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LAW541 LAW OF EVIDENCE

I
TOPIC 7 - HEARSAY
BY: MAZLINA MAHALI

CONTENTS
Introduction
Forms of Hearsay Assertion
Exceptions to the Hearsay Rule
Res Gestae
Admission & Confession
Section 32
Section 33
Section 73A
Section 90A

INTRODUCTION

A witness is not allowed to testify to facts in issue or


any relevant facts based on the perception of
another person since such evidence is not direct as
required by Section 60 of the Evidence Act 1950.
For example, A is charged with murder of B. C
wishes to testify that he was told by D that D saw A
commit the murder. In this situation, D should be
called to testify because he has personal knowledge
based on his perception. It is his perception that
must be attested and tested in cross-examination to
determine whether it was accurate.

The rationale for excluding hearsay assertions was


explained by Lord Normand in Teper v The Queen.
The rule against the admission of hearsay evidence
is fundamental. It is not the best evidence and is not
delivered on oath. The truthfulness and accuracy of
the person whose words are spoken to another
witness cannot be tested in cross-examination and
the light which his demeanour would throw on his
testimony is lost.
An out-of-court assertion amounts to hearsay when
the purpose of adducing the assertion is to prove
the truth of the contents of its statement.

This was illustrated in the case of Subramaniam v PP


In that case, the A was charged with possession of
ammunition. The defence that was put forward by the A
was that he had been captured by terrorists and that he
was acting under duress. The issue that arose was
whether the statement made by the terrorist to the A
amounted to hearsay.
Based on the facts of the case, it was held that
statement could have been made to the A by the
terrorists which, whether true or not, if they had been
believed by the A, might reasonably have induced in
him an apprehension of instant death if he failed to
conform to their wishes. The statement therefore did
not amount to hearsay.

Evidence of statement made to a witness by a


person who is not himself called as a witness
may or may not be hearsay. It is hearsay and
inadmissible when the object of the evidence is
to establish the truth of what is contained in the
statement. It is not hearsay and is admissible
when it is proposed to establish by the evidence,
not the truth of the statement, but the fact that it
was made.The fact the statement was made,
quite apart from its truth, is frequently relevant
in considering the mental state and conduct
thereafter of the witness or some other person in
whose presence the statement was made.

In Ng Lai Huat v PP, five accused persons


were charged under the Kidnapping Act 1961
for wrongfully confined two victims with
intent to hold a ransom. The DPP urged the
court to accept that the demands made by
one Jimmy Chua conveyed through the
former Director-General of Prisons,
constituted ransom as spelt out in the Act.
The defence counsel objected on the basis
that what Jimmy Chua said was a hearsay
because Jimmy Chua was dead and therefore
not a witness in court to testify.

It was held that the evidence of the former DG of


Prisons in relation to Jimmy Chuas purported
demands amounted to hearsay as the purpose of
tendering his statement was to establish the truth
of its contents.
In another case of PP v Robert Boon Teck
Chuah, it was held that the statement made by a
witness in that he received instructions from ASP
Harris Wong to arrest four male Chinese was held
to have been tendered not to prove the truth of
the contents of the statement but to show that the
statements were made in order to establish that
instructions were in fact given.

FORMS OF HEARSAY ASSERTION

Hearsay may also take the form of conduct or


document.
For example in Chandrasekara v R, the gestures
of a woman (who just had her throat cut)
identifying her assailant were held to be hearsay.
Hearsay in the form of documentary evidence is
also inadmissible. For example in Myers v DPP,
where the court held that evidence in the form of
microfilm which contained certain numbers that
were matched with the numbers moulded into
certain parts of the car amount to hearsay as it
was tendered by the officer in charge of the record
made by the manufacturer of the stolen cars.

In Beh Heng Siong v PP, the accused was


charged with manufacturing sour plum juice which
contained saccharin, an ingredient which was
prohibited for the manufacture of food and drinks.
It was held that the words on the label amounted
to hearsay and was therefore inadmissible.
In Sim Tiew Bee v PP, the accused was charged
with the importation of uncustomed goods. The
words Sim Tiew Bee, Sibu on the gunny sacks
which were indicative of the consignee were held
to be hearsay.
Refer also to Patel v Comptroller of Customs

EXCEPTIONS TO THE HEARSAY RULE

Res Gestae
Admission
Confession
Section 32
Section 33
Section 73A
Section 90A

SECTION 32

Section 32 (1) of the Evidence Act 1950 consists of


ten paragraphs which apply separately and
independently as exceptions to the hearsay rule.
There are however pre-conditions to fulfill before
reliance may be made on any of the paragraphs.
The pre-condition stated in Section 32(1) refer to
proving the unavailability of the maker of the
statement or assertion.
The importance of proving the unavailability of the
maker of the statement was highlighted in Federal
Court case of Sim Tiew Bee v PP which quoted Lord
Goddard words in Chainchal Singh v Emperor:

Where 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. It is an elementary right of an accused person
or a litigant in a civil suit that a witness who is to
testify against him should give his evidence before the
court trying the case which then has the opportunity of
seeing the witness and observing his demeanour and
can thus form a far better opinion as to his reliability
than is possible from reading a statement or
depositionIn a civil case, a party can, if he chooses,
waive the proof, but in criminal case, strict proof ought
to be given that the witness is incapable of giving
evidence

Proving absence of witness under


Section 32(1)

Where the maker is dead, the best method of proving


that the person who made the statement is dead is by
tendering evidence of death certificate of the person.
Alternatively, reliance may be made on the presumption
of death.
Where the maker cannot be traced or found it depends
on the evidence adduced to show that reasonable
efforts to find him have been made without success.
Where the maker is incapable of giving evidence this
may arise due to causes such as extreme old age or
mental incapacity or accident which resulted to
permanent disability. Sufficient evidence must be
adduced to establish the incapacity of the person whose
statement is sought to be admitted as evidence, though
it need not be that of medical person.

Where procuring the attendance will result in


unreasonable delay or expense for this requirement to
be satisfied, the court need to look at facts of the case
and different rules apply depending on circumstances of
each case. Thus, what is unreasonable or unnecessary is
not a matter in which absolute standards can be applied.
Thus, two things are of importance the seriousness of
the charge and the character of the evidence proposed
to be tendered.
In Borneo Co (M) Sdn Bhd v Penang Port
Commission, where the witness was to be brought from
England merely to give formal evidence, it was held that
it was unreasonable as the expense of brinnging him
down would exceeded the subject matter of the claim.

However, it must also be noted that mere


residence out of jurisdiction is not sufficient to
invoke the provision of the section. In fact, it
would be dangerous to subscribe to the
doctrine that mere residence out of jurisdiction
is adequate to dispense with the personal
attendance of a witness and to allow his
statement to be tendered in evidence.
Refer to Alliedbank v Yau Jiok Hua; Sim
Tiew Bee v PP and PP v Chow Kam Meng.

Paragraph (a) Statements as to


cause of death

Refer to Section 32(1)(a) and illustration (a)


Although statements held to be admissible by virtue
of this paragraph are commonly referred to as dying
declarations, it must be noted that paragraph (a) of
Section 32(1) is wider and not synonymous with the
common law concept of dying declaration.
In England, dying declarations are admissible only in
cases of homicide, where the death of the deceased
is the subject of the charge and the circumstances
of the death are the subject of the dying
declarations. It is also important that the deceased
should be under expectation of death.

In contrast, statements admissible by virtue of


paragraphs(a) of Section 32 are not confined to
dying declarations. The section refers also to
statements made as to the circumstances of the
transaction which resulted in his death. This means
that the maker may or may not be under an
expectation of death.
Furthermore, statements made under Section 32(1)
(a) may be made in any proceeding whatever its
nature, and this includes civil cases as well.
For example, refer to Narayana Swami v King
Emperor

The importance of proximity of the statement to the


cause of death has been highlighted in Yeoh Hock
Cheng v R.
In this case, the deceased was alleged to have been
murdered on 14 March 1937. She had made two
statements where the prosecution intended to put in
evidence. The first statement was made to her father
on 5th March that she had denied sleeping at the
accuseds house because the accused had threatened
to kill her if she did so. And the second statement was
made to her sister (on the evening of her death) that
she was going out with the accused and that the
accused had told her to put on mans clothing.

The court held that the first statement is not admissible


as being too remote to form part of the transaction that
resulted in her death. The second statement was held to
amount to circumstances of the transaction which
resulted in her dearth.
Further examples of cases in which it was held that
statements made by the deceased prior to death were
too remote to amount to part of the transaction resulting
in death include Boota Singh v PP and Haji Salleh &
Anor v PP
Another issue that is to be discussed in considering
statements made under Section 32(1)(a) is the weight
attached to the statements itself.
The facts and circumstances of each case must be
considered.

For example in Toh Lai Heng v R, the court held


that although a dying declaration need not be
proved by writing, the exact words spoken by the
deceased must be given. If the dying declaration
is reduced into writing (in the event of the witness
in question being an investigating officer,
magistrate or someone of that kind), then the
actual words of the deceased must be recorded.
The court must also assess the credibility of the
deceased before relying on the statement made
by him see for example Chan Phuat Khoon v
PP, where reference to section 158 could also be
made.

Paragraph (b) Statements in the


course of business

Refer to Section 32(1)(b) and illustrations (b)(c) and (d).


The party claiming that the document is within the
scope of the section must prove that it was made in the
ordinary course of business Syarikat Jengka Sdn
Bhd v Abdul Rashid Harun ; Wan Salimah Wan
Jaffar v Mahmood Bin Omar.
In Vaynar Suppiah v KMA Abdul Rahim, the court
imposed a further requirement that the statement
made must be based on the makers personal
knowledge. Thus, the court held that a report that was
prepared and signed by the person who was not
involved in the actual survey of the goods had no
personal knowledge of their condition and was thus
inadmissible.

Augustine Paul J in Alliedbank (Malaysia) v Yau


Jiok Hua agreed with the decision in Vaynar
Suppiah explaining that Section 32(1)(b) renders
admissible only first hand hearsay, in that the
maker of the statement must have had personal
knowledge of its contents while Section 73A(1)(a)
(ii) renders admissible second hand hearsay.
On this note, Jeffrey Pinsler commented that
Section 32 does not specifically impose a
prohibition on multiple hearsay. It should be
worth to admit such evidence and to give it
whatever weight it deserves rather than exclude
it altogether.

Paragraph (c) Statements against


interest of maker

Refer to Section 32(1)(c) and illustration (f).


The principle upon which such statements are regarded
as admissible in evidence is that in the ordinary course
of affairs, a person is not likely to make statement to his
own detriment unless it is true.
In PP v Forster Frank Edald Heinrich, the accused
was charged with trafficking dangerous drugs. The
defence counsel sought to use two affidavits affirmed by
two of the accuseds companions where it was affirmed
that they alone had bought the drugs, smoked it and
carried it. The affidavit was made at West Germany
where there was no extradition treaty between Malaysia
and Germany. Thus, the prosecution argued that the
condition in paragraph (c) has not been fulfilled.

The court held that the phrase would expose him or


would have exposed him to a criminal prosecution
should have been interpreted as the exposure of the
risk of prosecution, though not conviction, at any
time while the maker is living would be sufficient.
Thus the court admitted the affidavit and reasoned
that the risk of prosecution would be probable if the
deponent return to this country or go to a country
with which this country has an extradition treaty.
Another condition that had been imposed by the
court to the application of paragraph (c) is that the
maker must have personal knowledge of the
statement at the time when he made it.

In Ward v Pitt, a claim was made by an illegitimate


child against the employer of the deceased workman
alleged to have been his father. The applicant relied
on statements made by his father admitting to the
paternity and that he intended to maintain the child
and marry the applicants mother. The court held that
although the statements were in fact against his
interest, there was no guarantee that the deceased
had personal knowledge of those facts.
Another condition imposed by the court is that the
maker of the statements must be aware at the time
of making it that such statement would be against his
interest Refer to Tucker v Oldbury UDC

Paragraph (d) Statements giving opinion


as to public right or custom or matters of
public or general interest

Refer to Section 32(1)(d) and


illustration (i)
The requirement in this paragraph is
that the maker of the statements
must likely be aware of the existence
of such public right or custom or
matter of public or general interest.
Thus, personal knowledge is an
ingredient of this exception.

Paragraph (e) Statements


relating to existence of
relationship
Refer to Section 32(1)(e) and illustrations (k) and (l)
In Shanmugam v Pappah, the court held that
there are four conditions to be satisfied before the
paragraph can be invoked namely:
a) The pre-condition that the maker is not available
to testify must be proved;
b) The statement must relate to the existence of
relationship by blood, marriage or adoption;
c) The person making the statement must have
personal means of knowledge of the relationship in
question;
d) The statements must have been made before the
dispute arose.

Paragraph (f) Statements in will, deed,


family pedigree, tombstone or family potrait
Refer to Section 32(1)(f).
In Lee Kim Luang v Lee Shiah Yee, it was held that an
inscription on a tombstone relating to an alias is a statement
of a relevant fact which indicates the existence of any
relationship by blood, marriage or adoption between the
deceased persons.
The differences between paragraph (e) and (f) are as follows:
a) Paragraph (e) relates to the existence of any relationship
between any persons, dead or alive, whereas paragraph (f)
relates to any relationship between dead persons only;
b) Paragraph (e) requires special means of knowledge
whereas there is no such requirement in paragraph (f); and
c) Paragraph (e) refers to statements; written or verbal;
whereas paragraph (f) applies to written statement only.

Paragraph (g) Statements in documents


relating to certain transaction

Refer to Section 32(1)(g) where the


statement is contained in any
document which relates to any
transaction as is mentioned in
Section 13(a).
It must be noted that this paragraphs
applies to written statements only
and its value must be considered in
light of facts and circumstances.

Paragraph (h) Statements made by


several persons as to feelings

Refer to Section 32(1)(h) and illustration


(n).
The purpose of the rule is to allow the
admission of evidence of persons who are
not called as witnesses as to what they
said in reaction to an event or thing as it is
presented to them in circumstances which
exclude opportunity of reasoned reflection
and possibility of concoction and distortion.
Refer to Du Bost v Beresford

Paragraph (i) Statements made in the


course of investigation of an offence

Refer to Section 32(1)(i)


In PP v Mohd Jamil Bin Yahya & Anor, the
admissibility of a statement made by the deceased
under Section 112 of the CPC was considered and
the court held that although Section 32(1)(i) was
applicable, the weight attached to the statement
was too minimal resulting in the statement having
been excluded altogether. In this case, the
statement was made by a self-confessed drug
trafficker and taking into account that the accused
faces with a charge carrying mandatory death
sentence on conviction.

Paragraph (j) Statement made by public


officer in the discharge of his duties

Refer to Section 32(1)(j)


On the issue of whether paragraph (i)
and (j) should be read conjunctively
or disjunctively, refer to PP v
Michael Anayo Akabogu; PP v
Lam Peng Hoa and PP v
Mohammad Fairus Bin Omar

SECTION 33

Refer to Section 33 and the proviso thereof.


The court must be careful to see that the conditions
which the statute permits the previous evidence
given by the witness to be read is strictly proved.
In Kee Siak Kooi v PP, the accused was charged
with the offence under the Emergency Regulations
and the prosecution sought to admit the evidence
of a witness at a previous trial of the accused for
the same offence. It was held that there was no
evidence on the availability of the witness to testify
and thus, the witness deposition in the previous
trial is not admissible.

END OF LECTURE
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