similar fact evidence

Question 1

what is SFE?

Answer 1

Evidence that a party to the proceeding has behaved
on other occasions in the same way as he is alleged to have behaved in the case currently
being considered by the court

Question 2

two sets of facts in determining SFE

Answer 2

o (1) facts that are now in issue before the court
§ These are the facts upon which the court must make a decision

o (2) facts similar to the facts in issue before the court, but these facts themselves are
not in issue

Question 3

NDUNA V S on when SFE is admissible

Answer 3

• SUFFICIENTLY RELEVANT to some issue
• if its relevance does NOT ONLY go to CHARACTER

o Logically, the same conditions render the same results, but practically, difficult to convince court that the conditions on both occasions were sufficiently similar to meet the admissibility requirements.

Question 4

DELEW case on difficulty to admit SFE

Answer 4

o FACTS: Amusement Park owner wanted to show that he was overcharged for electricity. To do this, he presented evidence from previous accounts, which were much smaller.
o HELD: Court refused to consider the previous accounts because some other factor may have caused the variation, which was overlooked.

Question 5

HOLLINGTON V HEAD as another example of difficulty of admitting SFE

Answer 5

o FACTS: Plaintiff alleged he purchased item from Defendant, who gave him a warranty.
To prove this, he called witnesses who also purchased the same items from Defendant and received warranties.
o HELD: The fact that others were given a warranty does not, without more, mean that a warranty was given to the Plaintiff.

Question 6

LAUBSHER V NATIONAL FOODS as anither example of difficulty to admit SFE

Answer 6

o FACTS: Plaintiff sued Defendant for damages alleging that his pigs died due to contaminated food that he bought from the Defendant. During the trial, the Plaintiff wanted to present evidence of
other farmers whose pigs also ate the Defendant’s food and similarly died. The court excluded the evidence about the other farmers because it amounted to inadmissible similar fact evidence.
o HELD: Different situations were not similar enough: pig food not purchased at the same time, pigs did not fall ill in same period after eating food, circumstances on different farms were not similar

Question 7

Parties involved when considering SFE

Answer 7

Similar facts involve not only one of the parties (Plaintiff/Defendant; Applicant/Respondent) or (State/Accused), but may also involve a witness, like a complainant in criminal matters.
▪ (Often in sexual offence matters).

Question 8

Purpose of SFE

Answer 8

To show that the party to the litigation or witness behaved on some other occasion in the same way they are alleged to have behaved at the occurrence in contention

Question 9

Admissibility of SFE
and give reasons for this stance

Answer 9

its generally inadmissible because it is irrelevant

• The probative value of the evidence is usually outweighed by the prejudice that could result from the admission of the SFE
• May cause confusion and waste time, as well as contaminate the independent mind of the court.

Question 10

when and how can SFE be admitted?

Answer 10

o When the Similar Fact Evidence is BOTH logically and legally relevant, it may be admitted in criminal and civil matters

Question 11

S V MAVUSO
on admission of SFE

Answer 11

o Magistrate allowed cross-examination of Accused on past dagga trade convictions. Accused’s defence - although dagga was found in his possession, he never had anything to do with it, didn’t know how it smelled.
o HELD: SCA held that such evidence was inadmissible because there was insufficient similarity.
▪ Had the state presented details of the circumstances of the previous convictions and specifically established that the accused knew the smell of dagga, it may have passed the relevance test.
▪ The definition of trade in dagga was such that the accused didn’t need to have personally handled the dagga.

Question 12

Justifications for
exclusionary rule
of similar fact
evidence:

Answer 12

▪ Such evidence is mostly irrelevant.

▪ The prejudicial effect outweighs the probative value.

▪ It is premised on wrong inferential reasoning - inferences must be drawn from proven facts and be the only reasonable inference from the proven facts.

▪ Accused cannot be expected to defend charges brought by State AND to defend other misconduct or past conduct for which they were not charged.

▪ It may result in unfair procedure - accused may be surprised when confronted with their past conduct.

▪ Collateral issues may arise, which extend the length of the trial, making it more expensive and wasting judicial resources.

▪ May undermine proper administration of justice – relying on past offences is easier than proving guilt on a current alleged offence.

▪ It may offend the idea behind rehabilitation, where a rehabilitated person may start on a clean slate.

▪ SAPS may retreat to poor investigations and overly rely on suspect’s past criminal record - may also place undue pressure on accused and induce involuntary and/or unconstitutional confessions + admissions.

Question 13

Formulation of a rule

Answer 13

Navigating the many prejudicial factors associated with SFE make it diff to formulate a rule against SFE

Question 14

Zeffert & Paizes on formulation of rules related to SFE

Answer 14

o theres no precise formular or precision to include or exclude SFE

In essence, the judge has to decide whether it would be wise or silly to exclude similar fact
evidence that, to a greater or lesser extent, implicated the accused.

Question 15

The Makin rule

Answer 15

This rule, from a foreign jurisdiction (New South Wales [Australia]), can be advanced as follows:

(a) It is not competent for State to present evidence of previously committed crimes that is not part of the charge sheet for the mere purpose that the court conclude that the accused has a propensity (inclination or tendency) to commit the offence that he is charged with.

(b) That said, there may be circumstances where such evidence is admissible.

(c) It may be that such evidence of previous crimes beyond the charge sheet is relevant.

(d) Such evidence will be admissible if relevant to an issue before the court.
(i) It may be relevant to show the impugned conduct (what the current trial is about) was intentional rather than accidental; OR
(ii) it may be relevant to rebut any defence available for the accused to take.

Question 16

What does Makin rule do?

Answer 16

MAKIN TEST ALLOWS SIMILAR FACT EVIDENCE TO BE ADMITTED IF IT HAS SOME RELEVANT, PROBATIVE PURPOSE BUT WILL BE INADMISSIBLE IF IT ONLY SERVES TO SHOW PROPENSITY OF THE ACCUSED.

Question 17

Elaborate on the condition that conduct must be intentional rather than accidental through the Makin case

Answer 17

EVIDENCE OF PROPENSITY MAY BE ADMISSIBLE IF IT SHOWS INTENT (AS OPPOSED TO AN ACCIDENT)

o The MAKIN V ATTORNEY GENERAL FOR NEW SOUTH WALES
▪ Husband and wife are charged with the murder of a young child found buried in their garden. They fostered the child and received insufficient money for the child’s maintenance.
▪ The state accused and charged both with murder. Their defence was that the child died by accident, and they admitted to being guilty only of an irregular burial offence.
> The above facts are consistent with both the state’s version and the version of the accused.

> State then presented further evidence of similar facts: Skeletal remains of other babies were found buried in the garden of previous houses occupied by the accused, and 4 women said that they
had given their babies to the accused in exchange for inadequate maintenance money, and these babies had disappeared.
This evidence (or similar facts) was relevant to the impugned murder charge, as it assisted the state in proving that the death of the deceased child was not accident but intentional.
Evidence of similar facts was admitted.

Similar facts were not intended exclusively to show a propensity to commit crimes but to reveal the identity of the murderers (relevance goes to identity).

o NOTE: Could be said that evidence was relevant because it showed the probability of the defence rather than being relevant for revealing identity of murderers. Fact that so many babies in their foster
care ended up dead and buried in their yard makes their version of events improbable.

Question 18

elaboratate on the condition that EVIDENCE MAY REBUT ANY DEFENCE AVAILABLE TO THE ACCUSED

Answer 18

o S v MAVUSO
▪ Accused may say that he was unaware that dagga was indeed dagga and, as such, he had no intention to commit crime he is being accused of.
▪ To rebut this defence of a lack of knowledge, state may lay a factual basis regarding a previous conviction, where it may be established that he factually knew the smell and appearance of dagga.

Question 19

shortcomings of Makin rule

Answer 19

1) Makin says that if the similar facts relate exclusively to a propensity, then and in that event it cannot be admissible.

2) Makin Rule doesn’t explain several cases in which the propensity to commit a crime has been admitted → Evidence so admitted went exclusively to accused’s propensity to commit a specific crime.

Question 20

case illustrating shortcomings of Makin rule

Answer 20

R V STRAFFEN

o FACTS: Accused was charged with murder of young girl. Evidence was allowed regarding the murder of 2 other young girls. The following similarities/modus operandi/crime signature was presented:
1) All three girls were strangled.
2) Not one of the girls was sexually molested/raped.
3) There was no evidence of a struggle.
4) There were no attempts made to hide the bodies despite such concealment being readily open to the murderer.
> Here, the propensity of the accused is so highly relevant that it is admissible despite the potential prejudice.
▪ Straffen was charged with the murder in the other 2 matters, but he was unfit to stand trial owing to a cognitive disability.

▪ HELD: The evidence was relevant owing to the murderer’s identity.
- The only evidence the State had was that the accused was in the area where the murder was committed.
- Without the SFE, which goes directly to the propensity of the accused (signature + modus operandi), there would have been no prima facie case against the accused

Question 21

What is the difference between cases where SFE would be excluded, compared to cases like Straffen where it would be admissible.(what determines whether ir not relevant evidence is admissible?)

Answer 21

o The difference“degree of resemblance”

o BUT what the further question is then “What is the degree of similarity?”
o Although evidence of a propensity(natural tendency to behave in similar way), when it is highly unique, can point to the perpetrator’s identity;

o Makin rule: provides that evidence of propensity per se and without more is inadmissible BUT should have said that if the propensity is highly unusual, peculiar, and aberrant, it may be admissible.

o Zeffert + Paizes: Makin can work as formulation provided that a rider be added that, in some instances, ‘propensity’ in itself may be so highly relevant to a particular issue that it may be admissible.

Question 22

The Nexus
Requirement
Rule

Answer 22

o Nexus requirement: Because of shortcoming of Makin rule, courts use this instead when confronted with similar fact evidence

o In term of this rule, for Similar Fact Evidence to be admissible:
▪ There must be a nexus between the two sets of facts (the Similar Facts Evidence and the Impugned Conduct)
* They must somehow be connected and may not be connected merely because they resemble each other.

Question 23

How does the nexus need one to show that similar facts must be relevant?

Answer 23

▪ This will be when it can be shown that Similar Facts have probative value because they relate to credibility, identity, probabilities, etc.

o Similar Facts will only have probative value if they give rise to facts and/or a reasonable inference that can assist the court in adjudicating the dispute.

o The reference to a nexus or link should not be applied pedantically(strictly)

Question 24

case illustrating nexus requirement rule

Answer 24

THE DPP V BOARDMAN

o HELD: the following principle is very important: ‘Similar fact evidence is only admissible where the probative value exceeds its prejudicial(detrimental) effect ’.

o This formulation was accepted in S v D
o The court applauded the MAKIN rule but added the principle of a benefit (probative value) v prejudice.

Question 25

HOW TO MEASURE PROBATIVE VALUE: SIMILARITY

Answer 25

Entails that Probative value of the SFE will largely depend on the degree of similarity between the impugned conduct (what this trial is about) versus his/her conduct previously (the similar facts).
o The probative force of the evidence is derived from the circumstances. The facts testified to by the witnesses in proving an allegation (such as a crime) must be so similar and striking compared to
previous conduct that, when viewed through the lens of common sense and experience, the allegation must be true

Question 26

LAUBSCHER V NATIONAL FOODS on measuring proabtive value

Answer 26

o HELD: For similar facts to be admitted, the similarity of the impugned conduct compared to past conduct must be satisfactorily established.

o Striking similarity requirement, although important, should not be elevated to sophistry and technicality, said the CC in Savoi v NDPP

o All that is required is that the probative value outweighs the prejudice, which is a matter of degree and will depend on the facts of each case

Question 27

McEwan on coincidence

Answer 27

o McEwan says that since BOARDMAN, the mistake is often made that the evidence of previous misconduct must always have a striking similarity for there to be the perquisite probative value.
o Argues: It is preferable to be aware that accused may wish to explain similarity away based on a pure coincidence, in which case SFE will still be admissible even when there is no striking similarity.

Question 28

Nexus requirements
(R vBOND)

Answer 28

o The accused, a medical practitioner, used instruments upon a woman with the intent to procure an abortion.

o He was charged with causing an unlawful abortion, and his defence was that he used the instruments during a lawful examination and the abortion was an accident.

o Evidence of another woman was admitted to the effect that the same accused performed a similar medical procedure on her. Both women lived with the Accused and were pregnant by him.

o There was however no striking similarity in the operations performed between the women.

o Despite an absent ‘striking similarity’ the probative value lied in the fact that the evidence pointed to the implausibility of the ‘accidental defence’.

Question 29

BOARDMAN CASE as example of a coincidence

Answer 29

o The accused, a headmaster, was charged with 2 counts in 1 trial. Count 1 - ‘homosexual’ offences on one boy. Count 2 - inciting another pupil (boy aged 17) to commit ‘homosexual’ offences.
o Each boy testified only to his ‘own’ incident or encounter with the Accused, to the exclusion of the others.

o There were, however, common features that were deemed extraordinary by the court, such as the passive role played by the accused in the sexual encounters.
o Judge instructed jury that the evidence of the one boy was admissible in the case of the other despite no striking similarity in the two instances. Different incidents led to different criminal charges.
o Given that 2 boys would advance such extraordinary versions – likelihood that they would make up extraordinary allegations against the same accused is improbable.
o This spoke to the fact that the** two separate incidents could not be a mere ‘coincidence’.**
o The basis for the admissibility was that the one incident corroborated the other. The court relied on similarities, including the fact that Boardman would play the passive role.
o The court took judicial notice of the fact that adopting a passive role ‘was a very unusual form of homosexual behaviour’ [very questionable judicial notice].
o Also, take Makin: It is highly unlikely that three children would die by accident and be buried in the yard of the accused.

Question 30

COINCIDENCE IS CONSIDERED WITH THE NEXUS REQUIREMENT.

Answer 30

The nexus requirement (set out in Bond) may be present (found) where it shows an extreme unlikelihood of a coincidence.

R v Smith
o Accused was tried for the murder of his wife. She was found dead in the bathtub shortly after they went through a bigamous marriage ceremony, and he stood to gain from her death financially.
o The accused’s defence was that she had an epileptic fit and died as a result of the fit.
o At trial, further evidence was tendered about 2 women who subsequently underwent some form of marriage with Accused, and they both died under very similar circumstances.
o The accused stood to gain financially from their deaths too.
o** The probative value/force came in as the evidence was relevant to rebut the defence of the accused**, whose defence was that the death was owing to an epileptic fit.
o HELD: 3 deaths committed in practically the same fashion cannot be a coincidence.

Question 31

test for coincidence

Answer 31

• The question (proposed by McEwan) that must be asked: can the SFE be explained away as
  a coincidence?
  o If YES -> SFE is inadmissible (why? -> SFE has no relevant probative value)
• SFE is relevant and admissible only if the nexus goes beyond mere coincidence
• Therefore, the nexus lies in the extreme unlikelihood of coincidence
• In other words, the more unlikely it is that the facts are a coincidence, the more likely it is
  that the SFE is relevant

Question 32

importance of issues in dispute against SFE

Answer 32

o Court cannot consider the admissibility of similar fact evidence in a vacuum - must decide this against the facts in dispute on the one hand AND the other admissible evidence before the court.

Approach:
o If an accused is charged with fraud - buying goods on credit with the intention not to pay for the goods, evidence of the purchase and the non-payment only is not enough for a conviction.
o State must prove intent to commit fraud. To do this, the state will be entitled to rely on previous occasions where the accused did the same thing, purchased items on credit without paying for it.
o There is a habit on the part of the accused.
o If any given element of a crime is admitted, similar fact evidence cannot be introduced that goes to that element. To prove the accused was in Cape Town, similar fact evidence of another crime that
was committed in Cape Town on the same day may be admissible. If the accused admits that he was in Cape Town, the evidence of the other crime is irrelevant and not admissible.

Question 33

EXPLAIN AND APPLY THE DEPENDENCE OF THE RELEVANCE OF SIMILAR FACT EVIDENCE ON OTHER
AVAILABLE EVIDENCE

Answer 33

R v Ball [1911 AC]:
- Facts: brother and sister (they are the accused - A) were charged with incest. At this point in
time, incest was a secular crime (a crime in terms of church law). Until 1908, incest was not a
crime in the UK.
- Main prosecution evidence: (the following constitute ‘other evidence’)
o A (bro & sis) held themselves out as being married
o They were seen together at night in a house with only 1 furnished bedroom that
contained a double bed that showed showing signs of occupation by 2 people
o The brother was seen coming from the bedroom in a half-dressed state, while the
sister was in a nightdress
- This evidence (taken on its own) was equivocal. This means that the evidence could have,
but not necessarily, led to the inference that an illegal act had taken place
- Zeffert & Paizes: “brothers and sisters may occupy the same bed quite innocently”
- However, SFE was admitted by the court: (the following constitute SFE and prior conduct)
o 3 years prior (before incest was a secular crime) the accused had openly lived
together as husband and wife
o They shared a bed
o A baby was born in their household
o The brother and sister were registered as the parents of the baby
- Prior conduct had strong probative force given the other evidence (the circumstances in
which they were presently cohabiting). The other evidence explained the circumstances
under which the bro and sis were currently cohabiting.
- If the evidence had been that the bro and sis lived in same house but they occupied separate
bedrooms -> then the probative value of the SFE would have been greatly diminished

also look at S v D case

Question 34

Questions we can ask to evaluate evidence to see if similar fact evidence (SFE) should be admitted
or not :

Answer 34

1. Is the SFE relevant and therefore admissible?
   - First thing to look at: is there a striking similarity between the SFE and the facts in issue?
   - If YES -> there is striking similarity between the 2 sets of facts -> this was the language of the
   court in Boardman as adopted in S v D
   - If NO -> the 2 sets of facts are not sufficiently similar enough (with reference to Loubscher v National Foods -> this case will be your authority)
2. Does the probative value of the similar fact evidence outweigh its prejudicial effect?
   - Your authority here will be R v Boardmen as adopted in S v D
3. Can the 2 sets of facts be explained away as mere coincidence?

• Authority = R v Smith + You can also refer to McEwan or R v Bond in relation to the
  coincidence test
• Possible argument: you could argue that a sufficient nexus does not exist between the 2 sets of facts -> authority = R v Bond
• Other words for ‘nexus’:
  o Chain of cause and effect (has been broken)
  o In proximity of time, method, and circumstance (not a strong enough link)

How would we conclude?
-> depends which side of the argument you take
- We can say something along the lines of: “the evidence relating to …. (state the facts here)
does not bear on the question of whether [the fact -> e.g. the death] was designed or
accidental, nor does it rebut the accused’s defence”
- Authority = Makin v Attorney General for New South Wales