The Value of Hearsay Evidence in Court

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What is Hearsay in Court?

General Rule
The cardinal rule in respect of oral evidence is that provided for in Section 60 Evidence Act 1950 (“EA 1950”). Under this section, oral evidence must be direct i.e. the testimony must be of the person who perceived the fact through medium of his own senses [1]. Direct evidence can be categorized into three categories: oral, written or conduct.

This section emphasizes that evidence should always be direct because direct evidence is the best evidence as it is delivered on oath, subject to cross examination, the court is able to see the demeanor of the witness, and it reduces the possibility of fabrication to suit the witness’s testimony.

What is hearsay and what are its exceptions

Hearsay evidence refers to a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. According to Mr LMD De Silva (as he then was) in Subramaniam[2], an evidence “…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 is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

Therefore, the mere fact that a statement was said out of court does not automatically render it as “hearsay evidence”. It is the purpose for which the statement is tendered that determines whether it is hearsay evidence. It is only when the out of court statement is tendered as evidence of the truth of its contents or as evidence of facts asserted that it is hearsay and thus, inadmissible.

Hearsay evidence is inadmissible because it contravenes Section 60 EA 1950. However there exists exceptions that allows for the admission of hearsay evidence.

Section 32 EA 1950- Statements of persons who cannot be called as witnesses

Under this section, there are four categories of people whose out of court statement may be admitted as evidence even though they cannot be called as witness:

            1. The maker who has passed

By virtue of s32 (1)(a), statements by the deceased as to the cause of his death or circumstances of the transaction resulting to his death will be admissible. However, in order for this exception to apply, regardless of whether it is a civil or criminal matter, the case must be one in which the cause of the maker’s death comes into question. 

In the case of Haji Salleh, Marjuki v Public Prosecutor[3], statement made by the deceased a month before his death to the effect that he was afraid that one of the accused might kill him was held inadmissible because it was too remote. In contrast, the Privy Council in Chandrasekara v The King[4] held that evidence as to signs made in answer to questions put to the deceased was admissible. In fact, the actual words of the deceased must be recorded[5].

            2.Maker cannot be found after diligent search

Evidence must be adduced to show that reasonable efforts to find the maker have been made, despite it being a failed effort. The court tends to expect greater efforts in locating the maker especially where the proceedings related to death penalty. Low Hop Bing J (as he then was) in PP v. Norfaizal Mat (No 2) [6]at para 13 held that “it is necessary for the prosecution and the police to make diligent search and reasonable exertion in order to procure Azril, otherwise his statement is inadmissible under s.32(1)(i). Mere ignorance of the whereabouts of Azril is not sufficient to invoke the section.”

            3. The person is incapable of giving evidence

This incapability may arise due to physical, mental or extreme old age. As such, sufficient evidence must be shown to establish the incapacity of the person whose statement is sought to be admitted as evidence.

            4. The person is out of jurisdiction and to call him would result in undue delay and expense

It was held by the Federal Court in Sim Tiew Bee v Public Prosecutor[7] that in order for this exception to apply, the condition precedent to the reception of the evidence should be independent evidence that it would involve such delay and expense as would seem unreasonable.

Business documents

Pursuant to s32 (1)(b), relevant facts made in the ordinary course of business where the maker is unavailable may be admissible provided certain conditions are satisfied. The conditions are that it must be an out of court statement of relevant fact made in the ‘ordinary course of business’, one of the four preconditions of unavailability is satisfied and that the maker must have personal knowledge of the matters stated. 

However, it should be noted that s32 (1)(b) is only applicable to first hand hearsay[8].

Section 6 EA 1950-Relevance of Facts forming part of same transaction

This section is similar to that of the Res Gestae common law exception which provides for the admissibility of spontaneous exclamations where the possibility of concoction or distortion can be disregarded. The main distinction from its common law counterpart is that under common law it is stricter and narrower as the incident must occur at the same time and same place as it crucial that both conditions are satisfied: spontaneity and possibility if concoction can be disregarded[9].

In contrast, section 6 is flexible, liberal and wider as it includes the incidents which happened at different times and places. In Tan Geok Kwang v Public Prosecutor[10], the evidence is admissible as part of the res gestae because the group of facts forming the transaction was so connected that the exclusion of the evidence would render evidence as to other facts unintelligible.

Conclusion

In short, it can be seen that most exceptions require that the preconditions for unavailability to be satisfied before an out of court statement can be admitted as evidence of the truth of the matter stated. Though exceptions do exist to allow for such admission, the courts nonetheless take a cautious approach in order to ensure the general rule laid down in s60 is not easily circumvented.

What is a Statutory Declaration (SD)?

A SD is a statement made with the purpose to provide written proof to confirm something that either cannot be proven or involves too much work to actually prove, and that such statements are backed by penal sanctions[11]. In Malaysia, the Statutory Declarations Act 1960 governs the subject.

It is necessary in many cases to require declarations in confirmation of written instruments or allegations, or proof of debts, or of the execution of deeds or for other purposes. If such a statement was made as an ordinary statement or declaration in an application, then if it turned out to be untrue it would merely amount to a misrepresentation that would constitute a breach of contract. If the statement is made by way of a statutory declaration, then apart from being a misrepresentation, it would be a breach of contract and the person could be charged for perjury.

SD and letters from non-witness

Therefore, it can easily be explained why SD and letters from non-witness would have no value during trial. Since a statutory declaration is a written statement that allows a person to declare something to be true, the purpose of admitting it as evidence during trial would be to prove the truth of the matters stated. To admit SD and letters from non-witness could thus be said to be similar to hearsay evidence, which has always been treated with vigilance.

To admit SD and letters from non-witnesses would effectively amount to getting around the restrictions that were laid down in the first place to regulate the admission of hearsay evidence. As such, it is unlikely that the courts will welcome such attempts, nor confer on such evidence any significant value.

What is documentary hearsay?

Hearsay evidence also comprises documentary evidence. This is where the party intends to admit a document where its maker will not be testifying in court.

The High Court in Allied Bank (Malaysia) Bhd v Yau Jiok Hua[12] held that “It is settled law that where a document is sought to be proved in order to establish the truth of the facts contained in it the maker has to be called”. Non-compliance with this rule will result in the contents of the document being hearsay, and is thus inadmissible unless the absence of the maker could be explained, which then exceptions to the rule against hearsay provided under s32 would be applicable.

In essence, for the document to be admitted as hearsay evidence, the conditions under s32 must first be satisfied.

Caroline Gan Yi Xin
University of London 
Bar Professional Training Course 
University of West England 

Carol Gan

[1] RECALIVA DESIGN STEEL (M) SDN BHD v. VISTA ACCESS SDN BHD & ANOR [2008] 1 LNS 88 
[2] [1956] 1 LNS 115
[3] [1932] 1 LNS 17
[4] [1937] AC 220
[5] Toh Lai Heng v R [1961] MLJ 53
[6] [2008] 8 CLJ 576
[7] [1973] 1 LNS 138 
[8] Allied Bank (Malaysia) Bhd v Yau Jiok Hua [1998] 2 CLJ 33
[9] Lord Wilberforce in Ratten v. R [1972] AC 378
[10] [1949] 1 LNS 92
[11] Section 3 Statutory Declarations Act 1960
[12] [1998] 2 CLJ 33

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