Admissibility of similar fact evidence in Malaysia?

What is similar fact evidence? It is actually referring to an accused person’s pervious misconduct so called bad character other than that which gives rise to the offence charged. For example, A is charged under an offence of murdering B, and before being charged, A did murder somebody else like C and D, thus the act towards C and D is considered as similar fact evidence.

In our previous post, we did discuss the position of common law in admitting the similar fact by discussing the case of Makin v AG for New South Wales as well as the case of Boardman v DPP.

In the former case, Lord Hershell formulated the rule of admissibility where the similar fact evidence is admissible if it is relevant to an issue before the jury and yet it also admissible if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

On the other hand, for the latter case, it was focused at the point of probative value as known as probative value approach as to convict the accused by admitting the similar fact evidence, all the crimes committed by the accused must contain similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence. It does mean that the act of accused must be SIMILAR in all the crimes he committed, for example A would put a rose on the top of deceased’s head after he has murdered him/her, if the next victim also has a rose on top of her head, hence this similar fact will be admissible and taken into consideration if A is being charged.

So the question arises as to does Malaysian Court adopt the same approach laid down under common law? The answer will be yes. It can be seen through our decided case and provisions under Evidence Act 1950 including section 14, 15 and 11 of the said act.

In Malaysian case of Junaidi bin Abdullah, Mohamed Azmi SCJ had adopted the principles laid down in Makin case and Boardman case where he said that similar fact evidence will be admissible provided the probative value of such evidence outweighs its prejudicial value. Although it is seemed similar fact evidence is admissible, lawyer still needs to be caution when adopting our provision in tendering such evidence.

As stated in Makin case, similar fact evidence is only admissible if it can be proven whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.  This judgment actually can be separated into 2 parts, firstly to prove whether the act was designed or accidental, it is dealt with state of mind which is mens rea, secondly to rebut a defence can be meant to negate the actus reus.

Thus, for similar fact evidence to prove the mens rea, it is only allowed under those sections in proving a person’s state of mind which is section 14 and 15. For rebutting the defence, section 14, 15 are not relevant at all since 14 and 15 have nothing to do with actus reus. So, how to admit the similar fact evidence when it is needed to rebut a defence? It can be admissible under section 11 of Evidence act as to prove whether the fact in issue or relevant fact is high probable or improbable.

As a conclusion the common law principles may prove to be good law and are well accepted, they must always be read in line with our own provisions under Evidence Act to avoid the inconsistency.

Written by Lee Kah Sheng (Sean)

Extra Information: Young offender under rape offence

Under section 113 of the Evidence Act 1950 ("the Act") it states that it is presumed in law that a boy under the age of thirteen years of age is incapable of committing the offence of rape. This section provides a shield for those under the age of thirteen as it is legally presumed that he is incapable of having sexual intercourse and this presumption is irrefutable and cannot in any circumstances be denied. Looking at the explanation given, it is clear that such a provision should not have existed in the first place ! 

Such a provision is archaic in nature and irrelevant in today's society as it not only gives young offenders the opportunity to commit such a heinous act, it also reflects poorly on the image of the society. There is a case which shows how flawed this section is. On Oct 21,2000, a five year old girl by the name of Nur Shuhada Burak, was raped and murdered by her 12 year old neighbor. Her body was then dumped in a water tank which was on top of the roof of the premises. The punishment which followed was seen to be too light and only a "slap on the wrist" and this generated a public outcry. 

Such emotional response from the public is understandable in such a case but what can the judge do ? He is tied down by the legal flaw of section 113 of the Act, tied down by the imperfect legal technicality which is present in section 113. As long as this section remains, many more young offenders of rape will be glad to know that even if there is evidence of the boy's semen present in the victim's vagina, even if there is a video recording showing clearly that the whole raping incident by the boy done to the victim, even if there is an eye witness present at the crime scene and has witness the act, the boy will still be perfectly shielded by this act ! Justice is suppose to reflect the public interest of the society, but such a section clearly does not do so. 

This provision must be abolished and the sooner the better. Other Commonwealth countries such as Singapore which has similar provisions as section 113 of the Act has already abolished those acts and we should be doing so as well. Another thing to be pointed out is that the act of raping is not dependent on whether the offender has reached the age of puberty or not, but it depends on whether penetration has been done. The ability to penetrate depends solely on the ability to have an erection and not the ability to emit semen and thus the presumption in section 113 seems to be false and misguided. 

Hopefully this section would be abolished as soon as possible so as not to give ultimate protection to any young offenders . 

Written by Lee Zheng Ying (Aaron)

Conduct under section 8 of Evidence Act 1950

Conduct under section 8 encompasses both prior and subsequent conduct. It was quite firmly held in Ibrahim bin Mohd v. PP that it must not be referred to in isolation, but be considered with other evidence or circumstances. Illustrations (f), (g), (h) and (i) of the Section provides good examples of conduct as admissible evidence.

A very useful case to exemplify this section would be Chandrasekaran v. PP. Here the appellant was convicted under the Prevention of Corruption Act 1961, for conspiracy to defraud the government. The appellant had volunteered a statement to a colleague that he had won about $5,000 at races. He also said that he bought $1,000 diamond ring for his wife a few days ago from his alleged turf club winnings. Justice Raja Azlan Shah held that there was no cause to make those statements, except for obvious reasons. Such conduct was held to be relevant and admissible as there was no other reasonable explanation to them but the showing of guilt on the appellant.

Now, it is well established that statements per se are not conduct, as stated in explanation 1 of the Section. A police report, or a complaint can be a conduct as it was accompanied by acts. This was established in Boota Singh v. PP and Aziz bin Muhammad Din v. PP. However, in PP v. Azilah bin Hadri, the conduct of the accused of pointing to a spot in the crime scene and saying ‘itulah tempat perempuan itu diletupkan’ was held to be inadmissible. It was differentiated from Bala Matik v. PP, where in that case, the act of pointing at a parang alone was admissible as there was no words.

If we read the explanation to Section 8 carefully, if a statement is accompanied by acts, it is admissible. In PP v. Azilah bin Hadri, the statement was accompanied by the act of pointing a finger, yet it was inadmissible. I humbly disagree with court on that point. Hope to hear your opinions on this case.

Written By 

Surendra

What is res gestae under section 6?

Section 6 relates to the rule of evidence commonly referred to as res gestae. What is res gestae? Res gestae is a Latin word mean things done or things transacted. It is a common law doctrine governing testimony. Further it defines as the events, circumstances, remarks and so forth, which relate to a particular case, especially as constituting admissible evidence in a court of law.

Section 6 of Evidence Act 1950 provides that:

Relevancy of facts forming part of same transactions

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.

Following to provision given, this section indicates that facts though not in issue but are so connected to a fact in issue as to form part of the same transaction are admitted because they form part of res gestae. The rationale of the rule is that it admits in evidence a fact which is not in issue because it is so connected with the fact in issue that its admission helps to show the character of the fact. What happen if the rule is exclude or not accepted from being part of the evidence? Exclusion of it would tend to render evidence as to other facts unintelligible.

Section 6 applies to both criminal and civil proceedings. Where the statement sought to be admitted does not satisfy the requirements of the section it is rejected as hearsay. Take note that hearsay is inadmissible in evidence per se but section 6 is an exception to the rule.

Bear in mind too what is admissible in this section are facts which are connected with the fact in issue as “part of transaction” under investigation. In order that different acts may constitute the same transaction, they must be connected by proximity of time, place, continuity of action and community of purpose and design. Whether the connection is sufficient to make a fact/facts part of the transaction or is too remote must always depend on the circumstances of the case.

When section 6 is use, it must be read together with Section 7, 8 and 9.  Why? Because these section deal with facts and conduct which are specifically connected with facts in issue. In the book of The Indian Evidence Act by Sir James Stephen, regarding on this, he wrote that they have been described as intended ‘to enumerate specifically the different instances of the connection between cause and effect which occur most frequently in judicial proceedings’.

In the case of Chhotka v State of AIR, per Mookerjee J:

Section 6 of the Evidence Act and the succeeding sections embody the rule of admission of evidence relating to what is commonly known as res gestae. Acts or declarations accompanying or explaining the transaction or the facts in issue are treated as part of the res gestae and admitted as evidence. They are, roughly speaking, exceptions to the hearsay rule.

The obvious ground of admission of such evidence as is referred to in section 6 is the spontaneity and immediacy of the act or declaration in question. The facts deposed to must form part of the transaction. The requirement is that the statement sought to be admitted must have been made contemporaneously with the act or immediately after it and not such an interval of time from it as to allow fabrication or to reduce the statement to a mere narrative of past events.

Application of section 6 and the doctrine of res gestae in Malaysia position, it is seen now we have already moved from strict interpretation as how in the case of Tan Geok Kwang v Public Prosecutor, which limit the aspect of length of time to flexible approach that allows expansion of time such in the case of Thavanathan a/l Balasubramaniam v Public Prosecutor, for a transaction. Take note that it is provided that certain requirements are followed in order to avoid fabrication and concoction upon the evidence adduced.

Old position in Tan Geok Kwang v Public Prosecutor, it was held that a short time span where the facts occurred is regarded as a same transaction. In this case the appellant was charged with possession of a revolver. During the trial, the evidence adduced was that, first, a hand grenade had been thrown from a bushes where the appellant was found, second, the revolver found had been fired a few days previously at Sungai Bakap and third, the content of the documents found in possession of the appellant. Accordingly the court rejected the second evidence based on its prejudicial effect to rely on the facts which happened three days before the arrest and the third one upon its facet of bad character evidence. The first evidence pertaining to the hand-grenade was accepted under the notion of Res Gestae for the existence of a direct connection between the wounded Chinese who entered the belukar, throwing of the hand-grenade and the arrest of the wounded appellant in the belukar.

Whilst in Thavanathan a/l Balasubramaniam v Public Prosecutor, the court seems to be expanding the length of time by accepting the facts which occur from September to November as part of the same transaction. Nevertheless, some requirements must be complied with before it is admits in court. It is such facts must be connected by factors depending on the circumstances which consist of proximity of time, proximity or unity of place, continuity of action, and community of purpose or design. On this basis, the court affirmed the order of conviction.

In conclusion, section 6 of Malaysian Evidence Act can be said as Res Gestae but the application of it is differed from the common law context and it shall change from time to time according to the circumstances of the facts of the case the court will face in the future.

Written By
Norida

What do you understand in regards to Best Evidence Rule?

Exceptions to Admissibility of Hearsay

            Hearsay evidence is basically evidence that is heard by someone and said back. In layman terms it is known as the common gossip which swirls around without any substance. As such, the courts have been very reluctant to admit hearsay as a substantial form of evidence.

            Section 60 of the Evidence Act 1950 provides that oral evidence must be direct but subsection(3) provides that if an evidence is indirect but it is a material fact, the court may call for the inspection of that evidence.  This indirect evidence is also known a hearsay evidence.

Sarkar on Evidence  defines hearsay as  follows:

“ Hearsay is secondary evidence of any oral statement eg when witness A says that B told him about the happening of event X (though B is not before the court). A’s assertion about event X being not based on his own observation he is not qualified to speak to it. B’s assertion made out of court cannot be accepted because t cannot be subjected to cross examination and other tests. But if the object is only to prove B’s assertion of the event (and not to prove the event), A is competent to speak to it and it may be received if it has any relevancy in the case”

            Several cases has also analyzed to what extent hearsay can be admitted.

            In the case of Subramaniam v PP it was said that “ 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 that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.”

            Similarly in Ratten v R it was held “ the mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called is no objection to its admissibility. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially’, that is, as establishing some fact narrated by the words”.

            In Leong Hong Kie v PP it was held that the proposition in Subramaniam v PP can only be accepted subject to the condition that the statement must be directly relevant to the state of mind of the witness to whom it had been made.

            The exceptions to the hearsay rule can be found in several sections inter alia sections 32, 33 and 73 A of the act. There are also cases that are cited in those sections.

            In Lim Ah Oh & Anor v R it was held that “it is commonly stated in English law that what is stated in the presence of a party is evidence against him. It should be noted that this is not now to be treated as an exception to the rule against hearsay but as evidence of a factum probans, in light of the reaction of  the party to what is said.”

            In Tee Eok Kee v Tan Chiah Hock, it was held that “ it is clear law, that not only admission made personally by the party, but also admissions by those in privity with the party are admissible as to exception to the hearsay rule.”

             From the sections and cases stated above, it can be seen that the admissibility of hearsay evidence is quite wide. The general rule of Evidence Law which is that if a thing is relevant it can be admissible also applies to hearsay evidence. Thus it can be said that hearsay will not apply unless it is relevant to the case at hand. Hearsay can be a strong circumstantial evidence if it is so attached to the material facts of the case and it helps to connect the loose ends in the chain of evidence.

By: Laviania a/p Pathmanathan (A132492)

What if an accused confessed his/her wrongdoing under oppression?

In our Malaysia position, although there is provision says that confession is not admissible if the confession is induced by promise, inducement or threats, there is nothing talks about this oppression. Hence, we ought to refer the position under common law. Firstly, in the case of R v. Priestley, oppression is defined as "something which tends to sap and has sapped that free will which must exist before a confession is voluntary”. In the case of R v. Fulling, a Court of Appeal decision, Lord Lane CJ held that oppression must be given its ordinary dictionary meaning and applied the definition of that word as it appears in the Oxford Dictionary which says this: Exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment of subjects, inferiors, etc.; the imposition of unreasonable or unjust burdens.

Although there is no provision governing this issue of oppression, we can see this through our decided cases which are as follows:

1. Dato Mokthar bin Hashim v Public Prosecutor

This was an appeal by the appellants against their conviction and death sentence by the High Court, Kuala Lumpur on 5 March 1983 ([1983] CLJ (Rep) 721) on the charge of murder of the former Speaker of the Negeri Sembilan State Legislative Assembly, Dato Mohd.Taha bin Talib on 14 April 1982 at or about 1.30 a.m. at Gemencheh in Negeri Sembilan, an offence punishable under section 302 of the Penal Code read with section 34 of the same Code. The deceased was found dead from bullet wounds outside his house in Gemencheh in the early morning on 14 April 1982. 


The case was classified as a security case under the Essential (Security Cases) Regulations, 1975 (“the Regulations”) by virtue of a certificate issued by the Attorney General under the provisions of reg. 2(2) thereof. Counsel for the 1st appellant took as his first point, the failure of the learned trial Judge to consider the preliminary objection he had raised at the inception of the trial and renewed subsequently that this was not a security case but one of law and order, that in the circumstances, the Attorney General could not and should not have issued his certificate under reg. 2(2) of the Regulations, that the trial was accordingly a nullity and that it should be remitted to the Magistrate’s Court for a preliminary enquiry prior to any committal for a trial by jury in the High Court under the provisions of the Criminal Procedure Code. 

A major frontal attack was made by Counsel for both the appellants against the learned trial Judge’s finding that a statement (P101) made by the 2nd appellant which amounted to a confession was voluntary. He made the statement in question on 23 June 1982 after his arrest on 29 May 1982 under section 112 of the Criminal Procedure Code to DSP Mohd. Bashir bin Ali (PW8) which implicated not only himself but also his co-accused. The statement purports to narrate the planning and preparation of the murder of the deceased which gave various dates of meetings held between the participators and also gave a somewhat vivid account of the actual murder, in that, the 1st appellant had fired the fatal shots. The voluntariness of the statements was put in issue as the 2nd appellant had alleged that he was induced to give the statement and after a voir dire the learned trial Judge had held the statement to be voluntary and therefore admissible, and accordingly admitted it in evidence and put in as P101. In this connection, the Public Prosecutor had applied that the decision of the Federal Court in Johnson Tan Han Seng v. Public Prosecutor be reconsidered in reference to reg. 21 of the Regulations which states to the effect that the prosecution must prove that a statement made by an accused person was voluntary if they wanted to rely on it and submitted that that regulation on its wording precludes any such burden on the prosecution. The Gombak Police Station station diaries (D105 A-E) and lock-up register (D104) for the period from 29 May 1982 to 10 July 1982 were put in by the defence through Insp. Aziz bin Abdullah (DW4) in the voir dire and heavily relied on, and it was the entries in the station diaries that appeared to play a prominent part in the attack by the defence on P101. The learned trial Judge had dismissed the station diaries as being unreliable on the ground that the recording of the entries appeared to him to have been done in a slipshod manner and referred to two examples of what he considered to be erroneous entries. 

The admissibility of the station diaries was made an issue and the Public Prosecutor contended that they were not public documents in that they were not available for public inspection and the entries therein were not made for public purposes but only to regulate the internal business of the police force. He contended that the station diaries were kept by virtue of administrative orders called Standing Orders made by the Inspector General of Police under section 97 of the Police Act 1967. Counsel for the 2nd appellant, however, relied on section 35 of the Evidence Act 1950 which provides (so far as relevant for present purposes) that an entry in an official book or register stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty was itself a relevant fact. 

The case against the 1st appellant was circumstantial, and in relation to the death of the deceased on the evidence of Sudin bin Shariff (PW22) and Datin Norsiah bte Osman (PW23), the deceased’s father-in-law and widow respectively, as to the deceased being lured out of his house and hearing gunshots at the relevant time, the testimony of the pathologist of identification of the deceased’s body, that of Liah bte Nahu (PW25) of seeing a white car with two figures alighting and then hearing two shots and the car speeding off in the direction of the main road, the discovery of the deceased’s body and the finding of the two bullet casings (P4 and P5) by Bahadon bin Baharom the OCPD Tampin (PW17), rested primarily on the evidence of Atun bin Ali (PW18) that he saw the 1st appellant in the company of four others in Gan Kee Estate some 3½ miles away from the scene of the crime about 1½ hours.

In this case, the court held that the trial Judge was wrong in failing to exclude the statement made by the accused because it was the result of prolonged periods of questioning ranging into the small hours of the morning which “appeared to be suggestive of oppression.” In so holding, the Court applied the definition of oppression propounded by Sach J.

2.Public Prosecutor v. Kamde Raspani

The accused was tried for an amended charge of cultivating cannabis on 24 September 1980 at Kampung Parit Satu, Sanglang, Ayer Baloi, Pontian, Johor contrary to section 6B(1) (a) of the Dangerous Drugs Act 1952. The prosecution sought to tender 2 caution statements purportedly made by the accused. The defendant objected to the admissibility of the statements and a trial within a trial was held. Evidence was given that the statements were recorded in Bahasa Malaysia and under cross examination the prosecution’s witness admitted that the words were the words of a police officer and not the words of the accused. It was also known that although the statements were read back to the accused they were not interpreted to him. Under further cross examination it was shown that the accused was interrogated for 17½ hours between 11 January and 12 January 1982 and was carried out after 6.30 pm in breach of r. 20 of the Lock up Rules 1953. The accused gave evidence that he was assaulted by 2 policemen and that he fabricated the statement in order to avoid further beatings. The Court held that the way the accused was interrogated is indeed unfair and the Court must regard it as oppressive.

As a conclusion, the issue of oppression in determining the voluntariness of an accused in giving confession is well accepted in our country by adopting the principles laid down under common law. 

by Heng Eng Gee