Course Outline Evi I LAW 4410(2)

AHMAD IBRAHIM KULLIYYAH OF LAWSINTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

Kulliyyah:AIKOL

Department:Public Law Department

Programme Bachelor of Laws (LL.B)

Course Title Law of Evidence 1

Course Code LAW 4110

Status Core

Level 4

Credit Hours 3

Contact Hours 3

Pre-requisite(if any)

None

Co-requisite(if any)

None

Teaching Methodology Lectures, Tutorials & Seminars

Method of Evaluation state weightage of each type of assessment

Test 1 15%Test 2 15%Tutorial Assessment 10%Final Examination 60%Total: 100%

Instructors Coordinator: Prof Dr Haji Mohd Akram Shair MohamedMr. Mohd Shahrizad Mohd DiahAssoc. Prof. Dr Ismail YunusAssoc. Prof. Dr Mohamed AkramAsst. Prof Dr. Rani Kamaruddin

Semester Offered Semester 1 and 2

Course Objectives 1. That students acquire a basic knowledge of the law of evidence.

2. That students appreciate the relationship between the law of evidence and substantive law subjects.

3. That students gain experience in applying the law of evidence to practical problems.

4. That students can acquire and enhance transferable skills for effective learning and the application of the law of evidence.

The above objectives aim to equip students to grasp the law of evidence when he is practicing law as an advocate and solicitor or as a judge or otherwise dealing with legal matters in his various positions as a legal advisor.

Learning Outcomes 1. To define the meaning of Evidence2. To identify the various modes of evidence3. To employ the theory of evidence into the skills that can be

applied on courts4. To examine the various relevant evidential issues to

comprehend relevancy and admissibility of evidence.5. To intergrate the knowledge of evidential and procedural

laws into the areas of substantive laws.6. To justify the usefulness of the knowledge of evidence laws

into practical skills.7. At the end of each topics, the students will be able to

identify and provide relevant legal solution on each topics.8. At the end of the semester the students will have a sound

grasp of evidential laws. They will be freely apply the law to practical problems.

Course Synopsis “The law of evidence determines how the parties are to convince the court of the existence of that state of facts, which according to the provisions of substantive law would establish the existence of the right or liability that they allege to exist”. - J.F. Stephen, A Digest of the law of evidence, 4 th

edn. London: Macmillan, 1881, p. 2.

This course aims to provide a basic outline of the law of evidence in Malaysia, particularly as provided for in the Malaysian Evidence Act, 1950. This course enables students to appreciate the theoretical basics of the law of evidence and their relationship with substantive law. Wherever necessary, the basic principles of Islamic law of Evidence will be pointed out in so far as they are important for comparative study.

Main references for the course will be on local authorities. Authorities from other jurisdictions will also be cited to better understand the principles of the law of evidence.

As the course is meant for final year law students, it is imperative that basic knowledge of the technicalities of the law of evidence is imparted first. The first few weeks of the course will be devoted on the basics of evidence such as mode of evidence, relevancy sections

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and similar fact evidence.

The next few weeks will cover important topics like admission and confession, expert opinion and exceptions to the rule of hearsay.

Finally, this semester will cover the important topic on forensic evidence and the basics of evidence that will apply. The lecturer will attempt to explain how specific provisions of evidence will apply when this type of evidence are used.

COURSE OUTLINES

WEEK TOPICS REFERENCES

WEEK1

A. Introduction to the Law of Evidence.

Salmond:“Law is divided into substantive law and adjective law.”

Substantive law deals with the rights and duties of the parties. Adjective law is to gain access to the court of law to vindicate your rights. Need to know procedure to defend your clients and to study evidence to prove the case to the courts. Adjective law is lex fori or law of the forum. Foreigners are tried to our procedure and law of evidence.See Bain v Whitehaven Railway Junction [1850] 3 H CL. 1-19.

The historical background of the Malaysian Evidence Act 1950.

A. The Principles of Interpretation1. Bank of England v Vagliano [1891]

AC 1072. Yeo Hock Cheng v R [1938] MLJ 104 3. Pakala Narayana Swami v King

Emperor [1939] MLJ 59 Lord Macmillan held that the Evidence Act is a code and we cannot look at the previous state of law. However no code is exhaustive. Some matters can be left out. If the code is silent we can import common law to fill in the lacunae.

Other cases: 1. Mohd. Syedol Ariffin v. Yeoh Ooi

Gark. [1916] 1 ML 1652. Ainan v. Syed Abu Bakar [1939] MLJ

209

B. The Role of the Common Law1. PP v. Yuvaraj [1969] 2 MLJ. 892. Jayasena v. R [1970] 1 All ER 219,

AC 618.Deals with the interpretation of the code. The code is not malleable to that extent the common law is. Therefore to interpret the code must look at the code first.

C. Is the Evidence Act exhaustive?In PP v Sanassi [1970] 2 MLJ 198, Sharma J had on occasion made a pronouncement whether the Evidence Act

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is exhaustive or not. The Code is exhaustive only what is contained in the Act itself. Many other matters can be found in other statutes such as section 113 CPC, Dangerous Drugs Act, Seditious Act that contained evidential provision. In that sense it is not exhaustive.

D. Since the Evidence Act is not exhaustive can we receive the common law?

The Privy Council in PP v Yuvaraj [1969] 2 MLJ 89 lucidly expressed that no enactment is exhaustive. The Evidence Act is part of the general corpus of the law that is applied by lawyers. On matters where the act is silent or fails to be explicit, can have a reference to the common law. The PC told us that although the Evidence Act is in the form of a code there is no intention on the part of the legislature to do away with well-known concepts of the common law.

1. PP v Glenn Knight Jeyasingam [1999] 2 SLR 499 at 519

The Singaporean Apex Court brought out a good part of the law. The code is a facilitative Act. The code is there but in matters when the code is silent we can receive the common law.

E. Scope of the Evidence ActBy virtue of section 2 the Evidence Act cannot apply to affidavits or to arbitrations.

THE EVIDENTIAL CONCEPTS

A. THE CONCEPTS OF FACT AND FACT IN ISSUE

Bentham mentioned that the definition of fact is dual in nature that includes physical facts or psychological (mental).

Facts in issue mean the subject in dispute. If a man is charged of killing a man and he pleads not guilty. The fact that he denies the charge is an issue in that dispute. In civil matters,

FACTS IN ISSUE IN CRIMINAL CASES R v Simms [1946] KB 531, Lord Goddard p.539.Whenever there is a plea of not guilty, everything is in issue and the prosecution has to prove the whole of their case including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent.

FACTS IN ISSUE IN CIVIL PROCEEDINGS It is identifiable from the pleadings. The whole point of which is to set out the parties’ allegations, admissions and denials so that before the trial everyone knows

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the facts in issue are matters to be decided in pleadings. In a contract, the terms, implied or express could be denied or traversed. Matters that are not admitted become an issue. Must prove the facts in issue.

exactly what matters are left in dispute and therefore open to proof or disproof.

B. THE CONCEPT OF RELEVANCY

Relevancy is a concept that runs through the Evidence Act 1950. Section 5 declares what is relevant evidence, i.e. only evidence that is declared relevant by the Act and ‘of no others’. The significance of this section is apparent. Whatever is not provided for in the Act is irrelevant and therefore inadmissible. Consequently, only evidence declared relevant by the Act can be considered as judicial evidence.

See also:Section 136: Court to decide as to admissibility of evidence.Section 165: Judge has power to put questions about any fact relevant or irrelevant, but the judgement must be based upon facts declared by the Evidence Act to be relevant and duly proved.1. PP v Dato’ Seri Anwar Ibrahim (No:

3) [1999] 2 MLJ 1Fact in issue must be relevant to fact in issue

2. PP v. Haji Kassim [1971] 2 MLJ 115 (Federal Court)

Whatever is logically probative is not necessarily admissible in evidence unless it is declared so under the Act.

Section 5 is the backbone of the Evidence Act. It gives evidence of facts in issue and facts that are relevant to the facts in issue as herein after declared section 6 – 55 and of no others. It can be read together with section 136 where the judge can ask in what way is the evidence relevant to the facts in issue – as exercised by Augustine Paul J in the Dato’ Seri Anwar Ibrahim’s case. If the judge asked the lawyer about relevancy under section 136, you should direct the judge’s mind to section 5.

Section 5 declares what is relevant evidence, i.e. only evidence that is declared relevant by the Act and “of no others”. The significance of this section is apparent. Whatever is not provided for in the Act is irrelevant and therefore inadmissible. Consequently, only evidence declared by the Evidence Act, 1950 could be considered as judicial evidence in Malaysia. Section 5 must be read with section 136(1) of the Act:

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Augustine Paul J in PP v. Dato’ Seri Anwar bin Ibrahim(No3) [1999] 2 MLJ 1, 170 (HC) held:

“Questions of admissibility of evidence are questions of law and are determinable by the judge. If it is the duty of the judge to admit all relevant evidence, it is no less his duty to exclude all irrelevant evidence. Section 5 of the Evidence Act, 1950 declares that evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as declared to be relevant under the provisions of the Evidence Act, 1950. The judge is empowered to allow only such evidence to be given as is, in his opinion, relevant and admissible and in order to ascertain the relevancy of the evidence which a party proposes to give, the judge may also ask the party proposing to give evidence, in what manner the alleged facts, if proved, would be relevant, and he may then decide as to its admissibility.

Recommended Reading:

H.M. Zafrullah 1984. Admissibility, Relevant Evidence and other related Issues: Some Comments From the Dato Mokhtar’s Case. Malayan Law Journal xv.

C. The concepts of logical and legal relevancy

Evidence must satisfy not only the test of relevance, but Spencer and Flin note: (a) it must be relevant, and (b) it must be legally admissible.

Chong Siew Fai CJ in Thavanathan Subramaniam v. PP[1997] 3 CLJ 150 held that: “The law of evidence, the cardinal rule relating to relevancy is that, subject to exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible.”

Other cases:PP v. Kilbourne [1973] AC 729:

“Evidence is relevant if it is logically probative or disprobative of some matter which requires

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proof ... “(L)ogical probativeness” ... does not of itself express the element of expedience which is so significant of its operation in law ... It is sufficient to say ... that relevant evidence, i.e. logically probative or disprobative evidence is evidence which makes the matter which requires proof more or less probable.”

PP v. Haji Kassim (supra) “ … (W)hatever is logically probative is not necessarily admissible in evidence, unless it is so under the (Act).”

Matters that are logically relevant but not legally admissible include privileges, hearsay and character evidence.

WEEK2, 3

ADMISSIBILITY OF EVIDENCE ILLEGALLY OBTAINED

Under the common law as long as the evidence is relevantly procured, even if you steal it, it will be admissible. It is not the concern of the court. Lord Goddard emphasized that as long as it is relevant it is admissible.

1. PP v Saminathan [1937] MLJ 39

2. R v Kuruma [1955] AC 1973. Gan Ah Bee [1975] 2 MLJ

106 4. Re Kah Wah Video [1986] 2

MLJ 5. Ramli b. Kecik [1986] 2 MLJ

336. Wako Merchant Bank v Lim

Lean Heng [2000] 4 CLJ 223-226

Discretion to omit illegally obtained evidenceNoor Muhamad [1949] ACWhere if the evidence was procured legally, if the prejudicial effect outweighed its probative value, the judge can exercise his exclusionary discretion to omit that evidence.

In R v Sang [1980] AC 402, the door to exercise the exclusionary discretion was closed. In Malaysia we follow the common law. It is of high persuasive value to us. (Ramli Kecik (supra) did not address this issue.) This discretion to exclude in England was restored by statute in the Act of Parliament (Police And Criminal Evidence Act 1984).

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In Malaysia it is not certain. It is discretion to be exercised judiciously. Factors will depend on the nature of illegality.

Krishna Rao Gurumurthy [2001] 1 MLJ 274Kang J addressed his mind that evidence illegally obtained the judge must judiciously exercise his discretion to exclude illegally obtained evidence if the prejudicial effect will outweigh probative value.

Other related case:Cheng Swee Tiang v PP (1964) 30 MLJ 291

Recommended Readings:

1. Yeo. 1981. Illegally Obtained Evidence. Melbourne University Law Report. 13. 31.

2. Choo, 1989. Improperly Obtained Evidence: A Reconsideration. Legal Studies. 261.

3. Tong, 1994. Illegally Obtained Evidence and The Concept of Abuse of Process: A Possible Reconciliation. Singapore Law Report. 97.

4. Williams G. 1955. Evidence Obtained by Illegal Means. Criminal Law Review. 339.

Definition of evidence

SECTION 5: PROVING CASE BY EVIDENCE

Definition of proof and the difference between evidence and proof.

They are not synonym. Evidence is the media to bring about proof. Evidence brings witnesses, the counsel prove evidence by documents. Evidence leads/generates proof. Evidence is the cause while

Lim Soh Meng & Anor v. Krishnan [1967] 1MLJ 8 (Federal Court). Robins v. National Trust Co [1927] AC 515

Proof is not required in three situations. These are; (a) cases of judicial notice; (b) cases where the admission of facts by both parties or where the accused pleads guilty to a charge and (c) cases involving presumptions such as the common law presumptions that a guilty man is innocent until proven guilty or that a man is sane until proven insane, or to prove fact A, fact B is presumed. There is another type of

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proof is the consequence. Proof is something that brings about a persuasion in the mind of the tribunal of fact as to the existence or non-existence of fact in issue. Definition by Act in 3 forms:

Proved:Disproved:Not proved:

presumption recognised by the Malaysian court called the statutory presumption. One example is section 37(1) of the Dangerous Drugs Act 1984 where possession of a required amount of drugs raises a statutory presumption that the accused is a trafficker of drugs.

Recommended Reading:

H. Singh. 1972. The Evidence Act: A Case For Reform. Malayan Law Journal. 2. xxv

Types of Evidence (Media of Proof)

Oral evidence. Hearsay evidence. Documentary evidence. Circumstantial evidence. Real evidence.Distinction between Weight and Admissibility of Evidence.

Testimonial Evidence (Oral evidence) – sections 59 & 60 to be read together.

Malaysia adopted the adversarial system. There is cross-examination to test the credibility of witnesses. It is the engine for the discovery of truth. The purpose of re-examination is to repair the damage. Section 59 states that all facts, except the contents of documents, may be proved by oral evidence. What is perceived by one or more of the five senses to prove the truth of assertions. As opposed to giving hearsay evidence that is repeating a statement in court made outside court. It is not tested by cross-examination for the truthfulness of evidence. If the witness is present in court, the court can see him, see his demeanour, how he reacts to questions to appreciate the evidence.

Hearsay evidence

Second hand evidence. The witness did not see the facts. The witness was told someone out of court that witness to it. Repeating out of court statement in court to establish the truth of the matter is hearsay, it not subject to cross-examination, not the best evidence therefore it is unreliable

1. Teper v R [1952] AC 480, 486 Lord Normand summarized the classic rationale for exclusion as being “It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-

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examination, and the light which his demeanour would throw on his testimony is lost.” Such evidence can be concocted and the court has no chance of appreciation.

2. Ratten v R [1972] AC 378A question of hearsay will only arise when the statement is given testimonially, ie when it is given to prove the truth of the fact asserted. If that witness is asked to testify it is not hearsay, and if relevant under the section of relevancy, it is admissible.

3. Subramaniam v PP [1956] 1 WLR 965

4. Sparks v R [1964] AC 964

Reception of Hearsay evidence

Section 59: Witness must give direct evidence.Section 60: Direct evidence is evidence perceived by one or more of 5 senses.

1. Subramaniam v PP [1956] MLJ 220De Silva enumerates the judicial definition of hearsay. Repetition of statement out of court through a witness in court. Look at the purpose of that statement. If the purpose is to prove the truth of the fact in issue, to use it testimonially, it is hearsay. If the purpose to tell the court the fact that the statement is made, it is not hearsay. May be admissible if relevant under section of relevancy.

2. Teper v R [1952] AC 4803. Re Soo Leot [1956] MLJ 544. Salha v R [1959] 25 MLJ 1105. Ratten v R [1972] AC 378

HEARSAY CAN BE ORAL OR IN WRITING

1. Chandrasekaran & Ors v PP [1971] 1 MLJ 153

2. Patel v Controller of Customs [1965] 3 All ER 593

Hearsay can be in the form of conduct or

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implied assertion.3. Chandrasekera alias

Alisandiri [1939] AC 220 4. R v Abdullah 1887 All.

Proving the document is subject by the hearsay rule. You must call the maker of the document.Chandrasekaran & Ors v PP [1971] 1 MLJ 153.

DOCUMENTARY EVIDENCE

Definition in section 3: Transaction of thought of something permanent. Anything that represent an idea by audio, telex, computer.

Other sections relevant. Sections 61-65.Section 61.The contents of documents may be proved either by primary or by secondary evidence.To be read together with section 64. Documents must be proved by primary evidence except in the cases hereinafter mentioned. Section 64 states the mode of proving. Documents must be proved by primary evidence unless you are permitted to prove by secondary evidence by virtue of section 65. Section 65 lays down the reasons that you can use to prove case by secondary evidence. It is not exhaustive.

Must be able to tell the court the reasons why you cannot prove by primary evidence. Section 104: The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other facts is on the person who wishes to give the evidence.

CIRCUMSTANTIAL EVIDENCE

Sections relevant: sections 6 –16 (Relevancy section) : Section 45-51 (Opinion evidence)Circumstantial evidence is inferential evidence where direct evidence is not available to be given by witnesses, ordinary or expert.

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When a murder is committed and there is no direct evidence, facts before the murder at the scene have footprints, or blood on the weapon, all these are circumstantial evidence to prove that murder. We can call an expert to give an opinion, drawing an inference the existence or non-existence of a fact.

Sunny Ang v PP [1966] 2 MLJ 195

Wills on Circumstantial evidence.He is of the opinion that in direct evidence a witness can lie. Circumstantial evidence is more superior. It depends, for example a finger-print. Can plant someone finger print. He can be convicted.

Dato Mohktar Hashim & Anor v PP [1983] 2 MLJ 232A cumulative effect that irresistably point to the accused.

Real Evidence

The real subject matter itself – ie the identity of the offensive drug.

Locus in quo.Visiting the scene of the crime.

Recommended Readings:

1. Ahmad Ibrahim. 1973. Note On Circumstantial Evidence. Malayan Law Journal. 1. xlvi.

2. Ahmad Ibrahim. 1961. Conviction on Circumstantial Evidence. Malayan Law Journal. 1. xxvi.

3. Mohd Akram. 1987. The Best Evidence Rule. Current Law Journal.1. 113.

WEEK4

Res Gestae – Par in rei gestae (Part of the transaction)Section 6: Facts forming part of same transaction.

This section refers to those surrounding and accompanying

1. Kok Ho Leng v PP [1941] MLJ Rep 119

Charged with gambling. While the authorities raided his premises he took out the phone. These transaction were relevant under section 6 and 7.

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circumstances, which are inseparable from facts in issue, and are necessary to explain the nature of the fact itself. It is an application of the common law doctrine of Res Gestae, i.e. thing done (including words). It means the events that happened in the course of a transaction.

Under the common law, this doctrine will admit evidence not under any head of evidence. However to exclude this evidence will cause injustice. This doctrine under the common law very restrictive condition and is strictly applied.

The evidence may occur at different times and place. It is connected by fact in issue by proximity of time and place and continuity of purpose and circumstances. Consist of acts, conduct, statement and statement of bystanders. A transaction is a group of facts to which you give a legal name, crime/ tort.

Section 6 a very broad section. See illustration (b).

2. Thavanathan a/l Balasubramaniam v PP [1997] 2 MLJ 401.

3. R v Bedingfield.14 Cox CC 341.4. Ratten v R [1972] AC 378 the law

took a liberal term.

Judges very much mersmerised by Res gestae doctrine. Under the common law, this principle allows evidence not under any head of admissibility. It must be legally and logically relevant. To exclude such evidence will make the evidence intelligible and unjustifiable. We have sections 5, 6 – 55 that deal with relevancy. Section 6 does not explain the concept of RG.

OLD LAW

The action must be contemporaneous and spontaneous under the common law.

1. R v Bedingfield (1879) 14 Cox CC 341

Ratten changed the way of thinking. Statement and conduct that are not exactly contemporaneous, are enough to be proximate and contemporaneous. The statement done on the pressure of the moment, when there is no time to concoct, is a reliable statement.

Bedingfield was overruled by R v Andrews. (HoL) [1987] 1 All ER 513. Here the House of Lords referred to Ratten. The utterance of the statement was so contemporaneous. Incident dominated his mind. No chance to concoct his story. It is unlikely to be unreliable and admissible under Res gestae. Statement made during the pressure of the moment.

2. Hamsa Kunju v R [1963] MLJ 228 (Singapore)

3. Mohamed bin Allapitchay & Ors v R [1958] MLJ 197

4. Leong Hong Khie v PP, Tan Gong

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Wai v PP [1986] 2 MLJ 2065. Don Prophinit v PP [1994] 5 SLR

1936. Sawal Das v State AIR 1974 729.

Illustration (a) section 6. Statement by bystanders.

1. Nasser Din v E AIR 1945 All 46 2. PP v Sam Chong Hoey v PP [1998]

MLJ

Other relevant cases:

1. Tan Geok Kwang v. PP [1949] MLJ 203 (Court of Appeal, Malaya)

When there is a direct connection between one fact and another, then the former is admissible as part of the res gestae.

2. Jaafar Hussain v. PP [1950] MLJ 154 (Court of Appeal, Federation of Malaya)If one act forms a part of the same transaction with another act that is in issue, then the former is admissible even if it discloses that the accused is guilty of other offences.

3. PP v. Veeran Kutty [1990] 3 MLJ 498

4. Mills v. R [1945] 3 All ER 865 P.C

Recommended Readings:

1. Chin. 1987. Relevancy, Res Gestae and Hearsay : A Malaysian Perspective.

Malayan Law Journal. cxxix.

2. Sibley. Specially Admissible Evidence Res Gestae. Law Quarterly Review. 19. 203.

3. Phipson. Doctrine of Res Gestae in Law of Evidence. Law Quarterly Review. 19. 85.

4. Sibley. Doctrine of Res Gestae in Law of Evidence. Law Quarterly Review.

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20. 435.

5. Stone. Res Gestae Reagigata. Law Quarterly Report. 55. 66.

6. Campbell. 1972. Res Gestae and Hearsay Evidence. 3 Modern Law Review. 3. 540.

WEEK5, 6

Section 7 provides:Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction, are relevant.

For any fact in issue to occur, there must be circumstances where the fact in issue to occur. There must be cause for the occurrence and the consequence. Section 7 makes relevant facts which cause to fact in issue that provide the occasion is a relevant fact. There must be an opportunity for the occurrence of the fact in issue to be relevant.

1. Dr Jainand v R AIR 1949 All 291.

Per Bhargava J at 299:“The fact in issue was whether Jainand had committed the murder of Karan Singh. The facts that Jainand had taken money and ornaments from Karan Singh and had on the day of murder gone to Jainand to demand the money and ornaments are relevant facts showing occasion, cause or effect of the fact in issue.”

2. per Weston J in Sidik Sumar v E AIR 1942 Sind 11:“Evidence that there were footprints at or near a scene of offence or that these footprints came from a particular place or led to a particular place, is relevant evidence under section 7.”

Footprints constitute an effect of a fact in issue that are relevant.

S7 makes any facts occurrence facts in issue must be an occasion and an opportunity for its occurrence. A fact in issue cannot occur in isolation.

Section 8 provides:(1) Any fact is relevant which

shows or constitutes a motive or preparation for any fact in issue or relevant fact.

(2) The conduct of any party, or any agent to any party, to any suit or proceeding in reference to that suit or

MotiveEvery act must have a motive. Motive is different from intention. Motive is an emotion that leads that person to do that act. Motive is the reason why a person does a particular act.

Premeditation

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proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Look at section 8 in two aspects1. Motive and

preparation.2. Conduct relevant.

Distinguish conduct from statement.

To carry out preparation. To carry out prior conduct.

1. Boota Singh v PP [1933] MLJ 195

Explanation 1.The word conduct in this section does not include statements unless those statements accompany and explain acts other than statement: but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 1 adds an important qualification to the word conduct in the section. It does not include statement unless those statements accompany and explain acts other than statements.

2. Wong Foh Hin v PP [1964] MLJ 149 The evidence concerning the interview with the Orang Tua shows how strong the motive must have been when the wife went off in the night time to see the Orang Tua on the second occasion. It showed that WFH was likely to be very concerned that this time there will be a police investigation and the police would interview the daughter.

ConductCan be previous or subsequent conduct.1. Chandrasekaran & Ors v PP [1971]

1 MLJ 153

COMPLAINT OF SEXUAL OFFENCE

Illustration (j)If an offence has been committed by the accused, if the victim as soon as reasonable makes a complaint to the person in authority, that complaint will be evidence of a conduct.The relevancy of a complaint in sexual cases was considered by Muhammad Kamil J in PP v Mohammad Tereng bin Amit [1999] 1 MLJ 154.

The difference between a statement A complaint, evidence as conduct must

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and a complaint.

The value of a mere statement only to corroborate the evidence of a witness. A statement is something that is stated devoid of feelings. Mere relay of information.

have 3 factors1. made spontaneously.2. must not be result of tutoring or

inducement.3. made to a person in authority.Its contents emotive and the intent punitive.

In Boota Singh, the moment the accused disturbed the deceased, she made a FIR under S 107 CPC. That conduct amount to complaint. Admissible to show motive and conduct under s 8 (explanation 1)

1. Aziz Muhamad Din v PP [1996] 5 MLJ 473

The difference between a complaint and a mere statement in s 8 is that the former is expressive of feelings, the latter of knowledge, the former evidences conduct, but the latter has no such tendency. A complaint , unlike a bare statement, made with aview to redress or punish and is made to someone in authority , such as the polic3 , but not necessarily to a public officer.

2. PP v Teo Eng Chan & Ors [1988] 1 MLJ 156

Section 9: Facts necessary to explain or introduce relevant facts.

Makes relevant 7 facts.1. Facts to explain fact in issue

or relevant facts. 2. Facts to introduce fact in

issue or relevant facts.3. Facts which support or rebut

fact in issue.4. Facts which suggest an

inference – s 11(a).S 11 (a) Facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact.5. Facts established identity of

person.6. Facts which established time

and place which fact in issue is relevant under s 7.

1. Karam Singh v PP [1967] 2 MLJ 25,27 & 28.

These evidence led to the conclusion that they are more probable and more consistent with his innocence under s 9. The prosecution case was based entirely on circumstantial evidence.

Ong Hock Thye FJ:“In a case where the prosecution relies on circumstantial evidence, such evidence must be inconsistent with any other hypothesis than that of the accused’s guilt.”

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Facts show relation of parties in so far they are necessary for that purpose.

Identity and other matters

Turnbull guidelines.By Lord Widgery CJ

1. Whenever the case against the accused depends wholly or substantially on the correctness of one or more identification of the accused, which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. He should instruct the jury to the possibility that a mistaken witness can be a convincing one.

2. The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.

3. Finally, the judge should remind the jury of any specific weaknesses which had appeared in the identification evidence.

1. Girdari Lall & Ors v PP [1946] MLJ 87A combined profile photograph is inadmissible in evidence because it shows more than identity.

2. PP v Kok Heng & Ors [1948] MLJ 171The identification of a suspect by photograph before arrest is acceptable, but once he is arrested the identification should be by personal inspection.

3. Chan Sin v PPId parades must be held in the usual and proper manner; the suspect must be placed with sufficient number of others of the same nationality and age as himself.

4. PP v Toh Kee Huat [1965] 1 MLJ 76The evidence of fingerprints is admissible to prove identity.

5. Taylor v Chief Constable of Cheshire [1987] 1 All ER 225.Evidence of identity from a video tape recording taken while the crime was in progress is admissible.

Identification of voice.

Teng Kum Seng v PP [1960] MLJ 225.Although id of voice on the telephone is admissible its weight is a matter of opinion.

Visual idThere is a distinction between recognition and identification. Recognition is more reliable than mere identification.Dato Mokhtar Hashim v PP [1983] 2 MLJ 232.

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ID Parade.ID parade is admissible under s9Jaafar Ali v PP [198] 4 MLJ 406.

Cases in which it is necessary to hold ID parades.PP v Sarjeet Singh [1994] 2 MLJ 290The necessity of holding an id parade can only arise where the accused persons are not previously known to the witnesses. Where the accused is known to the witnesses, the question of id parade does not arise.

Procedure of ID parade.Ong Lai Kim v PP [1991] 3 MLJ 111.There is no written law regarding procedure. The practice of holding a proper id parade is summarized in Mallal’s Criminal Procedure.

Ong Lai Kim v PP [1991] 3 MLJ 111.It is proper to hold an id parade by using a one-way mirror but must be used with the safeguards enumerated in Archbold’s Criminal Pleading and Practice.

PP v Chan Choon Keong & Ors [1989] 2 MLJ 427.Where there are two or more suspects, separate identification parades must be held.

Jaafar b Ali v PP [1998] 4 MLJ 406.Where the witness had the opportunity to see the accused prior to the id parade, the evidence obtained from such a procedure has no value.

Other cases:

1. Girdari Lall & Ors. v. PP [1946] MLJ (FMSR) 87 (High Court, Malaya)

A combined profile photograph is inadmissible in evidence because it shows more than identity.

2. Loke Soo Har v. PP [1954] MLJ 149 (High Court, Malaya)

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It is improper to use photograph of known pickpockets for purposes of identification as the photographs show more than identity.

3. PP. v. Kok Heng & Ors. [1948] MLJ 171 (High Court, Malaya)

(a). The identification of a suspect by photograph before arrest is acceptable, but once he is arrested the identification should be by personal inspection.

(b). The identification and the method by which it is held must be faultless.

4. PP v. Toh Kee Huat [1965] 1 MLJ 76 (High Court, Malaya)

The evidence of finger-prints is admissible to prove identity.

5. Teng Kum Seng v. PP [1960] MLJ 225 (High Court, Malaya)

The evidence of a voice on the telephone is admissible for the purpose of proving identity.

See also:

6. PP. v. Amar Singh [1948-49] MLJ Supp. 55

7. Leong Ah Seng v. R [1956] MLJ 225

8. Ong Lai Kim v. PP and Ors. [1991] 3 MLJ 111

9. PP v. Chiong Cheng Wah [1988] 3 MLJ 56

11. PP v. Chan Choon Keong & Ors. [1989] 2 MLJ 42712. R. v. Turnbull & Ors. [1977] QB 22413. Yau Heng Fang v. PP [1985] 2 MLJ 31514. PP v. Hussain bin Sidin [1991] 3 CLJ 2570

Recommended Readings:

1. Mohd Akram. 1989. Identification Evidence and Turnbull Guidelines : Should Our CourtsFollow?. Current Law

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Journal. 945.

2. Williams. 1963. Identity Parades. Criminal Law Review. 479.Week 4

WEEK7

Section 10: Evidence of Conspiracy – Things said or done by conspirator in reference to common design.

Things said or done by conspirators are relevant against each other, under two conditions:(a). There is reasonable ground to

believe that the conspiracy exists. There was an agreement between two or more persons to commit an offence or an actionable wrong.

(b). It must be in reference to the common intention existing at the time, when the thing was, said or written by one of them.

1. Liew Kaling v. PP [1960] MLJ 306 (High Court, Malaya)

Statements made after the completion of a crime are not admissible for the purpose of proving conspiracy.

2. Khalid Panjang & Ors. v. PP [1964] MLJ 108 (Federal Court)

A statement made after the carrying out of a conspiracy is inadmissible to prove the conspiracy; ‘common intention’ signifies a common intention existing at the time when the statement was made.

See also:

3. Nik Hassan bin Nik Hussain v. PP [1943] 14 MLJ 74

4. PP. v. Ng Lai Huat [1990] 2 MLJ 427

5. Mirza Akhbar v. K.E. [1940] AIR (P.C.) 1766. Chandrasekaran v. PP [1971] 1 MLJ 1537. Sardul Singh v. State of Bombay [1957} AIR (S.C.) 747

S 11: When facts not otherwise relevant becomes relevant

(a) If they are inconsistent with any fact in issue or relevant fact.

(b) If by themselves or in connection with other facts they make the existence or non- existence of any fact in issue or relevant fact highly probable or improbable.

Can only admit facts under s 11 within the confines of the section relating to relevancy.

1. Ismail v Hasnul/ Abdul Ghafar v Hasnul [1968] 1 MLJ (FC)Section 11 does not admit collateral facts, which are neither conclusive nor connected with the fact in issue.

This case is important because it limits the areas of relevancy. Have to ensure the collateral facts are relevant, then can admit it.

(a) There is always the fear that certain aspects of relevant evidence at common law may not be

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Example: Privilege information between husband and wife/ solicitor and client. Cannot disclose even if relevant.

provided for in the Acts. However, the provisions of section 11 may be wide enough to cover any situations not provided for or dealt with by the other sections in the Evidence Act, 1950. From the wordings of section 11, it may seem that anything at all may be adduced under the section.

Raja Azlan Shah J (as he was then) held that section 11 could not be so widely read as to include collateral matters that have no bearing at all on the fact in issue or relevant facts. There must be some proximate connection between the collateral maters and the issues before these matters can be adduced under section 11.

Section 11 is also limited in its operation by section 54 Evidence Act 1950. PP v. Dato’ Seri Anwar Ibrahim(No.3) [1999] 2 MLJ 1, 174-175

R v Parbhudas Ambaram (1874) 11 Bom HCR 90

Alibi

Section 11, illustration (a).Section 402 CPC to give notice within 10 days.

Absence of motive under s 8. Absence of opportunity under s 7.

S 103: Burden of proof as to particular fact + illustrations.Dato Mokhtar Hashim [1985] 2 MLJ 335If the accused relies on the defence of alibi, he should create a doubt. He has the legal burden to prove his defence.

WEEK8

Similar Fact EvidenceDefinitionSimilar Fact Evidence is evidence that

Relevant provisions – sections 14, 15 and 11(b).

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renders the existence or non-existence of a fact in issue probable by reason of its resemblance thereto and not by reason of it being connected therewith. Generally such evidence is inadmissible. When a person is charged with an offence, the fact that he has a disposition to commit an act, means that he has committed the similar act.

Section 11 provides:

Facts not otherwise relevant are relevant -

if they are inconsistent with any act in issue or relevant fact;

if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

(It is highly probable that he did it or improbable that he did not do it.)

Cases:1. Abu Bakar bin Ismail v. R [1954] MLJ

67 (High Court, Singapore)(a). Similar fact evidence is

admissible to prove knowledge.(b). Propensity evidence is not

admissible under section 11(b).

2. Ismail v. Hasnul; Abdul Ghafar v. Hasnul [1968] 1 MLJ 108 (Federal Court)

Section 11 does not admit collateral facts which are neither conclusive nor connected with the fact in issue.

3. Poon Soh Har & Ors. v. PP [1977] 2 MLJ 126 (Criminal Court of Appeal, Singapore)

The evidence of past criminal activities is inadmissible if it is merely intended to show that the accused has been guilty of other criminal acts.

See also:

4. R v. Parbhudas (1874) 11 Bom HC 90

5. PP v. Lim Chen Len [1981] 2 MLJ 41

6. Chee Chin Tiam v. PP [1982] 1 MLJ 88

7. Rangapula & Ors. v. PP [1982] 1

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MLJ 918. Hussain bin Sillit v. PP [1988] 2

MLJ 232

14. Facts showing existence of state of mind or of body or bodily feeling.Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

Section 15 to rebut similar fact. Facts bearing on question whether act was accidental or intentional.When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

Section 15 is application of general rule as laid down under section 14.

Section 14 makes the state of mind relevant. (see Subramaniam v PP) Also state of body or bodily feeling relevant.

Cases:1. Maidin Pitchay & Ors. v. PP [1968] 1

MLJ 82 (High Court, Malaya)(a). Section 15 of the Evidence

Act was designed to enable the prosecution to offer evidence in advance to rebut a defence which would otherwise be open to the accused.

(b). The mere fact that the evidence adduced tends to show the commission of other offences, does not render it inadmissible if it be relevant to an issue before the jury.

2. Datuk Haji Harun bin Haji Idris v. PP [1977] 2 MLJ 155 (Federal Court)Evidence of ‘system’ may be adduced to rebut a defence which is open to the accused.

Section 54 provides that bad character is not admissible unless it is relevant. When the accused is charged of an offence, the prosecution must try him with evidence. If there is sufficient evidence he will be convicted. The accused will not be tried by his bad history, bad disposition or propensity to commit the bad act to prove a charge against him because evidence of bad character is prejudicial and have no connection with the fact in issue. The bad character is irrelevant. Res alios acta. (Limb 1 of Makin)

Rule as laid down in Lord Herschell’s proposition No. 1 in Makin v. AG for NSW [1894] AC 57 at 67:

“ 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

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or character to have committed the offence for which he is being tried.”

Evidence of similar facts is not admissible, if it shows nothing more that bad disposition or propensity. The rule is confined to misconduct on other occasions.Cases:1. Yong Sang v. PP [1955] MLJ 131

(High Court, Malaya)Evidence showing that the accused is the sort of person who is likely to have committed the offence for which he is charged is inadmissible.

2. Chew Ming v. PP [1960] MLJ 11 (High Court, Malaya)Propensity evidence is

inadmissible for the purpose of proving identity.

3. Kan Sik Fong v. PP [1961] MLJ 163 (High Court, Malaya)Similar or non-similar fact evidence is not admissible if its prejudicial effect outweighs its probative force.

4. Nahar Singh v. Phang Hon Chun [1986] 2 MLJ 141 (High Court, Malaya)

Evidence of similar frauds on the part of the defendant is admissible to rebut a defence raised.

The fact that the accused has a disposition to commit the act is irrelevant because it is prejudicial (see section 54). To show that he has a disposition to do so or commit a similar act need not necessarily be inadmissible if we can make it relevant, to rebut a defence, to show act was accidental or to rebut mens rea. For character evidence to be admissible it must be relevant. How can we show character evidence is relevant. Can if we can show character evidence to show mens rea,

Exception as laid down in Lord Herschell’s proposition No. 2:

“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

(a). relevant to an issue before the jury, and it may be so relevant, if

(b). it bears upon the question whether the acts alleged to constitute the crime charged in the indictment

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state of mind. Character evidence is relevant if the prosecution to rebut a defence open to the accused, defence of accident, common design or purpose or the accused defence of not guilty. (Limb 2 of Makin)

were designed or accidental, or

(c). to rebut a defence which would otherwise be opened to the accused.”

The Makins approach was applied in the Malaysian cases below:

1. X v. PP [1951] MLJ 10 (Court of Appeal, federation of Malaya)

Evidence which is indicative of the state of mind is admissible under sections 11(b) and 14.

2. R. v. Raju & Ors. [1953] MLJ 21 (High Court, Malaya)(a). Similar fact evidence

should only be admitted if it has a real material bearing to the issues as it would be unjust to admit highly prejudicial evidence merely because it is technically admissible.

(b). Sections 11, 14 and 15 of the Evidence Act permit similar fact evidence to be admitted for the purposes, inter alia, of negativing accident; proving identity; proving mens rea; and rebutting a defence.

3. PP. v. Ang An An; PP. v. Eng Hock [1970] 1 MLJ 217 (High Court, Malaya)Past acts are admissible if (a) it is shown that such past acts are of the same specific kind and (b) they form part of a series of occurrences.

4. Kan Sik Fong v PP [1961] MLJ 163

5. Rauf Hj Ahmad v PP [1950] MLJ 190.

Restatement of the law in Boardman [1975] AC 421

If the evidence is normally lawfully obtained, it must satisfy the test of relevancy to be admissible. If a person is charged with an offence, the prosecution must have evidence and not by his bad character. Even if it is logically and

26

relevant but if the prejudicial effect outweighed its probative value then a trail judge has discretion to exclude such evidence. This is known as exclusionary discretion. This dictum was reinforced by Lord Du Parq in the PC case of Noor Muhamad [1949] AC, where if the evidence was procured legally, if the prejudicial effect outweighed its probative value, the judge can exercise his exclusionary discretion to omit that evidence.

The decision of Noor Mohamad influences the thinking of the common law judges and this in turn influences the outcome of Boardman, whether the evidence is of probative value, to shut out prejudicial effect that would create injustice to admit that evidence of previous act. The principle of Boardman was that the similar fact evidence of other offences must be strikingly similar with that evidence given in. Because of high probative value you can get it admitted. If this similar fact evidence was not allowed, it would be an insult to common sense.

In the House of Lords Lord Hailsham admitted similar fact evidence provided the way the offence was committed was strikingly similar, bound to have high probative value despites its inevitable prejudice. If there is no strong evidence aliunde, cannot admit similar fact evidence.

Malaysian cases adopting Boardman’s principle1. PP v Veeran Kutty [1990] 3 MLJ 498. 2. Junaidi bin Abdullah v PP [1993] 3 MLJ 217.

The approach in DPP v P

In DPP v P [1991] 3 WLR 161, the accused committed incest with his 2 daughters. The mother made a police report and the accused was charged with statutory rape. In this case the

Cases that followed DPP v P PP v Teo Ai Nee & Anor [1995] 2 SLR 69Lee Kwang Peng [1997] 3 SLR 278, 290Tan Meng Jee v PP [1996] 2 SLR 422, 434-435

In PP v Teo Ai Ni & Anor, Yong Pung How CJ held:

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similarity was not striking but the system was there. The trial court admitted the similar fact evidence. ON appeal it was held that according to Boardman for similar fact evidence to be admissible, it must be strikingly similar. In this case the evidence were not strikingly similar.

The House of Lords reviewed over 70 cases and concluded that it is not necessary for similar fact evidence to be strikingly similar, provided that the probative value of such evidence outweighs its prejudicial value. No reason to exclude similar fact evidence, goes to weight not admissibility.

“With the abandoning of the requirement that such evidence should have ‘striking similarity’ in the modern test set out in DPP v P, the test for admissible ‘similar fact’ evidence is that its probative force in support of the allegation that an accused person committed a crime must be sufficiently great to make it just to admit the evidence, and sufficiently great to outweigh any prejudice to the accused in tending to show that he is guilty of another crime.”

Note that Singapore Evidence Act has section 2(2) that receives principles of English Common Law, which is absent in the Malaysian Ordinance. If we accept that the Malaysian Evidence Act is a facilitative Act, the courts can readily receives new principles at Common Law. At the moment our courts are stuck at Veeran Kutty and Junaidi. Maybe we can receive the Singapore decisions that endorse DPP v P in the future. Our lawyers have to make our judiciary aware of these new developments.

Similar fact evidence also applies to civil cases

1. Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1 All ER 763.

2. Hales v Kerr [1908] 2 KB 601

3. Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141

Recommended Readings:1. Jeffrey Pinsler. 1989. Similar Fact

Evidence: The Principles of Admissibility. Malayan Law Journal. 2. lxxxi.

2. Chu Fai. 1987. Approaches to the Admissibility of Similar Fact Evidence. Singapore Law Review.

28

206.

3. Peiris. 1984. Evidence of System in Commonwealth Law. Malaya Law Review. 26. 34.

4. Ahmad Ibrahim. 1977. Evidence of System. Journal of Malaysian Comparative Law. Part 1. 175

5. Ahmad Ibrahim. 1978. Evidence of System. Journal of Malaysian Comparative Law. Part II. 199

6. Stone, 1932. The Rule of Similar Fact Evidence. Havard Law Review. 46. 954

7. Hoffman, 1975. Similar Facts after Boardman. Law Quarterly Review. 91. 193

8. A.B. Munir. 1994. Similar fact Evidence: Probative Value vs Prejudicial Effect. Malayan Law Journal. 3. xxxi.

WEEK9, 10 SECTIONS 17 TO 31: ADMISSION

& CONFESSION

Provisions for Admission: Sections 17(1), 18-21, 31.Provisions for Confession: Sections 17(2), 24,25,26,27,28,29 &30.

Admission is informal admission under sections 17 to 31. It is extra-judicial admission or admission made out of court. Formal admission in s 58 – only applicable in civil cases. Although the Malaysian Evidence Act owes its inspiration from India, it is slightly different. India does not have s 17(2). Ours is similar in Sri Lanka, Singapore & Brunei.

Section 17:An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or

S 17(1) reads with 18 & 21. S 17(1) gives partial definition of admission. It is completed by s 18. Under s 17(1) an admission is a statement, oral or documentary stating or suggest a fact in issue or relevant fact made by people under the circumstances found in s 18:

1. by parties to a proceeding2. by authorized agents3. by representation4. persons who have any proprietary

or pecuniary interest5. persons from whom the parties to

the suit have derived their interest in the subject matter of the suit.

1. Datuk Seri Anwar Ibrahim (No 3) Paul J.

Proceedings include criminal proceeding.

2. Mary Clyde v Wong Ah Mei (1970) 2 MLJ 163

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relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

MEANING AND PRINCIPLES OF CONFESSION

According to Stephen, confession is an admission made at any time, by a person charged with a crime, stating or suggesting an inference that he committed the crime.

17(2): A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence. It has no application in Sarawak.

This definition of confession has 2 parts.

1. Where he makes an admission stating the fact in issue. A direct admission is relevant.

2. Suggesting the inference.

Cases:1. Seyadu v King [1951] 53 NLR 251.Direct admission of stabbing.

Read all the statements together. Does this give rise to inference that he actually did the offence. Use the objective test. Section 17(2) is much broader than the Indian law.

2. Pakala Narayana Swami v R [1939] MLJ 48.Sir John: An admission of an incriminating fact is not a confession. To amount to admission, it must be plenary in nature.

3. Anandagoda v R [1962] 1 WLR 817. The objective test.

In the police station he told everything. These are pieces of cumulative evidence. No-where in the statement suggests he had run over her with the car. Only read at the totality of the evidence. At the trial court these statements were admitted and he was convicted. His appeal was rejected.

At the Privy Council the major plead of defence was that the court had erred in law (s 25 & 26). Crown counsel argued that what the learned brother had said is true. If the statement is a confession, it should not be admitted.

BUT

Was that a confession? Look at the definition of confession. S 17(2) stating or suggesting – was there a direct admission? Can you draw an inference? It is not a

30

confession but still admissible as an admission under s 17(1), 18 & 21. His appeal was dismissed.

Lord Guest:“Whether a statement amounts to a confession or not must be decided objectively, taking the statement as a whole and without reference to extrinsic facts.”

Lord Guest said that the test whether a statement is a confession is an objective one, whether to the mind of reasonable person reading the statement at the time and in the circumstance in which it was made it can be said to amount to a statement that the accused committed the offence or which suggested the inference that he committed the offence.Cases: 1. Lemanit v. PP [1965] 2 MLJ 26

(Federal Court, Singapore)2. Lam Choon v. Lim Yon Hong

(1931) SSLR 962. Simirah v. Chua Hock Lee [1963] MLJ 2393. Ling Ngau Leng v. PP [1964] MLJ 204. Re Sunshine Securities [1978] 1 MLJ 57

Confession to be an admission1. Must be a confession s 17(2).2. Made voluntarily s 24.

The objective test in Anandagoda – the inferential admission of guilt by the accused charged – took at the statement in totality. This was applied in Lemanit v PP [1965] 2 MLJ 26. A confession is a statement, taken as a whole without reference to extrinsic facts, which states or suggests the inference that the maker committed the offence. If the inferential statement was a confession made involuntary, it is inadmissible. Once a statement a confession by applying the Anandagoda objective test, the 2nd

1. Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232).

2. Hasibullah bin Mohd Ghazali v PP [1993] 3 MLJ 321

3. Aziz Mohamed Din v PP [1996] 5 MLJ 473

4. R v Thompson [1893] 2 QB 12, 18 dictum of Cave J

5. Ibrahim v R [1914] AC 599, 609 per Lord Sumner.

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stage must be covered –to be admissible it must be relevant and voluntary. (s 24).

A confession in a cautioned statement tendered by the prosecution, the defence must straight away object, it is not voluntary. If the counsel did not object, the cautioned statement is presumed to be voluntary. How much evidence must be tendered to say that the evidence is involuntary It is not necessary to have a lot of evidence to activate voir dire. Mere bald statement will not suffice. The defence must submit a well reason premise, probable that the statement was made involuntarily. Need not be evidence under section 3. Here the prosecution has to prove statement was voluntary beyond reasonable doubt.

Section 24 If a confession is a result of inducement, threat, promise held out by a person in authority (someone who can influence the outcome of the trial), which give rise to a believe in the mind of the accused and which in the opinion of the court he will get an advantage or suffer an evil of a temporal nature, that confession is not voluntary.

The voluntariness of statement relies on section 24.

1. Dato Mokhtar Hashim v PP [1983] 2 MLJ 232No statement by the accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement.

2. DPP v Ping Lin [1975] 3 All ER 175.

3. Most recently followed by Dato Seri Anwar Ibrahim & Anor v PP [2001] 3 CLJ 313, opinion of Ariffin Jaka.

That inducement caused the confession. The court will determine that inducement. Also accepts the element of oppression.

4. Dato Mokhtar Hashim v PP [1983] 2 MLJ 232

5. DPP v Ping Lin [1975] 3 All ER 175

6. Aziz Mohamed Din [1996] 5 MLJ 473

7. Hasibullah Mohd Ghazali v PP [1993] 3 MLJ 321.

8. PP v Law Say Seck & Ors [1971] 1 MLJ 199, per Sharma J: A slight

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inducement will suffice to render the confession involuntary.

Other cases:.R v Priestly (1965) 51 Cr App R 1 R v Prager [1972] 1 WLR 260.R v Wilson [1981] 1 NZLR 316

In Datuk Mokhtar Hashim, Abdoolcader FJ said at p 272 that it appears from DPP v Pin Lin [976] AC 574 that the classic test of admissibility of the accused’s confession should be part objective and part subjective. The objective limb is satisfied if there is a threat, inducement or promise – in the opinion of the court that the nature of inducement caused the confession. The subjective limb when the threat, inducement or promise operates on the mind of the accused through the hope of escape or fear of punishment connected with charge – If the inducement leads to confession.

Recommended readings.1. Windslow. 1977. The Admissibility of

Testimony at a Trial Within a Trial : Not The Whole Truth. Malaya Law Review. 19. 312

2. Winslow. 1988. Fair Trails : New Buttresses for Accused Person. Malaya Law Review. 378

CONFESSIONS MADE TO THE POLICE: SECTIONS 25 AND 26S 24 makes a confession made by an accused to a person in authority irrelevant if it was made by inducement, threat, promise or oppression.

.

1. Datuk Mokhtar Hashim & Anor [1983] 2 MLJ 232

2. Ibrahim v R [1914] AC 599, 609 per Lord Sumner

3. DPP v Ping Lin [1975] 3 All ER 175)

4. Chua Beow Huat v PP [1970] 2 MLJ 31

5. Pakala Naraya Swamy v E AIR 1934 PC 47

6. Chua Beow Huat v PP [1970] 2 MLJ 29,

The word police officer is not defined in the EA or CPC. The Police Act 1967 defines him as a member of the Royal Malaysian Force7. Barret v PP [1982] 2 MLJ 284, 285.A probationary Inspector is a person below the rank of an Inspector.

Statement of accused while in custody of police: section 26.

1. Eng Sin v PP [1974] 2 MLJ 168

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S 26 is to prevent the police from abusing their powers. It provides further safeguard to the accused. No confession made by a person in police custody shall be admissible unless made to a Session Court Judge or magistrate. For s 26 to apply it is not necessary to show formal arrest. If he cannot depart at his own free will suffice to constitute custody.

2. Sambu v R [1947] MLJ 16 3. Nazir Ahmad v KE AIR 1936

PC 2534. Chong Teng v PP (1960) 26

MLJ 153

When an accused makes a confession under s 26, the Session Court Judge or magistrate is required to comply with the procedure in s 115 CPC when recording down such a confession.) To ensure the accused gives his statement freely without any inducement or pressure. This is to guarantee their voluntary nature.

Sections 25 and 26 compared.S 25 applies to confessions made to the police.S 26 governs confessions while the accused was in police custody, made to any persons other than the police.

They are not identical. There are 2 clear and definite rules.S 25 prohibits a confession made to a police officer whether the confessor is in police custody of police or not.S 26 goes further. Confession made to any person, eg fellow prisoner, friend or doctor while he is in police custody is inadmissible unless made in the presence of Session Court judge or magistrate.

Under s 25 the relevant question is “To whom was the question made?” If the answer is that it was made to a police officer below the rank of an Inspector it is excluded. Under s 26 the question is “Under what circumstances was the confession made?” If the answer is that the confession was made while the accused was in police custody, such a confession shall be excluded unless it was made in the immediate presence of the Session Court Judge or magistrate. These 2 sections have 2 different roles to protect the accused.Recommended Reading:

Winslow. 1982. Confessions, Confirmation and Resurrection: The Rescue of Inadmissible Information to the Police. Malaya Law Review. 28. 88.

Cases:

1. Eng Sin v. PP [1974] 2 MLJ 168 (Federal Court)The term ‘custody’ in section 26 does not necessarily mean formal arrest; it is sufficient that the accused cannot go as he wishes.

2. PP. v. Ng Goh Weng [1979] 1 MLJ 127 (federal court)Section 26 does not invalidate statements admissible under section 113 of the Criminal Procedure Code.

3. Koh Jok Sim v. PP [1966] 2 MLJ 50 (High Court, Malaya)Sections 25 and 26 of the Evidence Act and section 113 of the Criminal Procedure Code do not apply to statements made to an excise officer or a customs officer.

4. Chong Teng v. PP [1960] MLJ 153 (High Court, Malaya)A confession made through an

interpreter is admissible under section 26.

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See also:

5. Abdullah b. Awang Bongkok (1956) 22 MLJ 90

6. Lim Sing Hiaw v. PP [1965] 1 MLJ 85

7. PP v. Tan Keo Hock [1982] 2 MLJ 190

8. Muka bin Musa v. PP [1964] 30 MLJ 275

9. Wai Chan Leong v. PP [1989] 3 MLJ 356

10. Abdul Ghani v. PP [1981] 1 MLJ 25

11. PP v. Norzilan bin Yaakob & Anor [1989] 1 MLJ 442

Recommended Reading:

Chin. 1988. Statements by Accused Persons in Custody. Malayan Law Journal. 3. clii.

Section 27: Discovery statement.How much of information received from accused may be proved.When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.

When the accused in the custody of the police, gives information to the police, and that information leads to the discovery of fact (weapon), can give evidence of fact, so much of that information. If the information leads to the discovery off the fact, the thing was hidden (physical fact), the accused knew it was there (psychological fact), to his knowledge he knew it was there, it is relevant fact (s 5) – the fact the knife was connected to the stabbing.

1. Pulukuri Kotayya & Ors v E AIR 1947 PC 67

2. Chandrasekaran & Ors v PP [1971] 1 MLJ 153 (HC)

Raja Azlan Shah:“Section 27 appears to be a concession to the prosecution. If the accused was in the custody of the police and gives information to the police that leads to the discovery of he fact, so much of that information that distinctly relates to the discovery of the fact, can give evidence of that information. It is an exception to s 24, 25 & 26.”

Discovery – consequenceInformation – cause.

3. PP v Krishna Rao a/l Gurumurthi & Ors [2000] 1 MLJ 274

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Meaning of the word information.1. Yee Ya Mang v PP [1972] 1 MLJ 120 )HC) 2 ideas:

1. Somebody derives knowledge. Derivation of knowledge from the accused to a person in authority.

2. Imparting of knowledge.

2. Wai Chan Leong v PP [1989] 3 MLJ 356, 358.

“It must also be observed that the legislature had sued the expression ‘information’ in s 27 and therefore did not intend it to have the same meaning as a statement. Although that expression is not defined in the Act, unlike a statement, it includes knowledge derived by the person informed by the accused as well as the means taken to impart that knowledge.” Per Gunn Chit Tuan SCJ

Meaning of discovery

Connotes the idea of concealment. With the assistance of the accused it is discovered. If the police already know of the facts it is not discovery. It is recovery.

PP v Liew Sam Seong [1982] 1 MLJ 223S 27 cannot be used to turn an ordinary recovery into a discovery of fact.

A discovery statement being taken must be recorded contemporaneously (matter of fact very difficult)

PP v Basri bin Salihin [1993] 1 AMR 111.Sinnadurai J was of the opinion the statement be tape recorded and videotaped (if possible). Follow Police A Criminal Evidence Act 1984 in England

. Must the information given in s 27 given voluntarily?S 27 appears to be an exception to s 24, 25 & 26. See statement of RAS in Chandrasekaran, approved in Goi

Raja Azlan Shah J in PP v Er Ah Kiat [1966] 1 MLJ 9, 10 held that even if the information was given involuntarily, it is still admissible under s 27. Cited Thurthell and Hunt that was referred to with approval by Viscount Radcliffe in Queen v

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Ching Ang v PP [1999] 1 MLJ 507. Murugan Ramasamy [1964] 3 WLR 632, 636 (PC):

“It is worthwhile to make the observation at this point that the reason given for allowing it to be proved that accused person gave information that led to the discovery of a relevant fact is not related in any special way to the making of a confession. It qualifies for admission any such statement or information that might otherwise be suspected on the ground of a general objection to the reliability of evidence of that type.”

Raja Azlan Shah in Chandrasekearan (HC)S 27 is a concession to the prosecution. It is the express intention of the legislature that even though such a statement is otherwise hit by section 24-26, any portion thereof is nevertheless admissible in evidence if it leads to the discovery of a relevant fact. The reason is that, since the discovery itself provides the acid test, the truth of the statement that led to the discovery is thereby guaranteed. Admissibility of evidence under s 27 is in no way related to the making of the confession; rather, such evidence is admitted on clear grounds of relevancy or directly connecting the accused with the object recovered.

Mohamed Desa Hashim v PP [1995] 3 MLJ 350 (FC)Sri Ram wore the legislature robe – legal fiction. S 27 is subject to s 24. (none of the cases say). It must be voluntary. It should be the policy of the law when such discovery statement must be voluntary.

“ … in a number of Indian cases it has been held that the rule permitting admissibility … in s 27 is an exception … (to section 25 &26), but it does not

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qualify the all pervading qualification enacted in s 24. (Vijay Kumar [1978] Crim LJ 1619.) … in order for a confession or other statement or information to qualify for admission under section 27, it must have been made voluntarily.

In Goi Ching Ang v PP (supra) a different panel of the FC reinstated s 27 as an independent provision. Chong Siew Fai CJ at 524,

“… we are in complete agreement, as a matter of policy, with the view expressed in the judgement of this court in Md Desa, of the desirability as to the voluntariness of s 27 information. However, due to the lack of language nexus between s 27 and s 24 …. Any departure from the entrenched judicial interpretation laid down … would be a policy issue … be left to the legislature….”

The Federal Court say that by looking at authority RAS in Chandrasekaran on s 27 being a concession to the prosecution and an exception to s 24-26, it has been decided by local cases that the statement is not subject to s 24. No nexus between 24 and 27. S 27 not subject to s 24. The FC did not want to disagree with Sri Ram who contemplated that the statement be volunteered. We have s 3 & s 5 of the Civil Law Act:

“ …. There is a vested discretion in the trial judge to exclude evidence which is prejudicial to an accused even though the said evidence may be “technically admissible”.

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Juraimi Husin v PP [1998] 1 MLJ 537 (CA)

In PP v Krishna Rao a/l Gurumurthi & Ors [2000] 1 MLJ 274 Kang J said while the FC was minded to leave it to the discretion of the trial judge whether to exclude any evidence that may have been obtained improperly from the accused, no yardstick was prescribed to enable the judge to decide when such evidence should be excluded. It ids therefore clear that the test of admissibility of evidence under s 27 when voluntariness is in issue is whether the prejudicial effect of its admission would outweigh its probative value.

1. Pulukuri Kottaya v. King Emperor (1947) AIR PC 67The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this. Once the facts discovered are identified, then information relating specifically to such facts may be adduced.

2. Tan Hung Song v. R [1951] MLJ 181 (Court of Criminal Appeal, Singapore)Section 27 is not intended to admit a confession generally, only so much of the information as distinctly relates to the fact discovered.

3. PP v. Sandra Margaret Birch [1977] 1 MLJ 129 (High Court, Malaya)Section 27 stands by itself and is not abrogated by section 113 of the Criminal Procedure Code.

4. PP. v. Liew Sam Seong [1982] 1 MLJ 223 (High Court, Malaya)

Section 27 cannot be used to turn an ordinary recovery into a discovery of fact.

5. Krishnan v. PP [1987] 1 MLJ 292 (Supreme Court)

A statement is not admissible

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under section 27 if it shows more than information which distinctly relates to the facts discovered.

6. Wai Chan Leong v. PP [1989] 3 MLJ 356 (Supreme Court)

For section 27 to apply, the information must be such as has caused discovery of fact.

See also:

7. Queen v. Murugan Ramasamy [1965] A. C. 1

8. Sum Kum Seng v. PP [1981] 1 MLJ 2449. Packiam & Anor v. PP [1972] 1

MLJ 24710. Tan Hung Sung v. R. [1951] 17

MLJ 18111. Hashim & Anor v. PP [1956] MLJ

23312. PP v. Jamali b. Adnan [1985] 2

MLJ 39213. Chong Soon Koy v. PP [1977] 2

MLJ 7814. PP. v. Norzilan Yaakob & Anor

[1989] 1 MLJ 44215. Satish Chandra Seal & Ors. v.

Emperor [1945] AIR Cal. 13716. PP v. Tan Keo Hock [1982] 2 MLJ

19017. Lan Kee Ho v. PP [1984] 1 MLJ

11018. Lum Kum Seng v. PP [1981] 1

MLJ 244 Choo Yoke Choy v. PP [1992] 2 MLJ 632

19. PP. v. Sharif Saad [1992] 2 MLJ 770

20. PP. v. Basri Salihin [1993] 1 CLJ 420

21. Pang Chee Meng v. PP [1992] 1 MLJ 137

Recommended Readings:

1. Mohd Akram. 1990. The Scope of Section 27 of the Evidence Act. Current Law Journal. 1. Part 1. xx.

2. Mohd Akram. 1990. The Scope of Section 27 of the Evidence Act. Current Law Journal. 1. Part II. xxxiii.

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WEEK11 ADMISSION & CONFESSION:

PART 2

When a person is charged with reckless driving and he makes an admission and he was found guilty, he is convicted by his admission. If occurs a major injury and the plaintiff brings a civil suit for an action on negligence, the plaintiff wants to admit the plea of guilty as evidence. The plea is in a different court. The conviction is not relevant. If the plea is based on the admission, it is relevant on fact in issue or relevant fact under s 17(1), 18, 5 & 21.

Case law:Per Buhagiar J in Noor Mohamed v Palanivelu & Anor [1956] MLJ 114, 116: Hollington v F Hewthorn & Co Ltd [1943] KB 587, 600.She Eng Gek v DA De Silva

[1957] MLJ 55

The conviction of one of the defendants for careless driving was held to be inadmissible as evidence of his negligence in proceedings for damages on that ground against him and his employer. The main reason for the decision was that the conviction merely proved that another court, acting on evidence that was unknown to the tribunal trying the civil proceedings, was of opinion that the defendant was guilty of careless driving. (For more reference see Cross & Tapper at pp. 95-96.)

Section 28: Confession made after the impression caused by inducement, threat or promise has been fully removed.

Case:

Abdullah bin Awang Bongkok v. PP [1956] MLJ 90 (High Court, Malaya)A confession is admissible if it is made after the inducement is removed.

Chong Ten v. PP [1960] 26 MLJ 153

Section 29: Confession otherwise relevant does not become irrelevant if it is made: Under promise of secrecy, Under deception, When accused was drunk whether

voluntarily or involuntarily, In answer to question which he

need not have answered, andWithout warning that he was not bound to make it and his evidence might be used against him.

1. PP v. Tan Seaw Chuan [1985] 1 MLJ 318

2. PP v. Neo Wan Kee [1985] 1 MLJ 3683. Nazir Ahmad v. King Emperor [1936]

AIR PC 253

WITHOUT PREJUDICE COMMUNICATION

Rush & Tomkins Ltd v Greater London Council & Anor [1988] 3 All ER 737, 740.

“The without prejudice rule is a rule governing the

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A kind of privilege that is important to know. It has a special meaning for lawyers. In the public interest if there is a real dispute between the parties, try to settle out of court. When there is actual litigation contemplated between the parties, conduct to negotiate a settlement. During negotiations parties made a lot of damaging admission with a view to settle out of court. If that negotiation fails and then go to court, if want to admit damaging statements made during negotiation, these statements are protected by section 23, without prejudice statements. Without prejudice to the rights of the parties concurred. The court is not aware of these statements at the time.

Section 23: Admission in civil cases when relevantIn civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.Explanation – Nothing in this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under section 126.

admissibility of evidence and is founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish.”

2 conditions:1. Litigation contemplated/ dispute2. Intention to settle.

Once negotiation successful, to decide the terms or the cost occurred, can give evidence of such terms.S 23 will apply when there is negotiation between disputing parties with the aim of genuine settling the dispute.For s 23 to apply there must be a dispute and a communication to settle that should suggest terms for the settling the dispute.The use of the word without prejudice is not conclusive. May use it as a threat with no serious attempt to settle. This will depend on the intention of negotiations.

Per Chang Min Tat FJ in Malayan Banking Bhd v Foo See Moi [1981] 2 MLJ 17, 18.Per Abdul Malik Ishak J in Oh Kuang Liang v Associated Wood Industries Sdn Bhd [1995] 4 MLJ 390, 394:Per Abdul Malik Ishak J in Dusun Desaru Sdn Bhd v Wang Ah Yu [1999] 5 MLJ 449, 454-458.

Lim Tjoen Kong v A-B Chew Investments Pte Ltd [1991] 3 MLJ 4.Rush & Tomkins Ltd v Greater London Council & Anor [1988] 3 All ER 737, 740.

Waiver of the privilegePer Coomaraswamy J in A-B Chew Investments Pte Ltd v Lim Tjoen Kong [1989] 3 MLJ 328, 331-332.

McTaggart v McTaggart [1949] P 94. “The privilege may be waived by the person entitled to claim it, either expressly or by allowing evidence to be given of matters in respect of which privilege might

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have been claimed: 17 Halsbury’s Laws of England (4th ed) para 235…”

Section 30. Confession against co-accusedConfession by one person is taken into consideration against another if: both are tried jointly, they are tried for the same

offence, confession is legally proved, and confession of the guilt affects the

maker and the others.

The current position:As against an accused person, the confession of a co-accused could play a supportive role and can form a basis of a conviction. It was held that the natural interpretation of section 30 sis that it allows the conviction of an accused to be sustained solely on the basis of a confession by his co-accused, provided the evidence emanating from the confession satisfies the court beyond reasonable doubt of the accused’s guilt. In section 3 of the Evidence Act 1950 which uses the word includes makes the definition of evidence an extensive one. In contrast to the situation in India, in Malaysia confessions by co-accused persons may be included in the whole body of what is understood to be evidence within the perimeters set by our Evidence Act. ( PP v Dato’ Seri Anwar Ibrahim & Anor [2001] 3 CLJ 313, 377-385.)

1. Noliana bte Sulaiman v PP [2000] 1 CLJ 36

2. PP v Dato’ Seri Anwar Ibrahim & Anor [2001] 3 CLJ 313, 377-385.

3. Shankaria v State of Rajasthan AIR [1978] Supreme Court 1248, 1252.

4. Abdul Rashid & Anor v PP [1994] 1 SLR 119

5. Lee Yuan Kwang & Ors v PP [1995] 2 SLR 349

6. PP v Rozmaan bin Jusoh & Anor [1999] 2 SLR 181

7. Dato’ Mokhtar hashim & Anor v PP [1983] 2 MLJ 232, 266.

8. Lim Chow Yoon v PP [1972] 1 MLJ 205

9. Bhuboni Sahu v The King AIR [1949] PC 257

10. Herchun Singh & Ors v PP [1969] 2 MLJ 209

11. Juraimi Husin v PP [1998] 2 CLJ 38312. Yap Chai Chai & Anor v PP [1973] 1

MLJ 21913. Chin Seow Noi & Ors v PP [1994] 1

SLR 13514. Ramachandran a/l Suppiah & Anor v

PP [1993] 2 SLR 671PP. v. Nordin Johan [1983] 2 MLJ 221 (Federal Court)

15. Kashmira Singh v. state of Madhva Pradesh (1952) AIR SC. 159

4. PP. v. Yeoh Tech Chye and Lim Hong & Anor. [1981] 2 MLJ 176

5. Matassan Hj. Serudin & Ors. v. PP [1987] 1 MLJ 524

6. Param Hans Yadas v. State of Bihar [1987] 2 SCC 201

7. PP. v. Mustari Suri [1989] 2 MLJ 778. Sim Ah Cheoh & Ors. v. PP [1991] 2

MLJ 3539. Lim Kheng Boon & Ors. v. PP. [1991]

2 MLJ 78

Recommended Reading:Mohd Akram. 1989. The Evidential Value of a Retracted Confession, and Confession of a Co- Accused Under Section 30 of The Evidence Act. Current Law Journal. 2.

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335.

Retracted Confession.

Retraction of confession does not invalidate the original confession. It puts the court on inquiry as to the value and weight of the original confession, its voluntary character, and probability of its being true.

1. Yap Sow Keong v. PP [1947] MLJ 902. Osman & Anor. v PP [1967] 1 MLJ

1373. Santhiadas v. PP [1970] 2 MLJ 2414. Abdul Ghani v. State of UP [1973]

AIR SC 2645. PP. v. Mustari Suri [1989] 2 MLJ 77

Recommended Readings:1. Mohd Akram. 1989. The Evidential

Value of a Retracted Confession, and Confession of a Co- Accused Under Section 30 of The Evidence Act. Current Law Journal. 2. 335.

2. Heong. 1981. Admissibility and Effect of Exculpatory Statements in Criminal Cases. Malayan Law Journal. 2. xxi.

3. H. Singh. 1974. Anamolies in the Law on Confession. Malayan Law Journal. 2. xlv

Section 31: Admissions not conclusive proof but may estop.Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.

Admissions are not conclusive, but can rebut. Parties relied on that admission, change his position, may estop that person from denying the contrary. You are estopped from denying that fact if other party suffer a detriment.

Under section 31, admissions are not conclusive proof of the matter admitted but may operate as estoppels under sections 115 and 117 of the Evidence Act 1950.

WEEK12 The Rule Against Hearsay.

Meaning and Rationale for Exclusion.

The Rule Against Hearsay excludes out-of-court assertions where such evidence is used to affirm the truth of facts contained in them and where the makers are not witnesses. The objection to hearsay is that the evidence cannot be tested in court, the

It is important to determine whether an out-of-court statement is hearsay or not as demonstrated in Subramaniam v. PP[1956] 1 WLR 965In this case the statements in issue were threats allegedly made by terrorists to the accused who pleaded duress to the charge of unlawful possession of firearms. The trial judge excluded the threats as being an out-of-court assertion and thus, hearsay. The Privy Council declared that the threats were wrongly excluded for they were not

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makers not being available to give evidence. However, the rule is subject to a number of exceptions.

The Evidence Act 1950 does not define hearsay although Stephen clearly intended to exclude such evidence. Instead, the Act stipulates the circumstances where out-of-court statements are admissible, that is, it declares ‘relevant’ certain types of out-of-court statements such as admissions, confessions, dying declarations and business records. Since only ‘relevant’ facts are admissible, it follows that an out-of-court statement that does not fall into any of those categories is ‘irrelevant’ and inadmissible. (See also section 60 of the Evidence Act 1950.)

hearsay. They ruled:“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to established by the evidence, not the truth of the statement, but the fact that it was made.”

It is admissible provided that it is relevant.

Cases:1. Re Soo Leot [1956] MLJ 54 (High

Court, Malaya)2. Leong Hong Khie v. PP; Tan Gong

Wai v. PP [1986] 2 MLJ 206 (Federal Court)

See also:

3. Ng Lai Huat v. PP [1990] 2 MLJ 427

4. Ratten v. R [1972] AC 3785. Walton v. Queen [1989] 63 ALJR

2266. Teper v. R [1952] AC 4807. Nahar Singh v. Pang Hon Chin

[1986] 2 MLJ 141

Recommended Readings:

1. Chang Min Tat. 1977. The Hearsay Rule. Malayan Law Journal. 2. Vi

2. C. Singh. 1981. Hearsay Evidence. Malayan Law Journal. 2. clxxxviii.

3. Mohd Akram. 1990. Hearsay Evidence. Current Law Journal. 2. iii.

4. Odgers, The Hearsay Rule: A doctrine in Retreat? A Reappraisal of the Hearsay Rule in Singapore (1990) 32 Malaya Law Review 239

5. Mohd Akram. 1990.Hearsay Rule and the Evidence Act 1950. Current Law Journal . 1. i.

6. Campbell. 1971. Note Hearsay Evidence of Conspiracy. Malaya Law Review. 34. 217

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Exceptions:Section 32. Statements of Persons Who Cannot Be Called as Witnesses.

Before we can admit hearsay evidence under section 32, must lay a foundation.4 reasons to admit hearsay evidence.

1. Maker who has since died. (To prove death – to bring the death certificate, or the witness has seen him die, or under s 108, if the person had not been heard of in not less than 7 years by the people whom he would have communicated, the court can draw a presumption).

2. Maker cannot be found after diligent search.

3. He has been incapable of giving evidence because of his illness of body and mind.

4. He is out of jurisdiction and to call him would cause unduly delay and expense.

Statements made by such persons are relevant in the cases outlined in paras (a) to (h) of the Act. Before a statement can be adduced under any of the said paras (a) to (h), one the four preconditions, mentioned above, must first be satisfied. If this is not satisfied, then the out-of-court statement cannot be adduced.

Sim Tiew Bee v PP [1973] 2 MLJ 200.) Before evidence can be adduced under section 32, the legal foundation must be laid.

Other relevant case: Satish Chandra Seal v Emperor (1944) 2 Cal 76.

Section 32(a) Dying declaration

The concept under the code is wide than in common law. It includes statements made by the deceased as to cause of death or circumstances of transaction relating to his death. It also applies to civil and criminal cases.

The local law is broader in 3 ways.

1. Yeo Hock Cheng v R [1939] MLJ 91

2. Pakala Narayana Swami v King Emperor.” [1939] MLJ 59

Per Abdul Malik Ishak J in Yong Kong Tai v Salim bin Jalal & Anor [1997] 2 MLJ 380, 388-389, a common sentiment was expressed where the judge pointed out the difference between the common law and the Evidence Act with respect to dying

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1. Under common law, dying declaration relates to homicide

2. Circumstances of transaction that relates to cause of death is not covered under common law.

3. Under common law for dying declaration to be admitted, the statement must be made the declaration labouring under hopeless imminent of death. But if entertain a little bet of hope, that is not a dying declaration.

declaration. Under the common law, the dying declaration only in homicide case and if the victim is labouring under a settled hopelessness of death and if the victim entertain an iota of doubt of his death, that would not be a dying declaration. The difference only goes to weight. Illustration (a) shows that it is receivable in civil as well as in criminal cases.

Section 32(a) is broadly worded vis-à-vis the common law. If the statement relates to the cause of his death or relates to the circumstances of the death is also considered making a dying declaration.

In Yeo Hock Cheng v R [1939] MLJ 91 the admissibility of the 2 statements alleged to have been made by the deceased was in issue. One was made 11 days before her death, to her father and the other on the evening of her death to her sister.The first statement was deemed to be inadmissible because it is too remote and not connected with the death. It is not proximately related. The connection is too far and irrelevant. The statement on the eve of her death form the transaction that relates to the circumstances of her death. The statement was proximately related to her death and relevant to the fact in issue, and relevant under section 32(a).

Relying on a leading Indian case of Pakala Narayana Swami v King Emperor [1939] MLJ 59, it was held that the circumstances of the transaction were proximately connected, ie the fact in issue were relevant under section 32 where the circumstances constituting the transaction of the cause of death is relevant to the admissibility of the dying declaration. The scope is wider than the common law.

In Boota Singh v PP [1933] MLJ 195, after the accused had disturbed HK, the

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wife made a police report 9 months before her death. The prosecution tendered that the evidence is relevant under section 32 because it was a transaction that relates to the cause of death. However, it was held that the statement made 9 months before was terribly remote, so in what way is the statement connected?

A dying declaration can be made in any form. It can be in the form of conduct or implied assertion.

1. Chandrasekera alias Alisandiri [1939] AC 220

2. R v Abdullah 1887 All

A dying declaration to be in writing, the actual words of the deceased must be recorded.

Where a dying declaration is made in answer to questions then the questions should be recorded. If the statement is taken down in writing by person such as the police or a nurse, as far as possible should be in Q & A form (ipsissima verba) because or not the writer is bound to introduce his own opinion, which is hearsay.

Per Briggs Ag J in Naranjan Singh v PP [1949] MLJ 122, 123:

“We desire to stress once more that it is desirable that, where a deposition is made in answer to questions, the record should show the questions asked and the answers given. If this is not done, the value of the deposition may fairly be questioned, although a detailed record might show the criticism to be unjustified.”

1. R v Santokh Singh [1933] MLJ 178)

2. R v Waugh [1950] AC 203R v Bottomley [1903] 38 LJ Newsp 311

A dying declaration need not be proved by writing at all. However, the exact words spoken by the deceased must be given.

If the oral statement is the last dying words of the deceased, there is no reason why we cannot admit those dying declaration. It only goes to weight.

1. Toh Lai Heng v R [1961] MLJ 53

2. Ong Her Hock v PP [1987] 2

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MLJ 45

In admitting a dying declaration the court must bear in mind the fact that it was a statement not made on oath and which had not been submitted to the test of cross-examination.

1. Mohamed bin Allapitchay & Ors v R [1958] MLJ 197, 199.

2. Nembhard v R [1982] 1 All ER 183 (PC) shared the same sentiment.

When a dying declaration was put in evidence, the judge must be aware of the pertinent fact that a dying declaration is not made on oath and is not subject to cross-examination. The judge must be conscious of this fact that the credibility of the deceased is not tested and because of this it is also a requirement that the dying declaration must be credible.

It is essential that the court assess the credibility of the deceased before relying on the statement made by him.

Chan Phuat Khoon v PP [1962] MLJ 127, 128The dying declaration that seeks to be admitted must be made by a credible witness. If the witness is not competent, the court cannot receive such dying declaration.

A DYING DECLARATION MUST BE COMPLETE

Must a dying declaration be corroborated?

1. Abdul Sattar v State AIR 1956 SC

2. Muniappan v State of Madras, AIR 1962 1252.

According to the legal sense there is no requirement that a dying declaration must be corroborated.

1. Nembhard v R [1982] 1 All ER 183 (PC)

2. State of Uttar Pradesh v Chet Ram & Ors [1990] 1 CLJ 1079

3. Khushal Rao v State of Bombay (1958) SCR 552

It is neither the rule nor practice that we need to corroborate a dying declaration. It will depend on the

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circumstances of the case.

1. Boota Singh v. PP [1933] MLJ 195 (High Court, Malaya)The out-of-court assertion must have proximity to the cause of the maker’s death, or to any of the circumstances that resulted in his death.

2. Mary Shim v. PP [1962] MLJ 132 (High Court, Malaya)The history of her illness as related by the deceased to the doctor before she died is admissible under section 32.

3. Ong Her Hock v. PP [1987] 2 MLJ 45 (Court of Criminal Appeal, Singapore)The recollection of the last words of a dying man by a witness who heard the actual words at the scene may properly be received in evidence.

4. Chan Phuat Khoon v. PP [1962] 28 MLJ 132 (High Court, Malaya)For a statement to be admissible under section 32, the maker, if alive, should be a credible witness.

5. Toh Lai Heng v. R (1961) 27 MLJ 104 (Court of Criminal Appeal, Singapore)If a dying declaration is reduced to writing, then the actual words of the deceased must be recorded.

See also:

6. Chandrasekaran v. R [1937] AC 2207. Kusa & Ors. v. State of Orissa (1980)

AIR SC 5598. Abdul Sattar v. State of Mysore (1956)

AIR SC 168

Recommended Reading:

Jeffrey Pinsler. 1988. The Problem of Recollection Concerning Statements of Deceased Persons. Malaya Law Review.

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30. 178.

Section 32(b): Statements made in ordinary course of business, and consisting, of the following:

a) Entry in books which are kept in ordinary course of business or in discharge of professional duty;

b) Acknowledgement of receipt of money, goods, securities or property of any kind written or signed by him.

c) Documents used in commerce usually dated, written or signed by him.

For example, see illustrations (b) , (c) , (d) , (g) and (j).

Cases:

1. Sim Tiew Bee v. PP [1973] 2 MLJ 200 (Federal Court)An out-of-court statement made in the course of business is admissible if it is proved that the maker of it is dead, or cannot be found, or has become incapable, or whose attendance cannot be procured.

2. Syarikat Jengka v. Abdul Rashid [1981] 1 MLJ 201 (Federal Court)Before a statement can be admissible under section 32(b), it must be proven to have been made in the ordinary course of business.

See also:

3. PR v. Lin Ah Hoi [1992] CLJ 13754. Ng Yiu Kwok & Ors. v. PP [1989]

3MLJ 166

Section 32 (c) - Statements against the interest of the maker.

Self-interest induces a man to be cautious and he is not likely to make a statement to his own detriment , unless it is true.

Interest against which declarations are made:

(a) Pecuniary interested;(b) Proprietary interest;(c) Interest in escaping criminal

prosecution , e.g., confession of accused who is dead implicating himself and an accomplice in a crime;

(d) Interest in escaping suit for damages.

For example, see illustrations (e) and (f).

Cases:

1. R v. O`Brien [1978] 1 S.C. 5912. Higham v. Ridgway [1808] 10

East 1083. PP v. Forster Frank Edald

Heinrich [1988] 2 MLJ 594 4. Sussex Peerage’s Case [1843-60]

All ER 555.

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Section 32(d): Statements giving opinion as to:

(a) public right;(b) custom;(c) matters of public or general

interest.

Conditions for relevancy are:

(a) the declarant was aware of the existence of such right;

(b) statement was made before any controversy as to right or custom arose.

For example, see illustration ( I )

Section 32 (e): Statement relates to existence of :

(a) relationship by blood ;(b) relationship by marriage;(c) relationship by adoption;

Conditions for relevancy are:

(a) person making the statement had special means of knowledge about the relationship;

(b) statements must have been made before the question in dispute was raised.

For example, see illustrations (k) and (l)

Section 32 (f): Statement in will or deed relating to family affairs.

For example, see illustration (m).

1. Mohamed Syedol Ariffin v. Yeoh Ooi Gark [1916] 1 M.C. 165 (Privy Council)(a). The application of section

32(e) and (f) is not limited by the common law restrictions.

(b). The illustration given in the statute does not in fact illustrate the section.2. In Re Estate of Chan Chin Hee [1948]

SCR 6 (Supreme Court, Borneo)

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The entry of a son’s name on a tombstone of the deceased is admissible evidence of pedigree relationship.

3. Lee Kim Luang v. Lee Shiah Yee [1988] 1 MLJ 193 (High Court, Malaya)The inscription in Chinese characters on the tombstone of the deceased was admissible as it showed a father-son relationship of two deceased persons within the meaning of section 32(f) of the Evidence Act 1950.

Section 32 (g): Statements contained in any document relating to a transaction mentioned in section 13(a).

Section 32 (h): Statement by several persons, expressing feeling.

For example, see. Illustration (n).

See also:

1. PP v. Forster [1988] 2 MLJ 5942. Lim Kim Luang v. Fee Shiah Yee [1988] 1 MLJ 1933. Mohamed Abu Bakar v. Syed Abu Tahir [1990] 1 MLJ 264. PP v. Abdul Rahim [1990] 3 MLJ 1885. Shanmugan v. Pappa [1994] 2 CLJ 2656. PP v. Robert Boon Teck Chua [1995] 1 CLJ 1027. Michael Anayo Akaboyk [1995] 3 MLJ 428. Nembard v. R - [1982] 1 All ER. 1839. Tucker v Oldbury KDC [1912] 2 KB 31710. Ward v. Pitt [1913] 2 KB 13011. Du Bost v. Benesford [1810] 2 Camp 51112. PP v. Mohd Fairus b. Omar [1997] 5 MLJ 57

Section 33: Evidence in previous judicial proceedings.

Depositions in former trials are admissible when the witness:

1. Kee Saik Kooi & Anor .v. Regina[1955] MLJ 57 (High Court, Malaya)Before any evidence can be adduced under section 33, it is

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(a) is dead , or(b) cannot be found; or(c) becomes incapable of giving

evidence; or(d) is kept out of the way by the

adverse party; or(e) cannot be produced without an

amount of delay or expenses, which court considers unreasonable.

Depositions by such witnesses:(a) in a judicial proceeding; or(b) before any person authorised by

law to take them.

Are relevant in a:(a) subsequent judicial proceeding:

or(b) later stage of the same

proceeding.

Conditions of relevancy of such evidence are:(a) if the proceeding was between

the same parties or representatives;

(b) if the adverse party in the first proceeding had right and opportunity to cross examine; and

(c) if the question in issue were the same in the first and subsequent proceedings.

Evidence given on a different occasion is also admissible to contradict a witness, under section 155 or to corroborate a witness, under section 157.

incumbent on the party adducing such evidence to prove the prerequisite that the witness is dead or cannot be found or is incapable of giving evidence.

2. Mohamed Kunju v. P.P [ 1966] 1 MLJ 271 (Federal Court)Evidence is admissible under section 33 when the court is satisfied that the circumstances contemplated in that section have been proved.

See also:

3. Duncan v. P.P [1980] 2 MLJ 1954. Dato` Yap Peng v. P.P. [1993] 1

MLJ 3375. Union Alloy (M) Sdn. Bhd. v.

Sykt. Pembenaan Yeoh Tiong Lay Sdn. Bhd.[1993] 3 MLJ 167

6. P.P. v. Mohd. Jamil bin Yahya & Anor [1993] 3 MLJ 702

7. Lim Peng Rooi v. R [1952] MLJ 268. See Yew Poo v. PP [1949] 15 MLJ 131

Recommended Reading:

Mohd Akram. 1991. Admissibility of Evidence in Former Proceedings under Section 33 of the Evidence Act 1950. Current Law Journal. 2. xxl.

WEEK13

OPINION EVIDENCERelevant provisions: sections 45-51.

General principle

When a witness is called to give evidence, he must give evidence of fact of what he has perceived. The witness cannot give opinion of the

An expert is especially skilled on those points on which he is asked to give opinion. An expert is a person who is an expert in matters of science or art. What is science or art is not defined but the court has given them a wide meaning. In Chandrasekaran v PP [1971] 1 MLJ 153, 159, Raja Azlan Shah gave them a flexible meaning. (supra at p 159):

“ The expression ‘science

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facts. Only the court or the judge can give an inference of the facts. In many matters such as scientific or medical matters, the court cannot give proper judgment. The court can call persons to give opinion to assist the court in informing the judge.

Major section, section 45:1. When the court has to form

an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

2. Such persons are called experts.

Question of identity, relevant under section 9.

Section 45: Opinion of experts is relevant upon a point of:

Foreign law; Science; Art; Identity of handwriting; or Finger impressions.

or art’ is elastic enough to be given a liberal interpretation”

Leading cases: 1. Junaidi v PP [1993] 3 MLJ

2172. PP v Muhamed bin Sulaiman

[1982] 2 MLJ 320 3. PP v Virammal AIR 1923

Mad 178. 4. Khoo Hi Chiang v PP [1994]

1 MLJ 265, 270-

When the need for expert evidence arises

Expert evidence is only admissible to furnish the court with scientific information, which is unlikely to be outside the experience and knowledge of a judge.

1. Syed Abu Bakar v PP [1984] 2 MLJ 19, 23

An opinion of an expert must be supported. 2. UAB v Tai Soon Construction Sdn Bhd [1993] 1 MLJ 182, 187-188

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When the witness gives evidence of the fact, the court will draw an inference whether the fact is proven or not. It is not admissible for a witness to give an opinion because opinion evidence is less probative and not relevant. Secondly if the witness is allowed to give opinion evidence it will usurp the function of the court. Giving opinion is only the role of the judge.

There are 2 exceptions.1. When the witness observes the

facts, sometimes there is a total mix-up between opinion and facts. Facts and opinion becomes intertwined. Law in its wisdom will allow opinion evidence. For example when the witness is to give an opinion on the speed of a vehicle, the witness shall perceive that it is fast or not. In this instance the opinion of a layperson can be received. Other examples would be the state of the weather, or state of drunkenness. In these situations facts and opinion intertwined. Not fair to cogent justice to preclude such opinion evidence of a layperson. In these circumstances the court can receive non-expert evidence. The question will be on how much weigh does such evidence have and it will depend on circumstances.

2. Opinion of an expert. Section 47 is an example of a non-expert opinion. It deals with handwriting opinion.

The judge has to enquire the person’s qualification as an expert in that particular field.

Whether he had acquired the expertise by a systematic academic study, or has an exception in that field. He court can determine by his knowledge and how he acquired it. The rationale is that when the court does not have the expectation on the subject matter of that enquiry, and the court cannot form an opinion without an expert, the court can ask an expert to assist the court.

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Case lawFolkes v Chadd 99 ER 589

An expert may base his opinion on a description given to him.

A medical witness who had not seen the body of a deceased person might be asked whether, in his opinion, assuming that the facts described by another witness who had seen the body are true, the wounds could have been self-inflicted.

Case law:R v Mason (1911) 7 Cr App R 67.

Experts should not give conclusions on matters that are eminently matters for the court to decide.

R v Turner [1975] 1 All ER 70

The difficulty is whether the opinion is necessary or not necessary. If the court can form an opinion, it is not necessary for the court to call an expert. Based on the court own experience there is no need to rely on expert opinion. The court would have perceived the facts without the assistance of an expert.

R v Masih [1986] Crim LR 395R v Weightman (1990) 92 Cr App Rep 291Lim Ting Hong v PP [1966] 2 MLJ 119

Jayaraman & Ors v PP [1982] 2 MLJ 306 Dato Mokhtar Hashim v PP [1983] 2 MLJ 232In the Federal Court, the FC state that must make a distinction between an opinion of an expert and an opinion of a non-expert. In this case the court can form its own opinion, and it is not necessary to call an expert. It was clear that the injuries were caused by blunt or sharp instruments.

1. Mary Shim v PP [1962] MLJ 1322. PP v. Mohamed Sulaiman [1982] 1

MLJ 320 [1982] 2 MLJ 320 (Federal Court)The expert must be ‘skilled’, he need not be so by special study; he may be so by experience.

2. PP. v. Mohamed Kassim bin Yatim [1971] 1 MLJ 64 (High Court, Malaya)

Expert evidence, especially of

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handwriting, is merely opinion evidence and is not conclusive.

3. Syed Abu Bakar bin Ahmad v. PP [1984] 2 MLJ 19 (Federal Court)

It would be erroneous for a judge to form his conclusion on a matter such as disputed handwriting without the aid of expert evidence.

4. Kong Nen Siew v. Lim Siew Hong [1971] 1 MLJ 262 (High Court, Borneo)A semi-skilled or a semi-professional may be accepted as an expert witness under certain circumstances.

5. Munusamy v. PP [1987] 1 MLJ 492 (Supreme Court)The court is entitled to accept expert opinion on evidence that is of an elementary nature.

6. Chandrasekaran v. PP [1971] 1 MLJ 153 (High Court, Malaya)Expert opinion on typewriting is as much a matter of science study as handwriting and fingerprint evidence and is therefore admissible.

7. Shriro (China) Ltd & Ors. v. Thai Airways International Ltd [1967] 2 MLJ 91 (F.C.)It is the duty of counsel, who wishes to submit that the meaning of words in a foreign language is ambiguous, to call expert evidence on the part.

8. Sivagami Achi v. P RM Ramanathan Chettiar & Anor. [1959] MLJ 221 (H. C.)

Expert evidence is needed to prove a foreign law.

9. U. Viswalingam v. Viswalingam [1980] 1 MLJ 10. English court had to have expert evidence given on certain questions regarding Muslim family law in Malaysia.

10. Teng Kum Seng v. PP [1960] MLJ 225 (High Court, Malaya)

The evidence of an expert on handwriting,

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especially Chinese characters must be treated with caution.

Section 46 Facts bearing upon opinions of expertFacts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant.

Facts not otherwise relevant, are relevant:

a. if they support opinions of experts, or

b. if they are inconsistent with opinions of experts.

This is by opinion of an expert against an expert.

For example see, illustrations (a) and (b).

1. Collector of Land Revenue v. Allapa Chettiar [1971] 1 MLJ 43

2. Singapore Finance Ltd. V. Lim Kah Ngam [1984] 2 MLJ 202

3. Syarikat Perkapalan Timor v. UMBC [1982] 2 MLJ 193

OPINION OF HANDWRITING EXPERT

In PP v Mohamed Kassim [1977] 1 MLJ 64, 66 the learned judge held that handwriting opinion of a handwriting expert is not conclusive, poor and requires corroboration.

In Dalip Kaur v Pegawai Polis Daerah, Bukit Mertajam [1992] 1 MLJ the opinion of a handwriting expert must be viewed with caution. The court is entitled to give it proper credit. It goes to weight.

Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 followed the leading SC case of Murarilal v State of MP AIR 1980 SC 531, 534. This case involves forgery of a document. The court needed a handwriting expert to assist the court because it was not within the expertise of the judge. The judge relied on the opinion of a handwriting expert and found that the documents were forged. On appeal of the major ground was the judge had erred in law because he had relied on the opinion of a handwriting expert. It is not conclusive and must be corroborated.

MUST THE OPINION OF A HANDWRITING EXPERT BE CORROBORATED?

Although a handwriting expert is third class, of very low expertise, before the case of Murarilal v State of MP the opinion of handwriting expert need to be

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corroborated. Murarilal v State of MP reviewed this position and stated that it is neither a rule of law or promise that the opinion of a handwriting expert is subject to a special category.

Handwriting can be proven by a non-expert.

Fakhruddin v State of Madhya Pradesh AIR 1967 SC 1326 held that there is nothing technical about proving handwriting.

Section 67: Proof of signature and handwriting of person alleged to have signed or written document produced.If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting shall be proved to be in his handwriting.

To prove handwriting:

1. By calling the maker – direct evidence

1. Or by his admission – no need to call him (sections 17,18 & 21).

2. By indirect or circumstantial evidence – Datuk Harun Idris v PP [1977] 2 MLJ 155: Eusof Abdoolcader held that it could be proved by circumstantial evidence.

3. By the opinion of an expert – section 45, 46 (Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61) & section 51: Grounds of opinion when relevant:- (Whenever the opinion of any living person is relevant, the grounds on which his opinion is based are also relevant.)

Opinion of a non-expert.

Section 47 is an example of a non-expert opinion. It deals with opinion as to handwriting when relevant

When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to have been written or signed, that it was or was no written or signed by that person, is a relevant fact.

For example the secretary of the person may be familiar with his handwriting, and she can be called to give opinion on the handwriting. However, in this respect I don’t agree that the secretary gives an opinion of a non-expert. If the person is already familiar with her boss’s handwriting, she is an expert and to determine whether she is an expert, is a preliminary question. It is the question for the judge to decide whether she is peritus.

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(an expert). How much weight to give on such evidence depends of the standing of the witness.

Section 73: Comparison of signature, writing or seal with others admitted or proved.

Other mode:If the handwriting is in issue, can ask the writer to write a specimen and the court will compare. In this situation, still use section 45 for expert opinion. It is quite imprudent not to use section 45. It is useful to require an expert. Is the judge clever enough to compare the specimen? (see Fakhruddin v State of Madhya Pradesh)

Opinion of person as to handwriting is relevant if he is acquainted with the handwriting. A person is acquainted with the handwriting if:

a. he has seen the person writes;b. he has received documents in answer;c. documents are habitually submitted to

him in the ordinary course of business.

1. R. v. Lim Chin Shang [1957] MLJ 125 (High Court, Singapore)

Experience may be a basis for accepting a witness as an expert.

2. Lim Ting Hong v. PP [1966] 2 MLJ 119

In matters relating to secret societies, the courts are prepared to accept a witness’s personal experience as the basis of his expert knowledge.

Ultimate issue ruleWhen a witness comes to court he gives evidence of fact relevant to fact in issue. Witness cannot give opinion of ultimate issue. For example when the prosecution wants to prove a negligent act, the prosecution only gives evidence to prove these issues. Section 5 and 136 makes only relevant fact or relevant fact in issue and of no other. The court is to form an opinion or to draw an inference as to the ultimate issue. This is the role of the court. Only the court decides.

For example:A commits murder and claims that he has non compos mentes, he did not know the nature of the act. The judge cannot form an opinion. To prove it, a psychiatrist is called. When he gives evidence he cannot say, “The accused has non compos mentes”. He should say,” From my observation, I noted that he behaved in the way more consistent with his insanity.” From this the court will agree or disagree. The court will draw an inference that the accused is insane. The judge will give an opinion from the expert’s observation. The

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Opinion evidence never decides the ultimate issue.

judge is to decide whether the accused is insane.

The ultimate issue rule is already entrenched in the legal system. The rule is seen more in breach than in performance. The judge is seen to merely adopting the expert’s opinion in the notes of evidence.

per Raja Azlan Shah CJ in Wong Swee Chin v PP [1981] 1 MLJ 212, 214:

“But except on purely scientific issues, expert evidence is to be used by the court for the purpose of assisting rather than compelling the formulation of the ultimate judgments. In the ultimate analysis it is the tribunal of fact, whether it be a judge or jury, which is required to weigh all the evidence and determine the probabilities. It cannot transfer this task to the expert witness, the court must come to its own opinion.”

UAB v Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182Zakaria Yatim J held that in the law of opinion, an expert only to assist and cannot decide the ultimate issue on the forged cheque.

When the witness gives evidence of the fact, the court will draw an inference whether the fact is proven or not. It is not admissible for a witness to give an opinion because opinion evidence is less probative and not relevant. Secondly if the witness is allowed to give opinion evidence it will usurp the function of the court. Giving opinion is only the role of the judge.

See also:16. Syed Abu Bakar bin Ahmad [1984] 2

MLJ 1917. PP v. Mohamed Kassim Yatim [1977]

1 MLJ 64

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18. Chandrasekaran & Ors. v. PP [1971] 1 MLJ 153

19. Teng Kun Seng v. PP [1960] 26 MLJ 225

20. R. v. Lim Chin Sheng [1957] 23 MLJ 125

21. PP v. Lee Ee Teong [1953] 19 MLJ 244

22. Chin Sen Wah v. PP [1958] 24 MLJ 154

Wong Swee Chin v. PP [1981] 1 MLJ 212OTHER RELEVANT MATTERS. (a). The role of the expert witness.

1. Ong Chan Tow v. R [1963] MLJ 160 (High Court, Singapore)

Experts should not be asked to give conclusion on matters which are eminently matters for the court to decide.

2. Chin Sen Wah v. PP [1958] MLJ 154 (High Court, Malaya)

The ultimate decision on any issue is with the court.

3. Wong Swee Chin v. PP [1981] 1 MLJ 212 (Federal Court)

It is the tribunal of fact that decides on the ‘ultimate’ issue and the value of any evidence, including the expert’s.

4. Wong Chop Saow v. PP [1965] MLJ 247 (High Court, Malaya)

Stipulates the procedure to be followed when an expert gives evidence.

See also:5. PP v. Chong Wei Khan [1990] 3

MLJ 1656. PP v. Lin Lian Chen [1991] 1 MLJ

316

(b). Conflicting opinion evidence.1. Collector of Land Revenue v.

Alagappa Chettiar [1971] 1 MLJ 43 (Privy Council)Where there is a conflict between the opinions given by more then one expert, the judge has a right to prefer one opinion to the others.

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2. Singapore Finance Ltd v. Lim Kah Ngam (S’pore) Pte Ltd & Eugene HL Chan Associates [1984] 2 MLJ 202 (High Court, Singapore)In evaluating the conflicting expert evidence, the court may examine the scientific grounds and bases on which they rely.

3. Pavone v. PP (No.2) [1986] 1 MLJ 423 (High Court, Malaya)

When there is a difference in the evidence between two witnesses on scientific matters, such as drugs, then it is incumbent on the party concerned to have expert testimony to explain the difference.

4. Dato Mokhtar Hashim & Anor v. PP [1983] 2 MLJ 232.The court preferred the evidence of one expert to that of another on questions regarding the alleged murder weapon.

Recommended Readings:

1. Ganeson. 1984. What Blood Can Tell And How?. Current Law Journal. 2. 262.

2. Zafrullah. 1980. Expert Testimony – Some Reflections From Malaysia. Journal of Malaysian Comparative Law. 243.

3. Raja. 1978. On Disproving Finger-Print Evidence. Malayan Law Journal. 1. xxxix.

4. Doyle QC. Admissibility of Opinion Evidence. Australian Law Journal. 61. 687

5. Jackson. 1984. The Ultimate Issue Rule. Criminal Law Review. 75.

6. Peter Gillies. 1986. Opinion

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Evidence. Australian Law Journal. 60. 597.

7. Zafrullah. 1990. Expert Testimony. Journal of Malaysian Comparative Law. 243

8. Eddy Q.C. 1955. The Infallibility of Fingerprints. Criminal Law Review. 34

9. Wilson. 1958. Detection of Fingerprint on Documents. Criminal Law Review. 591

Section 48: Opinion as to general custom or right.“General customs or rights” include those common to any considerable class of persons.

Section 49: Opinion as to usages and tenets.Opinions of persons are relevant if they are with special means of knowledge, as to: usages and tenets of any body of

men or family; constitution and government of

any religious or charitable foundation; or

meaning of words or terms used in particular districts or by particular classes of persons.

Section 50: Opinion on relationship.

Case:Dolgobinda Paricha v. Nimai Charan Misra and Ors (1959) AIR SC 914.

Section 51: Grounds of opinion.The opinion of an expert may be supported by a clear statement of what he noticed and on what basis he has formed his opinion.See also section 60 (1) (d)

1. Sim Ah Oh v. PP [1962] 28 MLJ 42 (High Court, Malaya)

An expert must give the reasons in support of his evidence.

2. Pacific Tin Consolidated Corp. v. Hoon Wee Thim [1967] 2 MLJ 35

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(Federal Court)(a). Where the opinion of

experts is based on reports of facts, those facts, unless within the experts’ own knowledge, must be proven independently.

(b). In all cases of opinion evidence, the grounds or reasoning upon which such opinion is based may be inquired into.

See also:3. Lai Yong Koon v. PP [1962] MLJ 327

WEEK14

EVIDENCE OF BAD CHARACTER.

See sections 52 to 55. 146, 146A Evidence Act 1950See also section 170 Criminal Procedure Code

1. Kong v. PP [1962] MLJ 195 (High Court, Malaya)

The fact that a person is unable for the time being to satisfy his creditors is not evidence of bad character.

2. OK Nair v. R [1954] MLJ 206 (High Court, Singapore)

Character evidence of the accused is generally inadmissible.

3. Habee Bur Rahman v. PP [1971] 2 MLJ 194 (High Court, Borneo)

Character evidence is generally inadmissible because of its prejudicial nature.

4. Wong Foh Hin v. PP [1964] MLJ 149 (Federal Court)Section 54 does not make inadmissible any character evidence which is otherwise admissible under some other sections of the Act.

5. Lim Baba v. PP [1962] MLJ 201

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(High Court, Malaya)

Character evidence is admissible if it relates to a fact in issue or the credibility of a witness.

See also:

6. R v. Butterwasser [1948] 1 KB 47. R v. Winfield [1939] 4 All ER 1648. Jones v. DPP [1962] A.C. 6359. Maxwell v. DPP [1935] A.C. 30910. Murdoch v. Taylor [1965] A.C. 57411. Selvey v. DPP [1970] AC 30412. Loke Soo Har v. PP (1954) MLJ 14913. Girdari Lall v. PP [1946] MLJ 8714. PP v. VeeranKutty [1990] 3 MLJ 49815. PP v. Choo Chuan Wang [1992] 2 CLJ 1242

Judicial Notice and Formal Admissions

See sections 56, 57 and 58.

General Rule: All facts in issue and relevant facts must be proved.Exceptions: Sections 56 and 57.

Section 56: Facts judicially noticeable need not be proved. The court finds that the fact exists, although no evidence of it is given. Certain matters are so notorious or clearly established that evidence of their existence is deemed unnecessary. It is based upon convenience and expediency. It expedites hearing of many cases and produces uniformity of decision on matters of fact.

Section 57: Facts of which court must take judicial notice.

Section 58: Facts admitted need not be proved.

Cases:1. Ramah v. Laton [1931] 6 FMSLR

128 (SC, FMS)Islamic Law is not foreign but local law and therefore, the courts must take judicial notice.

2. Samivelu v. PP [1972] 1 MLJ 28 (High Court, Malaya)A court is only bound to take judicial notice of any regulations when the relevant Gazette notification is either quoted in the charge or adduced in evidence.

3. Yong Pak Yong v. PP [1959] MLJ 176 (High Court, Malaya)In passing a sentence, the court may take judicial notice of what is notorious and what everybody knows.

4. Lee Chow Meng v. PP [1976] 1 MLJ 287 [1976] 1 MLJ 287 (High Court, Malaya)The court may take judicial notice that there has been an increase in

67

the commission of offences in Kuala Lumpur involving firearms.

5. Pembangunan Maha Murni v. Jururus Ladang [1986] 2 MLJ 30 (SC, Malaysia)The payment of a 2% commission to a broker has not developed into a recognised custom or usage so as to entitle it to be judicially noticed.

6. Plaza Singapura (Pte) Ltd v. Cosdel (S) Pte Ltd & Anor. [1990] 3 MLJ 199 (COA, Singapore)When a court may take judicial

notice of a trade custom or usage.

See also:

7. N. Madhavan Nair v. Govt. of Malaysia [1975] 2 MLJ 2868. Re KO (an infant) [1990] 1 MLJ 4949. Balakrishnan v Swantine [1991] 1 CLJ 50310. Re Gun Soon Thim [1997] 2 MLJ 35111. PP. v. Lin Lian Chen [1991] 1 MLJ 316.

Recommended Readings:

Mohd Akram 2002. Judicial Notice and the Judge’s Personal Knowledge: Current Law Journal 4. liii.

Mohd Akram. 1986. Judicial Notice Vis-A-Vis Personal Knowledge: Malaysian Experience. Current Law Journal. 2. 288.

MODERN FORENSIC TECHNOLOGY AND THE LAW OF EVIDENCE

1. Development of forensic technologyForensic science and techniques

2. Forensic Evidence a class of Real Evidence

a. Fingerprintb. Blood samples, blood

alcohol levels, grouping of blood

The component of forensic science is incorporated in the course of Evidence both in the first and second semester courses

In the first semester – when dealing with sections 9, 11 and 45-51 – identity of things, persons places etc, fixing time and place of occurrence of the subject matter, of trial, opinion thereto, by DNA profiling, fingerprint and palm identification – the tests involved in identification of drugs, how to prove handwriting, and many related matters – under sections 7 – cause, effect of

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stains.c. Bodily samplesd. DNA profilinge. Footprintf. Ballistic testg. Investigation of arsonh. Visual images of

suspects – fotofit, subject to Turnbull warning.

3. Legally and illegally obtained forensic evidence

a. Consent to take non-intimate samples

b. Consent to take intimate samples

c. Police procedures in taking samples.

4. Fingerprinta. Breach of safeguardb. Refusal of consent/

without consentc. Destruction of

samplesd. Expert evidencee. Identificationf. Standard for matchg. Availability of

database of fingerprint samples.

5. DNA profilingDNA profiling technique

Restriction Fragment Length Polymorphison (RFLP)

Polymerase Chain Reaction (PCR) Analysis

Development of Forensic DNA profilingApplication of DNA profiling to the lawLimitation of DNA profiling.

a. Expert evidenceb. Guideline to deal

with DNA evidencec. Identification of

DNA

fact in issue, section 10 – evidence of conspiracy – are dealt in semester 1, in Evidence 1. In Evidence II, particularly when discussing documentary computer generated documents, tape and video recording evidence – where the provence principle is important – essentials of forensic evidence is taught in the context.

When discussing the law relating to defences under the Evidence Act –eg. Alibi, provocation, self defence drunkenness – and quantum of evidence required. At the very beginning of the course when dealing types of evidence elements of forensic science are touched upon – especially in the area of ‘real evidence’ eg. Resemblence, crime science visits, border dispute on sea or land, motor vehicle accident, arson –identification of the cause.

Generally forensic law – involves obtaining opinion of expert and non-experts – under sections 7,9, 45-51 of the Evidence Act. This will be the calling of the experts.

REFERENCES:Phipson on Evidence – 15th Edition, London: Sweet & Maxwell 2000

Chapter 14 – Expert Evidence Law and Practice by Tristam Hodgkinson, London: Sweet & Maxwell 1990.

Chapter 13 p. 436; The law of expert evidence – Ian Freckelton, Hugh Selby; LBC Information Services 1999.

CASE LAW:PP v Ahmad Najib Aris 2004 CLJ 21(The Canny Ong’s Case)

PP v Hanif Basree Abdul Rahman 2004 3 CLJ 34(The Noritta Case)

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d. Collection of samplese. Likelihood of stains

being left at the crime scene

f. Matchesg. The challenge of

presentation of DNA evidence.

h. Prosecution fallacyi. Random occurrence

ratioj. Statistical evidencek. Weight of evidencel. The future of the

admissibility of DNA profiling evidence

6. Blood samplesa. Inferences to be

drawn for refusal to consent

b. Intimate samplesc. Production of

evidenced. Blood tests- expert

evidencee. Blood and other

scientific test of paternity

7. Bodily Samplesa. Blood and body

tissuesb. Dental Impressionc. Haird. Intimate samplese. Order for taking of

samplesf. Samples taken at

police stationg. Destruction of

samples

8. Drugs2 methods of identifying cannabis, ganja, heroin exhibitFingernails – chipping exhibit

PP v Mohd Abbas Bin Danus Baksan [2004] MLJ 160

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Essential Readings

Basic Text Books:

1. Pinsler J. 1992. Evidence Advocacy and the Legal Process. Singapore: Butterworths.

2. Chin Tet Yung. 1988. Evidence. Singapore: Butterworths.

3. S. Augustine Paul. 2003. Evidence: Practice & Procedure. Kuala Lumpur: Pelanduk Publication.

4. Rafiah Salim. 1994. Evidence in Malaysia and Singapore: Cases, Materials and Commentary. 2nd edition. Kuala Lumpur: Butterworths.

5. Sarkar. 1999. The Law of Evidence. 15th edition. India: Wadhwa & Co.

6. Ratanlal & Dhirajal. 1987. The Law of Evidence. India: Wadhwa and Co.

7. Cross and Tapper. 2000. Evidence. 6th edition. London : Butterworths.

8. Phipson. Evidence. 2000. Evidence. 12th edition. London: Sweet and Maxwell.

9. Hamid Sultan. 1994. The Law of Evidence in Malaysia and Singapore. Kuala Lumpur: Janab.

10. Mohd Akram, 2004. The Law of Confessions. Kuala Lumpur:

Recommended Books For Further Readings:

1. Hamid Ibrahim, 1993. The Law of Evidence. Kuala Lumpur: Central Law Book Corporation Sdn. Bhd.

2. Stephen J.F. 1904. A Digest of the Law of Evidence. New York: MacMillan & Co. Ltd.

3. R.K. Nathan. 1993. A Practical Approach to Evidence in Malaysia and Singapore. Kuala Lumpur: Malaya Law Journal.

4. J.D. Heydon. 1996. Cross on Evidence. 5th edition. Australia: Butterworths.

Statutes: 1. The Evidence Act 1950 (revised (2003)2. The Oaths and Affirmation Act 1949. 3. Criminal Procedure Code.

Proposed StartDate (Semester)

Semester 1, 2006/2007

71

Batch of Students to be Affected

Semester 1, 2006/2007

Prepared by:Prof. Dr. Hj. Mohd. Akram Shair MohamadMr. Mohd Shahrizad Mohd Diah

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