RAYUAN JENAYAH NO: N-05-154-2010

So, here too, PW2’s evidence as to the appellant’s
previous acts of intercourse with her was relevant, that is to
say, admissible. But that does not, on the authorities we have
cited, relieve the court of determining whether the probative
value of her evidence outweighed its prejudicial effect. We
have carefully examined the record and nowhere in the
judgment of the Sessions Court is there the kind of balancing
exercise dictated by ss 14 and 15 of the Evidence Act. This is
a serious misdirection. It occasioned a serious miscarriage of
justice as the Sessions Court acted on the similar fact evidence
to add three further charges against the appellant.”
We too have carefully examined the records of appeal before
us and nowhere do we find in the judgment of the learned trial judge
the kind of balancing exercise as dictated by sections 14 and 15 of the
Evidence Act before admitting the similar fact evidence against the
appellant. Again, this is a misdirection.
Before leaving the issue, it is pertinent to address the point
raised by the learned counsel namely on the similarity of the two
offences or charges against the appellant.
On this issue of whether there is similarity between the offence
of possession of 30.40 grams of cannabis for which the appellant was
arrested earlier and charged and the present charge of trafficking in
993.8 grams of the same drug and whether similarity of the offences is
a prerequisite, we can do no better than by referring to the case of
Public Prosecutor v. Mohamad Roslan bin Desa [Mahkamah
Persekutuan Rayuan Jenayah No. 05-28-2007(K)].
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