Prima Facie Journey

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.