SIMILAR FACTS EVIDENCE

        Similar facts evidence is a means of proving facts in issue by reference to similar facts or occurrence. In a criminal trial, it is evidence tendered to demonstrate that the accused previously engaged in the relevant prohibited activity. For example, the prosecution in a rape case may seek to rely on rape committed by the accused some years back. 
        At Common Law, the general rule is that similar facts are not admissible. Thus, the mere fact that a man had been convicted of rape on previous occasion(s) does not mean that he committed rape in the instant case. Therefore, each case must be proved on its merit otherwise it would amount to giving a dog a name in order to hang it. The rule is logical and in line with common sense.
         The above rule was improved by Lord Herschell in Makin v A-G, New South Wales. In that case, a husband and wife were charged with murdering a foster-child (which was in their care) and burying it in their backyard. During their trial, evidence of twelve other babies found in the backyards of their previous residences was offered as evidence. The appeal was based on whether this evidence was admissible or whether it was unfairly prejudicial to their defense. The court held that as a general rule evidence of a past similar event should not be admissible unless it bears upon the question whether the act alleged to constitute the crime charged in the indictment were designed or accidental or to rebut a defense which would otherwise be open to the accused Thus, similar facts would be admissible where they are relevant to prove intention as opposed to accident or to rebut a defense that was otherwise open to the accused. On this basis, the court held that the evidence offered was admissible. 
      In Harris v DPP, the House of Lords discussed the principle laid down in Makin’s case as to the admission of similar fact evidence. The defendant had been arrested for murders of young girls, but after being found unfit to plead, he was committed to Broadmoor. While he escaped another girl was murdered and he was charged. The prosecutor sought to bring in evidence of admissions. The court admitted the evidence offered. 
       In R v Ball, a brother and sister were living together as husband and wife. After the enactment of the incest law, they still continued to live together. They were charged with the offense of incest. The prosecution was able to give evidence that they had sexual relationship in the past which resulted in a child. This evidence was accepted. See also Thompson v R.
            The Common Law position on similar facts evidence was improved upon in the case of DPP v BOARDMAN. In that case, the accused faced two counts of buggery and incitement to buggery in relation to two boys aged 16 and 17 respectively. Each of the boys gave evidence that the accused had invited them to his in the wee hours of the morning and forced the boys to play active role in the incident. However, the offense took place at different times. The trial judge overrule the objection of defense counsel and directed that evidence on one count was admissible and could corroborate the evidence in the other count and vice versa. The house of lords confirmed the conviction and restated the law that the judge has a discretion to admit similar fact evidence: (a) if its probative force or evidential value in relation to the issue before the court outweigh its prejudicial effect.(b)That there was no possibility of collaboration between the witnesses.
            The Common Law rule of similar facts evidence is codified in S. 12 Evidence Act 2011. The principle has been admitted in the following instances:
1. Common Origin:
            When a fact is of common origin with the subject-matter of the action, evidence of similar facts may be admitted. In Manchester Brewery v Coombes, a person sued that he was given a defective bear and he claimed for damages. Evidence was given that buyers of similar products had the same defect in the product. The evidence was held admissible. In Akerele v R, a doctor was charged with the offence of manslaughter on the ground that he administered a poisonous substance to a kid. The doctor defended himself that the substance was not harmful. Evidence showing that the same substance had been administered on another kid who also died was held admissible.
            The above principle is also applicable in land matters where the issue is the ownership or right of occupancy of a piece of land, acts of ownership done by one of the parties over other similar areas in the same locality as the one in dispute is relevant in favour of that party’s claim to that piece of land. See S. 35 Evidence Act 2011. Thus the act of ownership, the common locality and similarity between the parcels of land are pointers to the title that the land was vested in the same person. See also Okechukwu v Okafor, Olukoga v Fatunde, Amadu v Ngeri.

2. Knowledge:
            In cases where proof of knowledge is an essential ingredient of the offence, similar facts evidence will be relevant and admissible. In R v Adeniji, the accused was charged with being in possession of moulds for minting coins. His defence was that he did not know the function of the machine. Evidence was adduced that counterfeit currencies were found in his possession. This was admitted to show that the accused had knowledge of what the machine was meant for. In Ogbeide v COP, the accused issued a cheque which was dishonoured. His defence was that he did not know that there was insufficient money in his account. The prosecution was able to establish that he had previously issued dud cheques to two other people which were dishonoured. The court held that this should have let him know that he did not have enough money in his account.
Similarly, in a charge of receiving stolen property, similar fact evidence is relevant to prove the guilty knowledge of the accused by showing that twelve months preceding the offence, the accused was found/was in possession of stolen property and that within five years preceding the date of the offence charged, the accused had been convicted of an offence involving fraud/dishonesty.-Section 36 EA. These can be admitted as similar fact evidence to show that the accused had knowledge of the stolen property.

3. To show system or pattern of conduct:
            Similar facts evidence may be adduced to show the procedure adopted by a person. In R v Smith, the accused was in the habit of insuring his wife and soon after the insurance, the wife would die. The prosecution was able to prove that he had previously insured two of his wives who also died. This was used to prove the system/pattern. Also in Hales v Kerr, here a barber was sued for barbing a customer with unsterilized razor which made him to contact ringworm. Other customers who were similarly barbed by the same barber had ring worms. The court admitted this as similar fact evidence to show that in the barbing saloon, they were in the habit of barbing without taking precautions.

4. Proof of Identity
            Under the Common Law, similar fact evidence may be given to identify the accused as the perpetrator of a crime. Note that this is not applicable under the Evidence Act… A particular crime may show by its very nature that only a person with abnormal propensity like the accused could have committed it. Persons who possess these traits are few and rare. The abnormal propensity may be such that will stamp the accused with the hallmark of a specialized and extraordinary class. This has been applied in curious cases of murder and sexual offences (Lombroso theory). There are some people that when you look at their physical traits, you can come to a conclusion that the person is likely to commit certain crimes. In R v. Straffen, the accused killed two girls and made attempts to hide their bodies. He was arrested but escaped. Four hours later, he killed another girl after attempting to rape her. The prosecution adduced evidence of the previous death which happened in the same manner as the instant case. It was held that only a person with such physical trait as the accused was capable of performing such act in the whole community.


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