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Kamraj Nayagam continues the landmark case series with an overview of the early decisions on similar fact evidence.

The sensational trial is a staple of media reporting in the English speaking world. Mona Fandey, Jean Sinnappa, Sunny Ang, Crippen, Scopes (The monkey trial), OJ Simpson ... the list goes on. Most involve murder. Few break new legal ground. This is hardly surprising - dry legal analysis seldom makes for sensational newspaper coverage. To this rule, the cases on similar fact evidence appear to provide an exception, being as much notorious for their gruesome facts as they are studied for their effect as legal precedents.

"Similar fact evidence" is the name given to the principle of law which allows evidence of a person's propensity to commit similar acts to be brought before a court. It is a principle of law which applies to both civil and criminal cases, as can be seen from O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534 (quoting from the speech of Lord Phillips):

"11. For obvious reasons evidence has never been admissible if it has not been relevant to the issues arising in the proceedings. Rules of admissibility govern the circumstances in which the evidence which is relevant is not admitted. Two policy considerations underlie the rules of admissibility with which this appeal is concerned. First, evidence should not be admitted if it is likely to give rise to irrational prejudice which outweighs the probative effect that the evidence has in logic. This consideration of policy carries particular weight where the tribunal is a jury, whose members are not experienced as the judges in putting aside irrational prejudice. Secondly, evidence should not be admitted if its probative weight is insufficient to justify the complexity that it will add to the trial. That is a consideration of general application.

12. The evidence whose admissibility is in issue on this appeal is known as "similar facts" evidence. Issues in relation to such evidence normally arise in criminal rather than civil proceedings. Where a defendant to a criminal charge has a criminal record, his propensity to commit crime will normally have some relevance to the question of whether he committed the offence with which he is charged. As a general rule such evidence has none the less been held to be inadmissible on the ground that its prejudicial effect is likely to outweigh its probative value. Exceptions have, however, been made to this general exclusion. The nature and extent of those exceptions have proved a frequent preoccupation of the appellate courts and, on at least four occasions, of your Lordship's House."

The tension between probative force and prejudicial effect identified in the quotation above may be summed up in two old saws. The first being "the leopard does not change his spots" and the second, "give a dog a bad name, and hang him on it."

The study and practice of criminal law seldom overlap with what the late John Mortimer QC, author of the Horace Rumpole series, called "the Sunday morning murder." But exceptions do exist. For example, Sir Edward Marshall Hall KC, the "Great Defender" of Edwardian England, was renowned for his devastating cross-examinations, impassioned closing speeches, and for having the most handsome profile in England. He was also notorious for stage-whispering to his junior counsel in open court "You must argue this point: there is some law in it!" It was said of Marshall Hall that his stage whispers could be heard in the public gallery – of the next-door court. Yet his name appears in one of the most cited cases on evidence, as counsel for George Joseph Smith, the accused in the Brides in the Bath case.

Two of the cases featured here, R v Smith [1914-15] All ER Rep 262 and R v Armstrong [1922] All ER Rep 153 are covered in the collected "Penguin Famous Trials". They are also well covered on the internet. The third, Makin v AG of NSW in Australia [1891-94] All ER Rep 24, also known as the "Babies in the Backyard", is the leading case.


John and Sara Makin (husband and wife) were accused of murdering Horace Amber Murray, a baby they had fostered. At their trial, evidence was led that the bodies of twelve other fostered infants were found buried in the gardens of premises previously occupied by the defendants. The trial exposed the practice of "baby-farming", whereby working mothers (often single parents) in Australia would pay people to take care of their infant children. Often these mothers were unable to visit their children on a regular basis. It appears that the Makins were taking in children for very low rates. Their story was that they had adopted the child, who had then died.

In rebuttal of this, evidence was led that the Makins had taken in other infants for money and that the bodies of other infants had been found. It appears that they had deliberately murdered the children (using a knitting needle or hat-pin to administer a stab to the heart) with a view to making a profit on the small sums given by the parents of the children.

In some cases the Makins went to some lengths to deceive the parents into parting with further sums of money, and they appear to have made it a practice to move from house to house and town to town with some frequency, doubtless trying to keep ahead of suspicion.

The Makins were convicted, and appealed. The case went from Australia to the Privy Council, which held that:

"Their Lordships do not think it necessary to enter upon a detailed examination of the evidence in the present case. The prisoners had alleged that they had received only one child to nurse; that they had received 10s. a week whilst it was under their care, and that after a few weeks it was given back to the parents. When the infant with whose murder the appellants were charged was received from the mother she stated that she had a child for them to adopt. Mrs Makin said that she would take the child, and Makin said that they would bring it up as their own and educate it, and that he would take it because Mrs Makin had lost a child of her own two years old ... The mother said that she did not mind his getting £3 premium so long as he took care of the child. The representation was that the prisoners were willing to take the child on payment of the small sum of £3, inasmuch as they desired to adopt as their own. Under these circumstances their Lordships cannot see that it was irrelevant to the issue to be tried by the jury that several other infants had been received from their mothers on like representations, and upon payment of a sum inadequate for the support of the child for more than a very limited period, or that the bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners."

The appeal failed and John Makin was hanged. Sara Makin, having received a recommendation for clemency from the jury, lived until 1918. The case exposed the dreadful state of childcare in Australia, and prompted legal and social reforms.


The most well-known of the English cases is R v Smith (supra). George Joseph Smith was convicted of the murder of Beatrice "Bessie" Munday. At the trial, evidence was led as to the deaths of Alice Burnham and Margaret Lofty. Both had married Smith (who used various names). Both had given or willed to Smith all their worldly wealth. Smith had also insured their lives.

Smith would ensure that the rented rooms where the newly married couple spent their first night of connubial bliss contained a bath. He would then suggest that the bride takes a bath. In each case, the bride drowned in the bath. Evidence was also led that it was virtually impossible for a healthy person to accidentally drown in this manner, but that if suddenly forced under it would be almost impossible to resist.

It appears that Smith's introduction to serial murder may have been almost accidental. His first victim, Bessie Munday, was a victim of his previous preferred crime, that of bigamy. It appears not to have been adduced at the trial that Smith had entered into no less than seven bigamous marriages, in each case deserting the bride as soon as he had parted her from whatever wealth she possessed.

In the case of Bessie Munday, she was unfortunate enough to meet with Smith again, by accident. He apparently persuaded her to forgive him, and moved into rented accommodation with her. Shortly thereafter he bought a bath and before long, she drowned in the bath. It seems likely that Smith murdered her to cover his tracks, and in so doing discovered that it was easier to murder his brides than to desert them.

Smith was convicted of the murder of Bessie Munday. His appeal failed despite the valiant efforts of his counsel, Marshall Hall KC.

The report is short, and consists largely of adopting the principle set out in Makin. Nevertheless, it remains a commonly cited case in legal textbooks, perhaps because of its gruesome facts.


The case of Major Herbert Rowse Armstrong cannot be said to have created any new law, but rivals the others in sensationalism, and, even allowing for the loss of life, shows an element of black comedy lacking in the other cases.

Unlike the other two cases, which as it were, shone a light into the darker recesses of society, the demi-monde so beloved of Victoriana, Armstrong's case took place in surroundings of utmost respectability, and he remains the only English solicitor to hang for murder.

Armstrong was convicted of murdering his wife by arsenic poisoning. The case had first come to the attention of the authorities based on a suspicion that Armstrong was attempting to murder one Oswald Martin, the only other solicitor in Hay-on-Wye, a picturesque little town situated on the border of England and Wales.

Martin had been taken violently ill after going to Armstrong's house for tea. Armstrong had passed him a scone, saying "excuse fingers." Martin's father-in-law's suspicions were roused when he recalled that he, as the town chemist, had sold to Armstrong a considerable quantity of arsenic, which he claimed was for killing dandelions.

Further investigations revealed that a member of Martin's household had been taken ill after eating some chocolates which were sent anonymously. The remaining chocolates were examined, and each was found to have a syringe-hole in the bottom.

Whilst the police continued to investigate the matter, Armstrong (possibly motivated by a desire to further delay a conveyance of land in relation to which he is thought to have misappropriated funds) continued to hound Martin with invitations to take tea, at first at his home and then at his office. Martin, obviously reluctant to oblige, yet urged by the police to give nothing away, was put to ever more desperate shifts in his attempts to avoid Armstrong. This macabre state of affairs persisted for over two months, ending with Armstrong's arrest on suspicion of attempting to murder Martin.

In the course of investigations, Mrs Armstrong's body was exhumed. She had died earlier that year (1921) of an illness which had been thought strange but not suspicious. Her remains were found to contain a large amount of arsenic, which made her final illness much more explicable. This led to Armstrong being charged for the murder of his wife. His defence amounted to suggesting that she had committed suicide.

Arsenic was found in Armstrong's possession, divided into small packets, each one amounting to a fatal dose. One such packet was found on his person when he was arrested. Evidence was led of all this, as well as of Martin's experiences. The jury convicted Armstrong, who appealed to the Court of Criminal Appeal. In dismissing the appeal, Lord Hewart, CJ, had this to say:

"There was the clearest possible evidence that the appellant, on Jan. 11, 1921, purchased a quarter of a pound of white arsenic, and that when he was arrested on Dec. 31, 1921, he had in his pocket a packet containing a fatal dose of white arsenic. In these circumstances, so soon as he stated the defence, as he at once did, that he bought and was keeping the poison for the innocent purpose of destroying weeds, it was open to the prosecution to show by means of the evidence relating to Martin that the appellant neither bought nor kept the poison for that pretended innocent purpose."


In this age of political correctness, it is perhaps befitting that the more recent cases on similar fact evidence have tended to focus on the application of the doctrine to civil cases – macabre and gruesome circumstances, whilst giving rise to an enjoyable frisson in the short term, like media reports of sexual escapades of Malaysian politicians, become less palatable with prolonged consideration.

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