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.
by
LIEW PEI PEI
A132417
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