|LAW OF EVIDENCE||
General rule is that a witness is generally permitted to give evidence of fact which he has perceived which is embodied in Section 60 of the Evidence Act 1950.
There are certain fields of knowledge which may be pertinent to a case and yet are beyond the proficiency of laymen. Here, the court requires the assistance of person who are particularly familiar with or skill in respect of matters under consideration.
Section 45(1) Evidence Act 1950 illustrates on opinions of experts. Where it states that when the court has to form an opinion upon a foreign law or of science or arts, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions are relevant facts and such persons are called experts.
When the court has to form an opinion upon certain matters which is likely to be outside the experience and knowledge of the judge. When the fields involve is beyond the range of common experience or common knowledge, or when special study of a subject or special training or special experience is necessary then in such cases, the help of expert is required to enable the court to come to a proper decision. This principle is elucidated in Syed Abu Bakar v PP. The principle laid down in Syed Abu Bakar bin Ahmad v PP is that it was wrong for a judge to form a conclusion on the matter which can properly concluded only with the aid of expert evidence. The court felt that the judge without the assistance of expert evidence should not made a finding or fact that the handwriting is not of a certain witness. It is a settled principle that while a judge sits alone, its entitle to weigh all the evidence to put his magnifying glass to determine the probabilities and form his own opinion or judgment. It would be erroneous for him to form a conclusion on a matter which could be properly concluded with the aid of expert evidence.
In the case of Syed Abu Bakar V PP, sergeant Pau that the sign only on a blank form and he did not write the words tiga ratus sahaja but the defence contended otherwise. Therefore a dispute to the handwriting and so it was necessary for the learned judge to make a finding as to the author to those words. Since the document was not examined by any person who has acquired a special skill or expert in a particular subject that is handwriting the question is therefore is the learned judge right in making the finding of fact that he did in the absence and without the aid of expert evidence. It was not proper for the judge to conclude that it was not Sargeant Pau’s handwriting without going further since Sargeant Pau did say that he only affixed his signature but for the learned judge to proceed further and held as he did he was evidently indulging in a determination of a question which was beyond range of common knowledge. The same would apply to the conclusion made by the judge when he stated that they appeared to come from the same pen.
However in cases involving complicated, technical issues such as in medical negligence cases, a person well versed in the field must be called to give his opinion. The witness who gives such evidence is too referred as an expert. There are various fields in which experts may be required to tender evidence namely, foreign law, handwriting and science of art. In our movie we feel that the most relevant field would be science. The field of science is capable of a wide interpretation. For instance science of biology, physics, chemistry, medicine, aerospace, marine biology, oceanography, forensic, tyre marks and etc. In the case of Chandrasekaran & Ors V PP, the Court was concerned with whether a document had been typed on a certain typewriter. Expert evidence on this issue was allowed on the basis that expert opinion on typewriting is as much a matter of science study as handwriting and fingerprint evidence.
The principle underline in the case of Junaidi is that, the answer in regards to question of expert evidence depends on the fact of each particular case. The speciality of skill required of an expert under Section 45, would depend on the scientific nature and the complexity of the evidence sought to be proved.
Qualification of an expert
Test to be applied to determine whether a person is an expert is as stated in the case of Junaidi Abdullah v PP. The most scientific and complex a subject matter, the more deeper and extensive the court will be required to acquire into the ascertainment of his qualification or experience in the particular field of profession. But in the final analysis, in a non jury trial, it is for the trial judge himself as both judge of fact and law to determine the weight to be attach to such evidence not withstanding the outstanding qualification or experience or lack of it by the expert. Among the relevant question in regards to this is that, does the nature of the evidence require special skill? And if so, has the witness acquired the necessary skill whether by academic qualification or experience so that he has adequate knowledge to express an opinion on the matter under inquiry? All in all, it seems that there is no hard and fast rule as to the competency of an expert witness.
The lack of qualification or experience on the part of the expert, must necessarily affect the weight of evidence rather than the admissibility. But where the evidence is of complex and scientific nature, the absence of good qualification or experience can certainly affect admissibility.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056
Hearsay evidence would be the centerpiece of discussion when few exceptional circumstances have invited the importation of admissibility of hearsay evidence. One of the significance exceptions would be squarely rested on the dying declaration enshrined under s32 of Evidence Act 1950. The rationale of having rule against the admissibility of hearsay evidence is not more than the following propositions.
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
Principle of corroboration was applied in the case of Public Prosecutor/People v William Gambini & Stanley Rotheinsten. Prior to the explanation on the principle of corroboration evidence in depth it is advisable for us to explain first what is the court’s general stand in considering the evidence pertaining to the principle of corroboration.
Basically, the court’s general stand in considering the evidence by the witness can be seen accordingly under Section 134 of the Evidence Act 1950, which provides that, “No particular number of witnesses shall in any case be required for the proof of any fact”. So, the courts may act on the testimony of a single witness even though uncorroborated or upon one duly proved documentary evidence. What is pertinent is that the evidence must be credible and derived from reliable sources. However, there are particular situations which the law has recognised as requiring particular care on the part of the judge before it relies on a witness testimony. In such instances, it may be prudent or obligatory for the trier of fact to caution itself as to the evidence before such testimony can be relied upon. This requirement for caution or additional evidence is the subject matter of corroboration.
According to Lord Reading CJ in R v Baskervill  2 KB 658, “corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicated him, that is, which confirm in some material particular not only the evidence that a crime has been committed, but also that the prisoner committed it”. Within a few years of this decision, the Court of Appeal in the Straits Settlements, applied these principles in the case of R v Lim Yong Hong  14 SSLR 152 where a conviction for retaining stolen property was quashed, one of the reasons being that they was no independent evidence to corroborate the testimony of an accomplice. This principle has been developed mainly by the common law to avoid convictions based on insufficient or unreliable evidence.
According to that statement and the cited cases, corroborative evidence can also be illustrated as evidence which shows or tend to show that the story of witness that the accused committed the crime is true, not merely that the crime has been committed but it was committed by the accused. Besides that, corroboration can be defined also as an additional supporting evidence to strengthen the previous fact or evidence adduced before the court.
However, not all previous fact, testimony by witness or evidence adduced before the court requires corroboration. This requirement only applies to child witness, accomplice, sexual offences, and an interested witness and for identification of the accused. Last but not least, the major role is played by the judges or court in looking into all the evidence and its corroboration, later the court will decide the case in favour to the party that give the strength and weight relating to the evidence pertaining to the allegation.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056
In systems of proof based on the English common law tradition, almost all evidence must be in a form of witness, who has sworn or solemnly affirmed to tell the truth. The bulk of the law of evidence regulates the types of evidence that may be sought from witnesses and the manner in which the interrogation of witnesses is conducted such as during direct examination and cross examination of witnesses.
Today all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings, and all persons are also presumed to have a legal obligation to serve as witnesses if their testimony is sought. However, legal rules sometimes exempt people from the obligation to give evidence and legal rules disqualify people from serving as witnesses under some circumstances.
Privilege rules give the holder of the privilege a right to prevent a witness from giving testimony. These privileges are ordinarily (but not always) designed to protect socially valued types of confidential communications. For examples like; spousal privilege, advocate-client privilege, doctor-patient privilege, state secrets privilege and clergy-penitent privilege. A variety of additional privileges are recognized in different jurisdictions, but the list of recognized privileges varies from jurisdiction to jurisdiction; for example, some jurisdictions recognize a social worker–client privilege and other jurisdictions do not.
Witness competence rules are legal rules that specify circumstances under which persons are ineligible to serve as witnesses. For example, neither a judge nor a juror is competent to testify in a trial in which the judge or the juror serves in that capacity; and in jurisdictions with a dead man statute, a person is deemed not competent to testify as to statements of or transactions with a deceased opposing party.
According to s 24 Evidence Act 1950 “A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.
It is based on the facts to determine whether there is an inducement, threat or promise to make the confession irrelevant. To identify if there is an inducement, threat or promise, 3 criteria must be fulfil as set out in section 24 that is,
i. Relate to the charge against the accused
ii. Proceed from a person from authority
iii. Must be sufficient in the opinion of the court to cause a reasonable belief in the mind of accused that by making it he would gain an advantage or avoid an evil of temporal nature.
No statement by an accused is admissible in evidence against him unless it is shown by the prosecution that the statement is made voluntarily which is supported by Ibrahim v R. This is accepted in DPP v Ping Lin which it was held that it is not necessary before a statement is held to be inadmissible because it is not shown to have been voluntary, that it should be thought or held that it was impropriety in the conduct of the person to whom it is made and that what has to be considered is whether a statement is shown to have been voluntary rather than one brought about in one of the ways referred to.
What amount to oppressive circumstances which is a negative voluntariness are set out by the case of PP v Chan Choon Keong.
i. Characteristic of accused
ii. Period of time in during which he was questioned
iii. Length of time during custody
iv. Whether or not he was given the opportunity to rest and refreshment.
PP v Naikan the facts that a police officer reminds a witness that he should tell the truth would constitute a threat but in PP v Ramasamy, it would be depends on the case.
Person who is an authority is not mention by the act but it can be vary from situation where in Deokinanan v R, a person in authority is a person who has control over the accused in the proceeding. To relate with the oppressive circumstances, if the accused made the statement when he is interrogate by the police and after 5 hours interrogation without any rest and refreshment, he made the statement to escape from the situation because he believes that if he stays more in the interrogation, he would suffer from it, therefore the voluntarily statement only permanent for a period of time which is only temporal in nature.
But the burden of proof to proof that such statement is to be made by the prosecution to proof beyond reasonable doubt that the statement is made voluntarily without any inducement, threat or promise.
In Dato’ Mokhtar Hashim case, the classic testof admissibility of an accused confession it was made voluntarily in sense that it was not obtained from him either by fear or prejudice or hope of advantage created by person in authority or by oppression, should be applied in a manner.
In conclusion, if all of the criteria in section 24 is complied with, the confession made cannot be used in the court as discussed above.
Prepared by : Siti Nurhakimah (A130153)
Statement does not speak for itself but a dying declaration without the maker of the statement may be admitted as admissible by court pursuant to Section 32(a) Evidence Act 1950. The rule of oral evidence is that it shall not be hearsay. However, the identification of what amounts to hearsay evidence is difficult. Cross in his book (Cross of Evidence, 6th edn, Butterworths) defines a hearsay statement as ‘a statement other than one made by a person while giving oral evidence in the proceeding…’, which is too broad a definition. In defining hearsay, it is necessary to emphasize that if an out-of-court assertion is adduced to prove the truth of the matter therein then it is hearsay, but if it is adduced merely to show the state of mind of the maker of the statement then it is not hearsay and therefore admissible.
In Malaysia, hearsay is admissible not based on exception but on inclusionary rule, which it is included in the Section 32(a) as relevant and admissible. The difference between hearsay rules in common law and Section 32(a) is, in particular, the absence under the section of the common law requirement that the maker must be under a ‘hopeless expectation of death’ at the time the statement is made. (See R V Perry  2 KB 697) Furthermore, the admissibility of such evidence under the common law is limited to homicide cases only. While, Section 32(a) does not expect the maker to be under a hopeless expectation of death and it applies to criminal as well as civil cases. By its wording, it refers to a statement made by a person as to ‘the cause of his death, or as to any circumstances of the transaction which resulted in his death…’. This wording is far-reaching in its effect: the evidence is admissible not merely to show the cause of death as in the common law, but also to show the circumstances which led to the death. However, the must be a proximate link between the out-of-court statement and the cause of death. If such a statement is too remote from the cause of death then it will be inadmissible. (See Livera v Abeywickreme (1923) 25 NLR 1 ; Pakala Narayana Swami v R  MLJ 48)
Under the wide provision of Section 32(a), there are certain requirements that have to be establish before such statement can be accept as relevant and admissible by the court.
(a) An out-of-court is hearsay and inadmissible when the object of adducing the evidence is to establish the truth of the contents of the statement
Subramaniam v PP  MLJ 220
In ruling out peremptorily the evidence of conversation between the terrorists and the appellant the trial judge was in error. Evidence of a 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 object 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 t establish by the evidence, not the truth of the statement, but the fact it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.
See also Re Soo Leot  MLJ 54 ; Tan Gong Wai & Leong Hong Khie v PP  2 MLJ 206
(b) Cause of death
Boota Singh v PP  MLJ 195 - An out-of-court assertion must have a proximity to the cause of the maker’s death, or to any of the circumstances which resulted in his death.
In this case a report made by the deceased against the prisoner nine months before the murder was admitted in evidence by the trial judge, as showing a motive for the crime. However, the trial judge agreed with the appellant’s counsel that the report was not admissible under s32(i), which is limited to statements by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. The report made nine months previously cannot strictly be regarded as a report about any circumstances which resulted in the murder.
Ong Her Hock v PP  2 MLJ 45 – The recollection of the last words of a dying man by a witness who heard the actual words at the scene may properly be received in the evidence.
Mohamed bin Allapitchay & Ors v R  MLJ 197 – in admitting under Section 32, the jury must be warned if the evidence is not given on oath and is not submitted to cross-examination.
In this case, Rahim’s statement of he had been woken up by four Indians, whom he named as Mohamed, Hassan, Haja Mohideen and Kakak, and that Mohamed had stabbed in the stomach with a knife, had been admitted without any question being raised by either side and it is only now on appeal that this court is asked to rule that is was inadmissible and that the verdict of the jury should be set aside. Lord Normand pointed out in Teper v The Queen  AC 480, failure to take objection to the admissibility of evidence at the trial does not necessarily preclude objection being taken on appeal, and in all circumstances of this case, the court is of the opinion that the appellants should be allowed to take objection in this court.
(c) For a statement to be admissible under Section 32, the make, if alive, should be a credible witness
Chan Phuat Khoon v PP  MLJ 127 – statement by the deceased, Pang Ngee Moi to her husband and to the doctor at the hospital prior to her death were admitted in evidence by reason of the provision of s 32 of the Evidence Ordinance 1950 and once they were admitted they became evidence of the facts contained in them. They were the voice of the woman speaking from beyond the grave. They were substitute for the oral evidence which she could have given had she been alive.
(d) If a dying declaration is reduced to writing, then the actual words of the deceased must be recorded.
R v Mitchell  17 Cox CC 503 – Cave J explained that the reason for the rule is clear, namely, that if the deceased’s statement is taken down in narrative form that amounts in effect to the witness himself drawing inferences and, perhaps, filling gaps in the deceased’s statement, which are properly matters within the province of the judge and jury. It is for them to draw any necessary inferences from the actual words of the deceased and not for the witness who heard the words spoken.
Toh Lai Heng v R  MLJ 53 – the omission to record the actual words of the deceased is a fatal defect.
-PETEI KANAI A127897
A trial involves the calling of witnesses to adduce evidence. Witnesses can be divided into two categories, which are witnesses of fact and witnesses of opinion. Witnesses of fact are directly related to the case (i.e. eye witnesses), meanwhile witnesses of opinion are usually experts, who are called to assist the court in forming an independent opinion or finding. The use of expert witnesses to assist the court is not a new phenomenon but it is gaining popularity in Malaysia and also in other jurisdictions due to the rise of new and more sophisticated crimes.
In simple language, if we look at the phrase “Expert Opinion” and analyse it, it means that an opinion which is given by a person who is expert in a particular field, may it be science, art, law or any other technical field. This concept is envisaged by Section 45(1) of the Evidence Act 1950 which provides that “When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that matter are relevant facts”. Subsection (2) goes on to say that “such persons are called experts”. The function of this section was further explained under the illustrations.
“Expert” means one who is skilled in any particular art or trade, profession being professed of particular knowledge, concerning the same. If a person has acquired any special experience or special training in particular subject to which the Court enquiry relates, such a person can be considered as an expert. An expert is the one who has made the subject upon which he speaks, a matter of particular study, practice or observation and he must have a special knowledge of the subject. Any person who has the experience to give an informed opinion on a matter outside the experience of Court is an expert.
An “Opinion” is estimation, a belief or assessment, a view held as probable, what one thinks about a particular question or topic, an assessment short of grounds of proofs, a formal statement of reasons for the judgment or a formal statement of professional advice.
Expert Opinion assists the Court in the matter of scientific nature. An expert gives opinion for the matter after assessing it and this opinion is not binding in nature, it is merely advisory. The issue before the court is whether the nature of the evidence requires special skill as was decided by the court in Junaidi bin Abdullah v. PP.
The expert only gives an opinion, but not a conclusion of the matter as it is the judicial function to do so. In Ong Chan Tow v. R, the court held that the experts cannot give evidence on matters which the court can decide by itself as otherwise they would tend to usurp the function of the court. The expert opinion should be of corroborative nature to the facts and circumstances of the case. If the expert opinion contradicts an unimpeachable eye witness or documentary evidence then it will not have an upper hand over direct evidences.
Experts have to state the facts which he has seen, heard or perceived through his sense. They are not helpful to the court in the interpretation of law. To be appointed as expert, one must have attainment in professional qualification, professional experience, have made special study in the subject, possessing special knowledge of that field or has made some observation in that field. The burden of proof is on the person who adduces an expert witness. He must prove to the satisfaction of the Court.
The court in PP v. Muhamed bin Sulaiman held that the expert may be competent either by formal study or by experience meanwhile the court in Dato Mokhtar Hashim v. PP held that one can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one’s work notwithstanding that the expertise is derived from experience but not from a formal training.
In Junaidi bin Abdullah v. PP, the court held that the specialty of the skill required of an expert under Section 45 would depend on the scientific nature and complexity of the evidence sought to be proved. The more scientific and complex the subject matter, the more extensive and deeper will the court be required to enquire into the ascertainment of his qualification or experience in the particular field of art, trade or profession.
It is a well settled law that the opinion of an Expert should be taken with a great caution and the decision of the court should not be based simply on the basis of the expert opinion without a substantial corroboration as was decided by the court in Mohamed Kassim bin Yatim v. PP in which the court said that it is a settled law that evidence by a handwriting expert can never be conclusive evidence.
In Dr. Shanmuganathan v. Periasamy, the court held that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that the opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated, the court must consider the fact and circumstances of each particular case before reach a conclusion.
In UAB v. Tai Soon Heng Construction Sdn Bhd, the court said “in a civil case and more so in a criminal case, the evidence of an expert on handwriting unsupported by cogent evidence showing the process by which he came to his conclusion is not worth the paper on which it is written and any reliance upon such evidence would, in our judgment, constitute a serious misdirection warranting interference by an appellate court”.
To end my submission, I conclude that an expert opinion is admissible in the court of law. However, the person who is testifying as an expert witness must first establish to the court that he is an expert as defined under Section 45(1) of the Evidence Act 1950. The burden of proof lies on the person who adduces such an expert witness. Upon the satisfaction of the court, the expert witness will give an opinion in the matter related to his expertise to assist the court in forming an independent opinion. It must be corroborated by other evidences to strengthen the advocate’s case.
Prepared By: TAN SHOO MAY A 130299
According to Keane, similar fact evidence means the disposition of accused towards wrongdoing of specific act of misconduct on other occasions. Generally, any evidence used to show that accused guilty of offences other than the charged framed in indictment is inadmissible for proving he or she is indeed committed of the charged offence. However, it is subjected into exception as propounded in the case of Makin v AG for New Wales where there are two limbs of rule, viz, exclusionary and inclusionary. Under the former limb, prosecution is forbidden to adduce evidence tending to show the guilty of criminal acts other than those covered in indictment. This is so eminent in confining the admissibility of evidence to the fact in issue and accused could prepare to answer the charge framed against him. By its inclusionary part however, evidence would be admissible if those facts are so relevant to determine whether the alleged act is designated or accidental and this constitute an exception to the general rule of inadmissibility of similar fact evidence. Moreover, any evidence that used to be applied in rebutting the defence also admissible as similar fact evidence under the rule of inclusionary.
In R v Smith, the accused was charged with murder of his futures wife. Prosecution has adduced the evidence that accused previous wives also dies in similar circumstances. Justice Lush ruled that the tendered similar fact evidence should be admissible as they show an irresistible inference that the occurrences of so many incidents (murdering) could not be happened unless it was designated and not coincidence. It is an evidence of system and not isolated in toto. Review on the case of Makin should be done in parallel with another case of DPP v Boardman. Boardman symbolizes a significance revolutionary on similar fact evidence. The question of admissibility of prior criminal acts must be determined by the judge in light of the degree of probative force possessed by the similar fact evidence. This is so pertinent in safeguarding the right of accused in having a fair trial. Compared with the Makin case, Boardman stressing more on the ratio of cogency rather than category enunciated in the Makin case. Thus, probative value should be the justification for the admissibility of similar fact evidence.
In Malaysia, Boardman principle has be adopted in the case of PP v Veeran Kutty & Anor as it has been affirmed by Jusice Peh Swee Chin. This has been followed by the case of Junaidi bin Abdullah v PP. Supreme Court reinforced that similar fact evidence is admissible and justifiable if the rationale of probative value outweighs its prejudicial value. Probative value is eminently rests on the probability of rendered evidence to draw desired inference or possible material disposition. In the case of R v Sims, the accused had been charged in an alleged homosexual offence with six counts of similar prior criminal acts. The similar fact evidence was admissible as those acts were strikingly similar. Striking similar is closely related with the quantum of probative value attached to the tendered similar fact evidence in determining the question of admissibility. However, it is subjected to the discretion of judges by applying their common sense guided to certain precise analogy or precedent.
Discussing similar fact evidence could not be diverted from the central principles of criminal justice. Wigmore stipulated that admissibility of similar fact evidence is depending on the deep tendency of human nature to punish due to the fact that he is a bad man and not he is guilty of offence charged. However, the negative side of similar fact evidence is degrading the quality of judgment as it is limited on the reflection of accused’s character rather than the merit of findings in the commission of crime. Judge would be influenced in considering the standard of proof. Proof of guilt might be fall short of proof beyond reasonable as the benefit of doubt in favour of accused has been deprived. However, it is not absolute to say that the evidence of bad character or previous offences never carries any weight. The development of similar fact evidence also could be reviewed in the Royal Commission on Criminal Justice. They has recommended that admissibility of similar fact evidence should not be restricted if there is a striking similarity in the evidence. The implied reasoning of this disposition could be divided into three grounds. First, people with criminal records are more likely to offend criminal acts. Second, the statistically verified effect where perpetrators of particular offence, namely sexual offender is likely to re-offend again. Third, the concealment of the record of an accused in certain extent of fact demonstrates a deception during the trial. The similar fact evidence becomes persuasive for the judges in making appropriate decision.
In the Evidence Act 1950 (EA 1950) of Malaysia, similar fact evidence is prima facie relevant as enshrined under section 14 and 15 of EA 1950. The illustrations shown in section 14 used to apply the elements of simultaneous possession, concurrency of events and similarity of the previous criminal acts with the current charge stated in the indictment. Moreover, state of mind of the offender would be considered as well in determining the admissibility of similar fat evidence. Even though inclusionary rule stipulated in Makin case comprises the consideration on Actus Reus and Mens Rea, section 14 of EA 1950 only concerned primarily on the state of mind. Under section 15 of EA 1950 similar fact evidence only would be admissible if it is relevant to determine whether the alleged misconduct is designated or accidental. Admissibility of similar fact evidence must be carefully applied in cases where the tendered evidence must has immediate rationale inference to the fact in issue as the principle has been adopted in our EA 1950.
In a nutshell, similar fact evidence only admissible after prosecution able to pass the test of positive probative rather than striking similarity. This underlying principle has been laid down in the case of R v Lunt, where the court explained that in order to decide whether the evidence is positively probative in the crime charged against accused, issue to which the evidence directed must be identifiable. For instance, similar fact evidence could be admissible when the issues involve identification, proving intention or rebut a defence of accidental offences instead of designated. The consideration on the aspect of bad character in admissibility of similar fact evidence is not neglected. As the admissibility of similar fact evidence always subjected to the discretion of the presiding judges to exclude the evidence if it would prejudices the minds of judges and out of proposition to its true of evidential value. Thus, balancing process would be taken as a great caution step to prevent discrimination towards innocent accused.
LUM CHOI YUEN A129960
Under Section 9 of the Evidence Act 1950, facts which are necessary to explain or introduce relevant facts are admissible. There are 5 classes of relevant facts which fall under this section, namely:
(1) Facts necessary to explain or introduce a fact in issue or relevant fact;
(2) Facts which support or rebut an inference suggested by a fact in issue;
(3) Facts which establish the identity of anything or person whose identity is relevant;
(4) Facts which fix the time or place at which any fact in issue or relevant fact happened; and
(5) Facts which show the relation of parties by whom any such fact was transacted.
Visual identification falls under the category of facts which establish the identity of the person whose identity is relevant. Visual identification can be done in two ways, i.e. recognition and identification.
“Recognition” was defined under the Oxford Dictionary as the “identification of a person from previous encounters or knowledge”; meanwhile “identification” was defined as the “action or process of identifying someone”, it is “a means of proving a person’s identity”.
There is a distinction between recognition and identification in which recognition is more reliable than mere identification. Where the complainant had recognized the accused, then it would constitute good evidence of identification.
Where an accused disputes identification, the prosecution will be put to proof that the accused is, beyond all reasonable doubt, the person who committed the offence. Visual identification by the eyewitness as to the identity of the accused is an admissible evidence in order to establish the prosecution’s case.
In the case of visual identification of the accused by one or more witnesses, it is useful to bear in mind the guidelines laid down in the case of R v. Turnbull which have been consistently applied in England and in a number of Commonwealth countries.
The guidelines in R v. Turnbull applies where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, it is imperative for the judge to warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The judge should direct the jury to examine closely the circumstances in which the identification by each witness can be made. Some of these circumstances may include:
The guidelines in R v. Turnbull was referred to, approved or applied by the Malaysian Court in the case of Dato’ Mokhtar Hashim v. PP; Yau Heng Fong v. PP; Rangapula v. PP; PP v. Chan Choon Keong etc., in which the court in PP v. Chan Choon Keong held that: “in dealing with evidence of visual identification, the court has to remind itself of the special need for caution before convicting the accused in reliance on the correctness of the identification.”
Failure to direct such warning may result in the conviction being quashed as was held in the case of Ja’afar bin Ali v. PP. The court held that: “where evidence of identification represents any significant part of the proof of guilt in an offence, the judge must warn the jury of the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula, but it must be cogent and effective and must be appropriate to the circumstances of the particular case. The failure to warn of the dangers of identification evidence may lead to the ordering of new trials and the quashing of convictions”.
In conclusion, the guidelines in R v. Turnbull is a requirement necessary as a matter of law where the case against the accused depended wholly or substantially on the correctness of one or more identifications of the accused, which is alleged by the defence counsel to be mistaken identification. The guidelines aimed at assessing the quality of the identification in which the court in R v. Turnbull said:
"In our judgement when the quality is good as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the Jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it".
"When in the judgement of the Trial Judge, the quality of the identifying evidence is poor as for example when it depends solely on a fleeting glance, or on a longer observation made in difficult conditions, the situation is very different. The Judge should then withdraw the case from the Jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification".
The circumstances in which the identification by each witness came to be made needs to be examined. A failure to follow the guidelines is likely to result in the conviction of the accused being quashed by a superior court, and an order for retrial of the case as the omission would occasion a failure of justice.
Prepared by: TAN SHOO MAY A 130299