Prima Facie Journey

Hearsay evidence is one of the types of evidence that commonly gather in the process of investigation for both civil and criminal cases. As far as I concerned, hearsay evidence is somehow inadmissible in court. This is because someone testifying as to what someone else said is believed to be unreliable. Evidence given by a witness as to what someone else said and then speculating as to what the meaning of that statement means is the legal equivalent of spreading rumors. Getting back to the fold of history, the rule against the hearsay evidence roots from the Kings Court in England. In that stated Courts, individuals were often convicted by hearsay statements. It is often the memory and motives of human beings can be unreliable. Therefore, in Kings Court, many statements taken out from the context or even fabricated were used to punish those who disagreed with the King and his policies. This is the case in the Unites States where then, having their own body of law, this practice had been outlawed for giving a fair trial to every defendants.

Hence, how about the status of the hearsay evidence in Malaysia ? The discussion on it will start now and do enjoy the journey J

In the case of PP V Ng Lai Huat, Faiza Tamby Chik JC defined hearsay evidence as 

“Evidence by  a witness of what another person has stated.... on a prior occasion.... 

The Learned Judge then observed that such evidence is inadmissible for the purpose of proving that any fact stated by that person on such prior occasion is true. Nevertheless, hearsay had been admitted to prove that the accused had no reason to believe that the bicycles in respect of which he was charged to have assisted in concealing the stolen property were stolen. The evidence related to the statement of the transferer of the bicycles that those were bought by him. The evidence was admitted under section 14 of the Evidence Act 1950 which stated on the facts showing the existence of state of mind or of body or bodily feeling is then making that the hearsay evidence admissible to the court.

However, in maintaining the status of the hearsay evidence to be admitted to the court, it should be followed with the reliability and reasonableness of the said evidence. As stated by Mason CJ’s opinion who finds his favour in the case of R V Bain in the Court of Appeal Wellington, New Zealand which stated that :

' in treating the admissibility of hearsay evidence, it must be of such relevance and reliability that it can be reasonably said that the dangers in hearsay evidence do not exist or did not exist to an appreciable extent or, if they do they can be reasonably met by giving the jury an instruction....’

                                         

Then, how is it applies in the Malaysian provisions ? Well, in the case of Subramaniam v PP, De Silva of the Privy Council stated that 

“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 it is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it 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”

Thus the principle of having the hearsay evidence to be admissible in court is depending on the evidence itself whether to be use to explain the whole scene of the offence or just to be used as to strengthen the charge on the offence. Hence in the case of Chandrasekaran & Ors v PP really depict the whole situation of having to make the hearsay evidence be admissible to the court. In this case, the out of court statement ( which is referring to hearsay evidence) of the original witness repeated by the substitute witness was admitted because the purpose of such admission according to the court was not to prove the truth of the statement but the fact that it was made as explaining the conduct of the witness relevant under section 8 and his state of mind under section 14 of the Evidence Act 1950. 

It is significant to note here that the court admitted that out of court statement in order to be establish that there was a plot (conspiracy) to open a bank account in the name of a fictitious firm with the Overseas Banking Corporation and that the accused had knowledge of it. Surely, despite the fact that the statement was used to prove the offence, the court then fell into the straight jacket by saying that the object of admitting it was not to prove the truth of the statement but the fact that it was made. Such uncomfortable situations could easily be avoided by openly stating that a relevant fact shall be admitted even if it is hearsay evidence.

Thus, exceptions in the Malaysian Evidence Act 1950 does give rise to the admissibility of the hearsay evidence.  The exceptions are contained under various provision under the act, one of it is in section 13 which admits proof of a right or a custom in an indirect form on grounds of relevancy. Next, is in section 18 and 21 which stated the indirect admission by agents or by interested persons or by persons expressly referred to by the parties are made relevant. While in section 32 regarding the statements of relevant facts although hearsay are admitted through substitute witness if the original witness is dead or has become incapable of giving evidence, or cannot be found or his attendance in the court cannot be found or his attendance in the court cannot be procured without an amount of unreasonable expense or delay.