 Motive is the reason why a person does a particular act. It is not the same thing as intention. As stated by Lord Goddard CJ in R v. Steane; the motive of a man act and his intention in doing the act are, in law, different things. Edgar Joseph Jr SCJ in Lower Perak case stated that ''intention means seeking to do something and Is connected to purpose or object whereas motive is concerned with the reason for doing something''.
Illustration (a) Section 8 made clear in decide the relevancy of motive. Evidence to show motive is admissible to suggest that the accused is of bad character or that he has committed some crime other than the one with which he is charged. Such evidence is admissible under this section notwithstanding the provisions of Section 54 of the act. Section 54 Evidence Act 1950 provided the previous bad character not relevant except in reply. In criminal proceedings the facts that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case its becomes relevant. In Wong Foh Hin v. PP, Wylie CJ stated that Evidence was admitted of an incident in May, 3 month before the daughter’s death. This was to the effect that the wife had previously complained to the Orang Tua that the appellant had interfered with the daughter and that the matter had been disposed of by the Orang Tua stating that, if this occurred again, the matter would be reported to the police. The appellant, the wife and the Orang Tua signed a document which was produced in evidence, recording, inter alia, the allegation and the warning about reporting to the police if this occurred again. The grounds of appeal concern solely the question whether the evidence of the incident in May, and the evidence suggesting a similar incident just before the daughter’s disappearance, were properly admitted. For the appellant , it was submitted that these pieces of evidence, suggesting, as they did, an incestuous relationship between the appellant and his daughter, amounted to evidence of bad character which, in the circumstances of the case, was inadmissible. The part, however, does not in any way limit the generality of the first part, that evidence otherwise admissible is not rendered inadmissible merely because it tends to show bad character or the commission of another offense. The evidence objected to is clearly the strongest possible evidence of motive. This applies to the evidence of both incidents. For the evidence concerning the interview with the Orang Tua on the first occasion shows how strong the motive must have been when the wife went off in the night time on the second occasion. It showed that the applicant was likely to be very concerned that this time there would be a police investigation and the daughter would be the most important person the police would interview and the most dangerous from his point of view. Although counsel for the appellant referred the court to English authorities, the position is the same under the Evidence Ordinance (Cap 43) and the evidence objected to is clearly admissible under Section 8 of that Ordinance which reads as follows. Section 54 deals with evidence of the character in these terms “ in criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant”. Prepared By: THAN CHONG SENG (JOHNSON) A122879  Section 7 Evidence Act 1950
Facts which are the occasion, cause, or effect, immediately or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant. Illustrations (a) The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant. (b) The question is whether A murdered B. Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts. (c) The question is whether A Poisoned B. The state of B’s health before the symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts. This Section makes a large number of collateral facts which do not form part of the transaction itself relevant. For example, a contemporaneous tape recording of a relevant conversation is relevant and can be used to confront a witness or shake his credit. (Dial Singh Narain Singh v. Rajpal Jagan Nath) However, such a recording must be treated with caution. In State of Maharashtra v. Ramdas Shankar Kurtekar, it was held that the only plausible explanation of how a tape (in the absence of any other explanation) had music both before and after the taped conversation was that it had been tampered with. In R v. Richardson, the fact that the deceased girl was alone in her cottage at the time she was murdered was held to be relevant as it constituted the occasion of the murder and footprints at the location of shoes which had been mended with iron knobs or nails were held to be one of the effects. In Indian Airlines v. Madhuri Chaudhari, the Calcutta High Court held that the report of the Enquiry Commission regarding an air-crash was relevant in establishing the cause of the accident. In Rattan v. Reginam, the fact that a man who had murdered his wife had been having an affair was held to be relevant as being the state of things or background in which the crime occurred. However, a fact in issue cannot be proved by similar facts which are not a part of the same transaction merely by virtue of Section 7. Prepared By: THAN CHONG SENG (JOHNSON) A122879  Res gestae (a Latin phrase meaning "things done") is an exception to the rule against Hearsay evidence. Res gestae is based on the belief that because certain statements are made naturally, spontaneously and without deliberation during the course of an event, they leave little room for misunderstanding or misinterpretation upon hearing by someone else (i.e. by the witness who will later repeat the statement to the court) and thus the courts believe that such statements carry a high degree of credibility. Statements which can be admitted into evidence as Res gestae fall into three headings:
1. Words or phrases which either form part of, or explain a physical act, 2. Exclamations which are so spontaneous as to belie concoction, and 3. Statements which are evidence as to someone's state of mind. (In some jurisdictions the Res gestae exception has also been used to admit police sketches.) The principle underlying Section 6, the following is sometimes termed as res gestae. This phrase means simply a transaction, ''thing done'', ''the subject matter'', ''res gestae” of any case properly consists of that portion of actual world’s happenings out of the right or liability, complained or asserted in the proceeding, necessarily, arises. Apparently the phrase is well established in the Evidence Act 1950. It is necessary therefore, to understand what it really means. That has been used in two senses. In the restricted sense it means world’s happening out of which the right or liability in question arises. In wider sense it covers all the probative facts by which res gestae are reproduced to the tribunal where the direct evidence of witness or perception by the court is unattainable. In restricted meaning res gestae imports the conception of action by some person producing the effects for which the liability is sought to be enforced in action. To be clear, in the restricted sense ''facts which constitute the res gestae must be such as so connected with the very transaction or fact under investigation as to constitute a part of it''. Whatever act or series of acts constitute, or in point of time immediately accompany and terminate in. The principal act charged as an offence against the accused from its inception to its consummation and whatever may be said by either of the parties during the continuance of the transaction, with reference to it, including herein what may be said by the suffering party, though in absence of the accused during the continuance of the action or the latter, form part of the principal transaction and may be given in evidence as part of res gestae of it. While, on the other hand, statements made by the complaining party, after all action on the part of wrong-doer has ceased and some time has elapsed do not form part of res gestae and should be excluded. Section 6 of the Evidence Act 1950 states that,''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'' This section admits those facts the admissibility of which comes under the technical expression res gestae [i.e., the things done (including words spoken) in the course of a transaction], but such facts must ''form part of the same transaction.'' If facts form part of the transaction which is the subject of enquiry, manifestly evidence of them ought not to be excluded. The question is whether they do form part or are too remote to be considered really part of the transaction before the Court. A transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime a contract, a wrong or any other subject of inquiry which may be in issue. Roughly, a transaction may be described as any physical act, or a series of connected physical acts, together with the words accompanying such act or acts. Every fact which is part of the same transaction as the fact in issue is deemed to be relevant to the fact in issue although it may not be actually in issue, and although if it were not part of the same transaction it might be excluded as hearsay. Prepared By: THAN CHONG SENG (JOHNSON) A122879  The role of DNA, fibers, cartridge cases is increasingly important in the real world of criminal defense. Lawyers must have an understanding of forensics in order to discredit evidence or to use it to their clients’ advantage. Crime scenes are messy. There are plenty of opportunities for mistakes to be made in the collection, handling and transportation of evidence.
The demise of the Forensic Science Service comes as police forces shift towards a more streamlined approach to the use of forensics in criminal cases. Instead of courts being presented with extensive forensic reports that cover all the evidence recovered in police investigations, only short reports with the initial and key findings will be submitted. Prior to the trial, prosecutors will present the defence with evidence incrementally and order additional forensic tests only when the case requires them. For example, the defence may concede a case when prosecutors present a DNA fingerprint that links the defendant to a crime, negating the need for further tests. At each stage, the defence has an opportunity to dispute the evidence before the case goes to court. Lab analysis: The results are only as good as the equipment and the technicians Laboratories must be certified to undertake particular types of analysis. Sophisticated equipment must be properly calibrated. Records must be accurate. Technicians must be properly trained. Just as with evidence collection, proper procedures for evaluating the evidence must be followed and standards must be met. Even a slight deviation can lead to evidence contamination. Analysis and testimony: Challenging the prosecution's experts when the prosecution calls in a technician or an expert in a certain field to testify and introduce evidence, explain its importance and how it was analyzed and offer interpretations and conclusions. It is the criminal defense lawyer's job to challenge any studies, facts or figures offered by the expert witness during cross examination: What are the expert's credentials? Is the supporting information sufficient or reliable enough to draw a certain conclusion? What is the scientific basis for the finding? When pressed, these experts may not be able to justify their findings. At other times, the defense may call a witness of its own to offer conflicting testimony. Prepared By: THAN CHONG SENG (JOHNSON) A122879  To distinguish between relevancy and admissibility, I would like to explain the meaning of relevancy and admissibility before we proceed to the difference between these two concepts.
According to Janab’s Key to Evidence, relevancy refers to the degree of connection and probative value between a fact that is given in evidence and the issue to be proved. Relevancy of facts had been provided from Section 5 to 55 of Evidence Act 1950. By referring to the illustration (a) provided in Section 5 where A is tried for the murder of B by beating him with a club with the intention of causing his death. There are three facts in issue to be proved - A’s beating B with the club; A’s causing B’s death by the beating; and A’s intention to cause B’s death. A fact is relevant when it is so related to the fact in issue, that they render the fact in issue probable or improbable. For example, to prove the third facts in issue in the example just now, the facts that A and B was having quarrel before the murder happens is relevant to prove the third facts in issue which is A’s intention to cause B’s death. Admissibility involves the process whereby the court determines whether the Law of Evidence permits that relevant evidence to be received by the court. The concept of admissibility is often distinguished from relevancy. Relevancy is determined by logic and common sense, practical or human experience, and knowledge of affairs. On the other hand, The admissibility of evidence, depends first on the concept of relevancy of a sufficiently high degree of probative value, and secondly, on the fact that the evidence tendered does not infringe any of the exclusionary rules that may be applicable to it. Relevancy is not primarily dependant on rules of law but admissibility is founded on law. Thus, relevancy usually known as logical relevancy while admissibility is known as legal relevancy. Relevancy is a question of fact which is the duty of lawyers to decide whether to tender such evidence in the court. On the other hand, admissibility is the duty of the court to decide whether an evidence should be received by the court according to Augustine Paul JC in the case of Public Prosecutor v. Dato Seri Anwar bin Ibrahim. In general, a relevant fact given in evidence under Section 5 to 55 is admissible in the court. However, a relevant fact under Section 5 to 55 may not be admissible if the other sections of the Act do not permit it to be received by the court. These are the main exclusionary rules in the Act which excluded the admissibility of a relevant fact. Hearsay statement, confessions, evidence of the defendant character, exclusion of evidentiary facts by estoppel and exclusion of privileged communication. For example, hearsay evidence is generally excluded even though relevant. For example, Siti saw that Ahmad had killed Vinnie with a knife. Then Siti told what he saw to Amirul. Here, Amirul cannot become a witness as he did not see the incident himself. The fact that Amirul heard from Siti that Ahmad had murdered Vinnie with a knife is relevant as it is based on logic and common sense. However, such evidence generally is not admissible in the court as it is forbidden by the Law of Evidence. Section 60 stated that oral evidence must be direct. The witness who testifies in court must be the person who perceived the facts with his own sense. For instance, a confession obtained by any inducement, threats or promise is not admissible under Section 24. A confession to the police officer below the rank in Inspector is not admissible under Section 25. Confession by accused while in custody of police is also not admissible under Section 26 even though it is logically relevant. For example, this is what I noticed in the accused’s statement in police report while I was doing my internship in Attorney General's Chambers. In a case where the thief had already admitted to the police officer that he had stolen the hand phone. However, such confession cannot be tendered as an evidence in the court. The accused then founded not guilty by the court because the Deputy Public Prosecutor failed to prove the case beyond reasonable doubt. Here, the fact that the thief had already confessed to the police officer is relevant, however, it is not admissible in the court as it had been forbidden by Section 26 of Evidence Act 1950. In the case of Eng Sin v. Public Prosecutor, Gill J held that the admission by the accused to a doctor that he had killed a man is not admissible as he is still under the custody of a police officer. An irrelevant fact is not admissible in the court. However, in certain cases, evidence, which is not relevant under Section 5 to 55 may nonetheless be admissible. Examples include:
As conclusion, relevancy is a test for admissibility. The question of admissibility is one of law and is determined by the Court. In Section 136 of Evidence Act 1950, a distinction is made between relevancy and admissibility, if it can be shown that the evidence would be relevant if proved, the court shall admit evidence of it. Prepared By: THAN CHONG SENG (JOHNSON) A122879 | "The glow of one warm thought is to me worth more than money." The PartnersA group of law students sharing knowledge, thoughts, ideas and opinions CategoriesAll Archives |
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