Law 4110 - 05 Exception to Hearsay Rule PDF

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05 Exception to Hearsay Rule LAW 4110 Law of Evidence 1 1Exception to Hearsay Rule**Section 32(1) (a)– Dying Declaration What is dying declaration?** The dying declaration is testimony that would normally be barred ashearsaybutmaynonetheless be admitted as evidence in certain kinds of cases because ...

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05 Exception to Hearsay Rule

LAW 4110 Law of Evidence 1

Exception to Hearsay Rule

"in the settled expectation of death (hopeless expectation of death)”. ❖Yeo Hock Cheng v Rex [1938] MLJ 99 ฀ “The first point of difference from English law is that this statement is admissible in England only in cases of murder and manslaughter, whereas in this colony it is admissible in any case in which the death of the maker of the statement is in question”.

Section 32(1) (a) – Dying Declaration • What is dying declaration? - The dying declaration is testimony that would normally be barred as hearsay but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person. • There are 4 conditions/reasons to admit hearsay evidence : 1. Dead 2. Cannot be found 3. Incapable of giving evidence 4. Attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable. ❖Shanmugam v Pappah - Held : if the party one to invoke section 32, he must first laid down the foundation (ie : The reasons) Difference between Common Law and our Law Common Law - Murder and manslaughter - In the expectation of death with no hope of recovery

Section 32(1)(a) - All cases including civil matters - [No such requirement]

Cases ❖Rex v Santokh Singh [1933] MLJ 178 ฀ “The prosecution then tendered it under section 32 (1) of the Evidence Ordinance which provides that statements made by a person who is dead are relevant when made as to the cause of his death. This statement is clearly admissible under that section for in this Colony it is not necessary as in England that the statement should have been made

Section 32 (1) (a) – Dying declaration - “Circumstances of the transaction” ❖Pakala Naraya Swami v E [1939] - The statement made by the deceased on 20 March or 21st March- that he was setting out to a place where the accused lived, and to meet the wife of the accused, who lived in the accused’s house – appears clearly to be a statement as to ‘some of the transaction which resulted in his death’ within the meaning of Section 32 (1) of the Indian Evidence Act, 1872. - See also Satish Chandra Saha v State (1954) Compare with : ❖Haji Salleh & Marzuki v PP [1931] - Statement made by the deceased a month before his death to the effect that he was afraid that one of the accused might kill him was held inadmissible because it was too remote. ❖Boota Singh v PP (1933) - The police report made by the deceased 9 months prior to her death was inadmissible under Section 32 but admissible under section 8. ❖Yeo Hock Cheng v R [1938] **very good case** - The defendant was charged of killing his girlfriend. - Before he killed and thrown the girlfriend into the river, she had made two statements. - The admissibility of the two statements alleged to have been made by the deceased was in issue in the case.

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- The first statement was made 11 days before her death to her father alleged about threat by the accused that he would kill the deceased if she told her father of her cohabitation with the accused, it is extremely doubtful whether such threat can be regarded as "any of the circumstances of the transaction which resulted in her death." - After the father came to know that his daughter had cohabited with the accused, the situation was materially altered by the accused promising to marry the deceased and by the arrangement that a mutual friend (Su Peck) should draw up a proper agreement. - It may well be that the promise itself, which the accused was unwilling to perform, supplied the motive for causing the death of the deceased, or there may have been some quite different motive. - In either case the threat to kill her if she told her father would appear to be too remote and cannot properly be treated as one of the circumstances of the transaction resulting in her death, when other, and probably more cogent, motives had intervened. Therefore, the statement was inadmissible. - The second statement were made to her sister that the boyfriend wants her to dress as a man that night. The second statement however seems to be in a different category. - The statement, it admissible, is very material. The deceased is stated to have said: (a) that she was going out with the accused, and (b) that it was the accused who told her to put on man's clothing. In view of the evidence of the body being found pegged (hang) down to the side of the creek (stream), and tied with rope, the conclusion appears to be inevitable that the murder was premeditated (planned), and that the necessary preparations had been made. - If therefore the accused himself arranged for the deceased to go out with him and to wear man's clothes, presumably to avoid recognition, these would undoubtedly appear to be circumstances of the transaction which resulted in the deceased's death, and the deceased's statements to that effect

05 Exception to Hearsay Rule

become relevant under the express provisions of section 32(1). ❖Yong Kong Tai v Salim [1997] 2 MLJ 380 - “The dying declaration of the deceased was not made on oath and the declarant was not available for cross-examination. Therefore, the court must assess the credibility of the second deceased and his son (PW1) before relying on the statement made to PWl. On the facts of the case, the court did not find the dying declaration of the second deceased and the evidence of PW1 credible” - Dying declaration under Section 32(1) must satisfied two conditions : i. It must be made either to the cause of death or circumstances of the transaction which resulted in the death. ii. The witness must not summarise what was spoken by the deceased but must give word for word as given by the dying person. Form of Dying Declaration ฀ Ipssissima verba - A dying declaration need not be proved by writing at all. However, the exact words spoken by the deceased must be given. ❖Toh Lai Heng v R [1961] MLJ 53 - The actual words of the deceased must be recorded - “A dying declaration need not be proved by writing at all; there are many cases where eye-witnesses at the scene of an attack, or persons arriving shortly thereafter, may hear the last words spoken by a dying man and their recollection of those words will properly be received in evidence. In practice such a witness would be required to give the exact words spoken by the deceased and, in so far as they are relevant, any words spoken to the deceased by the witness himself. 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. Refer also to Ong Her Hock v PP [1987] 2 MLJ 45

LAW 4110 Law of Evidence 1

The need of Caution ❖Mohamad bin Allapitchay v R [1958] - It was a murder case where on the night of the murder, the deceased went to sleep at his stall sometime before midnight; several other stall-holders, among them Yusoff and Krishnan, did likewise. - At 3.45 a.m. Yusoff and Krishnan were woken up by the noise of the deceased shouting, "Matamata (police), Mohamed has stabbed me." - They saw the deceased a few yards away on the road, pursuing 3 men who were running away from the scene. - Yusoff and Krishnan joined the chase, Yusoff following a few yards behind the deceased, and Krishnan a few yards behind Yusoff. - The latter recognised the three men as Mohamed, Hassan and Haja Mohideen, the three appellants, as they ran towards the corner of the road before disappearing from view. - The deceased, who had been mortally injured, collapsed after running 100 yards and Yusoff and Krishnan broke off the chase to help him. When they asked him who had stabbed him, the deceased replied, "Mohamed stabbed me and Hassan and Haja Mohideen were with him." - A telephone message was sent to the Radio Police Patrol and in a few minutes a Radio Police Van arrived and a Sergeant began to take down a statement from the deceased. - In the statement the deceased said that he had been woken up by four Indians, whom he named as Mohamed, Hassan, Haja Mohideen and Kakak, and that Mohamed had stabbed him in the stomach with a knife. - Shortly afterwards the ambulance arrived and the deceased was taken to the General Hospital where he fixed his thumb impression to his statement and died shortly afterwards. - Accordingly the Court is of the opinion that this statement was not part of the res gestae.

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- This decision is based on the ratio of Bedingfiled’s case where the statement was not admitted as part of res gestae as it was made after the event. - However, section 6 Illustration (a) makes a statement admissible whether it was made shortly before or after it as to form part of the transaction. - The evidence in the present case does not establish that Rahim's cry "Mohamed has stabbed me" was "part of the thing being done". On the contrary, the three persons who it is said committed this crime were running away from the scene of the crime as fast as they could when the cry was heard. The thing had been done. - COA held: ⇨ it would be serious misdirection on the part of the judge not to have warned the jury that the statement was not given under oath and subjected to cross examination.” ❖Chan Phuat Khoon v PP [1962] - To assess the credibility of the deceased is vital - Did the ‘voice from beyond the grave’ speak the truth? Section 158 of Evidence Act - Whenever any statement relevant under Section 32 or Section 33 is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made…’ ❖PP v Mohd Jamil bin Yahya [1993] 3 MLJ 702 - The two accused were charged with trafficking in dangerous drugs, an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952. - The prosecution relied on a statement made by a deceased person ('the declarant') during the course of an investigation, under s 112 of the Criminal Procedure Code (FMS Cap 6), to prove its case against the two accused. - The statement by the declarant was admitted under s 32(1)(i) of the Evidence Act 1950 ('the Act'), which contained a new exception under the hearsay

05 Exception to Hearsay Rule

rule, introduced by the Evidence (Amendment) Act 1993. - In the statement, the declarant, a self-confessed trafficker in cannabis, seemed to implicate the first accused with the purchase of the bag of cannabis seized and to peripherally implicate the second accused with the seized bag. - Held, acquitting and discharging both the accused: The declarant should be open to impeachment and discrediting in the same way as other witnesses - KC Vohrah: “In my view the weight and degree of credit to be attached to a statement…must be examined with the greatest of caution…” Requirement for Corroboration Issue : must a dying declaration be corroborated? ❖Nembhard v R [1982] - The Privy Council rejected an argument that a dying declaration must be corroborated if it is to be relied on. Compare with : ❖Mary Shim v PP [1962] - Where the appellant was convicted of an offence punishable under section 314 of the Penal Code, i.e. with doing an act with intent to cause the miscarriage of one Lily Tan which act caused the death of the said Lily Tan. - 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 section 32(a) of the Evidence Ordinance; as deceased was an accomplice to the criminal act of abortion, corroboration of her evidence was desirable. (Appeal dismissed) ❖State of Uttar Pradesh v Chet Ram - The Indian Supreme Court said that a dying declaration, needless to say, does not require any corroboration as in the case of an accomplice or a confession.

LAW 4110 Law of Evidence 1

- However, where the deceased who made the dying declaration is an accomplice then corroboration of his evidence is desirable and necessary.

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