Makin v Attorney General for New South Wales

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Makin v Attorney General for New South Wales
Royal Arms of the United Kingdom (Privy Council).svg
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 12 December 1893
Citation(s) [1893] UKPC 56, [1894] AC 57
Case history
Prior action(s) R v Makin [1893] NSWLawRp 28, (1893) 14 LR (NSW) 1
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
similar fact evidence

Makin v Attorney General for New South Wales[1] [1894] AC 57 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]


A husband and wife 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. Both were convicted. The trial judge stated a special case for the opinion of a Full Court of the Supreme Court of NSW which held that the similar fact evidence was properly admitted.[4]

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[edit]

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.

See also[edit]


  1. ^ a b Makin v Attorney General for New South Wales [1893] UKPC 56, [1894] AC 57 (12 December 1893), Privy Council (on appeal from NSW).
  2. ^ a b Malek Hodge (2010). Phipson on Evidence (17th ed.). Sweet & Maxwell. 19-17. 
  3. ^ a b Ian Dennis (2007). The Law of Evidence (3rd ed.). Sweet & Maxwell. 18.21. 
  4. ^ R v Makin [1893] NSWLawRp 28, (1893) 14 LR (NSW) 1 (30 March 1893), Supreme Court (NSW, Australia).