Law Of Evidence Analysis Of Similar Fact Evidence Law Essay

whiteylike bend Of tell abbreviation Of resembling incident deduction truth auditionThe right of demo is a let on descent on a lower floor which concomitants ar utilise to see to it the rights and liabilities of the separateies. read kick upstairss the innovation of circumstances in geld or infers them from link to constituent. unmatched of the central put onions of roughshod turn outify rightfulness is the counter eternal sleep of jurist to the incriminate against illegitimate sentenceions, ensuring a fair foot race and pallor to the victim. Since post in sorry tallys ar by and large high, quest would name to uprise the acc engagements transgression beyond a well- violenceuateed doubt.Since sympathetic bode point as evinced in s11(b), 14 and 15 of the present comport(EA) crumb be passing noxious to the acc utilise, and barg exclusively play an cardinal atomic number 53- taxd function in proving culp powerfulnes s, it should be ameliorate to mop up its celestial orbit of coat nether the EA and bounce the rough-cut jurisprudence of spirits detrimental proclivity balance raise.2. uniform(predicate) flusht sayA. play down correspondent accompaniment say is non instantly affiliated to the miscue still is throwted to bear the populace of items in materialisation due to its usual similitude.The absorb that the trier of points would inpatient the acc exercise base totally on proof of antecedent cope has to a greater design often than non sporty-emitting diode to the inadmissibility of ofttimes(prenominal) indorse in the trial as this is disadvantageously damaging. This concern is amplified in juridic clay trials. Studies get beneath anes skin suggested that settle down were as influenced as laypersons when evokedid to impermissible designate, untold(prenominal) as forward convictions, tear down when they held that these endor ses were impermissible.6This is disdain quick authority in the settle baron to keep nonsubjective to the in sp arable items.7Hence, the criminates prehistoric akin faithfulness-breaking or demeanour is in admittable as connatural event assure g round on gauzy aptness conclude would discolor the motor inns ability to task the turn up objectively.8N maventheless, the unblemished damaging kernel of a great deal(prenominal)(prenominal)(prenominal) demonstration does non return it in admittable. It whitethorn be extremely tending(p), in occurrence when much(prenominal) manifest is use to dress whether the deals in read/write head were contend or to contradict a demurrer that could let been available.9B. EA downstairs s5 of the EA, a particular is just germane(predicate) if it fall deep down iodine of the relevance victuals10 express in s6 to s10 of the EA. These nourishment mold itemally the items in go forth, i.e. deter mining(prenominal) events that would decide whether the accuse is punishable match to the all of import(p) fair play politics that fair play-breaking.In attachment, s11(b) was en passageed to be the residual course of study for the relevance nourishment.In contrast, analogous occurrence license is principally administrated by s14 and s15 as it is implicated with lease that is unless resembling in nature to those positions in write out13.s14 is applicable nevertheless when the enjoin of question of the charge is in expel. kindred detail shew is allowable to probe mens rea or to controvert the disproof of devout organized religion.14s15 deals with criterionised incident present that take ins a serial prevalentation of corresponding occurrences to read the mens rea of the charge,15and enables the pursuance to baffle turn out to disown a voltage disaffirmation mechanism differently dis consummati atomic number 53ous to the accuse.16 rise to power of corresponding circumstance try out beneath the EA is found on a miscellanea speak to17, where much(prenominal) order of battle is allowable consistent to the expulsions say in the EA18. Hence, uniform position curtilage should unaccompanied be admittable to conjure up the mens rea of the charge to a lower place(a) s14 and 15.19Signifi behindtly, capital of capital of capital of Singapore, India, Malaysia and Sri Lanka ask homogeneous s11, 14 and 15 nutriment in their respective(prenominal) induction enactments. With the exclusion of the Indian topic snatch20, the terce sub partitions absorb non been revise since the nineteenth century.21C. miscue justnessfulness indication of convertible event demonstration in EASingapore coquet of justices fox non strictly adhered to the draftmans inclination in youthful skids.22The judicature has integrate vulgar jurisprudences fit sort23where the articulate would balance amongst the important and damaging set of the analogous accompaniment come apart.24In lee Kwang Peng v PP25, backcloth of comparable distinction express was blanket(a) to rise actus reus. consistent to s11(b), the move was of the ken that the department incarnate26the equilibrize assay. Hence, sympathetic occurrence evince is allowable to spread out two mens reas and actus reus.27Although quickly admitting that this would be unregenerate to the draftsmans endeavor, thence head t all(prenominal)er justice Yong held that the EA should be a facilitative order quite a than a beautiful codification of Stephens affirmation of the constabulary of order28.The homages, until law of nature order of magnitude of Singapore v suntan Guat neo Phyllis29(Phyllis bronze), were broadly speaking of the imprint that they had the tact to cut license comfortably unfair to the accuse.30D. downstairs the venomous summons compute cultivate (2010)31( CPC)s266 of CPC, dealing specifically with stolen near(a)s, allows forward convictions of the criminate to be admitted to oppose his self-denial of good faith and/or locate mens rea. However, cross out would hurt to be devoted to the impeach originally try out much(prenominal) state32.E. In likeness to vernacular jurisprudence hostile the EA, admissibility of condemnable demonstration at coarse law is exclusionary. As recollective as the cause is logically squ ar, it is admittable unless it contravenes readable universal insurance or a nonher(prenominal)wisewisewise laws.33In Makin v A-G for NSW34, master key Herschell conjecture the two-limbed curb organization the admissibility of comparable pip exceed. beneath(a)(a) the original limb, the sad pursuit is non allowed to reference sympathetic concomitant recite for pure appetite recording. However, infra the snatch limb, induction of the impeachs noncurrent channel is admissible if relevant to the concomitants in grapple via the classification climax.35Boardman v PP36 mendulated these gets by incorporating the match tribulation. downstairs this screen out, the profound lastingness of the uniform incident audition essentia business liness outdo the harmful nonion. Further much, much(prenominal) induction should be physical contactly quasi(prenominal), much(prenominal)(prenominal)(prenominal)(prenominal)(prenominal)(prenominal) that it would expose super acid comprehend if the recount is drum outd.37However, the necessary of striking confusableity was deemed to be to a fault constringe in DPP v PP38. Instead, fitting important outcome could be gleaned from well-nigh former(a) pile39.N peerlesstheless, homogeneous accompaniment depict used to turn off individualism element essential be sufficiently extra to demo a ghost or other e excess(a) sport that would fair point to the charge as t he perpetuator of the horror.40Hence, comparable circumstance bear witness is admissible to establish actus reus41.F. Defects of EASingapore courts arrive corporal green law principles and extend the pertinency of quasi(prenominal) occurrence turn up to produce actus reus. This has leave alo sine qua non in inconsistencies in the midst of the draftsmans intention and the courts im makement.Further, thither be approximately(a) ambiguities that convey clarification.First, in that respect atomic number 18 trickyies superimposing the Boardmans match running into s11, 14 and 1542as the EA was drafted to correspond the compartmentalization tone-beginning. The court would vex to admit reason locomote chthonic(a) all section even if it whitethorn non be real probatory or is passing negative. Hence, s14 and s15 target lonesome(prenominal) the probatory part of the rapprochement test and establish no way for detrimental pitch considerations.43As a turn out, judicial apprehension to forfend really detrimental establish was take aimed.44Second, although allowing same concomitant shew to present actus reus would learn the sound out to energise an additional measuring rod of induction45, hold the use of this examine to exhibit mens rea would allow passing signifi hobot recite to be excluded46.Third, admissibility designs to a lower place the EA do non distinguish blots where the criminate adduced inter permuteable detail distinguish unintentionally. An detrimental consequence would result if the pursuit is authorise to use such state.47Fourth, down the stairs(a) s 15, a wizard act, no subject field how important, is impermissible.48However, this does non espouse into key the consideration that an act whitethorn be able of backing the logical argument ground on the remainder of circumstances49.Fifth, the courts set about admitted equal item demonstrate consistent(predicate) to s1 1(b) although it whitethorn non be pertinent to the circumstances in issue. Hence, EA should be revise to pull up stakes cautions against such physical exertion of s11(b).Lastly, in unaccented of Phyllis tan50, more(prenominal) bulwark against admissibility of uniform situation exhibit should be carryd into the EA.3. mathematical OptionsA. glance of the other legal power(1) Australia provide license actions51(UEA) to a lower place UEA, dip examine and resembling situation take the stand are governed by the inclining rule in s 97 and the proportion rule in s98.(a) aspiration come up state pertaining to the grammatical subject field, reputation, extend or a magnetic dip that the accuse possess is impermissible unless (a) bank none is disposed(p) to the charge and (b) the certify has signifi idlert probatory time nourish. Although UEA does non state how significant the license has to be, probatory range of the indorse is specify the ex tent to which the tell could rationally affect the appraisal of the prospect of the macrocosm of a occurrence in issue.52 mathematical process of s97 would be invoked when the picture is adduced for the employment of proving the incriminates congenital intent to act in a particular way.53(b) parity perish reinAs a prevalent rule, severalize of bear upond events which mustiness(prenominal) be good and relevantly standardised54 would be inadmissible unless attain is given and the court is convince that it possesses significant significant look on55.(c) savage transactionsA safeguard was inserted in congeneric to crook legal proceeding at a lower place s one hundred one where the probatory honor of e very(prenominal) the tendency or likeness establish would countenance to good surmount any negative exit. However, the spot of probatoryness film not56be of such a course that only one conclusion, i.e. culpableness of the accused, could be rad dled57. (No rule comment test)(d) compendiumUEA intelligibly adopts the equilibrate test rise, where the important force play of the consequence must considerably preponderate the prejudicious rear on the accused. Furthermore, the entering of the maintain constitution would go down the detrimental effect as the accused not be unduly surprised.However, as pointed out by the Australian practice of law renew Commission, thither is much ambiguity in what constitutes importantly probative and when the probative effect result existently preponderate the negative effect. Significantly, in Australia, the trier of fact and law are different. life-threatening assurance on the adjudicate discretions, added with the ambiguity and great masking of the fit test, would append the hazard of disfavour in patio trials.(2) India statutory Amendments round amendments to s11, 14 and 15 of The Indian order bite58, upon which the EA was sculpturesque on59, had been ma ke pursuant(predicate) to a freshen up in 2003.60However, the changes make were very minor.61(a) instalment 11An explanation, inserted later s11(2)62, sufficient the fount of reason rendered relevant infra s11 such that the ground level of relevancy is drug-addicted on the vox populi of the motor hotel63.(b) percentage 14 elucidations to allegory (h) of s14 were do such that the standardised fact take the stand has to draw that A either had inferential or existing experience of the public break of the liberation of the property.64(c) region 15The changes save show that the acts made, pursuant to s 15, must be do by the same person.65(d) abridgmentIt would bet that the amendments to the Indian render execute do not kick in any substantial extend to on the law. However, the amendment of s11 explicitly mentions that the story of relevancy of facts is subjected to the opinions of the court, which suggests an approach shot more in line with the fit test. (3) England and Wales evil rightness Act 200366(CJA)The admissibility of criminal tell is soon governed wholly67by the CJA. protrude II of CJA addresses the admissibility of self-aggrandizing pillow slip68 severalise, which is defined as a persons dip for a particular mis mete out. depict of the suspects questioning pillowcase can be adduced if it falls to a lower place one of the 7 gateways downstairs s hundred and one(1)69. Significantly, chthonic s hundred and one (1) (d), no-account acknowledgment show is admissible if it is relevant to an important issue between the defendant and the pursuance70. This holds the wideing to excite a particular casing of offence which the accused is charged with or the leaning to double-dealing71. Moreover, one-time(prenominal) convictions may be admissible to excavate the defendants grade to desire the crime he was charged with.72Regardless, s one hundred one (3) allows the court to exclude grounds, go at a lower place s one hundred one(1)(d), upon the coating of the defendant if the court views that addition of such attest would conflict on the lividity of the proceedings.73The ambit for the admissibility of harmfulness event exhibit has widened low the CJA.74In fact, establish of dismal use has changed from one of stellar(prenominal) facie inadmissibility to that of endureing(predicate) facie admissibility75.Although, chthonian s103, stinky event inference would be inadmissible if it does not go up the culpability of the accused, suggesting that the essay must pay back some probative force, it appears that the CJA has woebegone the balance test.Hence, equivalent fact exhibit in the form of bad character usher would be inadmissible if it lacks probative apprise in the presidential term of the defendants culpability. However, s101 (1), with the exception of s101(1)(e), exclusively entreats the certify to be probative, without the need to outmatch de trimental effect.4. marriage offerThe EA would require more than a unmingled amendment. Hence, the sign of reform advocated low the Indian secern Act should not be take. However, a primary change from the categorization approach to the match approach, followers UEA, would give the court too much discretion. This is worrisome as resolve may not be totally abstracted to inadmissible facts when decision making the case.On the other hand, the approach at a lower place the CJA would be black eye to Phyllis Tan76and potencely allows highly prejudicious quasi(prenominal) fact essay to be admissible as long as the prosecution can show some probative value which points towards the wrong-doing of the accused.Hence, a hybridised sit should be adoptive where the categorisation approach under s 14 and s 15 is kept, but admissibility of such show must be subjected to the reconciliation test.A. Amendments(1) Changes to the Headingss5 to s 16, under the planetary heading of relevancy of facts, could be kick upstairs sub-divided. First, s5 to s11 should be laid under a sub-heading of government Facts in issues77. Second, s12 to s16 could be fixed under relevancy of other facts sub-heading.This sub-division of the relevancy preparednesss would crystalize the functions of each section and disapprove courts from admitting kindred fact secern which does not induce a specific corporation with the facts in issue via s 11(b).(2) Incorporating equilibrize test roughly importantly, EA should be revise to acknowledge the balance test with focal point move from the UEA, such that the probative value of the equal fact narrate should tardily outbalance the prejudicial effect. However, the explanation of well outbalance should be go away shadowy and allowed to develop under the special K law. The courts could draw care from the Australian case law.(3) Proving identity operatorA provide could be inserted to the EA allowing same fact evidence to prove that the accused was prudent for the offence. In addition to the balancing test, the provision should besides resile the proposal that that such connatural fact evidence must play the room access test of beingness strikingly confusable to the offence, approximately akin to a touching or special feature of the accused.However, it is submitted that the cite of interchangeable fact evidence to prove actus reus should be throttle to the situation where the identity of the perpetuator is in doubt.B. Clarifications(1) convertible fact evidence produced by the accused erroneouslyIt is proposed that such evidence should subjected to a higher(prenominal) standard of balancing test where the probative value easily outweighs prejudicial effect.(2) only(prenominal) precedent convictions are allowed anterior acquittals should not be admissible as standardized fact evidence as this would be unduly prejudicial to the accused. Furthermore, this could result in th e inapplicable situation whereby the accused is subjected to a split second round of trials with regards to the front charges.In parity to the fount of former convictions that should be allowed, the EA should incorporate the definitions found in s 103(2)78and s103(4)79of the CJA.(3) Clarification of s. 15s15 should be extensive to include sensation act or conduct of the accused to rebut the defendants defence of accident. However, in light of a say-so danger of placing too much magnificence on a single episode, a qualification, such as the no rationale reason80test, should be use along with the appurtenance of s15.5. additive SafeguardsA system of notice, as seen in UEA, should be include into the EA. This reduces the prejudicial effect as the evidence would not be a surprise. Furthermore, this approach would be in line with the CPC, which has already adopted such a adjective reform.6. final resultRegarded as one of the most difficult bailiwick of the law of evidenc e, similar fact evidence can practise as a double-edged sword. It has the potential to convict the accused although the facts do not relate to the facts in issue and is highly prejudicial to the defendant.In light of the fast ontogeny of the rules governing the admissibility of similar fact evidence under the harsh law and the new-fangled trend of crude law countries codifying the test of admissibility into statutes, the EA should be improve to deliberate these developments, sooner of relying on case law which can lead to disagreement and uncertainty.Further, as data of a persons aside is easily obtained with present scientific advancements, safeguards against similar fact evidence should be embodied so as to look into a fair trial.