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Similar Facts and Actus Reus
Published online by Cambridge University Press: 16 January 2009
Extract
Some of the complexity of the English rules of evidence in criminal cases springs from a clash, probably dating back to the formative period of those rules, between two objects, laudable in themselves but antagonistic. One most fundamental principle, of which English lawyers are justly proud, stemming from a desire that a criminal trial should be conducted in a manner as fair to the accused as possible, was that evidence of his misdoings on other occasions should be prima facie inadmissible. On the other hand, courts of justice naturally desire that cogent and weighty evidence that the accused committed the crime with which he is charged should not be excluded from consideration by judge and jury, and consequently evidence, often called similar fact evidence, of other misconduct of the accused is sometimes receivable not because it shows his bad character but in spite of that fact.
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References
1 [1959] 1 Q.B. 545.
2 Corroboration was required by a rule of practice, both because the evidence was of young children, and also because of the nature of the offence: Coulthread (1933) 24 Cr.App.R. 44. The judge was bound to warn the jury of the danger of convicting, but they would be at liberty to ignore the warning.
3 [1946] K.B. 531.
4 [1956] 2 Q.B. 432, 438.
5 p. 142: the same learned author develops the point in (1959) 75 L.Q.R. 333, 343–345. In Scotland this particular difficulty does not arise, as similar fact evidence consisting of single witnesses as to independent acts is admitted only if their evidence affords material for mutual corroboration: Moorov v. H.M. Advocate (1930)Google Scholar J.C. 68; W. J. Dobie in (1946) 58 Jur.Rev. 201.
6 The existence of this discretion in cases on similar fact evidence was recognised by the House of Lords in Harris v. D. P. P. [1952]Google Scholar A.C. 694, and the conviction quashed because the trial judge had failed to exercise it. It should be exercised where the evidence is prima facie admissible, but of little weight, and highly prejudicial to the accused. A recent consideration of this discretion is in R. v. Cook [1959] 2Google Scholar All E.R. 97, a case on the Criminal Evidence Act, 1898, s. 1, proviso (f) (ii).
7 The term actus reus is in common use in this sense. It is doubtless derived from the famous maxim actus non facit reum nisi mens sit rea, but does not really form part of it. The word “reum” is an adjective with “hominem” understood as the object: Kenny, Outlines of Criminal Law, 17th ed., 14, n. 3. The maxim, therefore, indicates that an act does not make a man a criminal without mens rea; there is no reference to actus reus at all. In some circumstances the phrase actus reus is rather misleading, since in the case of an equivocal act it cannot be ascertained whether it is reus, until mens rea has been established.
8 Vol. 13, p. 450, para. 625. This was substantially repeated in the 2nd ed. (1934), Vol. 13, p. 567, para. 639, and in the 3rd ed. (1956), Vol. 15, p. 291, para. 527. In the volume on Criminal Law and Procedure, it was stated in the 1st edition that similar fact evidence was admissible “to show not that the defendant did the acts which form the basis of the charge, but that, if he did such acts, he did them intentionally and not accidentally, or inadvertently, or innocently, or that they formed part of a system”: Vol. 6, p. 381, para. 742. This statement that the evidence was admissible only to prove mens rea was repeated in the 2nd ed., Vol. 9, p. 186, para. 270, but omitted in the 3rd ed.
9 5 N.Z.L.R. 93.
10 (1849) 18 L.J.M.C. 215.
11 (1864) 3 F. & F. 681; 4 F. & F. 346.
12 5 N.Z.L.R. at p. 103.
13 The judgment acknowledges that in arson cases there is a general and abstract question of “design or accident” that arises, which isk separable from and precedes the particular and personal question of the authorship of the crime: ibid. The reasoning is obscure as to why similar questions did not arise in the case before the court.
14 [1894] A.C. 57.
15 Another important ambiguity in the case is whether the evidence was admitted to prove actus reus or mens rea: Turner and Armitage, Cases on Criminal Law, 2nd ed. (1958), 464.
16 5 N.Z.L.R. 265.
17 (1916) 35 N.Z.L.R. 265, 275. He relied upon Channell J., delivering the judgment of the Court of Criminal Appeal in R. v. Fisher [1910]Google Scholar 1 K.B. 149, 152, in a passage subsequently quoted by Bankes, J. in R. v. Rodley [1913]Google Scholar 3 K.B. 468, 472, and by Reading L.C.J. in R. v. Kurasch [1915]Google Scholar 2 K.B. 749, 754, in each case delivering the judgment of the same court. One of the clearest contemporary authorities the other way is R. v. Bond [1906]Google Scholar 2 K.B. 389, Court for Crown Cases Reserved: the facts of the case are mentioned in n. 84, infra.
18 46 Harv.L.R. 954.
19 (1938) 51 Harv.L.R. 988, 1018.
20 [1946] K.B. 531.
21 [1949] A.C. 182, 194.
22 [1952] 1 K.B. 302, 306.
23 [1952] A.C. 694, 701.
24 n. 8 (supra).
25 Hall: n. 22 (supra); Twiss [1918] 2 K.B. 853.
26 Ball [1911] A.C. 47; Smith (1915) 11 Cr.App.R. 229; Cole (1941) 28 Cr.App.R.43; Sims, n. 20 (supra).
27 Thompson [1918] A.C. 221; Robinson (1953) 37 Cr.App.R. 95.
28 Straffen [1952] 2 Q.B. 911; Harris, n. 23 (supra).
29 This may be illustrated from R. v. Alfred Hall. Hall was charged with acts of gross indecency with three men, Bowden, Chapman and Ritchie. H.'s defence as to R. was that he had never seen the man. It is a leading authority on case 1 (a); see n. 25 (supra) and n. 53 (infra). As to B. and C., H. admitted the acts alleged, but pleaded that they were done as medical treatment. H. was not a qualified doctor, but if his defence was established it would rebut any suggestion of indecency. It was a case where the actus was equivocal, and could not be dubbed reus until the vital question of mens rea, the only question in issue, had been decided (see n. 7, supra), and it was on this issue that the similar fact evidence was tendered.
30 n. 26, supra. The case is given its correct title of D. P. P. v. Ball in the Law Journal, Law Times, Criminal Appeal Reports and Cox reports, but is wrongly named R. v. Ball in the official reports and the Justice of the Peace series.
31 (1850) 5 Cox 153, cited Nokes, An Introduction to Evidence (1956), 2nd ed., 112.
32 nn. 8, 9 (supra).
33 (1849) 3 Cox 547.
34 (1819) R. & R. 375.
35 The purpose of corroborating a prosecution witness has become a recognised head of admissibility of similar fact evidence. See R. v. Lovegrove [1920]Google Scholar 3 K.B. 643, a case of type 2 (a), and R. v. Chitson [1909]Google Scholar 2 K.B. 945. See also D. W. Logan in (1934) 50 L.Q.R. at p. 387.
36 See n. 5 (supra).
37 R. v. Quilter (1913) 47 Ir.L.T.R. 264, where the accused, father and son, were indicted for conspiracy to charge C. and D. with having posted threatening notices on October 16, and to procure the son to swear a false affidavit. The prosecution sought to prove that a month later the son brought to the police another threatening notice found wrapped in torn newspaper, which fitted torn newspaper found in the Quilter home. Cherry L.J. ruled the evidence inadmissible to prove design, system or criminal intent, because if a man swears a false. affidavit everyone sees that he intended it. In the South African case of R. v. Davis (1925)Google Scholar A.D. 30, 37, Innes C.J. said that on a charge of gross indecency no question of intent could arise because the nature of the act was unequivocal. It is not, however, always unequivocal in such cases: see n. 29 (supra), and the discussion of R. v. Cole (infra, n. 92). A full bench of the Calcutta High Court rejected similar fact evidence on charges of murder and theft, where the head of the victim had been practically severed from her body and practically everything she possessed stolen: Emperor v. Panchu Das (1920)Google Scholar 47 Cal. 671. As to the United States, Julius Stone cites and criticises a number of such cases: 51 Harv.L.R. 988, 1012–1015.
38 [1918] A.C. 221, 232.
39 Ibid.
40 [1959] 1 Q.B. at p. 550.
41 n. 27 (supra).
42 (1954) 38 Cr.App.R. 118.
43 51 Harv.L.R. 988, 1022.
44 n. 28, supra.
45 n. 39, supra.
46 [1952] 2 Q.B. 911.
47 [1952] A.C. 694
48 [1952] 1 K.B. 309, 317.
49 [1952] A.C. 694, 711.
50 (1953) 37 Cr.App.R. 95, 104, 106.
51 n. 49, supra.
52 This is the explanation of the ratio decidendi given by Lord Oaksey, the dissenting judge: ibid., at p. 713. Presumably if he was in error, his learned brethren would have corrected him.
53 n. 25, supra.
54 n. 29, supra.
55 n. 27, supra.
56 For this reason, in the analysis here attempted, Thompson is placed in category 2 (a), and Hall's case, where Ritchie is concerned, in category 1 (a).
57 Essays on the Law of Evidence, 121–122.
58 n. 22, supra.
59 n. 25, supra.
60 See the argument for Twiss as reported in (1919) 88 L.J.K.B. 20, 22. Another report quotes Darling J. as saying in the course of delivering the judgment of the court that “all the facts are in dispute”: 26 Cox 325, 329.
61 Op. cit., p. 292.
62 Ibid. See also Cowen and Carter, op. cit., at p. 151.
63 (1925) A.D. 30.
64 n. 27, supra.
65 [1918] 2 K.B. 853, 858.
66 (1925) A.D. 30, 35, referring to [1917] 2 K.B. at p. 633.
67 [1918] A.C. 221, 235.
68 (1923) 17 Cr.App.R. 109.
69 Such a plea would place the case outside the scope of this article: n. 29, supra.
70 (1923) 17 Cr.App.R. 85. Held that if the breaking was by skeleton key, evidence of a jemmy found at M.'s home would be inadmissible, and vice versa.
71 There are plenty of dicta that such evidence will be admissible, but it was rejected in Harrison-Owen [1951]Google Scholar 2 All E.R. 726; Harris v. D. P. P., n. 23, supra; Taylor, n. 68, supra; Rodley, n. 2, infra; Oriel (1845) 9 J.P. 170; Tidmarsh (1931) 23Google Scholar Cr.App.R. 44. In R. v. Coulter (1910) 5Google Scholar Cr.App.R. 147, evidence of a prosecution witness that two days after the burglary charged, C. described to him two other burglaries he had committed was held inadmissible, but that C. asked him to take part in a projected burglary was admitted. In R. v. Cobden (1862) 3 F. & F. 833, evidence was admitted of three other burglaries on the very night of that charged, on the ground that the events of the night were so intermixed that it was impossible to separate them. In the United States, a case to illustrate the admission of similar fact evidence on a burglary charge is State v. Corcoran (1914) 82 Wash. 44.Google Scholar
72 These remarks are a rough paraphrase of the way Lord Sumner's mind seems to have been working in the Thompson case [1918] A.C. at p. 235.Google Scholar
73 n. 14, infra.
74 n. 46, supra. Such cases are described by W. J. Dobie, dealing with Scots law in (1946) 58 Jur.Rev. 201, 206, as where the perpetrator has left his mark on the crime, not in a fingerprint or a footmark, but in the less certain but still recognisable form, of a peculiar method. He refers to Lord Sands' hypothetical accused who obtains food and lodging without payment by impersonating George Bernard Shaw, and in each case absconds in the morning with the family Bible: Moorov v, H.M. Advocate (1930) J.C. 68, 88.Google Scholar
75 n. 26, supra.
76 n. 30, supra.
77 n. 26, supra. Stress is not laid upon this case under head 1 (b), as it is in some degree a hybrid bearing closer affinity with head 2 (b). The deceased died in her bath. Smith was the only person with the opportunity of murdering her. The question resembles one of identity, though it is not a question whether she died at the hands of S. or of another, as in case 2 (b), but whether she died from natural causes such as epilepsy or S. murdered her. In each case, however, the question at issue is one of causation.
78 n. 14, infra.
79 [1959] 1 Q.B. at p. 550.
80 n. 14, infra.
81 [1918] A.C. at p. 232.
82 Noor Mohamed, accused of wife poisoning in the 1949 Privy Council case, n. 21, supra, was a goldsmith. Armstrong, similarly charged, was a solicitor, n. 90, infra. The goldsmith is less likely to blurt out excuses for the possession of arsenic, as Armstrong did, but does it alter tie position of the accused qua the introduction of similar fact evidence if he does so? It is submitted infra, n. 1, that it is immaterial.
83 (1840) 4 J.P. 587.
84 (1889) 16 Cox 703. This case was considered by the Court for Crown Cases Reserved in R. v. Bond [1906] 2Google Scholar K.B. 389, where the court held by five to two that evidence of similar facts was admissible to prove that the accused, a surgeon, used instruments upon a woman not for a lawful purpose, but to procure an abortion. Of the majority of five, Kennedy J. said that Dale was right (406), but A. T. Lawrence J. said it went too far (424), as did Alverstone L.C.J. of the dissident minority (395).
85 (1860) 2 F. & F. 343.
86 (1888) 58 L.T. 776.
87 Noor Mohamed v. R. [1949]Google Scholar A.C. 182, 191.
88 [1952] A.C. 694, 705.
89 Sir John Salmond makes this point in his argument in Rogan (n. 17, supra). He refers to R. v. Hopper [1915] 2Google Scholar K.B. 431, 435, where in a murder trial the defence relied upon was one of accidental killing, but the court held that the question of provocation must be put to the jury. Another such case is Kwaku Mensah v. R. [1946] A.C. 83, 92.Google Scholar
90 [1922] 2 K.B. 555. The case considered purely on a defence of suicide would fall into category 2 (b): the corpus delicti is admitted, and also opportunity, but it is alleged that the crime was committed not by the accused, but by another, the deceased. On this basis, the leading case to suggest admissibility would be Straffen, n. 44, supra.
91 (1949) N.Z.L.R. 791, 794.
92 (1941) 28 Cr.App.R. 43, 46, 49.
93 n. 14, infra.
94 n. 27, supra.
95 nn. 25, 53, supra, victim Ritchie.
96 nn. 29, 54, supra, victims Bowden and Campbell.
97 Ibid.
98 (1916) 35 N.Z.L.R. 265, 304, cited in Cross, op. cit., 278.
99 n. 89, supra.
1 See R. v. Rogan (n. 5, infra) where some judges held that the defence of innocent association was open and rebuttable, even though the accused denied everything, both the crime and opportunity.
2 [1913] 3 K.B. 468.
3 An example of evasion is at the trial of Armstrong (n. 90, supra). During the argument on the admissibility of similar fact evidence, Darling J., the trial judge, asked Sir Henry Curtis Bennett whether his defence was suicide, but the learned counsel refused to disclose the defence: Notable British Trials, p. 29. In defending Smith, accused of “bride” murder in a bath, Sir Edward Marshall Hall was extremely non-committal as to the exact nature of the defence: (1915) 11 Cr.App.R. 229.
4 (1916) 35 N.Z.L.R. 265.
5 Ibid., per Stout C.J. (284), Chapman J. (330).
6 Ibid., at p. 321.
7 n. 55, supra.
8 n. 6, 1st series, supra.
9 (1916) 35 N.Z.L.R. 265, per Denniston J. (304), Stringer J. (342). This view is also held by Cross (1959) 75 L.Q.R. at p. 337. One paramount reason for adhering to the contrary view is that under modern conditions the besetting sin of the English law of evidence is that there are too many strict rules excluding material matter. The development of the notion of judicial discretion in the last forty or fifty years has given the criminal courts some opportunity to relax imperceptibly this strictness at any rate in borderline cases, secure in the knowledge that the interests of the accused can be safeguarded by the duty of the judge to exercise his discretion before admitting even admissible evidence: n. 6, 1st series, supra.
10 Ibid., at p. 328.
11 Ibid., at p. 336.
12 n. 92, supra.
13 The latter view is losing ground in view of modern cases. See the change in the treatment in Halsbury: n. 8, 1st series, supra.
14 [1946] K.B. 531. This fact is mentioned in Hall [1952] 1 K.B. 302. Facts of Sims are set out in great detail in (1946) 96 L.J.(News.) 709.
15 n. 92, supra.
16 [1924] 2 K.B. 300.
17 n. 14, 1st series, supra.
18 n. 90, supra.
19 (1918) 13 Cr.App.R. 173. The case is not a strong authority as scant regard is paid to the similar fact rules: in this respect it is a case like Chandor.
20 n. 72, supra.
21 (1938) 51 HarvL.R. 988, 1031. Admittedly Stone gives the same warning regarding unnatural offences. His remarks in that context require modification since the subsequent case of Sims, n. 14, supra.
22 n. 74, supra.
23 n. 5, 1st series, supra.
24 In (1959) 75 L.Q.R. 333, in an article not published when I was writing this paper, Cross tries to rationalise Chandor, and to find a place for it within the existing framework: he ingeniously distinguishes the case from that of Alfred Hall: ibid., at p. 942.