o), where A is charged with the murder of B,
evidence showing that A has on other occasions shot at B is relevant as showing
his intention to shoot B in the present charge. The primary relevance of evidence
which shows that A has done on the several other occasions the various sorts
of acts which he is accused of doing on the present trial must be via propensity,
ie because A has shot B several times before, ergo he has the propensity to shoot
B ergo he is the likely murderer of B. Such evidence of the previous attempts on
B's life may also be relevant via non-propensity objective improbability process
of reasoning. In other words, the evidence may be capable ofmultiple relevance.
But the fact that such evidence may also be probative incidentally via a non-
propensity reasoning process does not alter the fact that it is capable ofrelevance
via propensity. Illustration (o) (and to similar effect, illustration (p)) therefore
suggests that propensity evidence is not prohibited in s 14.
Explanation 1 is less clear. It prohibits evidence which merely shows that
the state of mind of the accused exists "generally" but not those which shows
that the state of mind of the accused exists "in reference to the particular
matter in question". This writer's interpretation of explanation (1) is that it
does not prohibit propensity evidence but only renders inadmissible those
propensity evidence of which the probative value is low ie when it only shows
the accused's state of mind "generally". This is again illustrated by illustration
(o). Thus evidence of A's disposition to shoot at people generally is inadmissible.
This is because the issue at the trial is whether A shot B with intent to murder.
But evidence showing A's propensity to shoot at people in general will not be
relevant to this issue. And because a sine qua non to admissibility of evidence
which only proves propensity is a high degree of relevance to the issue ofguilt,
such evidence will not be admitted. On the other hand, where evidence shows
a more specific propensity, ie when it proves or throws light on the accused's
state of mind "with reference to the particular matter in question", eg evidence
of A shooting at B; it will be admissible since, though it is evidence which is
relevant via propensity, it is highly relevant to the issue of A's guilt.
Under s 15 similar fact evidence is admissible when the act in question
is "part of a series of similar occurrences, in each of which the person doing the
act was concerned." Again it is this writer's submission that s 15 in no way
prohibits propensity evidence. Indeed, s 15, it is submitted, accommodates both
propensity and non-propensity evidence. This is particularly so because evidence
of a "series of similar occurrences" would normally rebut the defence ofaccident
etc via a non-propensity objective improbability reasoning process (as in cases
like Makin: series of deaths of infants; Smith: series of deaths of brides). The
greater the number of similar incidents, the more improbable it is that the act in
question can be attributed to accident or coincidence. Thus whenever a series
of similar occurrences is admitted under s 15, it would be likely to be probative
via the objective improbability type of reasoning. However, that is not all.
Usually, a "series of similar occurrences" of which "the person doing the act
(ie the accused) was concerned" would also tend to pinpoint to some particular
propensity on the part of the accused and hence the evidence would also be
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Singapore Law Review
probative via a propensity type of reasoning. In other words, once the prosecu-
tion has proven that the accused is in some way connected with the other
similar occurrences, the result would be proof of the possession of the particular
propensity on the part of the accused. The trier of fact can then infer from the
existence of this propensity that the accused possesses the same propensity in
relation to the particular act in question (ie "that such act formed part of a
series of similar occurrences").
Reference is made to illustration (b) which is based on the case of R v
Richardson.
26
A was charged with embezzling money which he had received
on B's behalf, by recording on the account books an amount less than what he
really did receive. The issue was whether a false entry made by A was accidental
or intentional. Illustration (b) suggests that evidence of other erroneous entries
made by A, in each of which the false entry was to the advantage of A, is
admissible. Clearly, the greater the number of false entries the greater the appeal
is to the unlikelihood or accident and such evidence would hence be relevant via
an objective improbability mode of reasoning. However it is also susceptible
of propensity reasoning since proof of A's involvement in the making of other
false entries would tend to establish A's dishonest propensity to embezzle and
from here, one could then show that this same propensity exists in relation to
the entry which is the subject of the present trial and hence the likelihood of his
intention to embezzle.
Thus neither s 14 nor s 15 disallow propensity evidence. Only, that if the
sole relevance of such evidence is via propensity, it must have a high degree of
relevance to the issue of guilt (s 14 explanation 1) so as to be admissible. If
propensity evidence only shows the accused's state of mind "generally" (as
in illustration (o): shooting at people generally) it will have low probative value
and is thus inadmissible. In the face of cases like Ball, Thompson and Straffen,
the proposition that Makin is authority for the non-admissibility of propensity
evidence cannot hold water. All local cases which have purported to exclude
propensity evidence, citing Makin or ss 14 and 15 Evidence Act must, it follows,
be wrongly decided. It is hoped that courts in future will free themselves from
this ban against propensity shackle.
SECTION II: CATEGORIZATION
APPROACH
27
Section I discusses one approach towards the admissibility of similar
fact evidence based on the exclusionary rule against propensity evidence. There
is another approach commonly used by the courts and which will be referred
to here as the categorization approach. Under this approach, evidence of similar
26 (1860)2 F& D 343.
27 Generally Sklar "Similar Fact Evidence - Catchwords and Cartwheels" (1977) 23
McGill 12 60.
(1987)
Similar Fact Evidence
fact could be admitted whenever it would be brought within any of the several
categories of relevance which have been given legislative and/orjudicial recogni-
tion. Thus evidence of similar fact may be adduced to prove "intent"; "motive";
"identity"; or to rebut "accident" or ifit shows "system" or "striking similarity".
An illustration of the categorization approach is illustrated by the case of R v
Bond.
28
In that case, a doctor was charged with using certain instruments
with intent to procure the miscarriage of a particular woman whom he had
impregnated. His defence was that though he had used the instrument on her,
they were used for a lawful purpose and with no criminal intent. The prosecu-
tion sought to call a woman whom the accused had impregnated to testify of
an earlier incident whereby the accused performed an abortion on her. Bray J
had to decide whether this piece of evidence was admissible. His Lordship said:
I came at once to the question whether the evidence of G Taylor (the woman
testifying) was admissible. A careful examination of the cases where evidence of
this kind has been admitted shows that they may be grouped under three heads:
(1) Where the prosecution seeks to prove a system or course of conduct; (2) Where-
the prosecution seeks to rebut a suggestion on the part of the prisoner of accident
or mistake; Y Where the prosecution seeks to prove knowledge by the prisoner
of some fact.
His Lordship then decided that the evidence was not capable of falling
within the second or the third class. He then said: "It follows ...that if the
evidence of Taylor was admissible it must be because it falls within the first
class. ,30
His Lordship then proceeded on an inquiry as to whether the evidence so
fell within the first class and came to the conclusion that it did, and the evidence
was hence admissible.
This judgement is cited to show the mental process involved in the catego-
rization approach. First one begins with a list of several categories of relevance.
Bray J in this case recognized three categories. Next, the question is whether
the evidence of similar fact falls within one of these categories. If yes, it is
admissible. In no, it is not admissible. In Bond, Bray J decided that the evidence
constituted a system and this rendered it admissible. Thus the gist of the inquiry
under this approach is whether the evidence falls within certain judicially recog-
nized categories. This is compared with the exclusionary rule against propensity
where the main inquiry is whether the evidence is relevant otherwise than in
proof of propensity. It must be admitted that in one sense the categorization
approach is not wholly different from the propensity principle. Indeed the cate-
gorization appraoch is also derived from the case of Makin. The first leg of Lord
HerschelTs dictum is again quoted here:
28 (1906) 2 KB 389 (CA).
29 Tbid at p 414.
30 Ibid at p 418.
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[I]t 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 coveted
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.
3 1
Thus the first leg of Makin states that propensity reasoning is prohibited.
However where there is some purpose other than this forbidden one for which
the evidence is adduced, it is admissible. This is stated in the second leg:
... 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 opened to the accused.
3 2
The categorization approach hence arises chiefly from the need to over-
come the exclusionary effect of the first leg. To be admissible, evidence must
prove something other than propensity, such as proof of the absence of accident
or to rebut a defence otherwise open to the accused. The wording in the second
leg becomes the springboard for the development of additional categories of
revelance which constitute exceptions to the first leg. Seen from this angle,
the categorization approach and the principle against propensity evidence are
both sides of the same coin - both approaches stem from the ban against
propensity.
Nonetheless it is submitted that there is a difference between the two
approaches. The principle against propensity evidence views the enumerations
by Lord Herschell in the second leg of his dictum as mere illustrations whereas
the Categorization approach treats them as intended to be exhaustive. Thus
the former approach will formulate the rule as: evidence relevant merely to
propensity will be excluded. Contrariwise, if it be relevant for any purpose
(and not just those enumerated in the second leg) other than propensity, it is
admissible. Under the categorization approach, the rule is that all similar fact
evidence relating merely to propensity will be excluded unless it falls within
one of the list of exceptions in the second leg of the dictum (or such other list
as is amplified by later decisions). Thus in place of the inquiry whether the
evidence is relevant other than via propensity, there is substituted the inquiry:
does the evidence fall within the categories of exceptions? Two consequences
arise from this difference:
1 Under the categorization approach, evidence is inadmissible even
though it be relevant for a purpose other than propensity, if that is a
purpose which is not within the list of exceptions. An illustration
31 Supra 3.
32 Ibid.
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Similar Fact Evidence
would be proof of actus reus. At one time in England it was thought
that similar fact evidence cannot be adduced to prove actus reus. Thus
even if the prosecution can prove that no propensity reasoning is
utilized, the evidence cannot be adduced since proof of actus reus is
not one of the judicially sanctioned categories of exception to the
exclusionary rule. However, under the Section I formulation, it would
be admissible, since under that formulation, the sole inquiry is whether
the evidence is tendered for a purpose other than proof of propensity.
The evidence would be admissible as long as it could be shown to be
relevant for any purpose (which thus include proof of actus reus) other
than proof of propensity. Hence, under the categorization approach,
unless the categories cover a whole range of possibilities, there will
bound to be evidence which is excluded under this approach but which
would have been admitted under the Section I formulation. The effect
of the categorization approach is therefore to constrict the scope of
admissibility of similar fact evidence to the protection ofthe defendants.
2 The development of the categorization approach is due to the tendency
of judges to categorize broad principles into minor rules. Because of
this, the enumerations of Lord Herschell in the second leg of his dictum
become authoritative rules of admissibility even though they were only
intended to be mere illustrations and possibly an aid to memory. The
result is an unduly obsessed concern with the categories of exceptions
and unconsciously, judges focus all attention on these categories and
forget about the ban against propensity evidence: the raison d'etre
of the exceptions. The categories acquire existence of their own. This
is particularly shown by the concept of "system" which first developed
as an exception but which really involved propensity thinking.
3
The
effect will be contrary to (1) above: the protection of the defendants
is eroded.
To summarize, the difference between the prohibition against propensity
formulation and the categorization approach can be explained by the different
ways in which the dictum of Lord Herschell is interpreted. Under the former
approach, the prohibition against propensity reasoning is the sole inquiry and
the enumerations in the second leg of Lord Herschell's dictum is merely illustra-
tion. However, under the latter approach, it is not enough to show merely that
the evidence is not used in proof of disposition: it must in addition be shown
that the evidence so tendered falls within one of the purpose enumerated under
the second leg of the dictum.
34
A further and ironical development of the
categorization approach is that undue concentration on the categories soon lead
33 Infra text at pp 220-223 (Section II).
34 J Stone spoke of the former approach as the "original rule" and the latter approach as
the incorrect "broad rule" or "spurious rule": Stone "The Rule of Exclusion of
Similar Fact Evidence: England" (1932) 46 HLR 954.
8 Sing LR
Singapore Law Review
to the dispensation with the principle against propensity evidence altogether.
35
The categorisation approach seems to be the approach which is most
clearly contemplated under the Evidence Act. Thus evidence of similar fact is
admissible as long as it shows "existence of the state ofmind" such as "intention",
"knowledge", etc: s 14; or to rebut a defence that an "act was accidental":
s 15; or if the "act formed part of a series of similar occurences": s 15, which
is quite akin to the English courts' concept of "system".
Under this approach, there are two basic issues to resolve:
1 What is the list of categories of relevance which has been givenjudicial
or legislative sanction?
2 Whether the evidence before the court fit into one of these recognized
categories?
List of categories of relevance
The list of categories can be generally classified under the following
headings
3
"a. They are not mutually exclusive and to some extent, there will
be overlap between them.
(a) Rebutting defence of ignorance
Or what would be the same thing is proving knowledge on the part of the
accused and therefore would come under the catchword "knowledge" in s 14.
In Abubakar it will be recalled that the accused pleaded that he did not know
the certificates shown to him were false. In order to rebut this defence of
ignorance, the court allowed the tendering of similar fact evidence.
35 J Stone "The Rule of Exclusion of Similar Fact Evidence: America" (1937-38) 51
HILR 988, 1031.
35a Other categories recognized at common law but which are not intended to be discussed
here are as follow:
1 Rebuttal of the defence of innocent association, eg R v Hall [1952] 1 KB 302
(charges of gross indecency: evidence admitted to rebut defence of medical treatment);
DPP v Kilbourne [1973] AC 729 (HL) (charges of buggery and indecent assault:
evidence admitted to rebut defence of innocent association);
2 Proof of identity, eg Perkins v Jeffrey [1915] 2 KBD 702 (evidence of same acts
committed towards same female weeks earlier admitted to show identification);
Thompson v R [1918] AC 221 (charge of gross indecency: evidence of possession of
powder puff and indecent photographs admitted to show defendant had abnormal
and relevant propensities);
3 At one time it was thought that homosexual offences constitute a category on its
own so that whenever the trial involved a charge of homosexuality, evidence as to past
homosexual offences is ipso facto admissible: dicta of Lord Sumner in Thompson v R
[1918] AC 221, 235 (HL); Lord Goddard in R v Sims [1946] KB 531, 540 (CCA).
But this has since been disapproved of in DPP v Boardman [1975] AC 421, 435.
Further:Halsbury'sLaws ofEngland (4th edn) 11 paras 377-79.
(1987)
Similar Fact Evidence
(b) Rebutting the defence ofaccident
Whenever there is an issue as to whether an act is accidental, evidence
of similar fact can be admitted under s 15: "when there is a question whether
an act was accidental or intentional" or under s 14: "intention". In Xv pp
36
the accused was charged for extorting money on behalf of bandits contrary
to Regulation 4C(1) of the Emergency Regulation 1948. In making out their
case, the prosecution has to prove not only that the accused extorted money
from the villagers but that he did so with the intention of giving the money to
the bandits. The court allowed evidence of a later incident in which the accused
consorted with bandits. This evidence was admissible because it tended to
indicate his intention on the impugned occasion and therefore falls within the
scope of the word "intention" in s 14.
Catchwords can be used not only for the admission but also the exclusion
of similar fact evidence. Thus in Ali Hassan
37
the accused was charged with
using a motor car as a public service vehicle without valid licence, contrary
to s 92(1) of the Road Traffic Ordinance. Evidence was led by the prosecution
of police observations of repeated acts of conveying passengers on various
occasions prior to the material date. Ali J held that the issue before the court
is whether or not on the material date the conveyance of the passengers was
for hire or was gratuitous, and thus it is "difficult to conceive how the element
of accident or intention could have any material bearing on the issue.
38
Accordingly, the evidence of the past observations cannot be subsumed under
the category of proof of intention or rebuttal of accident and is hence
inadmissible.
(c) Proof of motive
In Wong Foh Hin v pp
3 9
the accused was charged with the murder of his
daughter. Evidence was tendered of an incident three months earlier where the
wife of the accused had complained to the village headman that the accused had
interfered with his daughter and that the matter was disposed of by the village
headman stating that if this occurred again the matter would be reported to
the police. Further evidence was tendered of another incident just before the
death of the daughter, in which the accused was again found having carnal
connection with his daughter. Evidence of these two incidents would suggest an
incestuous relationship between the accused and his daughter and would hence
show the accused to be of criminal disposition. However, Wylie CJ allowed this
evidence since it is "clearly the strongest possible evidence of motive."
40
The
36 (1951) 17 MILJ 10; Also Samy v R (1937) 6 MLJ 172: evidence of similar fact admissible
to prove intention.
37 Supra 13.
38 Ibid at p 78.
39 (1964) 30 MLJ 149.
40 Ibid at p 151.
8 Sing LR
Singapore Law Review
evidence suggested that the accused was concerned that the threat uttered in the
earlier incident would be carried out and that a thorough police investigation
would be conducted. This fear supplied the "motive" for the murder of his
daughter.
However it is to be noted that "motive" as a category of relevance is
nowhere stated under s 14 or s 15, the sections commonly thought to deal
with the admissibility of similar fact evidence. To counter this difficulty, Wylie
CJ cited s 8 which reads "Any fact is relevant which shows or constitutes a
motive or preparation for any fact in issue or relevant fact."
(d) Proof of system
Despite its frequent use, the word "system" has not always been defined
with much clarity in Bond. Lawrence J has this to say of "system":
A system is not necessarily criminal: most men carry on business on a system, they
may even be said to live on a system. Where, however, acts are of such a character
that, taken alone, they may be innocent, but which result in benefit or reward to
the actor and loss or suffering to the patient, repeated instances of such acts at least
show that experience has fully informed the actor of all their elements and details,
and it is only reasonable to infer that the act is designed and intentional, and its
motive the benefit or reward to himself or the loss or suffering to some third
41
persons.
Other words like "design", "pattern", "course of conduct" are used
interchangeably with "system". Whatever the word used, it is commonly recog-
nised that an essential feature of "system" evidence is that it normally consists
of a repetition of acts, of which the act which is the subject matter ofthe present
charge is a part thereof. Accordingly, s 15 which speaks of a "series of similar
occurrences" can be taken to allow the admission of similar fact evidence by
proof of system. This is reinforced by the fact that the provision of s 15 is
discussed under Stephen's Digest of the Law of Evidence
42
under the heading
"Facts showing system".
A perennial problem associated with the use of the concept "system" is
the issue as to how many acts are required in order to constitute a system.
In particular, can one other act together with the one which is the subject matter
of the present charge, form a system? Both Darling and Jeff JJ, in the case of
Bond are of the opinion that one previous incident would suffice and that
the paucity of incidents only goes to the weight and not to the admissibility of
the evidence.
43
On the other hand, Lord Reid doubted in the case of DPP v
Kilbourne" whether two acts are sufficient to form a system. Peiris, writing
41 Supra 28 at p 420.
42 12th edn at Art 13, p 24.
43 Supra 28 at pp 410, 413.
44 [1973] AC729.
(1987)
Similar Fact Evidence
in relation to s 15 said:
It may be submitted, as a matter of principle, that a "series" connotes a recurring
pattern which would ordinarily require proof of more than one other similar act.
It is seldom that a systematic course of conduct would be held established on the
basis of the accused's behaviour on the occasion referred to in the charge and one
other
act.
4
6
Peiris also cited the Sri Lankan case of The King v Seneviratne
4
in
support of this proposition. The wordings of the illustrations to s 15 also sup-
port this view. Thus, illustration (a) speaks of houses which A lived in
"successively";
(b) speaks of "other entries"; (c) speaks of "C, D and E".
In conclusion, it is submitted that no hard and fast rules can be drawn -
much depends on the nature of the offence concerned and the probative value
of other factors like the degree of similarity, the time lapse and the peculiarity
of the technique. The requirements as to the number of incidents become less
stringent as the probative strength derived from these other factors increase
and vice versa.
An example where the concept of system is used by our courts is the line
of "unlicensed taxi" cases mentioned in Section I. It will be recalled that in
these cases the prosecution tendered evidence of past observations on the defen-
dant's car. Though these previous trips are not included in the charge, evidence
of such trips is admissible as proof of "system" or "pattern". Raja Azlan Shah J
explained in PP v Ang An An
47
: "Such evidence was admissible because they
were specific features which made each one ofthem bear a striking resemblance
to the acts according to a particularpattern. ,48
The problem with the use of the concept "system" is that it is an equivocal
expression which judges often used loosely to refer to different things. Thus
when it is said that evidence is admissible to prove system, it could mean that
the evidence is really of sufficient probative value to be admitted. Thus Hoffmann
wrote:
When judges said that similar fact evidence was admissible because it 'showed a
system', they were drawing attention to its probative force. If a witness says that
the accused swindled him in a particular way, the fact that he is said to have swindled
a number of other people in the same way may have immense probative value.
Unless the witness knew the accused's other activities, it would be an astonishing
coincidence if he had invented such an accusation. The greater the similarity and
number of other incidents, the more remarkable the coincidence would have to be.
The draw-back in the use of the 'system' was that it became ossified and led to hair-
45 Peiris Law of Evidence in Sri Lanka (1974) 94.
46 (1925) 27 NLR 100.
47 Supra 13, Ang.
48 Ibid at p 219.
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Singapore Law Review
splitting distinctions over the kinds of similarity or number of incidents to which
such a description could be applied. Boardman emphasised that what matters is not
whether conduct can in some abstract sense be labelled a 'system' but whether it
has a sufficiently high degree of relevance to the issue of guilt. 4
It is submitted that judges should abandon the use of the word "system".
To say that the evidence constitutes system does not really tell us anything.
Where other catchwords like "rebuttal of defence of innocent purpose" or
"establishing identity" are used at least one is informed as to what purpose the
evidence is tendered for and thus be able to assess the probative value of the
evidence.
Judicial disapproval of the use of the word "system" is not unforthcoming.
In R v Raju,
60
Spenser Wilkinson J said:
It is not clear to me precisely what the learned President meant by the expression
'relevant to show system'. The law on the subject of the admissibility or otherwise
of similar acts committed by an accused person is perhaps one of the most difficult
branches of the law of evidence. One thing, however, appears to me to emerge very
clearly from the decided cases on this subject, and that is that what is often referred
to as evidence of 'system' (a phrase which I deprecate as being somewhat misleading)
when it is admissible at all is admissible for specific purposes and for those purposes
only and not, as suggested in this case by the learned President simply because it
shows
system.
5 1
Judges who are used to saying that a considerable number of acts and/or
striking similarity in peculiar features form a system should make their judg-
ments clearer by a frank disclosure that it is not system which they are talking
about, but rather probative force. The greater the number of repetitions and/or
the greater the similarity and peculiarity, the smaller the likelihood of coinci-
dence and the greater the probative value. It would then tend to show intention,
guilty passion etc. Eschewing a misty concept like "system" and drawing
attention towards the constituents of probative value would help to clarify
much of the metaphysics about "how many acts constitute a system". Thus in
R v Wilson
2
, similar fact evidence was not admissible not just because one
previous act could not constitute a "system", but because the similar fact related
to features which were too commonplace and therefore lacked peculiarity, and
hence sufficient probative value. On the other hand, evidence of only one earlier
incident was admissible in Bond and Wong Foh Hin because the scarcity of past
incidents is compensated for by the other constituents of probative value such
as peculiarity. "System" is a word prone to muddle thoughts. One writer,
commenting with respect to res gestae but equally applicable in the context of
"system", notes: "It is probable that this troublesome expression owes its
49 Supra 22 at p 201.
50 (1953)19MLJ21.
51 Ibid at p 22.
52 (1973)58 Cr App R 169.
(1987)
Similar Fact Evidence
existence and persistence in our law of evidence to an inclination of judges and
lawyers to avoid the toilsome exertion of exact analysis and precise thinking."
5 3
A switch to precise thinking by emphasising the real constituents of
probative value (number of incidents; similarity; peculiarity etc)
4
would
clarify the existing confusion over the rules of similar fact evidence.
"System" is thus a misleading term because it is really probative strength
which judges are talking about. Another sense in which it is misleading is when
evidence, which would otherwise not be admissible ifonly relevant via propensity,
is rendered admissible because the courts hold that there is "system". In Bond
most of the judges expressly claimed to eschew propensity reasoning.
5
Their
Lordships held the evidence of a woman whom the accused had impregnated
admissible because it constituted "system". On the face of it, it looks like
the evidence is thus being used for a purpose other than propensity, ie in proof
of "system". However a closer examination would reveal that "system" is
indeed synonymous with propensity. Thus Lawrence J said that the evidence
"shewed ... the prisoner's scheme or system when the indulgence of his passion
had got girls into trouble was to use these instruments upon them to relieve
himself from the burden of paternity."" What else could his Lordship mean
other than that the accused had a propensity to perform abortions on girls
he impregnated?
Likewise, Bray J asserted that the evidence is admissible if it shows that
the accused "was in the habit of treating women in a state of pregnancy with a
view to procure abortion."
57
(emphasis added). With respect to his Lordship,
what distinction can there be between "habit of treating women in a state of
pregnancy with a view to procure abortion" and "propensity of treating women
in a state of pregnancy with a view to procure abortion"? Surely any distinction
must be tenuous.
"System", "habit" or "course of conduct" really mean propensity. When
a person does something systematically or habitually, we are saying that his
behaviour is regulated by some factor. This factor is his propensity. The use of
subterfuguous terminology like "system" or "habit" should not mislead us into
thinking that non-propensity reasoning is being used.
8
53 Morgan "A Suggested Classification of Utterances Admissible as Res Gestae" (1922)
31 Yale LJ 229.
54 Infra text at p 234 (Section III).
55 Supra 28, Lord Alverstone CJ at p 394; Kennedy J at p 397; Darling J at p 407; Jeif
J at p 411; Lawrence J at p 420.
56 Supra 28 at p 425.
57 Ibid at p 418.
58 Supea 1, Piragoff at pp 69-78.
8 Sing LR
Singapore Law Review
(e) Res Gestae
Evidence of similar fact may be admissible if it consists of acts so closely
connected with the incident in question that they are relevant to explain it.
In other words, the earlier acts form part of the res gestae. In PP v Loh Swee
Kon
59
the accused was charged with carrying firearms contrary to Regulation
4 of the Emergency Regulation 1948. Earlier the accused was charged but
acquitted of the offence of consorting under Regulation 5(1). The prosecution
sought to substantiate the charge of carrying firearms by introducing as witness
the person with whom the accused was alleged to have consorted. The court
ruled this evidence as admissible because "it is so connected with the offence
charged (ie of carrying arms) as to form part of the evidence upon which it is
proved."
In another firearms case mentioned earlier, Tan Geok Kwang, the accused
was charged also with the possession of firearms contrary to the Emergency
Regulation 1948. It was held by Willan CJ that evidence which showed that the
accused was involved in the throwing of a hand-grenade at the policejust before
his arrest was admissible. It was admissible, even though the throwing ofthe hand
grenade may be the subject of another charge, "under s 6 of the Evidence
Enactment as part of the res gestae because the group of facts forming this
transaction was so connected that the exclusion of evidence relating to the hand-
grenade would tend to render evidence as to the other facts unintelligible. "
60
The objection to the use of res gestae category is quite similar to that with
respect to "system". Res gestae is a concept as obscure as "system". It lacks a
determinate criterion by which to determine whether any item of fact forms
part of the res gestae. No doubt it has been defined as facts which are so inex-
tricably bound up with some fact in issue or relevant fact in terms of proximity
in time, place and circumstances.
61
Another definition is given by Stephen,
according to whom, a transaction is "a group of facts so connected together as
to be referred to by a single name, as a crime, a contract, a wrong or any other
subject of enquiry which may be in issue.
62
However a review of some of the res gestae cases would show the
ludicrous results which are sometimes obtained. In the context of hearsay it
was held in the case of Hamsa Kunju v R
63
that the exchange of words between
the accused and his victim in the early part of the day was admissible as part of
res gestae since it provided the motive for the attack several hours later. Yet in
59 (1951) 17MLJ 159.
60 Supra 4 at p 204.
61 R v Mansfield (1841) Car & M 140; R v Eillis (1826) 6 B & C 145 cited by J Stone
"Res Gestae Reagita" (1939) 55 LQR 66, 82-83.
62 Supra 42.
63 (1963) 29 MLJ228.
(1987)
Similar Fact Evidence
Allapitchay v R,
64
an utterance by the deceased within minutes of his murder
was held not to be part of the res gestae.
The contemporaneity test is thus extremely unhelpful. Nor is Stephen's
definition of any help. Just when are "facts so connected together as to be
referred to by a single name"? Like the test of implied term of contract, this
definition suffers from the fallacy of begging the question or circular reasoning.
Much depends on the level of generality with which we choose to characterise
the transaction in question. Thus in R v Beddingfield," the assault on the
complainant and the complainant's immediate declaration "see what Bedingfield
has done to me" was treated by the court as two separate transactions. If a
similar analysis had been applied to the case of PP v Loh Swee Kon mentioned
earlier, the evidence would not be admissible since the earlier act of consortment
and the latter act of carrying firearms must constitute two separate transactions.
Yet these two disparate offences were held by the court to form part of the
same transaction.
Like the word "system", res gestae is confusing in its scope. It is what
Stone calls "the legal category of meaningless reference". He wrote: "It the
supposed principle by reference to which a case is decided has no possible
meaning which can base the decision, then even though the court purports to
derive its decision therefrom, the real determinant of the decision must lie else-
where."
6
The adoption of the res gestae concept conceals the real determinant
of admissibility, ie probative value. Thus in Loh Swee Kon the evidence was
admissible simply because the probative value of evidence showing the accused
to be involved with consortment with bandits is high. This probative value is
derived from the fact that persons closely associated with bandits who carry
firearms has a greater propensity to commit the crime of which the accused was
charged with in the case. In truth, this is the genuine analysis but which the
court fudges by introducing evasive concepts like res gestae.
The categories which have been drawn up is by no means intended to be
exhaustive. The warnings of Viscount Simon in Harris v DPP
7
should be borne
in mind: "It is, I think, an error to attempt to draw up a closed list of the sort
of cases in which the principle operates: such a list only provides instances of
64 (1958) 24 MLJ 197.
65 (1879) 14CoxCC341.
66 Stone Legal System and Lawyers' Reasonings (1964) 241.
67 [1952] AC694.
8 Sing LR
Singapore Law Review
its general application, whereas what really matters is the principle itself and its
proper application to the particular circumstances of the charge that is being
tried.
,68
However in Wong Kok Wah v R
69
this very error of treating the list as
closed was made. In an earlier case of Raju, Spenser Wilkinson J enumerated the
several categories of relevancy under the Evidence Act:
Generally speaking the evidence of similar facts may be relevant for the following
purposes, though this list may not be exhaustive:
1 To negative accident;
2 To prove identity;
3 where mens rea is the gist of the offence, to prove intention; and
4 To rebut a defence which would otherwise be open to the accused.
70
In Wong Kok Wah, a case in which the accused was charged with the
possession of uncustomed goods, the same judge refused to admit evidence that
the accused had given uncustomed goods similar to those in respect of which he
has been charged, to another man. The reason he gave was that the evidence
didn't fit within any of the categories listed in the earlier case of Rqju, inspite of
his earlier observation that the list was not exhaustive: "I am unable to see that
the evidence of this witness comes under any of the four categories laid down in
the case of R v Raju as justifying the admission of this kind of evidence ...,,1
In a charge of being in possession of uncustomed goods, a necessary
element which the prosecution has to establish is knowledge on the part of the
accused that the goods were uncustomed. Evidence that he had other dealings
with uncustomed goods would therefore be highly relevant to the issue of know-
ledge or to rebut a defence of innocent possession. Both of these are categories
which have been recognised under the Evidence Act (s 14: "knowledge") and
under the common law (innocent possession cases such as R v Mason.
7 2
charge
of altering forged deed; evidence admitted of other deeds alleged to be forged
found in the accused's possession). Spenser Wilkinson J's ruling that the evidence
must fit into one of the four categories listed in Raju and thus treating the list
as closed is, it is submitted with respect, incorrect.
It should also be noticed that proof of identity is one of the categories
which Spenser Wilkinson J laid down in Raju's case. The question arises whether
identity and the commission of the act by the accused (actus reus) are issues
68 Ibid at p 705.
69 (1955)21MLJ46.
70 Supra 50 at p22.
71 Supra 69 atp47.
72 (1914) 10CrAppR 169 (CCA).
(1987)
Similar Fact Evidence
provable by similar fact evidence under the law in Singapore? S 14 and s 15
seem to be restricted to proof of mens rea only. One solution is that similar
fact evidence can be admitted through s 11 in proof of actus reus. S 11 reads:
11 Facts not otherwise relevant are relevant -
(a) if they are inconsistent with any fact in issue or relevant fact;
(b) if by themselves or in connection with other facts they make the existence
or non-existence of any fact in issue or relevant fact highly probable or
improbable.
However it is doubtful whether such an application of s 11 is legitimate.
A restricted interpretation of s 11 was adopted in the Indian case of Emperor
v Panchu
Das:
3
Section 11 is equally unavailing. That section provides that facts not otherwise
relevant are relevant if by themselves or in connection with other facts they make
the existence or non-existence of any fact in issue or relevant fact highly probable
or improbable. As was pointed out by West, J, in R v Parbhudas (14), the section
is no doubt expressed in terms so extensive that any fact which can be a chain of
ratio-cination be brought into connection with another so as to have a bearing upon
a point in issue, may possibly be held to be relevant within its meaning. But the
connections of human affairs are so infinitely various and so far reaching that thus
to take the section in its widest admissible sense would be to complicate every trial
with a mass of collateral enquiries, limited only by the patience and the means of
the parties. That such an extensive meaning was not intended is possibly indicated
by the fact that the illustrations do not go beyond cases familiar in the English Law
of Evidence;
7 4
Another solution is to argue that English cases which authorise the
admission of similar fact evidence to prove actus reus are applicable here by
virtue of the saving clause in s 2(2). Under s 2(2), rules of common law are
repealed only if they are inconsistent with any provisions of the Evidence Act.
Ss 14 and 15 merely state that similar fact evidence is admissible to prove
mens rea and did not say in so many words that it is prohibited to use similar
fact evidence to prove actus reus. (Such a proposition could at best only be
implied from the omission in reference to proof of actus reus under ss 14 and
15, ie an instance of the application of the statutory presumption expressio
unius est exclusio alterius
75
but on the other hand, a statute is presumed to
alter the common law as little as possible.
76
) From this, one could conclude
that the Evidence Act did not disallow proof of actus reus. It would therefore
still be possible for similar fact to be proved, not because it is authorised by the
Evidence Act, but by the application of English cases. Thus in Makin, evidence
of the deaths of other infants was used to establish that the baby in question
had been murdered. So too in Smith, evidence as to the deaths of previous
73 58 IC 929.
74 Ibid at p 936.
75 Cross Statutory Interpretation (1976) 120.
76 Ibid at p 145; also Sarkar Law ofEvidence (13th edn) 20.
8 Sing LR
Singapore Law Review
brides was admitted to prove the actus reus in question.
There does not seem to be any good reason for objecting to the use of
similar fact to prove actus reus provided that the evidence is of sufficient
probative value. Lord Atkinson said in Ball: "Surely, in an ordinary prosecution
for murder, you can prove previous acts or words of the accused to show he
entertained feelings of enmity towards the deceased, and that is evidence not
merely of the malicious mind with which he killed the deceased, but of the fact
that he killed
him.,
7 7
Indeed, the whole line of "unlicensed taxis" cases (AngAnAn conveniently
summarized them all) would suggest that evidence of past observations of the
carriage of passengers by the accused could be used to prove the actus reus of
receipt of reward, an essential element in the prosecution's case. Thus in Abdul
Hamid v pP
8
Adams J said that such evidence is admissible because it "showed
quite conclusively that the defence had been plying for hire and I think it is
desirable that evidence of this nature should be produced in all cases of this
nature.
7 9
The reasoning of the court in these cases is that the existence of the actus
reus (receipt of money) is likely to exist concurrently with a particular set of
facts (ie the frequency of carriage of passengers) and the unlikelihood that
these journeys were undertaken out of sheer altruism, without charging a fee for
the considerable amount of petrol and other expenses incurred.
It is well established by Indian
80
and Sri Lankan
81
cases that s 14 and
s 15 do not enable the adducing of evidence to prove either the occurrence of
the main fact or the identity of the actor. Thus in Wijesinghe,
82
Ennis ACJ held:
It is significant to notice that the illustrations to s 15 show quite clearly that, where
evidence is admitted [under s 15], it is admitted only to show the absence of
accident or the presence of intention, but not to prove the original fact itself. For
instance, where an accused was charged with burning down his house in order to
obtain money for which it is insured, evidence that the accused had lived in a number
of houses successively which he had insured and that in each of them a fire had
occurred, was admissible to show that the fire in the case under trial was not acci-
dental; but that evJlence is not admissible to prove the main fact that the accused set
fire to the house.
77 Supra 17 at p 68.
78 Supra 13, Abdul.
79 Ibid at p 45.
80 R v Vyapoory ILR 6 C 655; R v Abdul Wahid ILR 34 ALL 93; also supra 76, Sakar
at p 163.
81 Infra 82; Jayewardene (1949) 51 NLR 25.
82 (1919)21 NLR 230.
83 Ibid at p 231.
(1987)
Similar Fact Evidence
Unfortunately the court seemed to have ignored the effect of decisions
like Ball and Makin which clearly established that similar fact evidence is
admissible to prove actus reus. It is submitted that these Indian and Sri Lankan
cases are only authorities for the proposition that s 14 and s 15 do not allow
proof of actus reus.
4
They do not preclude the possibility that decisions like
Ball and Makin might apply under s 2(2). Protection to the accused is afforded
by an insistence that the probative value of such evidence be considerably
higher than that used in proof of mens rea.
85
Conclusion
As stated earlier, under the categorization approach, the first step is to
inquire what the list of categories is. The second step is then to see whether the
evidence before the court fits into any one of these slots. This is a simpler task
and not too many problems arise, first, because of the looseness with which most
of the categories are defined. This is particularly the case with categories like
"system" and res gestae. Secondly, since it has been accepted that the list of
categories is not to be closed, the evidence would in all likelihood find a particular
slot in the long list of categories.
One merit of the categorization approach is that it is often time-saving
and convenient to use. It is convenient because, like the fable of Ali Baba, a
mere utterance of the suitable category "Open Sesame" will open the doors
to valuable treasures. But the court of law is not Aladdin's Cave. It must do
justice to the accused by admitting evidence if and only if it is satisfied that the
evidence so tendered is highly relevant to the issue before the court, thus off-
setting the prejudicial effect it might have. In other words, it must be ensured
that probative value is high. And it is in this respect that the categorization
approach has its shortcomings because it does not look at the evidence in all its
aspects to assess its probative strength. Instead it only focuses on one aspect
of probative value, ie the issues for which the evidence is adduced to prove.
Undoubtedly, to find out how relevant a piece of evidence is, one must know to
what purpose it is relevant. But the inquiry must not stop there. It must proceed
to weigh other factors of probative value.
86
Thus the weakness of the categori-
zation approach is that in the categories, words are used, not as a means to
finding out the degree to which the evidence adduced is probative of the issues
sought to be proved, but as ends in themselves.
84 CfPeiris "Evidence of System in Commonwealth Law" (1984) 47 MLR 34,63.
85 Heydon Evidence: Cases and Materials (2nd edn) 261.
86 Infra text at p 234 (Section III).
8 Sing LR
Singapore Law Review
SECTION III: BOARDMAN
FORMULATION
8 7
Briefly the facts of Boardman are as follows:
The accused is a headmaster of a boarding school consisting of boys. He
was charged with attempted buggery with S, one of his pupils and of inciting
another, H to commit buggery with him. Boardman's counsel did not seek for
separate trials for each of these two counts. At the trial each boy gave testimony
to the incident ofwhich he only was involved. The testimony revealed an unusual
homosexual conduct on the part of the accused, who visited them at midnight,
invited them to his room and asked each of them to play the active role in the
acts of buggery. The trial judge ruled that the evidence of S was admissible as
similar fact evidence and thus was capable of being used as corroboration of the
testimony of H and vice versa. On appeal to the House of Lords, the following
question was reserved: whether on a charge involving an allegation of homo-
sexual conduct there is evidence that the accused person is a man whose homo-
sexual proclivities take a particular form, that evidence is thereby admissible
although it tends to show that the accused has been guilty of criminal acts other
than those charged.
The House of Lords found that there is no special passport to admissibility
simply because the offence is of a peculiar type, ie buggery, notwithstanding that
the homosexuality took a particular form. The question framed by the Court
of Appeal could therefore not be given a conclusive answer.
Boardman signalled the quietus to the categorization approach. Lord
Wilberforce said:
In my understanding we are not here concerned with cases of "system" or "under-
lying unity" (ef. Moorov v H M Advocate, 1930 JC 68)., words whose vagueness is
liable to result in their misapplication, nor with a case involving proof of identity,
or an alibi, nor, even, is this a case where evidence is adduced to rebut a particular
defence, It is sometimes said that evidence of "similar facts" may be called to rebut
a defence of innocent association, a proposition which I regard with suspicion since
it seems a specious manner of outflanking the exclusionary rule.
88
The new approach which Boardman heralds is explained by Lord Wilber-
force as follows :
The basic principle must be that the admission of similar fact evidence (of the kind
now in question) is exceptional and requires a strong degree of probative force. This
probative force is derived, if at all, from the circumstance that the facts testified to
by the several witnesses bear to each other such a striking similarity that they must,
87 Generally: Supra 22; Turcott "Similar Fact Evidence: The Boardman Legacy" (1978)
21 Cr LQ 43; supra 1, Piragoff; Cross "Fourth Time Lucky - Similar Fact Evidence
in the House of Lords" (1975) Crim LR 62; Elliot "The Young Person's Guide to
Similar Fact Evidence" [1983] Crim LR 284.
88 Supra 20 at p 443.
(1987)
8 Sing LR Similar Fact Evidence 231
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.
89
Whilst Lord Salmon said:
The test must be: is the evidence capable of tending to persuade a reasonable jury
of the accused's guilt on some ground other than his bad character and disposition to
commit the sort of crime with which he is charged? In the case of an alleged homo-
sexual offence, just as in the case of an alleged burglary, evidence which proves
merely that the accused has committed crimes in the past and is therefore disposed
to commit the crime charged is clearly inadmissible. It has, however, never been
doubted that if the crime charged is committed in a uniquely or strinkingly 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 con-
clude 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.
9
0
In essence, Boardman is a decision beckoning the return to basic relevancy
principles. It recasts the unnecessarily complicated rules in terms of a simple
test which reflects that the very paradigm of admissibility of similar fact evidence
is making available to the court as much evidence as possible without undue
prejudice to the accused. It is acknowledging that the functions of the court
are discharged by common sense and logic which are capable of codification
in the form of minutiae rules. The question of admissibility must therefore be
considered in the context of the multifarious circumstances and peculiarity
of every case which is before the court. Any attempt to formulate refined
rules is futile. The criterion of admissibility is best left in the form of a broad
principle: probative value versus prejudicial effect.
Thus the Law Lords in Boardman eschewed any move to further refine
the rules of admissibility. Lord Cross' and Lord Salmon's use of the phrase
"striking similarity" must be seen as an exercise in the determination of the
degree of relevancy of the evidence in the context of that case and not to be
treated as laying down a precedent to be followed by latter courts.
91
Before Boardman, the courts in England have always recognized the
existence of discretion on the part of trial judges to exclude evidence whenever
89 Ibid at p 444.
90 Ibid at p 462.
91 This point was stressed by Lord Widgery CJ in R v Ranee (1975) 63 Cr App R 118
and also in the case of R v Scarott (1978) 1 All ER 672 (CCA). Cf R v Johnannsen
(1977) 65 Cr App R 101 which incorrectly treated the phrase "striking similarity"
as an authoritative test and thus resurrected the categorization approach. Another
unfortunate development is the creation of another unhelpful formula: "positive
probative value"; Ranee and Searott; also P Mirfield "Similar Facts - Makin Out"
(1987) 46 CLR 83.
Singapore Law Review
the prejudicial effect exceeds the probative value.
92
It will be noticed that the
principle of admissibility laid down in Boardman is phrased in terms identical
to the criterion governing the exercise of the discretion. What would be the
effect of Boardman on the role of this exclusionary discretion? It is submitted
that the effect is to render the discretion unnecessary. The discretion arose at
the stage of development of the law of similar fact evidence when it was still
framed in terms of technical rules and rigid categories of admissibility. Under
the categorization approach, evidence which attaches to any category becomes
automatically admissible without any further inquiry as to the overall probative
force of the evidence or the attendant prejudicial effect. Thus the need for an
overriding exclusionary discretion. Now that Boardman has simplified the law
and refrained it in terms which reflect the underlying policies, there does not
seem to be any room for a separate discretion distinct from the principle of
admissibility in this area of the law. Evidence which is sought to be excluded by
the exercise of the discretion would have been excluded in the first place by the
principle of admissibility in Boardman.
93
Lord Wilberforce's judgement in
Boardman made no allowance for any discretion which is separate from the
principle of admissibility.9
4
Also, Lord Cross stressed that "the admissibility
of such [similar fact] evidence is a question of law, not of discretion . . "95
What are the implications of the decision in Boardman for the law in
Singapore? The first issue is whether the new test laid down in Boardman
applies here. It is submitted that it does not. Boardman, it will be recalled,
marked the departure of the law of similar fact evidence from the categorization
approach, with its highly complex rules, towards a simplified restatement of
the test of admissibility in terms of the conflicting policy dictates. Boardman
is part of the development of English jurisprudence that witnesses the movement
from "rules" towards "pragmatism".
96
One writer observed: "In recent years
the trend in criminal procedure has been away from inflexible rules towards
the recognition of a discretion reposed in the trial judge. The arguments of
certainty and predictability are less persuasive here than in substantive law.
9 7
However the same cannot be said of the law of evidence in Singapore
which to a large extent is embodied in a codified form. As stated earlier, ss 14
92 Supra 67; Noor Mohamed v R [1949] AC 182.
93 Allan "Similar Fact Evidence and Disposition: Law, Discretion and Admissibility"
(1985) 48 MLR 253; Crosson Evidence (6th ed) 342 in which it is suggested that there
is a residuary role for such discretion as when evidence is admitted through some
statutory rules; also supra 91, Mirfleld.
94 Supra 20 at p 442.
95 Ibid at p 457; Lord Salmon at p 463; Lord Hailsham at p 453.
96 Stone Precedent and law (1985) 237 et seq.
97 Newark "The Judicial Discretion to Exclude Similar Fact Evidence" [1967] West
Ont LR 7.
(1987)
Similar Fact Evidence
and 15 utilised the categorization approach, with its emphasis on discrete
mental elements like intention, knowledge, good faith etc. The framework of
the law here is one based on refined rules. If the evidence can be subsumed
under one of these enumerated categories, it is ipsofacto admissible. Compared
with this, the Boardman formulation is one of broad principle. Admissibility
is to be determined on a case-by-case basis, by balancing the two varying factors
of probative value and undue prejudice. To determine the probative value,
Boardman suggests that one looks not just at the issues to which the evidence is
directed (as with the categorization approach here), but at every aspect of the
evidence. Boardman says that one then counter-balances the result with pre-
judicial effect. By comparison, it is nowhere provided in ss 14 and 15 that one
could look at prejudicial effect of the evidence.
Earlier on, it was suggested that the existence of an overriding discretion
in the English courts to exclude highly prejudicial similar fact evidence is super-
fluous. This brings us to the second issue which is whether the existence of such
discretion is justifiable in our local context. It is submitted that there is a very
strong case for such an overriding discretion if, as stated above, Boardman is
inapplicable and the discretion becomes vital to mitigate the harshness of the
strict rules under ss 14 and 15. The categorization approach under ss 14 and 15
inclines towards the admissibility of more similar fact evidence because once
the prosecution manages to attach the evidence to some category, (not a very
difficult task in view of the fact that the list is not supposed to be closed:
Harris) admissibility follows even if the evidence as a whole is not sufficiently
probative. This would pose a grave prejudice to the accused. What our courts
normally did to counter this was to exclude such evidence on the pretext that it
infringed the supposed rule against propensity evidence or to say that under our
law, similar fact evidence cannot be used in proof of actus reus. Both of these
rules, it has been submitted earlier, are not valid. There is one other device
available at the court's disposal and that is to say that until a specific defence
has been raised in substance, similar fact evidence cannot be adduced.9
8
How-
ever it is submitted that the best machinery to ensure that the accused is not
unduly prejudiced is the assumption of an extra and overriding discretion by
the courts to exclude evidence whenever its probative strength is outweighed
by the prejudicial effect.
Unlike the new development in English law brought about by Boardman,
our law is still based on the old notion of technical admissibility derived from
the categorization approach. Because of this technical rule of admissibility,
there is a strong justification for the co-existence of an overriding discretion.
This discretion seems to have been acknowledged by our courts in a number of
cases, though in none of them was the discretion exercised to exclude evidence
98 Eg Jacob v PP (1948-49) MLJ Supp 20,21; a detailed discussion of this rule is outside
the scope of this article. The reader is referred to Phipson on Kvidence (13th edn)
200-202.
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Singapore Law Review
in favour of the accused. Thus in Raju, Spenser Wilkinson J quoted with approval
Harris (a case commonly cited for the existence of such discretion) and also
added that this discretion is applicable whether or not the trial is one byjury.
99
However, his Lordship did not have to exercise this discretion since he held,
as a matter of rule of admissibility, that the evidence is inadmissible since it
was used in proof of actus reus. Similarly, the discretion is also acknowledged
in Rauf v PP
1
and Wong Foh Hin
2
but the court in both cases ruled that the
evidence is not of trifling probative value so as to be excluded in the exercise of
the discretion.
In determining the probative strength, the following list of some of the
constituents of probative value is suggested, but only as a guide to reasoning
and not as authoritative rules of admissibility:
1 Degree of relevancy
to facts in issue.
3
2 Number of acts. This could affect probative value in two ways. First,
the greater the number of acts, the more the evidence tends to show
propensity of a certain type on the part of the accused. Secondly,
the greater the number of acts, the greater the appeal to the unlike-
lihood of coincidence or accident.
3 Time lapse. Peiris said that "a prolonged interval between the other
acts and the act in question must of necessity weaken an inference as
to the state of mind characterizing the commission of the act on
which the indictment is founded."
' 4
In particular, the longer the lapse,
the greater the possibility of character reformation and the more it
tends to weaken any inference from propensity.
4 Degree of similarity of acts.
5 Peculiarity. This factor should be considered in conjunction with (4)
above. The greater the similarity is in features which are not so
commonplace, the higher the evidential value (Straffen: unusual way
of concealing bodies, no attempt at molestation; Smith: unusual
deaths in bath).
6 Other evidence in the case. Regard must be had to the strength of
the other evidence tendered by the prosecution. Where there is direct
testimony of the commission of the crime and the similar fact evidence
is merely used corroboratively, a lower standard of probative value
may suffice (as in Boardman). On the other hand, in situations where
99 Supra 50 at p 22.
1 (1950) 16MLJ 190,192.
2 Supra 39,1st series, at p 150.
3 Supra 1,1st series, Piragoff at p 187.
4 Supra45,1st series, atp 102.
(1987)
Similar Fact Evidence
there is no direct testimony of identification, strong evidence of
peculiar features may be demanded (as in Straffen)
5
However, such
a proposition may cut the other way. Thus it may be argued that
where the prosecution already has a strong case, there is no need to
rely on similar fact evidence.
6
CONCLUSIONS
1 Of the three approaches discussed in this article, the categorization
approach is the one which most readily fits into the Evidence Act ie
ss 14 and 15.
2 Though the approach heralded by Boardman is desirable, it is anti-
thetical to the categorization approach and is thus inapplicable here.
3 a The supposed rule against propensity reasoning is based on a
mistaken interpretation of Makin and cannot be good law in view
of cases like Straffen, Ball, Thompson. Makin does not ban
propensity evidence absolutely. It only disallows "evidence of
improper conduct by the accused on other occasions if its only
relevance is to show that the accused is a person of bad disposi-
tion and his disposition is not highly relevant to an issue raised at
the trial."
7
3 b Nor is propensity evidence banned under ss 14 and 15. Explana-
tion 2 to s 14 seems to suggest that propensity evidence is allowed.
Explanation 1 can be construced as requiring such evidence to be
of sufficient probative value to warrant its reception.
4 Similar fact evidence can be used in proof of actus reus. At least
this seemed to have been assumed in the "unlicensed taxis" cases.
There is no express provision in the Evidence Act enabling similar fact
evidence to be adduced for proving actus reus but authorities like
Ball and Makin can be cited vis s 2(2).
5 The task of determining the admissibility of similar fact evidence
should not be tied down to ever-refined rules. Instead it should be
done by a commonsensical weighing of two conflicting policy require-
ments: probative value versus prejudicial effect. There is thus a strong
5 Supra 93, 1st series, Cross at p 323.
6 Supra 1, 1st series, Piragoff at p 146.
7 Hoffmann South American Law of Evidence (2nd edn) 43.
8 Sing LR
Singapore Law Review
case for the existence of an overriding discretion framed in such
terms. This would counter the effect of the categorization approach
which tends to let in evidence more readily.
Lui Chun Fai
Roland Samosir *
Third year law students (academic year 1986-87). The writers wish to express their
gratitude to Mr Kenneth Tan for his helpful comments and criticisms. All errors, how-
ever, remain the writers. The writers also wish to acknowledge ther appreciation to
two kind friends, Lim Soo Peng and Tham Kin Hon, who undertook the Herculean
labour of typing out the manuscript.
(1987)
Similar Fact Evidence
BIBLIOGRAPHY
Books
1 Cowen and Carter Essays on the Law of Evidence (1956).
2 Cross on Evidence (1979 5th edn)
(1985 6th edn).
3 Heydon Evidence: Cases and Materials (1984 2nd edn).
4 Hoffmann South African Law of Evidence (1970 2nd edn).
5 Peiris Law of Evidence in Sri Lanka (1974).
6 Phipson on Evidence (12th edn).
7 Piragoff Similar Fact Evidence (1981),
8 Sarkar On Evidence (13th edn).
9 Stephen Digest of the Law of Evidence (12th edn).
10 Woodroffe and Ameer Ali Law of Evidence in India (13 edn) Vol 1.
Articles
1 Allan "Similar Fact Evidence and Disposition: Law Discretion and Ad-
missibility"(1985)48 MLR 253.
2 R Cross "Fourth Time Lucky - Similar Fact Evidence in the House of
Lords" [1975] Crim LR 62.
3 D W Elliot "The Young Person's Guide to Similar Fact Evidence" [1983]
Crim LR 284.
4 L H Hoffmann "Similar Fact After Boardman" (1975) 91 LQR 193.
5 A Ibrahim "Evidence of System" [1977] JMCL 175.
6 B Livesey "Judicial Discretion to Exclude Prejudicial Evidence" (1968)
26 CLJ 291.
7 Mirfield "Similar Facts - Makin Out" (1987) 46 CLJ 83.
8 E C McHugh "Similar Acts in Criminal Cases" (1949) 22 ALJ 502.
9 P McNamara "Dissimilar Judgements on Similar Fact" (1984) 58 ALJ 74.
8 Sing LR