12. Hearsay Evidence - Lecture notes 12 PDF

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Summary

HEARSAY EVIDENCE Section 32: Statement made by third party, and the witness is the one who repeats it at the court. If the statement is against the accused, then it is a hearsay. If the statement says: Daud comes to court and said that Ali told him that he loves Mona and he has no heart to harm her ...

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HEARSAY EVIDENCE Section 32: Statement made by third party, and the witness is the one who repeats it at the court. If the statement is against the accused, then it is a hearsay. If the statement says: Daud comes to court and said that Ali told him that he loves Mona and he has no heart to harm her and will not harm her = not hear say, as it is not against the accused. 3 rd party wrote something in a document, and he himself did not come to court = it is documentary hearsay. General rule: hearsay is not relevant and not admissible because it is highly prejudicial because there is a high chance of fabrication, the person who made the statement is not called to give statement in oath thus he can’t be examined, cross-examined and re-examined. Exceptions to Hearsay: Res Gestae, Section 32, and admission and confession. 

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Malaysia National Insurance Sdn Bhd v Malaysia Rubber Development Corp: The court held that the evidence by DW1 was clearly hearsay evidence. His evidence was derived from interviews and not from his own knowledge. Hearsay evidence which ought to have been rejected does not become admissible merely because no objection was taken earlier. Chow Siew Woh v PP: The recorded statement of the deceased which contained her dying declaration that identify the accused prior to her death was regarded as the best evidence and the failure of the prosecutor to produce it resulted in the failure of conviction. Leong Hong Khie v PP: One of the reasons/rationales of the general rule of hearsay is that hearsay evidence might be concocted or fabricated hence creates the possibility of errors in transmission. R v Collins: The court is denied of the opportunity to observe the veracity, sincerity, and credibility of a witness who made the statement which is crucial in establishing the truth of facts asserted.

SECTION 32 Categories of people who fall under Section 32: Dead, cannot be found, became incapable of giving evidence, attendance cannot be secured without reasonable delay + expenses. DEAD Can be proven by: 1. Death certificate: must mention section 74, 76, 77. 2. Oral testimony about the death of the person. E.g. Doctor who did the post mortem report. a. PP v Leong Heo Chong: A police officer died. He has written info in his diary. The prosecution wanted to tender the diary but they need to prove that he had died. Therefore his higher officer came forward to give testimony about his death – court held admissible. 3. Order by court presuming that the person had died: section 107 and 108 – if it is within the time period that the person has not contacted/cannot be found.

PERSON WHO CANNOT BE FOUND “Police arrest and charged C. They also caught W1 while he was buying drugs from C. Witness statement would be recorded under document 112 CPC and he must sign the document. Later at trial they must call W1 to court. Later if they cannot produce W1 at trial, the 112 CPC will be considered as documentary hearsay.”  PP v Lee Jun Ho: The CoA affirmed the finding of the trial judge in rejecting the evidence of recorded statements of two important witnesses of Indian citizenships under Section 112 of the CPC when both of the witnesses were not found. The basis of the rejection of the witnesses’ statements was that no action was taken to trace these witnesses when the trial was initiated in 2006 and efforts to locate them were only made in 2008. The serious nature of the charge (murder) demanded greater efforts on the part of the prosecutor to ensure that the witnesses were present.  PP v Chow Kam Meng: If the person is cannot be found, must show to court that there has been a diligent search for him.  PP v Norfaizal bin Mat (No 2): The court in this case stressed that mere ignorance of the whereabouts of the witness is not sufficient to invoke Section 32. In this case, the prosecutor must prove that the missing material witness falls within the categories of persons “who cannot be found”. It is necessary for the prosecution and the police to make diligent search and reasonable exertion in a finding that the witness could not be found. Here, the efforts placed by the prosecution and the police were ‘lackadaisical’ and ‘lacklustre’, hence failed to satisfy the court on the proof of the unavailability of the witness.  PP v Mogan Ayavoo: Attempts by the police to find the missing witness through advertisements in the newspapers, sending out signals to all the police district chiefs in East and West Malaysia and tracing all known addresses of the witness were rejected by the court. This is nothing more than sticking to their own routine procedure and failure of the police to locate any of the member of the witness’ family and to interview them as well as the failure to check the witness’ Sabah address clearly indicated the lack of initiative and diligence on the part of the police.  PP v Gan Kwong: The police could neither trace nor serve a subpoena on the witness. Several attempts were made to trace the witness and his surety to no avail and detail evidence of these attempts was presented to the court. Four police officers were directed to locate the witness and his surety but failed and three advertisements were inserted in three separate Chinese newspapers. The Judge in this case considered these efforts to be sufficient and allowed the statement to be tendered.  Duncan v PP: The court said that must prove reasonable search has been conducted. The prosecution must tender evidence that a diligent search has been conducted – must prove that had searched recent address, searched at his old address, put up posters.

INCAPABLE OF GIVING EVIDENCE Due to: Infirmity of age, infirmity of mind, coma. How to prove: 1. Testimony by a doctor. 2. Testimony by someone who has cared for the person – must be supported by evidence. 

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R v Noakes: The judge has discretion to determine the degree of illness and if the illness is serious, the court may excuse the witness’ attendance. If there is any possibility of recovery within a reasonable time, the court may postpone the trial. Chainchal Singh v Emperor: When 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 – supported by Malaysian cases such as PP v Kee Hang Boon.

ATTENDANCE CANNOT BE PROCURED WITHOUT DELAY + EXPENSES Question of fact for the court to decide. E.g. A is driving his car at 120kmp/h at 3am. He then knocked down B (a world football player) he was admitted, leg has to be amputated and he was treated by Dr K. Dr K prepared a medical report that B’s leg had to be amputated due to the accident and he was admitted for a year and was depressed. B sued A. B claimed 2.6bil. the amount would depend on who he is. If B was a homeless man (claimed 50k). Dr K went for an expedition at the Artic (there was a storm and he was missing). If B’s counsel were to produce the medical report, the counsel for A would object to the evidence – documentary hearsay because cannot cross-examine Dr K. If the cost to bring him back is 1mil, and the claim is 2.6bil, it is reasonable. If the claim is 50k, not reasonable. Delay: from Artic and Singapore, Singapore would be more reasonable. 

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Borneo Malaysia Sdn Bhd v Penang Port Commission: Where the court regarded that the calling of the witness from England to give oral evidence relating to the preparation of the documents to be unreasonable as it would incur expenses over the amount of claim. Since this would increase the cost of the proceeding and result in inconvenience and delay, the court allowed for the documents to be relied on under Section 32(1)(b) without calling the maker as procuring the presence of the maker may result in unreasonable delay and expenses. Ben Food (S) Pte Ltd v Limbangan Supermarket Sdn Bhd: The High Court found that no evidence was produced to indicate the cost to procure the witness’ presence in court, hence reliance to this part of Section 32 was denied. Allied Bank (M) Bhd v Yau Jiok Hua: Whether the delay and cost is regarded as reasonable or not is to be determined on case by case basis based on circumstances of each case.

Section 32(1)(a): Dying declaration. The statement must refer to the cause of his death/circumstances which led to his death – the former is narrower than the latter. In

Malaysia, need not be made with the expectation of death. Applied to both civil and criminal cases.  Yeo Hock Seng v Rex: The accused is charged for killing his fiancé. His fiancé, though engaged to him, liked another guy. This accused was angry. He told her that he wanted to take her on an adventurous trip. He even told her to dress up like a man. The night before the trip, the victim had told this to her sister. The next morning, a fisherman saw a body hanging over a cliff and thought it was a man – actually it was a girl, the victim. Important witness would be the sister – repeat what the victim told her. This statement does not show the exact cause of her death, but it leads to the circumstances of her death – there is a nexus.  Pakala Narayana Swami v King Emperor: The court explained that there must be some proximity between the statement and the actual death. General expression which indicates fear or suspicion is not admissible.  Murugan a/l Arumugam v PP: Transaction must relate to a set of facts pertaining to the death of the maker such as the time or place of his death or about meeting someone who may be the accused. The CoA in this case accepted the dying declaration made by the deceased to six other witnesses to be the truth of what happened and were rightly admitted by the trial judge.  Roslan bin Husain v PP: The accused challenged the admissibility of the dying declaration made by the deceased to a witness on the ground that the witness failed to disclose it to anyone at the earliest available opportunity even though he knew the accused person and did not believe that he was capable of such act. The disclosure of the dying declaration was made later to the police. The CoA in analysing the relevancy and admissibility of the dying declaration believed that both the witness and the deceased were telling the truth. Section 32(1)(b): Made in the ordinary course of business. E.g. accountant who keeps records in a company. The accountant must come to court, if he falls under one of the category of people, the document can still be submitted to court without it being a documentary hearsay. Statistics book, accounts book, etc. Applied to both civil and criminal cases.  

Allied Bank Malaysia Bhd v Yau Jiok Hua: Witness who was the solicitor issuing the letter of demand on behalf of the plaintiff. Tube Home (M) Sdn Bhd v P Shanmugam: The judge in this case accepted the letter made by a senior officer of the registrar of patents pursuant to his duties and responsibilities in the registry.

Section 32(1)(i): Police must prove that the person falls under one of the categories of people (dead, cannot be found) and diligent search has been conducted – the 112 CPC record can be tendered under this paragraph because it is made in the course of investigation or inquiry. Section 32(1)(j): Chemist report that the substance taken from the accused is drug – the chemist then died and fell under one of the categories of people. He is considered a public

officer – the statement made in the report to discharge their duty falls under paragraph j. CPC defines public officer as “any government servant”. The court would not necessarily attach weight to it – will look at the nature of the punishment. *Section 32(1)(i) and (j) must be read conjunctively. After explaining the exceptions under Section 32, must explain a bit on weight....