5194LAW Lecture 6: Case extracts SFE and propensity (1)
25 Jun 2018
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See this week’s Reading Guide for summary notes about additional cases.
In the case of Makin v. Attorney-General (NSW) [1894] AC 57, Lord
Herschell made a landmark statement of the rule (at p. 65):
It is undoubtedly not competent for the prosecution to adduce
evidence tending to shew that the accused has been guilty of criminal
acts other than
those covered by the indictment for the purpose of leading
to the conclusion that the accused is a person likely from his
criminal conduct or character to have committed the offence for
which he is being tried.
He continued:
On the other hand, the mere fact that the evidence adduced tends to
shew the commission of other crimes does not render it inadmissible
if it be relevant to an issue before the jury, and it may be so relevant
if it bears on the question whether the acts alleged to constitute the
crime were designed or accidental, or to rebut a defence which
would otherwise be open to the accused.
The first limb of Lord Herschell‟s statement contains the general rule, that
similar fact evidence is inadmissible in criminal matters. The second limb
creates an exception to the general rule.
A diversion from the main line of authority in this area is Hoch v. R. (1988) 165
CLR 292. In Hoch, there was evidence from three complainants that undoubtedly
passed the test of “striking similarity”. From the judgement of the majority, Mason
CJ, Wilson and Gaudron JJ at pp1-3 of the unreported version at HOCH v R -
BC8802626
Where the happening of the matters said to constitute similar facts is not in
dispute and there is evidence to connect the accused person with one or
more of the happenings, evidence of those similar facts may render it
objectively improbable that a person other than the accused committed the
act in question, that the relevant act was unintended, or that it occurred
innocently or fortuitously. The similar fact evidence is then admissible as
evidence relevant to that issue.
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Where, as here, an accused person disputes the happenings
which are said to bear a sufficient similarity to each other as to
make evidence on one happening admissible in proof of the
others, similar fact evidence bears a different complexion for
the issue is whether the acts which are said to be similar
occurred at all. In such a case the evidence has variously been
said to be relevant to negative innocent association (R v Sims
[1946] KB 531) or as corroboration (R v Kilbourne [1973] AC
729 at 749, 751 and 758) but the better view would seem to be
that it is relevant to prove the commission of the disputed acts:
see Boardman, per Lord Hailsham (at 452) and Lord Cross (at
458); Sutton, per Deane J (CLR at 556-7). Certainly that is the
thrust of its probative value. That value lies in the improbability
of the witnesses giving accounts of happenings having the
requisite degree of similarity unless the happenings occurred.
So much is clear from the well known passage in the speech of
Lord Wilberforce in Boardman (at 444):
This probative force is derived, if at all, from the circumstance
that the facts testified to by the several witnesses bear to each
other such a striking similarity that they must, when judged by
experience and common sense, either all be true, or have
arisen from a cause common to the witnesses or from pure
coincidence.
Similar fact evidence which does not raise a question of improbability
lacks the requisite probative value that renders it admissible. When the
happenings which are said to bear to each other the requisite degree of
similarity are themselves in issue, the central question is that of the
improbability of similar lies: see Sims, at 540; Boardman, at 439 and 459-
60: see also Rupert Cross, "R v Sims in England and the Commonwealth",
(1959) 75 Law Quarterly Review 333; Piragoff, Similar Fact Evidence
(1981), pp 38-47.
This appears not to have been appreciated in Johannsen v R (1977) 65 Cr
App R 101 and R v Scarrott [1978] QB 1016, but it is implicit in the
observation of Lord Wilberforce in Boardman (at 444) that "something
much more than mere similarity and absence of proved conspiracy is
needed if this evidence is to be allowed". His Lordship added: "This is well
illustrated by R v Kilbourne [1973] AC 729 where the judge excluded 'intra
group' evidence because of the possibility, as it appeared to him, of
collaboration between boys who knew each other well. This is, in my
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respectful opinion, the right course rather than to admit the evidence
unless a case of collaboration or concoction is made out."
His Lordship there posited that the possibility of concoction -- not a
probability or real chance of concoction -- served to render such evidence
inadmissible. Indeed we think that must be right. Similar fact evidence is
circumstantial evidence, as is implicit in what was said by Dixon J in
Martin (at 375) and as pointed out by Dawson J in Sutton (CLR at 563-4).
In Sutton (CLR at 564) Dawson J expressed the view, with which we
agree, that to determine the admissibility of similar fact evidence the trial
judge must apply the same test as a jury must apply in dealing with
circumstantial evidence, and ask whether there is a rational view of the
evidence that is inconsistent with the guilt of the accused.
In cases such as the present the similar fact evidence serves two
functions. Its first function is, as circumstantial evidence, to corroborate or
confirm the veracity of the evidence given by other complainants. Its
second function is to serve as circumstantial evidence of the happening of
the event or events in issue. In relation to both functions the evidence,
being circumstantial evidence, has probative value only if it bears no
reasonable explanation other than the happening of the events in issue. In
cases where there is a possibility of joint concoction there is another
rational view of the evidence. That rational view -- viz joint concoction -- is
inconsistent both with the guilt of the accused person and with the
improbability of the complainants having concocted similar lies. It thus
destroys the probative value of the evidence which is a condition
precedent to its admissibility.
Thus, in our view, the admissibility of similar fact evidence in cases such
as the present depends on that evidence having the quality that it is not
reasonably explicable on the basis of concoction. That is a matter to be
determined, as in all cases of circumstantial evidence, in the light of
common sense and experience. It is not a matter that necessarily involves
an examination on a voir dire. If the depositions of witnesses in committal
proceedings or the statements of witnesses indicate that the witnesses
had no relationship with each other prior to the making of the various
complaints, and that is unchallenged, then, assuming the requisite degree
of similarity, common sense and experience will indicate that the evidence
bears that probative force which renders it admissible. On the other hand,
if the depositions or the statements indicate that the complainants have a
sufficient relationship to each other and had opportunity and motive for
concoction then, as a matter of common sense and experience, the
evidence will lack the degree of probative value necessary to render it
admissible. Of course there may be cases where an examination on the
voir dire is necessary, but that will be for the purpose of ascertaining the
facts relevant to the circumstances of the witnesses to permit an
assessment of the probative value of the evidence by reference to the
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Document Summary
See this week"s reading guide for summary notes about additional cases. In the case of makin v. attorney-general (nsw) [1894] ac 57, lord. Herschell made a landmark statement of the rule (at p. 65): The first limb of lord herschell s statement contains the general rule, that similar fact evidence is inadmissible in criminal matters. The second limb creates an exception to the general rule. A diversion from the main line of authority in this area is hoch v. r. (1988) 165. In hoch, there was evidence from three complainants that undoubtedly passed the test of striking similarity . Cj, wilson and gaudron jj at pp1-3 of the unreported version at hoch v r - The similar fact evidence is then admissible as evidence relevant to that issue. In such a case the evidence has variously been said to be relevant to negative innocent association (r v sims. [1946] kb 531) or as corroboration (r v kilbourne [1973] ac.
