Makin v Attorney General for New South Wales

Makin v Attorney General for New South Wales
Court Judicial Committee of the Privy Council
Full case name (1) John Makin, and (2) Sarah Makin v Attorney General for New South Wales
Decided
  • 22 July 1893 appeal dismissed
  • 12 December 1893 reasons published
Citation(s) [1893] UKPC 56, [1894] AC 57
Case history
Prior action(s) R v Makin [1893] NSWLawRp 28, (1893) 14 LR (NSW) 1
Appealed from Supreme Court (Full Court)
Court membership
Judges sitting Lord Herschell LC, Lord Watson, Lord Halsbury, Lord Ashbourne, Lord Macnaghten, Lord Morris, Lord Shand
Case opinions
Decision by Lord Herschell LC
Keywords
similar fact evidence

Makin v Attorney General for New South Wales[1] is a famous decision of the Judicial Committee of the Privy Council where the modern common law rule of similar fact evidence originated.[2][3]

Background

A husband and wife, John and Sarah Makin, were baby farmers and a one month old child died within 2 days after being given to them. They were charged with murdering the child 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. On 9 March 1893 both were convicted, and recommended that Sarah Makin be shown mercy.[4] The trial judge stated a special case for the opinion of a Full Court of the Supreme Court of NSW which heard the appeal on 23 March and handed down their decision on 30 March 1893, holding that the similar fact evidence was properly admitted.[5] Immediately following the Full Court's decision, Stephen J sentenced both John and Sarah Makin to death by hanging.[6] Sarah Makin's sentence was commuted to life imprisonment before the appeal to the Privy Council.[7]

The appeal to the Privy Council was based on whether this evidence was admissible or whether it was unfairly prejudicial to their defence.[3]

Opinion of the Court

At the close of arguments on 22 July 1893 the Privy Council announced that its advice was that the appeal should be dismissed,[8] and its reasons were published on 12 December 1893.[1]

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.[2]

It is undoubtedly not competent for the prosecution to adduce evidence tending to show 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 show 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.[1]

Evidence of similar facts can only be admitted if it is both relevant and its probative value outweighed any prejudicial effect.

Aftermath

A plea for clemency for John Makin,[9] was denied and he was hanged at Darlinghurst Gaol on 15 August 1893.[10]

See also

References

  1. 1 2 3 Makin v Attorney General for New South Wales [1893] UKPC 56, [1894] AC 57 (12 December 1893), Privy Council (on appeal from NSW).
  2. 1 2 Malek Hodge (2010). Phipson on Evidence (17th ed.). Sweet & Maxwell. 19-17.
  3. 1 2 Ian Dennis (2007). The Law of Evidence (3rd ed.). Sweet & Maxwell. 18.21.
  4. ↑ "Central Criminal Court - Thursday". The Sydney Morning Herald. 10 March 1893. p. 3 – via National Library of Australia.
  5. ↑ R v Makin [1893] NSWLawRp 28, (1893) 14 LR (NSW) 1 (30 March 1893), Supreme Court (Full Court) (NSW, Australia).
  6. ↑ "Central Criminal Court - The Makin case - passing sentence of death". The Sydney Morning Herald. 31 March 1893. p. 3 – via National Library of Australia.
  7. ↑ "The baby-farming". The Sydney Morning Herald. 17 April 1893. p. 7 – via National Library of Australia.
  8. ↑ "The Sydney Infanticides". The Argus (Melbourne) (14, 687). Victoria, Australia. 24 July 1893. p. 5. Retrieved 7 October 2017 – via National Library of Australia.
  9. ↑ "The condemned man Makin". The Sydney Morning Herald. 12 August 1893. p. 7 – via National Library of Australia.
  10. ↑ "Execution of John Makin". The Sydney Morning Herald. 16 August 1893. p. 7 – via National Library of Australia.
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