It is sometimes possible to prove facts which show that the accused has a bad character or previous convictions under what is often called the similar facts doctrine. This operates to the effect that proving that the accused on another occasion did something similar to what he is now accused of doing may be relevant, but it will inevitably
show him in bad light. This will thus be against one of the first principles of criminal law that the fact that a person is of previous bad character does not mean that he has committed the crime in question. However bad a person’s character is, the fundamental rule is that he is to be presented as a man of hitherto unspotted virtue against whom nothing is known. The reason for the exclusion of previous bad character ordinarily is that as a matter of logic, it would be in many cases be taken as conclusion of the fact that because of his previous bad character he would also have committed the present crime for which he is being charged. It is to protect him from this prejudice that evidence of his bad character is rigorously excluded. Logic, it would seem would admit the forbidden evidence, but the need to avoid prejudice prevails over logic. Lord Simon in DPP V Kilbournt
In some cases, the claims of logic are so overwhelmingly strong that they cannot be denied this way if blatantly unjust acquittals are to be avoided. The law therefore concedes that the relevance of evidence of similar transaction can in some instance be so strong that it overweighs the disadvantage of not using it, namely the risk of prejudice. In effect the probative force outweighs the prejudicial value.
DPP V Boardman2
The principle was authoritatively laid down by the English House of Lords in the above case. The principle that emanated from the various speeches of the Law-Lords is that the admissibility of such evidence depends on the similar fact evidence being positively probative. This is a matter for the judge to decide, unless there is a very high degree of relevance, he must exclude it. In deciding whether there is such a high degree of relevance, he must ask himself whether there is a real chance that the witnesses to the separate incidents have put their heads together to concoct false evidence; if yes, the evidence must be excluded. Lord Cross said:
“The question must always be whether the similar fact evidence taken together with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra-cautious jury if they accepted it as true would acquit in face of it”.
Some examples
Makin v A.G. for New South Wales in this case, the accused was charged with the murder of an infant whom she had promised to adopt and maintain on receipt of a small premium from the infant’s mother. The infant’s body was found buried in the accused garden in a condition which left the cause of death uncertain. Evidence was admitted that the accused had received other infants from their mothers on similar terms, who had afterwards disappeared, and that the bodies of unidentified infants were found buried in the garden of other houses occupied by the accused.
R v Straffen in this case, A was charged with murdering B, a little girl. B was strangled for no apparent reason, she was not interfered with sexually, and no steps were taken to hide her body. Evidence was admitted that A had killed other little girls C and D, in the same way, for no apparent reason and left their babies unhidden. This was a pattern of crime which could be ascribed to the accused. There was striking or unique similarity of the modus operandi of the crime.
Ludlow v MPC in some cases, the prosecution by putting both charges in one indictment, will hope that the evidence showing crime 1 will assist in proving crime 2 and vice-versa; and that the whole of the evidence heard together will be more cogent than if the crime are tried separately and the evidence at each trial confirmed to the offence charged at that trial. In this case, it was stated that all that is required for the above to apply is some nexus between the offences which enables them to be properly described as a series.
The nigerian position
Section 17 of the Evidence Act CAP 112 Laws of the Federation 1990 states that:
“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”
This section applied to both criminal and civil cases.
R v Adeniji and Others in this case, the appellant was charged with being in possession of moulds of minting coins under section 148(3)(c) of the criminal code. The West African Court of Appeal held that evidence of previous uttering of counterfeit coins by him was admissible in order to prove guilty knowledge.
Akerele v the King in this case, a medical practitioner was tried and convicted for manslaughter in that he caused the death of a child by administering a poisoned injection to the child. The prosecution advanced evidence to show symptoms, illness and death of nine other children who were injected with the same drug and at the same time as the deceased by the doctor. The Privy Council held that this evidence was rightly received.
Discretion to exclude
The judge has a discretion to exclude similar fact evidence, even if it is technically admissible, if he thinks that its prejudicial effect is disproportionate to its relevance. DPP v Boardman (Supra). The problem here however is that it will indeed be difficult for a judge to hold that the evidence to be introduced as similar fact evidence is so striking similar that its exclusion would be an “affront to common sense” (per Lord Cross in DPP v Boardman) and then go on to reject it. That seems to be a reversal of logic.
Conclusion
The decided cases in both the English and Nigerian Jurisdictions show that in order to introduce such evidence, there must be a modus operandi, a series or nexus. The required degree of relevance is usually found in the fact that the similar transactions are similar in a highly specific way. In the Boardman case, the general force of the speeches of the Law Lords deprecated the making of categories as unnecessary and dangerous. It is indeed difficult to map out with any form of precision when such evidence will be admissible. Lords Hailsham and Wilberforce stated in that case that the question is what degree of relevance does it have, how cogent is it, not what kind of relevance does the evidence have. The admission of such evidence is exceptional and requires a high degree of probative force. It should be added here that the rule in civil cases is almost certainly the same as that in criminal cases.
In Mood Music Publishing V Demoolfe Limited , Lord Denning MR. said
“In Civil cases, the courts will admit evidence of similar fact, if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue, provided that it is not oppressive or unfair to the other side and also that the other side has fair notice of it and is able to deal with it”.
It is without doubt that the basis and essence of the similar fact doctrine is that the offence for which a person is being tried is so closely related to one or more offences that have been committed by the accused that to exclude it will be an affront to common sense. It is important to note that the previous acts with which the prosecution intends to use as a recognized system or series need not necessarily be an offence.