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LAW541 – LAW OF EVIDENCE I TOPIC 7 - HEARSAY  BY: MAZLINA MAHALI

CONTENTS  Introduction    For  Forms ms of Hearsay Assertion Assert ion    Exceptions to the Hearsay Rule  Res Gestae   Admission & Confession   Section !   Section   Section "A   Section #$A  

CONTENTS  Introduction    For  Forms ms of Hearsay Assertion Assert ion    Exceptions to the Hearsay Rule  Res Gestae   Admission & Confession   Section !   Section   Section "A   Section #$A  

INTRO%CTION  

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A 'itness is not allo'ed to testify to facts in issue or any rele(ant facts )ased on the perception of another person since such e(idence is not direct as re*uired )y Section +$ of the E(idence Act ,#-$. For example/ example/ A is char0ed 'ith murder of 1. C 'ishes to testify that he 'as told )y % that % sa' A commit the murder m urder.. In this situation/ s ituation/ % should )e called to testify )ecause he has personal 2no'led0e )ased on his perception. It is his perception that must )e attested and tested in cross3examination to determine 'hether it 'as accurate.

 The rationale for excludin0 hearsay assertions 'as explained )y 4ord Normand in Teper  T!e "#ee$% “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 out3of3court assertion amounts to hearsay 'hen the purpose of adducin0 the assertion is to pro(e the truth of the contents of its statement.  

 This 'as illustrated in the case of S#&r'('$)'(  PP   In that case/ the A 'as char0ed 'ith possession of ammunition. The defence that 'as put for'ard )y the A 'as that he had )een captured )y terrorists and that he 'as actin0 under duress. The issue that arose 'as 'hether the statement made )y the terrorist to the A amounted to hearsay.   1ased on the facts of the case/ it 'as held that statement could ha(e )een made to the A )y the terrorists 'hich/ 'hether true or not/ if they had )een )elie(ed )y the A/ mi0ht reasona)ly ha(e induced in him an apprehension of instant death if he failed to conform to their 'ishes. The statement therefore did not amount to hearsay.  

“!vidence 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 ob"ect 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# $uite apart from its truth# is fre$uently relevant in considering the mental state and conduct thereafter of the witness or some other person in whose presence the statement was made. 

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In N* L') H#'+  PP / 5(e accused persons 'ere char0ed under the 6idnappin0 Act ,#+, for 'ron0fully con5ned t'o (ictims 'ith intent to hold a ransom. The %77 ur0ed the court to accept that the demands made )y one 8immy Chua con(eyed throu0h the former %irector39eneral of 7risons/ constituted ransom as spelt out in the Act.  The defence counsel o):ected on the )asis that 'hat 8immy Chua said 'as a hearsay )ecause 8immy Chua 'as dead and therefore not a 'itness in court to testify.

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It 'as held that the e(idence of the former %9 of 7risons in relation to 8immy Chua;s purported demands amounted to hearsay as the purpose of tenderin0 his statement 'as to esta)lish the truth of its contents. In another case of PP  R,&er+ B,,$ Te. C!#'!/ it 'as held that the statement made )y a 'itness in that he recei(ed instructions from AS7 Harris <on0 to arrest four male Chinese 'as held to ha(e )een tendered not to pro(e the truth of the contents of the statement )ut to sho' that the statements 'ere made in order to esta)lish that instructions 'ere in fact 0i(en.

FOR=S OF HEARSA> ASSERTION  

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Hearsay may also ta2e the form of conduct or document. For example in C!'$/r'0e.'r'  R/ the 0estures of a 'oman ?'ho :ust had her throat [email protected] identifyin0 her assailant 'ere held to )e hearsay. Hearsay in the form of documentary e(idence is also inadmissi)le. For example in Mer0  DPP/ 'here the court held that e(idence in the form of micro5lm 'hich contained certain num)ers that 'ere matched 'ith the num)ers moulded into certain parts of the car amount to hearsay as it 'as tendered )y the ocer in char0e of the record made )y the manufacturer of the stolen cars.

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In Be! He$* S),$*  PP / the accused 'as char0ed 'ith manufacturin0 sour plum :uice 'hich contained saccharin/ an in0redient 'hich 'as prohi)ited for the manufacture of food and drin2s. It 'as held that the 'ords on the la)el amounted to hearsay and 'as therefore inadmissi)le. In S)( T)e2 Bee  PP / the accused 'as char0ed 'ith the importation of uncustomed 0oods. The 'ords BSim Tie' 1ee/ Si)u; on the 0unny sac2s 'hich 'ere indicati(e of the consi0nee 'ere held to )e hearsay. Refer also to P'+e3  C,(p+r,33er , C#0+,(0

ECE7TIONS TO THE HEARSA> R4E  Res 9estae   Admission   Confession   Section !   Section    Section "A   Section #$A 

SECTION ! Section ! ?,@ of the E(idence Act ,#-$ consists of ten para0raphs 'hich apply separately and independently as exceptions to the hearsay rule.    There are ho'e(er pre3conditions to ful5ll )efore reliance may )e made on any of the para0raphs.    The pre3condition stated in Section !?,@ refer to pro(in0 the una(aila)ility of the ma2er of the statement or assertion.    The importance of pro(in0 the una(aila)ility of the ma2er of the statement 'as hi0hli0hted in Federal Court case of S)( T)e2 Bee  PP 'hich *uoted 4ord 9oddard 'ords in C!')$!'3 S)$*!  E(per,r:  

“%here 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 deposition&In 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 

7ro(in0 a)sence of 'itness under Section !?,@  

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<here the ma2er is dead/ the )est method of pro(in0 that the person 'ho made the statement is dead is )y tenderin0 e(idence of death certi5cate of the person. Alternati(ely/ reliance may )e made on the presumption of death. <here the ma2er cannot )e traced or found D it depends on the e(idence adduced to sho' that reasona)le eorts to 5nd him ha(e )een made 'ithout success. <here the ma2er is incapa)le of 0i(in0 e(idence D this may arise due to causes such as extreme old a0e or mental incapacity or accident 'hich resulted to permanent disa)ility. Sucient e(idence must )e adduced to esta)lish the incapacity of the person 'hose statement is sou0ht to )e admitted as e(idence/ thou0h it need not )e that of medical person.

<here procurin0 the attendance 'ill result in unreasona)le delay or expense D for this re*uirement to )e satis5ed/ the court need to loo2 at facts of the case and dierent rules apply dependin0 on circumstances of each case. Thus/ 'hat is unreasona)le or unnecessary is not a matter in 'hich a)solute standards can )e applied.  Thus/ t'o thin0s are of importance D the seriousness of the char0e and the character of the e(idence proposed to )e tendered.   In B,r$e, C, M6 S/$ B!/  Pe$'$* P,r+ C,(()00),$ / 'here the 'itness 'as to )e )rou0ht from En0land merely to 0i(e formal e(idence/ it 'as held that it 'as unreasona)le as the expense of )rinn0in0 him do'n 'ould exceeded the su):ect matter of the claim.  

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Ho'e(er/ it must also )e noted that mere residence out of :urisdiction is not sucient to in(o2e the pro(ision of the section. In fact/ it 'ould )e dan0erous to su)scri)e to the doctrine that mere residence out of :urisdiction is ade*uate to dispense 'ith the personal attendance of a 'itness and to allo' his statement to )e tendered in e(idence. Refer to A33)e/&'$.  Y'# ),. H#'8 S)( T)e2 Bee  PP and PP  C!,2 9'( Me$*%

7ara0raph [email protected] D Statements as to cause of death    

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Refer to Section !?,@[email protected] and illustration [email protected] Althou0h statements held to )e admissi)le )y (irtue of this para0raph are commonly referred to as Bdyin0 declarations;/ it must )e noted that para0raph [email protected] of Section !?,@ is 'ider and not synonymous 'ith the common la' concept of dyin0 declaration. In En0land/ dyin0 declarations are admissi)le only in cases of homicide/ 'here the death of the deceased is the su):ect of the char0e and the circumstances of the death are the su):ect of the dyin0 declarations. It is also important that the deceased should )e under expectation of death.

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In contrast/ statements admissi)le )y (irtue of [email protected] of Section ! are not con5ned to dyin0 declarations. The section refers also to statements made as to the circumstances of the transaction 'hich resulted in his death. This means that the ma2er may or may not )e under an expectation of death. Furthermore/ statements made under Section !?,@ [email protected] may )e made in any proceedin0 'hate(er its nature/ and this includes ci(il cases as 'ell. For example/ refer to N'r''$' S2'()  9)$* E(per,r

 The importance of proximity of the statement to the cause of death has )een hi0hli0hted in Ye,! H,. C!e$*  R%   In this case/ the deceased 'as alle0ed to ha(e )een murdered on , =arch ,#". She had made t'o statements 'here the prosecution intended to put in e(idence. The 5rst statement 'as made to her father on -th =arch that she had denied sleepin0 at the accused;s house )ecause the accused had threatened to 2ill her if she did so. And the second statement 'as made to her sister ?on the e(enin0 of her [email protected] that she 'as 0oin0 out 'ith the accused and that the accused had told her to put on man;s clothin0.  

 The court held that the 5rst statement is not admissi)le as )ein0 too remote to form part of the transaction that resulted in her death. The second statement 'as held to amount to circumstances of the transaction 'hich resulted in her dearth.   Further examples of cases in 'hich it 'as held that statements made )y the deceased prior to death 'ere too remote to amount to part of the transaction resultin0 in death include B,,+' S)$*!  PP and H') S'33e! ; A$,r  PP   Another issue that is to )e discussed in considerin0 statements made under Section !?,@[email protected] is the 'ei0ht attached to the statements itself.    The facts and circumstances of each case must )e considered.  

For example in T,! L') He$*  R/ the court held that althou0h a dyin0 declaration need not )e pro(ed )y 'ritin0/ the exact 'ords spo2en )y the deceased must )e 0i(en. If the dyin0 declaration is reduced into 'ritin0 ?in the e(ent of the 'itness in *uestion )ein0 an in(esti0atin0 ocer/ ma0istrate or someone of that [email protected]/ then the actual 'ords of the deceased must )e recorded.    The court must also assess the credi)ility of the deceased )efore relyin0 on the statement made )y him D see for example C!'$ P!#'+ 9!,,$  PP/ 'here reference to section ,-G could also )e made.  

7ara0raph ?)@ D Statements in the course of )usiness Refer to Section !?,@?)@ and illustrations ?)@[email protected] and [email protected]    The party claimin0 that the document is 'ithin the scope of the section must pro(e that it 'as made in the ordinary course of )usiness D S'r).'+ e$*.' S/$ B!/  A&/#3 R'0!)/ H'r#$ 8 W'$ S'3)('! W'$  '<'r  M'!(,,/ B)$ O('r%   In V'$'r S#pp)'!  9MA A&/#3 R'!)( / the court imposed a further re*uirement that the statement made must )e )ased on the ma2er;s personal 2no'led0e. Thus/ the court held that a report that 'as prepared and si0ned )y the person 'ho 'as not in(ol(ed in the actual sur(ey of the 0oods had no personal 2no'led0e of their condition and 'as thus inadmissi)le.  

Au0ustine 7aul 8 in A33)e/&'$. M'3'0)'6  Y'#  ),. H#'  a0reed 'ith the decision in aynar Suppiah explainin0 that Section !?,@?)@ renders admissi)le only 5rst hand hearsay/ in that the ma2er of the statement must ha(e had personal 2no'led0e of its contents 'hile Section "A?,@[email protected] [email protected] renders admissi)le second hand hearsay.   On this note/ 8erey 7insler commented that Section ! does not speci5cally impose a prohi)ition on multiple hearsay. It should )e 'orth to admit such e(idence and to 0i(e it 'hate(er 'ei0ht it deser(es rather than exclude it alto0ether.  

7ara0raph [email protected] D Statements a0ainst interest of ma2er Refer to Section !?,@[email protected] and illustration [email protected]    The principle upon 'hich such statements are re0arded as admissi)le in e(idence is that in the ordinary course of aairs/ a person is not li2ely to ma2e statement to his o'n detriment unless it is true.   In PP  F,r0+er Fr'$. E/'3/ He)$r)! / the accused 'as char0ed 'ith trac2in0 dan0erous dru0s. The defence counsel sou0ht to use t'o ada(its armed )y t'o of the accused;s companions 'here it 'as armed that they alone had )ou0ht the dru0s/ smo2ed it and carried it. The ada(it 'as made at <est 9ermany 'here there 'as no extradition treaty )et'een =alaysia and 9ermany. Thus/ the prosecution ar0ued that the condition in para0raph [email protected] has not )een ful5lled.  

 The court held that the phrase B'ould expose him or 'ould ha(e exposed him to a criminal prosecution; should ha(e )een interpreted as the exposure of the ris2 of prosecution/ thou0h not con(iction/ at any time 'hile the ma2er is li(in0 'ould )e sucient.  Thus the court admitted the ada(it and reasoned that the ris2 of prosecution 'ould )e pro)a)le if the deponent return to this country or 0o to a country 'ith 'hich this country has an extradition treaty.   Another condition that had )een imposed )y the court to the application of para0raph [email protected] is that the ma2er must ha(e personal 2no'led0e of the statement at the time 'hen he made it.  

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In W'r/  P)++/ a claim 'as made )y an ille0itimate child a0ainst the employer of the deceased 'or2man alle0ed to ha(e )een his father. The applicant relied on statements made )y his father admittin0 to the paternity and that he intended to maintain the child and marry the applicant;s mother. The court held that althou0h the statements 'ere in fact a0ainst his interest/ there 'as no 0uarantee that the deceased had personal 2no'led0e of those facts. Another condition imposed )y the court is that the ma2er of the statements must )e a'are at the time of ma2in0 it that such statement 'ould )e a0ainst his interest D Refer to T#.er  O3/&#r =DC

7ara0raph [email protected] D Statements 0i(in0 opinion as to pu)lic ri0ht or custom or matters of pu)lic or 0eneral interest

Refer to Section !?,@[email protected] and illustration [email protected]    The re*uirement in this para0raph is that the ma2er of the statements must li2ely )e a'are of the existence of such pu)lic ri0ht or custom or matter of pu)lic or 0eneral interest.  Thus/ personal 2no'led0e is an in0redient of this exception.  

D relatin0 to existence of relationship Refer to Section !?,@[email protected] and illustrations [email protected] and [email protected]   In S!'$(#*'(  P'pp'! / the court held that there are four conditions to )e satis5ed )efore the para0raph can )e in(o2ed namely [email protected]  The pre3condition that the ma2er is not a(aila)le to testify must )e pro(edJ )@  The statement must relate to the existence of relationship )y )lood/ marria0e or adoptionJ [email protected]  The person ma2in0 the statement must ha(e personal means of 2no'led0e of the relationship in *uestionJ [email protected]  The statements must ha(e )een made )efore the dispute arose.  

7ara0raph [email protected] D Statements in 'ill/ deed/ family pedi0ree/ tom)stone or family potrait Refer to Section !?,@[email protected]   In Lee 9)( L#'$*  Lee S!)'! Yee / it 'as held that an inscription on a tom)stone relatin0 to an alias is a statement of a rele(ant fact 'hich indicates the existence of any relationship )y )lood/ marria0e or adoption )et'een the deceased persons.    The dierences )et'een para0raph [email protected] and [email protected] are as follo's [email protected] 7ara0raph [email protected] relates to the existence of any relationship )et'een any persons/ dead or ali(e/ 'hereas para0raph [email protected] relates to any relationship )et'een dead persons onlyJ )@ 7ara0raph [email protected] re*uires Bspecial means of 2no'led0e; 'hereas there is no such re*uirement in para0raph [email protected] and [email protected] 7ara0raph [email protected] refers to statementsJ 'ritten or (er)alJ 'hereas para0raph [email protected] applies to 'ritten statement only.  

7ara0raph [email protected] D Statements in documents relatin0 to certain transaction  

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Refer to Section !?,@[email protected] 'here the statement is contained in any document 'hich relates to any transaction as is mentioned in Section ,[email protected] It must )e noted that this para0raphs applies to 'ritten statements only and its (alue must )e considered in li0ht of facts and circumstances.

7ara0raph [email protected] D Statements made )y se(eral persons as to feelin0s Refer to Section !?,@[email protected] and illustration [email protected]    The purpose of the rule is to allo' the admission of e(idence of persons 'ho are not called as 'itnesses as to 'hat they said in reaction to an e(ent or thin0 as it is presented to them in circumstances 'hich exclude opportunity of reasoned reKection and possi)ility of concoction and distortion.   Refer to D# B,0+  Bere0,r/  

7ara0raph [email protected] D Statements made in the course of in(esti0ation of an oence    

Refer to Section !?,@[email protected] In PP  M,!/ '()3 B)$ Y'!' ; A$,r / the admissi)ility of a statement made )y the deceased under Section ,,! of the C7C 'as considered and the court held that althou0h Section !?,@[email protected] 'as applica)le/ the 'ei0ht attached to the statement 'as too minimal resultin0 in the statement ha(in0 )een excluded alto0ether. In this case/ the statement 'as made )y a self3confessed dru0 trac2er and ta2in0 into account that the accused faces 'ith a char0e carryin0 mandatory death sentence on con(iction.

7ara0raph ?:@ D Statement made )y pu)lic ocer in the dischar0e of his duties    

Refer to Section !?,@?:@ On the issue of 'hether para0raph [email protected] and ?:@ should )e read con:uncti(ely or dis:uncti(ely/ refer to PP  M)!'e3 A$', A.'&,*#8 PP  L'( Pe$* H,' '$/ PP  M,!'(('/ F')r#0 B)$ O('r

SECTION  Refer to Section  and the pro(iso thereof.    The court must )e careful to see that the conditions 'hich the statute permits the pre(ious e(idence 0i(en )y the 'itness to )e read is strictly pro(ed.   In 9ee S)'. 9,,)  PP / the accused 'as char0ed 'ith the oence under the Emer0ency Re0ulations and the prosecution sou0ht to admit the e(idence of a 'itness at a pre(ious trial of the accused for the same oence. It 'as held that there 'as no e(idence on the a(aila)ility of the 'itness to testify and thus/ the 'itness; deposition in the pre(ious trial is not admissi)le.  

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