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Evidence > Chapter 5 - Hearsay > Flashcards

Chapter 5 - Hearsay Flashcards

1
Q

HEARSAY

Overview

A

1) general principles
2) forms of hearsay
3) types of hearsay assertions
4) exceptions to rules against hearsay - res gestae
5) exceptions to rules against hearsay - statements by persons not called as a witness
6) exceptions to rules against hearsay - evidence given in subsequent proceedings
7) exceptions to rules against hearsay - documentary evidence in civil cases
8) exceptions to rules against hearsay - documents produced by computer
9) exceptions to rules against hearsay - evidence obtained under mutual assistance in criminal matters requests

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2
Q

GENERAL PRINCIPLES ON HEARSAY

Overview

A

1) Meaning
2) Rule against hearsay
3) Rationale for rules against hearsay
4) How to identify hearsay - general
5) How to identify hearsay - examples
6) Reviewing ruling on hearsay

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3
Q

GENERAL PRINCIPLES ON HEARSAY

Meaning of hearsay

A
  • whether or not a statement is hearsay depends on the purpose of adducing the statement, i.e. to prove the truth or not.
    1) Professor Cross on Evidence:
  • 2) Phipson on Evidence:
  • An out-of-court assertion amounts to hearsay when the purpose of adducing the assertion is to prove the truth of the contents of the statement
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4
Q

GENERAL PRINCIPLES ON HEARSAY

Rule against hearsay

A

1) Phipson on Evidence:
- Rule against hearsay excludes all statements, oral or written, which the probative force of it depends either wholly or in part in the credit of an unexamined person.
2) S.60:
- All evidence must be direct.
3) Lim Ah Oh & Anor v R:
- The rule against hearsay is found in S.60 of the Evidence Ordinance which mentions that all evidence must be direct.

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5
Q

GENERAL PRINCIPLES ON HEARSAY

Rationale for general rule

A

1) Not the best evidence - Teper v R:

  • Hearsay 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.

2) May be fabricated - PP v Ng Lai Huat:
- another reason is the danger that hearsay evidence may be concocted, fabricated and tailored to suit the witness’s testimony.

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6
Q

GENERAL PRINCIPLES ON HEARSAY

How to identify hearsay - general

A

1) Subramaniam v PP:

  • Whether an out-of-court assertion amounts to hearsay depends on the purpose of tendering the statement;
  • It is hearsay & inadmissible if it is adduced to establish the truth of what is contained in the statement;
  • It is not hearsay & admissible when it is adduced to establish the fact that it was made.

2) PP v Ng Lai Huat:
- Evidence of what another person has stated (whether verbally, in writing or otherwise) on a prior occasion is hearsay & inadmissible if the purpose of proving that any fact stated by that person on such prior occasion is to prove that it is true.

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7
Q

GENERAL PRINCIPLES ON HEARSAY

How to identify hearsay - examples

A

1) Subramaniam v PP:

  • the statements made, whether true or not, if believed by the accused, might reasonably induce him an apprehension of instant death if he failed to conform to their wishes.
  • the fact that it was made in some circumstances is relevant in considering the mental state & conduct of the person making the statement.
  • The statements therefore, did not amount to hearsay.

2) Ratten v R:
- HL held that the statement “get me the police please” made by the deceased is not hearsay because it was not tendered to prove the truth of the contents of the statement but it was tendered to show that the wife was in a state of fear.

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8
Q

GENERAL PRINCIPLES ON HEARSAY

Reviewing ruling on hearsay

A

PP v Ng Lai Huat:

Facts: One Jimmy Chua made demands through the former Director-General of Prisons.
His demands constituted ransom, as spelt out in the Act.
Defence objected on the basis that what Jimmy Chua had said amounted to hearsay because he was dead & unable to testify.

1) Held initially:
- The evidence of DG in relation to the purported demands did not amount to hearsay.
2) Subsequently:

  • The judge reversed his ruling & held otherwise since the purpose of tendering the statement was to establish the truth of the contents;
  • i.e. is it true that Jimmy said that, and what he said constituting ransoms under the Act?
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9
Q

FORMS OF HEARSAY

Overview

A

1) Statements
2) Documents - microfilm records
3) Documents - air tickets
4) Documents - AR card
5) Conduct

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10
Q

FORMS OF HEARSAY

Statements

A

PP v Robert Boon Teck Chuah:

  • “Instructions” made was tendered not to prove the truth of the contents of the statement;
  • But to show that the statements were in fact made.
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11
Q

FORMS OF HEARSAY

Documents - microfilm records

A

Myers v PP:

  • HL held that the microfilm records, which contained the identification numbers of stolen vehicles, whose makers were unidentifiable, were inadmissible hearsay.
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12
Q

FORMS OF HEARSAY

Documents - air tickets

A

R v Rice:

An air ticket with the accused’s name on it was inadmissible hearsay in so far as it was tendered to show that the accused booked the ticket.

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13
Q

FORMS OF HEARSAY

Documents - AR card

A

Alliedbank v Yau Jiok Hua:

  • entries on the AR (acknowledgment of receipt) cards could not be used to show that the notices of demand were delivered to the defendant.
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14
Q

FORMS OF HEARSAY

Conduct

A

Chanderasekara v R:

  • the gestures of a woman, whose throat had just been cut, made in answer to questions put to the her, identifying her assailant was held to be admissible.
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15
Q

TYPES OF HEARSAY ASSERTIONS

Overview

A

1) Express assertions in statements or conduct;

2) Implied assertions in statements or conduct.

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16
Q

TYPES OF HEARSAY ASSERTIONS

Express assertions in statements or conduct

A

1) Patel v Controller of Customs:
- the words “produce of Morocco” written on the bags could not be used to infer that the goods contained in the bags were produced in Morocco as without calling the makers, they were inadmissible hearsay.
2) PP v Robert Boon Teck Chuah:

  • “Instructions” made was tendered not to prove the truth of the contents of the statement;
  • But merely to show that the statements were made in order to establish that the statements were in fact made.
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17
Q

TYPES OF HEARSAY ASSERTIONS

Implied assertions in statements or conducts

A

1) Teper v The Queen:

  • the evidence of a prosecution witness that he heard a woman shouted “your place burning and you are going away from the fire” was held to be inadmissible hearsay;
  • The statement is in a form of an implied assertion of the presence of the accused at the scene.

2) R v Ratten:
- The words “get me the police please” could amount to an implied assertions of hearsay;
- The implication being that the victim was threatened by someone in the house.
3) R v Kearley:

  • Telephone calls were made to the accused’s premises seeking the supply of drugs;
  • It was held that this is an implied assertion of hearsay & therefore inadmissible.

4) Kok Ho Leng v R:

  • Telephone calls were made to the gambling premises;
  • It was ruled that they are hearsay but admitted nonetheless as part of res gestae (an exception to rules against hearsay).
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18
Q

RES GESTAE

Overview

A

1) Common law position
2) Position under EA
3) Recent examples
4) Academic opinions

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19
Q

RES GESTAE

Common law position

A

1) Only facts occurred simlutaneously - R v Bedingfield:

  • facts admissible were strictly limited to which have occurred simultaneously as the facts in issue.
  • When it is something that was said after everything was over, whatever it was and after it was completed, it is not part of res gestae (literally means “the thing done”).

2) cf. Preliminary ruling - Ratten v R:

  • judge must satisfy himself in a preliminary ruling that the statement was so clearly made in spontaneity & possibility of concoction can be disregarded.
  • test: whether the utterance of the words can be regarded as a true reflection of what was actually happening.

3) Example - R v Andrews:

  • The statement of the victim, who later died, was made within a few minutes from the attack.
  • The statement was made to the police regarding the identity of the assailants.
  • Held: The statement is admissible as part of res gestae;
  • It is for the judge to satisfy himself that the statement is made spontaneously & without concoction via preliminary ruling (Ratten v R) before admitting such statement.
  • Bedingfield is overruled & no longer a good law in England.
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20
Q

RES GESTAE

Position under EA

A

1) Association with S.6 - Kok Ho Leng v PP:

  • S.6 is the section which deals with what is known as res gestae;
  • A telephone message has some analogy to the shouting of the bystanders (referring to Teper v The Queen).

2) Example - Leong Hong Khie & Tan Gong Wai v PP:
- statements allegedly made by the informers to PW1 on various dates prior to the arrest of the accused on 18 April 1981 could be admitted under S.6 of the Evidence Act 1960 as part of the res gestae.

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21
Q

RES GESTAE

Recent examples

A

1) Mohd Khayry Ismail v PP (CA, 2014):

  • S.6 give statutory recognition to ‘res gestae’ principle in the widest form and is not restricted to the common law parameters.
  • Tape recording evidence or CCTV recording, etc. at common law will be admissible based on ‘res gestae’ principles as truth of its contents although they may be hearsay or even self serving statement.

2) Bandahala Undik v PP (CA, 2013):
- The res gestae principle is embodied in sections 6 to 9 and 14 of the Act.

Conditions for statements to be admissible as part of res gestae:

  • the statement can be made by the parties to the transaction or even by bystanders.
  • the statement should have been made at or about the same time the act was being done.
  • Contemporaneity or spontaneity must be shown before the statement is made admissible.
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22
Q

RES GESTAE

Academic Opinions

A

1) Chin Tet Yung:
- If res gestae was intended to constitute an exception to the hearsay rule, the appropriate place for S.6 would be among the hearsay exceptions grouped from S.17 to 40 EA.
2) Jeffrey Pinsler:
- S.6 to 11 EA are not intended to encompass evidence which is excluded by the subsequent provisions of the EA.
3) Mariette Peters:
- If s. 6 was intended to be an exception to the hearsay rule, there would have been no reason not to include it in s. 158 EA.
- Further, unlike other exceptions to the hearsay rule under ss. 32, 33, 73A(1) and 90A EA 1950, there is no reference to the maker of the statement in s. 6.

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23
Q

STATEMENTS BY PERSONS NOT CALLED AS A WITNESS

Overview

A

1) The law & pre-requisites
2) Statement as to cause of death
3) Statement in the ordinary course of business
4) Statement against the interest of the maker
5) Statement made in the course of investigation and/or discharge of public duties

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24
Q

STATEMENTS BY PERSONS NOT CALLED AS A WITNESS

The law

A

S.32

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25
Q

PRE-REQUISITES

Overview

A

1) Proof of unavailability of the maker
2) Mode of proving unavailability
3) Weight to be attached

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26
Q

PRE-REQUISITES

Proof of unavailability of the maker

A

Sim Tiew Bee v PP:

  • the fact that a witness is incapable of giving evidence must be proved first & it must be proved strictly;
  • In a civil case, a party can choose to waive the proof;
  • But in criminal case, strict proof of the witness who is incapable of giving evidence ought to be given first before anything else.
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27
Q

PRE-REQUISITES

Mode of proving unavailability

A

1) Dead - PP v Leong Heo Cheong:

  • can be done by way of oral evidence, tendering death certificate or invoke the presumption of death under S.108;
  • OTF, oral evidence of witnesses is used to prove that the maker is death.

2) Cannot be found - PP v Norfaizal Mat (No. 2):

  • Mere ignorance of the whereabouts of the witness is insufficient;
  • evidence should be adduced to show that reasonable efforts have been made without success.
  • prosecution and the police must make diligent search and reasonable exertion in order to procure the witness;
  • If the proceedings involved death penalty, more strenuous effort is expected in locating the maker of the statement.

3) Out of jurisdiction - Alliedbank v Yau Jiok Hua:

  • such a person is whose attendance cannot be procured without an amount of delay or expense.
  • sufficient evidence must be adduced to show that it will involve such a delay and expense as may seem unreasonable to produce the maker as a witness.
  • The question of the reasonableness of the delay or expense is for the court to consider according to circumstances of each case.

4) Examples of out of jurisdiction:

  • *** Borneo Co (M) Sdn Bhd v Penang Port Commission:
  • The claim is for RM5000+ & the witness had to travel from England to give formal evidence.
  • Held: His attendance could be dispensed with as the expense of travelling would exceed the amount of money claimed.
  • ***cf. Tempil Perkakas Sdn Bhd v Foo Sek Hong:
  • The claim is for RM20k.
  • There was no explanation for the absence of the makers of the documents except that they had left previous employment;
  • Held: The reason given is insufficient to dispense with the witness attendance.

5) Incapable of giving evidence:
- e.g. old age, physical incapacity.

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28
Q

PRE-REQUISITES

Weight to be attached

A

1) S.158:
- deals with weight to be attached for statements admissible under S.32 & 33.
2) PP v Mohd Jamil Yahya:

  • weight & credit must be examined with the greatest of caution;
  • this is more so when an accused faces a charge carrying a mandatory sentence of death.
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29
Q

STATEMENT AS TO CAUSE OF DEATH

Overview

A

1) The law
2) Rationale
3) Examples
4) Factors for consideration
5) Weight to be attached
6) Recent application

30
Q

STATEMENT AS TO CAUSE OF DEATH

The law

A

S.32(1)(a)

31
Q

STATEMENT AS TO CAUSE OF DEATH

Rationale

A

PP v Sinui Bakusoi:

  • It is made when the party is at the point of death & when every hope in the world is gone;
  • There is no motive for falsehood at that point & the mind is induced by considerations to speak the truth.
32
Q

STATEMENT AS TO CAUSE OF DEATH

Examples

A

1) Made to sister - Yeo Hock Cheng v R:

  • the deceased made a statement to her sister on the evening of her death that he was going out with the accused and that the accused had told her to put on man’s clothing.
  • The court held that the statement admissible as it is related to the circumstances of the transaction which resulted in her death.

2) Made before being killed - Pakala Narayana Swami v King Emperor:
- the statement by the deceased that he was proceeding to the place where he was later killed to meet the wife of the accused was admissible as it relates to some of the circumstances which resulted in his death.

33
Q

STATEMENT AS TO CAUSE OF DEATH

Factors for consideration

A

1) Proximity - Yeo Hock Cheng v R:

  • 1st statement: made 9 days before, inadmissible bcs too remote.
  • 2nd statement: made on evening of death, admissible.

2) Expectation of death - R v Santokh Singh:

  • under EA, there is no requirement that a person making dying declaration must be at the expectation of death;
  • but the weight attached to the statement must be lesser.

3) Nature of proceeding - Yeo Hock Cheng v R:
- statement under s. 32(1)(a) EA 1950 may be admissible in any case, either civil or criminal, in which the death of the maker of the statement is in question.
4) Credibility of the deceased maker - Chan Phuat Khoon v R:

  • credibility of the deceased maker must be assessed by the trial judge;
  • OTF, CA ordered re-trial as the trial judge failed to evaluate the credibility of the deceased woman before relying on her dying declaration.

5) Exact words - Toh Lai Heng v R:

  • need not be proved by writing;
  • but exact words spoken must be given.

6) Answer to questions - Naranjan Singh v PP:
- when DD is made in response to question, then the question should be recorded.

34
Q

STATEMENT AS TO CAUSE OF DEATH

Weight to be attached

A

1) The law:
- S.158
2) Application - PP v Mohd Jamil bin Yahya:

  • Weight & degree of credit to be attached must be examined with greatest caution as it cannot be verified through cross-examination;
  • This is so when an accused faces a charge carrying a mandatory sentence of death on conviction of the charge.
35
Q

STATEMENT AS TO CAUSE OF DEATH

Recent application

FC, 2020

A

Murugan Arumuham v PP:

  • The deceased made a statement that the accused caused the injuries to her to 6 different persons without confusion or pressure from anyone;
  • All the statements are consistent & similar with one another;
  • All the statements are corroborated with one another;
  • The statements are also recorded in writing by the IO & the record is admitted as exhibits;
  • FC held that CA & HC was right in admitting the statement under S.32(1)(a).
  • FC is satisfied that the dying declaration is relevant & admissible under S.32(1)(a).
36
Q

STATEMENTS IN THE ORDINARY COURSE OF BUSINESS

Overview

A

1) The law
2) Meaning of ordinary course of business & test
3) Personal knowledge whether necessary
4) Burden of proof

37
Q

STATEMENTS IN THE ORDINARY COURSE OF BUSINESS

The law

A

S.32(1)(b)

38
Q

STATEMENTS IN THE ORDINARY COURSE OF BUSINESS

Meaning of ordinary course of business & the test

A

Tan Mooi v Tengku Mohd Saad:

  • Statement made in the ordinary course of business need not be in any formal business setting;
  • it could be a communication between the husband and wife.
  • The test is whether it is the usual practice of the declarant to inform or discuss his or her affairs or business with the witness.
  • Statements also extend to both written & verbal.
39
Q

STATEMENTS IN THE ORDINARY COURSE OF BUSINESS

Personal knowledge whether necessary

A

1) Alliedbank v Yau Jiok Hua:
- S. 32(1)(b) is confined in its operation to statement based on personal knowledge of its maker.
2) Vaynar Suppiah v KMA Abdul Rahim (CA):
- a report was inadmissible because it was prepared & signed by persons who were not involved in the actual survey of the goods & therefore had no personal knowledge of their condition.

40
Q

STATEMENTS IN THE ORDINARY COURSE OF BUSINESS

Burden of proof

A

Syarikat Jengka Sdn Bhd v Abdul Rashid Harun:

  • The party intending to tender statement under s. 32(1)(b) must prove that it was made in the ordinary course of business.
  • A party could not refer to a document without showing that it was made in the ordinary course of business.
41
Q

STATEMENT AGAINST THE INTEREST OF THE MAKER

Overview

A

1) The law
2) Rationale
3) Factors

42
Q

STATEMENT AGAINST THE INTEREST OF THE MAKER

The law

A

S.32(1)(c)

43
Q

STATEMENT AGAINST THE INTEREST OF THE MAKER

Rationale

A

Dal bahadur v Bijai Bahadur:

  • in the ordinary course of affairs, a person is not likely to make a statement to his own detriment unless it is true.
44
Q

STATEMENT AGAINST THE INTEREST OF THE MAKER

Factors

A

1) Whether there was a motive - Taylor v Witham:
- may have no evidential value if it is shown that there was a motive for making the incriminating statement.
2) Whether the maker has the personal knowledge - Ward v Pitt:

  • the maker must have personal knowledge of the contents of the statement for the statement to be admissible.
  • OTF, although the statement was against the interest of the deceased, it was not certain that the deceased had personal knowledge of those facts & thus inadmissible.

3) Whether the maker is aware that it is against his interest - Tucker v Oldbury UDC:
- the maker must be aware at the time of making the statement that such statement would be against his interest for the statement to be admissible.
4) Whether there is exposure to criminal prosecution - PP v Froster Frant:

  • a risk of prosecution, however low it may be, would satisfy the said condition.
  • Mariette Peters opined that if the risk of prosecution is minimal then the court should consider the weight to be attached to the hearsay statement pursuant to s. 158 EA 1950.
45
Q

STATEMENTS MADE IN THE COURSE OF INVESTIGATION AND/OR DISCHARGE OF PUBLIC DUTIES

Overview

A

1) The law

2) Conjunctive or disjunctive

46
Q

STATEMENTS MADE IN THE COURSE OF INVESTIGATION AND/OR DISCHARGE OF PUBLIC DUTIES

The law

A

1) S.32(1)(i)

2) S.32(1)(j)

47
Q

STATEMENTS MADE IN THE COURSE OF INVESTIGATION AND/OR DISCHARGE OF PUBLIC DUTIES

Conjunctive or disjunctive

A

1) PP v. Michael Anayo Akabagu:

  • held that s. 32(1)(i) and (j) EA 1950 must be read conjunctively.
  • A disjunctive reading of ss. 32(1)(i) and (j) would be “too great a breach and an unacceptable inroad into the hearsay rule”.
  • i.e. conjunctive.

2) PP v Lam Peng Hoa:

  • S.32(2) uses the word “provisions” in the plural form instead of singular form to refer s. 32(1)(i) and (j).
  • The use of the word “where” in s. 32(1)(j) did not lead to absurdity which would require an approach beyond literal interpretation.
  • The word “and” between ss. 32(1)(i) and (j) is merely “an exposition of the draftmen’s preference of a conjunction as an ending to all the provisions in s. 32(1)”.
  • i.e. disjunctive.

3) Mohamad Fairus Omar v PP:

  • Each paragraph under s. 32(1) spells out separate set of circumstances where a statement can be made admissible.
  • Each paragraph can stand on its own.
  • Further, if it was intended that ss. 32(1)(i) and (j) were to be read conjunctively, the parliament would not have split the two provisions in two separate paragraphs.
  • i.e. disjunctive.

4) Kobra Taba Seidali v. PP:

  • Held that s. 32(1)(i) must be read conjunctively.
  • If it was intended that s. 32(1)(i) and (j) were to be read disjunctively, Parliament would not have used the word “and” between them.
    His Lordship further held that cases such as Lam Peng Hoa had failed to consider S.32 as a whole and the underlying jurisprudence relating to the hearsay rule.
  • i.e. conjunctive.

5) Siti Aisyah v PP (CA) (FC) (2019):

  • Held in obiter that S.32(i) & (j) should be read disjunctively.
  • i.e. disjunctive.
48
Q

EVIDENCE GIVEN IN SUBSEQUENT PROCEEDING

Overview

A

1) The law & scope

2) Conditions for admissibility

49
Q

EVIDENCE GIVEN IN SUBSEQUENT PROCEEDING

The law & scope

A

1) The law:

S.33

2) Dato’ Yap Peng v PP:

  • S. 33 EA 1950 is a statutory exception to the rule against hearsay;
  • All the statutory conditions provided therein must be strictly proved before the previous evidence of a witness can be admitted in the subsequent proceeding.

3) Lee Weng Sang v PP:

  • S.33 is the only way evidence given by a witness can be used in subsequent proceeding;
  • Judicial notice cannot be taken of evidence given by a witness can be used in previous proceeding.
50
Q

EVIDENCE GIVEN IN SUBSEQUENT PROCEEDING

Conditions for admissibility

A

1) GIVEN IN JUDICIAL PROCEEDING:
- The evidence was given in a judicial proceeding or before any person authorized by law to take it.
2) SAME PARTIES:
- The first proceeding was between the same parties as the second proceeding.
3) SAME ISSUES:
- The issues involved are the same or substantially the same in both proceedings.
4) INCAPABLE OF BEING CALLED:

The witness must be incapable of being called at the subsequent proceeding.

  • Ref. Kee Siak Kooi v. PP:
    the evidence in the previous proceeding was not admissible because there was no evidence that attendance of the witness in question cannot be obtained without unreasonable delay or expenses.
  • cf. Mohamed Kunju v.PP:
    the evidence of a doctor who had left the country was held admissible under S.33.

5) RIGHT TO CROSS-EXAMINE:
- The party against whom the evidence was tendered already had the right and full opportunity of cross-examining the witness in the first proceeding.

Application - CA, 2020

  • DNC Asiatic (See downloads);
  • PP v Anuar Mohamad
51
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Overview

A

1) The law & overview
2) Distinction with S.32(1)(b)
3) General conditions
4) Discretion of the court

52
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

The law & overview

A

1) The law:
- S.73A
2) Overview:

  • Allow documentary evidence to be admitted in civil proceedings.
  • Documents may be tendered:
  • – Through the maker himself (S.73A(1)(b); or
  • – As an exception to the hearsay rule (Proviso to S.73A(1)).
53
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Distinction with S.32(1)(b)

A

Alliedbank v Yau Jiok Hua:

  • Both S.32(1)(b) and 73A of the Act are exceptions to the hearsay rule.
  • S.32(1)(b) is confined in its operation to a statement which is based on the personal knowledge of the maker;
  • S.73A makes express provision for the admissibility of the statement even when its maker does not have personal knowledge of its contents though the supplier of the information to the maker must have had such knowledge.
  • S.32(1)(b) renders admissible only first-hand hearsay while s. 73A renders admissible second-hand hearsay as well.
54
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Conditions for applicability overview

A

1) Applicability:
- only applies to civil proceedings
2) Conditions overview - Alliedbank (Malaysia) v Yau Jiok Hua:

  • statement in document;
  • original document;
  • continuous record + performance of duty + supplied to maker by another person + supplier of the info must have had or might reasonably be supposed to have had personal knowledge.
  • not made by person interested;
  • maker is not available

3) Weight to be attached:
- S.73A(6)

55
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Statement

A

Alliedbank (Malaysia) v Yau Jiok Hua:

  • Include any fact that is ‘stated’ whether it was intended to be communicated or not.
56
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Made by a person in a document & meaning of document

A

S.73A(4):

  • Documents must have been written, made or produced by him with his own hand;
  • exclude statements produced by a computer though derived from information supplied by a person which may be admissible under S.90A EA.
57
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Reproduction of the original document

A

S.73A(1):

  • original documents must be produced.
58
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Continuous record & in the performance of duty to record

A

1) Continuous record - Alliedbank (Malaysia) v Yau Jiok Hua:
- relates to entries made progressively, and reasonably contemporaneous to the matters which they record, in a single document or series of documents comprising part of a system for the recording of information.
2) In performance duty to record - Alliedbank (Malaysia) v Yau Jiok Hua:

  • Solicitor who recorded information from his client must have done so in the performance of his duty to record;
  • e.g. the letters of demand prepared based on such information were made in the performance of a duty to record.
59
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Personal knowledge of the supplier

A

1) The law:
- S.73A(1)(a)(ii)
2) Application - Alliedbank (Malaysia) v Yau Jiok Hua:
- confined in its operation to the actual supplier of the information and not anybody else.

60
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Unavailability of the maker

A

1) The law:
- proviso to S.73A(1)(a)
2) Application - Alliedbank (Malaysia) v Yau Jiok Hua:

  • The maker must be unavailable by the reasons stated therein.
  • OTF, since Mr Thavarajah was outside the jurisdiction, the onus was on the plaintiffs to establish that his attendance could not be procured without an amount of delay or expense which under the circumstances of the case appeared to the court unreasonable.
61
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Not made by person interested

A

1) The law:

S.73A(3)

2) Alliedbank (Malaysia) v Yau Jiok Hua:

  • the statement must not have been made by a person interested at a time when proceedings were pending or anticipated, involving a dispute as to any fact which the statement might tend to establish.
  • e.g. solicitor.
  • OTF, the notices were supposedly prepared by a solicitor.
  • As a solicitor is an officer of the court and his role when representing a client is to ensure that justice is done irrespective of whether the outcome of the proceedings is in favour of his client or not, the notices were not prepared by a person interested within the meaning of s. 73A(3) of the Act.
62
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Discretion of court - the law

A

S.73A(2):

  • admit true copy instead of original documents;
  • admit even when the maker is available.
63
Q

DOCUMENTARY EVIDENCE IN CIVIL CASES

Discretion of court - admit even when the maker is available - examples

A

1) Arab Malaysian Merchant Bank Bhd v Chong On Foh Medical Hall:

  • Maker of the document was busy and could not attend court but he had attended court 5 to 6 times only to have the matter adjourned by the court.
  • The claim in question was only RM 5425.82.
  • The Court used the discretion under s. 73A (2) EA to admit the document despite the fact the maker was available but not called as a witness.

2) Kubota Agricultural Machinery Sdn Bhd v Shahrizan Sdn Bhd:

  • The action had been pending in court for 16 years.
  • The makers of the documents had left the company and were not traceable and even if traceable, their attendance could be procured without undue delay and expenses.
  • It was held that the Court could invoke the discretion to admit the documents.
64
Q

DOCUMENTS PRODUCED BY COMPUTER

Overview

A

1) the law & scope
2) meaning of documents produced by computer
3) examples of documents produced by computer
4) production of certificate
5) presumption of good working order
6) relationship S.90A(1) & S.90A(6)

65
Q

DOCUMENTS PRODUCED BY COMPUTER

The law & scope

A

1) The law:
- S.90A
2) Scope - Gnanasegaran Parajasingam v PP:

  • Whole provision must be read together;
  • Allows the production of computer-generated documents or statements as evidence, provided that conditions are fulfilled;
  • Effect: no longer necessary to call the actual teller or bank clerk who keyed in the data.
66
Q

DOCUMENTS PRODUCED BY COMPUTER

Meaning of documents produced by computer

A

1) The law:
- S.3
2) PP v Ang Soon Huat:

  • printout which was based on a mere regurgitation of the information fed into the computer - subjected to hearsay rules;
  • a product of the information processed and calculated by the computer - real evidence, not subjected to hearsay rules.

3) Approfit Sdn Bhd v Kent Sing Construction Sdn Bhd:
- S.90A does not extend to document printed by a computer via a word-processing software.
4) PP v Datuk Haji Sahar Arpan:
- both a mere computer printout and a document generated by computer have the benefit of s. 90A, and those documents would have been admissible.

67
Q

DOCUMENTS PRODUCED BY COMPUTER

Examples of documents produced by computer

A

1) Email - Petronas Khoo Nee Kion;
2) Bank statement - Gnanasegaran A/L Pararajasingam v PP;
3) Computerised bus ticket - Hanafi bin Mat Hassan v. PP;
4) DNA results - Ahmad Najib Aris v PP.

68
Q

DOCUMENTS PRODUCED BY COMPUTER

In the course of ordinary use

A

1) How to prove - Chua Boon Hoong v PP:

  • can be proved by way of oral evidence; or
  • by tendering certificate under S.90A(2).

2) Cannot use presumption under S.90A(6) - Hanafi Mat Hassan v PP:

  • S.90A (6) cannot be used to presume that a document is produced by a computer in the ordinary course of use;
  • Presumption under (6) cannot be used as a substitute for a certificate under s. 90A (2).

3) Erroneous approach - Ahmad Najib Aris v PP (FC):

  • Federal Court invoked S.90A (6) to presume that the chemist report containing computerized DNA results was produced by the computer in the course of its ordinary use;
  • there was no certificate under s. 90A (2) or any oral evidence to show that the report was produced by the computer in the course of its ordinary use.
  • Therefore it is arguably an erroneous approach by FC.
69
Q

DOCUMENTS PRODUCED BY COMPUTER

Production of certificate

A

1) The law:

S.90A(2)

2) Oral evidence available - Gnanasegaran Pararajasingam v PP:

  • Once oral evidence is adduced, there is no necessity to produce the certificate.
  • Certificate is permissive & not mandatory.

2) Whether certificate is necessary in all cases - Standard Chartered v Mukah Singh:
- the production of the certificate under s. 90A (2) is not necessary unless there is a challenge or dispute as to whether the document was produced by the computer in the course of its ordinary use.

70
Q

DOCUMENTS PRODUCED BY COMPUTER

Presumption of good working order

A

1) The law:
- S.90A(4)
2) Effect of certificate - Gnanasegaran Pararajasingam v PP:
- where certificate is produced, it will be presumed that the computer is in good working order & was operating properly.
3) Oral evidence - Hanafi Mat Hassan v PP:
- if oral evidence is used to establish requirements under S.90A(1), the matters presumed under S.90A(4) (i.e. that the computer is in working order) must also be proved by way of oral evidence.

71
Q

DOCUMENTS PRODUCED BY COMPUTER

Relationship S.90A(2) + (6)

A

1) S.90A(6) cannot be used to fulfil requirements of “course of ordinary use” under S.90A(2) - Hanafi Mat Hassan v PP:

  • S.90A (6) cannot be used to presume that a document is produced by a computer in the ordinary course of use;
  • Presumption under (6) cannot be used as a substitute for a certificate under s. 90A (2).

3) Erroneous approach - Ahmad Najib Aris v PP (FC):

  • Federal Court invoked S.90A (6) to presume that the chemist report containing computerized DNA results was produced by the computer in the course of its ordinary use;
  • there was no certificate under s. 90A (2) or any oral evidence to show that the report was produced by the computer in the course of its ordinary use.
  • Therefore it is arguably an erroneous approach by FC.

3) Academic opinions - Marriette Peters:

  • focus of S.90A(6) is on the the time of when the document is produced;
  • i.e. after commencement of proceeding or after commencement of investigation etc.
72
Q

EVIDENCE OBTAINED UDNER MUTUAL ASSISTANCE IN CRIMINAL MATTERS REQUESTS

The law & scope

A

1) The law:
- Chapter VA
2) Admissibility:
- S.90E

Evidence (19 decks)

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