Report No. 94
4.4. Discretion as to evidence of similar facts.-
There is another area where discretion is exercised in England in regard to evidence. Evidence may generally not be given of a party's misconduct on prior occasions, if its only purpose is to show that he is a person likely to have misconducted himself on the occasion in question. But such evidence is admissible if it is relevant for some other reason. Yet, the evidence so relevant for some other purpose may relate to something which occurred a long time ago,1 or it may be of a tenuous nature.2 As gross states, "In all such cases, the judge ought to consider whether the evidence3 which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted.
If, so far as the purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion sense of fairness of the judge."4
1. R. v. Cole, (1941) 165 LT 125.
2. R. v. Doughty, (1965) 1 All ER 540: (1965) 1 WLR 331.
3. Cross Evidence, (1973), p. 90.
4. Noor Mohammed v. R., (1949) AC 182 (192): (1949) 1 All ER 365 (370); see also Hams v. Director of Public Prosecution, 1952 AC 684 (707): (1952) 1 All ER 1044 (1046) (per Lord Simon).