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NOTE: JUNAIDI BIN ABDULLAH v PP: PRINCIPLES OF SIMILAR FACT EVIDENCE

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Malayan Law Journal Articles/1994/Volume 3/JUNAIDI BIN ABDULLAH v PP: PRINCIPLES OF SIMILAR
FACT EVIDENCE
[1994] 3 MLJ ccxxii
Malayan Law Journal Articles
1994

JUNAIDI BIN ABDULLAH v PP: PRINCIPLES OF SIMILAR FACT


EVIDENCE
Norbani bte Mohamed Nazeri
Lecturer, Faculty of Law, University of Malaya
Similar fact evidence concerns circumstances in which an accused person's previous misconduct, other
than that which gives rise to the offence charged, is made admissible to prove guilt, by virtue of them being
similar to the offence. The similar fact evidence rule has long been accepted by judges to be applicable
under ss 11(b), 14 and 15 of the Evidence Act 1950 ('the Act'). For ease of understanding, these provisions
are reproduced below.

11)

Facts not otherwise relevant are relevant --

1.

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.

14)

Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of
any state of body or bodily feeling, are relevant when the existence of any such state of mind or body
or bodily feeling is in issue or relevant.

15)

When there is a question whether an act was accidental or intentional or done with a particular
knowledge or intention, the fact that the act formed part of a series of similar occurrences, in each of
which the person doing the act was concerned, is relevant.

Although these sections have been recognized as such, their application in the similar fact area have been a
major problem in Malaysia as well as in Singapore.1
Judges feel the need to refer and have long referred to English formulations of the rule, particularly the
formulation enunciated in Makin v A-G for New South Wales.2 Lord Hershell in Makin formulated what he
regarded to be the rule of admissibility:3
It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has 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 criminal conduct or character to
3 MLJ ccxxii at ccxxiii
have committed the offence for which he is being tried. [The first limb.] 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 defence which would otherwise be open to
the accused. [The second limb.]

This formulation will hereinafter be called the 'specific purpose' approach. It became the rule from the time it
was formulated, until 1975, when the House of Lords reformulated it in Boardman v DPP.4 Lord Wilberforce's

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formulation of the rule in Boardman requires a balance between probative force and prejudicial effect in
assessing the admissibility of similar fact evidence. In short, if the admission of the fact seems to victimize
the accused, then it should not be admitted as evidence. Lord Wilberforce in the case above, identified the
principle as follows:5
... the admission of similar fact evidence ... is exceptional and requires a strong degree of probative force. This
probative force is derived ... from the circumstance that the facts testified to by the several witnesses bear to each
other such a striking similarity that they must, when judged by experience and common sense, either all be true, or
have arisen from a cause common to the witnesses or from pure coincidence.

In the same case, Lord Salmond said:6


... if the crime charged is committed in a uniquely or strikingly similar manner to other crimes committed by the accused
the manner in which the other crimes were committed may be evidence upon which a jury could reasonably conclude
that the accused was guilty of the crime charged. The similarity would have to be so unique or striking that common
sense makes it inexplicable on the basis of coincidence.

The formulation will hereinafter be called the 'probative value' approach. The 'probative value' approach has
attracted the attention of Malaysian judges in their task of interpreting the similar fact evidence provisions,
particularly ss 14 and 15 of the Act. Indeed, as early as Raju v R,7 the courts had considered the 'probative
value' approach. The court felt that evidence should not be admissible just because it was technically
admissible. The High Court case of PP v Veeran Kutty & Anor8 also considered the 'probative value'
approach.
In September 1993, the Supreme Court considered the 'probative value' approach in Junaidi bin Abdullah v
PP.9 In this case, a police party went to the house occupied by the appellant following a tip-off by an
3 MLJ ccxxii at ccxxiv
informer. A figure jumped out of a window and ran out of the house. The police gave chase and as successful
in arresting the fleeing figure, who was identified as the appellant. From the right hand of the appellant, the
police recovered a revolver, loaded with five rounds of ammunition. The appellant, in this case was charged
for possession of a revolver under s 57(1)(a) of the Internal Security Act 1960 and was duly convicted at the
end of the trial. He subsequently appealed. The ground of appeal which was directly in issue in the case was
the admission of evidence of similar fact made by a witness for the prosecution (PW2) on the accused being
seen handling a firearm at night during the course of a robbery. It was submitted that this evidence was
prejudicial and, therefore, inadmissible because of bad character evidence.
The defence put up by the appellant was a complete denial. It was contended by the appellant that the said
firearm had always been in the possession of one Salleh, an armed robber operating in the company of the
appellant and two others. The defence had, at the early stages of the trial, put to the prosecution witness
(PW2) during cross-examination that that particular firearm was at all material times in the possession of
Salleh and that, therefore, the revolver could not have been in the appellant's possession at the time of
arrest. Unfortunately for the defence, the testimony of PW2 did not live up to the defence's expectation as
PW2 testified that he saw the appellant in possession of the firearm that night in the course of a robbery.
The Supreme Court held that since evidence of the armed robbery was a material fact in issue, for the
purpose of creating a doubt on the possession of firearm by the appellant, and since this line of defence had
been indicated by the defence during the cross-examination of the prosecution witness, evidence by PW2
was admissible to rebut the defence.
For the admissibility of evidence pertaining to the armed robbery, the Supreme Court referred to the
formulation enunciated in Makin.10 The court also referred to the decision of the High Court in GEL Ewin v
PP11 which had similarly divided the rule into two distinct parts.
The Supreme Court in deciding on the admissibility of the armed robbery also referred to the 'probative value'
approach formulated by Boardman's case, where Lord Morris said:12
But as Viscount Simon pointed out in Harris v DPP [1952] 1 All ER 1044 at p 1047 evidence of other occurrences which

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merely tend to deepen suspicion does not go to prove guilt, so evidence of 'similar facts' should be excluded unless
such evidence has a really material bearing on the issues to be decided. I think that it follows from this that, to be
admissible, evidence must be related to something more than isolated instances of the same kind of offence.

In Junaidi, after discussing both principles, Mohamed Azmi SCJ, delivering the judgment of the court, said: 13
3 MLJ ccxxii at ccxxv
On the principle laid down in Makin's case and Boardman's case, we are of the opinion that where the purpose of
adducing evidence of similar facts or similar offences is justifiable on the ground of relevancy and necessity to rebut
any defence which would otherwise be open to the accused (in addition to those under ss 14 and 15 of the Evidence
Act 1950), it is admissible in evidence provided the probative value of such evidence outweighs its prejudicial value.
There must be a real anticipated defence to be rebutted and not merely 'crediting the accused with a fancy defence' ...

Three issues need to be discussed here. The first issue relates to that part of Mohamed Azmi SCJ's
statement which reads:
... where the purpose of adducing evidence of similar facts or similar offences is justifiable on the ground of relevancy
and necessity to rebut any defence which would otherwise be open to the accused (in addition to those under ss 14
and 15 of the Evidence Act 1950), ...

From the aforesaid statement, it is obvious that the court had followed the formulation in Makin. The issue is
what does the phrase 'in addition to those under ss 14 and 15' mean? As similar fact evidence is mainly
applicable under ss 14 and 15, Makin's second proposition cannot be used without limitation as the
application of similar fact evidence is only allowed, under those sections, in proving a person's state of
mind. Rebutting a defence can also mean negating the actus reus. The court referred to the case of Ewin v
PP,14 which does not mention the particular section of the Act when applied to the similar fact formulation. If
rebutting a defence is directly relevant to show that the act was intentional and not accidental, then and then
only would the stated purpose apply to s 15.15
It is respectfully submitted that the time has come for the court to refer to the specific sections when applying
the principles of similar fact evidence, as the relevancy of facts is controlled by the Act. Section 5 reads that
evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and
of such other facts as are hereinafter declared to be relevant, and of no others. Section 4 reads that one fact
is said to be relevant to another when the one is connected with the other in any ways referred to in the
provisions of this Act relating to relevancy.
In the present case, evidence by the witness for the prosecution was used to negate the defence which
would otherwise be open to the accused. But the court mentioned that this piece of evidence applied under s
11 (presumably s 11(b), as his Lordship raised the issue of probability to admit the so-called similar fact
evidence regarding the accused's previous involvement in an armed robbery). 16 In other words, the fact
which negatives
3 MLJ ccxxii at ccxxvi
the actus reus is not provided for in ss 14 and 15 but in s 11(b). Therefore, in addition to ss 14 and 15, similar
fact can be adduced to negate actus reus under s 11(b).
The second issue relates to the court's decision that in addition to the situations under ss 14 and 15 of the
Act, similar fact evidence is only admissible if the probative value of such evidence outweighs the
prejudicial value. The question that arises is the application of the 'probative value' approach under the Act. P
Nair is of the view that in looking at the scheme of the Act, and the fact that it is based on the concept of
relevancy where relevancy determines admissibility, it will not be possible to say, that relevant evidence may
be inadmissible.17 Section 136(1) reads:
When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in
what manner the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the
fact, if proved, would be relevant, and not otherwise.

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The word used is 'shall' and this indicates a mandatory requirement. If the Act wishes to give the court
discretion, there should have been an express provision for it, such as the one in s 120(3) on the power of
the court in restricting cross-examination. From ss 5 and 136(1), therefore, it would appear that the court has
no discretion to reject relevant facts. This would also mean that the Boardman formulation cannot apply
under ss 14 and 15, as the court has no discretion to do so. How then was it applied in Junaidi? Nair
suggests that it can be done by applying the said formulation when determining whether a fact is relevant or
not. If the probative value is higher, then and then only will the fact become relevant and admissible. This
view is supported by s 136 of the Act which states clearly that the judge shall determine whether the
evidence is relevant or not. The judge, after all, can only make his decision after hearing submissions from
counsel on the prejudicial effect and the probative value of the said evidence. 18 Be that as it may, the court
should explain the possibility of applying the 'probative value' approach which is important for a fair trial.
Returning to the present case, the court's view may also be interpreted this way -- that apart from ss 14 and
15, s 11(b) can be used to negate defences and admit evidence provided the probative value of such
evidence outweighs its prejudicial value.
In Junaidi, the judge accepted the evidence of physical possession of the revolver during the robbery as vital
to the defence and relevant under s 11 of the Act to cast a reasonable doubt on the prosecution case that the
revolver was not in the appellant's possession at the time of arrest if such evidence was accepted as
probable. The court felt that since the evidence of the armed robbery formed a vital part of the defence in the
circumstances of the case, the probative value of such evidence would outweigh its
3 MLJ ccxxii at ccxxvii
prejudicial value as evidence of bad character. According to the judge, it is not right to exclude such evidence
as it would be against the interests of justice, and it virtually meant denying the accused the opportunity of
testing his defence in the cross-examination of prosecution witnesses. It would also deny the prosecution the
opportunity to rebut a defence which would otherwise be open to the accused in dealing with the above
issue. Apart from being probative, the court also insisted that there must be real anticipation of the defence to
be rebutted and not merely 'crediting the accused with a fanciful defence'. In the present case, the court was
not merely dealing with an anticipated defence. The defence put up by the accused was a complete denial of
possession of the revolver and this defence was indicated at the early stage of the trial. The court had no
problem of accepting this as evidence.
The third issue relates to the court's statement, 'On the principle laid down in Makin's case and Boardman's
case ...'. It would appear that not only is a 'specific purpose' needed to enable a fact to be brought as similar
fact evidence but the fact must also be probative. This is, as explained earlier, only possible under ss 14
and 15 if the court considers the probative value before making a decision on relevancy of the fact. It looks
as if the 'specific purpose' approach, which is wider, is also applicable under s 11(b), before the probative
value is considered under that section.
One question still remains to be answered. The relevant portion of s 15 reads: '... the fact that the act formed
part of a series of similar occurrences ...'. The word 'series' seems to lay some importance on the number of
occurrences. Illustration (a) to s 15, reads:
A is accused of burning down his house in order to obtain money for which it is insured. The facts that A lived in several
houses successively, each of which he insured, in each of which a fire occurred, and after each of which fire A received
payment from a different insurance office, are relevant as tending to show that the fire was not accidental. (Emphasis
added.)

There must be more than two occurrences (meaning one evidence and the present occurrence) to enable
facts to be admissible as similar fact evidence. Illustration (b)19 which mentions 'other entries' and
illustration (c) which
3 MLJ ccxxii at ccxxviii
mentions the fact that counterfeit dollars were delivered to C, D and E is relevant as showing that the delivery
to B was not accidental, also seem to suggest that there must be some occurrences. The 'probative value'
approach however does away with numbers; it does not matter if there are only two occurrences. For as long
as the probative value outweighs the prejudicial value, the fact in question is accepted as similar fact
evidence. If the illustrations are accepted, how will 'probative value' be applied? This can be done with some

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modification in reading the 'probative value' approach into s 15, that is, there must be more than one
occurrence and the fact in question must also be probative, to enable it to be admissible as evidence. If there
is less, then the admissibility of the fact will not be considered under s 15.
Although the English or common law principles may prove to be good law and are well accepted, they must
always be read in the light of the provisions under the Act. In PP v Yuvaraj,20 the Privy Council did opine that
in so far as any part of the law relating to evidence is expressly dealt with by the then Evidence Ordinance,
the courts in Malaysia must give effect to the relevant provisions of the Ordinance, whether or not they differ
from the common law rule of evidence which is applied by English courts.
In conclusion, courts in Malaysia should begin referring to the specific provisions in the Act when determining
the application of Makin and Boardman because there is a great need for clearer interpretation of the
relevant law.
1 Sections 11(b), 14 and 15 of the Singapore Evidence Act are in pari materia with the Malaysian provisions.
2 [1894] AC 57. See, for example, Raju & Ors v R [1953] MLJ 21, which adopted Makin's case and PP v Ong Kok Tan [1969] 1
MLJ 118, where the Federal Court held that the principles in Makin are embodied in s 15 of the then Evidence Ordinance.
3 [1894] AC 57 at p 65.
4 [1975] AC 421.
5 Ibid at p 444.
6 Ibid at p 462.
7 Supra n 2.
8 [1990] 3 MLJ 498.
9 [1993] 3 MLJ 217.
10 Supra n 2.
11 [1949] MLJ 279.
12 Supra n 4 at p 439.
13 Supra n 9 at pp 226-227.
14 Supra n 11.
15 In Jacob v PP [1948-49] MLJ Supp 20, Callow J was of the view that s 15 should be confined to a defence of accident,
mistake or other condition of mind.
16 Supra n 9.
17 P Nair, 'Similar Fact in the Supreme Court' [1991] JMCL 171.
18 Ibid.
19 Illustration (b) to s 15 reads:
A is employed to receive money from the debtors of B. It is A's duty to make entries in a book showing the
amounts received by him. He makes an entry showing that on a particular occasion he received less than he
really did receive. The question is whether this false entry was accidental or intentional. The facts that other
entries made by A in the same book are false, and that the false entry is in each case in favour of A are
relevant.

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In Mohd Syedol Ariffin v Yeoh Ooi Gark [1916] 1 MC 165, it was held that illustrations should in no case be rejected because
they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the
sections deal.
20 [1969] 2 MLJ 89.