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HEARSAY EVIDENCES 60(1) Evidence Act 1950Oral evidence shall in all cases whatever be direct, that is to say—(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;(b) If it refers to a fact which could be heard, it must be the evidence of a witness w...

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HEARSAY EVIDENCE S 60(1) Evidence Act 1950 Oral evidence shall in all cases whatever be direct, that is to say— (a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; (b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; (c) If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; (d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. General rule - Hearsay evidence is evidence which is not based on one’s senses. - A witness is not allowed to testify to facts in issue or relevant facts which are based on the perception of another person - Hearsay evidence is not admissible to the court as it is indirectly because all evidence must be direct in the sense that it must be given by those who perceived it. Tan Gong Wai v PP The court held that the general rule is that hearsay evidence is not admissible as proof of a fact which has been stated by a third person Chandrasekaran & Ors v PP The court held that the statement made to a witness repeated in court did not fall within the hearsay rule as the statement was made not prove the truth of its content but merely to show that it was made. Subramaniam v PP RULE AGAINST HEARSAY - Hearsay evidence is an out of court statement or document made by a third party that is brought to the court by a witness to prove the truth as to the matter asserted but the maker of the statement or document is not present in court to verify its truth. - The Act provides for the circumstances where out-of-court statements can be admissible such as admission, confession, dying declaration and business record. - Such statements must be ‘relevant’ facts - If they do not fall into any of the stated categories, they are considered ‘irrelevant’ and inadmissible – hearsay

The exclusion of hearsay is because 1. Evidence cannot be tested in court 2. The makers are not available to give evidence Subramaniam vs PP FACT: the accused was charged with unlawful possession of firearms. His defence was that he was acting under duress. He wished to repeat the threats that had been made to him of what would happen if he refused to carry the weapon. HELD: The Privy Council, allowing his appeal opined that the hearsay rule was not infringed because his evidence about what the terrorists had said to him was not adduced in order to show that the terrorists had said was true, but in order to show that threats had in fact been made. * The statement was made not to prove the truth of it but merely to show that it was made as explaining the relevant conduct which was relevant under s8 and the witness’ state of mind under s14 of the Act. Teper v R The accused had convicted of arson. Of a shop belonging to his wife in which he carried on the business of dry goods store. The prosecution called a Police Constable Cato as a witness who deposed that after hearing the fire alarm he heard a women’s voice shouting, “Your place burning and you going from the fire. Immediately afterwards he saw a black car being driven by a man resembling the appellant. The words were spoken some 220 yards from the site of the fire and about 26 minutes after the fire had begun HELD: Privy Council held that the evidence was inadmissible hearsay and quashed the conviction Lord Normand: The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost. In the other words, the hearsay evidence shouldn’t be tendered because 1. It is not the best evidence 2. It is not given on oath 3. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination 4. Court is not able to see the demeanour of the witness EXCEPTION TO RULE AGAINST HEARSAY (i)

Statement forming part of res gestae (s6)

(ii)

Statement by rape victim or indecent assault, can be proved by victim by conduct (s8) (iii) Statements showing mental @ bodily feeling (s14) (iv) Statement made in presence of party/agent (v) Statement to corroborate that a witness had affirmed something on former occasion (s157) (vi) Admission & Confession (s 17-30) (vii) Entries In Public Documents (viii) Computer Documents (S. 90A, 90B, 90C) - Statement or document produced in court must be by the person making the statement or the document. However, for computer generated document, it may not necessarily be the person making the document - In order to suffice to the court, must show that the document is produced in the course of its ordinary use by a certificate signed by a person responsible for the operation of that computer. (ix) Exception under s32 S32 EA 1950: there are 2 parts where the first part is identify the types of individuals where hearsay statement can be brought in court in their absent. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.

Section 32 deals with statements of persons who cannot be called as witnesses, on the ground that a) they are dead - death of the maker of the statement need to prove by documentary evidence such as death certificate or oral evidence by family members or superior officer (covers s107 & s108) Yeo Hock Cheng v PP The deceased made the statement to the father that she denied sleeping at his boyfriend’s place and she made a statement to her sister that she was going out with the boyfriend and asked her to wear men’s clothes. However, only the statement of the sister can be admissible to the court because it is relevant facts which related to the case. b) they cannot be found - there must be prove that attempts to search for the person’s whereabouts have been made PP v Lee Jun Hoe The prosecution attempted to tender two statements recorded by 2 witnesses who are workers at the clinic who were present during the incident as the exception of hearsay evidence under section 32(1) of the Act because both witnesses were Indian national who subsequently could not be traced. The court held that it is not applicable under section 32 because the prosecution did not take reasonable steps to trace the witnesses.

PP v Norfaizal It was necessary for the prosecution and the police to make diligent search and reasonable exertion in a finding that the witness could not be found. In this case, the efforts placed by the prosecution and police were “lackadaisical ad lacklustre” therefore failed to satisfy the court on the proof of the unavailability of the witness. PP v Gan Kwong The police had arrested a witness together with the accused. The witness statement was taken and was released on bail. The police could not trace the witness after that and several attempts were made to trace the witness and his surety to no avail and detailed evidence of these attempts was presented to court. The court admitted 4 police officers were assigned to search, and 3 advertisements were inserted in 3 separate newspapers. c) they have become incapable of giving evidence - need not necessary indicate a permanent form of incapacitation - incapability can be caused by extreme old age or mental incapacity - The judge has discretion to determine the degree of illness and if the illness is serious, the court may excuse the witness’s attendance but if there is possibility of recovery within a reasonable time, the court may postpone the trial. Chainchal Singh v Emperor If the witness is incapability to give evidence which the fact must be proved strictly, the person should be given the chance to testify, then court may assess his demeanour and assess his capability to tender evidence. The court must be careful to see the conditions provided by the statute to be strictly proved. d) Their attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the court unreasonable. - Take too long time to incur so much expenses - Enough evidence must be adduced to show that it would involve delay and expenses if his presence is procured. Ben Food (S) Pte Ltd v Limbangan Supermarket Sdn Bhd The court found that no evidence was produced to indicate the cost to procure the witness’s presence in court, hence reliance to this part in section 32(1) was denied. Allied Bank (M) Bhd v Yau Jiok Hua The witness who has the solicitor issuing the letter of demand on behalf of the plaintiff was necessary considering that he had migrated to Australia and his whereabouts was unknown. The plaintiff claimed that unreasonable delay and expense would be incurred in attempting to procure the attendance of the witness

The court rejected the application as found that the argument given by the plaintiff was not cost effective to bring the witness to court for hearing was unacceptable considering the subject matter in question was 1 million. Therefore, the issue of unreasonable delay and cost must be proved on case by basis. PP v Lam Peng Hoa The court held that unless it is proved to the satisfaction of the court that the prosecutor had employed due diligence and reasonable exertion in trying to locate the witness, there could be no basis to find that she could not be procured without an amount of delay or expense. (Evidence of diligent search can defeat an argument to say that such attempt to procure a witness was unreasonable) Categories of persons not within section 32(1) 1. persons residing outside of jurisdiction Mohamed Ghouse v R The court expressed that mere residence out of jurisdiction is not sufficient to invoke the provisions of section 32(1). The fact, the court recognise the danger to regard the statement of those who are outside of jurisdiction to fall within the category of persons whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable. 2. persons who are unwilling to come - mere unwillingness to come and testify orally in court does not fall within the categories of section 32(1) Ng Yiu Kwok & Ors v PP The evidence is a visa card vouchers and related bills from a hotel in Thailand can be produced when the makers of the documents were outside the jurisdiction and unwilling to come to this country. The court in this case accepted the document based on the principle of necessity because the entries were made in the course of business. The court accepted that there is a presumption that the documents had been prepared with disinterested motive and can be regarded as true. i) Statement as to cause of death S32(a) Dying Declaration CASE: Boota Singh v PP FACT: the accused was charged with murder, a report made by the deceased against the prisoner nine months before the murder was to be tendered HELD: It was found to be too remote and could not strictly amount to a report regarding the circumstances of the transaction which resulted in death CASE: Haji Salleh & Anor v PP FACT: the deceased had made a statement a month before his death to the effect that he was afraid that one of the accused persons might kill him

HELD: Such statement was inadmissible as it was too remote to form part of the transaction which resulted in his death Principle above: The statements made by the deceased prior to death cannot to be too remote to amount to part of the transaction resulting in death CASE: Mary Shim v PP FACT: Where the appellant was convicted of an offence punishable under s314 of Penal Code (Death caused by act done with intent to cause miscarriage) with doing an act with intent to cause the miscarriage of Lily Tan which act caused the death of her. It was argued on appeal that certain statements made by the deceased should not have been admitted by reason of the hearsay rule. HELD: statements made by the deceased were rightly admitted under s32(a) of EO; as deceased was an accomplice to the criminal act of abortion, corroboration of her evidence was desirable thus appeal dismissed CASE: Chandrasekara v The King FACT: The accused slit the deceased throat thus, she cannot speak. She was conscious and she answered the question by signs. The sign of nodding made by the deceased shortly before her death was initially regarded as hearsay. HELD: it was admissible and relevant as showing the cause of the deceased’s death which falls within exception of hearsay CASE: Toh Lai Heng v R HELD: Although a dying declaration need not be proved by writing, the exact words spoken by the deceased must be given. If however, the dying declaration is reduced to writing, the actual words of the deceased must be recorded. This case followed by CASE: Ong Her Hock v PP HELD: 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 the evidence. ii) S32(b) Statement in the ordinary course of business when the statement was made by any such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him; CASE: Syarikat Jengka Sdn Bhd v Abdul Rashid Harun HELD: Federal Court held that a party could not refer to a document without showing that it was made in the ordinary course of his business CASE: PP v Leong Heo Cheong

HELD: a statement made by a person to the person which in performing his duty in the ordinary course can be admitted. It is the duty to have such entry reported Illustration (b) & (c) (b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that on a given day he attended A’s mother and delivered her of a son, is a relevant fact. (c) The question is whether A was in Kuala Lumpur on a given day. A statement in the diary of a deceased advocate regularly kept in the course of business that on a given day the advocate attended A at a place mentioned in Kuala Lumpur for the purpose of conferring with him upon specified business is a relevant fact.

iii) S32 (c) EA1950 statement against interests of maker (c) When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages; Illustrations (e) & (f) (e) The question is whether rent was paid to A for certain land. A letter from A’s deceased agent to B, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact. (f) The question is whether A and B were legally married. The statement of a deceased clergyman that he married them under circumstances that the celebration would be a crime is relevant. iv) S32 (d) statements giving opinion as to: (a) public right; (b) custom; (c) matters of public or general interest when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which if it existed he would have been likely to be aware, and when the statement was made before any controversy as to the right, custom or matter had arisen - Conditions for relevancy: The declarant was aware of the existence of such right Statement was made before any controversy as to right or custom arose Illustration (i) (i) The question is whether a given road is a public way.

A statement by A, a deceased Penghulu of the Mukim, that the road was public is a relevant fact. v) S32 (e) statement relates to existence of relationship (e) When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised CASE: Shanmugan v Pappahhi HELD: The precondition under s.32 (1)(e) must be satisfied where statement must relate to the existence of any relationship by blood marriage or adoption that maker must have special means of knowledge and statement was made before the question in dispute arose CASE: Mohamed Abu Bakar v Syed Abu Tahir HELD: The contents of the power of attorney as to the status of the alleged widow were inadmissible as evidence, being hearsay. No attempt was made to satisfy the requirements of s 32 of the Evidence Act 1950. The power of attorney was executed after the matters in controversy in the suit had arisen and its maker, the alleged widow, stood to benefit if the action against the defendant were dismissed. It could not therefore be said that there was an absence of motive to misrepresent. In the result, there was not a scrap of evidence that the deceased and the alleged widow were married to each other. Illustration (k) & (l) (k) The question is whether A, who is dead, was the father of B. A statement by A that B was his son is a relevant fact. (l) The question is what was the date of the birth of A? A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact. vi) S.32 (f) statement in will or deed relating to family affairs (f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when the statement was made before the question in dispute was raised; CASE: Lee Kim Luang v Lee Shiah Yee HELD: an inscription on a tombstone relating to an alias is a statement of a relevant fact which indicates the extensive of any relationship of blood, marriage or adoption between the deceased people. CASE: Re Estate of Chan Chin Hee

HELD: even though incription of the name on the tombstone was inconclusive, nevertheless a considerable weight was given to it. Differences between 32(e) and 32(f) 1. e refers to persons dead or alive, whereas f refers to only dead persons 2. e requires special means of knowledge but not paragraph f 3. e refers to oral or verbal statements, f refers only to written statements vii) 32(1)(g) Statement relating to certain transaction When the statement is contained in any document which relates to any transaction as is mentioned in paragraph 13(a); S13 Facts relevant when right or custom is in question Where the question is as to the existence of any right or custom the following facts are relevant: (a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence; viii) S.32 (h) statement by several persons, expressing feeling When the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question; Illustration (n) A sues B for a libel expressed in a printed caricature exposed in a shop window CASE: Saga foodstuffs manufacturing v Best food pte ltd The court may allow evidence of what persons who are not called as witnesses said in reaction to an event or thing in circumstances which exclude the possibility of concoction and distortion. They may be used to prove the truth of what was stated. Section 33 Evidence in previous judicial proceedings Deposition by witness in a judicial proceeding or before any person authorized by law to take them. The relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated. Such evidence made and stated in section 32 is releva...