CHARACTER EVIDENCE

Similar Facts Evidence

It is generally inadmissible. Similar facts evidence has been characterised as evidence of

Making v. ATG of South Wales

The accused pair was husband and wife. They were charged with the murder of a baby. The
baby’s body was found buried in their garden. It was proved that they agreed to adopt a baby
in return for payment of a small sum of money by his parents. In their defence, it was
contended that the child had died of natural causes and that their sole misdemeanour was to
have the child buried irregularly. The prosecution’s case was that the child had been killed
by the Makings pursuant to a scheme which they took charge of infants in return for
payments to be used for the infant’s upkeep. They would then kill the child in question and
keep the payment. There was no evidence directly linking the Makings to the murder but it
was common cause that there was a dead body. In support of its case, the prosecution was
allowed to link evidence that 12 bodies of other infants had been discovered in other places
previously occupied by the Makings. Several of these infants had been placed under their
care in return for payment of small sums of money. Upon being convicted the Makings
appealed and the question which the court had to determine was admissibility of evidence
relating to the discovery of other bodies and the fact that other children had been similarly
entrusted to the appellants. In pronouncing a statement of proposition of the law, Lord
Hershell put it this way, “It is undoubtedly not competent for the prosecution to adduce
evidence tending to show that the accused had been guilty of a criminal act other than that
covered by the inditement or charges for the purpose of leading to the conclusion that the
accused is a person likely from his criminal conduct to have committed the act in question
Similar facts evidence seeks to prove the current charge by introducing past dishonourable
contact. Here the risk of prejudice is too great.”

R v. Meyor 1953 (4) SA 26

In this case a question was put to a witness;

“Do you know the accused?”

“Yes!”

“From where and how?”

“From prison.”
The court immediately sought to disallow such evidence because of its prejudice.

There is an ever strong tendency to believe that the accused is guilty of a charge merely
because he is the likely person to do such acts and also the tendency to condemn the accused,
not because he has done what he is alleged to have done, but because he had escaped
unpunished on an earlier occasion. There are too many collateral issues in similar facts
evidence leading to loss of focus in court.

Hollingham v. Head 140 ALL ER 1135

The plaintiff had bought manure from the defendant and was claiming that the defendant had
given him a warranty as to the quality of the manure. The plaintiff then sought evidence from
other buyers that they had been given similar warranties by the defendant. The court held
that such evidence was insufficiently relevant.

However, similar facts evidence is admissible when relevant. Relevance is originally meant
that there must be striking similarities and that it will be an affront to common sense to ignore
them. This requirement later evolved that the probative value must outweigh its prejudicial
effect, such that it would be a gross miscarriage of justice not to admit it. Similarities include

 The substance of the offence

 The modus operandi

 The time

 The place

 The motive or objective

 The class of victims

Categories of Relevance

1. For the purpose of rebutting the defence of accident or coincidence

R v. Bond [1906] 2 KB 389

The accused person was convicted of using instruments with intent to commit
abortion on a girl who used to be his domestic worker. The court allowed evidence to
be admitted to the effect that the accused had performed a similar operation on
another girl 9 months earlier. Both were servants of the accused and had become
pregnant by him. The accused was a medical doctor. His argument was that he was
using the instruments to examine both girls for venereal diseases. The court
nonetheless allowed the evidence and proceeded to convict him on the basis of the
evidence. The court held that the similar facts evidence was highly relevant in that
 there were striking similarities that the same evidence should repeatedly occur to the
same person is unusual especially if it confers a benefit on him.

R v. Smith 1915 CAR 229

The accused was charged with the murder of one B, his wife. Prior evidence of the
death of 2 other women to whom the accused was married was held to have been
rightly admitted. In each of the cases, the deceased was found drowned in a bath tub
and in each case the door of the bathroom would not lock and also in each case the
accused had told medical practitioners that the women suffered from epileptic
seizures, a defence he also raised in court. Finally, in each of the cases the women
were insured. S was convicted but appealed. On appeal the court said “to lose one
wife under such circumstances is unfortunate, to lose a second one is carelessness,
but to lose a third is definitely murder.”

2. To rebut the evidence of innocent association or innocent explanation

R v. Ball [1911] AC 47

The co-accused was brother and sister. They were indited under the punishment of
incest act of 1908. They were accused of having sexual liaison within the period of
1910. Prior to 1908 incest was not a crime. Evidence was then given on behalf of the
prosecution to the effect that the times specified in the inditement the two lived
together in the same house. The house apparently had one furnished bedroom which
had a double bed which bore unmistakeable signs of having been occupied by two
persons. The prosecution then tendered evidence of prior sexual relations between the
two accused persons. Evidence was introduced that in November 1907, the male
accused had rented a house to which he brought the female accused and in that house
they had lived as husband and wife for more than a year. Further, that at the end of
March 1908, the she Ball gave birth to a child and upon registration she described
herself as the mother and the male Ball as the father. The Balls were convicted and
they appealed on the basis that similar facts evidence had been properly admitted.
The House of Lords held that evidence of prior sexual liaison between the two was
clearly admissible to show a sexual passion for each other and that the occasion
could not have been innocent

Thompson v. R 1918 AC 221 – Similar facts evidence can also be used to identify
people

S v. Banana 1998 (2) ZLR 533

The accused was charged with a number of sexual offences, committed mostly during
the time he held office as President of Zimbabwe. The allegations were all of sodomy
or indecent assault, committed in respect of males who were, in most instances, low
ranking officers in the uniformed services who were at State House in the course of
their duties, or other persons of relatively humble status. The question arose whether
the evidence on one count should be admissible as evidence of another. The defence
 also argued that sodomy as an offence has been abrogated by disuse; alternatively,
that the constitutional protection against discrimination on the grounds of sex has
altered the common law and decriminalised consensual sodomy.

Held, that similar fact evidence is not generally admissible if it merely shows that the
accused is the sort of person likely to commit the offence charged. However, it is
admissible as evidence in relation to another count in the same indictment if the
evidence shows that those alleged offences share with the offence which is the subject
of the charge common features of such an unusual nature and striking similarity that
it would be an affront to common sense to assert that the similarity is explicable on
the basis of coincidence. There were such features in the present case and the
evidence on one count could be used as evidence in relation to another.

Held, further, that for a law to be regarded as having been abrogated by disuse it
must be shown that there has been no observance of the law for a considerable time,
particularly where a usage contrary to the law is observed or must have existed.
There have in recent years in Zimbabwe been a number of prosecutions and
convictions involving consensual homosexual acts and it could not be said that the
crime of sodomy had been abrogated by disuse.

Held, further, that the real constitutional question was not whether sexual intimacy
between males should be allowed on the grounds that such intimacy between females
was not criminal. It was whether the Constitution created and conferred on anyone
the fundamental right to penetrate another male per anum. No such right was
created. If the framers of the Constitution had intended to alter the common law
position relating to consensual sodomy, one would have expected a provision such as
exists in the South African Constitution relating to discrimination on the grounds of
sexual orientation.

3. Similar facts evidence has also been used as part of the story (Res Gestae). It is an all
embracing description for several types of reported statements most of which are
received as exceptions to the hearsay rule. In the U.S they are referred to as the
Excited Utterances Rule. This principle postulates that certain facts are inextricably
linked or bound up in terms of time, place or circumstances so much that it is
impossible to understand that event which forms part of the subject matter or
investigations on its own. Put differently, the res gestae is concerned with
admissibility of statements which are made contemporaneously with the occurrence of
the acts or events which the court is inquiring into.

R v. Taylor 1961 (3) SA 616

The accused had been charged with culpable homicide, it being alleged that he had
assaulted his wife, given here certain wounds, bruises, injuries and hurts from the
effects of which she had died. Evidence was given by certain persons occupying
rooms nearby that occupied by teh accused and deceased that they had heard scuffles
and thuds during which the deceased had cried out, “John, please don’t hit me
anymore. You will kill me” or words to that effect. The defence had objected to
evidence of these remarks being given on the ground that it was hearsay. The defence
had called the superintendent of a mental institution who had examined the accused
as to his sanity. The doctor, in cross examination had stated that he had formed the
opinion that the accused had told him things unfavourable to himself. The defence
objected to the doctor detailing these facts as the answer might be a confession.

Held, that the evidence by the occupants of the room was receivable, as part of the
res gestae, in proof not only of the fact that those words were spoken, and of the state
of mind of the deceased, but also of the facts ascertained in the statement.

Held further, that the statement made to the superintendent was not a confession
within the meaning of section 244(1) of Act 56 of 1955 and was accordingly
admissible.

O’Leary v. The King 73 CLR 566

Accused and deceased were both employees at an isolated timber camp in Australia.
Together with fellow employees they took part in a drunken orgy. It commenced on
Saturday morning till Sunday morning. At about Saturday midnight the deceased
retreated to his cubicle a short distance from the accused’s own cubicle. Sunday
morning the deceased was found in his cubicle in a dying state badly injured. He had
been struck on the head about 8 or 9 times after which paraffin had been poured over
him and he was set alight. Nobody witnessed the events taking place so the question
of the identity of the accused became critical. The prosecution was allowed to lead
evidence that at various times during the orgy the accused had punched one, H on the
head and knocked him down and continued to punch him while he was still prostate
on the ground. He had also grabbed one, T by the throat and threatened “to do him”.
He had knocked out one, K and kicked him all over the body. He had also threatened
to assault and shoot 3 other people. All the events occurred prior to the incident
relating to the deceased’s injuries and subsequent death. Using this evidence the
accused was convicted of murder on the basis of the res gestae doctrine. The court
reasoned that right at the beginning of the orgy until the death of the deceased a
series of connected events of a violent nature took place and the basis of the
admissibility of the evidence.

Reception of similar facts evidence reached its high watermark in

DPP v. Boardman [1974] 3 ALL ER 887

The Applicant was a headmaster at a drama school in England that catered mostly
for foreign pupils, predominantly from the Middle East. He was charged with two
counts involving sodomy (substance of offence) with 16 and 17 year old boys (class of
victims), both pupils at his school. Each of the boys gave evidence to the effect that
their headmaster would come to their dormitory late at night (time). He would ask the
boy in question to accompany him to the school garden (place) were he would there
invite the boy in question to join him in acts of a homosexual nature (modus
operandi). The boy would play the active role while the headmaster took the role of
the woman. The judges ruled that each of the boys’ evidence was admissible as
corroborative evidence of the other boy’s story. The court noted that there was a
definite requirement for striking similarities, further noted that the discreditable acts
of the accused on previous occasions must be of a striking resemblance to the
discreditable facts.

Similar facts evidence is also admissible in civil proceedings more or less as in

Mood Music Publishing Co. v. De Wolf Pvt Ltd [1976] 1 ALL ER 763

The case involved an infringement of a musical copyright called ‘Girl in the Dark’
which was normally used for background music by TV programme producers, the
defendant had provided the work for use in a play and the plaintiff complained that
the work infringed their copyright, the defendant agreed that the two works were very
similar and that their own was composed after but argued that the similarity was
coincidental. Plaintiff was allowed to introduce evidence of 3 other recordings which
bore a striking resemblance to words in the copyright which had been reproduced by
the defendant without the consent of the copyright owners. In this case therefore
similar facts evidence was used to rebut the defence of coincidence. The court noted
that it would admit similar facts evidence in civil cases if it was logically probative in
determining a matter that is in dispute.

Hales v. Kerr [1908] 2 KB 601