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 

Computer Evidence

The term 'computer' in the Evidence Act 1950 was recently amended by the Evidence (Amendment) (No 2) Act 2012 in favour of the definition in the Computer Crimes Act 1997 thereby bringing consistency to the two statutes. 'Computer' is now defined as: An electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices, but does not include (a) an automated typewriter or typesetter; (b) a portable hand held calculator; (c) a device similar to those referred to in para (a) and (b) which is non-programmable or which does not contain any data storage facility.

Section 90A is the principal section and with seven subsections, sets the requirements for admissibility and proof of computer generated documents. Section 90B deals with the probative value to be attached to the evidence, section 90C stipulates that the provisions of sections 90A and 90B shall prevail over any other provision in any other statute.

Section 90A(1) provides as follows:

In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement. 

The subsection makes it a condition precedent that the document should have been produced by the computer in the course of its 'ordinary use'. Although what is 'ordinary use' has not been defined, subsection (2) states how it may be proved.

Section 90A(2) provides as follows:

For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used. 

This provision has caused a great deal of argument on whether a certificate is required in every case where 'computer generated documents' is sought to be adduced. The Court of Appeal went to great lengths to examine and clarify the provisions in the case of Gnanasegaran a/l Pararajasingam v Public Prosecutor. Shaik Daud Ismail JCA clarified that under section 90A(1), there were two ways of proving 'in the course of its ordinary use' in order to admit computer generated documents into evidence:

(i) it may be proved by the production of the certificate as required by sub-s (2). — This is permissive and not mandatory. This can also be seen in sub-s (4) which begins with the words 'Where' a certificate is given under sub-s (2) ... or 

(ii) by calling the maker of the document which is the usual method to admit and prove any form of documentary evidence. Therefore a certificate is not required to be produced in every case. 

Once the prosecution adduces evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-section (2) as sub-section (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. 

As for the certificate, it shall be sufficient under section 90A(3) for a matter to be stated to the best of the knowledge and belief of the person stating it. It shall then be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate.

Once the certificate is produced, there is a presumption under section 90A(4) that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced. By the provisions of section 90A(5), a document is deemed to have been produced by a computer, directly or indirectly, whether or not there was any direct or indirect human intervention. Section 90A(6) provides a further presumption in relation to a document, whether produced by a computer or not:

A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. 

It will be observed that subsections 90A(1) and (6) appear to be prima facie incompatible and inconsistent with each other. The 'deeming' provision in subsection (6) was seen as a way of circumventing the requirement for the certificate as stipulated in section 90A(2) until the Federal Court in Ahmad Najib bin Aris v Public Prosecutor, clarified the distinction between subsections (1) and (6). The Federal Court after analysing the provisions at length, concurred with the findings of the Court of Appeal in Gnanasegaran and Public Prosecutor v Hanafi Mat Hassan. It confirmed that under section 90A(1), computer generated evidence could be admitted in either one of two ways. A certificate could be tendered as specified by sections 90A(2) and (3). Once this was done, the presumption under section 90A(4) as to the proper working of the computer at the material time would be activated. Alternatively, oral evidence could be called to prove that the document produced by the computer was produced 'in the course of its ordinary use'. This also requires further oral evidence to support the presumption in section 90(4) that the computer was in proper working order at the material time. As for section 90A(6), the Federal Court confirmed that the 'deeming' provisions herein were not an alternative to circumvent the provisions of section 90A(1). Instead, it provided for the admissibility of documents that were not produced by a computer in the ordinary course of its use. This could arise for instance where a letter is produced by a computer which has no bearing on the ordinary use of the computer. Yet it is still a document produced by a computer and could be admitted under section 90A(6).

Section 90A(7) precludes an accused in any criminal proceeding from using self-corroborating evidence generated by a computer under his own management or supervision.

Section 62 provides that a document produced by a computer is primary evidence. Thus computer-generated evidence may be admitted in court without difficulty and such evidence is primary evidence, even though it is not possible to distinguish between 'original' and 'copy'. The provisions in section 90A ostensibly provide the necessary safeguards.

Section 90B deals with the weight or probative value to be attached to a document or statement contained in a document, admitted by virtue of section 90A. In estimating its weight, the court may draw any reasonable inference from circumstances relating to the document or the statement, including the manner and purpose of its creation, or its accuracy or otherwise. It shall have regard to: 

(a) the interval of time between the occurrence or existence of the facts stated in the document or statement, and the supply of the relevant information or matter into the computer; and 

(b) whether or not the person who supplies, or any person concerned with the supply of, such information or the custody of the document, or the document containing the statement, had any incentive to conceal or misrepresent all or any of the facts stated in the document or statement.

by Heng Eng Gee (A132629)

The Rules Against Hearsay Based on the Case of Subramaniam v PP, Tan Gong Wai v PP and Chandrasekaran & Ors. v. PP

No where in the Evidence Act 1950 (the Act), is the rule against the admissibility of hearsay evidence expressly mentioned. However s. 60 of the Act states that oral evidence shall in all cases whatever  be direct whilst section 32 is commonly believed to embody exceptions to the rule against the admissibility of hearsay evidence. These two sections at least give weight to the unassailable view that one can audaciously give judicial notice that the hearsay rule has a firm place in the Malaysian law of evidence.

Based on the quotation by Lord Normand in Teper v. R, 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.

Lord Wilberforce had also said in Ratten v. R that: ‘ A question of hearsay only arises when the words spoken are relied on ‘testimonially’, that is, as establishing some fact narrated by the words.’

Local judicial cases of the highest authority attest to this. In fact it is in the local case which went up to the Privy Council that we find a judicial definition of hearsay. It is this case which has been cited more than often in most of the common law jurisdictions. This is Subramaniam v. PP.  It was evident from the judgment of Privy Council in this case that: ‘Evidence of a 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.’

Therefore if the purpose of adducing the out of Court statement is to prove the truth of what was said, then it is caught by the prohibition of the hearsay rule, because:

(a) it is not the best evidence

(b) it is not given on oath

(c) the veracity and accuracy of the out-of-Court maker of the statement made to the witness cannot be tested by cross-examination

(d) the Court is not able to see the demeanour of the witness

(e) it may be concocted, fabricated and tailored to suit the witness’ testimony. Because of these dangers the hearsay rule excludes evidence given for such a purpose.

However, the hearsay rule does not apply where the purpose of adducing the evidence is to show not the truth of what was said, but that the statement was in fact made. In this context what the witness is stating is what he himself has perceived by one or more of his senses. He will be giving direct evidence under section 60 of the Act.

A good example is in Subramaniam’s case itself, the accused was charged with unlawful possession of ammunition. His defence was that he had been captured by terrorists and was acting under duress. The trial Judge held that the evidence of his conversation with the terrorists was inadmissible under what he believed to be the hearsay rule unless the terrorists themselves testified. 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 statements of the terrorists comprised threats against Subramaniam’s family and the important thing was that Subramaniam believed the terrorists. He wanted to prove the words that had been spoken to him in order to establish his reaction to their threats, which would have entitled him to the defence of duress. The further questions whether the words were true did not arise; the issue was whether the words were threats of such a nature as to constitute duress and whether he believed them. For this purpose he was entitled to rely on the terms of the threats as original evidence.

Nevertheless, general proposition laid down by the Privy Council in Subramaniam must be read subject to this condition, viz. that the statement must be directly relevant in considering the state of mind of the witness to whom it had been made". In other words, the proposition could only apply when the mental state of the witness evidenced by the statement was itself directly in issue at the trial. What a witness said or heard said might well be the best and most direct evidence of that witness’ state of mind.

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. In the case before their Lordships statements could have been made to the appellant by the terrorists, which whether true or not, if they had been delivered by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.

In the leading case of Chandrasekaran & Ors. v. PP, the repetition of an out of Court statement made to a witness in Court did not breach the rule against hearsay, because according to the formula laid down in Subramaniam v. PP 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 s. 8 and the witness’ state of mind under s. 14 of the Act.

The appellants were charged with and convicted of abetment of the offence of defrauding the government.

Raja Azlan Shah J (as he then was), said regarding the evidence of this witness PW55 that: "So far as the evidence of PW55 is concerned it fully incriminated appellant No. 1" His evidence consisted of the conversation that took place between himself and this appellant, the part he played in pursuance of the conspiracy and what Leong Chye Kee had told him. The learned President admitted hearsay evidence by PW55 regarding what Leong had told him - Leong had since disappeared - but, be it noted, merely as explaining the relevant conduct of PW55 and not to prove the truth of the statements. As authority for doing so the Privy Council case of Subramaniam v. PP was cited by him. That in my view is the correct approach. Leong was untraced. He was not a witness in the case. Whatever statements he had made to PW55 were admitted, not for the purpose of establishing the truth of the facts alleged, but to show the state of mind and conduct of Leong and PW55 and to draw inferences therefrom.

Another local case of high authority is Tan Gong Wai v. PP, where the Federal Court readily received leading decisions from other common law jurisdictions. The relevant facts were that the two accused were jointly charged, tried, convicted and sentenced to death for trafficking in heroin. The evidence against them included testimony from a senior custom officer, Liew, concerning statements made by two informers (who were not summoned as witnesses) to him and his superior officer about the nature of the transaction.

Thus the first statement contained an out-of-Court assertion by an informer (non-witness) of a relevant fact that there would be a drug transaction. The second statement asserted one of the places where the alleged transaction was to take place as well as the identity of one of the accused. The phone call contained yet another assertion about the place of the alleged offence. The statement at the junction was clearly tendered to prove the fact that the offence was about to take place.

The Federal Court held that the facts of the instant case were clearly distinguishable from Subramaniam, where the state of mind of the accused was in issue as he was relying on the defence of duress. However in the present case, the state of mind of Liew, the investigating officer, was not in issue. Using the evidence for the purpose of explaining his reaction was, in other words, legally irrelevant as his state of mind was irrelevant. Since the mental state of both the appellants was not in issue at the trial, this condition had not been satisfied. For this reason they were to be treated as hearsay evidence and therefore inadmissible in law.

The Federal Court held that the statements were clearly hearsay. They were made out of Court tendered to prove the truth of the facts, stated or implied therein, that is, the nature and circumstances of the transaction of drug trafficking.

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The Trial Within A Trial Of Confession Statement Caused By Inducement, Threat Or Promise

In section 17(2) of Evidence Act, ‘A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.’

The wording of Section 24 is produced as such: ‘A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.’

            The confession must have been obtained by reason of any inducement, threat, or promise proceeding from a person in authority. In the case of Deokinanan v R [1968] 2 ALL ER 346, it is stated in Privy Council that: ‘then it may be that there is a similar risk that in some circumstances the confession may not be true if induced by a promise held out by a person not in authority’

            The need for trial within a trial arises whenever the admissibility of a confession is challenged. This is based on the case of Federal Court in the case of Sabli bin Adin & Ors v PP [1978] 1 MLJ 210.

            The procedure in trial within a trial, according to the case of Abdul Mahmud v PP [1980] 2 MLJ 50, is that ‘the accused is entitled to cross-examination and thereafter to give evidence in support of his objection. Similarly the prosecution is also entitled to cross-examine the accused and his witnesses, if any. At the close of the case, the court has to make a decision whether the statement was made voluntarily or otherwise.’

            The confession must also appear to the court to have been caused by any ITP. In the case of PP v Aris Bin Yunus [1989] 1 CLJ 239, Shankar J held that:  ‘the word is not ‘proved’ but ‘appears’..whenever any sort of doubt creeps into the mind of the court or when the question of voluntariness is raised by the accused, the better and sounder opinion certainly is that it is for the prosecution to show affirmatively to the complete satisfaction of the court the voluntary nature of the confession.’

            The case of Panya Martmontree v PP [1995] 3 SLR 341 held that the wording of ‘if the making of the confession appears to the court’ imposes a higher than normal burden on the prosecution, such that the slightest doubt is sufficient to exclude the statement. This view express by Singapre Court of Appeal merits serious consideration. That particular use of the word ‘appears’ in the section has given rise to the impression that the slightest suspicion of impropriety is sufficient to rule out a confession. The use of word ‘appears’ in the section entitles an accused person to merely raise the issue of inducement with the result that the burden of proof of voluntariness shifts to prosecution. The case of Md Desa bin Hashim v PP[1995] 3 MLJ 350 in Federal Court also ruled that there must be a ‘well-grounded suspicion’ to render a confession involuntary. In the case of Hemraj v State in the Indian Supreme Court :‘it is for the prosecution to show affirmatively to the satisfaction of the court that the confession was voluntary. If there is the slightest doubt or suspicion about its voluntary nature, the scale will be turned in favour of the accused., burden is on prosecution.’

            Based on the Federal Court of Francis Antonysamy v. PP [2005] 2 CLJ 481 , the manner of proving voluntariness is that: ‘While it has been correctly recognised by the learned judge that the prosecution must prove beyond reasonable doubt that a cautioned statement was given voluntarily it is an error of law to say that the defence must prove an allegation of assault on a balance of probabilities.

The burden of proof on the prosecution, according to the Supreme Court in the case of Hasibullah bin Mohd Ghazali v PP[1993] 3 MLJ 321, it is held that ‘the onus is not on the accused to show involuntariness but on the prosecution to prove beyond any reasonable doubt that the confession was voluntary. The word ‘appears’ also entitles an accused person to merely raise the issue of inducement with the result that the burden of proof of voluntariness shifts to the prosecution.

To sum it up, the burden is very heavy to discharge on the part of DPP because the ‘confession’ is not admissible if it ‘appears’ to the court that it was not voluntarily made. 

In the case of DPP v Ping Lin [1976] AC 574, the test of voluntariness is applied in a manner which is partly objective and partly subjective. The objective limb is satisfied if there is a ITP, and the subjective limb when the ITP operates on the mind of the particular accused through hope of escape or fear of punishment connected with the charge.

            There is also a waiver in this trial within a trial. The requirement of a trial within a trial may be waived. This would arise when the defence does not challenge the voluntariness of the statement when it is sought to be introduced by the prosecution. This is stated in the case of PP v Arokiasamy a/l Alphonso [2008] 3 MLJ 251.

            No particular form of words are required to waive a trial within a trial. All that is required is that the accused must waive the requirements of a trial within a trial and admit the statement is voluntary and admissible. In the case of Park v The Queen [1981] 122 DLR(3d) of Canadian Supreme Court it was held that ‘All that is necessary is that the trial judge be satisfied that counsel understands the matter and has made an informed decision to waive the voir dire. It is sufficient for counsel to indicate that no objection is taken to admission of the statement without a voir dire,..’

            With regard to evidentiary value of a confession, according to Mc Gilligan J in the case of Tinit & Ors v PP (No.2) [1964] MLJ 389, it is stated that: ‘A confession, once it has been accepted as voluntary is to my mind the strongest evidence,..’

            According to the case of Osman & Anor v PP [1967] 2 MLJ 137, Viscount Dilhorne in the Privy Council held that ‘..an accused can be convicted on his own confession, even when it is retracted, if the court is satisfied of its truth.’

            The last point would be the court’s discretion to exclude evidence of an admissible confession. According to the case of R v Sang [1979] 2 ALL ER 1222, Lord Diplock in the House of Lords held that a trial judge in a criminal trial has always a discretion to refuse to admit evidence if in opinion its prejudicial effect outweighs its probative value.

            The case of PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401 in the Federal Court has stated that the party that is seeking to have evidence excluded in the exercise of the discretion of the court has the onus of showing, on the balance of probabilities, that the discretion should be exercised in its favour.

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Section 126 to section 129

Sections 126 to 129 of the Evidence Act deal with legal professional privilege. Section 126 provides that no advocate shall be permitted to disclose any communication made to him by or on behalf of his client for the purpose of his employment UNLESS  the clients give express consent. 

To all my dearest groupmates, kindly explain these sections, state the general rule and the exception. Support ur answer with case authorities.

Shin yi

Similar Fact Evidence under Common Law

For similar fact evidence, we shall refer to the landmark case Makin v. Attorney General for New South Wales [1894] AC 57. The brief fact of this case is A husband and wife were charged with murdering a child they were fostering and burying it in their backyard. During their trial evidence of twelve other babies found buried in the backyards of their previous residences was offered as evidence. The appeal was based on whether this evidence was admissible or whether it was unfairly prejudicial to their defence. 

Lord Herschell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances.'It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant 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. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other'. 

In short, evidence of similar fact only could be admitted when it is not merely relevant and probative, In R v Smith, 1915, (11 Cr App R, 229), the ‘brides in the bath’ case, the defendant was accused of one murder but evidence was offered of two more. The admission of this evidence followed similarly from the improbability that three different women with whom he had gone through a form of marriage, and who had made financial arrangements from which he would benefit, had all drowned in the bath by accident shortly afterwards.

Although the leading cases in which the similar fact principle was established concerned the crime of murder and the admission of similar facts which were not disputed, from the beginning of the twentieth century onwards there was growing pressure on the judiciary to lower the threshold for the admission of such evidence in order to obtain convictions in sexual cases. This pressure was particularly strong in relation to cases involving allegations of homosexuality. Later in the case of In the case of R v Sims, (1946, 31 Cr App R 158) the Court considered an appeal which turned on whether allegations of buggery made by three different men against the accused could be admitted within the same trial in support of one another. However, In the judgment drafted by Denning J, the Court ruled that the principle applied to strikingly similar facts in such cases as Makin and Smith should be extended and applied to similar allegations. The judgment failed to present any sound rationale for changing the law in this manner.

Some how later,  in the case of DPP v Boardman (1975), which concerned allegations made by three adolescent boys against their male teacher, the House of Lords lent its own authority to the judgment in Sims, while rejecting its view of homosexuality. At the same time that it did this, however, it drew attention to the grave dangers which might follow from this change in the law. Lord Cross pointed out that that there was a marked difference between cases which involved allegations and the cases (such as Makin and Smith) which involved counts of murder and undisputed evidence of previous deaths. In the original cases there was, said Lord Cross, ‘no question of any witness for the prosecution telling lies’. ( the witness for case In AG v Makin is a deceased and the case of R v Smith the deceased is the wife, so deceased in fact unable to tell lies). Lord Wilberforce underlined this view and warned against the danger that, as a result of the extension of the similar fact principle, innocent defendants might find themselves facing a series of grave allegations, all of which were false.

The general test prescribed by DPP V Boardman was a cautious one. In deciding the question of admissibility, the judge should weigh the probative value of the evidence against its prejudicial effect. If the similar fact evidence was so weak, so unreliable or so contaminated that its probative value was outweighed by its capacity to prejudice a jury, then it should be excluded. In their judgment their Lordships reinforced the caution embodied in this test by placing particular stress on the need for there to be ‘striking similarities’ between allegations before the possibility of their being admissible could even be considered.

Later about year 1990 onwards, the principle of  DPP v Boardman seems have been replaced by few cases. In the case of DPP v P, Lord Mackay went on to reject the requirement that allegations, in order to be admissible, should be ‘strikingly similar’. In doing so he wrongly claimed that this requirement applied only to cases where identification was at issue. Bear in mind that , the judgment will let the defendant or accused suffered more from false allegations. 1995, in R v H, the second safeguard which had been put in place by Boardman was also removed. Lord Mackay, who once again gave judgment, made explicit what had already been implicit in his earlier judgment and held that, in ruling on the admissibility of a series of similar allegations, the judge should generally assume that the allegations in question were true. ( My own opinion= this clearly not practicable because the judge in the end has to access whether the probative value is higher than prejudicial effect, if the judge has to assume the allegations in questions were true then all the evidence sure admissible.)

In short, the principle of innocence until proven guilty or the presumption of innocence of the accused has been seriously affected. Because these decisions have permitted, and indeed encouraged, the admission of evidence which is both highly unreliable and massively prejudicial, innocent defendants have again and again found themselves facing large numbers of allegations, all of which are false.

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