Similar facts evidence (law of evidence Tanzania).

SIMILAR FACTS EVIDENCE

Provided for in S.16 and 17 of the Evidence act.

S: 16: Facts showing the existence of state of mind, or of body or of bodily feeling

S. 17: Facts bearing on the question whether an act was accidental or intentional

This refers to evidence of either previous or subsequent acts similar to fact in issue or a relevant fact. 

Similar fact evidence is only admissible where it is sought to prove that an act forms part of a series of similar occurrences. A question must be raised whether an act by the accused person was intentional or accidental or was done on particular knowledge or intention. Similar fact evidence is admissible to rebut the defence of an accident, mistake or another innocent state of mind

Such evidence may be used to prove an offence where it can be shown to form part of a series of occurrences where the accused was concerned. The accused is however protected by law from being victimized being known to commit similar offences. Evidence of previous similar facts has high degree of being prejudiced. In certain circumstances, it is fair for such evidence to be inadmissible

Makin and Makin vs. The Attorney General of South Wales 1894 AC 57

The body of a baby was discovered in the backyard of the house of the accused persons, who were a married couple. Evidence showed that they had adopted a baby. Evidence showed that the bodies of other babies, similarly adopted by the defendants were found buried in other locations where they had lived.

The evidence of the previously buried babies was found to be admissible and they were convicted

On appeal, it was held that the evidence of the similar previous occurrences was properly admitted as evidence relevant to the fact in issue

Lord Chancellor Herschell: 

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused had been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his/her criminal conduct to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental or to rebut a defense which would otherwise be open to the accused person”.

Summary

(i) As a general rule, you do not convict a person simply on the basis that he would likely have committed an offence because of his previous character.

(ii) Evidence of previous character may be relevant if the accused raises defence that the fact in issue was an accident, or any other defence open to the accused.

Harris Vs. The Director of Public Prosecutions (1952) AC Page 694

Harris was charged with series of 8 larcenies, which occurred between May and July 1951. These thefts occurred in an enclosed market and at the time the theft occurred, the gates would be shut and the defendant would be on duty alone. When the last incident occurred, the defendant was found to have been in the immediate vicinity of the office broken into. He was charged with the all the 8 larcenies, acquitted of the first seven and convicted on the 8th one.

It was held that the prosecution may adduce all proper evidence which tends to prove the charge without withholding any evidence until the accused person has set out specific defence which calls for rebuttal. In other words, the prosecution in a given case need not await to know the direction the case will take in order to adduce similar facts evidence.

 A court of aw should look for that striking similarity between fact in issue and the previous criminal records alleged against the accused before deciding whether or not to admit the evidence.

Striking Similarity

(a) DPP vs. Boardman 1975 AC 421 

The appellant was a school headmaster charged with the offence of buggery (sodomy). It was alleged that he committed this with a student (S) aged 16.  He was also accused of inviting H to commit the same offence with him. The defence he raised was that both H and S were lying and this never took place. 

The Court admitted the evidence of H on the count involving S and vice-versa, arguing that in each case, the homosexual conduct alleged by both boys against the headmaster was of the most unusual kind. This is because it involved a request by the headmaster, a middle aged man, to an adolescent young boy, to play the active role in the act. Furthermore, both S and H were woken up by the headmaster at about midnight, and the headmaster used similar words to induce their participation in the act. His appeal 

(b) R vs. Scarrot 1978  1 (AE) 672

The defendant was charged on an indictment containing 13 counts, some of buggery, others of assault with intention to commit buggery, involving 8 boys aged about 41/2 years. Counsel for the defence applied to the court to split up the 13 counts into separate charges, claiming that the defendant would be prejudiced if tried on multiple indictments

The trial court held that evidence given by each youngster had a striking similarity to the evidence by the other boys and was admissible in the other cases.  The defendant was convicted on one count of buggery, one of attempted buggery, and indecent assault on at least 7 boys, whereby he appealed. 

It was held on appeal that: 

 To be admissible, the evidence by its striking similarity, has to reveal an underlying link between the matter with which it deals and the allegations against the defendant on the count under consideration.

 The evidence admitted by the trial court does possess that positive probative value and was strikingly similar, such that when taken together, these similarities are inexplicable on the basis of coincidence

(c) R vs. Barrington (1981) 1 AE 1132

The accused was charged with indecently assaulting three girls in the house of a woman with whom he was living, and who was alleged to have assisted in procuring the girls for him, and in some instances to have participated in the offences. The evidence revealed six distinctive features: The girls were all lured to the house as baby sitters; they were told that the woman with whom the accused lived was a professional photographer; they were told that they could win cash prizes for posing nude photos; they were shown pornographic photos; the accused described himself as a well known script writer and a friend of the stars; and similar efforts were made to persuade the girls to pose for nude photos. 

The prosecution was permitted to call three other girls to give evidence that they had visited the house in the same circumstances and had been treated in the same manner as the complainants, except that no indecent assult had actually been committed against them.

During cross-examination, the accused suggested to one of the girls that the girls had concocted the evidence. 

The accused was convicted and he appealed arguing that the evidence of three other girls should not have been admitted since none of them gave any act of indecency but circumstances leading to the commission of the offences.

The court of appeal, in upholding the conviction, held that:

 The evidence of the three other girls was admissible because the principle issue was whether A had lured all the girls to his house for sexual purposes.

 Furthermore, the various facts recited in the judgement of the case as constituting similar facts were so similar to the facts of the surrounding circumstances in the  evidence of the complainants that they can properly be described as striking. The fact that they didn’t include the commission of the offence does not mean that they are not logically probative in determining the guilt of the accused

Recap on uses of SFE: 

1. To prove an offence where it can be shown to form part of a series of occurrences where the accused was concerned

2. To rebut the defence of an accident, mistake or another innocent state of mind 

DEFENCES

(i) Absence of connection between the accused and the offence 

R vs. Smith (1914 –

1915) ALL ER 262

Mrs. Smith was found drowned in the bathtub. There was no evidence to tell of how she found her way into it and drowned. Evidence available was that a few months prior to her death, Mr. Smith had taken out life insurance for her and named himself beneficiary. Mr. Smith has also informed a medical practitioner that Mrs. Smith suffered from epileptic fits. Prior evidence showed that Mr. Smith had married twice, taken out insurance in favour of the wives and named himself the beneficiary, informed a medical practitioner that the wife suffered from epileptic fits, after which the wives were found dead in the bathtub. He was convicted and he appealed, arguing that there was nothing to connect him to the murder of Mrs. Smith apart from previous acts which were similar.

The court of appeal held that the test of the relevance of similar facts evidence in cases like this, is whether or not the extraneous (unrelated) acts are so strikingly similar to the offence charged in terms of method of commission or surrounding circumstances, that they identify the instant offence (one in question) as the hallmark of the particular accused, or undermine a defence such as accident or innocent association. The court was therefore of the opinion that the devastating degree of similarity in this case was relevant to the circumstances of the offence charged.

(ii) Absence of intention

If it can be demonstrated that a defendant has been involved in a series of similar acts, intention can be inferred.

Achieng’ Vs. R 1972 EA Page 37

Achieng’, a public servant, obtained some money from the office, used it for her own purposes and failed to account for it. She was charged with theft by servant. In her defence, she maintained that she intended to account for it in the future and did not intend to steal. Previous evidence showed that she had done the same thing on six previous occasions.

It was held that the evidence of the previous acts was admissible in the instant case.

Mohammed Saeed Gkraba Vs. R 1956 Vol. 23 EACA Page 51

Mohammed, a school head, was charged with the use of criminal force with intent to outrage the modesty of two young school boys. In his defence, he maintained that it was not intentional, but happened in the course of duty. The prosecution adduced evidence to the effect that he had previously committed similar acts of trying to touch boys’ private parts. He was convicted and appealed. The Court of Appeal held that evidence of similar acts was admissible to rebut the defence of accident or mistake.

R Vs. Bond 1906 Vol.2 K.B 389

Bond was a doctor charged with using medical instruments with the intent to procure abortion upon Miss A. He defended himself to the effect that  he did not intend to do so, but that rather, the abortion occurred in the course of examination.

The prosecution called another lady, Dr. Bond’s Ex-girlfriend, who testified that he had used the same instruments against her with intent to procure an abortion. She further testified that he had told her that he had done it so many times before and that it made girls happy.

The evidence of the previous similar acts was held to be admissible show that he had used the instruments with intent to procure an abortion.

OTHER USES OF S.F.E

3. To identify an accused person. (1952) 2 ALL ER 657

R Vs. Straffen

The accused was charged with the murder of a young woman. The victim was found strangled and naked by the roadside, with no evidence of sexual molestation. Furthermore, the accused had been seen in the vicinity of the locus of the offence/crime. Evidence showed that the accused had previously caused the death of 3 other girls by strangulation and dumped their naked bodies by the roadside without having sexually molesting them.

It was held that evidence of previous similar offences by the accused was admissible to prove that the accused had committed the offence charged because he was shown to be a person with a certain distinct propensity towards the commission of the offence. The court was further of the opinion that one cannot distinguish abnormal propensity from identification, and  that abnormal propensity is a means of identification.

Paul Ekai Vs. R 1951 – 82 K.A.R  1

The accused was charged with the murder. His alibi was that on the night of the murder, he was with a relative far away. Evidence showed that on the night of the murder, one of the 3 large tin boxes, which the deceased kept in her house, had been broken into using a crow bar from the camp workshop and money had been stolen. Evidence further demonstrated that the intruder had escaped through the animal enclosure.

The prosecution also adduced evidence to the effect that a few months prior to the murder, another burglary had occurred, whereby a truck was broken into using a crow bar from the workshop, and the culprit escaped through the animal enclosure.

On apprehension, the accused was found in possession of some of the goods stolen from on the 1st burglary, which he could not explain. 

It was held that given his particular mode of operation, the inference was irresistible that he was involved in both incidents and therefore the Murder.

3. S.12 Things said or done by conspirator in reference to common design

A conspiracy is an agreement between two or more people to commit an unlawful act, or to do a lawful act by an unlawful means. 

When two or more people are suspected of conspiracy, anything said, done or written by one of the conspirators, in reference to the common intention, are admissible against the co-conspirator himself and the other conspirators. This means that each conspirator is regarded as an agent of the other.

The section strictly requires the presence of a reasonable ground to believe that the two or more people have conspired to commit an offence. This means that there should exist prima facie evidence to support the existence of the conspiracy. E.g. Where an accused person, and the person who shot dead the deceased were seen talking in isolation before the shooting and avoided questions as to what they were talking about was held to be sufficient to create a reason to believe that they might have been conspiring about something. Only a reasonable ground of suspicion is requires because as stated in R vs. Golkadas Kanji Karia16 EACA 116, “it is rare for the conspirators to meet together and execute a deed setting out the details of their unlawful purpose. It is common place to say that an agreement to conspire may be deduced from any acts which raise the presumption of common plan.” 

Even after the termination of the conspiracy, anything written, said or done will still be relevant to prove the conspiracy. Furthermore, a person who joins a conspiracy will be responsible for all acts, whether done before or after his participation. See Stanley Msinga & another v. R (1951) 8 EACA 211

4. S. 13 When facts not otherwise Relevant are relevant

Under S. 13, any fact which either disproves of or contradicts a fact in issue or a relevant fact is relevant. Similarly, any fact which renders the existence of a fact in issue or a relevant fact highly probable or improbable is relevant.

Illustration:

The question is whether Jacob assaulted Janet in Iringa on the 28th of July. The fact that on that date Jacob was admitted in hospital in Dar is relevant to show that it is highly improbable that he committed the offence. 

5. S. 14: Facts tending to enable the court determine damages

All facts which will assist the court in determining the amount of damages that it should award are admissible in evidence under this section.  E.g. contributory negligence in a tort case would mitigate the amount of damages due. Equally, in a contract case, any fact that would show the amount of the loss suffered by the plaintiff due to the breach of contract between her and the defendant would be relevant. 

6. S. 15 Facts affecting the existence of a right or custom

Where the existence of any right or custom is in question, the following facts are relevant:

(a) any transaction by which the right or custom was created, claimed, modified, recognized, asserted or denied

(b) any fact inconsistent with the existence of the right or custom

(c) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from

 A custom may be defined as a practice that by its common adoption and long unvarying usage has come to have the force of law. In order for a custom to be recognized under this section, it must be ancient, continuous and uniform, reasonable, certain, peaceable, and not immoral. This may be proved by oral evidence of a person likely to know of its existence or having special knowledge (see S. 50 of the TEA)

 A right may be defined as a power, privilege or immunity secured to a person by law. 

S. 15 is divided into two parts:

(i) the first part deals with transactions

a transaction means some business or dealing, which is carried on or transacted between two or more persons. 

Illustration: if A claims that a particular piece of land is hers, a sale deed expressing that the property had been sold to B is relevant. 

(ii) the second part deals with instances (case in point, particular occasion)

For instance, a judgment of the court in which a certain custom was held to be invalid.

7. S. 18 Relevancy of existence of course of business

When there is a question whether a particular act was done, the existence of any course of business, according to which it would naturally have been done, is a relevant fact

Illustration: The question is whether a particular letter was posted from destination A. The facts hat it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that the particular letter was put there, are relevant.

Course of business: this means the ordinary course of trade/business, and covers both private and public offices.