NOTES OF CASES
| Published date | 01 October 1952 |
| Date | 01 October 1952 |
| DOI | http://doi.org/10.1111/j.1468-2230.1952.tb00253.x |
NOTES
OF
CASES
EVIDENCE
OF
"
SIMILAR
ACTS
')
Two
recent decisions,
R.
v.
Hall
[1952]
1
All
E.R.
66,
a decision
of the Court of Criminal Appeal, and
Harris
v.
D.
P.
P.
[lo521
1
All
E.R.
1044,
a decisicn of the House of Lords, make it opportune
to
review what is perhaps the most difficult task which can face a
presiding judge at
a
criminal trial, namely, the admission
or
rejection of evidence of
"
similar acts
)'
by an accused person.
Two general principles have for long been unquestioned.
(1)
It
is
not competent for the prosecution to adduce evidence of
"
similar
acts" by the accused merely to lead 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.
(2)
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,
e.g.,
whether the acts alleged to constitute
the crime were designed
or
accidental,
or
to rebut a defence which
would otherwise be open to the accused
(Makin
v.
Att.-Gen.
for
New South Wales
[1894]
A.C.
65).
The difficulty of applying these principles with confidence was
illustrated and increased by the decision of the Court of Criminal
Appeal in
R.
v.
Sims
[1946]
K.B.
581.
In
R.
v.
Sims
Lord Goddard, delivering the judgment of a
court of five judges, laid it down
(a)
that evidence is admissible
if legally relevant to the issue whether the accused has committed
the act charged;
(b)
that evidence is not to be excluded merely
because
it
tends to show the accused to be of bad disposition, but
only if it shows nothing more, and (c) that evidence of specific
acts
or
circumstances connecting the accused with specific features
of the cr'ime charged is admissible even though
it
tends
to
show
him to be of bad disposition. The court rejected the often
expressed vicw that the admissibility of evidence of
"
similar acts
"
depends on the nature of the defence raised by the accused,
or
that
all evidence tending to show a disposition towards a particular
crime must be excludcd unless justified. In the particular case
the court held that evidence
of
prekious similar acts
of
sexual
perversion was admissible to show the nature of the act done by
the accuscd. The court took the vicw that the accused should not
by confining himself at thc trial to one particular issue be able to
exclude evidence that would be admissible and fatal if he ran two
dcfcnccs.
The Judicial Committee
of
the Privy Council in
Noor
Mohammed
v.
R.
flOl.O]
A.C.
182,
refused to accept the view expressed in
484
OCT.
1988
NOTES
OF
CASES
485
R.
v.
Sims
that the admissibility of evidence of similar acts could
be determined without reference to the nature of the defence.
They referred with approval to
Thompson
V.
R.
[1918]
A.C.
286,
where Lord Sumner said:
“
Before an issue can be said to be
raised, which would permit the introduction of such evidence
so
obviously prejudicial to the accused, it must have been raised
in
substance if not in
so
many words, and the issue
so
raised must be
one to which the prejudicial evidence is relevant.” (In
Thompson’s
Case
evidence of “similar acts
))
was admitted to prove identity
in a case of an abnormal sexual crime where a defence of an alibi
was raised, and Lord Sumner conceded that
it
was paradoxical that
a man whose act is
so
markedly wicked as to admit of no doubt
about its character (and merely denies the act) may be better
off
in regard to admissibility of evidence than a man whose acts are,
at any rate, capable of having a decent face put upon them (when
evidence of
‘‘
similar acts
’)
might
be
admissible as proving
intention), and that the accused can exclude evidence that would
be admissible and .fatal if he ran two defences by prudently
confining himself to onc.) The Privy Council in
Noor
Mohammed’s
Case,
while disapproving of the principle laid down in
Sims’
Case
and accepting the views expressed in
Thompson’s Case,
added one
important qualification
to
the rule laid down by Lord Sumner.
They considered that evidence of
“
similar acts
”
could not be
excluded merely because the accused set up no defence other than
a
general denial
of
the crime alleged. An accused
person
could not
exclude evidence of
“
similar acts
”
merely by saying:
“
Let the
prosecution prove its case, if
it
can.” One may look not only at
the defence
raised
but at the facts and circumstances of the
particular offence charged.
If
those facts and circumstances are
consistent with innocent intention then further evidence of
“
similar
acts
)’
may be adduced
to
show guilty intention.
In
Hall’s
Case
Lord Goddard accepted the criticism
of
the Privy Council of the decision in
Sims’ Case
and agreed that
evidence of
“
similar acts
”
must be excluded unless justified in the
particular case.
He
emphasised, however, that
no
doubt had been
thrown by the Privy Council on the view that evidence of
“
similar
acts
”
was admissible to show that particular conduct was of a
guilty and not an innocent nature. The court further held that
the decision in
Thompson’s Case
(where evidence of
“
similar acts
”
was admitted to show identity) was just as relevant where the
defence was
“
I
have never seen the complainant before in my life,”
as where the defence was, as in
Thompson’s Case,
an alibi. Lord
Goddard said
:
‘‘
The expression
‘
identity
’
means that the evidencc
of the prosecution goes to show that the witness for the prosecution
is speaking the truth when he says
‘
That is the man who did these
indecent things to me
’.))
The decision in
Ilall’s
Case
left the reader very doubtful when
evidence of “similar acts” should properly be excluded.
If
evidence
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