Makin v Attorney-General for New South Wales: PC 12 Dec 1893

The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons from other mothers and that their bodies were found buried in gardens of houses occupied by the prisoners.
Held: The evidence was admissible.
As to the admission of similar fact evidence, ‘It is undoubtedly not competent for the prosecution to adduce evidence tending to shew 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 shew 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.’
The court expounded the principles on which a Court of Criminal Appeal should act, and construed the New South Wales Act, which in defining a strictly appellate jurisdiction in criminal matters, provided ‘that no conviction or judgment thereon shall be reversed, arrested or avoided in any case so stated, unless for some substantial wrong or other miscarriage of justice’.
Held: To transfer the decision of the guilt of the accused from a jury, acting on oral testimony, to an appellate tribunal, possessing that testimony only in writing, cannot be said to involve no miscarriage of justice, and hence that a court of criminal appeal is not entitled to dismiss the appeal by retrying the case on shorthand-notes, or by holding that, if the trial judge had excluded the evidence, which he wrongly received, the verdict would probably have been the same.


Lord Herschell LC


[1894] AC 57, [1893] UKPC 56





Cited by:

CitedRex v Dyson CCA 1908
The court adopted the practice for selecting cases for which leave to appeal should be given which was set down in Makin . .
CitedIbrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
CitedDirector of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
CitedRegina v Boardman HL 1974
The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
Held: In order to be admissible similar facts must bear a . .
CitedO’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
CitedSattin v National Union Bank Ltd CA 21-Feb-1978
The plaintiff sought damages from the loss of a diamond deposited with the defendant bank as security. He asked to present evidence about the experience of another customer who had lost jewellery he had deposited with it.
Held: The proposed . .
CitedBerger v Raymond Sun Ltd 1984
The court distinguished the test of the admissibility of evidence of similar facts from the criteria according to which the court should exercise its discretion to exclude such evidence. He said that the test of admissibility was the same in civil . .
CitedRegina v Straffen CCA 20-Aug-1952
The defendant had been arrested for murders of young girls, but after being found unfit to plead, he was committed to Broadmoor. While he escaped another girl was murdered, and he was charged. The prosecutor sought to bring in evidence of admissions . .
CitedO’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
ApprovedRegina v Brooks CACD 1992
. .
CitedRegina v Beedles CACD 31-Jul-1996
The defendant appealed against his conviction for sexual assault. The issue was whether a note written by the complainant to her teacher was admissible as evidence of recent complaint to corroborate her statement. Similar allegations had been made . .
CitedRegina v Wright and Ormerod CACD 1990
The defendants were charged with indecent assault on a child of 5, who said that the defendants had hurt her in the back and said naughty things to her. The Judge also admitted evidence from the child’s mother of the complaint the child had made to . .
CitedMitchell, Regina v SC 19-Oct-2016
Appeal against conviction for murder. Evidence was agreed with her representatives as to previous acts using knives, but was presented despite withdrawal by her of her consent. The prosecution now appealed against the quashing of the conviction.
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 11 June 2022; Ref: scu.184203