Report No. 69

7.101. Identity and similar facts.-

Quite a number of cases relate, in practice, to that part of section 9 which declares, as relevant, facts which establish the identity of anything or person whose identity is relevant. The most troublesome problem which has arisen in this context, both in England and in India, is that relating to evidence of similar facts. The law on the subject in England is still in a fluid condition. It cannot be said that similar facts are always relevant. There must be a nexus between those acts and the offence charged which helps to identify the accused. The leading statement of the law is still that of Lord Sunner, in Thompson v. R., 1908 AC 221 (234) which is to the effect stated above.

7.102. Another very commonly cited judicial statement of the rule is that of Lord Herschell in Makin v. A.G. for New South Wales, 1894 AC for new South Wales, 1894 AC 57 (CPC) (PC).:

"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 purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.".

In the House of Lords in Harris v. Director of Public Prosecutions, 1952 AC 694: (1952) 1 All ER 1044 (HL), it was stated that the jury must be directed that they can only make use of the conduct on other occasions in determining the question of the accused's guilt on the occasion in question, if satisfied beyond reasonable doubt of the occurrence of the former conduct that similar facts should be connected in some relevant way with the accused and his participation in the crime.

7.103. Case of R. v. Beck.-

How difficult a decision of this question could be is illustrated by the celebrated English case of R. v. Beck, (1897) 31 LJ 197, which led to a famous public inquiry.1 In that case, Beck was charged with obtaining money by false pretences in 1895. An expert gave opinion that the handwriting of the letters which contained the false pretence was, though disguised, the same as that of a list, which had been written by Beck, and had been found in his luggage when he was arrested. In cross-examining the expert, the defence proposed to ask a question whether the handwriting of the letters was not the same as that of certain other documents which the prosecution had previously submitted to the witness for examination, being exhibits in the trial of X for a similar offence in 1877.

The defence was also prepared to show that while X was undergoing his sentence for such offence, Beck was in America. This was held to be inadmissible, as involving a collateral issue likely to mislead the jury, namely, whether Beck was or was not the man convicted in 1877 under the name of X. There was, at that time, no provision for a right of appeal in criminal cases. But there was a public agitation and a public inquiry after the conviction of Beck.

1. For later developments, see 47 LJ 379: 133 Law Times Journal 157.

7.104. The public inquiry presided over by Collins M.R., exonerated Beck. The names, handwriting and methods employed in the two crimes (1877 and 1895) were remarkably similar, and the defence of Beck was that they must have been committed by the same man. If, therefore Beck proved that he could not have committed the crime of 1877, it went far to show that he had not committed the crime of 1895, and that the crime was committed by X. This evidence, as already mentioned, was rejected at the trial, but was considered in the public inquiry as clearly relevant and admissible for Beck. It was this case which led to the establishment of the Court of Criminal Appeal1 under the Criminal Appeal Act. 1907.

1. Now the Court of Appeal (Criminal Division).

7.105. General rule.-

Broadly speaking, it may be stated that evidence of similar facts is not admissible if its effect is only to show generally bad character or good character. But, if the evidence has rational probative value otherwise than as showing bad and good character-for example, as showing identity-it is admissible. The question whether it renders the fact in issue highly probable, cannot be disregarded. In an Australian case,1 McTiernan J. said that "there is that degree of probative force in the evidence of similar acts which qualifies it to be the basis for judicial inference concerning the existence of the fact in issue."

1. Martin v. Osborne, (1936) 55 CLR 367 (404).

7.106. One attempt to state the English rule, for legislative purposes, was as follows:1

"Evidence which merely shows that a person has a propensity to do acts of a certain kind, or that his disposition, character or antecedents makes or make it probable that he will act in a certain way or with any particular intention, is not admissible to prove that he did any such act or acted in such way or with such intention on any particular occasion: Provided that nothing herein shall be deemed to exclude evidence tending to show such matters if it is otherwise relevant, and, in particular (without prejudice to the generality of this proviso), the foregoing provision shall not render inadmissible any evidence which is adduced to show-

(a) that any occurrence is one of a series of two or more similar occurrences, and that the facts of the occurrences comprised in the series indicate some system, plan, or design on the part of any person; or

(b) that any person implicated by any evidence in the commission against or in respect of another person of any particular act has committed other acts indicative of some passion, emotion or feeling in regard to the other person, which would naturally lead or dispose to the commission of the particular act aforesaid with a view to establishing

(i) that the occurrence or act was the act of, or was caused or committed by, the person concerned in such system, plan or design or so implicated as aforesaid;

(ii) that, being his act or caused or committed by him, it was done, caused or committed by him intentionally or with any particular intent."

1. Stow, (1922) 38 LQR 63 (72).

7.107. The legal position is realistically described by Stone in the following words1 while discussing evidence of similar facts:-

"Evidence must be excluded which indicates that the prisoner is more likely than most men to have committed it, but evidence must be admitted which tends to show that no man but the prisoner, who is known to have done these things before, would have committed it. There is a point in the ascending scale of probability when it is so near to certainty, that it is absured to shy at the admission of the prejudicial evidence."

1. Stone, 46 Harvard Law Review 983 (984).

7.108. Position in India summed up.-

Position in India is as follows. Evidence that a person committed an offence or civil wrong on a specified occasion is inadmissible to prove his disposition to commit an offence or civil wrong as the basis for an inference that he committed an offence or a civil wrong on another specified occasion. But such evidence may be admissible to prove some other fact in issue, or relevant, fact, including motive,1 intent,2 plan,3 knowledge,4 identity,5 or absence of mistake or accident.6

1. Section 8.

2. Section 14.

3. Section 11.

4. Sections 5 and 14

5. Section 9

6. Sections 14 and 15

7.109. Evidence or identity-Motion pictures as evidence.-

Coming to identity, the type of evidence which can be used as ancillary to identity is varied. For example, where a fact is relevant, scientific records thereof would be relevant. Hence, when relevant and properly authenticated, motion pictures would be admissible, apparently to establish the scenes or events they depict and would not be subject to the objection of hearsay.

They must be 'relevant', in the sense that they must tend to prove or disprove some fact in issue or relevant fact. They must be authenticated, in the sense that the persons, objects or places pictured should be identied by witnesses. As a motion picture describes more fully and accurately the event than a witness can describe, it may be valuable in many cases, particularly when the relative positions of various objects or the detailed conditions under which an event took place, are of importance.1

1. See the note, Motion Pictures as Evidence, (1962) 64 Born LR reproduced from "C and C". (Journal) 184 (186),

7.110. Verbal changes recommended.-

The importance of section 9 has rendered necessary a discussion of the above points which do not call for any substantial modification of the section The only change to be made in section 9 is a verbal improverfient in the opening words, namely, the section should reac.- "facts which are."

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