Circumstantial Evidence : To Establish A Prima Facie Case

The strength on the evidence will somehow rely on the facts of the case and the ability of the evidence to stand by itself. All we aware, circumstantial evidence is unable to stand alone without the support from the other circumstantial evidence.

Some of the comment given by Brandon Baum, a commentator from California in which he says that:

“Circumstantial evidence is typically more reliable than direct evidence. Unfortunately, most people don't understand what circumstantial evidence is.

The question here is people or even the prosecution per se does not relied on the circumstantial evidence only because they do not know what the circumstantial evidence itself is. To be clearer, we can look into the simple illustration of circumstantial evidence that had been given by Pollock CB in the Exall’s case (1866) which it has been said that circumstantial evidence is to be considered as a chain. Each piece of the evidence is a link in the chain and if any one of the link breaks, the chain would fail.  

In any other words, it is more like the case of a rope comprised of several cords.  One strand of cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus in circumstantial evidence, there may be a combination of circumstances, no one of which would raise a reasonable conviction , or more than a mere suspicion; but the whole taken together may create a conclusion of guilt with as much certainty as human affairs can require or admit of. This means that a circumstance is unable to stand alone without the support from the other related circumstances. If the prosecution wants to use the circumstantial evidence in their case, they have to make sure that the evidence produce must be a strong evidence and does not creates doubts which can cause the prosecution failed in their case.

There are few cases that we should look carefully the facts and analyze it so that we are able to identify whether the circumstantial evidence that adduce to the court are strong enough to prosecute the accuse. In the case of Sunny Ang v PP [1966] 2 MLJ 195 , it was one of the case which was the prosecution team successfully using the circumstantial evidence in their case. In this case, the appellant was charged and convicted of the murder of his girlfriend despite the fact that the body of the deceased was never discovered. The facts adduced by the prosecution were so compelling that the court reached the irresistible conclusion that the appellant had murdered the deceased. 

Among the facts adduced were:-

(a)    The appellant was declared a bankrupt a year earlier and remained one on the day the   offence was      alleged to have been committed;

(b)    The deceased was insured against accidents with several companies;

(c)    The appellant’s mother was named as a beneficiary in some of the insurance policies;

(d)    The deceased made a will naming the appellant’s mother as the sole beneficiary;

(e)    The deceased was a novice diver and yet the appellant had allowed her to dive in dangerous waters;

(f)     The appellant did not go down to the waters himself when the deceased had failed to resurface;

(g)    The deceased had not worn gloves which were common when looking for corals;

(h)    Six days after the incident, flippers were found which were severed at the strap and cut in two places;

(i)      Less than 24 hours after her disappearance, the appellant made a formal claim.

In the other case, which was substantially based on the circumstantial evidence when there was no direct evidence can be found. This is the case of Juraimi Hussin & 2 Others v PP, which is  the prosecution adduced the following relevant facts:-

(a)    The decapitated body of the deceased was recovered from the house occupied by the three appellants;
(b)    The deceased’s death was caused by the severance of his head by a weapon similar to the axe recovered at the same premises;
(c)    The day before his death, the deceased withdrew RM300,000 from his bank accounts and the appellants embarked on a spending spree, spending more than RM200,000, payment being made in RM1,000 notes which were in the same denomination of notes in which the deceased had earlier withdrawn;
(d)     The second and third appellants had financial difficulties;
(e)     Certain items belonging to the deceased such as his identity card, watch and shoes were found in the appellant’s possession;
(f)      The deceased was last seen alive in his car with the second appellant
(g)     The body of the deceased was buried in a hole in the ground soon after he was killed. This meant that the hole must have been dug earlier, leading to the inference that there was a pre-arranged plan on the part of the appellants to kill the deceased.

The two cases above illustrate how circumstantial evidence can be strong enough to secure a guilty charge. Therefore, it should also be noted that circumstantial evidence may not be strong enough to even establish a prima facie case. However, in the case of PP v Sarjit Kaur, the prosecution relied solely on circumstantial evidence in attempting that the accused had murdered her husband. Amongst the facts adduced:- (a) The accused was an unfaithful wife (b)The accused was ill-treated (c)The accused was in a position to benefit financially from the death of her husband (d)Trances of blood stains were found on a dress belonging to the accused; (e)The accused had insisted that the maids together with the three children go to bed earlier than usual In this case, Visu Sinnadurai J ruled that the prosecution had failed to establish a prima facie case. He quoted that ; “…each of the strands of the circumstantial evidence adduced by the prosecution is so brittle that even when  tied together they are not strong enough for the prosecution to hold on to. In fact, the entire string of strands  does not withstand the weight, but merely snap through lack of sufficient evidence, leaving the prosecution   merely to be clutching at straws, not ropes..”

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In the other case that the prosecution relied on circumstances evidences is the case of PP v Hanif Basree Abdul Rahman [2008] 3 MLJ 161 but they failed to establish the prima facie case as in the previous case. In this case, the prosecution relied on the following pieces of evidence, namely that:-

(a)   There was no sign of break in into the deceased’s house, suggesting that her killer was someone known to her;

(b)   The accuse had an intimate relationship with the deceased and had access to her house;

(c)    The accused was the last person seen with the deceased and was the last person to have had sexual intercourse with her;

(d)   The DNA profile of the accused present in the face towel was proof that he was responsible for choking  the deceased;

(e)   The accused’s physique and weight had fit the description that some of the bruises found on the deceased were caused by the weight of a heavy person pressing onto her body;

(f)     The accused’s height enabled him to climb over the wall at the back of the condominium compound to escape after committing  the murder

(g)   The conduct of the accused in shaving his pubic hair and clipping his fingernails before giving himself up showed his anxiety  and should be viewed as making some preparations to cover his tracks.

In spite of the evidence adduced by the prosecution,  it was held that there were too many doubts in the prosecution case and that the inferences made, which could be viewed against the accused were more favourable to him. The prosecution therefore, had failed to establish a prima facie case.

From the cases above, it shows how the judge view and approach for circumstantial evidence. Most of the judge will look into the same approach where they think that the circumstantial evidence is like a rope which needs to be tied together so that it will become stronger.  This is supported by the judge in the case of Chan Chwen Kong v PP [1962] 1 MLJ 307 where the judge quote that :

“It must, however, be borne in mind that in cases like this where the evidence is wholly circumstantial what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope. The real question is: is that rope strong enough to hang the prisoner?”

To make it clear, we can look into the case of Karam Singh v PP [1967] 2 MLJ 25, where the judge said that ;

“In a case where the prosecution relies on circumstantial evidence, such evidence must be inconsistent with any other hypothesis than that of the guilt of the accused.”

In conclusion, in order to rely on the circumstances evidence, the prosecution has a heavy duty to ensure that the evidence is strong enough and does not create doubts which can cause the prosecution failed to establish a prima facie case. During the process of collecting the evidence, if a strand of the rope is missing, then the court will look whether the strand will give a minor or major effect to the evidence to be relevant in the court. 

"Is that rope strong enough to hang the prisoner?” in Chan Chwen Kong v Public Prosecutor [1962] 1 MLJ 307

Circumstantial evidence may be defined as any fact arising from the existence of which the judge may infer the existence of a fact in issue. It is not the evidence direct to the point in issue, but evidence of various facts other than facts in issue which are so connected with the facts in issue that taken together they form a chain of circumstances leading to an inference or presumption of the principal fact.

For example, at the trial of A for murder, a witness says that he saw A carrying a gun at the premises of the house in which the deceased was found shot dead 10 minutes later. Here what the prosecution is actually trying to do is that by way of circumstantial evidence it is inviting the Court to infer hat the accused shot the deceased.

In Chan Chwen Kong v Public Prosecutor [1962] 1 MLJ 307, the appellant appealed against his conviction for murder. The evidence against the appellant was circumstantial and Pike CJ (Borneo) in giving the judgment of the Federal Court allowing the appeal said:

“The onus of the prosecution where the evidence is of the circumstantial nature is a very heavy one and that evidence must point irresistibly to the conclusion of the guilt of the accused. If there are gaps in it, then it is not sufficient.”

Cases:

1.      Karam Singh v PP [1967] 2 MLJ 25

The appellant appealed against his conviction for murder. There was no eyewitness of the attack on the deceased, the prosecution case was based entirely on circumstantial evidence. Ong Hock Thye FJ, as he was then, in giving judgment of the Federal Court said:

‘In case where the prosecution relies on circumstantial evidence, such evidence must be inconsistent with any other hypothesis than that of the guilt of the accused.’

2.      Muniandy v I [1973] 1 MLJ 179

Appellant was charged with rape, it appeared that the only evidence which could corroborate the evidence of the complaint was circumstantial evidence. The appellant was convicted and he appealed to the Federal Court. Ong CJ in giving judgment of the Federal Court allowing the appeal said:

‘Wherever circumstantial evidence is relied on by the prosecution in building up its case against an accused person, any such piece of evidence must tend only in one direction, that is to say, suggest or lend support to an inference of guilt. This evidence, if capable of an innocent interpretation – or ambiguous, as being equally consistent with guilt or innocence – should never be placed before the jury as circumstantial evidence strengthening the prosecution case. Any summing-up which fails to explain this intelligibly to the jury is a serious misdirection. All the more so, where, in the instant case, circumstantial evidence more consistent with innocence than guilt was represented to the jury as corroboration of the complainant's evidence. On the other hand, where the circumstantial evidence is seen to be strongly in favour of the defence, a proper trial requires that, in the interests of justice, this fact be brought to the notice of the jury and not passed over as an irrelevant detail.’

3.      Sunny Ang v PP [1966] 2 MLJ 195

The appellant had been convicted of murder. One of the matters relied on at the hearing of the appeal was that the learned trial judge had erred in law in failing adequately to direct the jury on the danger of convicting an accused person upon circumstiantial evidence. In his summing up the learned trial judge had said:

‘The second question to which I must draw your attention is that the question in this case, depending as it does on circumstantial evidence, is whether the cumulative effect of all the evidence leads you to the irresistible conclusion that it was the accused who committed this crime. Or is there some reasonably possible explanation such, for example – 'Was it an accident?'.’

Later he said:

‘Now, as I told you earlier on, one of the points about circumstantial evidence is its cumulative effect. Any one of these points taken alone might, you may think, be capable of explanation. The question for you is: where does the totality of them, the total effect of them, all lead you to? Adding them together, considering them, not merely each one in itself, but altogether, does it or does it not lead you to the irresistible inference and conclusion that the accused committed this crime? Or is there some other reasonably possible explanation of those facts?

The prosecution case is that the effect of all this evidence drives you inevitably and inexorably to the one conclusion and one conclusion only: that it was the accused who intentionally caused the death of this young girl.’

It was held in the Federal Court that those directions were perfectly adequate in a case where the prosecution was relying on circumstantial evidence.

The following appears to be the general principles observed by the Courts when dealing with a case merely on circumstantial evidence:

1.      Every fact or circumstantial on which the prosecution relies must be clearly proved beyond the shadow of any doubt;

2.      The incriminating circumstantial must lie incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than the guilt of the accused;

3.      The circumstantial from which the conclusion of guilt is to be drawn should be fully establishes, i.e. there must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused; and

4.      The circumstantial should be of a conclusive nature and tendency.

Another issue which has been the subject of judicial observation is whether the standard of proof varies where the case for the prosecution rests entirely on circumstantial evidence. In other words, the prosecution is unable to present direct evidence of the facts in issue and has to rely on evidence of relevant facts from which the facts in issue may be inferred. Normally the prosecution will have to adduce evidence of a variety of relevant facts which must cumulatively and in combination establish the case against the accused beyond a reasonable doubt.

A useful metaphor is a cord or rope which consists of a number of strands (each strand representing an item of circumstantial evidence). As the rope is as strong as its strands, a single strand may not be sufficient to establish accused’s guilt. However, the combined effect of several strands may justify his conviction.

The position with regard to proof based on circumstantial evidence is that the standard of proof remains the same whether there is direct evidence of the elements of the crime or not. The Court of Appeal states in PP v Oh Laye Koh [1994] 2 SLR 120;

‘There is one and only of principle at the close of the trial, that of guilt beyond reasonable doubt, and this principle applies equally to cases where he prosecution evidence is wholly circumstantial as it does to those where direct evidence is adduced.’

Where direct evidence of the elements of the crime is unavailable, the court may be more cautions before finding that the case has been proved beyond a reasonable doubt. Circumstantial evidence can nevertheless be more weighty than direct evidence. For example, finger prints or DNA would be more persuasive than the identification testimony of an eye-witness who is shown in cross-examination to be unreliable or biased. 

As a conclusion, it be seen by an illustration of a rope as in the figure above. The lower part of the rope which looks like hundreds of threads evidence shows that they are not strong, they have gaps between them and they can easily be broken apart while the middle part of the rope which is the result of combination of the hundreds of small threads looks so strong, unbreakable and had no gap between them. The lower part of the rope can be illustrated as the circumstantial evidence while the middle part of the rope can be illustrated as the result of the combination of all the circumstantial evidence.

The Credibility of Oral Evidence

       Oral evidence can be define as all statements which the court permits or requires to be made it by witnesses in relation to matters of fact under inquiry. Under Section 61 of the Evidence Act 1950, it is mentions that the contents of documents may be proved either by primary or by secondary evidence. Oral evidence could be consider as secondary evidence as description given in Section 65. Stipulations always arise regarding credibility and admissibilty of oral evidence given by witness.

        The weight and value of oral evidence depends on its credibility as found by the court in each cases. There is certain manner regarding assessing the credibility of oral evidence. As an example, when it comes to making a finding on credibility the demeanour of the witness has to be balanced against the rest of the evidence. It is quite hard to find out the demeanour of the witness in the certain probabilities. The Judges itself have the difficulty to discern from a witness's demeanour, whether the witness is telling the truth. Justice MacKenna in his book 'The Judge' (1969), stated that;

'Is the empahatic witness putting on an act to deceive me or is he speaking from the fullness of his heart, knowing that he is right? is he likely to be more truthful if he looks me straight in the face than he casts his eyes on the ground perhaps from shyness or a nature timidty? For my part I rely on these considerations as little as I can help' .

 

          Problems also arise when there are discrepancies and contradictions in the evidence of a witness. Discrepancies and contradictions will always be in any case. In considering it, what the court has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole the evidence worthless and untrustworthy. Because there is a discrepancies in testimony it does not straightaway make the witness become unreliable witness and make the whole of his evidence unacceptable. It is up to court to observed the statement of discrepancies and carefully consider to to accept the part of the witness's evidence if its considers them to be true.

            The credibility of oral evidence could also arise in a situation when a witness demonstrably tell lies. If a witness keep telling lies on one or two points then it is clear that he is not a reliable witness and as a matter of prudence the rest of his evidence must be scrutinized with care and indeed suspicion. However to fully reject the witness statement because of proven lie in one or two points is something wrong and unacceptable as mention in the case of Khoon Chye Hin v Public Prosecutor [1961] MLJ 105. But it is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which could be accepted.

              By mean of Section 145 and 155 of Evidence Act 1950, the credit of a witness can be impeached if his evidence given in court is incosistent with a previous satement made by the person. Meanwhile by Section 146, a witness may be cross-examined to test his accuracy, veracity or credibility. In certain cases the oral evidence of a witness must be corroborated before it can be accepted. This is covered by section 114(b) and 133 of the Act.

           There are certain tests for determining the credibility of a witness which can be seen in decided cases. In the case of Bhojraj v Sitaram AIR 1936, The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is witself, how it stands the test of cross examination how far it fits in with the rest of the evidence and the circumstances of the case. But however if it being unshaken in crossexamination doen't mean its all sufficient to prove the credibility. The inherent probability or improbability of  a fact in issue must be the prime consideration as mention in the case of Muniandy v Public Prosecutor [1966] 1 MLJ 257. The Indian Supreme Court in the case of Ugar v State of Bihar AIR 1965, has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. Then, in the absence of any contradiction or inherent improbability, the evidence of any witness who give evidence on affirmation, should normally be accepted.

Raja Azlan Shah FJ in the case of PP v Datuk Haji Harun bin Haji Idris [1977] 1 MLJ 15, said:

'...in my opinion, discrepancies there will always be, because in the circumatances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened...The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other.' 

           All this relevant steps have been considered and carried out in the case of PP v Dato' Seri Anwar bin Ibrahim [1999] 2 MLJ 1 by Justice Augustine Paul in pointing out the relevancy and credibility of the witnesses in the case.

   

            From my point of view, when it comes to determine the credibility, the Court face a mammoth task since it is a subjective matter. At certain cases the Court tend to be flexible when dealing with discrepancies before deciding on the full issueas mention by Raja Azlan Shah FJ above. But in a case where the oral evidence becomes unreliable the safest policy would be to rely on the documentary evidence. Since oral evidence is sufficient to prove a fact in the absence of documentary evidence to support it, there must be assurance in certain terms by accepting oral evidence as discussed above. At last it is always up to the court  discretion to assessing the credibility of oral evidence.  

Case Analysis : Position of Illegally Obtained Evidence in Malaysia

Illegally Obtained Evidence: An Analysis of Case of Position in Malaysia

Admissibility of illegally obtained evidence in Malaysia

In Malaysia, locally decided cases seem to hear out that evidence is not inadmissible merely because it has been obtained unfairly or illegally. The test whether is relevant and admissible under Evidence Act. The rule even applies to evidence obtained by means of entrapment or through the agency of an agent provocateur on the manner in which they were obtained. They are dealt with section 24 to 330 of Evidence Act 1950 and section 113 of Criminal Procedure Code and other related laws. To this extend, evidence obtained on breach of the provision relating to confessions and related laws may be regarded as an exception to the general rule that evidence is not rendered inadmissible.

In 1987, in the case of Re Kah Wah Video (Ipoh) Sdn Bhd, Edgar Joseph Jr. J. said that :

“More that 30 years ago, Lord Goddard in delivering the advise of the Judicial Committee of the Privy Council, in the celebrated case of Kuruma v R said, inter alia: ‘the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with hoe the evidence was obtained”.

His Lordship was, of course not making new law when he penned those-off quote words for the principle he referred to was well-settled, in this country, long before for example in the case of Saminathan v Public Prosecutor. Saminanthan was followed in Lee Sang Cheah v R, where the evidence against the accused on a charged of assisting in the carrying out of a public lottery contrary to section 4(c) of the Common Gaming Houses Ordinance (Cap 30) comprised documents which were procured by police officers as a result of an illegal arrest of the accused.

Mc Elwaine CJ after quoting Aitkin J. in Saminathan that, “the manner in which police obtained possession of these documents does not concern the Magistrate who is trying the accused. He is only concerned with their relevancy,’ said,

“I agree with this conclusion. The admissibility is rarely dependant on the matter in which the exhibits are discovered”.

In Wong Liang Nguk v PP, the appellant was convicted of assisting in carrying on a public lottery contrary to section 4(i)(c) of the Common Gaming Houses Ordinance. The charge was that, she was knowingly carrying in a motor car, of which she was the sole occupant, a number of books containing the records of stakes relating to 1000 character lottery. The evidence against the appellant consisted of three books which the police had seized from her possessions when he stopped and searched her car such a search was clearly unlawful because the police officer was not authorised to do so under the Common Gaming Houses Ordinance.  Thomson J. overruling the trial court which held such evidence to be inadmissible said :

“Generally speaking that the facts that evidence is unlawfully obtained does not affect its admissibility. If the police officer in this case had no authority to search then no doubt he would have been open to some sort of civil action, but the question of his authority to search is completely irrelevant to the admissibility of the evidence of his statement of what he found in the course of that search, that is abundantly clearly as a matter of general principle and in particular relation to this type of case it was accepted as long ago as 1936 by Aitkin J. in the case of Saminathan v PP.”

In PP v Tan Keng Siew, on a charge under the Merchandise Marks Ordinance 1950, certain exhibits seized by a police officer from the accused, were proffered in evidence against him. It was argued on behalf of the accused that the search carried out by the Inspector under the search warrant was not in compliance with the provisions of Section 28(i) of the Ordinance. Under provision of this Ordinance information that there is reasonable cause to suspect that any goods or things in relation to which an offence had been committed are within the house or premises of the defendant or otherwise in his possession or under his control in any place must be on oath. It was argued that because the information was not given by an oath, the search was therefore carried out illegally and thus evidence obtained in the course of and by means of such an illegal search was inadmissible.

Rejecting this argument Buhagiar J. said :

“There is authority for the preposition that evidence unlawfully obtained is admissible : Wong Liang Nguk v PP. there is also recent authority for this proposition in the recent case of Kuruma v R”.

That relevancy and not how the evidence was obtained is the criterion which decides admissibility was again in PP v Foong Kow & Ors, where the accused was charged for being in possion of obscene films and abetment thereof. The police had procured the incriminating evidence by illegal entry, in non-compliance with the requirement of Section 24(2) of the Cinematograph Film Ordinance 1952.

The trial judge had rejected the evidence because it was unlawfully procured. On appeal Mc Intyre J.follwing cases upra the appeal, saying that :

“Illegal entry and search by the police may give rise to a cause of action for damages.. but the illegality cannot vitiate the trial of any person found committing an offence in the premises when it was raided or render inadmissibile in evidence any incriminating implements or documents found therein”.

In PP v Gan An Bee, an Enforcement Inspector had entered and seized some goods from the respondent’s premises. But he was not the authorised person under section 14 of the Price Control Act. At the conclusion of the prosecuton case, the learned Magistrate had acquitted the respondent becauses there was no prima facie case against the respondent except for the illegally obtained evidence, which was rejected as it was illegally procured. Ajaib J. however, follwing local authorities, including Kuruma, allowed the appeal. He held that the evidence relating to the seizure and subsequesnent production of the goods at the trial was relevant evidence to the matters in issue and was therefore admissible, notwithstanding that it was obtained illgally and in non-compliance with the provisions of the Price Control Act.

In the leading case of Re Kah Wah Video (Ipoh) Sdn Bhd, the principles enunciated in Saminanthan and Kuruma was again reasserted. The facts relevant to our discussion were that police has seized certain infringing videotapes under a search warrant. It appeared that while the “scheduled” videotapes were lawfully seized, there were the “unscheduled” taped which were unlawfully seized. The contention before Edgar Joseph JR. J. was that these “unscheduled” videotapes because they were unlawfully seized, proceedings under section 15(1) Copyright Act 1960 could not be commenced against the offenders. Giving short shrift to this argument, the learned judged said :

“More that 30 years ago, Lord Goddard… in the celebrated case of Kuruma v R said, inter alia: ‘the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. His Lordship was of course not making new law… for the principles he referred to was well-settled, in this country, long before that (see for example Saminantan v Public Prosecutor per Aitkin J.) ”.

The effect of holding that proceedings under section 15(I) can only commence if the infringing copies are lawfully seized must be to drain the principle enunciated in Kuruma’s case of all its vitality. The only bar against a prosecution under section 15(I) is where a period of 6 months has elapsed since the seizure of the infringing copies or contrivance concerned without the institution of such proceedings.

Clearly, if the prosecution are at liberty to adduce evidence of the recovery of the articles seized as a result of an illegal search, this must imply the right to prosecute and for this purpose, to retain exhibits seized which are capable being used in evidence at the trial.

Referred Article / Recommended Reading

Syed Nadzari Bin Syed Wazir. (1994). The Law on Illegally Obtained Evidence: A Comparative Study. International Islamic University Malaysia.

C. L. Peiris. (1981). The Admissibility of Evidence Obtained Illegally: A Comparative Analysis. Ottawa Law Review. Vol. 13:2. pp.309-344

Section 8: Preparation and previous or subsequent conduct

Section 8 of the Evidence Act 1950 provides circumstances in which a fact is relevant.  Under this section, the following facts are relevant:

a)      Facts which shows motive

b)      Facts which shows preparation

c)      Facts which show previous or subsequent conduct of any person on condition that it is influenced by any fact in issue or relevant fact.

d)      Statement accompanying and explaining acts

e)      Statements made in the presence and hearing of a person whose conduct is relevant provided the statement affects such conduct.

I will not going to discuss on the facts which shows motive as it had been explained in the post ‘Motive Under Section 8’.

Facts which shows preparation

I will continue with facts which show preparation. Preparation is a step before any commencement or attempt of a crime. It is known as the previous conduct before a crime is committed.

In Thiangiah & Anor v Public Prosecutor, Ajaib Singh J stated that there are four stages in every crime, namely:

i-                    intention to commit a crime

ii-                   the preparation for its commission

iii-                 the attempt to commit it

iv-                 actual commission of the crime

However, the mere forming of an intention to commit a crime and making preparations for its commissions are not criminal acts and not punishable under the law. So, when is the preparation for a commission of a criminal offence become important? The preparation becomes prominent and essentially important to be considered once an offence had been committed.  Preparation will be a relevant fact to be considered as admissible provided that is relates with fact in issue or relevant fact.

For example, in Mohan Lal v Emperor, the accused was charged with cheating for importing goods without paying proper customs duty by deceiving customs authorities. The evidence of his previous visits to the port trying to make certain arrangements whereby he could import goods without paying duty was held admissible under this section.

Facts which show previous or subsequent conduct of any person on condition that it is influenced by any fact in issue or relevant fact.

Conduct can be divided to previous conduct and subsequent conduct. As for previous conduct, it is closely connected with preparation and motive. When these three elements are present, it could establish guilt on the accused.

The examples of previous conduct are illustrated in illustrations (c), (d) and (e). Illustration (c):

(c) A is tried for the murder of B by poison.

 The fact that before the death of B, A procured poison similar to that which was administered to B is relevant.

While, for subsequent conduct, the examples can be referred to illustrations (e) to (k). Illustration (h) provided:

(h) The question is whether A committed a crime.

The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal and the contents of the letter are relevant.

In Chandrasekaran & Ors v Public Prosecutor, Raja Azlan Shah J stated that:

The evidence of subsequent conduct is relevant under Section 8 of the Evidence Ordinance and may properly be taken into account, after the prosecution has established the guilt of the accused, to reinforce the satisfaction of the court as to the proof of guilt made out by prosecution case.

The most prominent distinction between previous conduct and subsequent conduct that can be seen is the previous conduct connected with other elements would amount to admissibility to establish guilt, WHEREAS, subsequent conduct being look at after the guilt been established in order to satisfy the court. However, the usage of the subsequent conduct is also subject to other corroborative evidence. It is because a guilty mind cannot be easily concluded from the mere absconding. The act only represents a piece of relevant evidence and the real value would depend on the circumstances of the case. So, illustration (h) is only a general example and is subject to the circumstances of each case. In Chan Kwok Keung & Anor v The Queen, it was held that in order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question.

Statement accompanying and explaining acts

Generally, ‘conduct’ under this section exclude statement but subject on one exception, which is statements accompany and explain acts other than statements. Unless the statement accompany and explain acts other than statements, it will not admissible under this section. It was stated in Explanation 1 under this section.

Terrell Ag CJ in Boota v Public Prosecutor:

A report made by the deceased against the prisoner nine months before the murder was admitted in evidence b the trial judge, as showing a motive for the crime. The report was, however, put forward by the prosecution as showing or constituting motive under section 8. It indicated that the deceased was on bad terms with the accused, and supported the oral evidence to the same effect. The conduct of the deceased in making report against the accused is made relevant by the express terms of section 8. The statement accompanied and explained the deceased’s act in making the report.

McFall J:

Appellant’s dealing with the deceased drove deceased to lodge and sign a report at the police station   against him. The statement then recorded explains her action, and becomes relevant. The report thus was rightly admitted in evidence under section 8.

Statement differs from complaint as complaint is made to the person having authority. Furthermore, complaint evidences conduct. The immediate complaint made pursuant to the conduct will be a relevant fact. But, the lapse of time in making the complaint would amount it to be a statement and thus it subject to the conditions stated above.

Statements made in the presence and hearing of a person whose conduct is relevant provided the statement affects such conduct.

A statement made in the presence of the accused can constitute evidence when we can conclude from his conduct that he acknowledge his offence when he remains silent. For example, in illustration (g), the question is whether A owes B RM10 000. The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing: ‘I advise you not to trust A for he owes B RM10 000,’ and that A went away without making any answer are relevant facts.

A’s conduct by leaving without defending himself is an acknowledgement from his part that he owes B that sum of money, and thus the conduct is considered relevant under this section.

Murray-Aynsley CJ in Lim Ah Oh& Anor v R stated that:

It is commonly stated in English law that what is stated in the presence of a party is evidence against him. It should be noted that this is not now to be treated as an exception to the rule of hearsay but as evidence of factum probans, in light of the reaction of the party to what is said.  

However, it must be noted that in criminal case, the accused have a right to remain silent. So, the prosecution cannot use the silence on accused’s part to prove the case.

As for the conclusion, both preparation and conduct under section 8 required other corroborative evidence to support or vice versa. It cannot stand by his own to establish a relevant evidence that amount to strong evidence.

To what point does the court allows the Hearsay evidence to be admissible ?

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. 

Conspiracy

Section 10 of the Evidence Act 1950 provides facts relating to anything said, done or written by the accused (2 or more) in reference to their common intention to conspire are relevant. They are relevant for the purpose of proving the conspiracy and showing that the accused were conspirators. All acts and statements of a co-conspirator are admissible against all the conspirators. This is only applicable for criminal conspiracy. 

Things said or done by conspirators are relevant against each other, under two conditions:

a) There is reasonable ground to believe that the conspiracy exists. There was  an agreement between two or  more persons to commit an offence or an actionable wrong. 

b) It must be in reference to the common intention existing at the time, when the thing was, said or written by one of them. 

Looking at Liew  Kaling v PP [1960], court held that statements made after the completion of a crime are not admissible for the purpose of proving conspiracy. Also, in Khalid Panjang & Ors v PP [1964], Federal Court held that a statement made after the carrying out of a conspiracy is inadmissible to prove the conspiracy; 'common intention' signifies a common intention existing at the time the statement was made. 

Conspiracy can be seen in Nik Hassan bin Nik Hussin & Anor v PP where the appellants were convicted of assembling with others for the purpose of committing gang robbery, contrary to s 402 of the Penal Code. The allegation of the prosecution was that at about 1.30am on 10 December 1946, nine men assembled at a hut on a piece of high ground under scrub, for the purpose of committing robbery at the house of one Sulaiman about 100 to 200 yards away. However, court held that on a charge of assembling with others to commit gang robbery, the purpose of the assembly must be proved. When the only evidence of this was technically inadmissible, the conviction would be set aside.

The other case to refer to is Mirza Akhbar v King Emperor [1940] where court  held that the thing said, done or written can be accepted as facts relevant to conspiracy. In this case, the appellant together with a murderer Umar Sher and a lady, Mt Mehr Taja had been accused of murdering Ali Askar, husband to Mt Mehr  Taja. The statement against Umar Sher was clear because he was caught during the incident and was  seen holding a broken gun that had just been used to shot. Umar Sher had been bribed by the appellant to murder Ali Askar. This conspiracy has been found out through 3 letters that had been sent from Mt. Mehr Taja to the appellant. Mt Mehr Taja in her letter said that she wished to destroy Ali Askar so  that they can both get married and there's also content to find money. That is why whatever said, done or written by them are relevant facts to prove conspiracy. 

It is indeed not easy to prove conspiracy. Sometimes people seen together with the robbers does not mean that there are conspiracy. To prove that there has been conspiracy, there must be common intention to conspire. That is why anything said, done or written is taken into consideration to prove the existence of conspiracy.