1. Witness or a statement maker is not unable to testify before the court of law.
2. Hearsay evidence has inroad on the admissibility of direct oral evidence under s60.
3. It is not the best tendered evidence that could be cross-examined before the court.
4. The demeanor of statement maker could never be determined by the aggrieved party or accused.
Moreover, the admissibility of hearsay evidence is not an easy going process. The court must able to identify the purpose of tendering the hearsay evidence. If the hearsay evidence is adduced in proving the truth of its content, the evidence would be undoubtedly ousted. However, if any hearsay evidence has been tendered for establishing the fact that the statement has ever been made, then it would be admissible under the discretion of the court in accordance with s136 of the Act.
Interestingly, exception to the rule of hearsay evidence could be well-discussed under s32 of the Act. Why s32 would be the exceptional case to the rule against hearsay evidence? The affirmative answer would no others but is because the maker of statement could not or incapable to testify before the court of law. Dying declaration is a statement that could be in the either form if written or verbal. The evidentiary value of a dying declaration must be viewed in light of s158 of the Act. It is a kind of evidence that could be used for few purposes, viz; in contradicting or corroborating any relevant fact and even for the aim in impeaching or strengthening the credibility of witness.
In the author’s opinion, dying declaration is not a denial to the right of accused being free from prejudicial. As been mentioned earlier, dying declaration could only be admissible after conditions laid down under s32 have been proved. The rationale of having dying declaration is not more than to avoid the exclusion of relevant fact altogether. Dying declaration would not always goes against the accused of defendant in any judiciary proceeding. However, it could be said as an eminent allusion on safeguarding another type of justice to the accused in gathering more relevant facts for the judge in making accurate assessment on the merit of fact in issue.
The significance of having dying declaration is much more overwhelming nowadays. This could be explained under s32 (1) Para (b) of the Act. Statement made in the ordinary course of business is a form of important evidence. It seems to suggest that any acknowledgement made during the ordinary course of business could be adduced as good evidence before the court. The necessity of having dying declaration under Para (b) has been fortified by Jeffery Pinsler. Many business documents are in such a nature that wholesale exclusion would deprive the court in assessing important or relevant evidence. It should be admitted and whatever attached weight on the evidence is definitely better than exclude it in toto. However, in order to guarantee the right of accused from being implicated, any dying declaration that would be admitted should pass the test of personal knowledge. Alliedbank v Yau Jiak Hua [1998 6 MLJ 1]
In addition, dying declaration is a statement that should be attached with certain extent of weight by the court after being admitted as relevant fact. This could be reflected under Para C of s32. It used to show that there is a rationale behind the admission of dying declaration. Any dying declaration made against the proprietary and pecuniary interest of the maker could be admissible even it is mere a hearsay statement. It is not only legally relevant but also could be logically relevant as ordinary man would not likely to make any statement to his own detriment unless it is true. In order to have a deeper understanding on this particular form of dying declaration, illustration (f) should be reviewed. Question whether A and B have been legally married could be well-determined by taking into consideration the statement made by a clergymen in proving that the couple has been married illegally. The evidentiary value of the statement would be sustainable under Para C.
Meticulous scrutiny on s32 would really stimulating in understanding the actual application of dying declaration. It is not form of denial on the right of the accused in getting fair hearing or judgment during trial. Apparently, it is a kind of evidence that could be admissible before the court in assisting the judge to make a better inference on all relevant facts. It is merely one of the puzzles in the jigsaw game that could be relied on in making proper finding or judgment. Hence, dying declaration is another form of indirect justice accorded to the accused since its admissibility before the court of law would be carefully scrutinized in ensuring lest false or no coloring story.
LUM CHOI YUEN A129960