Similar facts evidence can only be led if there are similar facts to those under consideration. There has to be substantial connection or similarity of what the person did.
The court has a number of questions should ask
Is it relevant?
Can the offence be proved without similar facts evidence?
What other purpose does the evidence serve other than cause prejudice against the accused person?
Section 14 and 15 deal with similar facts evidence.
Section 14 and 15.
8. (1) 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.
(2) A fact relevant within the meaning of subsection (1) as showing the existence of a state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.
(3) Where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of subsection (1), the previous conviction of such person is also relevant.
1. Can we infer that something was done by human beings because similar incidents have been occasioned by human beings in the past? Can we rule out natural occurrence when something happens because similar things have happened before?
2. Is it legitimate to infer that the accused person has committed the act under investigation merely because it is shown that he has done similar things in the past?
It is notable that when you are dealing with similar facts, the general principle of law is that it is not legitimate to infer that an accused person committed a
particular offence merely because he had committed a similar offence in the past. The reason is because
- Firstly there is the policy of consideration of fairness to the accused person.
- Secondly similar facts evidence is evidence that can bring about a lot of prejudice to the accused person.
- Thirdly the burden that an accused person has when they come to court is that they have to be ready to defend their whole lives.
Evidence of similar facts may be led if there is substantial connection between those similar incidents and the one in issue. You cannot lead evidence of fact just to show connection. There has to be substantial connection in similarity in what a person did.
The court should ask whether
- Evidence of similar fact is relevant;
- The offence can be proved without the similar evidence;
- There is a purpose that is served by the evidence other than to cause prejudice against the accused person.
Evidence of similar fact helps to establish intention and it can also be used to rule out defence such as honest intention. Even then a Judge has discretion to keep away evidence of similar facts if it is prejudicial to the accused person.
The locus classica on evidence of similar facts is
Makin V. AG
Makin and his wife were charged with murdering a child. It was shown that the child’s mortal remains were found buried in the garden of the Makins. There was no evidence that they had killed the child but there was evidence that the Makins had adopted this child from the parents. There was also evidence that the Makins had also adopted other children who were unrelated to this one. They were being paid after they adopted the children. There was also evidence that the children were never again seen by their parents after being adopted by the Makins. The investigators had found mortal remains of children in gardens of the houses that the Makins had lived in before.
The question was, is this evidence of houses and backyards relevant in the trial for the murder of a specific murder. The evidence was admitted though there was not direct evidence to show that the Makins had actually killed the children. There was substantial connection between the activities of the adoption of the other children and the one under investigation. There was striking similarities between the cases and the Makins had the opportunity to murder the children but the evidence of their dealings with other children was taken into consideration because of the similarities that the investigators had found.
In that case, 2 basic principles were established and reiterated in the case of John Makindi V. R.
The Principles were as follows:
- You cannot lead similar facts evidence merely to show the accused disposition to commit an offence. Lord Herschell states 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/character to have committed the offence for which he is being tried.”
Disposition should not be motivation for leading similar facts evidence.
- 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.
Essentially the Makin case established parameters for admitting evidence of similar facts. Similar facts evidence cannot just be used to show disposition.
The second proposition delimiting evidence of similar facts is found in S. 15 of the Evidence Act
10. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.
After Makin the question arose as to whether the prosecution would have to wait until a defence arose or could they wait to admit similar facts evidence.
The question arose as to whether the defence had to wait until a defence arose to raise similar fact evidence or could they raise it to prevent the accused from even thinking of raising a defence.
Had Lord Herschell only given direction on which subsequent courts could built on and in Harris V DPP AC. 394
Viscount Simmons settled the matter .
“It was an error to draw a closed list of circumstances of when similar facts evidence was admissible. He dispelled the notion that Lord Herschell one did not have to wait until the accused person raised a defence of accused or mistake for one to bring up the defence before introducing such evidence.
Lord Herschell only gave instance when similar facts evidence could be raised and that Lord Herschell only raised instances.
Mohammed Said Akraby v. R.  Vol. 23 EACA 512
It was held in this case that even though the prosecution did not have to wait until the accused raised a defence; the judge had discretion to exclude similar facts evidence if its probative value was out weighed by the prejudicial effect. It was always going to be a balancing act what purpose does the evidence serve other than cause prejudice.
Noor Mohammed v. R.  Vol. 4 E.A.C.A
The accused was charged with murdering his wife by poisoning. There was no evidence that he had administered the poison but prosecution sought to adduce evidence that the accused had had another wife who died as a result of poisoning in circumstances which suggested that the accused had lured the wife into taking poison as a cure for a toothache. The accused was convicted but on Appeal, the Appeal was allowed on the grounds that evidence admitted by the trial judge was very prejudicial to the accused person. In the words of the court, the probative value was outweighed by the prejudicial effect even though the evidence was technically admissible.
Similar facts evidence must have strong probative value weighed against prejudice.
R v. Scarrot  1 AER 672
Discussing further probative value versus prejudicial effect, Lord Scarman stated in this case:
“Such probative value is not provided by mere repetition of similar facts. There has to be some features in the evidence sought to be adduced which provided an underlying link. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration.”
Evidence of similar facts has to have its own persuasive value and not to just have probative value it just not depend on coincidence.
Admissible similar facts evidence falls into 3 categories which depend on what it is directed towards.
1. Similar facts evidence to establish state of mind with which some act proved to have been done was done i.e. what motivated the act;
2. Similar facts evidence to prove the identity of the perpetrator or doer of an act;
3. Similar facts evidence to establish the commission of the act itself and therefore rule out an act of nature or miracle.
Firstly the question of similar facts evidence to establish state of mind – the accused may admit that he committed an act but his state of mind is not discernible. Looking at the evidence it is overwhelming that the accused committed the crime but it is not clear what his state of mind was. Under this circumstance it may be the case that he had no intention to do what he did. E.g. a person could have killed a human being but the case could be that he killed the human being thinking it to be an animal. If the accused person had done similar actions where the state of mind was clear, then it can be inferred that the present act was done with the same state of mind as the previous ones.
If however the state of mind in previous actions is unclear, the very nature of those acts conceded along with the present one may lead to an inference as to what the state of mind was. For instance if a student was to be caught during the exams copying from the Evidence Act and in defence says that he did not know that he was wrong to copy from the Act, if there is evidence that such a student has been previously caught in another subject doing the same and has been reprimanded for it, then the evidence would go to show that he is not innocent, the Evidence can be used to infer.
R . V. Francis
Francis was charged with attempting to obtain money from another person by presenting a certain ring to be a diamond ring. He said that he had no knowledge that the ring he was purporting to sell was not a diamond ring and was worthless. There was evidence that he had previously approached other persons previously who had refused to give him money for the ring when they realised that the ring was not a diamond ring. The question was whether the Evidence of previous transaction with other persons where these people had refused to give him money for the ring by realising that the ring was worthless relevant. The court held that it was relevant to rebut the defence of lack of knowledge. The evidence of Francis’s experience with other people was relevant to rebut lack of knowledge.
The evidence of Francis with other persons was relevant here to rebut lack of knowledge.
John Makindi V. R
Evidence of similar fact in John Makindi was admitted on the ground that it illustrated the hostility and ill-will between John Makindi and his foster child. On state of mind one of the findings explained the cause of loss of blood and the other evidence showed that he had been previously taken to court and had threatened the child with further beating on account of having sent him to prison. Similar evidence can be used to show the intention in which an act was done. You can pin the act on a person because they admitted but you may be unable to establish what the state of their mind was. You use similar fact evidence to illustrate that a person had fraudulent intention.
R V. Armstrong
Armstrong was charged with murdering his wife by administering arsenic poison on her. This poison was actually found in his house tied up in packets containing a fatal dose. Armstrong claimed that he used the poison to kill weeds as a gardening aid. There was actually no evidence that he had administered the poison on his wife. The prosecution however sought to lead evidence that a few weeks after Armstrong’s wife’s death he had attempted to murder another man by giving him arsenic poison. The question was whether this evidence was admissible. The defence raised the objection that the evidence was prejudicial and irrelevant. The court held that the evidence was admissible and in the words of Lord Hewart “… The fact that Armstrong was subsequently found not merely in possession of but actually using for a similar deadly purpose the very poison that caused the death of his wife was evidence from which the jury might infer that the poison was not in his possession at the earlier date for an innocent purpose.”
R V. Bond  2 K.B. 389
Dr. Bond was charged with using some instruments on a woman with the intent to procure an abortion. He denied the intent, he said that he was not using the instrument to procure an abortion but the instruments were to examine the woman. The prosecution however sought to lead evidence that the doctor had used the same instruments on another woman occasioning an abortion and the girl on whom he was being accused in using the instruments testified that the doctor had told her words to the effect that he had made dozens of girls happy and could do the same to her. The defence objected to this evidence on the grounds that it was prejudicial and irrelevant but it was admitted on the grounds that it showed the doctor’s intention in purporting to examine the woman and rebutted the doctors’ assertion that he was using it to examine the woman.
Achieng’ V. R
Achieng’ was a permanent secretary who had an imprest account and was charged with stealing 76,000/- from that account. His defence was that he had no intention to defraud and that he intended to account for the money but was apprehended prematurely. The prosecution however adduced evidence to the effect that on six previous occasions, Achieng’ had taken money from his imprest account and never accounted for it. The question was whether the evidence of previous occasions was admissible and the court held that it was admissible because it rebutted his defence of intention to account for the money.
The Queen V. Harold Whip and Another (1955) 28 KLR
The two accused were charged with conspiracy to defraud the City Council. The case for the prosecution was that pursuant to an agreement between the two accused, one of them was a City Council Engineer and the other one an excavator, the 1st accused, certified payments as due to the 2nd accused firm for the excavation of hard rock which the 1st accused knew to be greatly in excess of what had been excavated. The 1st accused had therefore caused excessive payment to be made by the City Council to the contractors. The prosecution alleged that this was done fraudulently and that he had not just made an honest mistake in the estimation of the rocks. The prosecution actually brought evidence that there had been a case where the same accused had overestimated the amounts owed to the 2nd accused an event which had occurred in 1953. The court held that the 1953 transaction rebutted a defence of honest mistake. Essentially showing the state of mind with which he had acted.
R V. Mortimer
Mortimer was charged with murdering a woman cyclist by knocking her down. He claimed that it was an inevitable accident. The prosecution however adduced evidence that Mortimer had on previous occasions knocked down other female cyclists. It was held that this evidence of the previous incidence was admissible to show that he intended what he had done. It was not an accident. The nature of the event as a whole ruled out coincidence and the conclusion was gleaned from looking at the transaction as a whole.
SIMILAR FACTS EVIDENCE TO IDENTIFY THE PERPERTRATOR OR DOER OF AN ACT
Where it is shown that a particular act has been done but nobody knows for sure who did it, if it so happens that other acts of distinctive similarity with the one under consideration have occurred and a particular person has been involved, then an inference may be drawn that he was the doer of the act under consideration. It is notable however that for this inference to be drawn the similarity must be very distinct to ensure propensity on its own should not be used to judge a person. For example if handbags disappear and it is known that they disappear during the break and this time a person is caught walking out with a handbag and then it is discovered that this person never comes back to class after the break and a modus operandi is drawn that this person has been taking the handbags and the person has a liking for a particular kind of handbag. Essentially you are looking for similarities.
R V. STRAFFEN:
In this case a young girl was found strangled by the roadside and it was clear from examining her that there had been no attempt at sexual assault on her person. Straffen had been seen around the scene of crime but there was no evidence that he was directly or indirectly connected with the murder. It was established as a fact that Straffen had strangled two girls at a different place two months earlier and had also left their bodies by the roadside. It was also clear that there had been no attempt at sexual assault on these girls. Straffen had been committed to a mental hospital for the offence and at the time the girl whose murder was under consideration had been killed; Straffen had escaped from the mental hospital and was at large. When the police went to interview him he said even before he was questioned ‘I did not kill the girl’. He was convicted on the basis of the evidence of the other two girls. Again it was established that he had had the opportunity to murder the girl having escaped from the mental hospital and the fact that he had been seen near the scene he had the opportunity and the propensity was so distinct.
Thompson V. R
Thompson had carnal knowledge of two boys and he gave them a date 3 days later. He described the place of the date as a street outside a public toilet. Thompson met the two boys at the appointed hour. On noticing the presence of strangers, Thompson gave the boys some money and asked them to go away. It turned out that these strange persons were police and when they approached Thompson he told them that they had got the wrong man. On being searched Thompson was found in possession of a few bottles of chemicals and a further search of his house yielded photos of naked boys. The judges relied on this evidence and its use as alleged by the boys. The boys said what the chemical had been used for. In the words of the court, being gay had characteristics that were easily recognisable. It elicited a distinct propensity and was therefore a reliable means of identification.
Paul Ekai V. R  CAR 115
Paul was charged with the murder of Joy Adamson a famous conservationist. His defence was an alibi (alibi is assertion of not being at the locus quo). Ekai said that he had been in Isiolo staying with his grandmother. The evidence was that on the material night, one of the 3 trunks of boxes in the deceased tent including the one containing the cash box had been forced open by a person using a bar which had been taken from the workshop at the camp. The intruder had escaped using the animal enclosure. The prosecution gave evidence that 3 weeks earlier, there had been a theft at the camp and on that occasion the box containing the cash box had been forced open with the bar taken from the camp workshop. The intruder on that previous occasion had gone out through the animal enclosure. When Paul was apprehended after the murder, he was found in possession of some clothes stolen from the camp on the previous occasion. Paul was the deceased’s worker and he had a good knowledge of the camp and taking all these factors into consideration it was held that the evidence of the previous theft was admissible in attempts to prove the murder because the acts exhibited a distinct modus operandi.
Similar fact evidence can be lead to prove the commission of an act
This applies in situations where it is not clear whether the act was done or it happened miraculously. If it is shown that a similar act has occurred caused by human intervention, this is a good ground for inferring that a particular act was actually done as opposed to it just happening miraculously. This is normally in situations where if you look at the acts in isolation, you can dismiss human act and attribute them to nature but when you look at the acts together you can see they had help.
R V. Smith
Smith married his first wife. He took out an insurance policy on her life in his favour. He made representation to his personal doctor that his wife was epileptic, a few months later his wife’s dead body was found floating in the bathtub and a few months later the insurance paid. Smith proceeded to marry another woman, took out an insurance policy on her in his favour and made assertions that she was epileptic and she too was found dead in the tub and he proceeded to collect insurance and married yet another one whose body was also found dead. He was charged with murdering wife no. 1 on the basis of the subsequent deaths of wives 2 and 3 in similar circumstances. In the words of the court the coincidence was too fantastic to be credible and this of course ruled out the possibility that the drowning of the women in the bath was an accident. In the words of the court the act was done by human hands and the motive was clear so it was not an act of God.
Makin V. Attorney General
The question arose whether the dying of the children adopted by the Makins was coincidental.
R V. BOLL
In the Republic V. Boll, Boll stayed with his sister as husband and wife when incest was not an offence and they even had a child together when incest was not an offence. After parliament made incest an offence, the two were charged for having an incestuous affair, but they continued living together as man and wife. Even after incest had been made an offence, they still continued to live together as man and wife and the question was whether the evidence of the previous cohabitation as man and wife could be used against them. They were convicted of incest because their previous association ruled out innocence of their subsequent association. The logic was that if two people have previously lived as husband and wife, unless they separate to live under separate roofs they continue to live as husband and wife. The burden is on them to rebut this presumption and they were unable to do that.
To summarise similar fact evidence we should look at
Section 16 of the Evidence Act
“When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is relevant.”
For instance if you are trying to establish whether people had lived as husband and wife if you can show previous cause of dealing where they were living as man and wife that would be admissible.
Admission of similar fact evidence is the exception to the general rule and will only be admitted when it has strong probative value.