Abstract:
This piece addresses two recent local decisions on similar fact evidence that demonstrate the court’s difficulties with reconciling the provisions of the Evidence Act with a more flexible approach that can be developed through the common law. These two cases extend the basis for admitting similar fact evidence beyond ss 11(b), 14 and 15 of the Evidence Act. The application of the common law balancing test comparing prejudicial effect and probative value has also been broadened to consider factors such as the timing of the objection to the evidence and whether a co-accused wishes to rely on the similar fact evidence. Yet, the cases do not discuss the conceptual and normative justification for so doing, taking us further down the path of pragmatism over principle.