Damages, custom, state of mind, similar facts and course of business (sections 10 to 14)

1. Section 10: facts relevant to damages

In suits for damages, any fact which will enable the Court to determine the amount that ought to be awarded is relevant (old s.12). Income of the deceased in a fatal accident claim, the cost of repairs, the loss of reputation in defamation: all go to quantum. Section 50 (old s.55) adds that a plaintiff's character is relevant where it affects the damages he ought to receive.

2. Section 11: right or custom in question

Where the existence of a right or custom is in question, two kinds of fact are relevant (old s.13):

• (a) any transaction by which the right or custom was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with it; and
• (b) particular instances in which it was claimed, recognised or exercised, or its exercise disputed, asserted or departed from.

The illustration is a right of fishery: a deed granting it to A's ancestors, a mortgage of it by A's father, instances of exercise and of obstruction by neighbours, are all relevant. Section 11 works with section 26(d) (statements of deceased persons on public rights), section 26(g) (statements in deeds relating to such transactions), section 36 (judgments on matters of a public nature) and section 42 (opinions on general custom). Judgments in earlier suits recognising the custom are "transactions" under clause (a).

3. Section 12: state of mind and state of body

Facts showing intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards a particular person, or a state of body or bodily feeling, are relevant when that state is in issue or relevant (old s.14).

Explanation 1 is the control. The fact must show the state of mind exists not generally, but in reference to the particular matter in question. Compare the paired illustrations:

• (o) That A had on other occasions shot at B is relevant to show his intention to shoot B. That A was in the habit of shooting at people with intent to murder them is irrelevant.
• (p) That A said something showing an intention to commit this particular crime is relevant. A statement showing a general disposition to commit crimes of that class is irrelevant.
• (n) That B's attention was drawn to the defect in that particular car is relevant to his negligence. That he was habitually negligent about cars he let on hire is irrelevant.

Knowledge is often proved this way. Possession of many other stolen articles at the same time shows that A knew the article in question was stolen (illustration (a)); possession of other counterfeit coins shows knowledge that the coin passed was counterfeit (illustration (b)). Statements by a sick man about his symptoms (illustration (l)) and expressions of feeling between spouses near the time of alleged cruelty (illustration (k)) prove states of body and mind.

Explanation 2. Where the previous commission of an offence is relevant under this section, the previous conviction is also relevant. This is separate from section 49, which makes bad character of the accused generally irrelevant.

4. Section 13: accidental or intentional

When the question is whether an act was accidental or intentional, or done with particular knowledge or intention, the fact that it formed part of a series of similar occurrences in each of which the person was concerned is relevant (old s.15). The illustrations are a man whose successive insured houses all burnt down, a clerk whose false entries are all in his own favour, and repeated delivery of counterfeit coins.

The English source is Makin v. Attorney-General for New South Wales (Privy Council, 1894): the bodies of several infants were found buried in the gardens of houses occupied by a couple who took in babies for money. Evidence of the other burials was admitted, not to show that the accused were baby farmers by disposition, but to rebut the defence that the death charged was accidental. The companion case is R. v. Smith (1915), the "brides in the bath", where the deaths of three wives in their baths, each after insuring her life in his favour, were admitted to show design.

5. Section 14: course of business

When the question is whether a particular act was done, the existence of any course of business according to which it naturally would have been done is relevant (old s.16). That letters put in a certain tray are carried to the post in the ordinary course, and that this letter was put there, is relevant to whether it was dispatched. That a letter was posted and not returned is relevant to whether it reached the addressee. Section 119 illustration (f) (old s.114(f)) supplies the matching presumption that the common course of business has been followed.

6. Problem

A is accused of murdering a woman P. The prosecution seeks to prove that two years earlier he murdered his wife Z, and so had the mens rea to murder P. Is the evidence relevant and admissible? (Law of Evidence, June 2025)

Issue. Whether a previous, unconnected murder is relevant to prove intention in the present one under section 12 or 13, or whether it is barred as evidence of bad character under section 49.

Law. Section 12 admits facts showing a state of mind only in reference to the particular matter (Explanation 1, illustrations (o) and (p)). Section 13 admits a series of similar acts only where the question is whether the act charged was accidental or intentional. Section 49 (old s.54) makes the bad character of the accused irrelevant unless he has given evidence of good character.

Application. The earlier killing of Z has nothing to do with P. It is offered to show that A is a man who kills women, which is general disposition, exactly what illustration (o) excludes ("in the habit of shooting at people"). Nothing suggests A says P's death was accidental, so section 13 is not engaged. If A had admitted causing P's death but claimed accident, and the two deaths showed a common system (same method, same motive), section 13 could let the earlier death in.

Conclusion. On these facts the evidence is irrelevant and inadmissible. A's intention towards P must be proved by facts concerning P.

How this is examined

These sections usually appear as problems: the previous-murder question above, the receiver of stolen goods with other stolen articles, the insured house fires. Name the section, quote the Explanation 1 test, and use the paired illustrations; that is what earns the marks. A short note on "similar fact evidence" should cite Makin.