ABSTRACT
The law relating to similar fact evidence can be of substantial importance in sexual cases. After Boardman,78 evidence of the accused’s previous sexual misconduct or convictions could be adduced by the prosecution in examination-in-chief where there was a striking similarity between them and the acts in question. The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence.’79 But the Boardman test was interpreted rigidly in cases such as Brooks,80 where it was held that separate charges against a father for sexual abuse of his three daughters should not have been heard together since, although there was evidence that he had sexually abused each of them in a similar way, it was not enough for the facts to be merely similar. Brooks was accordingly acquitted of all the charges against him. It has been pointed out above that the complainant in a sexual assault trial is in a different situation from most other witnesses, in that there is no initial assumption that what she is saying is true. On the contrary, the prosecution faces a supremely hard task in pushing aside the haze of suspicion which surrounds her, fending off the routine onslaughts against her character and proving the case beyond reasonable doubt. Clearly, evidence that the accused has sexually assaulted other family members is of the utmost importance in supporting her claim and strengthening her credibility. That it is fair and appropriate for the prosecution to be able to adduce such evidence in examination-in-chief was finally recognised by the House of Lords in P,81 a radical decision which has finally cast aside the straitjacket imposed by Boardman. It was decided, in a case which, again, involved sexual abuse by a father, that the test of admissibility should be the probative force of the evidence and whether this was sufficiently high to justify its admission, notwithstanding its prejudicial effect. Striking similarity was held to be but an instance of this. By materially overruling cases such as Brooks, the door has been opened more widely to permitting evidence of previous sexual misconduct by defendants, particularly in cases where sexual abuse by parents or stepparents is concerned.
