LAW541 LAW OF EVIDENCE I TOPIC 7 - HEARSAY

LAW541 LAW OF EVIDENCE ITOPIC 7 - HEARSAYBY: MAZLINA MAHALI

CONTENTS Introduction Forms of Hearsay Assertion Exceptions to the Hearsay Rule Res Gestae Admission & Confession Section 32 Section 33Section 73A Section 90A

INTRODUCTIONA witness is not allowed to testify to facts in issue or any relevant facts based on the perception of another person since such evidence is not direct as required by Section 60 of the Evidence Act 1950.For example, A is charged with murder of B. C wishes to testify that he was told by D that D saw A commit the murder. In this situation, D should be called to testify because he has personal knowledge based on his perception. It is his perception that must be attested and tested in cross-examination to determine whether it was accurate.

The rationale for excluding hearsay assertions was explained by Lord Normand in Teper v The Queen.The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to another witness cannot be tested in cross-examination and the light which his demeanour would throw on his testimony is lost. An out-of-court assertion amounts to hearsay when the purpose of adducing the assertion is to prove the truth of the contents of its statement.

This was illustrated in the case of Subramaniam v PPIn that case, the A was charged with possession of ammunition. The defence that was put forward by the A was that he had been captured by terrorists and that he was acting under duress. The issue that arose was whether the statement made by the terrorist to the A amounted to hearsay.Based on the facts of the case, it was held that statement could have been made to the A by the terrorists which, whether true or not, if they had been believed by the A, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes. The statement therefore did not amount to hearsay.

Evidence of 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 is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.The fact the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other person in whose presence the statement was made.

In Ng Lai Huat v PP, five accused persons were charged under the Kidnapping Act 1961 for wrongfully confined two victims with intent to hold a ransom. The DPP urged the court to accept that the demands made by one Jimmy Chua conveyed through the former Director-General of Prisons, constituted ransom as spelt out in the Act. The defence counsel objected on the basis that what Jimmy Chua said was a hearsay because Jimmy Chua was dead and therefore not a witness in court to testify.

It was held that the evidence of the former DG of Prisons in relation to Jimmy Chuas purported demands amounted to hearsay as the purpose of tendering his statement was to establish the truth of its contents.In another case of PP v Robert Boon Teck Chuah, it was held that the statement made by a witness in that he received instructions from ASP Harris Wong to arrest four male Chinese was held to have been tendered not to prove the truth of the contents of the statement but to show that the statements were made in order to establish that instructions were in fact given.

FORMS OF HEARSAY ASSERTIONHearsay may also take the form of conduct or document.For example in Chandrasekara v R, the gestures of a woman (who just had her throat cut) identifying her assailant were held to be hearsay.Hearsay in the form of documentary evidence is also inadmissible. For example in Myers v DPP, where the court held that evidence in the form of microfilm which contained certain numbers that were matched with the numbers moulded into certain parts of the car amount to hearsay as it was tendered by the officer in charge of the record made by the manufacturer of the stolen cars.

In Beh Heng Siong v PP, the accused was charged with manufacturing sour plum juice which contained saccharin, an ingredient which was prohibited for the manufacture of food and drinks. It was held that the words on the label amounted to hearsay and was therefore inadmissible.In Sim Tiew Bee v PP, the accused was charged with the importation of uncustomed goods. The words Sim Tiew Bee, Sibu on the gunny sacks which were indicative of the consignee were held to be hearsay.Refer also to Patel v Comptroller of Customs

EXCEPTIONS TO THE HEARSAY RULE

Res Gestae Admission Confession Section 32 Section 33 Section 73A Section 90A

SECTION 32Section 32 (1) of the Evidence Act 1950 consists of ten paragraphs which apply separately and independently as exceptions to the hearsay rule. There are however pre-conditions to fulfill before reliance may be made on any of the paragraphs.The pre-condition stated in Section 32(1) refer to proving the unavailability of the maker of the statement or assertion.The importance of proving the unavailability of the maker of the statement was highlighted in Federal Court case of Sim Tiew Bee v PP which quoted Lord Goddard words in Chainchal Singh v Emperor:

Where it is desired to have recourse to this section on the ground that a witness is incapable of giving evidence, that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or depositionIn a civil case, a party can, if he chooses, waive the proof, but in criminal case, strict proof ought to be given that the witness is incapable of giving evidence

Proving absence of witness under Section 32(1)Where the maker is dead, the best method of proving that the person who made the statement is dead is by tendering evidence of death certificate of the person. Alternatively, reliance may be made on the presumption of death.Where the maker cannot be traced or found it depends on the evidence adduced to show that reasonable efforts to find him have been made without success.Where the maker is incapable of giving evidence this may arise due to causes such as extreme old age or mental incapacity or accident which resulted to permanent disability. Sufficient evidence must be adduced to establish the incapacity of the person whose statement is sought to be admitted as evidence, though it need not be that of medical person.

Where procuring the attendance will result in unreasonable delay or expense for this requirement to be satisfied, the court need to look at facts of the case and different rules apply depending on circumstances of each case. Thus, what is unreasonable or unnecessary is not a matter in which absolute standards can be applied. Thus, two things are of importance the seriousness of the charge and the character of the evidence proposed to be tendered.In Borneo Co (M) Sdn Bhd v Penang Port Commission, where the witness was to be brought from England merely to give formal evidence, it was held that it was unreasonable as the expense of brinnging him down would exceeded the subject matter of the claim.

However, it must also be noted that mere residence out of jurisdiction is not sufficient to invoke the provision of the section. In fact, it would be dangerous to subscribe to the doctrine that mere residence out of jurisdiction is adequate to dispense with the personal attendance of a witness and to allow his statement to be tendered in evidence.Refer to Alliedbank v Yau Jiok Hua; Sim Tiew Bee v PP and PP v Chow Kam Meng.

Paragraph (a) Statements as to cause of deathRefer to Section 32(1)(a) and illustration (a)Although statements held to be admissible by virtue of this paragraph are commonly referred to as dying declarations, it must be noted that paragraph (a) of Section 32(1) is wider and not synonymous with the common law concept of dying declaration.In England, dying declarations are admissible only in cases of homicide, where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declarations. It is also important that the deceased should be under expectation of death.

In contrast, statements admissible by virtue of paragraphs(a) of Section 32 are not confined to dying declarations. The section refers also to statements made as to the circumstances of the transaction which resulted in his death. This means that the maker may or may not be under an expectation of death.Furthermore, statements made under Section 32(1)(a) may be made in any proceeding whatever its nature, and this includes civil cases as well.For example, refer to Narayana Swami v King Emperor

The importance of proximity of the statement to the cause of death has been highlighted in Yeoh Hock Cheng v R.In this case, the deceased was alleged to have been murdered on 14 March 1937. She had made two statements where the prosecution intended to put in evidence. The first statement was made to her father on 5th March that she had denied sleeping at the accuseds house because the accused had threatened to kill her if she did so. And the second statement was made to her sister (on the evening of her death) that she was going out with the accused and that the accused had told her to put on mans clothing.

The court held that the first statement is not admissible as being too remote to form part of the transaction that resulted in her death. The second statement was held to amount to circumstances of the transaction which resulted in her dearth.Further examples of cases in which it was held that statements made by the deceased prior to death were too remote to amount to part of the transaction resulting in death include Boota Singh v PP and Haji Salleh & Anor v PPAnother issue that is to be discussed in considering statements made under Section 32(1)(a) is the weight attached to the statements itself.The facts and circumstances of each case must be considered.

For example in Toh Lai Heng v R, the court held that although a dying declaration need not be proved by writing, the exact words spoken by the deceased must be given. If the dying declaration is reduced into writing (in the event of the witness in question being an investigating officer, magistrate or someone of that kind), then the actual words of the deceased must be recorded.The court must also assess the credibility of the deceased before relying on the statement made by him see for example Chan Phuat Khoon v PP, where reference to section 158 could also be made.

Paragraph (b) Statements in the course of businessRefer to Section 32(1)(b) and illustrations (b)(c) and (d).The party claiming that the document is within the scope of the section must prove that it was made in the ordinary course of business Syarikat Jengka Sdn Bhd v Abdul Rashid Harun ; Wan Salimah Wan Jaffar v Mahmood Bin Omar.In Vaynar Suppiah v KMA Abdul Rahim, the court imposed a further requirement that the statement made must be based on the makers personal knowledge. Thus, the court held that a report that was prepared and signed by the person who was not involved in the actual survey of the goods had no personal knowledge of their condition and was thus inadmissible.

Augustine Paul J in Alliedbank (Malaysia) v Yau Jiok Hua agreed with the decision in Vaynar Suppiah explaining that Section 32(1)(b) renders admissible only first hand hearsay, in that the maker of the statement must have had personal knowledge of its contents while Section 73A(1)(a)(ii) renders admissible second hand hearsay. On this note, Jeffrey Pinsler commented that Section 32 does not specifically impose a prohibition on multiple hearsay. It should be worth to admit such evidence and to give it whatever weight it deserves rather than exclude it altogether.

Paragraph (c) Statements against interest of makerRefer to Section 32(1)(c) and illustration (f).The principle upon which such statements are regarded as admissible in evidence is that in the ordinary course of affairs, a person is not likely to make statement to his own detriment unless it is true. In PP v Forster Frank Edald Heinrich, the accused was charged with trafficking dangerous drugs. The defence counsel sought to use two affidavits affirmed by two of the accuseds companions where it was affirmed that they alone had bought the drugs, smoked it and carried it. The affidavit was made at West Germany where there was no extradition treaty between Malaysia and Germany. Thus, the prosecution argued that the condition in paragraph (c) has not been fulfilled.

The court held that the phrase would expose him or would have exposed him to a criminal prosecution should have been interpreted as the exposure of the risk of prosecution, though not conviction, at any time while the maker is living would be sufficient. Thus the court admitted the affidavit and reasoned that the risk of prosecution would be probable if the deponent return to this country or go to a country with which this country has an extradition treaty.Another condition that had been imposed by the court to the application of paragraph (c) is that the maker must have personal knowledge of the statement at the time when he made it.

In Ward v Pitt, a claim was made by an illegitimate child against the employer of the deceased workman alleged to have been his father. The applicant relied on statements made by his father admitting to the paternity and that he intended to maintain the child and marry the applicants mother. The court held that although the statements were in fact against his interest, there was no guarantee that the deceased had personal knowledge of those facts.Another condition imposed by the court is that the maker of the statements must be aware at the time of making it that such statement would be against his interest Refer to Tucker v Oldbury UDC

Paragraph (d) Statements giving opinion as to public right or custom or matters of public or general interestRefer to Section 32(1)(d) and illustration (i)The requirement in this paragraph is that the maker of the statements must likely be aware of the existence of such public right or custom or matter of public or general interest. Thus, personal knowledge is an ingredient of this exception.

Paragraph (e) Statements relating to existence of relationshipRefer to Section 32(1)(e) and illustrations (k) and (l)In Shanmugam v Pappah, the court held that there are four conditions to be satisfied before the paragraph can be invoked namely:The pre-condition that the maker is not available to testify must be proved;The statement must relate to the existence of relationship by blood, marriage or adoption;The person making the statement must have personal means of knowledge of the relationship in question;The statements must have been made before the dispute arose.

Paragraph (f) Statements in will, deed, family pedigree, tombstone or family potraitRefer to Section 32(1)(f).In Lee Kim Luang v Lee Shiah Yee, it was held that an inscription on a tombstone relating to an alias is a statement of a relevant fact which indicates the existence of any relationship by blood, marriage or adoption between the deceased persons.The differences between paragraph (e) and (f) are as follows:Paragraph (e) relates to the existence of any relationship between any persons, dead or alive, whereas paragraph (f) relates to any relationship between dead persons only;Paragraph (e) requires special means of knowledge whereas there is no such requirement in paragraph (f); andParagraph (e) refers to statements; written or verbal; whereas paragraph (f) applies to written statement only.

Paragraph (g) Statements in documents relating to certain transactionRefer to Section 32(1)(g) where the statement is contained in any document which relates to any transaction as is mentioned in Section 13(a).It must be noted that this paragraphs applies to written statements only and its value must be considered in light of facts and circumstances.

Paragraph (h) Statements made by several persons as to feelingsRefer to Section 32(1)(h) and illustration (n).The purpose of the rule is to allow the admission of evidence of persons who are not called as witnesses as to what they said in reaction to an event or thing as it is presented to them in circumstances which exclude opportunity of reasoned reflection and possibility of concoction and distortion.Refer to Du Bost v Beresford

Paragraph (i) Statements made in the course of investigation of an offenceRefer to Section 32(1)(i)In PP v Mohd Jamil Bin Yahya & Anor, the admissibility of a statement made by the deceased under Section 112 of the CPC was considered and the court held that although Section 32(1)(i) was applicable, the weight attached to the statement was too minimal resulting in the statement having been excluded altogether. In this case, the statement was made by a self-confessed drug trafficker and taking into account that the accused faces with a charge carrying mandatory death sentence on conviction.

Paragraph (j) Statement made by public officer in the discharge of his dutiesRefer to Section 32(1)(j)On the issue of whether paragraph (i) and (j) should be read conjunctively or disjunctively, refer to PP v Michael Anayo Akabogu; PP v Lam Peng Hoa and PP v Mohammad Fairus Bin Omar

SECTION 33Refer to Section 33 and the proviso thereof.The court must be careful to see that the conditions which the statute permits the previous evidence given by the witness to be read is strictly proved.In Kee Siak Kooi v PP, the accused was charged with the offence under the Emergency Regulations and the prosecution sought to admit the evidence of a witness at a previous trial of the accused for the same offence. It was held that there was no evidence on the availability of the witness to testify and thus, the witness deposition in the previous trial is not admissible.

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