Similar Fact Evidence

1. INTRO TO SFE

Similar fact rule The rule which excludes unduly prejudicial evidence of the accuseds (As) prior
bad or discreditable act or conduct
Therefore evidence is inadmissible if it goes towards proving As past conduct as the basis for
inferring that A has committed the crime he has been charged with, instead of directly proving that
A has committed the crime
Is similar fact evidence (SFE) admissible?
o SFE can be admitted on the strength of its probative force, which is often derived from
the high degree of similarities between past facts and the alleged facts of the present
charge, in spite of the prejudicial effect that SFE entails

A. Rational of the Exclusionary Rule

o PRINCIPLE-BASED ARGUMENT
As CoA recognised in Tan Meng Jee at [48], every person charged with an offence may only be
convicted upon being proved to have committed the acts within the charge. It would be subverting
established jurisprudence to allow conviction based on the particular disposition of A based on
the contention that A is the type of person who would commit such an offence
In fact one of the foundations of criminal law system is that people should be punished for a
particular violation of the law, and not for their character

o IRRELEVANCE + PREJUDICIAL EFFECT ARGUMENT

Any reliance of SFE inevitably rests on an abiding faith in recidivism (Murphy on Evidence, p 130)
Therefore SFE is not determinative per se, it merely provides an indication of future conduct the
admission of SFE thus risks the conviction of A not on the evidence relating to the facts, but
because of past behaviour or disposition towards the crime
o Insofar as human beings do have character traits consisting of relatively stable dispositions
to behave in certain ways under certain conditions, a persons past may cast some light on
her conduct at a particular time and place may not be conclusive proof of alleged
conduct, but evidence does not need to be conclusive to be relevant
o There may be instances where the logically probative significance of the evidence is grossly
outweighed by its prejudice to A, so that a fair trial is endangered if it is admitted (Lord
Hailsham, Boardman)
o However, there conversely may be instances where the probative value of such evidence
outweighs its prejudicial effect as to warrant admission (Tan Meng Jee at [41])
Why would there be prejudice?
o SFE has a tendency to lure the fact finder into declaring guilt on a ground different from
the proof specific to the offence charged

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 o This means that prejudicial effect of SFE extends beyond legitimate prejudice in the sense
that the evidence is incriminatory towards A. The illegitimate prejudicial effect arises when
the fact finder places more weight than is objectively deserved on a piece of SFE
The fact finder may come to a finding of guilt not because the charge was proven
beyond a reasonable doubt, but because As past behaviour supports an inference
that he has a propensity to commit such crimes, or because the emotional sway
connected to such evidence causes the fact finder to feel that A should be
punished
This effect is exacerbated with lay juries Lay persons may be more likely to infer
that a person shown to have bad character was likely to be guilty of the wrong
alleged to have been done by him. They may be more likely to accept that a party
was likely to have done the act complained of when they hear evidence of similar
facts. They may also be more easily affected by scandalous statements in the
evidence. (Rockline at [2])
A clear example of this prejudicial effect is the case of R v Ball, where evidence was
adduced that A had fathered his sisters child. Although incest was not a crime at
the time, the act was nevertheless immoral would have prejudiced the fact finder
against A.

o FORBIDDEN LINE OF REASONING

According to Roberts and Zuckerman, Criminal Evidence, propensity reasoning stems from the
strong and common sense connection between ones past and future conduct, insomuch as
nothing predicts behaviour as behaviour. As such, an individual who has committed a crime
before is more likely, all else being equal, to do it again, as compared to an individual who has
never committed a crime
This propensity argument was termed the forbidden line of reasoning by Lord Hailsham in the
case of Boardman v DPP, and the inadmissibility of such evidence is explained on the grounds that
it has limited probative value, because of the lack of specificity in the evidence the fact that the
Accused has a previous conviction does not in itself connect the Accused to the crime that he is
now charged with
Secondly, to establish As particular disposition, it is arguable that the court needs to make involved
decisions as to whether A has a particular trait, and whether specific situational trigger where the
past behaviour manifested was triggered in this situation, and this can only be satisfactorily done if
the courts are willing to delve into the precise psychological makeup of A.
Thirdly, the propensity reasoning does not take into account As moral autonomy. Criminal law in
particular recognises that people can change through rehabilitative elements in convictions, and it
would seem hypocritical to advocate for rehabilitation of convicts, but also convict people based on
past transgressions

o CHANCE DOCTRINE
In cases where the evidence is sufficiently specific to the current charge, courts have been prepared
to admit the evidence on a line of reasoning that can be described as a the chance doctrine.
o The chance doctrine states that a series of acts with the same characteristics is unlikely to
be produced by accident or inadvertence (R v Sims)

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 o This is because the chance doctrine is based on the belief that multiple misfortunes, if
similar enough and rare enough, suggest guilt because of the unlikelihood of the multitude
of innocent coincidences
o Given that a system of conduct can be inferred from a great number of occurrences, it is
objectively implausible to assume on the facts that series of similar occurrences are the
result of mere accident or coincidence
What do we say about coincidence? The universe is rarely that lazy.
E.g. In Makin, it is objectively implausible that the Makins were so unlucky that their
past houses were all filled with dead babies
Criticism of the chance doctrine
o As argued by Ho Hock Lai in class, the problem with the chance doctrine is the lack of
certainty of how many misfortunes are required before one can convincingly rule out the
possibility of innocent coincidence i.e. how many dead babies is too many?
o It is difficult to determine the extent to which facts must show a certain similarity or
repetition before it is possible to draw an inference that the incident was unlikely to be
coincidence and must be by design

2. SFE IN THE UK (COMMON LAW)

A. Test of Admissibility

o PRE- MAKIN
The common law pre-Makin was prepared to admit SFE of other occasions of As conduct not
concerned with the facts in issue, if it was probative in relation to some issue in the case, and not
adduced merely to show propensity
o SFE usually only admitted to show As knowledge, whether his act was intentional or
accidental, and his state of mind

o MAKIN

Makin v AG
Facts Makins had taken a baby up for adoption, and moved out of the house they were
occupying two days later. Sometime later, the baby was found buried in the backyard
of that house
Makins denied ever taking in that child claimed that they only received one child to
nurse, and had already returned that child to its parents
Prosecution was able to call a number of witnesses who testified that they handed
their babies to the Makins for adoption, and never got to see their babies again.
o Prosecution also adduced evidence that 12 other babies were found buried in
the backyard of the past three houses that the Makins had previously occupied
Defence tried to argue that the evidence relating to the 12 other children ought to be
excluded
/held/
Privy Council held that the evidence was admissible
Sets out the categorisation approach (Lord Herschell):
o [1] Prosecution cannot adduce evidence of As other criminal acts to show that

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 the Accused is likely from his past criminal conduct or character to have
committed the present crime
o [2] However, the fact that the evidence in question shows that the Accused has
committed other crimes does not by itself make the evidence inadmissible.
The evidence is still admissible if relevant to:
The question of whether the alleged act was designed or accidental;
or
To rebut a defence which would otherwise be open to the Accused
Problem is that exactly how the evidence relating to the 12 other
children is relevant was not clearly explained

Criticism of Makin:
o Makin is generally taken by later cases to have laid down the categorisation approach to SFE
Limb [1] is taken to have stated the general rule - that evidence of previous bad
character is inadmissible
Limb [2] lays down exceptions to the rule - SFE is admissible if adduced for one of the
recognised purposes
Therefore SFE is only admissible if it falls under one of the recognised
categories
o In An Introduction to Similar Fact Evidence, Ho Hock Lai argues that this interpretation of Makin
creates a test that is unsatisfactory due to the restrictive nature of the categories
Since relevance can come about in so many different ways, it appears counter-intuitive
to categorise relevance
Additionally, Limb [1] is not entirely accurate if we look at the position of the CoLaw:
The point of Limb [1] is that the courts would not allow the prosecution to
produce evidence of As bad behaviour for the purpose of persuading the
court, solely on the basis of that evidence, that he must have done it again
the forbidden line of reasoning
The inadmissibility of such evidence is explained on the ground that it has
limited probative value, because of the lack of specificity in the evidence the
fact that the Accused has a previous conviction does not in itself connect the
Accused to the crime that he is now charged with
Finally, the two-part reasoning is unworkable:
Limbs [1] & [2] are not mutually exclusive for example, there are invariably
cases where to rebut a defence available to A, one has to go through the
reasoning process that leads from As propensity to commit the crime;
The test does not inquire into the probative value of the SFE, which really just
contradicts the rationale of even admitting such evidence;
Prosecution also would have to guess at the defence to admit SFE under the
categorical approach although arguably, its not super hard to figure out what
As defence will be
o As per Michael Hor in Similar Fact Evidence in Singapore: probative Value, Prejudice and
Politics, the preclusion of the reliance on propensity reasoning also is impossible to adhere to
considering every piece of evidence of prior misconduct can be recast into relevant evidence
via the statistical improbability mould (e.g. the statistical improbability of having so many dead

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 babies in the backyard, or the improbability of so many people making the same false
allegation about you), which makes nonsense of Limb [1]

o BOARDMAN

Boardman v DPP
Facts Accused was a headmaster of a boarding school who was Accused of committing
sexual offences with two students S & H
At trial, the evidence of S was admissible in relation to Count 1, and the evidence of H
was admissible in relation to Count 2
o Issue was whether the evidence of each was also admissible in relation to
the other count
/held/
Evidence of one of them could be taken into account in deciding not just whether
the Accused did commit a sexual offence against him, but also in deciding
whether the Accused committed a sexual offence against the other
o In this case, the alleged offences bore some similarities, but not to the same
extent as cases like Straffen:
Both cases involved buggery (anal sex);
Both claimed A wanted to play the passive role;
Both claimed they were approached quietly in their dormitory in the
middle of the night, and A ask them to come up of their rooms so as
to not disturb the others
o While Lord Hailsham cited Makin and conceded that Limb [1] does prohibit
propensity reasoning evidence of bad character is not admissible for the
purpose of leading to the conclusion that a person from his criminal conduct
or character, is likely to have committed the offence for which he is held he
qualified that if the propensity reasoning is the only purpose for which the
evidence is adduced, then as a matter of law, the evidence is not admissible.
o Therefore, if there is some other relevant, probative purpose than
propensity reasoning than the evidence can be admitted
The concern is with the manner in which the evidence is used if
someone is convicted of growing marijuana and his defence is that he
didnt know that was marijuana, his previous conviction for growing
marijuana can be adduced to prove that he knows what marijuana
looks like, but not to prove that he grew marijuana in the past and
therefore must be guilty of doing it again
o HHL doesnt agree with this reasoning
He argues that the existence and the danger of prejudice is
independent of the propensity reasoning
He gives the example of a case where A is charged for murder, and
the victim was killed with a .38 calibre pistol. The Prosecution wants to
adduce evidence that two days ago, A stole such a pistol.
The evidence is clearly relevant it shows that A had access to the
very type of weapon that killed V, and the propensity argument isnt
relied on at all. However, the prejudicial effect of such evidence is still
present portrays the Accused as a very shady character
The point isnt that the evidence shouldnt be admissible, its that just
because there is no propensity reasoning doesnt mean it
shouldnt attract judicial concern because theres no prejudice
General test for SFE as per the judgments of Lords Cross & Wilberforce:
o Evidence of As other discreditable conduct or character is inadmissible unless

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 its probative value exceeds the prejudicial effect, such that it is fair to admit
the evidence
Test is now based on broad principles rather than categories of
relevance
So if prejudice > probative value, judge has a duty to exclude the
evidence
o Probative force is derived, if at all, from the circumstances that the facts
testified to by the witnesses bear to each other such a striking similarity that
they must, when judged by experience and common sense that they must
have arisen from a common cause
If the test is to be applied fairly, much depends in the first place on
the experience & common sense of the judge, and the judge must
therefore keep close to current mores the perversions of yesterday
may be the routine or the fashion of tomorrow
Problems with the weighing test the two dont vary in proportion, and your
evidence can have high probative value AND be highly prejudicial
o More fundamentally probative value is a related to logically determining the
relevance of a piece of evidence
o But prejudice is an emotional inquiry
o Is this ever possible to do?

o DPP v. PP
The Boardman approach was reformulated by Lord Mackay in DPP v P, which was endorsed locally
in Lee Kwang Peng at [48], Tan Meng Jee at [43], and PP v Teo Ai Nee at [79].
DPP v P.
Facts Accused was charged with sexual offences against his two daughters
o Court allowed the evidence of one daughter regarding what A did to her to
be admitted in support of the prosecution of the offences against the other
daughter, and vice versa
Crucially no striking similarities in the way both crimes were committed, and they
werent committed in any particular fashion
Wasnt a case where identity of the criminal was an issue if the daughters had
indeed been sexually abused, then the only probable person who could have
committed the acts was the Accused
o Similarly, his defence wasnt that someone else assaulted his daughters, it was
that no assault happened at all
/held/
The test of admissibility is whether the probative force in support of the
allegation that A committed a crime is sufficiently great to make it just to admit
the evidence, notwithstanding that is prejudicial to A in tending to show he was
guilty of another crime
o Admissibility depends ultimately upon what is just, and is a matter of degree
(citing R v M)
There is no need for striking similarities for the SFE to have probative value,
unless the identity of the perpetrator is in issue (Lord McKay)
o As opposed to Thompson, where it wasnt required although identity was in
issue;
o Or Boardman, where it was required although identity wasnt in issue
HHL seems to say just apply this if theres no striking similarity, but then talk about
why it makes no sense and really a relic of the old categorisation approach

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 Is there a risk of collusion? Is it possible that the alleged victims would have conspired
together to concoct false evidence?
o In R v H, the HoL held that the general position is that in deciding whether or
not to admit similar fact evidence, the court should assume that the
evidence is true. If on that assumption, the probative value outweighs the
prejudicial effect, the evidence should be admitted as the risk of
collaboration goes to weight and not to admissibility.

B. Striking Similarity Requirement

In Boardman, it was opined that generally, to be admissible SFE must be related to something more
than an isolated instance of the same kind of offence that (A) was also given to doing (the offence)
according to a particular pattern (as per Lord Morris). Similarly, Lord Hailsham opined that there must
be something more than mere repetition. What there must be is variously described as striking
resemblance
However, in DPP v P, Lord Mackay held that while it is true that probative force can be derived from
striking similarities in the evidence about the manner in which the crime was committed it is not
appropriate to single out striking similarity as an essential element for admissibility.
o The exception is that in cases where the identity of the perpetrator is in issue and SFE is
relevant to prove identity, something in the nature of what has been called a signature or
other special feature will be necessary. However, to transpose this requirement to other
situations where the question is whether a crime has been committed as opposed to who did
commit it is to impose an unnecessary and improper restriction upon the application of the
principle (as per Lord Lane CJ)

C. Collusion

As per Lord Mustill in R v H, collusion refers not just to the deliberate and malicious fabrication of
untrue stories, but also to the possibility that one account has unintentionally drawn upon
another
This is especially a problem for SFE, because the logic behind permitting SFE is the unlikelihood
that independent events would produce such coincidences. As such, if the SFE itself is of disputed
credibility, then the question that arises is whether his accusers may have put their heads together
to concoct false evidence (per Lord Cross in Boardman)
o If so no probative value, but very high prejudicial value
Does a risk of collusion affect admissibility?
o While a risk of collusion arguably affects the probative value of the evidence, it has been
held that the issue of collusion is one of credibility, and is a matter for the judge as the trier
of law rather than for the jury as the trier of fact (Lord Lloyd in DPP v P) translated into the
Singapore context where the judge is the trier of both fact and law, this would mean that
the risk of collusion is one that affects the credibility and weight of the evidence, rather than
its admissibility
o Per Lord Mustill in DPP v P treating independence as a threshold to admissibility loads
unfairly against P and makes just prosecution impossible
o Is this a good approach? if you think about it, the only reason we admit SFE is because its
just that probative, and a high risk of collusion does directly affect probative value, the
basis of which SFE is admitted on

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 Collusion isnt just an issue of credibility because it goes to the very basis of
admitting SFE the probative value found in the improbability that different
witnesses independently invented broadly similar accusations against A, and the
risk of collusion undermines the fundamental basis of carving out this exception to
SFE
o While it is true that the credibility of any piece of evidence is always admitted at the weight
stage, can the argument be made that SFE is of such a prejudicial nature that the moment
its admitted it would weigh on fact finders mind, to the unfair detriment of A, and may
cause him to be convicted

o CASE LAW (UK)

R v. Strafe
Facts Accused was charged with the murder of a young girl
Years before this incident, he was charged for the murder of two other girls, and in
that proceeding, had been found unfit to plead by reason of insanity and was
institutionalised in Broadmoor.
One day he escaped Broadmoor and was at large for a few hours before he was
brought back to Broadmoor evidence of opportunity
Prosecution wanted to adduce evidence relating to the earlier two murders because
there were a number of similarities in the way the earlier murders & the present crime:
o Victim was a young girl;
o Killed by manual strangulations;
o There was no evidence of any attempt of sexual interference or any apparent
motive for the crime;
o No evidence of struggle
o No attempt made to conceal the body although it could easily be done

/held/ Evidence was admitted

o Upon analysis, the principles in Makin, if applied should not have allowed the
admissibility of SFE in Straffen unless:
It bears upon the question of whether the acts alleged to constitute
the crime charged were designed or accidental;
Or to rebut a defence which would otherwise have been open to the
Accused
o However, the Accused in Straffen didnt have a defence his case was a flat
denial
o Additionally, there was no real issue as to whether if he did kill, the killing was
intentional or accidental he didnt say he killed her by accident, he said he
didnt kill her, period
However, trial judge held that the second limb of Makin did apply
o He considered the Accuseds denial that he was not the person who
committed the murder as a defence
o However, if the second limb can be construed so widely, it is arguable that
there is no real restriction on admissibility in all cases where the Accused
denies he committed the crime, SFE can apply. In all cases where the Accused
admits to the crime, but makes use of a specific defence, SFE can also be
admitted.
The only real difference between Straffen and the forbidden line of reasoning is that

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 in Straffen the evidence was of a much more specific disposition in that the
murders:
o Were unusual;
o Bore a great deal of similarities

Thompson v The King

Facts Case where the Accused was charged with acts of gross indecency with two boys
Accused was identified by the boys who alleged that he committed the acts
Prosecution produced two controversial items of evidence:
o A had two powder puffs with him when he was arrested; and
o He had pictures of naked young boys in a locked drawer in his room
Defence tried to argue that despite Limb [1] of Makin, the Prosecution was trying to
apply the propensity argument to establish that the Accused was a homosexual with
an attraction to young boys, and therefore had a propensity to commit the sexual acts
he was charged with

/held/ The evidence was admissible

Evidence was adduced not to show that the Accused had acted in accordance with his
propensity, rather, its relevance is in the more specific sense of supporting the boys
evidence that it was the Accused who committed the crime on 16th March, and
arranged to meet them again on 19th March
o However, HHL argues that this evidence is still only supportive in the sense of
the propensity argument the probability that the boys are telling the truth is
increased by this evidence because a person who is homosexual and attracted
to young boys is more likely than a person who is not in that way inclined
to commit indecent acts with young boys
o The line of reasoning therefore still relies on propensity

RvH
Facts Appellant was charged with sexual offences committed unpin his adopted daughter &
stepdaughter similarities in each complainants account as to the nature of the
alleged assaults

/held/ That the balancing test from Boardman allows admission of SFE on the assumption
that the SFE is true
o When balancing the probative value of the SFE against its prejudicial effect to
determine its admissibility, the judge should apply the balancing test and
make the ruling on admissibility on the assumption that the similar facts
alleged are true
o The credibility of the witness and the resultant reliability of the SFE are matters
for the jury
Not all SFE can be used as corroborative evidence
o When corroboration is in question, there is a further requirement that evidence
proposed to be used as corroboration must be independent of the evidence
sought to be corroborated

RvM

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 Facts M and another Df were charged with serious sexual offences against other members of
the family at trial, Prosecution sought to adduce evidence that M had been
encouraged from a young age to watch the sexual abuse of his sisters by others &
later commit such acts himself
Evidence was SFE matters described were not the subject of the charges against M,
but the Prosecution contended that the evidence was necessary to understand the
Complainants evidence and the background of the family
o Trial judge ruled that such background information was admissible, but
directed the jury that its only relevance was in proving M knew if was safe to
abuse his sister, and that she would not seek the protection of other members
of the family
o At second trial of similar charges, Prosecution wanted to adduce the same SFE

/held/ SFE is admissible as background evidence

o Where it is necessary to place before the jury evidence of part of a continual
background of history relevant to the offence charged in the indictment and
w/o the totality of which the account placed before the jury would be
incomplete/incomprehensible, then the fact that the while account involves
evidence of a past offence that the Accused isnt charged with is not itself a
ground for excluding evidence
o Helpful for jury if events not viewed in total isolation from their history
In this case, the evidence was part of a continuous family history relevant to the
offences charged

3. SFE IN SINGAPORE

A. Framework of Arguments

Context: When EA was first drafted, SFR was not well-developed, and Makin had not even been
decided
o Additionally, considering the inclusionary framework of the EA, the EA is only concerned
with the probative force of evidence, which is half of the Boardman equation
o It is additionally inappropriate to even look for an exclusionary rule
However, there are three sections that are commonly thought to make SFE relevant, and therefore
provable under s 5
o S 14: '[f]acts showing the existence of any state of mind ... are relevant when the existence
of any such state of mind ... is in issue or relevant.'
Mens rea must be proven by the evidence not generally, but in reference to a
particular matter or question
E.g. illustration (o): If A is tried for the murder of B by shooting him, the fact that A
had on another occasion shot B is relevant, but not the fact that A was in the habit
of shooting at people generally.
The difference in probative value in the example and the counter-example
arguably differ only in degree of specificity, and not kind
o S 15: where there is a question as to whether an act was accidental or intentional, the fact
that the act formed part of a series of similar occurrences is relevant

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 E.g. If A is accused of burning down his house to obtain the insurance money, the
fact that A has lived in several houses successively, each of which he insured, in
each of which a fire occurred, and after each of which fires A received payment
from a different insurance company, are relevant in as tending to show that the
fire was not accidental.
The general framework for determining admissibility of SFE in SG is as follows:
o SFE admitted to prove mens rea of A:
Discuss & apply s 14 and/or s 15
If SFE can be admitted under s 14/15
Can the balancing test still be superimposed on s 14/15?
If so, would the SFE be excluded under the balancing test?
If SFE cannot be admitted under s 14/15, can it be admitted under:
The common law balancing test;
S 11(b); or
The courts inherent power to exclude prejudicial evidence
o SFE admitted to prove actus reus of A:
S 14/15 are inapplicable (Tan Meng Jee)
Can s 11(b) be relied on to admit SFE?
If yes, how would s 11(b) work balancing test?

B. Mens Rea

o S 14
S 14 allows the admission of SFE to prove As state of mind, provided that the state of mind shown
must (have) distinct and immediate reference to the particular matter in question, and cannot
simply be evidence of general disposition, habit and tendency to do the act in question (Mas Swan
(HC) at [109])
o The particularity required is very high (Teo Ai Nee (HC) at [77])
o See also, Expln 1: A fact relevant as showing the existence of a relevant state of mind must
show that the state of mind exists not generally, but in reference to a particular matter in
question
Therefore in the case of Teo Ai Nee, the HC refused to admit evidence of previous raids, and As
convictions on copyright offences to show that he reasonably ought to have known that the records
present also infringed copyright on the basis that:
o Illustration (a) requires D to be in simultaneous possession of the subject matter in past
and present occurrences
A is accused of receiving stolen goods. The fact that at the same time he was in
possession of many other stolen articles is relevant as tending to show that he knew
each and all of the articles of which he was in possession was stolen.
However, on the facts of the case, there was a lapse of 10 years between the
charges
o Illustration (c) required the subject matter of the previous occurrence to be the same as
the present
A sues B for damage done by Bs dog. The fact that the dog had previously bitten
X, Y, and Z and that they had made complaints to B is relevant.

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 However, on the facts of the case, A was charged for the copyright infringement of
different sound recordings
o Illustration (o) showed that there must be similarity in the form of the offence and persons
involved
However, on the facts A secured the goods from an online local supplier in the
previous offence, but on the present charge had obtained his goods from an
overseas supplier and obtained reassurances that the records were not pirated
copies
So for s 14 to apply, there must at least be:
o Simultaneous possession of the subject matter of both offences (Illustration (a));
o Same subject matter of both offences (Illustration (c));
o Similarity in the form of offence and persons involved (Illustration (o));
o Saying something that indicates an intention to commit the particular crime in question
(Illustration (p))
This was relied on in the case of Ler Wee Theang Anthony, where the court found
statements made by A indicating ill will towards his wife were admissible under s
14, by relying on Illustration (p), but also cautioned that what was important was the
fact that he said something indicating an intention to commit that particular crime,
and not indicating a general disposition to commit crimes of that class, which
would be irrelevant

o S 15
S 15 of the EA states that when there is a question whether an act was accidental or intentional or
done with a particular knowledge or intention, the fact that such act formed part of a series of
similar occurrences, in each of which the person doing the act was concerned, is relevant
As the SGHC held in PP v Mas Swan, s 15 allows for the admission of SFE to prove As state of mind
if:
o There is an issue of whether the act was accidental or done with a particular mens rea;
and
o The act forms part of a series of similar occurrences
The underlying logic is that a series of strikingly similar acts is unlikely to be produced by mere
accident or inadvertence (Mas Swan at [110], citing Pinsler)
What qualifies as a series of similar occurrences?
o It is submitted that it is not the case that s 15 requires proof of a pre-existing plan or
design that A may have had, or proof that the act charged is only one of a class or series
designed to bring about a certain result with a certain object (as per dicta in Mas Swan at
[110], citing Sarkars Law of Evidence) this would mean that proof of pre-meditation is
required to admit evidence under s 15, thereby changing the substantive laws of liability for
whatever the charge is
o It is also submitted that the requirement of a series can be met even if there is only one
prior act
As per Mas Swans citation of Pinsler at [110], is that s 15 allows the admission of
evidence of a series of similar occurrences A was involved in to show the
improbability of As explanation, because the fact that the acts in question had the
same characteristics as the crime A is previously charged with is unlikely to be
produced by accident or by inadvertence

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 It is submitted that the focus of s 15 should not merely be on the number of
occurrences, but the strength of that inference of improbability, which also
depends on the unusualness of the similarities. The number of occurrences is
therefore just one factor that should be taken into consideration.

o WHETHER S 14 & 15 ACCOMMODATE THE BALANCING TEST

The issue is whether the test of balancing the probative value of the SFE against its prejudicial
effect as adopted by HoL in DPP v P can be accommodated by s 14 and 15, which on its face
appears to adopt a categorical approach to admissibility (more similar to Makin).
o This would affect whether evidence that technically fulfills s 14 and 15 and therefore are
admissible as a matter of law may nevertheless be excluded for its prejudicial effect
D would argue that yes, even if my clients SFE falls under s 14/15, it should still be
inadmissible because PE>PV;
P would argue that s 14/15 do not incorporate the PE/PV test, and even if it did,
PV>PE
YES
An argument can be made that the balancing test is implicit within the EA, so that before a judge
even considers whether SFE is relevant (and therefore admissible) by virtue of s 14/15, its probative
value must first exceed its prejudicial effect (Lee Kwang Peng at [38])
o By this view, as per Tan Meng Jee, the balancing test can be read into both s 14 and 15:
Expln 1 of s 14 states that the SFE must show that the state of mind exists not
generally, but in reference to the particular matter in question. Crucially,
Illustration (o) also puts forth that the fact that A has the habit of shooting people
with intent to kill is irrelevant when he is being tried for the murder of a specific
person, but the fact that he has previously tried to shoot the same person is
relevant
Therefore on construction of s 14, while SFE is always prejudicial, in a case
where the evidence corresponds materially to the present facts, the
interests of justice demand that they be admitted
At [50]: In reality, what is similar enough is only so because its prejudicial
effect has been outweighed by the sheer probity of the SFE the
balancing test is implicit in the provision
In s 15, the balancing test is also implicit in the use of the term similar
occurrence. The more similar the evidence to the case at hand, the more
probative the evidence is. If the possibility of prejudice is higher, then the degree
of similarity needs to be correspondingly higher before the evidence is admissible
o Alternatively, as per TYLs argument, s 14 and 15 have a built-in discretion because they
require particular as opposed to general relevancy, as seen in the use of the words in issue
or relevant in s 14 and where there is a question in s 15, which both suggest that the court
has some discretion in assessing whether SFE is sufficiently relevant or sufficiently in
question to be admissible
o Both approaches can also be defended on the basis that the court has a general discretion
to exclude any kind of evidence prejudicial to A if it would be unjust to admit the evidence,
even if the evidence was deemed relevant and admissible by the EA, and that the
balancing test is merely another form of this exception (Tan Meng Jee at [51]-[52])

13
 While there was a period of time where the balancing test was considered inconsistent with the
overarching principle of the EA that all relevant evidence is admissible unless specifically expressed
to be admissible (as per Chan CJ in Phyllis Tan, as cited in Mas Swan), Mas Swans obiter that
primacy must be accorded to the EA such that under s 14 and 15 the admissibility of [SFE] has to
be determined according to the categories of relevance (at [107]) arguable is questionable
authority because:
o As a HC decision, it cannot overrule the CoA decision in Tan Meng Jee;
o The opinion was expressed in obiter dicta;
o The case relied on the authority of Phyllis, which was later taken by CoA in Mohammad
Kadar as authority for the position that there is a judicially developed discretion to exclude
admissible evidence in criminal cases if the probative value of the evidence is outweighed
by its prejudicial effect at trial
In any event, Mas Swan adopted an application of the balancing test at [107], where it opined that
SFE was admissible under s 14 and 15 if the evidence has a striking similarity to the facts if the
case, and cited Tan Meng Jee as one of the cases that applied this test. This is essentially a
formulation or application of the balancing test since the more similar the evidence, the more
probative it would be.

NO, ITS STRICTLY A CATEGORICAL APPROACH

Although there is CoA authority from the case of Tan Meng Jee that the balancing test is implicit in
s 14 and 15, this proposition has been doubted in obiter dicta by Chong J in the HC case of mas
Swan.
o At [107]: the admissibility of [SFE] has to be determined according to the categories of
relevance;
o In coming to this conclusion, Chong J relied on the decision of Phyllis Tan, where the court
reaffirmed the primacy of the EA, and doubted the existence of the courts inherent power
to exclude prejudicial evidence deemed legally relevant and therefore admissible under the
EA
o While Mas Swan is a HC decision, Chong J opined that Phyllis Tan was now the leading
authority on whether the court had a discretion to exclude prejudicial evidence because of
the composition of the court and later CoA affirmation per Rayney Wong and Lee Chez Kee
Additionally, as opposed to the categorization approach the PE/PV test lacks certainty and is
actually really hard to apply:
o Problems with the weighing test the two dont vary in proportion, and your evidence can
have high probative value AND be highly prejudicial
o More fundamentally probative value is a related to logically determining the relevance of
a piece of evidence, whilst prejudice is an emotional inquiry. It is therefore difficult to assign
weight to both those factors and weigh them against each other

o FALL-BACK APPROACHES TO ADMITTING SFE TO PROVE MENS REA

S 11(b) of the EA
It is arguable that even if SFE is not admissible under s 14 or 15, s 11(b) would allow its admission,
provided it renders any relevant fact highly probable or improbable
Per case law, there is significant, albeit antiquated, authority for this proposition

14
 Abubakar v PP evidence of 8 previous false endorsement of driving licence applications were
admitted under s 11(b) to rebut a defence of accident raised against a charge for false
endorsement;
Yong CJ in Teo Ai Nee recognised that s 11(b) was a possible section for admission of SFE
because the words highly probable or improbable allow for a construction of s 11(b) that
comports with the balancing test adopted in DPP v P at [47]
In his later decision of Lee Kwang Peng, he affirmed Teo, and held that evidence of each of the
victims of a taekwando instructor charged for outrage of modesty was admissible under s 11(b)
for the purposes of proving the requisite actus reus element
However, it is unlikely that s 11(b) would be construed so widely by the court:
A reading of s 11(b) that would admit SFE to prove both mens rea and actus reus per the
balancing test would effectively render s 14 and s 15 otiose
Additionally, it is doubtful whether SFE can even be admitted under s 11(b) in the first place
Nothing indicates that s 11(b) was intended to be used to admit SFE
Clearly not Stephens intention, which is persuasive authority considering he
drafted the EA, although to be fair, Yong CJ in Lee Kwang Peng was clear that
the digest as an academic test is not authoritative in the construction
parliamentary intent behind the EA;
S 122(5), which permits xx with respect to SFE refers to s 14 and 15, but omits
mention of s 11(b)
Lee Kwang Peng and the later case of Radhakrishna that followed Lee Kwang Pengs
use of s 11(b) to admit SFE dealt with the provision in the context of admitting SFE to
prove actus reus, and is therefore of a narrower ratio than it is relied to support at
present

Parallel Common Law Doctrine

The starting point is that under s 2(2), any common law rule inconsistent with the EA is repealed.
While the question of whether the balancing test is inconsistent with the EA is ultimately a
matter of construction, it is arguable that a general common law doctrine that would admit SFE
to prove mens rea would be inconsistent with the scheme and purpose of s 14 and 15 of
admitting SFE to prove mens rea elements in certain circumstances
A common law balancing test would therefore render s 14 and 15 otiose
It is therefore arguable that under s 2(2) of the EA, the common law balancing test should not
apply to admit SFE for the proof of mens rea

C. Actus Reus

The issue is whether SFE may be admitted to prove the actus reus of an offence, given that s 14
and 15 appear to only admit SFE to prove the mens rea element
While it is open for P to argue that SFE is admissible to prove actus reus under s 11(b), or to argue
for recognition of a parallel common law doctrine, it is unlikely that either of the arguments will
succeed best bet is s 11(b)

o S 11(b)
S 11(b) provides that facts 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

15
 o Per the HC case of Lee Kwang Peng, where Yong CJ held that evidence of each of the
witnesses claiming to be victims of molest by their taekwando instructor was admissible
under s 11(b) to reinforce the allegations of the other victims for the purpose of proving the
requisite actus reus
At [291]: Yong CJ held that s 11(b) sets a very high probative threshold (relevant
facts must make the existence or non-existence of any fact in issue or relevant fact
highly probable or improbable), and the Boardman balancing test consequently
can be read into s 11(b) since the phrase highly probable or improbable marries
relevance to the probity argument
As such, Yong CJ found it inappropriate to sustain an artificial distinction between
similar facts which are probative of intention and [similar facts which are
probative of] acts done by the accused, and did not consider such a distinction
to have been intended by Parliament (at [46])
However, it is submitted that Lee Kwang Peng was poorly decided and disregarded both s 2(2) and
the drafters intention
o [1] The plain meaning of the EA and the drafters intent indicated that only s 14 and 15
admitted SFE. As was clearly established by Chan CJ in Phyllis Tan, the EA is not merely a
facilitative statute, and it must be given its due primacy in the determination of evidential
rules (at [124])
While it is conceded, per Yong CJs argument in Lee Kwang Peng that Stephens
Digest is an academic text and is therefore not authoritative in the construing of
parliamentary intention, it is further submitted that the argument that SFE is only
admissible under s 14 and 15 is supported by an analysis of the scheme of the EA:
[1] S 11(b) omits any reference to SFE, but Explanation 1 in s 14 (A fact
relevant as showing the existence of a relevant state of mind must show
that the state of mind exists not generally, but in reference to a particular
matter in question), and the illustrations of both s 14 and 15 clearly permit
SFE to prove mens rea;
[2] S 122(5) permits cross-examination in respect to SFE admitted under s
14 and 15, but omits reference to s 11(b)
As such, s 11(b) arguably was never intended to accommodate admission of SFE,
and one cannot stretch the construction of s 11(b) just to give effect to common law
principles.
Per s 2(2), common law principles are only applicable in Singapore law to the extent
that they are not inconsistent with any of the provisions of the EA. It is submitted
that the EA intended for SFE to only be admissible under s 14 and 15, which only
refer to the mens rea. Incorporating the balancing test to adduce SFE to prove
actus reus is inconsistent with both s 14 and 15
o [2] Authorities supporting a broad construction of s 11(b) are antiquated, and the
correctness of this construction should be re-examined.
Lee Kwang Peng
PP v Radhakrishna Gnanasegaran decided by HC in 1999
Teo Ai Nee decided by (?) in 1995
o [3] It can be argued that a mens rea inference built on SFE is more reliable than an actus
reus inference built on SFE. While the former only requires an inference that the accused

16
 had intentions to commit the crime in question, the latter involves an additional inference
that the accused would translate such intention into action
Viewed as such, it is possible that the EA codifies a logical argument that the mens
rea inference is more direct reliable than the actus reus inference.

o COMMON LAW
Alternatively, it can be argued that SFE can be admitted to prove actus reus, because the common
law balancing test does not limit its application to just evidence proving the mens rea element.
This is evident in English case law: -
o In R v Ball, evidence of prior incidents of intercourse between a pair of siblings was
admissible as proof that an act of intercourse took place on the occasion which was subject
to the present incest charge;
o In R v Sims, evidence of each count of sodomy and gross indecency between the accused
and four other men were admissible in respect
In Singapore, Yong CJ in Lee Kwang Peng evinced some support for this approach when he opined
that drawing a distinction between probative similarities of mens rea and the actus reus is too
artificial to be sustainable (at [42])
Additionally, Professor Pinsler in Evidence and the Litigation Process identified eight local cases
that incorporated the common law balancing test in the admission of SFE to prove actus reus.
However, these cases have questionable authority considering they made no reference to the EA
and referred directly to English common law:
o Ewin v PP [1949] MLJ 279;
o Tan Geok Kwang v PP [1949] MLJ 203;
o Abubakar bin Ismail v R [1954] MLJ 67;
o Chew Meng v PP [1960] MLJ 11;
o Poon Soh Har v PP [1977] 2 MLJ 126;
o Rauf bin Haji Ahmad v PP [1950] MLJ 191;
o Teo Koon Seng v R [1936] MLJ 9;
o PP v Veeran Kutty [1990] 3 MLJ 498
However, it is submitted that is highly unlikely that any local court will adopt such a liberal approach
to the EA
o Firstly, per s 2(2), any common law principles inconsistent with the EA are repealed. It is
submitted that the EA intended for SFE to only be admissible under s 14 and 15, and
incorporating the balancing test to adduce SFE to prove actus reus is inconsistent with both
s 14 and 15 which only refer to the mens rea. As such, it is arguable that a common law
doctrine that holds otherwise should be repealed under s 2(2), especially considering that
the general common balancing test renders s 14 and 15 otiose.
Arguably, this does depend on what you consider inconsistent to mean would
it include a lacuna? Is this even a clear lacuna?
o Secondly, Chan CJ in Phyllis Tan strongly criticised the idea of viewing the EA as merely
facilitative. The EA must be given its due primacy in the determination of evidence rules,
which lends support to the first argument that s 2(2) should be given due regard, and the
general balancing test which would extend the ambit of the similar fact rule to an extent
that renders s 14 and 15 otiose strongly indicates that the balancing test is incompatible
with the EA, which is the law of the land.
It is also arguably intrinsic in the scheme of the EA that only s 14 and 15 admit SFE:

17
 [1] S 11(b) omits any reference to SFE, but Explanation 1 in s 14 (A fact
relevant as showing the existence of a relevant state of mind must show
that the state of mind exists not generally, but in reference to a particular
matter in question), and the illustrations of both s 14 and 15 clearly permit
SFE to prove mens rea;
[2] S 122(5) permits cross-examination in respect to SFE admitted under s
14 and 15, but omits reference to s 11(b)

o Thirdly, it can be argued that a mens rea inference built on SFE is more reliable than an
actus reus inference built on SFE. While the former only requires an inference that the
accused had intentions to commit the crime in question, the latter involves an additional
inference that the accused would translate such intention into action
o Viewed as such, it is possible that the EA codifies a logical argument that the mens rea
inference is more direct reliable than the actus reus inference.

D. Proving Identity of the Offender

At common law, SFE may be admitted to prove the identity of the offender in question
o However, in cases where the identity of the offender is in issue, evidence of a character
sufficiently special reasonably to identify the perpetrator is required, for example, a
signature or other special feature, or, some further relationship in time and
circumstance. (Lord Mackay in DPP v P, citing R v M at [48])
In Singapore, the Prosecution could potentially rely on s 11(b), s 9, or on the general common law
balancing test to argue that the SFE is admissible. It is submitted that these arguments are unlikely
to succeed, and even if they do, the threshold of striking similarity is plainly difficult to satisfy.

o S 11(B)
S 11(b) provides that facts 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
There is local case law where s 11(b) was utilized to admit SFE:
o In Abubakar, evidence of eight previous falsely endorsed driving license applications were
admitted under s 11(b) to rebut a defence of accident raised against the current charge of
false endorsement;
o In Lee Kwang Peng, Yong CJ held that evidence of each of the witnesses claiming to be
victims of molest by their taekwando instructor was admissible under s 11(b) to reinforce
the allegations of the other victims for the purpose of proving the requisite actus reus
o Furthermore, Teo Ai Nee at [47] opined that s 11(b) should be on the same footing as s 14
and 15 with regards to the admissibility of SFE
However, it is unlikely that the court accepts that s 11(b) allows for the admissibility of SFE:-
o [1] Cases can be distinguished on the basis that they admitted SFE under s 11(b) generally,
and not specifically to prove identity.
o [2] Even if they cannot be distinguished, per s 2(2), any common law principles inconsistent
with the EA are repealed. It is submitted that the EA intended for SFE to only be admissible
under s 14 and 15, and incorporating the balancing test to adduce SFE to prove actus reus
is inconsistent with both s 14 and 15 which only refer to the mens rea. As such, it is

18
 arguable that a common law doctrine that holds otherwise should be repealed under s 2(2),
especially considering that the general common balancing test renders s 14 and 15 otiose.
It is also arguably intrinsic in the scheme of the EA that only s 14 and 15 admit SFE:
[1] S 11(b) omits any reference to SFE, but Explanation 1 in s 14 (A fact
relevant as showing the existence of a relevant state of mind must show
that the state of mind exists not generally, but in reference to a particular
matter in question), and the illustrations of both s 14 and 15 clearly permit
SFE to prove mens rea;
[2] S 122(5) permits cross-examination in respect to SFE admitted under s
14 and 15, but omits reference to s 11(b)

o S9
S 9 essentially has all the above problems, and the added bonus that it hasnt been made use of by
any case in such a manner

o GENERAL COMMON LAW

In the English common law, the cases of Thompson v R and R v Straffen admitted SFE to prove the
identity of the offender
o Thompson v R two powder puffs found on the accuseds person when he was arrested
and a collection of pictures of naked young boys found in the accuseds bedroom drawer
was admissible as proof that it was the accused who committed the acts of gross indecency
with two boys on the 16th of March, and arranged to meet them again on the 19th of March;
o R v Straffen in order to prove the identity of the murder, the court admitted evidence that
the accused was in the area of the time of the offence, the accuseds convention to
previous charges of murdering two other girls who were around the victims age, and
evidence that those two girls were also strangled in a similar manner, with no signs of
sexual interference or struggle, and with neither of the bodies concealed despite the ease
with which they could have been concealed.
While there are no Singapore cases where SFE was admitted to prove the identity of the offender,
Professor Pinsler in Evidence and the Litigation Process identified eight local cases that
incorporated the common law balancing test in the admission of SFE to prove actus reus. However,
these cases have questionable authority considering they made no reference to the EA and referred
directly to English common law:
o Ewin v PP [1949] MLJ 279;
o Tan Geok Kwang v PP [1949] MLJ 203;
o Abubakar bin Ismail v R [1954] MLJ 67;
o Chew Meng v PP [1960] MLJ 11;
o Poon Soh Har v PP [1977] 2 MLJ 126;
o Rauf bin Haji Ahmad v PP [1950] MLJ 191;
o Teo Koon Seng v R [1936] MLJ 9;
o PP v Veeran Kutty [1990] 3 MLJ 498
However, it is submitted that is highly unlikely that any local court will adopt such a liberal approach
to the EA
o Firstly, per s 2(2), any common law principles inconsistent with the EA are repealed. It is
submitted that the EA intended for SFE to only be admissible under s 14 and 15, and
incorporating the balancing test to adduce SFE to prove actus reus is inconsistent with both

19
 s 14 and 15 which only refer to the mens rea. As such, it is arguable that a common law
doctrine that holds otherwise should be repealed under s 2(2), especially considering that
the general common balancing test renders s 14 and 15 otiose.
Arguably, this does depend on what you consider inconsistent to mean would
it include a lacuna? Is this even a clear lacuna?
o Secondly, Chan CJ in Phyllis Tan strongly criticised the idea of viewing the EA as merely
facilitative. The EA must be given its due primacy in the determination of evidence rules,
which lends support to the first argument that s 2(2) should be given due regard, and the
general balancing test which would extend the ambit of the similar fact rule to an extent
that renders s 14 and 15 otiose strongly indicates that the balancing test is incompatible
with the EA, which is the law of the land.
It is also arguably intrinsic in the scheme of the EA that only s 14 and 15 admit SFE:
[1] S 11(b) omits any reference to SFE, but Explanation 1 in s 14 (A fact
relevant as showing the existence of a relevant state of mind must show
that the state of mind exists not generally, but in reference to a particular
matter in question), and the illustrations of both s 14 and 15 clearly permit
SFE to prove mens rea;
[2] S 122(5) permits cross-examination in respect to SFE admitted under s
14 and 15, but omits reference to s 11(b)

o Thirdly, it can be argued that a mens rea inference built on SFE is more reliable than an
actus reus inference built on SFE. While the former only requires an inference that the
accused had intentions to commit the crime in question, the latter involves an additional
inference that the accused would translate such intention into action
o Viewed as such, it is possible that the EA codifies a logical argument that the mens rea
inference is more direct reliable than the actus reus inference.

o STRIKING SIMILARITY
Assuming that SFE is admissible under Singapore law to prove identity, the evidence must bear
striking similarity to the facts of the case, to the extent that the evidence is sufficiently special to
reasonably identify the perpetrator due to a signature or other special feature, or some further
relationship in time and circumstance (per Lord Mackay in DPP v P), or a significant similarity as to
modus operandi (Hin Hup citing R v Sims, R v William Albert Davis and Patrick Colin Murphy)
o This point was made in DPP v P, where the accused was charged with the rape of both his
daughters and with committing incest with them. The evidence of both daughters were
admitted in relation to each count HoL considered that this case the evidence about what
occurred to one victim provides strong enough support for the evidence of the second
victim to make it just to admit it, notwithstanding the prejudicial effect of admitting the
evidence
Examples of similarities similarities in time, in circumstances
Since the evidence of both girls described a prolonged course of conduct involving
the use of force and general domination, the circumstances, taken together, gave
strong probative force to the evidence of one in respect to another.
o This finds support in local jurisprudence, as Yong CJ in Lee Kwang Peng accepted that a
higher standard of similarity was required to justify the admitting of the evidence if the
identity of the perpetrator was in question

20
 4. APPLICATION OF THE BALANCING TEST IN SG

A. Probative Value

Per Tan Meng Jee at [52], 3 non-exhaustive factors affect the probative value of SFE
o Cogency;
o Relevance;
o Strength of inference

o COGENCY
Cogency is defined as the quality of being clear and convincing.
As per Dinesh Pillai at [13], if the evidence to prove the facts and circumstances of the previous
similar occurrences is not disputed, the cogency of the SFE tends to be higher
o On the facts of the case, A voluntarily admitted to bringing packets identical to those found
on him at the time he was caught on two previous occasions. He further admitted that he
knew the contents of the earlier deliveries were drugs. HC held that the cogency of such
SFE was not in doubt since it originated from the accuseds own statement (at [12]).
o Similarly, in Tan Meng Jee, the CoA held that the cogency of SGE was not in doubt
because the source of the evidence was the accuseds own testimony (at [54]).

o RELEVANCE
The SFE must be relevant under the EA
It is submitted that the fact that SFE is even being raised suggests that the evidence is likely
relevant.
However, the SFE loses its relevance if: -
o Its unnecessary to prove the point - In Teo Ai Nee, the court refused to admit evidence of
previous copyright offences as it at best suggested that (the accused) had general
knowledge that there were infringing copies of sound recordings in the market the
evidence of these old charges were not needed to prove this general business knowledge
(at [75])
o It lacks specificity (although this arguably goes to strength of inference as well) per mas
Swan at [109], the state of mind shown by the SFE must be a condition of thought and
feeling having distinct and immediate reference to the particular matter in question and
cannot simply be evidence of a general disposition, habit, or tendency to do the act in
question
o The fact sought to be proven has already been conceded

o STRENGTH OF INFERENCE
Per Dinesh Pillaii: the more unique the features that give rise to the similarity of the previous
occurrences with the present occurrence and the more strikingly similar they are, the higher will be
their probative value and stronger will be the inference that can be drawn in showing that the
acts in question were similarly accidental, or intentional, or done with a particular knowledge or
intention as with the previous occurrences

21
 Relevant factors include:
o Degree and quality of similarities;
o Number of SFE occurrences;
o Time period between the SFE and the present offence
o The presence of an intervening event

o DEGREE OF SIMILARITY REQUIRED?

Generally, the more similar the evidence, the more probative it would be. Courts look not just at
the similarity of the occurrence, but on the cogency of the inference arising from the occurrence,
as proving the commission of the offence in question (Teo Ai Nee at [78]).
o Logically speaking, this would mean that similarities that are commonplace, or explicable
on alternative grounds therefore have minimal probative value.
o Furthermore, the presence of dissimilarities, while not fatal per se, would materially affect
the cogency of the inference sought to be drawn (Teo Ai Nee at [78])
Must the similarity be striking?
o Per English common law, Lord Mackay in DPP v P held that the striking similarity
requirement only applied to cases where the identity of the perpetrator is in issue, and the
SFE is used to draw a connection between the crime and the accused person. However, to
transpose the requirement into other situations where the question is whether a crime has
been committed rather than who committed it would impose an unnecessary and improper
restriction upon the application of the principle.
o An argument can be made that the striking similarity test should apply for all SFE:
Firstly, considering the most coherent argument for why the balancing test is part
of Singapore law is Mas Swans citing of Boardman, which predates DPP v P, and
only admits SFE on the grounds that probative force is derived from fact that the
circumstances that the facts of the SFE bear such a striking similarity to the facts
of the case that when judged by experience and common sense, they must have
arisen from a common cause
Lowering the standards of admissibility from the standard set in Mas Swan arguably
undermines the laws aversion to propensity logic, and renders the balancing test
less certain and more difficult to apply. While the striking similarity requirement
clearly indicates the balance between probative value and prejudicial effect that
must be struck before SFE is admitted, Lord Mackays proposed standard in DPP v
P of what is sufficiently great as to make it just provides far less guidance as to
what the appropriate balance should be.
Assuming that this argument succeeds (go on to argue whether the facts
evince a striking similarity)

o NUMBER OF SFE OCCURENCES

Generally, the greater the number of similar incidents, the greater the probative value of the SFE
(Hin Hup at [39])
o However, per Tan Meng Jee at [55]: where there have been fewer occurrences of the same
conduct, the absence of striking similarities must necessarily point towards inadmissibility
o Cases like Boardman and DPP v P, where the fact that there were only two victims
(therefore only one previous incident), did not preclude the court from finding that the
balancing test had been satisfied.

22
 Admittedly, per Lord Wilberforce at 445A, Hailsham at 455C and Cross at 461C,
Boardman was allegedly a borderline case

o TIME LAPSE BETWEEN OCCURENCES

The time lapse between occurrences may affect the probative value of SFE.
o In Teo Ai Nee, Yong CJ took into account the fact that the SFE only proved events that
occurred more than 10 years ago in deciding that the SFE was of little value;
o In Dinesh Pillai, the fact that the previous drug deliveries all took place within a week of the
charged offence arguably enhanced the probative value of the SFE

B. Prejudicial Effect

It is trite that similar fact evidence is always prejudicial, The fact finder may come to a finding of
guilt not because the charge was proven beyond a reasonable doubt, but because As past
behaviour supports an inference that he has a propensity to commit such crimes, or because the
emotional sway connected to such evidence causes the fact finder to feel that A should be
punished
The nature of the SFE probably affects its prejudicial effect as well: a clear example s the case of R v
Ball, where evidence was adduced that A had fathered his sisters child. Although incest was not a
crime at the time, the act was nevertheless immoral would have prejudiced the fact finder against
A.

o COLLUSION
The defence may mount an argument that the SFE should not be admitted due to the risk of
collusion
Deliberate collusion refers to the conspiracy between witnesses to lie, as opposed to innocent
infection, which refers to a communication between witnesses that lacks malice, but may lead to the
elision of differences between their accounts (Lee Kwang Peng at [92], citing R v H)
o For deliberate collusion the Prosecution has the burden of proving BaRD that there was
no real risk of collusion, failing which the judge must disregard the evidence (at [97]);
At [104]: While the onus lies on the Prosecution to disprove collusion, in practice, it
bears on the defence to raise facts pointing to a risk of collusion. Factors that are
indicative of such a risk include:
The presence of a unifying motive;
Unusual familiarity with each others accounts, with details chiming as they
were designed to
o For innocent infection the trial judge has the duty to assess the risk and opportunity for
contamination [and decide on] what weight is to be attached to the testimony (at [97])

o INNOCENT INFECTION
Even if its an infection case, argue that just because it wasnt deliberate, it doesnt change the
argument
o As per Lord Mustill in R v H, collusion refers not just to the deliberate and malicious
fabrication of untrue stories, but also to the possibility that one account has
unintentionally drawn upon another

23
 o The logic behind permitting SFE is the unlikelihood that independent events would
produce such coincidences. As such, if the SFE itself is of disputed credibility, then the very
basis of the balancing test just doesnt exist, and theres no reason to admit the evidence
regardless of whether it was intentionally or innocently falsified, the SFE has no probative
value, but a very high prejudicial value
Collusion isnt just an issue of credibility because it goes to the very basis of
admitting SFE the probative value found in the improbability that different
witnesses independently invented broadly similar accusations against A, and the
risk of collusion undermines the fundamental basis of carving out this exception to
SFE
o While it is true that the credibility of any piece of evidence is always admitted at the weight
stage, can the argument be made that SFE is of such a prejudicial nature that the moment
its admitted it would weigh on fact finders mind, to the unfair detriment of A, and may
cause him to be convicted

o LOCAL CASE LAW

PP v Teo Ai Nee & Anor

Facts
Accused persons charged under Copyright Act for selling infringing copies of certain
sound recordings
o Issue arose as to whether the Accused persons knew of the infringing nature of
the goods
o To prove such knowledge, Prosecution adduced evidence of the fact that the
Accused persons had been convicted of similar offences a few years before,
and some of the recordings that were part of the subject matter of the
previous charge were from the same artiste as those relating to the current
charge
However, there were significant differences:
o On the previous occasion, recordings were purchased from salesmen who had
come in vans
o On the present occasion, the recordings had been imported from overseas,
and the Accused had asked the overseas suppliers for the assurance that the
goods did not infringe any copyright law

/held/
HC referred to, and apparently followed the cases of Makin, Boardman and DPP v P,
and found the previous conviction more prejudicial than probative under the common
law
o However, the HC went on to consider the applicability of s 14, 15 and 11(b):
S 14 inapplicable required evidence to show that the relevant state
of mind knowledge of the infringement existed with reference to
the particular goods in question;
S 15 inapplicable there was no series of similar occurrences;
S 11 inapplicable evidence lacked the required degree of probative
force
Court held that since all paths led to the same conclusion that the evidence was

24
 inadmissible, it was unnecessary for the court to consider how the Boardman
balancing approach could be accommodated in the statutory framework.

Tan Meng Jee v PP

Facts
The Accused was prosecuted for the offence of drug-trafficking caught in a taxi with
a package containing drugs
Claimed that he was given the package by a friend who instructed him to deliver it to
a stranger, and was told that the package contained money
Accused also admitted that he was an addict and he had a group of friends with whom
he occasionally shares his drugs
o Trial judge reasoned that because the Accused had previously distributed
drugs with the group, which is a form of trafficking, his purpose of possession
in the current case must have also been for the purpose of trafficking

/held/ o CoA ruled that this evidence was inadmissible at [41]:

SFE is generally excluded because to allow it in every instance is to risk the
conviction of an Accused not on evidence relating to the facts, but because of
past behaviour or disposition towards crime. Such evidence w/o doubt has a
prejudicial effect against the Accused. However at times, similar facts can be so
probative of guilt that to ignore it via the imposition of a blanket prohibition
would unduly impair the interests of justice
o CoA treated the evidence as going to mens rea, and held that it was not admissible
under s 14 or 15
o However, what is significant is the fact that the court read the Boardman balancing test
into s 14 & 15 because it was of the view that a probative value/prejudicial effect
balancing test was already inherent in s 14 & 15:
S 14: Required evidence to show a state of mind not generally, but in
reference to a particular matter in question. CoA concluded that a fact
therefore would not be provable under s 14 unless its probative force was
sufficiently great (at [49])
S 15: the series of similar occurrences also requires a balancing exercise to
be conducted, because if the possibility of prejudice is higher, then the
degree of similarity needs to correspondingly be higher before the
evidence is admissible (at [50])
o CoAs approval of the Boardman test was also influenced by two other factors:
[1] The court has a general discretion to exclude any kind of evidence
prejudicial to the Accused if it would be unjust to do so, even if the evidence
was deemed relevant & admissible under the EA (the fairness exception);
[2] CoA took the view that the Boardman test was simply another form of the
general fairness exception (at [51] [52]) (cited a Privy Council case, Noor
Mohamed v R, where the PC opined that the general discretion courts have to
exclude prejudicial evidence & the Boardman test only differ in degree rather
than substance)
Upon application of the Boardman test, the evidence was excluded as its prejudicial
effect was found to outweigh its probative force

Lee Kwang Peng v PP

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Facts Accused was a taekwondo instructor, who was charged with molesting three of his
taekwondo trainees: A, B & C
Court held that evidence of each of the boys was admissible in relation to all the
charges

/held/ Evidence was admitted as proof, not of mens rea, but of actus rea, which means that
neither s 14 or 15 should apply
However, court held that SFE was admissible to prove actus rea (that the Accused did
murder the boys) by virtue of s 11(b)
o Since s 11(b) sets a very high probative threshold (relevant facts must make
the existence or non-existence of any fact in issue or relevant fact highly
probable or improbable), the Boardman approach can be read into s 11(b)
since the phrase highly probable or improbable marries relevance to the
probity argument (at [291])
Also seems to acknowledge DPP v P that since this was not a case
where the identity of the criminal was an issue, there was no need for
the SFE to possess a striking similarity to the current case
Singapore doesnt seem to accept the same position as R v H regarding collaboration
going to weight rather than to admissibility of evidence court instead seems to
suggest that there is a difference in how the court should respond when witnesses
conspired in fabricating a false story, and with a situation of innocent fabrication -
almost implies that you have to prove an absence of collusion as a preliminary step to
admissibility
But exemption is made for an innocent fabrication

PP v Mas Swan gives authority to the proposition that s 14 & 15 historically adopt the
categorisation approach, but are also consistent with the balancing test (this is just dicta, and HC
isnt entitled to overrule Tan Jee Meng anyway)
Facts
R & fianc MS charged with importing controlled drugs into SG from Malaysia both
caught at Woodlands checkpoint with bundles of diamorphine hidden in the front
door panel of their car
o R denied knowing about the drugs at all;
o MS claimed they both knew about the drugs, but thought that they were
ecstasy pills
To prove that R knew about the contents, Prosecution wanted to adduce evidence of
previous occasions where she trafficked bundles into Singapore via the same modus
operandi
Similarities
o Acted for the same Mickey in making deliveries;
o Involvement of the same people (R, MS, and one Muriel);
o Car was taken away from them before they left Malaysia for drugs to be
placed in the front door panel.

/held/ Stephen Chong J opined that Tan Meng Jees authority on the application of
Boardman test has been superseded by the recent decision of Phyllis Tan (at [105]),
where Chan CJ concluded that the fairness exception expressed in TMJ was
inapplicable in Singapore for being inconsistent with the overarching principle of the

26
 EA that all relevant evidence is admissible unless specifically expressed to be
inadmissible (Phyllis Tan at [126], cited at [106])
o Lee Chez Kee also confirmed at [106] that the courts have no residual
discretion to exclude evidence deemed legally relevant under the EA (at LCZ,
[108])
Stephen Chong J therefore held that admissibility of SFE had to be determined
according to the categories of relevance under s 14 & 15
o However, he did accept that both s 14 & 15 allow for the admission of SFE to
show the Accuseds state of mind because Explanation 1 of s 14 and the term
striking similarity in s 15 appear to correspond with the striking similarity test
extensively referred to in Boardman, which in essence is an application of the
probative value/prejudicial effect balancing test, since the more similar the
evidence, the more probative it is (at [107])
As such, s 14 applies as long as the state of mind shown is a condition
of thought and feeling (that has a) distinct & immediate reference to
the particular matter in question(not) simply evidence of general
disposition, habit & tendency to do the act in question (at [109], citing
Sarkar at p 384)
And, s 15 applies where:
There is a question of whether an act was intentional or
accidental, or was done with a particular knowledge or
intention; and
It is sought to prove that the act forms part of a series of
similar occurrences (at [110])
The basis of this principle according to Pilsner is that a series
of acts with the same characteristics is unlikely to be produced
by accident or inadvertence this is an application of the
general rule s 14, so it has to be read subject to s 14 with
regards to evidence of state of mind
On the facts of the case, given that Rs defence was that she entered SG to visit
Muriels relative, and did not know of the bundles hidden in the door panel, the
Prosecution was correct in seeking to rely on s 15 to admit evidence of her previous
deliveries of bundles for Mickey
o Evidence shows the fact that during the indecent of the current charge; she
was simply on her latest instance of a series of deliveries of bundles for
Mickey.
o On the facts, there is sufficiently similarities with the evidence of the previous
deliveries at [128] the highly similar circumstances show that it was very
likely that R was aware that they were delivering bundles of controlled rugs to
Singapore
o On application of the probative effect/prejudicial effect balancing test, the
striking similarity between the SFE and the current case gives the evidence an
explanatory force that is highly probative of the level of Rs knowledge on 6
May 2009 (at [128])

PP v Dinesh Pillai a/l Raja Retnam

Facts
Accused was arrested & charged with drug trafficking according to the Accused, he

27
 was told that the packet contained food that he was to deliver to a person named Ah
Boy
Accused would be paid RM200 for the delivery
Accused was not to open the packet as Ah Boy would refuse deliver
R gave the Accused a red plastic bag with one brown wrapped packet secured by
rubber bands, a packet of curry and a packet of cut fresh chilli
However, the Accused voluntarily admitted in various statements to CNB officers that
he had, on 2 previous occasions, successfully brought into SG items which had been
packed identically to the one found on him
AND admitted that he knew the contents of the earlier deliveries were drugs
o Prosecution sought to admit these statements under s 14 & 15 on the ground
that the statements proved [1] that the Accused had in fact made two previous
deliveries of identifiably packaged items which he knew contained drugs, and
[2] that the striking similarity of the facts & circumstances with the third
delivery supported an inference that the Accused was not ignorant of what he
was delivering

/held/
As per Tan Meng Jee, SFE can be adduced under s 15, but will only be admitted if the
court is satisfied that its probative value outweighs its prejudicial effect (at [12])
Cited COAs three non-exhaustive factors for balancing probative value & prejudicial
effect from TMJ:
o Cogency
If the evidence from the previous similar occurrence is not disputed,
cogency tends to be higher and vice versa if the cogency is lower
o Relevance
In this case, the SFE was relevant to the state of knowledge of the
Accused of the contents of the package
o Strength
Cited the test laid down in Boardman the more unique the features
that give rise to the similarity of the previous occurrences with the
present occurrence, and the more strikingly similar they are, the
higher will be their probative value and stronger will be the
inference that can be drawn in showing that the acts in question
were similarly accidental or intentional or done with a particular
knowledge or intention as with the previous occurrences
In this case, HC found high cogency, relevance, and strength of the evidence,
especially considering there was proximity in time since all three events took place in
the same week
The evidence relating to the previous deliveries was therefore highly probative in
showing that the Accused knew or at least strongly suspected that he was carrying
drugs in the packet
Based on the fact that he knew the previous two packages contained drugs, and is
unlikely to be ignorant or to have harboured a mistaken belief about the true
nature of the contents of the packet on the strikingly similar third occasion

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 D. Criticism of the Balancing Approach

o EVALUATION
Why is evidence excluded?
o In excluding the evidence, the court is making a moral statement, a statement that is
profoundly significant. By application of the morally empowered evidential rules, the court
seeks to assure and persuade that person and the public of the legitimacy of the verdict
that is finally reached
o So the SFE rule shouldnt be abolished
Concede that its nowhere in the EA, and some of the cases apply the balancing
approach without even looking at the EA
Ultimately, the exclusionary rule serves a signalling and deterrence purpose,
informing prosecutors, litigators and judges about the pitfalls of logical and moral
reasoning. It embodies and expresses values long deemed to be fundamental to
our criminal justice system that the state cannot penalise one for his character,
and that each person is allowed a chance to turn for the better
These are principles affirmed by the Court of Appeal in Tan Meng Jee at [48],
where it opined that the rationale of the [SFE rule] is so that every person charged
with an offence may only be convicted upon being proved to have committed the
acts within the charge. It would be subverting established jurisprudence to allow
conviction based on the particular disposition of the accused based on the
contention that the accused is the type of person who would commit such an
offence.
The idea of the forbidden chain is therefore effectively a moral injunction against the masking of an
assumption that a person who has acted in a certain despicable way on a specific occasion is the
sort of person who would commit the crime in question, which is a reasoning that involves an
assumption and a prejudgment.
This injunction is not infringed if:
o SFE is admitted not for use of the propensity reasoning at all HHL gives the example of a
case where the Accused is charged for murder, and the victim was killed with a .38 calibre
pistol. The Prosecution wants to adduce evidence that two days ago, the accused stole
such a pistol the evidence is clearly relevant since it shows that the accused had access
to the very type of weapon that killed the deceased, and the propensity argument isnt
relied on at all.
o Or, if the conclusion of guilt is further supported by evidence of other circumstances likely
to elicit a similar kind of behaviour from the accused that he is allegedly disposed to

In An Introduction to Similar Fact Evidence, Professor Ho suggests that what is needed is a shift in
paradigm:
[1] SFE can be relevant under any of the Part I general relevancy provisions:
o To take a contrary view would be to adopt a concept of relevancy inconsistent with the
drafters intention
o On the structure of the EA, there is no reason evidence from other transactions (i.e. your
SFE exclusionary rule) is prima facie inadmissible, as no such rule exists in the EA. In fact,
same transaction relevance is already accounted for under s 6

29
 o The element of prejudice therefore can be read into the general relevance provisions,
which arguably are sufficiently open-textured to allow such a reading, as each of the
provisions call for a judgment of degree, and hence, the setting of a legal standard
E.g. How similar must an occurrence be to satisfy s 15, or how highly probable or
improbable must the similar fact make the fact in issue or the relevant fact before it
falls under s 11(b)
[2] Jury directions should be used in the local bench trial context
o The problem of prejudice is that its an instinctive emotional response, while the judiciary is
of the opinion that judges with their legal training will not be adversely influenced by the
evidence, it is submitted that the ability to remain unaffected by the instinctive and
emotional sway of such evidence is not one that comes with a higher level of education or
legal training. It is impossible to guarantee that every judge who finds a piece of evidence
inadmissible can completely expunge the probity of the evidence, and rid himself of the
subtle influence the prejudice connected with that evidence may have on his mind.
o In deciding admissibility, the judge must predict whether he has the psychological fortitude
to guard herself against being swayed unduly by the evidence. If no, it must be excluded.
But yet for the very same reason of exclusion (i.e. lacking mental fortitude), the exclusion
would be pointless since the judge has already been exposed to the evidence. This is a
paradoxical position where the precaution is only be taken after the harm is done.
o Local courts should take more care to prevent the prejudicial effect of judges. For example,
In Wong Kim Poh v PP, court ruled that the a statement containing allegations on the
Accused, such as him being a pimp and living off his girlfriend was ruled to be inadmissible,
but then said nothing about whether the trial judge had been adversely impaired by the
inadmissible evidence
o Suggestions:
Have a different arbiter for admissibility and weight of SFE if the evidence is found
to be inadmissible at the PTC, SFE intended for use should be declared, and the
judge would rule on admissibility. If the SFE is found to be inadmissible, the case
should be transferred to another judge, who will not get to hear the evidence in
question at all.
This however, would mean that the parties must be ready at PTC stage to submit
on the possible SFE they intend to rely on.

C. Background Information

As per Lord Hailsham in Boardman, if there is some other relevant, probative purpose for
admitting the SFE other than propensity reasoning, the evidence is admitted, but should be made
subject to a warning from the judge that the jury must eschew the forbidden reasoning
As such, evidence that is strictly speaking SFE may be admitted as background evidence if it is
necessary to provide a continual background of history relevant to the offence charged without
the totality of which the account placed before the jury would be incomplete or incomprehensible
(R v M at 143A)
o Therefore, in the case of R v M, the court held that evidence of previous grooming and
instruction of the accused by his father to sexually abuse his sisters was admissible, on the

30
 basis that such evidence would aid in the jurys understanding of why the accused felt it was
safe to abuse his sisters, and why his sisters never sought outside help.
o While R v M has yet to be applied locally, it is submitted that Tan Meng Jee suggests a
similar approach exists in Singapore law at [36], where CoA commented that this was not a
case where the trial judge was merely accepting evidence of drug activities as background
information
Is this distinction possible to apply per McHugh J in R v M, by applying labels evidence which
is in truth purely circumstantial improperly avoids the tests of admissibility which the modern cases
expound
o E.g. when does it stop being background and starts affecting liability?
o An incorrect application of the background evidence rule can be observed in Ong Sock
Hung v PP, where SGHC admitted evidence that the accused had had a longstanding
dispute with the victim, including a previous case of criminal intimidation, on the basis that
such evidence rebutted the accuseds contention that he had no motive to intimidate his
neighbour SFE wasnt just used contextually, it actually went to the question of liability
by negating a defence
o Important because its a bypass you dont need to use the PE/PV rule, so theres arguably
nothing stopping you at all

5. SFE IN A CIVIL CONTEXT

A. Admissibility Test

o LOCAL POSITION
In Singapore, the admission of SFE in a civil context is governed by s 14 and 15 of the EA
Per the HC case of Hin Hup, SFE will be admitted in civil cases when its probative value is
sufficiently great to make it just to admit the evidence notwithstanding its prejudicial effect (at [38],
citing DPP v P)
o In Hin Hup, the court admitted evidence of seven previous accidents between the Pf and
other third party drivers over the past 11 months following the Pfs 20-year accident free
record under s 15, as it constituted evidence of the Pfs insurance fraud.

o Eight accidents occurring within 11 months showed a pattern of consistent conduct, and
the Court was therefore satisfied that the probative force of such evidence was so great
that it outweighed any prejudice that may be occasioned to P (application of Boardman at
[50])
o Problematic, because the court should not even have considered Boardman, post-DPP v P
and post Criminal Justice Act, as it is no longer even the applicable law in the UK

Contrary authority in Rockline suggests that the rule as encapsulated in s 14 and 15 appears to have
a more generous application than what was stated in Makin or Boardman, and opined at [2] that
the court in a criminal case is likely to be stricter when exercising its discretion to admit SFE
o Rockline was a case where Pf sued on breach of contract and the tort of conspiracy, and Df
sought to expunge passages from Pfs AEIC such as:

31
 o One element of Thadanis pattern of behaviour is that he would withhold information from
others who would ordinarily be entitled to it. Then, at the last minute, they would release
the information and ask for urgent approval, citing various reasons. and
o After Thandani left, there was a discussion amongst the CEOs of what we thought of him.
The consensus amongst us was that Thandani was a clever and experienced deal-doer with
a good academic background. However, we noted that certain aspects of his presentation
were exaggerated or boastful, sometimes even to the extent of not being entirely truthful
Citing Lord Denning in Mood Music, suggested that criminal courts have to be careful not to admit
SFE, as admission will operate unfairly against the accused, presumably because he potentially
would be deprived of his liberty and freedoms if convicted. The only exception is cases where the
probative value of the evidence so strong that it should be received in the interests of justice.
o However, in a civil case, where neither side faces the possibility of conviction, the court
suggested that SFE will be admitted as long as the evidence is:
Logically probative;
Not oppressive or unfair to the other side; and
The other side has fair notice of the SFE and is able to deal with it

o UK POSITION
Prior to OBrien, the test for the admissibility of SFE in civil cases, as set out in Mood Music (see
above)
Subsequently, in OBrien, the HoL stated that SFE would be admissible in civil cases if it were:
o Logically probative; and if so,
o The court has a discretion to exclude the SFE if:
Admission of the evidence will distort the trial and distract the attention of the
decision-maker by focusing on issues collateral to the issue being decided;
It will cause unfair prejudice that is not considerably outweighed by its probative
force;
Case management concerns caution against the admission of such evidence;
The SFE tends expose public misfeasance, such that there is a strong public interest
in admitting the SFE

B. Evaluation

o YAY
The law should be more lenient towards the admission of SFE in civil cases because:
o SFE in civil cases generally poses no or little problem of moral prejudice. This is because
civil liability merely involves private disputes where the issue on the table is how to
compensate one person for the breach of a personal obligation owed to him, which may
not even be fault-based.
Conversely, criminal convictions paradigmatically condemn an individual for acting
in violation of a community standard or social interest, and there is therefore the
need to consider the moral prejudice connected to the SFE, and the consequential
punishment that may be imposed on the accused person
At the same time, it can be argued that civil cases may similarly be critical to ones
reputation and pecuniary interests. As Prof Ho notes in his article, [t]here is a
similar need for the civil court to justify its findings...and be concerned with

32
 the morality of the reasoning used in support of those findings (at 143). It is
similarly against the interests of justice to find a man liable for negligence purely
because he has previously been similarly negligent prior to the incident.
o Different policy considerations frame civil and criminal trials
In criminal proceedings, the court takes a protective attitude towards the accused,
as evinced by the presumption of innocence and the differing standards of proof,
as well as the rule of construction that all ambiguities must be construed in the
accuseds favour. In contrast, in a civil case, a primary consideration is equality
between the parties, and protection is not unequally granted to either party.
Furthermore, a significant aspect of the adversarial trial system is allowing parties
the agency to decide how to present their case. Per Hoffmann LJ in Vernon v
Bosley, it is an important aspect of an adversary system of justice that a party
should so far as possible be allowed to decide how to present his case. If he or his
counsel thinks that an item of evidence... may be relevant, the court is generally
very reluctant to shut it out. He should not be left with a feeling that he might have
won if only he had been allowed to adduce evidence... which the judge refused to
hear. In criminal cases, this principle is hindered by the need to protect the
accused, but no such impediment exists in a civil trial

o NAY
It is submitted that a distinction between admissibility of SFE in civil and criminal contexts cannot
be drawn due as the EA is the applicable legislation for both civil and criminal cases, and s 2(2)
clearly provides that common law rules inconsistent with the EA are repealed.
o The Mood Music and OBrien approaches both draw a distinction between civil and
criminal cases, which is inconsistent with the EA
The distinction is also of questionable pedigree at common law since there are authorities that have
consistently proclaimed the test of admissibility of evidence of SFE to be the same in civil and
criminal law (Warner J in Berger v Raymond Sun, Dillon J in Thorpe v Chief Constable of Great
Manchester Police)
o Lord Denning in Mood Music arguably seems to favour a distinction in application of the
admissibility test rather than in its formulation, and suggested that while criminal courts
have been very careful not to admit such evidence unless its probative value is so strong
that it should be received in the interests of justice and its admission will not operate
unfairly to the accused. In civil cases the courts have followed a similar line but have not
been so chary of admitting it.
Finally, OBrien is unlikely to be accepted as good law in Singapore.
o Lord Phillips at [11] departs from the balancing test in criminal cases on the basis that civil
cases seldom involve jury trials, where members are not as experienced as judges in
putting aside irrational prejudice. In Singapore, since the judge is the arbiter of both fact
and law, this position is more in line with argument for abolishing the exclusionary SFE rule
altogether.
o Secondly there is no basis for this discretion in Singapore, as local law has no equivalent of
the UK Civil Procedure Rules. Unless local courts extend the inherent discretion to exclude
admissible evidence in criminal cases as identified by Kadar to civil cases, a similar
approach has no basis.

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 6. CHARACTER EVIDENCE

A. In Criminal Proceedings

SFE in a form of character evidence involving specific evidence of previous acts adduced for the
purpose of proving issues of guilt and liability
Character evidence refers to general evidence of a persons character (such as his disposition or
reputation) that is adduced for the purpose of undermining ones credibility (he is not to be
believed)
o Now used primarily for the impeachment of a witness concerning character of the
accused and of the ordinary witnesses to discredit their testimony
o However the accused has a special position as a witness, and the law treats him differently
from other ordinary witnesses. In general, the rules relating to the admissibility of character
evidence concerning ordinary witnesses is more lenient than the rules relating to the
admissibility of character evidence concerning the accused. This is because:
Accused persons rarely have unblemished records. There is a higher likelihood of
them having a criminal record or a history of having a bad disposition. Therefore,
there is a higher risk of being subject to prejudice when they are cross-examined on
their behaviour as compared to an ordinary witness who testifies.
The accused persons guilt is in question at trial. The law must therefore protect
him against the enhanced risk that the character evidence adduced in respect of
him would run foul of the exclusionary similar fact evidence rule
o The law therefore provides the accused person with a shield that can only be lowered in
certain circumstances. This is because the law has to balance two concerns:
The accused must be protected because his guilt is on trial and there is a high risk
of prejudice when admitting SFE in respect to him;
The accused cannot be overprotected, as the court must be able to fairly
determine his guilt in relation to the charge. This fairness is compromised if the law
allows the accused carte blanche to adduce evidence of his good behaviour and
cast imputations on the Prosecution witness, or in a joint trial, to attack his co-
accuseds bad character

o CREDIT, CREDIBILITY & CHARACTER

At common law, the case of R v Rowton stands for the proposition that character refers to ones
general reputation
o This was a case where A was charged with indecent assault of a child and sought to adduce
evidence of his good character. It was held that the witness could testify as to the accuseds
general reputation of those who knew him, but could not state the accuseds prior acts of
good conduct, or his opinion on the accuseds disposition
o Same as the position adopted in SG, per the Explanation to s 57, it is provided that in s 54-
57, the word character includes both reputation and disposition; but, except as
provided in section 56, evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition are shown.
Credit refers to ones character and moral reliability, and involves antecedents, associates,
character, impartiality and consistency

34
 Credibility involves opportunities for a power of observation as a witness, his accuracy for
collection, and the capacity to explain what he remembers (Peter Kwang)
o Broader than credit attacking someones credit is just one way to challenge credibility,
you can always attack things like poor memory or bad eyesight
Significantly, the EA uses both terms interchangeably, as seen in s 148(a) and (c)

o GOOD CHARACTER EVIDENCE

S 55 in criminal proceedings, the fact that the person accused is of good character is relevant
o Good character involves a moral or ethical assessment, and is more compelling than the
accuseds background and work experience (Syed Ismail)
o Per the Explanation of s 57, evidence of good character (except under s 56) would include
evidence of general reputation and general disposition, but not of particular acts by
which ones reputation or disposition is shown
o Such evidence may be relevant to the accuseds credibility, and to rebut evidence of
guilt by reasoning that a person of good character is unlikely to have committed the
offence
Although arguably s 55 has limited utility, except perhaps with respect to
sentencing (as seen in Letticia Chan)
S 61(a) provides that one may establish either directly or by implication that his is generally, or in a
particular respect, a person of good disposition or reputation:
o (1) By asking questions of any witness, including Ps, with a view to establishing directly or
by implication that A is generally or in a particular respect a person of good disposition or
reputation;
o (2) By himself giving such evidence; or
o (3) By calling a witness to give such evidence
The phrase generally or in a particular respect, when read with the Explanation to s 57, suggests
that under s 56, the character of a person includes general as well as particular reputation and
disposition, which includes specific acts of conduct
Factors affecting the weight of such evidence:
o Reliability in Ng Chiew Kiat, little weight was placed on evidence from witnesses who
were not aware of how A interacted with the domestic maid whose modesty he was
charged with outraging
o Relevance & strength of inference in Elke Tsang, in the context of a charge for the
importation of drugs, the CoA held that the HC rightly limited the significance of evidence
that A was of good character and came from a good background as they found her to be
an intelligent person who is unlikely to be manipulated

o BAD CHARACTER EVIDENCE

Statutory shield
o S 122(4)(a) and (b) provide that A may not be asked, and if asked, is not bound to answer
questions which tend to reveal that he has committed or has been charged with, convicted
or acquitted of any offence other that that presently charged, or that he is generally or in a
particular respect a person of bad disposition or reputation
o There are six categories to which the shield applies. A may not be asked, and if asked, is
not bound to answer questions which tend to reveal that he:
Has committed another offence

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 Has been charged with another offence
Has been convicted of another offence
Has been acquitted of another offence
Is a person of bad disposition
Is a person of bad reputation
o However, art 122(4) does not apply if the evidence of the conduct has already been
given, whether by A himself or by P (per the UK Criminal Law Revision Committee 11th
Report upon which our Evidence Amendment Act 1976 is based)
Therefore in Tan Nguan Siah, where A sought to show in defence to a charge of
drug trafficking the extent of his own addiction, CoA permitted P to xx him on
matters rebutting that claim of addiction. S 122(4) was held to be inapplicable since
P was simply testing the evidence [A] himself had given in his own defence (at
[13])
Rationale
o See above
o Purpose of the rule is therefore to:
Ensure that A only raises evidence of good character when it is truly justified;
Ensures that the trier of fact is not misled, as the assertion of good character may
be untrue or may give a false impression of As character, and should be rebutted
lest the trier of fact believes and acts on it
Essentially A can be xxed on the good stuff, but not the bad stuff, unless its bad
stuff thats already been raised

Losing the shield

o S 56 and s 122(5) (8) provide the circumstances in which A will lose his s 122(4) protection
[1] S 56 A put his good character in issue
o S 56(2) provides that where anything in s 56(1) has been done, P or Co-A may call any
witness, xx any witness including A, or himself give evidence to establish that A is a person
of bad disposition or reputation
Only applies where A puts his character in issue, that is to say, he has given
evidence of his own good character. It is then possible for P to attack his
character (Tan Nguan Siah at [12])
Rationale is that allowing good character evidence means that the evidence should
also be open to being contradicted, as A should not be able to gain an unfair
advantage by creating a false impression of himself
o When does one put his good character in issue?
NOT when he denied having committed an offence (e.g. just adducing evidence of
his innocence), when he raised a defence incidentally raising his good character
(please Your Honour, I was reading to blind cats at the time of the offence), or
pointing fingers at other persons
At common law, an A who doesnt testify doesnt lower his shield, and the same
requirement isnt in s 56(2) (although tbh if he doesnt testify there is no need to
really impugn his credibility as a witness)
o What kind of evidence?
S 56(2) doesnt say, but its arguable that warnings, untried charges and acquittals
should not be admitted for the purpose of rebutting good character, because they

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 only represent a suspicion that A committed an offence, and do not, without more,
demonstrate bad character since As guilt has not been adjudged (Stirland v DPP)
[2] A volunteers bad character evidence
o See above, and Tan Nguan Siah
[3] S 122(5) SFE
o Under s 122(5), A may be xx in respect of SFE admissible under s 14 or 15, or under s 265
or 266 of the CPC
This is actually a method of adducing SFE provided the SFE is admissible under s
14 or 15 (PV>PE). E.g., P is entitled to ask did you not kill 2 girls last year or
something
o However, s 11(b) cannot be used to admit SFE for the purposes of xx
[4] S 122(6) Extended similar facts in joint proceedings
o Under s 122(6), A may xx another A who is jointly charged in the same proceedings on
co-As previous conduct, for the purposes of exonerating himself
i.e. It wasnt me, it was my friend and lemme tell you how hes a bad motherfucker
E.g. If X and Y are jointly charged in the same proceedings (X for burglary and Y for
rape), Y can seek to exonerate himself by raising evidence of Xs previous
conviction for rape which is so similar in circumstances to the facts of the present
charge that it would implicate X rather than Y
Pinsler thinks this only applies where both are charged for different offences, but
this isnt supported
Chinty says this section presupposes that the charges are drafted wrongly. Has
never been and probably never will be used.
[5] S 122(7) if A attacks the credibility of other witnesses
o Under s 150 read with s 151, no questions can be asked that bear no relevance to the
case except as an attack on the credit of the witness by injuring his character (including
A). However, s 157 provides means of impeachment via specified means
o Under s 122(7), A will lose his s 122(4) protection if:
(a) He asks any of Ps witnesses or his Co-A any question concerning the witness
conduct on any occasion or as to whether [he] has committed, or has been
charged with or convicted or acquitted of, any offence AND
(b) The court is of the opinion that the main purpose of the question is to raise an
issue of the witness credibility
o This enshrines a tit for tat principle governing the relationship between A and the other
witnesses testifying against him
o Element (a) Does it involve a question of conduct on any occasion of any offence
charged with, convicted, or acquitted of?
o Element (b) Is the court likely to find that the main purpose of the question is raising
issues of the witness credibility?
In Garmaz, the HC held that the sweeping references in the question were you
ever arrested by the CPIB and charged for any offence rendered it too broad to
simply refer to arrests or convictions arising from the particular offence involving A.
The main purpose of the question was held to be [raising] an issue as to [the
witness] credibility, and A therefore lost his protection under s 122(4) (at [67])

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 o So if accuseds accomplice turns against him, and becomes prosecution witness, there is
little the Defence can do. Either (1) attack him on facts, (2) attack credibility. But if you do
the latter, the accuseds shield lowers.
[6] S 122(8) Gave evidence against Co-A
o Under s 122(8), A loses his protection under s 122(4) if he gave evidence against any Co-A
jointly charged in the same proceedings, regardless of whether they face the same or
different charges
o Who does he lose his shield against?
Against the Co-A who is prejudiced by the evidence. The principle is that when A
gives evidence against his Co-A, he is effectively Ps witness vis--vis the Co-A,
and must therefore be subject to the same attacks on credibility
IMPT: Does P or other Co-A also benefit from the lowering of the shield?
Rationale-wise, it should be generally lowered, since As testimony against
that Co-A may also affect and undermine Ps case or the other Co-A;s case,
and they should be allowed to xx him too
o What constitutes evidence against a Co-A?
A attacking Co-A by supporting Ps case or undermining Co-As defence;
A gives testifies to a set of circumstances where Co-A is the only one who could
have committed the offence
E.g. in Tan Chuan Ten, where drugs were found in A1s flat, and A1s
defence was that A2 delivered the drugs for his consumption. A2s defence
was that his fingerprints were left on the newspaper the drugs were
wrapped in, but he didnt deliver the drugs, he only lent A1 the newspaper.
The court held that s 122(8) was operative by virtue of the fact that there
are implied contradictions between A1 and A2s cases.
This is why the provision is also known as the cut throat defence P
benefits from the accused persons infighting

B. In Civil Proceedings

S 54 provides that in civil cases, the fact that the character of any person concerned is such as to
render probable or improbable any conduct imputed to him is irrelevant, except in so far as such
character appears from facts otherwise relevant
o As per Rockline at [2], in civil cases, the law protects a person from adverse findings
against him only on the evidence that he was of bad character. Character in itself is an
irrelevant fact. A person may be in breach of a contract whether or not he was of good
character; and conversely, a person of bad character may suffer a civil wrong inflicted on
him by a person of good character
o While s 54 recognises that relevant evidence may sometimes leave impressions of
character that might influence the courts findings of fact, but such subsidiary
impressions are not grounds for rejecting otherwise relevant evidence
S 57 provides that evidence of character, including both reputation and disposition may be relevant
if it affects the damages to be awarded
o Best example is in a defamation suit, where ones character may be relevant to the issue of
damages with regards to the extent of harm to ones reputation

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 C. Character of Witnesses

Under s 150(1), when a question attacking the witness character is sought to be asked, the court shall
decide whether or not the witness shall be compelled to answer it, and if it does not think fit to
compel him to answer the question, will warn the witness that he is not obliged to answer it
o In exercising this discretion, the judge must consider the following factors stated in s 150(2):
(1) Questions are proper if they convey imputation that would seriously affect the
judges opinion as to Ws testimony;
(2) Questions are improper if they convey imputations that relate to remote matters or
only slightly affect the judges opinion;
(3) Questions are improper if a great disproportion exists between the witness
testimony & the imputation
Makes sense because there is no need for a witness whose evidence is
relatively unimportant to suffer the indignity and embarrassment of having his
character laid open for all to see unless it impinges directly on what he says
However, the credibility of the witness may be attacked on the following grounds, all of which are not
considered character evidence since the relevance does not depend on the inference that the witness is
a liar, and therefore do not attract the prohibitions of s 150(1)
o Contradiction by other evidence;
o Contradiction by prior inconsistent statements;
o Alleged bias on the part of the witness

o INDECENT & SCANDALOUS QUESTIONS

Per s 153 court can forbid questions or inquiries which it regards (discretion) as indecent or
scandalous, although such questions or inquiries may have some bearing on the questions before
the court, unless they relate to the facts in issue, or to matters necessary to be known in order to
determine whether or not the facts in issue exist
Per s 154 the court shall forbid any question which appears to it to be intended to insult or annoy,
or which through proper in itself, appears to the court needlessly offensive in form

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