Relevancy, Hearsay, Admissions & Confessions, Privilege

- Important to differentiate between identification evidence and hearsay evidence - whether it is to tender truth of the matter which proves relevancy to the crime

Criminal case

• s101 EA50’ - must prove the ingredients which constitute the offence of XX by proving actus reus, mens rea and identity of p

• [Mat v PP] - standard of proof - beyond reasonable doubt

• Irresistible conclusion test - The court must be satisfied that the circumstances are consistent with the fact that X has committed the offence and it is inconsistent with any material conclusion other than that X is guilty

Relevancy under s6

• facts so connected to the fact in issue that it forms part of the same transaction

  [Thavanathan v PP] -

  • proximity of time (fire at 3.30, heard quarrelling at 3.50)

  • proximity of place

  • continuity of action

  • continuity of action

  • community of purpose

Relevancy under s7

Situations

• identification - shows opportunity of committing crime as X was at the crime scene/ did something in preparation

• explains cause of the fact in issue (eg: death, fire…)

Relevancy under s8(1)

Situations

• preparation work done by X before committing the offence - prove mens rea - [Balamurali v PP] - procurement of petrol - preparatory fact of the relevent fact

• motive - eg: divorce / stg that might trigger the intention

Motive

• existence of motive does not by itself proves that it is X who committed the crime

• circumstantial evidence which - when viewed tgt with other evidence - could prove mens rea and identity of perpetrator

Relevancy under s9

Situations

• identifies X / X’s voice as being the person at the crime scene at the time of the crime

• support inference that X who did stg in preparation of the crime (purchase petrol) / X was the perpetrator (blood stain on t shirt)

• explains a relevant fact (eg: relationship/ cause of death)

Voice identification

like identification - not hearsay evidence - not tendering for the truth of the matter but tendered for the voice in which it was made

Relevancy under s14

Situations

• show state of mind - continuous argument

Competency of witness

• s118 EA50’ - all persons are competent to give evidence as long as he is able to understand the question asked or give rational answers

Child witness

• In light of recent amendments - matters pertaining to the competency of a child witness to give evidence would be dealt with under the Evidence of Child Witness Act 2007 - s118EA50’ no longer applies

• The Evidence of Child Witness (Amendment) Act 2023 - intending to enhance the protection and rights of child witness - has increased the age of child defined under the said Act from 16 to 18

• s2A of the Evidence of Child Witness (Amendment) Act 2024 expressly states that all child witnesses should be presumed to be competent unless the court finds that the child is unable to understand the question asked or give rational answers

Manner in which a child witness should give evidence

• s2B(1) of ECWAA 2024 - a child should give evidence upon oath if he has attained the age of 12 and understands the nature of an oath

• (2) - can give evidence not upon oath if the child witness is below 12 or cannot understand the nature of an oath - the court shall inform him that he has a duty to speak the truth and require him to promise that he will speak the truth

• (3) - if child becomes 12 in the course of giving evidence - shall be asked to take oath - even if didn’t give - would not render his evidence inadmissible

• (4) - shall treat the evidence of child witnesses who give evidence upon oath or not the same, as if it is given upon oath

• s2C - If the competency of child or ability to understand the nature of oath is in question - may conduct an inquiry on those issues at any time before the child concludes the giving of his evidence

Weight of evidence from child witness

• s2D of the ECWAA 2024 - accused may be convicted on the basis of uncorroborated evidence given by a child witness upon oath or otherwise - no warning of court to itself needed

Competency of spouse to the party of the suit as witness

s118 EA50’ - all persons - understand Q - rational answers

• s120 - parties to the suit or their spouses shall be competent witness

• marital communication privilege - s122 EA50’

s122 EA50’

communication during marriage - 2 limbs

• no person who is or has been married may be compelled to disclose any communication made to him during marriage

• nor shall he be permitted to disclose such communication

  (even if he is willing - cannot disclose until the spouse consents

Exceptions to s122

• the person who made it or his rep in interest consents

• in suits between married persons (eg: divorce)

• case involves crime committed by a married person against his spouse

Examples that the exceptions would not apply

• [Palladas v PP] - does not cover acts of spouses or things that a third party overhears or sees - third party can testify on what he heard or saw

s129 EA50’ - legal communication privilege

• no one shall be compelled to disclose confidential communication between him and his legal advisor unless he offers himself as witness

Who is a ‘legal advisor’

• in- house counsel - s129

• practicing advocate and solicitor - s126

whether documents prepared in view of litigation is covered by privilege

• s129 expands into the area of litigation privilege

• communications and documents made by 3rd party to a client or legal advisor where litigation is threatened or has commenced provided those communications are at the behest(command) of the litigant or his advisor for the purpose of litigation

• [Wang Han Lin v HSBC Bank]

  • whether there is a pending or potential litigation

  • whether the communication sought to be tendered is one that is prepared for the dominant purpose of litigation

• COA in Wong Han Lin also made it clear that the protection conferred under litigation privilege need to be balanced against the need to ensure that relevant evidence is not suppressed.

s126 EA50’

• no A&S shall be permitted to disclose any comm made to him in the course or for the purpose of his employment - even after the employment has ceased

• s127 - extends to interpreters, clerks and servants of A&S

Exception to s126

• unless with client’s express consent

• for furtherance of any illegal purpose

• fact observed by the A&S during his employment that indicates that a crime has been committed within this period

• s128 - privilege waived when the client himself summons the A&S to court and question him on matters covered under privilege

When party seek to compel third party to produce document

• s130 - no witness not a party to the suit shall be compelled to produce

  • his title deed unless agreed in writing

  • document he possesses that is immaterial or irrelevant to the case

  • its books

• s131 - no one shall be compelled to produce documents in his possession except for purpose of identification or unless he consents to it

Are disclosures made to doctors or clergyman covered by privilege?

[PP v Haji Kassim] - NO

c/f

[Dae Ai Eng v Dr Wong] - medical reports prepared by expert are obtained for the purpose of litigation are privileged

quality of identification evidence

Poor quality of identification evidence

• did not wear spectacles

• not sure

Counter argue - evidence of recognition - well familiar - near distance -

• consider in totality whether it is still good quality identification

• visual identification - [Yau Heng Fang v PP] - Turnbull guideline - judge shall give himself special warning - give a reason why warning is needed (see Duis Akim) - examine closely the circumstances in which the identification was made - look at quality

• may still be good - albeit weight attached may be lesser

If nothing suggest poor quality of identification evidence

• can rely on it without the need of corroboration evidence

• if court thinks poor quality - must have supporting evidence to rely on identification

When to use Turnbull guideline

When the case depends wholly or substantially on identification evidence and the correctness of which is disputed by the defendant

Turnbull guideline

• give himself special warning

• give a reason as to why special warning is neede

• examine the circumstances in which the evidence is given

Rationale behind the need to give special warning - an honest, credible, confident eyewitness can nonetheless be mistaken, even though there are consistent identifications from other eyewitnesses

• [Duis Akim v PP] - in Msia no need to give reason as to why the judge need to warn itself because we don’t practice jury system - judge assumed to know the reason behind it

Corroborative evidence for identification evidence

• ID parade

• dock identification

• pre-trial description

ID parade

assess quality - consider the gap in time between the incident and the ID parade

• [PP v Dharma Raj] - memory may have faded with lapse of time - poor corroborative evidence - insufficient to support identification witness

When there are 2 witnesses offering identification evidence which is consistent with each other

• cannot argue that their testimony corroborates each other cuz it is against the Turnbull direction as it raises concerns about potential risk of misidentification

• circumstantial evidence

Significance of circumstantial evidence

[Sunny Ang v PP] - CE is of great value in proving the guilt of the A - CE alone is sufficient to secure conviction for murder

[PP v Azilah] - considering the discreet conditions in which crimes are usually committed under, with a high probability of concealment - it is impractical to insist direct evidence under all circumstances as it would render prosecution of vicious criminals nearly impossible

Blood matches blood type

unclear whether it meant blood type only or DNA of the accused

• blood type only - no way conclusive to prove A’s guilt - for greater weight to be attached to this evidence - seek the help of expert evidence to identify to whom the DNA of the blood belong to [DSAI v PP] - s45 - [Khoo Hi Chiang v PP]

[Subramaniam v PP]

• evidence of a statement made to a witness who is not himself called as witness may or may not be hearsay

• hearsay and inadmissible when it is tendered for the truth of the statement

• not a hearsay when it is tendered to prove the existence of the statement or the anyone of the exceptions for hearsay applies

Message or statement that are not tendered for the express purpose of the statement

• Eg: emojis in message

• amount to implied assertion - tendered for underlying assumption on the part of the maker, which can be inferred in court

• no truth value in the emoji - used to infer intention/ meaning

• HEARSAY

Res gestae

• spontaneous exclamations where the possibility of concoctions can be disregarded

• [Leong Hong Khie v PP] - recognized res gestae to admit sponteneous exclamations

Test to admit under common law res gestae

test of reliability - [R v Andrews]

• so startling/ dramatic that it dominates the maker’s mind

• statement made when the maker’s mind is dominated by the event

• is there a motive to fabricate or malice

• weight of the evidence may be affected depending on the risk of error

Hearsay - dying declaration - s32(1)(a)

Eg: statements made by the deceased before his or her demise

• maker must be dead - BOP on the party that wants to tender the dying declaration

• cause of death in question - statement made as to cause of his death or circumstances of transaction that led to his death

[Haji Salleh v PP] - report made one month before death that he fears the accused might kill him - inadmissible - inadmissible

• maker need not be under expectation of death

Admissibility of evidence procured in a way that is in breach of statutory direction

• s136 - when either party propose to give evidence, the court may ask the party in what manner the alleged fact, if proved, would be relevant

• if court thinks relevant, should admit

• if it is relevant in law - admissible given the mode of proof is proper

• [DSAI v PP] - s136 drafted widely to allow judge to exercise his discretion

[Kuruma v R]

• as long as the evidence is relevant, the manner it was obtained is immaterial - affirmed in [DSAI v PP]

[Aizuddin v PP]

• failure to comply with s31A DDA1952 - urine sample must be collected by police not below rank of Sergeant

• Kuruma only applies in cases where there is no governing statute as to how the evidence should be procured

• Failure to comply strictly with a criminal statute amount to a breach of rule of law

Where there is a lacuna in EA50’ on how certain evidence is to be treated in terms of admissibility and/or weight

• s136 EA50’ - when a party propose to give evidence of any fact, the crt may ask the party in what manner the alleged fact, if proved, would be relevant

• if court thinks the fact, if proved, would be relevant - crt should admit

• illegally obtained evidence [Kuruma] [Aizuddin v PP]

• weight - question of fact - judge look at the facts as a whole - affected by the reliability of the evidence

• If no provision stipulating - refer to common law - s3 & 5 CLA 1956

• Eg: prior to s90A - the admissibility of computer produced documents followed the common law test in the case of [R v Masqud Ali] - admissible as long as accuracy can be proven and documents are not tampered with

Documents containing business records tendered in court for the truth of its content

• s32(b)

• s73A

• s90A

Admissibility of Whatsapp message

[Bergamo Development v Eck Development] - printouts of Whatsapp messages - falls under ‘documents’ in s3 - smartphones - falls under ‘computer’ under s3

Therefore, Whatsapp message = computer produced documents

• proper mode of admission - s90A

s90A

• s62 Explanation 3 - computer produced evidence = primary evidence

• s104 - the party seeking to tender the document must prove the pre-conditions are satisfied

• Pre-conditions

  • s90A(1) - document produced by computer in the course of its ordinary use

  • s90A(4) - computer is in good working order

How to prove document is produced by computer in its ordinary use?

[Gnanasegaran v PP]

• produce certificate in compliance of s90A(2)

• call witness to testify

• If the party seeking to tender evidence can produce certificate under s90A(2) - good working order under s90A(4) is presumed
  

How to prepare the certificate of compliance?

• need to be signed by a person who is responsible for the management or operation of the computer before or after the production of the document

Who can be a witness to testify under s90A?

• person responsible for the management or operation of the computer before or after the production of the document

*must testify s90A(1) & (4) - presumption of good working order not presumed - [Ahmad Najib Aris v PP]

If unable to satisfy s90A

• [Mohd Khayry v PP] - s90A doesn’t displace the common law rules for admissibility

• [R v Masqud Ali]

  • accuracy

  • not been tampered with

• or whether anything indicates that the facts can be presumed to exist (s114, s114A, DDA)

bank slips

[Bespile v Asianshine] - in cases where the document in issue is clearly a document produced by computers in the ordinary course of business - eg: bank statements - court should take cognizance and judicial notice under s57 of the fact that bank statements in this era of computer and technology are invariably produced by computers

Presumptions

• presumption of fact

• presumption of law

Adverse inference

Situations

• refuse to produce police report or any documents or call witness pertinent to the case

s114(g) - adverse inference

court may presume that evidence which could be and is not produced would if produced be unfavorable to the person who withholds it

• [Sun Holdings v Export-Import Bank] - s114(g) applies to civil case too

Fact to be proven before s114(g) can be invoked

• [Munusamy v PP] - the evidence withheld must be material

• [PP v Nanda] - deliberate withholding or suppression of the evidence

Can adverse inference be drawn against person who failed/ refuse to call a witness

• s134 - no particular number

[Teoh Hoe Chye v PP] - PP has absolute discretion to call any witness - so long as it does not cause serious gap in the pros case - no adverse inference

Can adverse inference be drawn against the accused?

[Goh Ah Yew v PP] - only when A has the legal burden to prove an issue

[Choo Chang Tiek v PP] - drug trafficking s39B DDA - presumed that A had possession and control of the frugs and had knowledge of the existence of the drugs - A claimed that the drugs belonged to the deceased who was in the premise with him too but failed to call witnesses to testify otherwise - there is no supporting evidence. witness - adverse inference drawn against him

Best evidence rule

• the best that the nature of the case would admit

• if not available - the next best would be admitted

• issue of weight - not admissibility

Examples of next best evidence

DOCUMENTARY EVIDENCE

• no primary evidence (s62) - original documentary evidence - secondary evidence (s63) - if s65 can be satisfied

• original lost (s65©) - secondary can be tendered under s65(2)

• [Mohd Khayry v PP] adopting [R v Masqud Ali] - even if s90A not complied with - can admit computer produced evidence if its authenticity and accuracy can be proved

ORAL EVIDENCE

• S60 - direct - what is perceived with own senses - not available - hearsay - if tendered for truth of contents -exceptions - s90A,73A,32,33,17 etc…

-best evidence rule no longer insists on strict adherence - authenticity and accuracy

oral evidence

s60 - all oral evidence must be direct

• fact which could be see/heard/perceived by other senses- evidence of a witness who says he saw/heard/preceived it

• evidence that refers to opinion - must be evidence by person who holds that opinion

prove contents of document

• must be through primary (s62) or secondary evidence (s63)

What is secondary evidence?

• s63 EA50’

• most examinable - s63(e) - oral accounts of contents of docs given by some person who has himself seen or heard or perceived

When can secondary evidence be admitted?

[KPM Khidmat v Tey]

• only for circumstances under s65(1) - to explain why primary evidence is not tendered

In what form should the secondary evidence be tender?

s65(2) - determine whether or not the evidence falling under s65(1) is admissible

bulky documents

• where the documents are not tendered - intend to call custodian or maker of the documents to testify on the content

• apply s65(1)(g) - cannot conveniently be examined in court & s65(2)(d) - by person who has examined them and who is skilled in the examination

• [Dato Chiong v Wong] - instead of tendering bulky account documents and calling clerk who merely made entries - allow tendering of accounts audit report and called auditor to testify

• BOP on person who seeks to rely on s65 to tender the secondary evidence - s104 EA50

Admissibility of secondary evidence that falls under s65(1)(a)

s65(1)(a) - can be admitted when the original is in possession of

• person against whom the document is sought to be proved (adverse party)

• person out of reach

• person legally bound to produce but does not produce it

Note s66 - notice

Additional caveat to s65(1)(a)

• s66 - secondary evidence under s65(1)(a) shall not be given unless the adducing party has given the party who has the original document a notice to produce it

• Exceptions to the requirement to give notice:

  • s66(a)-(f)

tendering of multiple hand hearsay evidence

s73A

• ONLY FOR CIVIL PROCEEDINGS!!!

Pre-conditions under s73A

1) FIRST-HAND HEARSAY

• maker had personal knowledge of the contents of the evidence

SECOND-HAND HEARSAY (maker has no personal knowledge)

• person who supplies the information to maker had personal knowledge;

• document forms part of a continuous record;

• statement made in the performance of duty to record

2)maker is called as witness unless the maker dead/ unavailable

• s73A(2) - crt has discretion to dispense attendance of maker

  [Arab-Malaysian v Chong] - maker had already been called multiple times for the same matter

If maker of statement is overseas - can it be presumed that he is unreasonably practicable to secure his attendance?

[Alliedbank v Yau] - NO

definition of ‘continuous record’

• [Alliedbank v Yau Jiok Hua] - entries made progressively and reasonable contemporaneous to the matters which they record - in a single or a series of documents - comprising part of system

Hearsay exception - s34 - statement of accounts

Pre-conditions

• to tender books of account regularly kept in the course of business

• the book of account refers to a matter under court inquiry

• NO NEED FOR MAKER TO BE UNAVAILABLE

Can the court rely on the books of accounts alone to hold the Ds liable?

[Popular Industries v Eastern Garment]

• NO - a man cannot be allowed to make evidence for himself by what he chooses to write on his own books behind the back of third parties

• crucial to have other independent evidence to prove the issue that the books of account seek to prove

Hearsay exception - s33 - evidence at trial prior to the current proceeding

Pre-conditions

• evidence given in a judicial proceeding

• maker of evidence dead or unavailable

• previous trial and current between the same parties

• adverse party in the previous trial has opportunity to cross examine the evidence

• questions in issue in the current trial were substantially the same as the previous trial

[Mohamed Kunju v PP] - pros has a duty to explain why they choose to tender the statement in previous proceeding instead of calling the witness to testify at the trial

Admissibility of previous judgment or order or decree

• s40 - judgment that proves that the same matter has been decided upon - preventing the current judge from trying again - relevant - prevent res judicata

• s41 - judgments on probate, matrimonial, admiralty or bankruptcy matters - relevant

• s42 - judgment related to matters of public nature - relevant - not conclusive proof - needs to be corroborated

• s43 - previous judgment that is a fact in issue or relevant fact in the current proceeding - relevant