Makin v AG of NSW, 1893 UKPC 56
Citation: Makin v AG of NSW, 1893 UKPC 56
Rule of thumb: When can character evidence be lodged in a case & inferred as a fact of the case? Where the defendant/respondent has done fundamentally similar things in the past. The Court held that similar-ish fact evidence is not admissible in criminal trials, and that in order for past behaviour to be admissible it has to be extensive and it has to be very similar – this is needed to prevent criminal trials from becoming witch hunts. The Court reasoned that this very much makes a massive difference in determining whether someone did something by design deliberately or accidentally, with the accident commission of an offence not being a crime. However, they held that in exceptional circumstances, where the accused has done similar things many times, then the evidence of similar conduct in the past can be lodged as evidence.
Judgment:
The Court held that similar-ish fact evidence is not admissible in criminal trials, and that in order for past behaviour to be admissible it has to be extensive and it has to be very similar – this is needed to prevent criminal trials from becoming witch hunts. The Court reasoned that this very much makes a massive difference in determining whether someone did something by design deliberately or accidentally, with the accident commission of an offence not being a crime. However, they held that in exceptional circumstances, where the accused has done similar things many times, then the evidence of similar conduct in the past can be lodged as evidence. The particular facts of this case were that Makin accepted babies/toddlers for adoption in return for a one-off fee. A 1 month old baby died in the care of Makin and he went to trial for murder. Police investigation found 12 other babies buried in houses Makin had previously occupied, and it was held that in cases like this then this type of evidence should indeed be allowed. The Court held that where past similar conduct is extensive, then this is admissible, ‘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. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other’, Lord Herschell. The famous decision from this case was affirmed in Scots law Townsley v Lees, 1996.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.