Makin v. Attorney General for New South Wales [1894] AC 57 is a famous decision of the Privy Council

Privy council

A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...

 where the modern common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 rule of similar fact evidence

Similar fact evidence

In the law of evidence, similar fact evidence establishes the conditions under which factual evidence of past misconduct of accused can be admitted at trial for the purpose of inferring that the accused committed the misconduct at issue.In Canada, the rule is established in R. v...

 first originated.

Background

A husband and wife were charged with murdering a child they were fostering and burying it in their backyard.

During their trial evidence of twelve other babies found buried in the backyards of their previous residences was offered as evidence.

The appeal was based on whether this evidence was admissible or whether it was unfairly prejudicial to their defence.

Opinion of the Court

Lord Herschell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances.

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.'

Evidence of similar facts can only be admitted if it is both relevant and probative to a degree that it substantially outweighs the unfair prejudicial effect.