Dying Declarations

Dying Declaration is admissible under Section 32(a) of Evidence Act 1950. It must be
proved to have been made by the deceased, must narrate the cause and
circumstances of his death (PP v Mohd Jamil bin Yahya & Anor). If the declarant
survives, the statement is not relavant as a dying declaration but it may be relied on
under Section 157, to corroborate his testimony when examined.
Although it is admissible, it is a weak type of evidence because:
(a) It is not made on oath;
(b) It is not subject to cross-examination;
(c) It is made in the absence of the accused; and
(d) There is no peril of the prosecution for perjury.
The rational for admitting dying declaration is laid down in R v Woodcock as:
(a) They are declarations made in extremity, when the party is at the point of
death,
and when every hope of this world is gone;
(b) Every motive to falsehood is silenced, and the mind is induced by the most
powerful
considerations to speak the truth;
(c) A situation so solemn and so awful is considered by law as creating an
obligation
equal to that which is imposed by positive oath administered in a court of justice.
A dying declaration may be made:
(a) To anyone: police officer, magistrate or private person; and
(b) In any form: written or oral. If written, it is proved by examining a person who
recorded it. If oral, it is proved by examining some person, who was present at
the
time and heard the statement being made.
Under English Law, the declarant must have been:
(a) In actual danger of immediate death, at the time of making the declaration;
(b) Fully aware of his danger;
(c) Must have died subsequently.
Below are the differences between the English Law and Malaysian law in Dying
Declaration:
English Law
(i) Dying declaration is admissible only in criminal case, and that only in the
prosecution
for murder of the deceased.
(ii) Dying declaration is admissible only when there are expectation, knowledge and
death
Malaysian Law
(i) Dying Declaration is admissible in any case whether civil or criminal.
(ii) Dying Declaration is admissible when the cause of death is in question.
Expectation
and knowledge are not essential

Dying declaration is the exception to hearsay evidence and it is admissible in

the court. However, it must be made contemporaneous and spontaneous
after the event. Generally, a dying person is presume to tell the truth.
However, the admissibility of dying declaration must be done with utmost
caution and it is still subject to adverse inferences. In the case of Mohammad
bin Allapitchay, the defense raised the issues on identification because the
environment is very dark when the event occurred.Hence, the defense
counsel can raise the question that the person seen by the deceased person
is not the accused.

Confession
Issue: What amounts to a Confession?
The law of confessions in Malaysia is based on common law principle. A confession
cannot be adduced unless it is made voluntarily. The prosecution must prove this
requirement beyond reasonable doubt. By virtue of section 17 (2) of the Evidence
Act 1950, confession is defined as an admission made at any time by a person
accused of an offence, stating or suggesting the inference that he committed that
offence.

Anandagoda v The Queen [1962] MLJ 289 PC

The appellant was charged with murder by running over the deceased with a motor
car, his statements considered by themselves, contained no admission that he was
driving the car in question or that if he was driving it he ran over the deceased
deliberately.
The appropriate test in deciding whether a particular statement is confession is as
follows:a) whether the words of admission in the context expressly or substantially admit guilt
or
b) do they taken together in the context inferentially admit guilt

Lemanit v PP [1965] 2 MLJ 26

In this case, the appellant was arrested on 1 June 1964 when he called at the
immigration depot and he subsequently made a statement on 5 June 1964 to a
Magistrate, Mr Tay Soo Tee.

The Magistrate stated that: I inform the accused that I am in no position to help him
with respect to his desire to stay in Singapore.

Q. Knowing that I (the magistrate) cant help you to stay in Singapore do you still
wish to make your statement voluntarily.
A. Yes.
Q. Is that all you wish to say?
A. Yes.

Mr Karpal Singh submitted on behalf of the appellant that the magistrate was not
satisfied that the statement was voluntary, that it was not a confession and that it
should not have been recorded. He further submitted that the inducement had
been offered to the appellant which rendered it irrelevant because the magistrate
told him that he could not help him to stay in Singapore when the appellant
expressed a desire that he should do so as otherwise he would be shot on his return
to Indonesia.

The learned trial judge admitted this statement as a confession after hearing
evidence on an objection raised by the appellant that it was not voluntarily made.
During the recording of his confession, which the magistrate stated he had reason to
believe was voluntary made, the appellant asked him to allow him to stay in
Singapore. The magistrate very properly told him he could not help him in the matter
at all. The courts therefore, of the opinion that the complaint directed against the
admission of the statement as a confession has no validity.