Law Of Evidence Analysis Of Similar Fact Evidence Law Essay

Law Of say analytic thinking Of Similar Fact Evidence Law EssayThe honor of recite is a system to a lower place which concomitants are used to determine the rights and liabilities of the parties. Evidence strains the existence of events in tell apart or infers them from related accompaniments.One of the fundamental considerations of criminal cause law is the equilibrize of justice to the incriminate against wrongful convictions, ensuring a fair trial and fairness to the victim. Since stakes in criminal trials are planetaryly high, prosecution would have to get up the accuseds guilt beyond a reasonable doubt.Since similar particular leaven as evinced in s11(b), 14 and 15 of the Evidence good turn(EA) can be passing harmful to the accused, and yet play an important role in proving culpability, it should be re somaed to clarify its scope of application downstairs the EA and reflect the normal laws prejudicial tilt reconciliation test.2. Similar Fact EvidenceA. BackgroundSimilar fact severalize is non directly connected to the case scarce is admitted to fix the existence of facts in electric outlet due to its general similitude.The worry that the trier of facts would convict the accused found solely on certify of preliminary conduct has generally led to the inadmissibility of such certify in the trial as this is severely prejudicial. This concern is amplified in bench trials. Studies have suggested that opines were as influenced as laypersons when exposed to impermissible evince, such as prior convictions, even when they held that these causes were inadmissible.6This is despite strong confidence in the judges ability to remain immaterial to the inadmissible facts.7Hence, the accuseds late(prenominal) similar offence or behaviour is inadmissible as similar fact evidence based on pure propensity reasoning would colour the courts ability to assess the evidence objectively.8N maventheless, the mere prejudicial effect of such ev idence does not render it inadmissible. It may be highly relevant, especially when such evidence is used to determine whether the acts in question were deliberate or to re tho a defence that could have been available.9B. EAUnder s5 of the EA, a fact is only relevant if it waterfall within one of the relevancy victuals10stated in s6 to s10 of the EA. These provisions govern specifically the facts in issue, i.e. determinant facts that would decide whether the accused is guilty according to the substantive law governing that offence.In addition, s11(b) was enacted to be the residuary category for the relevancy provisions.In contrast, similar fact evidence is primarily administrated by s14 and s15 as it is interested with conduct that is merely similar in nature to those facts in issue13.s14 is applicable only when the state of mind of the accused is in issue. Similar fact evidence is admissible to prove mens rea or to rebut the defence of effectual faith.14s15 deals with similar fact evidence that forms a series of similar occurrences to prove the mens rea of the accused,15and enables the prosecution to produce evidence to rebut a potential defence otherwise open to the accused.16Admission of similar fact evidence under the EA is based on a variety approach17, where such evidence is admissible pursuant to the exceptions stated in the EA18. Hence, similar fact evidence should only be admissible to prove the mens rea of the accused under s14 and 15.19Significantly, Singapore, India, Malaysia and Sri Lanka have identical s11, 14 and 15 provisions in their respective Evidence enactments. With the exception of the Indian Evidence Act20, the three sections have not been amended since the 19th century.21C. Case Law exposition of Similar Fact Evidence in EASingapore courts have not strictly adhered to the draftmans intention in recent cases.22The court has unified common laws balancing test23where the judge would balance in the midst of the significant and prejudi cial effect of the similar fact evidence.24In Lee Kwang Peng v PP25, scope of similar fact evidence was extended to prove actus reus. Pursuant to s11(b), the court was of the view that the section embodied26the balancing test. Hence, similar fact evidence is admissible to prove both mens reas and actus reus.27Although readily admitting that this would be contrary to the draftsmans intention, then Chief Justice Yong held that the EA should be a facilitative statute rather than a mere computer code of Stephens statement of the law of evidence28.The courts, until Law Society of Singapore v bronze Guat Neo Phyllis29(Phyllis Tan), were generally of the opinion that they had the discretion to exclude evidence easily unfair to the accused.30D. Under the Criminal Procedure Code Act (2010)31(CPC)s266 of CPC, dealing specifically with stolen goods, allows previous convictions of the accused to be admitted to rebut his defence of good faith and/or prove mens rea. However, notice would have to be given to the accused before adducing such evidence32.E. In Comparison to general LawUnlike the EA, admissibility of criminal evidence at common law is exclusionary. As long as the evidence is logically significant, it is admissible unless it contravenes clear normal policy or other laws.33In Makin v A-G for NSW34, Lord Herschell formulated the two-limbed rule governing the admissibility of similar fact evidence. Under the first limb, the prosecution is not allowed to adduce similar fact evidence for pure propensity reasoning. However, under the second limb, evidence of the accuseds past conduct is admissible if relevant to the facts in issue via the categorization approach.35Boardman v PP36reformulated these rules by incorporating the balancing test. Under this test, the probatory force of the similar fact evidence must outweigh the prejudicial effect. Furthermore, such evidence should be strikingly similar, such that it would offend common sense if the evidence is exclude d.37However, the requirement of striking similarity was deemed to be too narrow in DPP v PP38. Instead, sufficient probative force could be gleaned from other circumstances39.Nonetheless, similar fact evidence used to prove identity must be sufficiently special to portray a signature or other special feature that would reasonably point to the accused as the perpetuator of the crime.40Hence, similar fact evidence is admissible to establish actus reus41.F. Defects of EASingapore courts have incorporated common law principles and extended the applicability of similar fact evidence to prove actus reus. This has resulted in inconsistencies between the draftsmans intention and the courts approach.Further, there are rough ambiguities that require clarification.First, there are difficulties superimposing the Boardmans balancing test into s11, 14 and 1542as the EA was drafted to suit the categorization approach. The court would have to admit evidence falling under both section even if it m ay not be very probative or is highly prejudicial. Hence, s14 and s15 address only the probative part of the balancing test and leave no room for prejudicial effect considerations.43As a result, judicial discretion to exclude very detrimental evidence was developed.44Second, although allowing similar fact evidence to prove actus reus would require the judge to evoke an additional step of inference45, limiting the use of this evidence to prove mens rea would allow extremely probative evidence to be excluded46.Third, admissibility rules under the EA do not distinguish situations where the accused adduced similar fact evidence unintentionally. An injurious consequence would result if the prosecution is entitled to use such evidence.47Fourth, under s 15, a single act, no matter how probative, is inadmissible.48However, this does not take into account the consideration that an act may be capable of supporting the argument based on the rarity of circumstances49.Fifth, the courts have admi tted similar fact evidence pursuant to s11(b) although it may not be pertinent to the facts in issue. Hence, EA should be amended to provide safeguards against such usage of s11(b).Lastly, in light of Phyllis Tan50, more protection against admissibility of similar fact evidence should be incorporated into the EA.3. Possible OptionsA. Survey of the other Jurisdiction(1) Australia Uniform Evidence Acts51(UEA)Under UEA, propensity evidence and similar fact evidence are governed by the tendency rule in s 97 and the coincidence rule in s98.(a) Tendency RuleEvidence pertaining to the character, reputation, conduct or a tendency that the accused possessed is inadmissible unless (a) notice is given to the accused and (b) the evidence has significant probative value. Although UEA does not state how probative the evidence has to be, probative value of the evidence is defined the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.52Operation of s97 would be invoked when the evidence is adduced for the purpose of proving the accuseds inherent tendency to act in a particular way.53(b) Coincidence RuleAs a general rule, evidence of related events which must be substantially and relevantly similar54 would be inadmissible unless notice is given and the court is convinced that it possesses significant probative value55.(c) Criminal ProceedingsA safeguard was inserted in relation to criminal proceedings under s101 where the probative value of either the tendency or coincidence evidence would have to substantially outweigh any prejudicial effect. However, the breaker point of probativeness need not56be of such a degree that only one conclusion, i.e. culpability of the accused, could be pull57. (No rationale explanation test)(d) AnalysisUEA clearly adopts the balancing test approach, where the probative effect of the evidence must substantially outweigh the prejudicial effect on the accused. Furthermore, the introduction of the notice system would reduce the prejudicial effect as the accused not be unduly surprised.However, as pointed out by the Australian Law Reform Commission, there is much ambiguity in what constitutes significantly probative and when the probative effect will substantially outweigh the prejudicial effect. Significantly, in Australia, the trier of fact and law are different.Heavy reliance on the judges discretions, added with the ambiguity and wide application of the balancing test, would increase the risk of prejudice in bench trials.(2) India Statutory AmendmentsSome amendments to s11, 14 and 15 of The Indian Evidence Act58, upon which the EA was modeled on59, had been made pursuant to a review in 2003.60However, the changes made were very minor.61(a) Section 11An explanation, inserted after s11(2)62, competent the type of evidence rendered relevant under s11 such that the degree of relevancy is dependent on the opinion of the Court63.(b) Section 14Clarifica tions to illustration (h) of s14 were made such that the similar fact evidence has to show that A either had constructive or actual experience of the public notice of the loss of the property.64(c) Section 15The changes merely show that the acts made, pursuant to s 15, must be done by the same person.65(d) AnalysisIt would appear that the amendments to the Indian Evidence Act do not have any substantial impact on the law. However, the amendment of s11 explicitly mentions that the degree of relevancy of facts is subjected to the opinions of the court, which suggests an approach more in line with the balancing test.(3) England and Wales Criminal Justice Act 200366(CJA)The admissibility of criminal evidence is presently governed entirely67by the CJA. reference II of CJA addresses the admissibility of bad character68evidence, which is defined as a persons disposition for a particular misconduct.Evidence of the defendants bad character can be adduced if it falls under one of the seven gateways under s 101(1)69. Significantly, under s 101 (1) (d), bad character evidence is admissible if it is relevant to an important issue between the defendant and the prosecution70. This includes the propensity to commit a particular type of offence which the accused is charged with or the propensity to lie71. Moreover, past convictions may be admissible to prove the defendants propensity to commit the crime he was charged with.72Regardless, s101 (3) allows the court to exclude evidence, falling under s 101(1)(d), upon the application of the defendant if the court views that admission of such evidence would infringe on the fairness of the proceedings.73The scope for the admissibility of bad character evidence has widened under the CJA.74In fact, evidence of bad character has changed from one of prima facie inadmissibility to that of prima facie admissibility75.Although, under s103, bad character evidence would be inadmissible if it does not heighten the culpability of the accuse d, suggesting that the evidence must have some probative force, it appears that the CJA has abandoned the balancing test.Hence, similar fact evidence in the form of bad character evidence would be inadmissible if it lacks probative value in the establishment of the defendants culpability. However, s101 (1), with the exception of s101(1)(e), merely requires the evidence to be probative, without the need to outweigh prejudicial effect.4. ProposalThe EA would require more than a mere amendment. Hence, the type of reform advocated under the Indian Evidence Act should not be adopted. However, a radical change from the categorization approach to the balancing approach, following UEA, would give the court too much discretion. This is worrying as judges may not be entirely indifferent to inadmissible facts when deciding the case.On the other hand, the approach under the CJA would be contrary to Phyllis Tan76and potentially allows highly prejudicial similar fact evidence to be admissible as long as the prosecution can show some probative value which points towards the guilt of the accused.Hence, a hybridised model should be adopted where the categorisation approach under s 14 and s 15 is kept, but admissibility of such evidence must be subjected to the balancing test.A. Amendments(1) Changes to the Headingss5 to s 16, under the general heading of Relevancy of facts, could be further sub-divided. First, s5 to s11 should be hardened under a sub-heading of Governing Facts in issues77. Second, s12 to s16 could be placed under Relevancy of other facts sub-heading.This sub-division of the relevancy provisions would clarify the functions of each section and discourage courts from admitting similar fact evidence which does not have a specific connection with the facts in issue via s 11(b).(2) Incorporating balancing testMost importantly, EA should be amended to include the balancing test with guidance drawn from the UEA, such that the probative value of the similar fact evide nce should substantially outweigh the prejudicial effect. However, the definition of substantially outweigh should be left undefined and allowed to develop under the common law. The courts could draw assistance from the Australian case law.(3) Proving IdentityA provision could be inserted to the EA allowing similar fact evidence to prove that the accused was responsible for the offence. In addition to the balancing test, the provision should also reflect the proposition that that such similar fact evidence must reward the threshold test of being strikingly similar to the offence, almost akin to a signature or special feature of the accused.However, it is submitted that the extension of similar fact evidence to prove actus reus should be limited to the situation where the identity of the perpetuator is in doubt.B. Clarifications(1) Similar fact evidence produced by the accused mistakenlyIt is proposed that such evidence should subjected to a higher standard of balancing test where the probative value substantially outweighs prejudicial effect.(2) Only prior convictions are allowedPrior acquittals should not be admissible as similar fact evidence as this would be unduly prejudicial to the accused. Furthermore, this could result in the undesirable situation whereby the accused is subjected to a second round of trials with regards to the prior charges.In relation to the type of prior convictions that should be allowed, the EA should incorporate the definitions found in s 103(2)78and s103(4)79of the CJA.(3) Clarification of s. 15s15 should be extended to include single act or conduct of the accused to rebut the defendants defence of accident. However, in light of a potential danger of placing too much importance on a single episode, a qualification, such as the no rationale reason80test, should be implemented along with the extension of s15.5. Additional SafeguardsA system of notice, as seen in UEA, should be included into the EA. This reduces the prejudicial eff ect as the evidence would not be a surprise. Furthermore, this approach would be in line with the CPC, which has already adopted such a procedural reform.6. ConclusionRegarded as one of the most difficult area of the law of evidence, similar fact evidence can serve as a double-edged sword. It has the potential to convict the accused although the facts do not relate to the facts in issue and is highly prejudicial to the defendant.In light of the rapid development of the rules governing the admissibility of similar fact evidence under the common law and the recent trend of common law countries codifying the test of admissibility into statutes, the EA should be reformed to reflect these developments, instead of relying on case law which can lead to inconsistency and uncertainty.Further, as information of a persons past is easily obtained with present technological advancements, safeguards against similar fact evidence should be incorporated so as to ensure a fair trial.