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. 


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 BoardmanBoardman 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.


Judiciary system is implemented to safeguard the right of innocent people. Truth in each dispute should be ascertained before appropriate remedy could be given to claimant or victim. However, right of human should be reviewed in two faces of coin and thereon a fair play system should be able to cover the protection afforded to any suspect or even culprit. In order to uphold justice, science and law become interacted as forensic science had indeed closely linked with the administration of justice. Many scientific technologies have been applied in assisting investigation to elicit the truth. Without the assistance of those technologies, solving crime would be said to find a needle beneath an ocean. 

            Deoxyribonucleic Acid or DNA evidence is paramount evidence in identification. It would be highly incriminating against the accused as human being have distinct biological natures. If DNA found in identical with the accused, it would give a prima facie deduction that the accused has linked with the crime or present in the scene of crime. However, over stressing on the applicability of DNA would deny justice to the accused. Thus, DNA should only be referred as relevant evidence and standard of proving beyond reasonable doubt still lie on the burden of PP. Reliance on DNA evidence by the PP is so essential in persuading the court to accept it as material and conclusive evidence. In PP v Hanif Basree bin Abdul Rahman, DNA evidence has been debated until the apex court. The issue involved is whether the accused had sexual intercourse with the deceased. The vaginal swab of deceased revealed there accused was the major contributor for the seminal stain compared to tan unknown male. The court held that PP failed to prove that accused was the last person that had sexual intercourse with the deceased as the unknown man person also highly probable to the actual offender. The court referred to the DNA evidence found in the materials used to tie knots around deceased feet after the death. Therefore, DNA of accused could not be the conclusive evidence on convicting accused.

            Could DNA standing alone is suffice for warranting a conviction against the accused? This question will be answered if DNA evidence alone is enough to prove the elements of crime actus reus and mens rea. The sole presence of semen on vaginal swab will not mean that accused has raped the victim. The sexual intercourse could be happened with consent. It is only proved in term of actus reus which is sexual intercourse. Actual intention of the accused on committing rape is left in doubt. Thus, DNA evidence alone is not sufficient if it is corroborated with a reasonable explanation by the accused. The weight attached to DNA evidence will be less significant. However, if the evidence found near the scene of crime and there is no defence from the accused, DNA evidence will be sufficiently reliable for conviction. 

            DNA evidence will not be admissible if there is proof of fabrication. Before DNA evidence is presented, the evidence will go through investigation and laboratory processes up until the tendering on evidence during trial. In my humble opinion, the chain of evidence might not be well-guarded as there is a possibility of the evidence being fabricated. Sometimes, even the defence council has failed to challenge the genuine of tendered DNA evidence as it is not a transparent process and there is a lack of proof on the part of defence. Thus, the notion that scientific proof never tells lies could not be the most accurate. Contamination of DNA evidence even can happen while the investigation process going on. Any person in the crime scene might lend a hand to the victim and causing fabrication of evidence. Even though the duty of collecting relevant evidence is assigned to the independent Forensic team, but there is no surety that all evidences will remain intact and fresh as if the crime had just happened.

            Moreover, inaccuracy of DNA evidence might also occurred in the scientific conduct. The process involved in testing the DNA evidence would be definitely lengthy and complex. A small error at any stages of testing could impair the accuracy of evidence and causing mistaken judgment after trial. PP thereby should be able to convince the court on the correctness of evidence as it is so pertinent in safeguarding the accused from prejudiced. Furthermore, I opined that even though the accuracy of evidence tested in laboratory would be very high, but there is no one from the expert could 100% sure that identical DNA was genuinely from accused as human would not be free from error. Thus, DNA evidence must not be the sole evidence to warrant a conviction. It is merely a relevant fact and only becomes overwhelming significant after corroborated with other evidence. 

            Moreover, details of DNA evidence must be explained thoroughly by the expert maker. In addition to the details of DNA, procedures as how to conduct the test and he had arrived at the conclusion required to be disclosed for court determination. This is enshrined under s 51 Evidence Act 1950. Random occurrence ratio on similar DNA also considered a collateral weakness that might affect the evidential value of DNA evidence. In my opinion, despite DNA evidence would be relevant in proving a finding of guilt against the accused, it is not a definite evidence that could be solely reliable by the judge before imposing conviction. In other words, corroboration with others evidence is a must before a conviction warranted on the accused. Right of accused under judiciary system could not be strictly denied as the principle of law fortified that everyone is innocent until proven guilty. This presumption must be the frontier in putting the law in motion. Judges could not simply send the accused to the prison by merely based on the evidence of DNA. 


Similar fact evidence is prima facie admissible evidence? If yes, to what extent? This question can be well-examined if we consider the balance of probative value and prejudice value. Generally, irrelevant evidence is not admissible as prima facie evidence unless there is ‘additional value’ used to increase the value of weight attached in the tendered evidence. Cross has enunciated that probative force possessed by similar fact evidence squarely depends on three factors, viz: (a) cogency of evidence in showing bad disposition of the accused, (b) strength of the proof in making inference and (c) degree of relevancy between drawn inferences with the fact in issue. Those elements are prominently highlighted in striking similarity of evidence or relevant fact as coined by Lord Goddard CJ in R v Sims. Hence, if any similar fact evidence tendered for court proceeding, court will be the sole party to determine the admissibility of that particular evidence. In order to guide the judge in making an impartial decision, probative value and prejudice value will be considered. Thereon, if the latter value is more overwhelming compared to the former, adverse effect created towards the accused will be the seed of injustice. The similar fact evidence must be rejected in toto

In a deep discussion on similar fact evidence, normal question that always plays in our mind is why the accused should be acquitted since he or she was committing the same offence in the past. Public benefit should be considered in parallel with the probability of offender in committing same offence. However, we must bear in mind that any misconduct or bad behavior committed by accused in the past should not be a justifying ground for imposing heavier punishment. One thing that we should remember is that any bad disposition of the accused has no linkage with the current indictment. This has been well-illustrated in the case of Makin v A-G for New South Wales, whereby the prosecution is forbidden to adduce evidence tending to show the accused has been guilty of other misconducts or criminal acts outside the coverage of offence charged. Thus, similar fact evidence might be relevant, but the attached value of weight is much lower than other type of evidence. It should be corroborated with other relevant facts as it could not stand on its own weight. Interrelation with other relevant facts is a precondition for the judge in determining the admissibility of similar fact evidence. 

In conclusion, similar fact evidence could be accepted by the judge for attaining a fairer decision since it is applicable for reference in certain circumstances and eventually becomes a part of prima facie evidence. However, similar fact evidence might be abused and eventually creates an adverse inference over the accused in present indictment. If this is allowed to be happened, hidden danger on infringing the law presumption will be created. Heart of legal system will be totally damaged if either presumption of innocence until proven guilty or any doubt created in favour of accused has been abandoned. Spirit and functional purpose of legal system will be impaired if the hidden danger left with abuse by certain judges. Thus, even though there is no exhaustive list in identification of prima facie evidence. The yardstick that must be considered is no more than the balance of probative and prejudice values. 

Prepared by
 Lum Choi Yuen ^^

law of evidence