SIMILAR FACT EVIDENCE AND DISPOSITION: LAW, DISCRETION AND ADMISSIBILITY
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00838.x |
| Date | 01 May 1985 |
| Published date | 01 May 1985 |
| Author | T. R. S. Allan |
THE
MODERN
LAW
REVIEW
Volume
48
May
1985
No.
3
SIMILAR FACT EVIDENCE AND DISPOSITION:
LAW,
DISCRETION AND ADMISSIBILITY
IT
has been widely recognised that the law governing the admission
of similar fact evidence was greatly simplified by the speeches of
the House of Lords in
D.P.P.
v.
Boardman.’
It became clear that
admissibility did not depend upon whether the evidence fell
properly within one of a number of established categories.
Admissibility was not an
automatic
consequence of the correct
application of a standard label: evidence adduced, for example, to
prove “system” or identity, or fb-rebut a defence of accident or
innocent association. The test to
be
applied was simply whether
the evidence in question possessed sufficient probative value to
justify its admission. “The basic principle must be that the
admission of similar fact evidence (of the kind now in question) is
exceptional and requires a strong degree of probative force.’72
Although a more modern approach had been adopted by academic
writer^,^
it had lacked clear judicial recognition, and the decision in
Boardman
was greeted by one distinguished commentator as “an
intellectual breakthr~ugh.”~
Nevertheless, difficult questions remain to be resolved. What is
the scope of Lord Salmon’s requirement of “unique or striking”
~imilarity?~ What is the relationship between the rules which permit
the admission of similar facts and those which govern the adduction
of evidence of other sorts of misconduct on the part of the
defendant?
If,
contrary to Lord Herschell’s principle in
Makin
v.
Attorney-General
for
New
South
Wales,6
evidence can be given of
the defendant’s disposition in order to prove his guilt of the crime
charged, what standard of cogency must such evidence satisfy?
Must the same standard of cogency be satisfied in every case in
which evidence of the defendant’s misconduct on other occasions is
[1975]
A.C.
421.
Zbid.
at
p.444
(Lord
Wilberforce).
e.g.
Zelrnan Cowen and
P.
B.
Carter,
Essays on
rhe
Law
of
Evidence
(1956),
Essay
TV
-,.
L.
H.
Hoffrnann:
(1975) 91
L.Q.R.
193.
1975
A.C.
421, 462.
6
[iw]
A.C.
57,65.
253
254
THE
MODERN
LAW
REVIEW
[Vol.
48
to be adduced? If, as Lords Hailsham and Salmon ~uggest,~ the
trial judge retains a discretion to exclude similar fact evidence
which is nevertheless admissible in law, how is such a discretion to
be exercised? The purpose of the present writer is to suggest that
an ordered framework of principle can be derived by giving closer
attention to the
rationale
of
this branch of the law: the protection
of the defendant from unfair prejudice. It will be argued that, on
analysis, this part of the law of evidence can be divested of its
lingering mystery. The ambit of the exclusionary rule has been
severely curtailed, and applies in only one sort of case. Elsewhere,
the relevant principles are best regarded as simply an application of
the ordinary discretion accorded to the trial judge in criminal cases
to exclude evidence whose prejudicial effect would exceed its
probative value.
THE GENERAL REQUIREMENT
OF
POSITIVE PROBATIVE VALUE
A
widening consensus of academic and judicial opinion can now be
detected on a number of questions. Lord Herschell’s famous
statement of principle, approved by Lords Morris, Hailsham and
Salmon in
Boardman,
seemed to forbid direct reliance by the
prosecution on the defendant’s criminal disposition:
“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 pu ose of leading to the conclusion that the accused is a
personyikel from his criminal conduct or character to have
Nevertheless, it seems clear that Lord Herschell’s principle cannot
be asserted as a universal rule. In exceptional cases, evidence of
criminal disposition may be admitted. In
R.
v.
Struffen’
details of
the earlier murders of two young girls, to which the defendant had
confessed, were admitted at his trial for the murder of Linda
Bowyer because the similarities in the circumstances of each case
served to identify the defendant as Bowyer’s murderer. Slade
J.’s
view that there was an “irrefragable rule”l0 against the admission
of evidence of other offences for the purpose of proving disposition
or propensity was plainly contradicted, in the same judgment, by
his explanation that “abnormal propensity is a means of
identification.””
As
Lord Cross observed, exclusion of the strongly
probative similar fact evidence in
Struffen
would have been
absurd-yet “it was simply evidence to show that Straffen was a
man likely to commit a murder of that particular kind.”” It is
committed t
yh
e
offence for which he is being tried.776
‘O-Ibid.-at
p.914.
I’
Ibid. at
p.916.
**
[1975]
A.C.
421, 457.
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