{"id":8214,"date":"2021-01-21T15:13:13","date_gmt":"2021-01-21T07:13:13","guid":{"rendered":"http:\/\/alexchanglaw.com\/?p=8214"},"modified":"2021-06-16T18:25:50","modified_gmt":"2021-06-16T10:25:50","slug":"the-value-of-hearsay-evidence-in-court","status":"publish","type":"post","link":"https:\/\/alexchanglaw.com\/index.php\/the-value-of-hearsay-evidence-in-court\/","title":{"rendered":"The Value of Hearsay Evidence in Court"},"content":{"rendered":"\n

\u4e2d\u6587\u7248<\/a><\/p>\n\n\n\n

Versi Bahasa<\/a><\/p>\n\n\n\n

What is Hearsay in Court?<\/p>\n\n\n\n

General Rule<\/strong>
The cardinal rule in respect of oral evidence is that provided for in Section 60 Evidence Act 1950 (\u201cEA 1950\u201d). 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 <\/a>[1]<\/a>. 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\u2019s testimony.<\/p>\n\n\n\n

What\nis hearsay and what are its exceptions<\/strong><\/p>\n\n\n\n

Hearsay\nevidence refers to a statement made out of court that is offered in court as\nevidence to prove the truth of the matter asserted. According to Mr LMD De\nSilva (as he then was) in Subramaniam[2]<\/a>,\nan evidence \u201c\u2026is hearsay and inadmissible when the object of the evidence is\nto establish the truth of what is contained in the statement. It is not hearsay\nand is admissible when it is proposed to establish by the evidence, not the\ntruth of the statement, but the fact that it was made.<\/em>\u201d<\/p>\n\n\n\n

Therefore,\nthe mere fact that a statement was said out of court does not automatically\nrender it as \u201chearsay evidence\u201d. It is the purpose for which the statement is\ntendered that determines whether it is hearsay evidence. It is only when the\nout of court statement is tendered as evidence of the truth of its contents or\nas evidence of facts asserted that it is hearsay and thus, inadmissible.<\/p>\n\n\n\n

Hearsay\nevidence is inadmissible because it contravenes Section 60 EA 1950. However\nthere exists exceptions that allows for the admission of hearsay evidence.<\/p>\n\n\n\n

Section\n32 EA 1950- Statements of persons who cannot be called as witnesses<\/p>\n\n\n\n

Under\nthis section, there are four categories of people whose out of court statement\nmay be admitted as evidence even though they cannot be called as witness: <\/p>\n\n\n\n

            1. The maker who has passed<\/p>\n\n\n\n

By\nvirtue of s32 (1)(a), statements by the deceased as to the cause of his death\nor circumstances of the transaction resulting to his death will be admissible.\nHowever, in order for this exception to apply, regardless of whether it is a\ncivil or criminal matter, the case must be one in which the cause of the\nmaker\u2019s death comes into question.  <\/p>\n\n\n\n

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

            2.Maker cannot be found after\ndiligent search<\/p>\n\n\n\n

Evidence\nmust be adduced to show that reasonable efforts to find the maker have been\nmade, despite it being a failed effort. The court tends to expect greater efforts\nin locating the maker especially where the proceedings related to death\npenalty. Low Hop Bing J (as he then was) in PP v. Norfaizal Mat (No 2) [6]<\/a>at\npara 13 held that \u201cit is necessary for the prosecution and the police to\nmake diligent search and reasonable exertion in order to procure Azril,\notherwise his statement is inadmissible under s.32(1)(i). Mere ignorance of the\nwhereabouts of Azril is not sufficient to invoke the section.\u201d<\/em><\/p>\n\n\n\n

            3. The person is incapable of giving\nevidence <\/p>\n\n\n\n

This\nincapability may arise due to physical, mental or extreme old age. As such,\nsufficient evidence must be shown to establish the incapacity of the person\nwhose statement is sought to be admitted as evidence.<\/p>\n\n\n\n

            4. The person is out of jurisdiction\nand to call him would result in undue delay and expense<\/p>\n\n\n\n

It\nwas held by the Federal Court in Sim Tiew Bee v Public Prosecutor[7]<\/a>\nthat in order for this exception to apply, the condition precedent to the\nreception of the evidence should be independent evidence that it would involve\nsuch delay and expense as would seem unreasonable.<\/p>\n\n\n\n

Business\ndocuments<\/p>\n\n\n\n

Pursuant\nto s32 (1)(b), relevant facts made in the ordinary course of business where the\nmaker is unavailable may be admissible provided certain conditions are\nsatisfied. The conditions are that it must be an out of court statement of\nrelevant fact made in the \u2018ordinary course of business\u2019, one of the four\npreconditions of unavailability is satisfied and that the maker must have\npersonal knowledge of the matters stated. \n<\/p>\n\n\n\n

However,\nit should be noted that s32 (1)(b) is only applicable to first hand hearsay[8]<\/a>. <\/p>\n\n\n\n

Section\n6 EA 1950-Relevance of Facts forming part of same transaction<\/p>\n\n\n\n

This\nsection is similar to that of the Res Gestae common law exception which\nprovides for the admissibility of spontaneous exclamations where the\npossibility of concoction or distortion can be disregarded. The main\ndistinction from its common law counterpart is that under common law it is\nstricter and narrower as the incident must occur at the same time and same\nplace as it crucial that both conditions are satisfied: spontaneity and\npossibility if concoction can be disregarded[9]<\/a>. <\/p>\n\n\n\n

In\ncontrast, section 6 is flexible, liberal and wider as it includes the incidents\nwhich happened at different times and places. In Tan Geok Kwang v Public\nProsecutor[10]<\/a>,\nthe evidence is admissible as part of the res gestae because the group of facts\nforming the transaction was so connected that the exclusion of the evidence\nwould render evidence as to other facts unintelligible.<\/p>\n\n\n\n

Conclusion<\/p>\n\n\n\n

In\nshort, it can be seen that most exceptions require that the preconditions for\nunavailability to be satisfied before an out of court statement can be admitted\nas evidence of the truth of the matter stated. Though exceptions do exist to\nallow for such admission, the courts nonetheless take a cautious approach in\norder to ensure the general rule laid down in s60 is not easily circumvented.<\/p>\n\n\n\n

What is a Statutory Declaration<\/a> (SD)? <\/strong><\/p>\n\n\n\n

A\nSD is a statement made with the purpose to provide written proof to confirm\nsomething that either cannot be proven or involves too much work to actually\nprove, and that such statements are backed by penal sanctions[11]<\/a>.\nIn Malaysia, the Statutory Declarations Act 1960 governs the subject.<\/p>\n\n\n\n

It\nis necessary in many cases to require declarations in confirmation of written\ninstruments or allegations, or proof of debts, or of the execution of deeds or\nfor other purposes. If such a statement was made as an ordinary statement or\ndeclaration in an application, then if it turned out to be untrue it would\nmerely amount to a misrepresentation that would constitute a breach of contract.\nIf the statement is made by way of a statutory declaration, then apart from\nbeing a misrepresentation, it would be a breach of contract and the person\ncould be charged for perjury. <\/p>\n\n\n\n

SD\nand letters from non-witness <\/p>\n\n\n\n

Therefore,\nit can easily be explained why SD and letters from non-witness would have no\nvalue during trial. Since a statutory declaration is a written statement that\nallows a person to declare something to be true, the purpose of admitting it as\nevidence during trial would be to prove the truth of the matters stated. To\nadmit SD and letters from non-witness could thus be said to be similar to\nhearsay evidence, which has always been treated with vigilance.<\/p>\n\n\n\n

To\nadmit SD and letters from non-witnesses would effectively amount to getting\naround the restrictions that were laid down in the first place to regulate the\nadmission of hearsay evidence. As such, it is unlikely that the courts will\nwelcome such attempts, nor confer on such evidence any significant value. <\/p>\n\n\n\n

What\nis documentary hearsay?<\/strong><\/p>\n\n\n\n

Hearsay\nevidence also comprises documentary evidence. This is where the party intends\nto admit a document where its maker will not be testifying in court.<\/p>\n\n\n\n

The\nHigh Court in Allied Bank (Malaysia) Bhd v Yau Jiok Hua[12]<\/a>\nheld that \u201cIt is settled law that where a document is sought to be proved in\norder to establish the truth of the facts contained in it the maker has to be\ncalled<\/em>\u201d. Non-compliance with this rule will result in the contents of the\ndocument being hearsay, and is thus inadmissible unless the absence of the\nmaker could be explained, which then exceptions to the rule against hearsay\nprovided under s32 would be applicable.<\/p>\n\n\n\n

In essence, for the document to be admitted as hearsay evidence, the conditions under s32 must first be satisfied.<\/p>\n\n\n\n

Caroline Gan Yi Xin
University of London 
Bar Professional Training Course 
University of West England  <\/p>\n\n\n\n

\"\"
Carol Gan<\/figcaption><\/figure>\n\n\n\n
\n\n\n\n

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

\u4e2d\u6587\u7248 Versi Bahasa What is Hearsay in Court? General RuleThe cardinal rule in respect of oral evidence is that provided for in Section 60 Evidence Act 1950 (\u201cEA 1950\u201d). 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]. […]<\/p>\n","protected":false},"author":1805,"featured_media":8223,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[28,67],"tags":[87,84],"_links":{"self":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/8214"}],"collection":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/users\/1805"}],"replies":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/comments?post=8214"}],"version-history":[{"count":4,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/8214\/revisions"}],"predecessor-version":[{"id":9728,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/8214\/revisions\/9728"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media\/8223"}],"wp:attachment":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media?parent=8214"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/categories?post=8214"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/tags?post=8214"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}