Similar Fact Evidence mugs.pdf

Similar Fact Evidence 1.

INTRO TO SFE

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Similar fact rule à The rule which excludes unduly prejudicial evidence of the accused’s (A’s) prior bad or discreditable act or conduct

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Therefore evidence is inadmissible if it goes towards proving A’s 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

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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”

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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)

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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 person’s 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

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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)

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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])

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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” 1

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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 A’s 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

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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])

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A clear example of this prejudicial effect is the case of R v Ball, where evidence was adduced that A had fathered his sister’s 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 one’s 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

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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

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Secondly, to establish A’s 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.

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Thirdly, the propensity reasoning does not take into account A’s 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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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

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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.”

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E.g. In Makin, it is objectively implausible that the Makins were so unlucky that their past houses were all filled with dead babies

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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?

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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 A’s 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 A’s knowledge, whether his act was intentional or accidental, and his state of mind

o MAKIN Makin v AG Facts

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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

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Makins denied ever taking in that child à claimed that they only received one child to nurse, and had already returned that child to its parents

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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

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Defence tried to argue that the evidence relating to the 12 other children ought to be excluded

/held/

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Privy Council held that the evidence was admissible

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Sets out the categorisation approach (Lord Herschell): o

[1] Prosecution cannot adduce evidence of A’s other criminal acts to show that 3

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

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To rebut a defence which would otherwise be open to the Accused

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Problem is that exactly how the evidence relating to the 12 other children is relevant was not clearly explained

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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

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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

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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

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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 A’s bad behaviour for the purpose of persuading the court, solely on the basis of that evidence, that he must have done it again à the ‘forbidden line of reasoning’

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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

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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 A’s propensity to commit the crime;

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The test does not inquire into the probative value of the SFE, which really just contradicts the rationale of even admitting such evidence;

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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 A’s defence will be

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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 à if someone is convicted of growing marijuana and his defence is that he didn’t 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 doesn’t 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 isn’t relied on at all. However, the prejudicial effect of such evidence is still present à portrays the Accused as a very shady character § The point isn’t that the evidence shouldn’t be admissible, its that just because there is no propensity reasoning doesn’t mean it shouldn’t attract judicial concern because there’s no prejudice • General test for SFE as per the judgments of Lords Cross & Wilberforce: o Evidence of A’s other discreditable conduct or character is inadmissible unless 5

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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 à the two don’t 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 •

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/held/

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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 à no striking similarities in the way both crimes were committed, and they weren’t committed in any particular fashion Wasn’t a case where identity of the criminal was an issue à 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 wasn’t that someone else assaulted his daughters, it was that no assault happened at all 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 wasn’t required although identity was in issue; o Or Boardman, where it was required although identity wasn’t in issue HHL seems to say just apply this if there’s no striking similarity, but then talk about why it makes no sense and really a relic of the old categorisation approach 6

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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’”

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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”

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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

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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

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Per Lord Mustill in DPP v P – treating independence as a threshold to admissibility loads unfairly against P and makes just prosecution impossible

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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 7

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Collusion isn’t 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

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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 finder’s 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

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institutionalised in Broadmoor. One day he escaped Broadmoor and was at large for a few hours before he was

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brought back to Broadmoor à 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;

/held/

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o o

Killed by manual strangulations; There was no evidence of any attempt of sexual interference or any apparent

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motive for the crime; No evidence of struggle

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No attempt made to conceal the body although it could easily be done

Evidence was admitted o

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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;

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Or to rebut a defence which would otherwise have been open to the Accused

However, the Accused in Straffen didn’t have a defence à his case was a flat denial Additionally, there was no real issue as to whether if he did kill, the killing was intentional or accidental – he didn’t say he killed her by accident, he said he didn’t kill her, period

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However, trial judge held that the second limb of Makin did apply o He considered the Accused’s denial that he was not the person who o

committed the murder as a defence 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

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admitted. The only real difference between Straffen and the ‘forbidden line of reasoning’ is that 8

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 o

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A had two powder puffs with him when he was arrested; and 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/

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The evidence was admissible

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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 à 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

RvH Facts

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The line of reasoning therefore still relies on propensity

Appellant was charged with sexual offences committed unpin his adopted daughter & stepdaughter à similarities in each complainant’s account as to the nature of the alleged assaults

/held/

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That the balancing test from Boardman allows admission of SFE on the assumption that the SFE is true o

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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 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

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M and another Df were charged with serious sexual offences against other members of the family à 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 &

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later commit such acts himself Evidence was SFE à matters described were not the subject of the charges against M, but the Prosecution contended that the evidence was necessary to understand the Complainant’s evidence and the background of the family o

o /held/

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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 At second trial of similar charges, Prosecution wanted to adduce the same SFE

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

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evidence of a past offence that the Accused isn’t charged with is not itself a ground for excluding evidence 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

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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.

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The difference in probative value in the example and the counter-example arguably differ only in degree of specificity, and not kind

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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.

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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

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If SFE can be admitted under s 14/15

§

o

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Can the balancing test still be superimposed on s 14/15?

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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;

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S 11(b); or

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The court’s inherent power to exclude prejudicial evidence

SFE admitted to prove actus reus of A: §

S 14/15 are inapplicable (Tan Meng Jee)

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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 A’s 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

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Therefore in the case of Teo Ai Nee, the HC refused to admit evidence of previous raids, and A’s 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 B’s 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

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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

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As the SGHC held in PP v Mas Swan, s 15 allows for the admission of SFE to prove A’s state of mind if: o

There is an issue of whether the act was accidental or done with a particular mens rea; and

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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)

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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 Sarkar’s Law of Evidence) à 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 Swan’s 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 A’s 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 12

§

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 client’s 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

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YES

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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 à 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 TYL’s 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 Swan’s 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 court’s 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 à the two don’t 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 Stephen’s 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 Peng’s 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 à 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 drafter’s intention o

[1] The plain meaning of the EA and the drafter’s 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 CJ’s argument in Lee Kwang Peng that Stephen’s 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.

o

§

Lee Kwang Peng

§

PP v Radhakrishna Gnanasegaran – decided by HC in 1999

§

Teo Ai Nee – decided by (?) in 1995

[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 hasn’t 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 accused’s person when he was arrested and a collection of pictures of naked young boys found in the accused’s 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 accused’s convention to previous charges of murdering two other girls who were around the victim’s 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 accused’s 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 accused’s 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 Swan’s 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 law’s 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 Mackay’s 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 A’s 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 sister’s 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 wasn’t deliberate, it doesn’t 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 doesn’t exist, and there’s 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 isn’t 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 finder’s 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 à 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 o

CoA treated the evidence as going to mens rea, and held that it was not admissible under s 14 or 15 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

o

evidence is admissible (at [50]) CoA’s 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 25

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 doesn’t seem to accept the same position as R v H regarding collaboration going to weight rather than to admissibility of evidence à 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 à 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 isn’t entitled to overrule Tan Jee Meng anyway) Facts • R & fiancé 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 Jee’s 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 Accused’s 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 à 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 R’s defence was that she entered SG to visit Muriel’s 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

o

On the facts, there is sufficiently similarities with the evidence of the previous deliveries à 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 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 R’s 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 COA’s 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 à 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

28

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 shouldn’t 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 à 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 isn’t 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 drafter’s 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 à 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 jury’s 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 accused’s contention that he had no motive to intimidate his neighbour à SFE wasn’t just used contextually, it actually went to the question of liability by negating a defence

o

Important because it’s a bypass – you don’t need to use the PE/PV rule, so there’s 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 Pf’s 20-year accident free record under s 15, as it constituted evidence of the Pf’s 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 Pf’s AEIC such as:

31

o

“One element of Thadani’s 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 O’Brien, the test for the admissibility of SFE in civil cases, as set out in Mood Music (see above)

•

Subsequently, in O’Brien, 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 one’s 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 accused’s 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 O’Brien 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, O’Brien 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. 33

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 person’s character (such as his disposition or reputation) that is adduced for the purpose of undermining one’s 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 person’s 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 coaccused’s bad character

o CREDIT, CREDIBILITY & CHARACTER •

At common law, the case of R v Rowton stands for the proposition that “character” refers to one’s 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 accused’s general reputation of those who knew him, but could not state the accused’s prior acts of good conduct, or his opinion on the accused’s disposition

o

Same as the position adopted in SG, per the Explanation to s 57, it is provided that in s 5457, 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 one’s 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 à attacking someone’s 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 accused’s 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 one’s reputation or disposition is shown

o

Such evidence may be relevant to the accused’s 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 P’s, 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 35

o

§

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

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 A’s 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 that’s already been raised

•

Losing the shield

•

[1] S 56 – A put his good character in issue

o o

S 56 and s 122(5) – (8) provide the circumstances in which A will lose his s 122(4) protection 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 doesn’t testify doesn’t lower his shield, and the same requirement isn’t in s 56(2) (although tbh if he doesn’t testify there is no need to really impugn his credibility as a witness)

o

What kind of evidence? §

S 56(2) doesn’t say, but its arguable that warnings, untried charges and acquittals should not be admitted for the purpose of rebutting good character, because they 36

only represent a suspicion that A committed an offence, and do not, without more, demonstrate bad character since A’s 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-A’s previous conduct, for the purposes of exonerating himself §

i.e. It wasn’t me, it was my friend and lemme tell you how he’s 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 X’s 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 isn’t 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 P’s 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 accused’s 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 accused’s 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 P’s witness vis-à-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 A’s testimony against that Co-A may also affect and undermine P’s 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 P’s case or undermining Co-A’s 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 A1’s flat, and A1’s defence was that A2 delivered the drugs for his consumption. A2’s defence was that his fingerprints were left on the newspaper the drugs were wrapped in, but he didn’t 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 A2’s 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 court’s 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 one’s character may be relevant to the issue of damages with regards to the extent of harm to one’s 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 judge’s opinion as to W’s testimony;

§

(2) Questions are improper if they convey imputations that relate to remote matters or only slightly affect the judge’s 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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