The rules of data is a system under which facts are being used to look for the privileges and liabilities of the functions. Evidence demonstrates the lifetime of "facts in issue" or infers them from related facts.
One of the fundamental considerations of legal evidence laws is the balance of justice to the accused against wrongful convictions, making sure a good trial and fairness to the sufferer. Since stakes in legal trials are generally high, prosecution would have to demonstrate the accused's guilt beyond an acceptable doubt.
Since similar simple fact evidence - as evinced in s 11(b), 14 and 15 of the data Act("EA") - can be highly prejudicial to the accused, yet play an important role in demonstrating culpability, it should be reformed to clarify its scope of application under the EA and represent the common law's prejudicial - propensity balancing test.
Similar fact research is in a roundabout way connected to the truth but is accepted to show the presence of facts in concern because of its general similitude. The be anxious that the trier of facts would convict the accused established solely on proof prior carry out has generally led to the inadmissibility of such facts in the trial as this is significantly prejudicial. This matter is amplified in bench studies. Studies have suggested that judges were as affected as laypersons when subjected to inadmissible data, such as previous convictions, even though they held that these evidences were inadmissible. This is despite strong self-assurance in the judges' potential to remain neutral to the inadmissible facts.
Hence, the accused's past similar offence or behavior is inadmissible as similar reality evidence based on real propensity reasoning would "colour the court's capacity to assess the evidence [objectively]".
Nonetheless, the mere prejudicial aftereffect of such evidence will not provide it inadmissible. It may be highly relevant, particularly when such evidence is used to determine whether the acts in question were deliberate or even to rebut a defence that could have been available.
Under s 5 of the EA, an undeniable fact is only relevant if it comes within one of the relevancy procedures explained in s 6 to s 10 of the EA. These procedures govern specifically the facts in issue, i. e. determinant facts that would decide whether the accused is guilty according to the substantive law regulating that offence. Furthermore, s 11(b) was enacted to be the "residuary category" for the relevancy procedures.
In comparison, similar fact information is generally administrated by s 14 and s 15 as it can be involved with conduct that is "merely similar in mother nature to those facts in issue".
s 14 does apply only once the state of mind of the accused is at issue. Similar fact data is admissible to prove mens rea or even to rebut the defence of good faith.
s 15 deals with similar fact information that sorts a "series of similar occurrences" to confirm the mens rea of the accused, and enables the prosecution to create information to rebut a potential defence otherwise open to the accused.
Admission of similar simple fact information under the EA is dependant on a "categorization" procedure, where such evidence is admissible pursuant to the exceptions explained in the EA. Hence, similar reality data should only be admissible to prove the mens rea of the accused under s 14 and 15.
Significantly, Singapore, India, Malaysia and Sri Lanka have identical s 11, 14 and 15 provisions in their respective Evidence enactments. Apart from the Indian Information Function, the three portions never have been amended because the 19th century.
C. Circumstance Regulation Interpretation of Similar Fact Information in EA
Singapore courts havent strictly adhered to the draftman's intention in recent cases. The courtroom has included common law's "balancing test" where in fact the judge would balance between the probative and prejudicial aftereffect of the similar reality evidence.
In Lee Kwang Peng v PP, scope of similar simple fact evidence was lengthened to verify actus reus. Pursuant to s 11(b), the courtroom was of the view that the section "embodied" the "balancing test". Hence, similar fact facts is admissible to confirm both mens reas and actus reus. Although easily admitting that would be unlike the draftsman's intent, then Chief Justice Yong organised that the EA should be considered a "facilitative statute" rather than a "mere codification of Stephen's affirmation of the law of data".
The courts, until Regulation World of Singapore v Tan Guat Neo Phyllis ("Phyllis Tan"), were generally of the thoughts and opinions that that they had the discretion to exclude data significantly unfair to the accused.
D. Under the Criminal Treatment Code Act (2010) ("CPC")
s 266 of CPC, dealing specifically with stolen goods, allows earlier convictions of the accused to be accepted to rebut his defence of "good faith" and/or prove mens rea. However, notice would have to get to the accused before adducing such information.
E. Compared to Common Law
Unlike the EA, admissibility of criminal proof at common regulation is "exclusionary". So long as the evidence is logically probative, it is admissible unless it contravenes clear open public policy or other laws and regulations.
In Makin v A-G for NSW, Lord Herschell developed the "two-limbed" rule governing the admissibility of similar truth evidence. Beneath the first limb, the prosecution is not allowed to adduce similar truth evidence for real propensity reasoning. However, under the second limb, evidence of the accused's previous do is admissible if highly relevant to the facts in concern via the categorization strategy.
Boardman v PP reformulated these rules by incorporating the "balancing test". Under this test, the probative pressure of the similar fact proof must outweigh the prejudicial result. Furthermore, such evidence should be "strikingly similar", such that it would offend common sense if the evidence is excluded.
However, the necessity of "striking similarity" was regarded to be too narrow in DPP v PP. Instead, sufficient probative push could be gleaned from other circumstances.
Nonetheless, similar reality proof used to prove individuality must be "sufficiently special" to portray a "signature or other special feature" that could "reasonably" indicate the accused as the perpetuator of the crime. Hence, similar fact proof is admissible to establish actus reus.
F. Problems of EA
Singapore courts have included common law concepts and extended the applicability of similar truth evidence to confirm actus reus. This has led to inconsistencies between the draftsman's purpose and the court's procedure.
Further, there are some ambiguities that want clarification.
First, there are challenges superimposing the Boardman's balancing test into s 11, 14 and 15 as the EA was drafted to match the categorization approach. The court would have to admit evidence dropping under either section even if it may not be very probative or is highly prejudicial. Hence, s 14 and s 15 address only the "probative" part of the balancing test and leave no room for prejudicial effect considerations. Because of this, judicial discretion to exclude very damaging evidence originated.
Second, although allowing similar fact evidence to show actus reus would require the judge to evoke an additional step of inference, restricting the use of this evidence to demonstrate mens rea would allow extremely probative evidence to be excluded.
Third, admissibility guidelines under the EA do not recognize situations where in fact the accused adduced similar simple fact information unintentionally. An injurious consequence would effect if the prosecution is entitled to use such research.
Fourth, under s 15, a single act, no subject how probative, is inadmissible. However, this will not look at the consideration that an act may be capable of supporting the discussion "predicated on the rarity of circumstances".
Fifth, the courts have accepted similar fact research pursuant to s 11 (b) though it may well not be relevant to the reality in concern. Hence, EA should be amended to provide safeguards against such consumption of s 11(b).
Lastly, in light of Phyllis Tan, more security against admissibility of similar truth evidence should be contained into the EA.
A. Survey of the other Jurisdiction
(1) Australia - Even Evidence Serves ("UEA")
Under UEA, "propensity information" and "similar truth data" are governed by the "propensity guideline" in s 97 and the "coincidence rule" in s 98.
(a) Propensity Rule
Evidence pertaining to the "figure", "reputation", "carry out" or "a inclination" that the accused possessed is inadmissible unless (a) notice is directed at the accused and (b) the evidence has "significant probative value". Although UEA does not point out how "probative" the evidence has to be, "probative value of the evidence" is defined "the extent to which the research could rationally affect the diagnosis of the likelihood of the existence of a fact in issue". Procedure of s 97 would be invoked when the data is adduced for the "purpose" of showing the accused's inherent tendency to act in a specific way.
(b) Coincidence Rule
As an over-all rule, proof "related situations" - which must be "substantially and relevantly similar" - would be inadmissible unless notice is given and the judge is convinced which it has "significant probative value".
(c) Felony Proceedings
A guard was inserted in relation to legal proceedings under s 101 where the probative value of either the propensity or coincidence evidence would have to "substantially outweigh any prejudicial effect". However, the degree of "probativeness" do not need to be of such a degree that only 1 realization, i. e. culpability of the accused, could be attracted. ("No rationale reason test")
UEA evidently adopts the "balancing test" strategy, where the probative aftereffect of the data must "substantially" outweigh the prejudicial effect on the accused. Furthermore, the intro of the notice system would reduce the "prejudicial impact" as the accused not be unduly "surprised".
However, as pointed out by the Australian Law Reform Commission payment, there is much ambiguity in what constitutes "significantly probative" and when the probative impact will "substantially outweigh" the prejudicial result. Significantly, in Australia, the trier of fact and law will vary.
Heavy reliance on the judge's discretions, added with the ambiguity and wide application of the balancing test, would increase the threat of prejudice in bench tests.
(2) India - Statutory Amendments
Some amendments to s 11, 14 and 15 from the Indian Evidence Take action, upon that your EA was modeled on, had been made pursuant to an assessment in 2003. However, the changes made were very trivial.
(a) Section 11
An explanation, put after s 11(2), licensed the kind of proof rendered relevant under s 11 in a way that the amount of relevancy would depend on "the judgment of the Judge".
(b) Section 14
Clarifications to illustration (h) of s 14 were made in a way that the similar simple fact evidence must show that "A" either had constructive or actual knowledge of the public notice of the loss of the house.
(c) Section 15
The changes basically show that the serves made, pursuant to s 15, must be achieved by the "same person".
It seems that the amendments to the Indian Data Act do not have any substantial impact on regulations. However, the amendment of s 11 explicitly mentions that the degree of relevancy of facts is put through the "opinions of the court", which implies an approach more good balancing test.
(3) England and Wales - Criminal Justice Take action 2003 ("CJA")
The admissibility of criminal evidence is currently governed totally by the CJA. Part II of CJA addresses the admissibility of "bad personality" research, which is defined as someone's "disposition" for a particular misconduct.
Evidence of the defendant's bad character can be adduced if it falls under one of the seven "gateways" under s 101(1). Significantly, under s 101 (1) (d), "bad figure" data is admissible if it's "highly relevant to an important issue between the accused and the prosecution". This consists of the propensity to commit a specific type of offence which the accused is recharged with or the propensity to lay. Moreover, previous convictions may be admissible to establish the defendant's propensity to commit the criminal offenses he was recharged with.
Regardless, s 101 (3) allows the courtroom to exclude data, slipping under s 101 (1)(d), after the use of the accused if the judge views that entrance of such evidence would infringe on the fairness of the proceedings.
The opportunity for the admissibility of "bad character" research has widened under the CJA. In fact, evidence of bad persona has changed in one of "prima facie inadmissibility" to that of "prima facie admissibility".
Although, under s 103, "bad persona" facts would be inadmissible if it generally does not heighten the culpability of the accused, recommending that the data will need to have some probative force, it would appear that the CJA has discontinued the "balancing test".
Hence, "similar truth evidence" in the form of "bad character" proof would be inadmissible if it lacks probative value in the establishment of the defendant's culpability. However, s 101 (1), with the exception of s 101(1)(e), only requires the evidence to be probative, with no need to outweigh prejudicial effect.
The EA would require greater than a mere amendment. Hence, the type of reform advocated under the Indian Data Act shouldn't be implemented. However, a radical differ from the "categorization strategy" to the "balancing approach", pursuing UEA, would supply the courtroom too much discretion. That is stressing as judges might not be entirely indifferent to inadmissible facts when deciding the case.
On the other palm, the approach under the CJA would be unlike Phyllis Tan and possibly allows highly prejudicial similar reality facts to be admissible so long as the prosecution can show some probative value which factors on the guilt of the accused.
Hence, a hybridised model should be followed where the "categorisation methodology" under s 14 and s 15 is retained, but admissibility of such proof must be subjected to the balancing test.
(1) Changes to the Headings
s 5 to s 16, under the overall going of "Relevancy of facts", could be further sub-divided. First, s 5 to s 11 should be placed under a sub-heading of "Governing Facts in issues". Second, s 12 to s 16 could be placed under "Relevancy of other facts" sub-heading.
This sub-division of the relevancy provisions would clarify the functions of each section and discourage courts from admitting similar truth evidence which does not have a specific connection with the reality in issue via s 11(b).
(2) Including "balancing test"
Most significantly, EA should be amended to add the "balancing test" with guidance drawn from the UEA, in a way that the probative value of the similar simple fact facts should "substantially outweigh" the prejudicial impact. However, the definition of "substantially outweigh" should be remaining undefined and permitted to develop under the common legislations. The courts could attract the help of the Australian circumstance law.
(3) Proving Identity
A provision could be put to the EA allowing similar truth evidence to confirm that the accused was responsible for the offence. As well as the "balancing test", the provision should also reflect the proposition that that such similar truth evidence must meet the threshold test of being "strikingly similar" to the offence, almost comparable to a "signature" or "special feature" of the accused.
However, it is submitted that the expansion of similar simple fact evidence to prove actus reus should be limited by the situation where in fact the individuality of the perpetuator is at doubt.
(1) Similar fact evidence produced by the accused mistakenly
It is proposed that such proof should put through a higher standard of "balancing test" where in fact the probative value "substantially outweighs" prejudicial effect.
(2) Only prior convictions are allowed
Prior acquittals should not be admissible as similar truth evidence as this would be unduly prejudicial to the accused. Furthermore, this may lead to the undesirable situation whereby the accused is put through a "second spherical" of studies with regards to the prior charges.
In regards to the kind of prior convictions that needs to be allowed, the EA should include the definitions found in s 103(2) and s 103(4) of the CJA.
(3) Clarification of s. 15
s 15 should be extended to include one act or do of the accused to rebut the defendant's defence of "crash". However, in light of an potential threat of putting too much importance about the same episode, a certification, such as the "no rationale reason" test, should be applied combined with the extension of s 15.
5. Additional Safeguards
A system of notice, as seen in UEA, should be included into the EA. This reduces the prejudicial impact as the data would not be considered a "surprise". Furthermore, this process would be in line with the CPC, which has already adopted such a procedural reform.
Regarded as one of the most difficult area of the law of facts, similar fact proof can provide as a double-edged sword. It has the potential to convict the accused although the reality do not relate with the reality in issue and is also highly prejudicial to the accused.
In light of the immediate development of the rules governing the admissibility of similar reality evidence under the common laws and the recent tendency of common rules countries codifying the test of admissibility into statutes, the EA should be reformed to indicate these developments, instead of relying on circumstance law which can lead to inconsistency and doubt.
Further, as information of someone's history is easily obtained with present scientific developments, safeguards against similar fact proof should be incorporated in order to ensure a good trial.