1
Q
RELEVANCY
Overview
A
1) Relevancy & admissibility
2) Chain of evidence
3) Illegally obtained evidence
4) Failure to object
5) General relevancy - Facts forming part of transactions
6) General relevancy - Occasion, cause, effect & opportunity
7) General relevancy - Motive, preparation & conduct
8) General relevancy - Facts necessary to explain or introduce
9) General relevancy - Statement or conduct by co-conspirator
10) General relevancy - facts not otherwise relevant
11) General relevancy - facts showing state of mind or bodily feeling
12) Specific relevancy - statements made under special circumstances
2
Q
RELEVANCY & ADMISSIBILITY
General principles
A
1) PP v DSAI (No. 3):
- Question of admissibility = question of law = to be determined by the judge;
- If the facts are proved to be relevant (i.e. provided under EA), the judge may decide on its admissibility.
- S.136 empowers the judge to determine the admissibility of evidence when the facts sought to be adduced is relevant under S.5 or one of the relevancy sections;
- This power can be exercised even before the person gives evidence & when the parties apply to summons the witness.
2) Thavanathan a/l Subramaniam v PP (FC, 1997):
- The cardinal rule relating to evidence is that, subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible.
3
Q
CHAIN OF EVIDENCE
Overview
A
1) Test for necessity to call every witness
2) Example of break in chain of evidence
3) Example of non-break in chain of evidence
4
Q
CHAIN OF EVIDENCE
Test for necessity - general
A
- Whether there is doubt as to the identity of an object;
- Whether there is doubt as to the quantity of an object;
- Whether there is break in chain of evidence
5
Q
CHAIN OF EVIDENCE
Test for necessity - case
A
Mohd Osman bin Pawan v PP:
1) General rule:
- it is unnecessary to call every witness to ensure that there is no break in chain of evidence.
2) Exception - gap in P’s case:
- when there is doubt as to identity/quantity of exhibits, failure to provide the necessary link in the chain of evidence would be fatal to the prosecution case.
6
Q
CHAIN OF EVIDENCE
Example of break in chain of evidence
A
Abdul Jalil Sattar v PP:
- when there is doubt as to identity/quantity of exhibits, failure to provide the necessary link in the chain of evidence would be fatal to the prosecution case.
- OTF, the failure to call the material witness has caused a serious break in the chain of evidence relating to the identity of the drugs.
- The material witness could have been able to provide necessary missing link in the chain of evidence.
Recent - Melinda Stevenson v PP (CA, 2020):
- PW5 did not identify the exhibits in open court in the presence of the JC as well as the appellant’s counsel and the appellant. - In the absence of positive identification of the exhibits, the prosecution failed to establish the chain of evidence.
- OTF, the identification of the exhibits was done when the court adjourned at the request of the DPP, without the presence of the JC, appellant & appellant’s counsel.
- CA held that the failure to identify the exhibits before the learned JC had caused a serious break in the chain of evidence.
7
Q
CHAIN OF EVIDENCE
Example of non-break in chain of evidence
A
Gunalan A/L Ramchandran v PP:
- proof of chain of evidence is only a method of proving a fact;
- there may be gaps in chain of evidence, but if each exhibit is properly sealed & numbered, it may not give any rise to any doubt of that fact.
8
Q
ILLEGALLY OBTAINED EVIDENCE
Overview
A
1) General rule
2) Exception - operates unfairly against accused
3) Exception - extraordinary involuntariness
4) Exception - evidence taken in breach statutory provision
9
Q
ILLEGALLY OBTAINED EVIDENCE
General rule
A
Kuruma v R:
- Court does not concern with how evidence is obtained;
- As long as it is relevant, it is admissible.
10
Q
ILLEGALLY OBTAINED EVIDENCE
Operates unfairly against accused
A
Goi Ching Ang v PP:
- illegally obtained evidence should be excluded if it operates unfairly against the accused;
- court has discretion to exclude evidence that operates unfairly against the accused.
11
Q
ILLEGALLY OBTAINED EVIDENCE
Extraordinary involuntariness
A
Francis Antonysamy v PP:
- illegally obtained evidence may be excluded on the ground that it was obtained through involuntariness that was extraordinary.
12
Q
ILLEGALLY OBTAINED EVIDENCE
Breach of statutory provision
A
Aizuddin Syah v PP (CA, 2019):
- procedures under Act must be strictly followed if it is provided for;
- failure to follow would amount to breach of rule of law;
- OTF, procedure under S.31A DDA was not followed;
- it was thus a fit & proper case for the urine sample to be excluded.
13
Q
FAILURE TO OBJECT
Overview
A
1) On admissibility
2) On mode of proof
3) Time to object
14
Q
FAILURE TO OBJECT
On admissibility
A
Alcontara Ambross Anthony v PP:
- Inadmissible evidence does not become admissible by reason of failure to object;
- the judge was under an automatic duty to stop it from being adduced;
- failure to object on admissibility does not amount to waiver.
15
Q
FAILURE TO OBJECT
On mode of proof
A
Noliana bte Sulaiman v PP:
- when the objection to be taken is regarding irregular or insufficient mode of proof, failure to object amounts to waiver.
- it is essential that the objection is taken before it is marked as exhibits.
- objection cannot be taken at appellate stage.
16
Q
FAILURE TO OBJECT
Time to object
A
Suppiah v Ponnompalam:
- objection should be taken at the trial before the document is marked as exhibits & admitted to the record;
- objection cannot be taken at the appellate stage.
17
Q
GENERAL RELEVANCY - FACTS FORMING PART OF TRANSACTION
Overview
A
1) The law
2) Meaning of transaction
3) Examples
18
Q
GENERAL RELEVANCY - FACTS FORMING PART OF TRANSACTION
The law
A
S.6
19
Q
GENERAL RELEVANCY - FACTS FORMING PART OF TRANSACTION
Meaning of transaction
A
1) General - Thavanathan A/L Subramaniam v PP:
- definition of transaction: “as a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue.”
- in order that the chain of such acts may constitute the same transaction, they must be connected by such factors as the proximity of time, proximity or unity of place, continuity of action, and community of purpose or design.
- in each case, judge has to decide based on circumstances;
- some transactions may lie within narrow limits & some may spread over a long period;
- in some cases, two facts occurring at the same time & place may have no connection between them;
- two facts separated by wide distance & place may be parts of the same transactions.
- OTF, the evidence is relevant to the 2nd charge of receiving as being so connected as forming part of the same transaction though occurring at different time and place given the nature of the transaction & offence.
2) Test - Jaafar bin Hussain v PP:
- it is same transaction if the facts were “inextricably linked to the charge”;
- the proof of one offence necessarily & inescapably involved proving the other offence.
20
Q
GENERAL RELEVANCY - FACTS FORMING PART OF TRANSACTION
Examples
A
1) Altercations between the accused & victims - Hmasa Kunju v R:
- evidence showed that the accused involved with altercations with the accused prior to the alleged offence took place;
- held that the evidence was relevant as it was so connected that it formed part of the same transaction.
2) Voluntary & spontaneous complaint - Aziz Muhd Din v PP:
- A complaint was made voluntarily & spontaneously by the victim;
- Such complaint is relevant under S.6 as it was so connected & formed part of transaction.
3) Hand grenade - Tan Geok Kwang v PP:
- the evidence of throwing grenade is relevant as part of res gestae;
- the exclusion of the evidence would tend to render evidence as to other facts unintelligible.
21
Q
GENERAL RELEVANCY - OCCASION, CAUSE, EFFECT & OPPORTUNITY
Overview
A
1) The law
2) Examples of evidence of occasion
3) Examples of evidence of opportunity
22
Q
GENERAL RELEVANCY - OCCASION, CAUSE, EFFECT & OPPORTUNITY
The law
A
S.7
23
Q
GENERAL RELEVANCY - OCCASION, CAUSE, EFFECT & OPPORTUNITY
Evidence of occasion
A
1) Footprints - Sidik Sumar v Emperor:
- evidence of footprints at or near the scene of the offence was held to be relevant to show that the footprints originated from a particular place or led to another.
2) Money & ornaments - Kok Ho Leng v PP:
- where the accused is charged for murder, the fact that he had taken money & ornaments were held to be relevant facts showing occasion, cause & effect of the fact in issue.
24
Q
GENERAL RELEVANCY - OCCASION, CAUSE, EFFECT & OPPORTUNITY
Evidence of opportunity
A
1) Spending nights together - Aziz Muhd Din v PP:
- the fact that the sexual complainant had spent a night at the flat with the accused showed the opportunity to commit the offence.
2) Seen with deceased multiple times - Ahmad Najib Aris v PP:
- PP adduced evidence that showed the accused was seen together with the deceased through the sequence of events taking places at various event;
- held: accused had the opportunity to have committed the crime, evidence is admissible via S.7.
3) Alibi - Duis Akim & Ors v PP:
- defence of alibi preclude the possibility that the accused could have been physically present at the place of the crime;
- defence of alibi falls within S.7, to show lack of opportunity to have committed the offence.
25
GENERAL RELEVANCY - MOTIVE, PREPARATION & CONDUCT
Overview
1) The law
2) Evidence of motive
5) Evidence of preparation
6) Evidence of conduct
26
GENERAL RELEVANCY - MOTIVE, PREPARATION & CONDUCT
The law
S.8
27
xx
xx
28
EVIDENCE OF MOTIVE
Overview
1) Whether motive is needed
2) Absence of motive - GR
3) Absence of motive - Exception
4) Examples of motive
29
EVIDENCE OF MOTIVE
Whether motive is needed
Lim Hean Chong v PP:
- GR: motive is not an essential factor that ought to be considered;
- Exception: where PP's case is based solely on circumstantial evidence, motive is important to tilt the case to the accused.
30
EVIDENCE OF MOTIVE
Absence of motive - general rule
Would not exculpate - Abdul Samid Edward v PP:
- An absence of motive would not exculpate accused from the charge proffered against him;
- provided that all other evidence must point to the accused being guilty of the crime charge.
31
EVIDENCE OF MOTIVE
Absence of motive - exceptions
1) Allegation of particular motive - PP v Hanif Basree Abdul Rahman:
- if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive.
2) Case based on circumstantial evidence - PP v Sarjit Kaur Najar Singh:
- when the case is based on circumstantial evidence, the motive of committing the crime assumes greater importance.
- motive is an important strand of circumstantial evidence to impute the accused's guilt.
32
EVIDENCE OF MOTIVE
Examples of motive
1) Incestuous relationship - Wong Foh Hin v PP:
- The accused is charged with murdering his daughter;
- the incestuous relationship between him & his deceased daughter was relevant to show the motive to kill.
2) Financial instability - Lim Kong v PP:
- Evidence of financial instability was relevant to show the motive to kidnap.
33
EVIDENCE OF PREPARATION
Example
Balamurali Muthusamy v PP:
- evidence that the accused requested a person to purchase petrol is relevant to show preparatory act necessary for the commission of the offence of murder;
- of which he allegedly committed by dousing the deceased with petrol & lighting them with fire.
34
EVIDENCE OF CONDUCT
Overview
1) Must be considered with other evidence
2) Must be given opportunity to explain
3) Conduct v statement
4) Examples of evidence of conduct
35
EVIDENCE OF CONDUCT
Must be considered with other evidence
1) Ibrahim bin Mohd & Anor v PP:
- the act of running away when the accused the word "ganja" cannot simply mean that the accused person has prior knowledge of such drugs;
- it could also mean that the accused is in state of panic when wrongly suspected of committing a crime;
- it thus must be considered with other evidence.
2) PP v Chia Leong Foo:
- conduct of an accused running away may be tantamount to an admission of his guilt;
- such evidence is admissible but must be considered in totality with other evidence;
- for a conduct to be an admission of guilt, there must be a nexus between conduct, flight & offence in question.
36
EVIDENCE OF CONDUCT
Accused must be given an opportunity to explain
Parlan Dadeh v PP:
- by virtue of S.9, an accused must be given an opportunity to explain his reaction;
- the explanation of the reaction must be by himself and the court cannot on its own offer an explanation for his reaction.
37
EVIDENCE OF CONDUCT
Complaint vs statement
Aziz Muhd Din v PP:
1) Complaint:
- made spontaneously & voluntarily;
- expressive of feelings, evidences & conduct;
- made with a view to redress or punish;
- made to someone in authority, e.g. police officer.
- a substantive piece of evidence, part of res gestae, admissible under S.6.
2) Statement:
- expressive feeling of knowledge, no tendency to evidence a conduct;
- relevant only as corroborative evidence under S.157.
3) Burden of proof:
- on the prosecution to establish that the statement amounts to a complaint within the meaning of S.8;
- OTF, PP failed.
38
EVIDENCE OF CONDUCT
Examples
1) Making police report - Boota Singh v PP:
- act of making police report amounted to conduct within the meaning of the section;
- i.e. it was a statement accompanied by acts.
2) Act of pointing out & words - PP v Azilah Hadri & Ors:
- only the bare act of pointing out is admissible by virtue of S.8;
- the statement made accompanying the act of pointing out is inadmissible as evidence of conduct.
3) Act of pointing out & words - PP v Hashim Hanafi:
- the information that is admissible against the accused is only the bare act of pointing out the drugs;
- this amounts to be evidence of conduct;
- where information is conveyed together with act of pointing out the place of concealment of incriminating exhibit, the information & the conduct itself is admissible under S.27.
4) Act of pointing out & words - Bala Matik v PP:
- the law permits evidence of pointing out to the parang, without more, to be admitted as conduct under S.8.
39
GENERAL RELEVANCY - FACTS NECESSARY TO EXPLAIN OR INTRODUCE
Overview
1) Explanation as to conduct
| 2) Evidence of identification
40
EXPLANATION AS TO CONDUCT
Overview
1) Need for explanation
2) Onus to explain
3) Failure to explain
41
EXPLANATION AS TO CONDUCT
Need for explanation
1) Opportunity to explain - Parlan Dadeh v PP:
- by virtue of S.9, an accused must be given an opportunity to explain his reaction;
- the explanation of the reaction must be by himself and the court cannot on its own offer an explanation for his reaction.
2) When is explanation necessary - Mohd Nahar Abu Bakar:
- When the accused's conduct & reaction considered in totality and proved the nexus & linked the accused to the crime, an explanation is necessary.
42
EXPLANATION AS TO CONDUCT
Onus to explain
Parlan Dadeh v PP:
- the onus is on the accused to explain his conduct;
- once evidence of conduct is admitted, the court cannot resort to any other explanation for the conduct or draw inferences on its own accord to render it inadmissible.
- explanation by the accused must be with a reasonable fullness of detail & circumstances.
43
EXPLANATION AS TO CONDUCT
Failure to explain
Parlan Dadeh v PP:
- failure to put forward any explanation of absconding after the occurrence of a crime allows an inference to be drawn against him;
- i.e. that he knew he was carrying incriminating substances.
44
EVIDENCE OF IDENTIFICATION
Overview
1) general
2) visual identification
3) pre-trial description
4) identification parade
5) dock identification
45
EVIDENCE OF IDENTIFICATION
General
1) Identification vs recognition - Chandran Paskaran v PP:
- recognition by a person known to the witness is more reliable than mere identification by a witness stranger.
- this forms part of the Turnbull's guidelines itself.
2) Whether needs corroboration:
-
46
EVIDENCE OF IDENTIFICATION
Visual identification - overview
1) Turnbull's guidelines
2) Three-steps test
3) Failure to warn & carry 3-steps test
47
VISUAL IDENTIFICATION
Turnbull's guidelines
R v Turnbull:
1) Warning:
- the judge should warn himself of the special need for caution before convicting the accused in reliance solely or wholly on the correctness of the identification evidence.
2) Circumstances:
- the judge should examine closely the circumstances in which the identification by each witness came to be made;
- this include asking questions such as how long did the accused have been under observation of the witness & had the witness ever seen the accused before.
3) Reminder:
- the judge should remind the jury of any specific weaknesses in the identification evidence.
4) Recognition vs identification:
- recognition should be more reliable than identification by a witness;
- however, juries should always be reminded that mistakes can be made.
5) Quality control:
- Good quality: danger of mistaken identity is lessened, value of ID evidence may be assessed w/o other supporting evidence.
- Poor quality: greater danger of mistaken identity, acquittal should be directed unless there is supporting evidence.
6) Evidence in support:
- the judge should consider if there is any supporting evidence or circumstances.
48
VISUAL IDENTIFICATION
Three-steps test
Hong Aik Ren Thomas v PP:
1) Warning:
- it is for the judge to warn the trier of the facts of the special need for the caution before convicting the accused in reliance on the correctness of the identification.
2) Assessing:
- to assess the quality of ID evidence & factors in Turnbull's cases are taken into consideration.
3) Reminding:
- the judge should remind the trier of the facts of any specific weaknesses which have appeared in ID evidence.
49
VISUAL IDENTIFICATION
Failure to warn & carry out test
Jaafar bin Ali v PP:
- failure to warn of the dangers of identification evidence may lead to ordering new trials or quashing the convictions.
- OTF, the general warning administered was not effective enough to reflect the compliance with the requirements of the Turnbull guidelines.
50
PRE-TRIAL DESCRIPTION
The principles
1) Whether needed - Jaafar bin Ali v PP:
- one of ID evidence that needs to be considered by the court, especially is the suspect is not known to the witness prior to the incident;
- need for such description is implicit in Turnbull.
- absence of description will reduce the value of ID evidence in ID parade.
2) Failure to give exact details - Nanda Kumar K Kaliappan v PP:
- failure to give exact details could never be a ground for rejecting his entire evidence.
51
ID PARADE
Overview
1) Necessity of ID parade
2) Procedures of ID parade
3) Effect of general irregularity in procedural requirements
4) Disparity of line-ups
5) Disparity of age
6) Earlier confrontation with the suspect
52
ID PARADE
necessity of ID parade
1) Ong Poh Cheng v PP:
- tend to strengthen PP's case;
- however lack of it will not be fatal.
2) Arumugam Muthusamy v PP (FC):
- ID parade, although a good practice, may not be essential in all circumstances.
- e.g. ID parade may be necessary when the accused is not known to the witness.
- to require an ID parade to sustain a conviction would be too stringent.
3) Recent - Mohd Zakwan Zainuddin & Ors v PP (HC, 2019):
- The ID parade is necessary in the circumstance of the case as the accused persons are not previously known to the victim. (Ref. PP v. Sarjeet Singh; Jaafar bin Ali v. PP)
53
ID PARADE
procedures of ID parade
1) General procedures - PP v Joachim Selvanathan:
- who: same ethnic group & same station in life, no large disparity of age, not less than 9 or 10.
- when: held at the earliest opportunity, separate ID parade for suspect of more than one.
- how - dont's: witness must not see the suspect prior & witness must not be given assistance or photographs prior.
- how - do's: witness who have identified must be separated from those who have yet, officer in charge must ensure that the ID parade is fairly & properly conducted.
2) Number of line-ups - PP v Chan Choon Keong:
- should be not less than 9 or 10.
3) When should be held:
- general - PP v Joachim Selvanathan: at the earliest opportunity, separate ID parade for suspect of more than one.
- example - PP v Krishnaraj Rajendran: 3Y9M = unsatisfactory.
- example exception - cf. Mohd Nahar Abu Bakar v PP: 6Y = satisfactory because the accused is not a total stranger to the witness.
54
ID PARADE
General irregularity
(HC, 2019)
Muhammad Zakwan Zainuddin & Ors v PP:
- does not automatically lead to inadmissibility;
- if the ID parade is conducted fairly as in the facts of the case, failure to comply is not fatal.
- test is whether the ID parade is conducted fairly despite failure to abide strictly by the procedures.
55
ID PARADE
Disparity of line-ups
Chan Sin v PP:
- OTF, the disparity of the line-ups was too obvious;
- i.e. Sikh + Malay + Chinese + Chinese woman;
- i.e. accused's age 58, line-ups aged 42 - 48.
- held: value of ID evidence is worthless for the large disparity.
56
ID PARADE
Disparity of age
Goh Khooi Peng v PP:
- accused 40 y/o, line-ups were teenagers;
- held: ID parade was a nullity.
57
ID PARADE
Earlier confrontation with the suspect
Jaafar bin Ali v PP:
- the complainant had see the accused prior to the ID parade;
- this amounts to "confrontation";
- held: ID parade was worthless due to the earlier confrontation.
58
DOCK IDENTIFICATION
Overview
1) Whether sufficient
2) Whether needs corroboration
3) When it is of some value
4) Recent application
59
DOCK IDENTIFICATION
Whether sufficient
PP v Richard Devadasan:
- It is undesirable to rely on dock identification unless it is corroborated by identification at ID parade;
- a conviction cannot solely be based on dock identification.
60
DOCK IDENTIFICATION
Whether needs corroboration
Magendran Mohan v PP:
- in the absence of corroboration, dock identification of an unknown person for the first time in court is valueless;
- corroboration is needed for the dock identification to be of some value.
61
DOCK IDENTIFICATION
When it is of some value
1) Good quality ID at time of commission - Jaafar bin Ali v PP:
- when the quality of the identification of the accused by the identifying witness at the time of the commission of the offence is good.
2) Kidnap victims - Prabah Sithamby v PP:
- when the victim could positively identify the accused given the number of opportunities he had to see and recognize the accused throughout the kidnapping episode.
62
DOCK IDENTIFICATION
Recent application
FC, 2020
Chew Wai Keong & Anor v PP:
- Where PP relied wholly or substantially on the identification of an accused person, the court ought to have in mind the Turnbull guidelines.
- The trial judge was satisfied that it was safe to accept the dock identification evidence by the witnesses because of the reasons given by the witnesses & the credibility of the witness.
- FC have no reason to disagree with the finding of the trial judge given the credibility of the witness.
63
OTHER METHODS OF IDENTIFICATION
Overview
1) Unique feature
2) Photographs identification
3) Voice identification
4) Video-recording identification
64
OTHER METHODS OF IDENTIFICATION
Unique feature
Kirivaasan Udaya Soorian v PP:
- court is compounded by the fact that there was a unique feature of the accused;
- i.e deformed index finger.
- it strengthens the quality of the identification of the accused.
65
OTHER METHODS OF IDENTIFICATION
photographs identification
1) PP v Kok Heng:
- only accepted for identification before arrest & if the method which it is held is flawless;
- once arrested, ID should be by personal inspection.
2) Loke Soo Har v PP:
- when the photographs have left the jury with bad impression, it ought not to be accepted as evidence.
66
OTHER METHODS OF IDENTIFICATION
voice identification
Teng Kum Seng v PP:
1) Admissibility:
- admissible
2) Weight:
- matter of opinion
3) Procedure:
- each of the three victims separately was given the opportunity of listening to a number of persons including the accused, all strangers to them, speaking on the telephone;
- Each of them identified the voice of the accused as the voice which had spoken to him on the telephone.
- i.e. akin to ID parade for visual identification.
67
OTHER METHODS OF IDENTIFICATION
Identification through video recording
Taylor v Chief Constable Cheshire:
1) Admissibility of the CCTV recording:
- admissible under S.90A
2) Admissibility of ID through CCTV:
- admissible under S.9
3) Whether it is good:
- evidence viewed thru cctv is as good as of the eyewitness;
- recording is just a re-enactment;
- if the original video is tendered in court, there is no difference when the judge view the recording.
68
GENERAL RELEVANCY - STATEMENT OR CONDUCT BY CO-CONSPIRATOR
Overview
1) The law & scope
| 2) Conditions for admissibility
69
GENERAL RELEVANCY - STATEMENT OR CONDUCT BY CO-CONSPIRATOR
The law & scope
1) The law:
- S.10
2) The scope - Mirza Akbar v King Emperor:
- must not so widely be construed to include a statement made by one conspirator in the absence of the other;
- And with reference to past acts done in the actual course of carrying out the conspiracy after the conspiracy has been completed.
70
GENERAL RELEVANCY - STATEMENT OR CONDUCT BY CO-CONSPIRATOR
conditions for admissibility
Liew Kaling v PP:
- things sought to be admitted as evidence are said, done or written while the conspiracy was on foot; AND
- reasonable ground has been shown for the belief in its existence.
- OTF, statements made AFTER the commission of the crime were not admissible for the purpose of proving the conspiracy.
71
GENERAL RELEVANCY - FACTS NOT OTHERWISE RELEVANT
The law & scope
1) the law:
- S.11
2) Scope - Ismail v Hasnul:
- court must ensure that the connection between the fact to be proved & sought to be given must be so immediate;
- This is so as to render the co-existence of the two facts highly probable or improbable.
MORE: SFE.
72
GENERAL RELEVANCY - FACTS SHOWING STATE OF MIND OR BODILY FEELING
The law & example
1) the law:
- S.14
2) example - PP v Chia Yong Hee:
- statement "untuk budak-budak" was adduced under S.14 to show his state of mind for charge under Prevention of Corruption Act.
73
SPECIFIC RELEVANCY - STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES
Overview
1) Entries in books of account
| 2) Entry made in public record in performance of duty
74
ENTRIES IN BOOKS OF ACCOUNT
Overview
1) The law
2) Conditions for admissibility
3) Meaning of "regularly kept in the course of business"
75
ENTRIES IN BOOKS OF ACCOUNT
the law
S.34
76
ENTRIES IN BOOKS OF ACCOUNT
Conditions for admissibility
Sim Siok Eng & Anor v Poh Hua Transport & Contractor Sdn Bhd:
- The entries are in a book of accounts regularly kept in the course of business;
- The entries therein refer to a matter into which the court has to inquire.
77
ENTRIES IN BOOKS OF ACCOUNT
Meaning of "regularly kept in the course of business"
Sim Siok Eng & Anor v Poh Hua Transport & Contractor Sdn Bhd:
- Books are kept in a generally recognised form or system showing debts & credits entries between the parties;
- A book of account kept by an illiterate tradesman is just as admissible as that kept by a highly educated merchant & banker;
- The fact that entries in the book are not entered hour by hour or day by day as transactions took place does not mean that the book is not a book of account regularly kept in business.
78
ENTRY MADE IN PUBLIC RECORD IN PERFORMANCE OF DUTY
Overview
1) The law
2) Conditions to be satisfied
3) Whether personal knowledge is necessary
4) Example
79
ENTRY MADE IN PUBLIC RECORD IN PERFORMANCE OF DUTY
The law
S.35
80
ENTRY MADE IN PUBLIC RECORD IN PERFORMANCE OF DUTY
Conditions
PP v Lai Kon Ching:
the entry must have been made in any public or official book, register or record;
it must be an entry stating a fact in issue or a relevant fact;
it must be made by a public servant in the discharge of his official duty or any other person in performance of a duty specially enjoined by law.
81
ENTRY MADE IN PUBLIC RECORD IN PERFORMANCE OF DUTY
Personal knowledge
Gopinathan Subramaniam v Timbalan Menteri Dalam Negeri:
- Admissibility under S.35 does not depend on the personal knowledge of the maker;
- This is so because S.35 does not apply to the opinions of public servants based on, or inferences drawn from allegations made before them in the course of enquiries.
82
ENTRY MADE IN PUBLIC RECORD IN PERFORMANCE OF DUTY
Examples
1) Lock-up register & station diaries - Dato' Mokhtar Hashim v PP:
- The lock-up register was clearly admissible under s. 35 of the Evidence Act as it is a journal within r. 34(2) of the Lockup Rules.
- The lock-up register produced has cross-references to entries in the station diaries;
- Thus, all the relevant entries in the station diaries are also admissible as they would form part of the lock-up register;
- Both lock-up register & station diaries must be read conjointly.
2) Judgment & public documents - Mohd Isha Awang v Mohd Idris Ramal Sebaris (CA, 2020):
- A judgment of the court is a public document under S.74 of the EA;
- The documents are relevant public records made in the performance of a public duty under s. 35 of EA.
- Thus, they are admissible as an exception to hearsay rule, even with the absence of the author.
Evidence
flashcards
Decks in class (19)
# Cards
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Chapter 1 - Concept in Evidence20
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Chapter 2 - Burden & Standard of Proof: General4
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Chapter 2.1 - Burden & Standard of Proof: Civil Cases13
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Chapter 2.2 - Burden & Standard of Proof: Criminal Cases11
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Chapter 2.3 - Burden & Standard of Proof: Circumstantial Evidence16
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Chapter 2.4 - Burden & Standard of Proof: Prima Facie26
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Chapter 3 - Presumptions63
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Chapter 4 - Relevancy82
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Chapter 5 - Hearsay72
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Chapter 6 - Admissions61
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Chapter 6.1 - Information Leading to Discovery21
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Chapter 7 - Similar Facts Evidence44
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Chapter 8 - Character Evidence43
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Chapter 9 - Proof20
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Chapter 10 - Opinion Evidence36
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Chapter 11 - Documentary Evidence51
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Chapter 12 - Witness115
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Chapter 13 - Examination of Witness38
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Chapter 14 - Hostile Witness19
