BASIC RULE - RELEVANCY
Section 5 Evidence Act 1950 provides:
Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
PP v. Haji Kassim
[1971] 2 MLJ 115 (Federal Court)
Whatever is logically probative is not necessarily admissible in evidence unless it is declared so under the Act.
Ong CJ (Malaya): Arising out of a murder trial in the High Court at Muar the learned trial judge felt constrained to refer the following questions to this court under provisions of Section 65(1) of the Courts of Judicature Act 1964, namely -
(1) Can an incriminating statement made by an accused to a psychiatrist or a medical officer be admissible against the accused and especially when it springs from the existence of the highest degree of confidence between the psychiatrist and the patient? Does this special
relationship affect its admissibility?
In all our courts the Evidence Ordinance provides a complete code on the subject. If any fact is sought to be introduced in evidence it must be relevant and admissible under Section 5 or one of the other sections following. On the other hand, whatever is logically probative is not necessarily admissible in evidence, unless it is so under the Ordinance. The answer to the first question, therefore, must be sought within the four walls of the Evidence Ordinance. If any fact is admissible under our code, then it must be receivable unless it is excluded by some other provision therein as, for instance, Section 24 to 26. In this light must be read the judgment of the Privy Council in Kuruma v. the Queen [1955] 2 WLR 223, 226-227 where Lord Goddard CJ said:
The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. ... There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against and accused. This was emphasised in the case before this Board of Noor Mohamed v. The King [1949] AC 182, 192 and in the recent case in the House of Lords, Harris v. DPP [1952] AC 694. If, for instance, some admission of some piece of evidence, eg a document, had been obtained from the defendant by a trick, no doubt the judge might properly rule it out.
Prepared By: THAN CHONG SENG (JOHNSON) A122879
Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
PP v. Haji Kassim
[1971] 2 MLJ 115 (Federal Court)
Whatever is logically probative is not necessarily admissible in evidence unless it is declared so under the Act.
Ong CJ (Malaya): Arising out of a murder trial in the High Court at Muar the learned trial judge felt constrained to refer the following questions to this court under provisions of Section 65(1) of the Courts of Judicature Act 1964, namely -
(1) Can an incriminating statement made by an accused to a psychiatrist or a medical officer be admissible against the accused and especially when it springs from the existence of the highest degree of confidence between the psychiatrist and the patient? Does this special
relationship affect its admissibility?
In all our courts the Evidence Ordinance provides a complete code on the subject. If any fact is sought to be introduced in evidence it must be relevant and admissible under Section 5 or one of the other sections following. On the other hand, whatever is logically probative is not necessarily admissible in evidence, unless it is so under the Ordinance. The answer to the first question, therefore, must be sought within the four walls of the Evidence Ordinance. If any fact is admissible under our code, then it must be receivable unless it is excluded by some other provision therein as, for instance, Section 24 to 26. In this light must be read the judgment of the Privy Council in Kuruma v. the Queen [1955] 2 WLR 223, 226-227 where Lord Goddard CJ said:
The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. ... There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against and accused. This was emphasised in the case before this Board of Noor Mohamed v. The King [1949] AC 182, 192 and in the recent case in the House of Lords, Harris v. DPP [1952] AC 694. If, for instance, some admission of some piece of evidence, eg a document, had been obtained from the defendant by a trick, no doubt the judge might properly rule it out.
Prepared By: THAN CHONG SENG (JOHNSON) A122879
The Seed of Evolution in Identification: R v Turnbull
‘The person in the position of number four has raped me that night, Sir. He could be well-recognized as he is having long white beard and black skin’. Well, could this statement solely relied by the prosecution in proving prima facie case and beyond reasonable doubt at the end of prosecution? Identification parade used to mean as a group of person including the suspected one on having committed crime assembled for the purpose of determining whether witness can identify the suspect without difficulty. Under section 9 of Evidence Act 1950 has enunciated that any facts used to establish the identity of anything or person could become an admissible evidence for court adjudication. The gist of identification could be well-illustrated in R v Turnbull.
Guidelines established in Turnbull have followed by various jurisdictions all over the world including Malaysia. Two appellants have been convicted for conspiracy to burglar a bank. In preparing for the intended burglary, both appellants put up a fake notice to induce the money depositors to drop their money in a letter box as the night save was said to be out of order. In the course of trial, several evidences were tendered and witnesses being called for identification purpose. The principal witness has affirmed the fact that from 62 yards away of the front door, he saw a man left the doorway and pavement with his shoulder hunched near to the night save. He fortified his testimony unambiguously as the street was well-lit. PP on the way to prove prima facie case, has conducted examination in chief over second witness in highlighting the issue of identification and recognition against appellants. In the subsequent testimony, it is obviously revealed that the witness able to recognize that the offender was indeed Turnbull.
Moreover, a woman police constable has given evidence before the court by saying that she was on duty and witnessed a blue van with appellants travelling in high speed. She failed to trap the van even though there was an effort to trail after. However, she managed to ascertain the fact that Turnbull was stepping out from bushes, the place where a number of housebreaking implements eventually discovered. Defence counsel has argued that the testimony of principal witness should not be attached with any weight in making an adverse inference of guilt over the appellants. Reasonable doubt is successfully created as the learned judge failed to warn the jury on the hidden danger of low quality identification evidence. However, after the full determination of the tendered evidence and testimonies, the court opined that the corroboration of the evidence is suffice to prove the case beyond reasonable doubt. The description contained in each testimony was consistent with the actual appearance of appellants.
In my humble opinion, Turnbull case could be discussed in few significant aspects. First and foremost, judge is required to warn himself (in the context of Malaysia judiciary system) on the dangers of identification evidence. The correctness of identifications against the accused should not be mistaken as the extent of reliance must be balanced with accuracy of identification. In addition, possibility of mistaken witnesses should be highly remarked as the accused could not be convicted on bare allegation in the interest of justice. Moreover, the distinction between recognition and identification should be stressed on and we should bear in mind that even the witness has affirmed the recognition against the accused, reminder on hidden danger still required. Secondly, the circumstances in which the relative witness came to affirm on the identification or recognition must be determined as well. Is there a long observation by the particular witness? Is the distance is possible for the witness to affirm the identification? Those are among the significance circumstances or questions that should not be out of attention as they would be the yardsticks of quality for tendered identification evidence. If quality attached to the identification is poorer, than the hidden danger on mistaken witness will be greater. It should be undoubtedly avoided.
Last but not least, identification evidence should be corroborated in affirmative before the judge could order conviction on the accused. Accused is allowed to create doubt against any tendered identification evidence. For instance, the non-compliance of identification parade procedures could be one of the best grounds of defence in vitiating the strength and weight of identification evidence. Furthermore, defence of alibi would be the strongest sworn to impair the spider web built by the consistent identification evidence.
-LUM CHOI YUEN A129960
THE CASE OF TEPER AND ITS FOUR JUSTIFICATIONS.
Rationale: Why is Hearsay Excluded?
The overall reason why hearsay evidence is excluded is because it is unreliable. It’s all about trying to get to the truth of the matter and we want the best, most reliable evidence.
The case of Teper gives us four justifications for the rule:
In Teper v The Queen [1952] 1 AC 480 Lord Normand at p 486 stated:
“The rules against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.:
i) It is not the best evidence.
- The best evidence would be having the person there, in court to give their version of what happened.
- Although it may be the best evidence if the maker of the statement is dead or otherwise unavailable.
ii) It is not delivered on oath.
- The person who is giving the statement isn’t in the solemn surroundings of the court.
- What someone might say in an informal gathering is not the same thing they might tell the court if they are obliged to.
- Even if hearsay is made on oath it is not admissible: Haines v Guthrie (1884)
- Subsidiary justification.
iii) The truthfulness and accuracy of the person whose words are spoken to by another witness
cannot be tested by cross‑examination.
- Fundamental justification.
- Truthfulness - person who made the statement won’t be in the witness box and available for cross-examination.
- Accuracy - person may not be deliberately lying but there issues of inaccuracy (distortion, misunderstanding, not hearing the whole story etc).
iv) The light which his demeanour would throw on his testimony is lost.
- Were they doing it as a joke?
- Not being able to see how the statement was delivered.
- Subsidiary justification.
In the case of Teper v The Queen, there was a charge of arson and the Crown wanted to lead evidence involving a police officer recounting an out of court assertion by another person. It was sought to be proved by the out of court statement that the other person had said to Teper that his place was on fire and he was rushing away, which was inviting the inference that Teper had set the fire. Lord Normand then stated 4 concerns about hearsay evidence as illustrated above.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056
The Azaria Chamberlain Case
On the 17th August 1980, the Chamberlain family was camping at Uluru in Australia's Northern Territory, when at around eight o'clock at night, they heard a cry from the tent where their ten week old baby girl and four year old son were sleeping. Rushing to the tent, the mother of the child, Lindy saw a dingo near the tent's entrance and upon entering, realised with horror that her baby daughter Azaria, was missing and all that remained was a pool of blood on the floor. The police arrived and a search was organized but no traces of the baby were found.
The Chamberlains were interviewed the next morning and only some of the bloodstained items were removed from the tent, with many being left behind. The family was interviewed again later on that same day, by a different officer who thought the Chamberlains' recounts of the previous night were suspicious. A week passed and no new evidence was found, that is, until a tourist found Azaria's vest and jumpsuit. But despite this new piece of evidence, the crime scene was not sealed off and a full examination of the clothing was never conducted. This lack of proper crime scene and evidence analysis led the police to believe that Lindy Chamberlain was lying about her story. The lack of dingo bite marks and saliva on Azaria's jumpsuit and the fact that the baby's shoes were still tied inside the jumpsuit while the vest was inside out, heightened the police's suspicion even further. In 1981, it was however, concluded that Azaria was indeed taken by a dingo, allowing Lindy and Michael Chamberlain to at last get over the accusations after the tragic loss of their child and move on with everyday life.
This was however, not to be the case, because after a later analysis of the baby's clothing, it was found that there was a bloody handprint in the shape of a women's hand, reopening the case in 1982. Analysis of the Chamberlains' car also revealed a pair of scissors, baby's blood and some experts claimed that the rip marks on the baby's clothing were actually scissor stab marks. And so it was with this new evidence that another court case was held on the 2nd February, 1982. The case concluded for what was thought to be the last time, when Lindy was convicted with murder of her daughter and sentenced to life in prison. After serving six years in prison, there was a turn in the case when baby Azaria's jacket was unbelievably, found partly buried at Uluru. Just five days later, Lindy was immediately released from prison, but to this day, nobody knows the exact truth and we'll probably never know.
The Chamberlains were interviewed the next morning and only some of the bloodstained items were removed from the tent, with many being left behind. The family was interviewed again later on that same day, by a different officer who thought the Chamberlains' recounts of the previous night were suspicious. A week passed and no new evidence was found, that is, until a tourist found Azaria's vest and jumpsuit. But despite this new piece of evidence, the crime scene was not sealed off and a full examination of the clothing was never conducted. This lack of proper crime scene and evidence analysis led the police to believe that Lindy Chamberlain was lying about her story. The lack of dingo bite marks and saliva on Azaria's jumpsuit and the fact that the baby's shoes were still tied inside the jumpsuit while the vest was inside out, heightened the police's suspicion even further. In 1981, it was however, concluded that Azaria was indeed taken by a dingo, allowing Lindy and Michael Chamberlain to at last get over the accusations after the tragic loss of their child and move on with everyday life.
This was however, not to be the case, because after a later analysis of the baby's clothing, it was found that there was a bloody handprint in the shape of a women's hand, reopening the case in 1982. Analysis of the Chamberlains' car also revealed a pair of scissors, baby's blood and some experts claimed that the rip marks on the baby's clothing were actually scissor stab marks. And so it was with this new evidence that another court case was held on the 2nd February, 1982. The case concluded for what was thought to be the last time, when Lindy was convicted with murder of her daughter and sentenced to life in prison. After serving six years in prison, there was a turn in the case when baby Azaria's jacket was unbelievably, found partly buried at Uluru. Just five days later, Lindy was immediately released from prison, but to this day, nobody knows the exact truth and we'll probably never know.
The Shirley McKie Story
On 6 January 1997, the body of Marion Ross was found in her home in Kilmarnock. She had been stabbed multiple times during what is presumed to have been an act of housebreaking. David Asbury, a handyman who had once worked on the Ross house, developed as a suspect. A fingerprint found on a tin box in Asbury's home was reported to be that of Marion Ross by examiners at the Scottish Criminal Records Office. The SCRO also reported they had identified a fingerprint found on the gift tag on an unopened Christmas present inside the Ross home as that of David Asbury. While checking other, unidentified fingerprints from the victim's home, examiners reported one of those prints to have been identified as Constable McKie's.
In February 1997, a British policewoman, Shirley McKie, was accused of perjury after testifying at a murder trial, stating that she hadn't been in the murder victim's house, where her fingerprints were later supposedly found. Shirley's house was searched and she was taken back to the police station where she herself was strip-searched and detained because of a controversial fingerprint that was found at the victim's house. The Scottish Criminal Records Office, responsible for the detection of Shirley's thumbprint at the crime scene, had 4 experts who certified the authenticity of the fingerprints that they certified, definitely belonged to Shirley. However, Shirley persisted her innocence with the matter and was acquitted during her trial, saved from a potential 8 years imprisonment after two American fingerprinting experts endorsed that the fingerprint did not belong to Shirley. After much media activity, legal action and controversy, Michael Russell, a member of Scottish parliament, successfully requested different fingerprinting experts from around the world to verify the ownership of this fingerprint and have had to date, 171 certifications from 18 different countries that the fingerprint did not belong to Shirley. The main concern with the entire issue was not only its affect on Shirley's career, but also because it concerns the accuracy of the Scottish Criminal Record Office's earlier assertions. A civil trial, expected to be 5 weeks long, is yet to be held on the 7th February 2006, almost ten years after the beginnings of the perjury case. The death of Marion Ross, the murder for which Shirley originally testified against, remains however, yet a mystery.
In February 1997, a British policewoman, Shirley McKie, was accused of perjury after testifying at a murder trial, stating that she hadn't been in the murder victim's house, where her fingerprints were later supposedly found. Shirley's house was searched and she was taken back to the police station where she herself was strip-searched and detained because of a controversial fingerprint that was found at the victim's house. The Scottish Criminal Records Office, responsible for the detection of Shirley's thumbprint at the crime scene, had 4 experts who certified the authenticity of the fingerprints that they certified, definitely belonged to Shirley. However, Shirley persisted her innocence with the matter and was acquitted during her trial, saved from a potential 8 years imprisonment after two American fingerprinting experts endorsed that the fingerprint did not belong to Shirley. After much media activity, legal action and controversy, Michael Russell, a member of Scottish parliament, successfully requested different fingerprinting experts from around the world to verify the ownership of this fingerprint and have had to date, 171 certifications from 18 different countries that the fingerprint did not belong to Shirley. The main concern with the entire issue was not only its affect on Shirley's career, but also because it concerns the accuracy of the Scottish Criminal Record Office's earlier assertions. A civil trial, expected to be 5 weeks long, is yet to be held on the 7th February 2006, almost ten years after the beginnings of the perjury case. The death of Marion Ross, the murder for which Shirley originally testified against, remains however, yet a mystery.
Presumption : PP v. Chung Tshun Tin & Ors [2008] 1 MLJ 559
Highlighted in paragraph 25 and 26 per Hamid Sultan JC (as he was then)
- continued from Presumption by Siti Nurhakimah Mohd Wadzir in Journals.
- continued from Presumption by Siti Nurhakimah Mohd Wadzir in Journals.
PP v Chung Tshun Tin & ors | |
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