Similar Fact Evidence(SFE)
relevant to an issue before the jury; and it may
INTRODUCTION
SFE is evidence which renders the existence or non-
existence of fact in issue probably by reason of its general
resemblance thereto, and not by reason of its being
connected therewith.
R v Straffen
Two or more facts are similar if they have striking and
significant features
General Rule: Generally, such evidence is inadmissible,
because SFE usually had it prejudicial effect outweighs its
probative force.
If we were to admit it, it is like we are placing heavy
reliance on such similarity when determining whether a
particular person did in fact behave in particular manner
on a particular occasion.
It would be an injustice to the accused to adduce
evidence in similar previous incidents in order to prove
his guilt.
MALAYSIA POSITION
Notwithstanding the General Rule, our Evidence Act
have been interpreted as providing for the admissibility
of SFE under certain specific circumstances.
Malaysian courts have adopted the propositions laid
down in
Makin v AG
In this case, Lord Herschell laid down two propositions
with regard to the admissibility of SFE:
1. It is not permissible for the prosecution to adduce
evidence merely for the purpose of showing that
the accused is a person likely, from his criminal
conduct or character, to have committed the
offence which he is being tried; in other words,
propensity evidence is inadmissible.
2. However, the mere fact that the evidence
adduced tends to show the commission of other
crimes does not render it inadmissible if it is
be so relevant.
The rule in Makin was reformulated by the House of
Lords in
Boardman v Director of PP
It was held that similar fact evidence can only be
admitted if its probative value outweighs its prejudicial
effect.
This rule has also been adopted and applied in Malaysian
Case – PP v Veeran Kutty & Anor
SECTION 14
Facts showing the existence of any state of mind…are
relevant when the existence of any such state of mind..is
in issue or relevant.
THIS SECTION COMES INTO OPERATION ONLY WHEN THE
EXISTENCE OF A STATE OF MIND OR BODY IS IN ISSUE.
SFE is therefor admissible in proving mens read/ when
the accused seeks to rely on a defence of good faith.
Azahan bin Mohd Aminallah v PP
A court when deciding whether to admit similar fact
evidence must carry out a balancing exercise by weighing
the probative value of such evidence against its
prejudicial effect as impliedly required by s 14 and 15.
Facts: the appellant in this case was charged and
convicted of the rape of his daughter. At the trial,
evidence was adduced of previous acts of sexual
intercourse which had taken place between him and his
daughter.
Held: The appeal court have carefully examined the
record and nowhere in the judgement of the lower court
is there the kind of balancing exercise dictated by ss 14 &
15. This is a serious misdirection. It occasioned a serious
miscarriage of justice as the sessions court acted on SFE
to add three further charge on the accused.
To sum, this is a case riddled with serious errors because
of poor investigation and prosecution – appeal allowed,
conviction quashed and sentence set aside.
PP v Md Alim bin Samad
Whilst the prosecution may not adduce evidence to show
that the accused has been guilty of any criminal act other
than that covered by the charge, the mere fact that the
evidence adduced tends to show the commission of
another offence, does not render it inadmissible. It is
admissible if it is relevant to an issue before the court or
if it is an indication of a state of mind such as intention.
Teo Koon Seng v R
It is not open for the prosecution to call evidence to
anticipate a supposed defence which was never put up
and which is never likely to be put up.
Yong Sang v PP
Evidence of a previous offence to show not that an
accused has committed a particular offence with which
he is charged but that he is sort of person likely to have
committed it is inadmissible.
Facts: the appellant was convicted on a charge of having
documents received from a terrorist. This evidence was
deduced from the fact that on two or three occasions he
was seen in the company of terrorists.
H: The evidence in question here did not fall within any of
the recognized exception to the rule.
It is highly prejudicial evidence = conviction cannot stand.
SECTION 15
This section is concerned only with similar fact evidence
of mens rea that forms part of series of occurrences.
Narrower than s 14
Thus, it can be said evidence that is not similar fact
evidence or evidence that does not relate to a series of
similar occurrences is not admissible under section 15.
Maidin Pitchay v PP
Section 15 enables the prosecution to offer similar fact
evidence in advance to rebut a defence which would
otherwise be open to the accused, and that such evidence
is admissible even though it may tend to show the
commission of other crime.
Junaidi bin Abdullah v PP
The purpose of adducing evidence of similar facts or
similar offences is justifiable on grounds of relevancy and
necessity to rebut any defence which would otherwise be
open to an accused, PROVIDED the probative value of
such evidence outweighs its prejudicial value. There must
be a real anticipated defence to be rebutted and not
merely crediting the accused with fancy defence.
Wong Yew Ming v PP
SFE is admissible not because it tends to show that a
person committing one offence is likely to commit
another but to show knowledge or intention of an
accused and that the commission of the offence is not
accidental.
F: in the context of the Act PW’s 8 evidence is in our view
clearly admissible. The prosecution wanted to show that
on previous occasions the applicant had sold drugs and
therefore had been trafficking drugs. In our law when the
statutory amount of drug is proved to be in the
possession of any person the presumption is invoked and
the person shall be presumed until the contrary is proved,
‘to be trafficking’ the said drug. Under the Act possession
of the statutory amount of drug is trafficking. The
evidence is relevant to show knowledge and that the
possession of the drug by the applicant was not
accidental.
Jacob v PP
Evidence submitted in accordance with the accordance
with the provisions of s 15 should be confined to the
rebuttal of a defence of accident, mistake or other
innocent condition of mind.
SECTION 11(b)
Re Teoh Beng Hock
Section 11(b) and 15 permit similar fact evidence to be
considered where such evidence has a material bearing
on the issues to be decided.
Facts: regarding the magistrates’ ruling to call S I20 as a
witness, the magistrates’ cited ss 11(b), 14 and 15 of the
EA on SFE.
His basis is that ‘it happened at the same location in
SPRM Selangor and might involve the same persons who
are witness
OVERALL

R v Raju & Ors

Section 11, 14 & 15 permit similar fact evidence to be

admitted for the purpose of inter alia, negativing
accident, proving identity, proving intention,and
rebutting a defence. When evidence of this kind is
tendered, the prosecution should tender it for a specific
purpose; if it is admitted, it should be made quite clear
for what purpose.

Junaidi bin Abdullah v PP

Evidence of a different offence which forms a vital part of

a defence is allowed as the probative value of such
evidence outweighs its prejudicial value as evidence of
bad character. To exclude such evidence would deny an
accused the opportunity of testing his defence and the
prosecution the opportunity to rebut a defence which
would otherwise be open to an accused.

F: The evidence of physical possession of the revolver

during the robbery was vital to the defence – to exclude
such evidence in trial would be against the interest of
justice.

Lee Kwang Peng v PP

Similar fact evidence which does not fall within sections

14 & 15 is admissible by virtue of section 11(b)