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Akmyr Ahmad Azwan The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 6 of Evidence Act 1950 for being facts forming part of the same transaction. Section 6 states that facts are relevant if they are so connected to the facts in issue, as t...

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Akmyr Ahmad Azwan

The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 6 of Evidence Act 1950 for being facts forming part of the same transaction. Section 6 states that facts are relevant if they are so connected to the facts in issue, as to form a part of the same transaction. This section relates to the principle o f Res Gestae, i.e. things done. In the case of Thavanathan Subramaniam v PP, the court clarified that ‘same transaction’ within the meaning of Section 6 is to be decided based on the circumstances of each case, and the facts must be connected with each other by factors such as the (1) proximity of time, (2) promixity of place, (3) continuity of action, and (4) community of purpose & design. ‘Same transaction’ in Section 6 can either be in (1) Direct evidence, and (2) Hearsay evidence. ……………………………………………………………………………………………………… As for Direct Evidence, case of Amrita Lal Hazra v R affirmed that for an evidence to be considered as part of the same transaction, it must strictly satisfy the test of four proximities. To illustrate, in Chin Choy v PP, the court held the accused not liable for having possession of revolver and ammunition under Emergency Regulation because such offence was committed over a period of 7 years and in several unspecified places in Pahang. Similarly, in PP v Ahmad bin Ibrahim, the court held that the presence of drugs in the accused urine was consistent with the commission of drug trafficking as it was so closely connected by all four proximities. Furthermore, in PP v Hamzah Kunju, the court held that, the argument & threat by the complainant indeed contribute towards the continuity of action/purpose/design necessary to form same transaction which further led into the grievous hurt committed by the appellant. ……………………………………………………………………………………………………… As for Hearsay Evidence, there are 2 possible approaches, either (1) Strict Approach, or (2) Liberal Approach. Traditionally under the Strict Approach, ‘test of contemporaneity’ has to be satisfied as a basis for admitting a statement. This is illustrated in R v Bedingfield whereby the accused was alleged to have threatened to kill the victim by cutting of her throat. On the night of the incident, the victim came rushing out of the house with her throat cut, and uttered “see what Harry has done!” The court held that the statement was not part of the same transaction (res gestae) as the words were uttered AFTER the act of cutting the throat. Hence, it was not contemporaneous. Similarly, in Teper v R, the court held that evidence of a police officer who heard a woman shout, “your place burning and you are getting away from it” 30 minutes after the fire incident was not admissible as it was not contemporaneous in nature. On the other hand, a more modern concept of Liberal Approach can be illustrated in Ratten v R whereby the court held that the words uttered by the wife saying, “Get me the police, please” before the line got disconnected and she was shot dead, could indeed be satisfy res gestae, because it was closely associated with time and place of the shooting and was made spontaneously under an overwhelming pressure. Similarly, in R v Andrews, the court ruled that the underlying principle

Akmyr Ahmad Azwan

for admittance of hearsay under res gestae is that the event must be so unusual, startling, or dramatic that it dominates the thoughts of the victim so as to exclude any possibility of concoction and fabrication. In Malaysian practice, the judge in PP v Mohd Zahari Embong adopted liberal approach and accepted hearsay evidence of the witness who merely repeated the accused’s statement confirming that the wife beat all their children to death and he killed his wife without any intention.

Akmyr Ahmad Azwan

The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 7 of Evidence Act 1950 for being facts which are the occasion, cause or effect of the facts in issue or relevant facts. According to Section 7, any facts which are the occasion, cause or effect of the facts in issue, are relevant & admissible. These three components can come together or separately depending on the facts of each case. To illustrate occasion, in Ahmad Najib Aris v PP, the court held that the deceased body that was found with her both hands tied with a Muslin Cloth was an evident of occasion as to how she was left after being murdered. To illustrate cause, in Saw Thean Teik v R, the court indeed allowed the admissibility of evidence regarding the accused’s drunkenness as a ‘cause’ of him driving dangerously & recklessly. To illustrate effect, in PP v Toh Kee Huat, the court held that the evidence of fingerprint found on the inside surface window of the stolen car was significantly relevant & admissible as it was regarded as an ‘effect’ that the accused was once inside the car. ……………………………………………………………………………………………………… The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 7 of Evidence Act 1950 for being facts that constitute state of things under which the facts in issue happened. According to Section 7, any facts that constitute state of things under which the facts in issue happen, shall be relevant & admissible. Among other situations that fall under this limb are, if it refers to (1) the condition of the crime scene, (2) marks on the scene of accident, (3) witness who heard the victim cried/shouted, or (4) the knowledge of the victim’s daily routine. At the core of this discussion’s application, it simply refers to circumstantial situations which are obvious to the witness who perceives it to have certain logical meaning. For example, in illustration (a) of Section 7, it states that “an evidence to show that before robbery, B went & showed to C some money in his possession, is relevant as a ‘state of thing’.” To illustrate further, in PP v Muhd Rasid Hashim, the court admitted evidence of state of things, that are inter alia, (1) the sign of struggle, (2) the signs and scars of a defensive nature, and (3) the testimony of the victim’s friend who found the victim full of bruises & blood, to came out with an irresistible conclusion that the sexual intercourse indeed happened without the victim’s consent. ……………………………………………………………………………………………………… The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 7 of Evidence Act 1950 for being facts afforded an opportunity for the occurrence of the facts in issue. By virtue of Section 7, any facts which afforded an opportunity of the occurrence of facts in issue, are relevant. ‘Opportunity’ has been defined in PP v Dato Anwar Ibrahim, as a chance

Akmyr Ahmad Azwan

for the commission of an offence by the accused, which can be disapproved by the tendering of an alibi. To illustrate, in Ahmad Najib Aris v PP, the court concluded that the accused has ample opportunity to commit the crime because it was witnessed by third party that the deceased/accused person had been together at various locations prior to that murder. Moreover, in illustration (c) of Section 7, it states that the facts that A knows B’s habit, & the state of B’s health, are evidences to show that A has an opportunity to administer the poison that harm B. However, it should be noted that, in Aziz Muhammad Din v PP, the court held that the fact that the accused and the complainant have spent a night together at the witness’s house constitute an opportunity for a rape. However, the evidence of a mere opportunity without the admissibility of more evidence will not be sufficient to be an evidence of the “actual commission” of rape.

Akmyr Ahmad Azwan

The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 8(1) of Evidence Act 1950 for being an evidence as to motive. Section 8(1) states that any evidence as to motive is relevant, and thus, admissible. According to R v Steane, motive refers to a “reason” or “why a person does a particular act”. In Dila Ram v Emperor, the court affirmed that it is not safe for the court to convict a person merely on motive because not all person having a motive has the intention to commit the crime. Similarly, in Yap Boon Thai v PP, the court held that failure to prove motive will not throw the entire case overboard, but rather, it only cast duty unto the court to critically scrutinize each piece of evidence closely in order to ensure suspicions, assumptions and etc, will not take place of proof. Regardless of the above discussion, case of Dato Moktar Hashim v PP affirmed that the proof of motive is relevant if all the evidences are circumstantial in nature. However, the motive must strictly be proven by direct evidence, as per case of Karam Singh v PP. An illustration is given in illustration (a) of Section 8 that the fact that A murdered B in order to stop B from exposing the fact that A killed C is the evidence as to motive. This indeed discloses the accused’s bad character which according to Section 54 is not admissible. However, according to the case of Wong Foh Hin v PP, the court clarified that such evidences are admissible because any facts relevant to prove motive is a strong & convincing evidence which have a high degree of probative value. ……………………………………………………………………………………………………… The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 8(1) of Evidence Act 1950 for being an evidence of the act of preparation Section 8(1) allow the evidence of the act of preparation relevant to the facts in issue to be tendered before the court. “Preparation” is defined in Lakshmi Prasad v Emperor as devising or arranging means necessary for the commission of an offence as opposed to an attempt, which is a direct movement towards the commission after the preparation are made. For example, in illustration (c) of Section 8, the fact that A procured a poison, similar to the one that was administered to B is relevant as to show preparation. However, if the act of the accused extends only so far as to the preparation stage of the offence, according to Thiangiah v PP, such act is not an offence. ……………………………………………………………………………………………………. The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 8(2) of Evidence Act 1950 for being conduct that is related to facts in issue. By virtue of Section 8(2), it states that the conduct of any parties to the suit or his agents is relevant, provided, by the case of Parlan Dadeh v PP, the conduct is related to facts in issue. ‘Conduct’ can be previous conduct or subsequent conduct.

Akmyr Ahmad Azwan

Referring to the facts given, only previous conduct is relevant. Previous conduct is the conduct of an accused/victim PRIOR to the commencement of the facts in issue. To illustrate, in R v Ball, the court accepted the previous conduct of cohabitation by both brother and sister, and the fact that they have a child out of that conduct, as an evidence for their conviction of incest. Similarly, in Syed Ali v PP, the court held that the previous conduct of an accused deliberately telling lie to PW4 that he is going to Terengganu, but in fact, he actually went to Singapore is indeed a relevant evidence that is admissible. To illustrate further, in illustration c of Section 8, it states that the fact that before the death of B, A obtain poison similar to that which was administered to B, is relevant. ………………………………............................................................................................................ Referring to the facts given, only subsequent conduct is relevant. Subsequent conduct refers to act of accused or victim that is subsequent to the crime committed. To illustrate, in Thavanathan Balasubramaniam v PP, the court allowed the evidence of a witness’s testimony whereby he said that he saw the accused dropped the money he counted upon being ambushed by the authorities, as it constitutes relevant subsequent conduct. Similarly, in Chandrasekaran v PP, the court admitted evidence of the act of appellant making a random statement to a colleague that he had won $5000 at a race and that he bought $1000 diamond ring for his wife using that money, as an evidence of subsequent conduct, to show his nervousness for the offence he had committed. Furthermore, in Mahadzir Yusoff v PP, the court allow the evidence of subsequent conduct when after the murder had took place, the accused went back to the crime scene to confirm that the victim was indeed dead. ……………………………………………………………………………………………………… Referring to the facts given, only subsequent conduct is relevant. Subsequent conduct refers to act of accused or victim that is subsequent to the crime committed. According to illustration (f) of Section 8, the testimony of C that A had ran after being told that the police is searching for the person who robbed B is indeed relevant. In case of flight, PP v Chia Leong Foo affirmed that there must be a nexus between the conduct of the accused, his flight & also the offence in question, which must be judged based on circumstances of each case. To illustrate, in Roslan Sabu v PP, the court held that flight accompanied by subsequent act of throwing away plastic beg which was later found to contain drugs was undeniably relevant to be an evidence of guilt. ……………………………………………………………………………………………………… According to Tan Sin Seng v PP, there are 4 elements that need to be fulfilled in order for a lie to be considered as a ‘conduct’, namely, (1) the lie must be a deliberate lie, (2) the lie must relate to material facts, (3) the motive of the lie must be the realization of guilt & fear of truth, and (4) the statement must clearly shown to be a lie by independent evidences. To illustrate, in Syed Ali v PP, the court held that the fact that the accused lied by telling PW4 that he is going to Terengganu, but in fact, he actually went to Singapore can be considered as a relevant evidence of conduct. Similarly, in PP v Dato’ Seri Anwar Ibrahim, the conduct of an accused asking the witness to lie to the police is also relevant & admissible as an evidence. ………………………………………………………………………………………………………

Akmyr Ahmad Azwan

Explanation (1) to Section 8 defines ‘conduct’ as an action, or a statement accompanied with an action. In R v Lilyman, the court explained that in case of sexual offences, the complaint made by victim shortly after the alleged crime was relevant & admissible evidence of conduct. However, there are 2 elements that need to be fulfilled for a complaint to be considered as conduct. Firstly, according to Aziz Muhammad Din v PP, the statement must be voluntary & spontaneous. Secondly, according to Terang Amit v PP, the statement must be made to an authority with a view of punishing that person, which not necessarily be a police. To illustrate further, in illustration (k), the fact that soon after the alleged robbery, he made a complaint relating to the offence, the complaint made was indeed relevant. Similarly, in illustration (j), the fact that the shortly after the alleged rape, she made a complaint relating to the crime, the complaint is also relevant.

Akmyr Ahmad Azwan

The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 9 of Evidence Act 1950 for being facts which is necessary to explain or introduce facts in issue. According to Section 9, facts are relevant to explain or introduce facts in issue. For example, reference can be made to illustration b of Section 9 where it states that the position and relations of the parties at the time when the libel was published may be a relevant facts as introductory to the facts in issue. Similarly, in illustration c of Section 9 state that the fact that at the time when A left home, he had sudden and urgent business at the place to which he went is relevant to explain the fact that he left home suddenl y. To illustrate, in Lim Seng Chuan v PP, it was submitted that evidence adduced in a trial within a trial (voir dire) to determine whether a confession was voluntarily made or not constitute facts necessary to introduce the facts in issue pursuant to Section 9. ……………………………………………………………………………………………………… The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 9 of Evidence Act 1950 for being facts supporting or rebutting inference. According to Section 9, facts are relevant if it is to support or rebut any inferences suggested by the fact in issue. For example, in Ahmad Zawawi v PP, the court held that the conduct of an accused running away upon discovery of the drugs indeed led to a presumption that he had prior knowledge about the drugs. However, this inference is rebutted when the court consider that it is a natural response of a reasonable man to run so as to avoid the prospect of being arrested although he is innocent. Similarly, in Matru v State, the accused was at all time with the complainant that he thought himself was the suspect, and thus, he kept out of the way and evaded arrest. The court held that the evidence of his previous conduct was significantly relevant to contradict the inference suggested by his subsequent evading. ……………………………………………………………………………………………………… The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 9 of Evidence Act 1950 for being facts that show time and place where facts in issue happen. Facts which show time and place where facts in issue happen is relevant under Section 9. For example, in Ahmad Najib Aris v PP, this evidence can be given by a lay witness who found the body of a murder victim in a particular location, especially when a link can be established between the accused and the victim. This evidence of time and place concerning the facts in issue can also be given by an expert. If this expert is called as a witness in court, then he is giving the evidence under Section 9, to be read together with Section 45. ……………………………………………………………………………………………………… The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 9 of Evidence Act 1950 for being facts that show relation.

Akmyr Ahmad Azwan

Section 9 states that facts are relevant if it is to show relations between the parties. Verification on the relationship of parties can be crucial in certain cases, especially in cases which involve claim of inheritance and legitimacy of a child. In Sean O’casey Patterson’s case, the court held evidence of DNA tendered to prove that the plaintiff to be the father of the child is accepted to show the relationship between them. ………………………………………………………………………………………………………

Akmyr Ahmad Azwan

The issue is whether the statement made by ______ towards ______ is admissible and relevant pursuant to Section 9 of Evidence Act 1950 for being facts that establish the identity of a person or a thing. According to Section 9, facts are relevant if it is to establish the identity of a person or a thing. Identity of a person can be done by (1) visual identification, (2) photograph, (3) voice, (4) DNA, (5) smell, (6) videotape/CCTV, and (7) fingerprint. Referring to the facts given, only the issue of the process of ‘identification parade’ under the purview of visual identification is relevant to be discussed. According to PP v Sarjeet Singh, identification parade is relevant to be conducted if the accused person is not previously known to the witness, or in R v Ferguson, the witness only saw the accused once. Proper procedure of identification parade has been laid in Mallal’s Criminal Procedure, that are, (1) the participants must be in line-up of at least 10 person (R v William), (2) the person must be of same nationality, same station in life, and no great disparity of ages (PP v Pasupathy – significant difference in terms of the heights and age), (3) the identification parade must be conducted by an officer that is unrelated to the case (Ahmad Najib Aris v PP), (4) the identification parade must be conducted at the earliest op...