Similar Facts Evidence

Similar Facts in Evidence: When any matter is submitted for judicial determination, the party on whom the burden of proof lies is expected to lead evidence to establish his case. He is not, as a general rule, expected to prove his case in reference to or reliance on, facts which are similar to those presently in issue which occurred before, in the same period with, or succeeding after the facts in issue.

The facts which occurred on other occasion other than those which occurred on the occasion under investigation or inquiry by the court are excluded even if there exist striking similarities between the two sets of fact.

Table of content

  1. Introduction
  2. Similar fact evidence case law
  3. Similar fact evidence in civil cases
  4. Similar facts evidence in criminal cases
  5. Exceptions to The Rule
  6. Judicial Discretion to Exclude Prejudicial evidence

Similar fact evidence case law

The general rule excluding similar facts evidence was stated in the old English case of Makin vs. Attorney General, New South Wales (1894) AC 57 at 65 by the Privy Council, Per Lord Herschell, L.C. as follows:

“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 have committed the offence for which he is being tried”.

This rule received the approval of the House of Lords in many cases including, R. vs Ball (1911) A.C. 47 and Harris vs. Director of Public Prosecutions (1952) A.C. 694 , the facts of which will be noted subsequently. The question may be asked: What is the rationale for the exclusion of similar evidence?

Similar fact evidence in civil cases

Perhaps the most important rationale for the exclusion and inadmissibility of similar facts evidence is predicated on the principle of relevancy which governs admissibility of evidence.
Similar facts evidence is generally irrelevant to the fact in issue as it relates to facts which occurred on occasions other than the one under investigation. There is, therefore, no legal basis for its admission.

Indeed, the only connection between similar facts evidence and the facts in issue is the general similarities between them which may even be superficial. Therefore no logical link between the fact to be proved and that offered in proof of it.

Another reason which has been rightly articulated for the exclusion of similar facts evidence is “the need to save the time of the court and to prevent the minds of the jury from being diverted from the facts in issue”. The implication of having regard for similar facts evidence is that the matter which is said to be similar to those presently in issue may have to be inquired into by the court to determine the similarity. This will inevitably delay expeditious determination of cases in court.

In criminal trials, the prejudicial character of similar fact evidence constitutes another formidable reason for its exclusion as a general rule. Without doubt, the mere fact that a man committed an offence earlier is no logical basis for interfering that he committed the one for which he is being tried. As noted by Lord Summer in Thompson vs R. (1918) AC 232,

“No one doubts that it does not tend to prove a man guilty of a particular crime to show that he is the kind of man who would commit a crime and even to a particular crime”.

Indeed, the fact that a man has once or more in his life acted in a particular way does not necessarily make it probable that he so acted on a given occasion, (see Hodingham vs Head (1858) 27 LJ CP 241). The purpose of this exclusionary rule is, therefore, partly “to exclude a particular kind of inference being drawn which might upset the presumption of innocence by introducing more heat than light”.

In Akaninwo v Nsirim (2008) ALL FWLR (pt 410) 610, the Supreme Court incisively articulated the rationale for similar fact evidence. According to the court, similar facts, though often cogent, moral and weighty, or logically relevant, are rejected as legal evidence on the grounds of policy and fairness- since they tend to waste time, embarrass the enquiry with collateral issues, prejudice the parties in the eyes of the court and even encourage attacks without notice”.

Similar facts evidence in criminal cases

The rule excluding similar facts evidence has been applied in a number of cases. It is considered relevant to examine the facts of some of these cases. In Makin vs. AG for New South Wales, the case in which the rule was propounded, a man and his wife were charged with the murder of a baby.

They had collected the baby from its parent having paid a little money on the excuse that they had lost their own baby and would wish to bring up the baby. The body of the baby was found buried in the back of a house occupied by the accused. There was no material evidence to establish the culpability of the accused beyond the fact that they had buried the baby irregularly.

However, the trial court allowed evidence to be led showing that the bodies of other babies formerly taken in for small premiums were found buried in the yards of houses occupied by the accused. On this basis, the accused were convicted.

Although the convictions of the accused were upheld by the Privy Council, it nevertheless recognized that a conviction should not be predicated on similar facts evidence. While formulating the rule of inadmissibility of similar facts evidence, the court also recognized some exceptions. It was on the basis of these exceptions the convictions of the accused were upheld. These exceptions will be examined subsequently.

As previously noted, the House of Lords has affirmed this principle of exclusion of similar facts evidence in a number of cases, the first being the case of R. vs Ball. In that case, a man and his sister were charged with incest during various periods in 1910. It was established that they occupied the same bedroom at the material time although the house was a small one.

The trial judge admitted evidence showing that the accused has cohabited as man and wife at an earlier time when they had a child whereupon the accused were convicted. Without the evidence of previous cohabitation, it was probable that the jury would not have held that the offence was proved beyond reasonable doubt.

On appeal, the house of Lords upheld the conviction after affirming the principle of law established in Makins vs DPP, excluding, as a general rule, similar facts evidence.

The principle of exclusion of similar facts evidence has also long been affirmed by our courts in Nigeria. In R vs. Olubunmi Thomas (1958) FSC. 8, the accused was charged with forgery. He was alleged to have forged a letter for application for endorsement of import incense. At the trial, evidence was adduced by the prosecution showing earlier similar transactions involving import license by the accused.

At the end of the trial, the accused was convicted. He appealed to the Federal Supreme Court which quashed his conviction on the ground that the evidence of similar transactions admitted by the trial court was irrelevant to the charge and inadmissible. The court held the evidence to be prejudicial to the appellant as it portrayed him as a dishonest man.

The principle of exclusion of similar fact evidence is not limited to criminal cases. Rather, the principle applies with equal force and potency to civil cases. A few cases showing the operation of the rule in practice in civil cases may be noted.

In the old English case of Hodingam vs Head, which was an action for the price of guano, the defendant contended that the contract was subject to certain terms and sought to call witnesses in proof that contracts by the plaintiff with the customers contained similar terms. It was held that the similar facts evidence sought to be adduced by the defendant was inadmissible.

The Court of Common Pleas held further that the fact that someone entered into contracts containing a particular term in the past may render it only a little more probable that he later made another contract containing such terms. And as such subsequent contracts should be proved without reference to the previous ones.

In Holcombe vs Hewson (1810)2 Camp 391, a brewer claimed damages for breach of a publican’s covenant to buy beer from him.
The defence of the defendant was that the plaintiff had supplied bad beer. The plaintiff sought to negative this defence by evidence to the effect he had supplied other publicans with good beer. This evidence was held admissible. Rationalizing this decision, the court held further that the plaintiff “might deal well with one and not with others”

Exceptions To The Rule of Similar Facts in Evidence

As previously noted, the principle of exclusion of similar facts evidence is not absolute or sacrosanct. In the case of Makin vs. Attorney General of New South Wales, where the principle was enunciated, exceptions to the general rule were recognized and provided when the court stated as follows:

“On the other hand, the mere fact that the evidence adduced tends to show the commission of other offences 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”.

From the foregoing pronouncement, similar facts evidence is admissible in the following exceptional cases.

  • Where the similar facts evidence is relevant to an issue before the court;
  • Where the similar facts evidence is relevant for determining whether the acts constituting the offence charged were designed or accidental; and
  • Where the similar facts evidence is relevant for rebutting any defence which would be otherwise open to the accused.

In addition to the above, similar fact evidence is admissible under the common law in the following instances:

  • Where the facts in issue and other facts similar to it have a common origin.
  • Where the facts in issue and other facts similar to it show a system or systematic course by a person; and
  • Where the facts in issue and facts similar to it show the identity of a person as one having abnormal propensity;
  • In an action for damages by domestic animals.
Judicial Discretion to Exclude Prejudicial evidence

From what has been discussed above, we have seen that similar facts evidence is admissible in a number of instances.

Nevertheless, a trial judge in a criminal case has the discretion to exclude similar facts evidence “on the ground that, though legally admissible, its probative value is out-weighted by its prejudicial propensity”. In Noor Mohamed vs. R. (1949) A.C. 182; (1949) 1 ALL E.R. 365, the Privy Council laid down the guiding principle as follows:

“If an examination of it shows that it is impressive just because it appears to demonstrate in the words of Lord Herschel in Makins’ case that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried, and if it is otherwise of no real substance then it was certainly wrongly admitted”.

The court further stated that the court ought to consider whether such evidence which is proposed to be adduced;

“Is sufficiently substantial having regard to the purpose to which it is professedly directed to make it desirable in the interest of justice that it should be admitted. If so far as the purpose is concerned, it can, in the circumstances of the case, have only trifling weight, the judge will be right to exclude it…but cases may occur in which its character is gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible”.

The implication of the foregoing, therefore, is that evidence of similar fact may not be admitted in a judicial proceeding even though it is legally admissible, to admit it will be gravely prejudicial to the accused.

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