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Evidence-Tips Sample QA 3

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Evidence-Tips Sample QA 3

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Evidence-Tips Sample QA 3

  1. 1. Please apply the principle and laws according to the situation and name of the person in the question. This is my answer that I prepared last semester. The question in last semester sometimes same/similar/quite similar with the question in the subsequent Final Examination but the situation/circumstance and name of the person/accused only interchangeably. Answer Question 2 Res Gestae is an exception to the general rule of hearsay. The meaning of res gestae is part of the same transaction. This exception can be found in the section 6 of Evidence Act 1950. The first development of res gestae was illustrated in the case of R v Beddingfield. In this case, the words uttered from the victim was excluded by court as res gestae. This means the statement made by the victim before she died was not admitted as part of the res gestae as it was made after the event. By looking to the decision of Beddingfield’s case, it was to be strict in application of res gestae because it must be contemporaneous in order to invoke res gestae. However, this decision was overruled in the case of Ratten v R. In the case of Ratten v R, the court defined the res gestae to more liberal and wider scope in application. In this case the appellant was accidentally shot his wife while cleaning the shot gun. The part of res gestae is when the victim had called the telephone operator and said “get me a police please” with a shivering and fear voice. The court held that the statement was admissible as part of res gestae because there a close association of place and time between the statement and the shooting. Furthermore the tone of voice used, showed intrinsically the statement was being forced from the wife by an overwhelming pressure of contemporary event. In this case also Lord Wilberforce laid down the rule of res gestae, it is not necessary for a statement to be contemporaneous, provided that:-  the statement is so clearly made in circumstances of spontaneity or involvement in the event and;  the possibility of concoction can be disregarded. If we referring to the Singaporean cases, Hamsa Kunju the Singapore court was willing to accept the earlier incident, which had passed a whole day before, as a part
  2. 2. of res gestae. The event occurred in the morning was held to be part of the same transaction as another event that occurred later in the night. Another case which are Thavanathan and Don Propinit. In the case of Thavanathan, the term “transaction” in section 6 had been defined by Sir James Stephen was ‘a group of facts so connected together as to be referred to by single name, as a crime, a contract, a wrong or any other subject of enquiry which may be issue’. Nevertheless whether it occurred at the same time and place or different times and places. In the case of Don Propinit the court held that “it is sufficient to say that the evidence of Tan of the earlier instances of abortive sales and negotiations between him and the first appellant was admissible against the first appellant”. The duration of three months in considered as part of res gestae. Dying Declaration Dying Declaration is a statement as to the cause of death. The statement was made before a person died. Under Section 32(1)(a) of the Evidence Act 1950 such statement is relevant and may be admissible. Firstly, in Common Law dying declaration is applicable to murder case only whereas in our Evidence Act, not restricted to criminal case only. Case can be illustrated here is Yong Kong Tai v Salim Jalal. Secondly, in Common Law the statement must be made under expectation of imminence of death with no hope of recovery. Case is R v Jenkins. However according to our law of evidence, no such requirement is needed. Case can be illustrated here are Rex v Santokh Singh and Yeo Hock Cheng In the Pakala Narayana Swami, the statement by deceased 3 days is not remote. Lord Macmillan held: “This is a code and we cannot look at the previous state of law. If the code is silent or fails to be explicit then we can import English law.”
  3. 3. Answer Question 3 a) Similar Fact Evidence Categorization Approach or Pigeon Hole Approach which is laid down in the case Makin v AG. In this case, a husband and wife were charged with murdering a children that they fostering and burying it in the backyard. During the trial, 13 babies found buried in the backyards of several house occupied by them was tendered as evidence. The evidence was inadmissible because it was prejudicial to the accused. Lord Hershell’s proposition in this case consist of two limbs which are Propensity Evidence cannot be given because it is prejudicial to the accused and the fact that he has the propensity to commit the same offence may not necessarily be admissible if such evidence relevant to the fact in issue. But in this case the evidence was admissible because the prosecution rebut the propensity evidence to show Modus Operandi and defence of accident. Malaysian case follow this approach is R v Raju and Datuk Harun Idris Next development is Balancing Approach which laid down in the case DPP v Boardman: “Probative value outweighs its prejudicial effect”. This probative value can be found and extracted from the circumstances that the fact testified to by the several witnesses bear to each other such a striking similarity. This was laid down by Lord Wilberforce. Malaysian case follow this approach was Veeran Kutty and Junaidi bin Abdullah. The next development is found in the case DPP v P which Lord Mackay said: “The essential feature of evidence which is to be admitted is that its probative force… is sufficiently great as to make it just to admit the evidence...” In the case R v H, the test in DPP v P should be used in order to tender such evidence. Latest Development of SFE based on the Singapore case Tan Meng Jee v PP followed by Malaysian case Azahan bin Mohd Aminullah. A court when deciding whether to admit similar fact evidence must carry out a balancing exercise by weighing the probative value of such evidence against its prejudicial effect as impliedly require by sections 14 and 15 of the Evidence Act 1950. The court would
  4. 4. be justified in admitting the evidence where its probative value is outweighed by its prejudicial effect. Another Malaysian case follow this latest development are PP v Mohd Roslan Desa and Nazarrimi bin Sahib. b) Indentification Evidence Section 9 of Evidence Act is about identification evidence which fact establish identity. R v Turnbull laid down the principle which called Turnbull’s Guideline. In this guideline the court has to caution and warn the jury as to circumstances of the event whether it is good quality or poor quality and the weaknesses of the evidence. There are three factors to be considered which are witness factor, event factor and post-event factor. Case can be illustrated here is Jaafar bin Ali, Heng Aik Ren Thomas and Lim Tiong Seng.
  5. 5. Answer Question 4 a) Admission In the case of Noor Mohamed v Palanivelu, where the case involving personal injuries involving Plaintiff when he was riding on a bicycle and collided with Defendant’s lorry. The Defendant had pleaded guilty to the charge in a Magistrate Court. In this case the relevant fact which is plea of guilty under section 17(1), 18, and 21 of Evidence Act (EA). As to the verdict, it is not admissible as it is not relevant. In the case of Hollington v F Hewthorn, Lord Goddard said: “In the present case, had the Defendant before the Magistrates pleaded guilty or made some admission in giving evidence that would have supported the Plaintiff’s case, this could have been proved, but not the result of the trial”. Other case to support are Chan Chong Foo & Anor v Shivanathan as to pleaded guilty for a dangerous driving and She Eng Gek v De Silva where the court held that the conviction in the criminal proceedings is no evidence in civil proceedings but the plea of guilty to the charge being an admission which may support the plaintiff’s case is admissible. b) Without Prejudice Communication (Section 23) In the case of Rush & Tomkins Ltd v CLC the Judge said: “The rule is founded on the public policy of encouraging litigants to settle their differences…” In the case Malayan Banking v Foo See Moi, Judge Chan Min Tat said “It is settled law that letters written without prejudice are admissible in evidence of the negotiations attempted.” Other case to support is Oh Kuang Liang v Associated Wood. Furthermore, in the case of Dusun Desaru v Wang had laid down the principles without prejudice communication which are:- a) Some individuals must be in dispute and that dispute led them to negotiate with one another b) The communication between the parties must contain suggested terms that would finally lead to the settlement of the dispute.
  6. 6. In the case A-B Chew Investments, the waiver by both parties can be in form of implied or express and the negotiation succeeded. c) Concept of Lex Fori All laws may be divided into two main categories mainly substantive or adjective law. Substantive law which is determine the right, obligations, duties and liabilities of person to each other. For example law of tort, law of contract and criminal law. Adjective law is concerning about procedure and evidence for example the law of evidence, criminal procedure and civil procedure. Adjective law is lex fori or law of the forum. According to Concise Law Dictionary lex fori is the law of the forum or court in which case is being tried. For example if a foreigner is committed an offence, he will be tried according to our procedure and law of evidence. Case can be illustrated here is Bain v Whitehaven and In re Cohn.
  7. 7. Answer Question 5 a) Confession In order to confession to be an admission, it:- a) must be a confession under section 17(2) b) made voluntarily according to section 24 The objective test laid down in the case of Anandagoda is must be looked at a whole without reference to extrinsic fact. This was followed by PP v Lemanit. Voluntarily according to section 24, it must be free from IPTO which are inducement, promise, threat and oppression. In the case DPP v Ping Ling and Ibrahim v R that the confession must be free from IPTO. Definition of oppression can be found in the case of R v Priestly which is the conduct that has the tendency to sap the will of person in custody. The meaning of oppression also can be found in the case R v Wilson. In the case Dato’ Mohktar Hashim v PP, the long interrogation in the odd hours is amounting to oppression. In the case of Abdullah Awang Bongkok, the confession deemed admissible if the threat has lapsed. In the case Hasibullah bin Mohd Ghazali, “the judge failed to recognize that psychological oppression can be more insidious than, and just as effective, as physical pressure on a suspect….” b) Co-Accused Confession In the case Bhuboni Sahu v The King AIR 1949 PC 257, the section applies to confession only and not to statements which do not admit the guilt of the confessing party. Thus the confession statement must be a confession within the meaning of section 17(2) of the Act and must have been voluntarily. Position in Malaysia It is not to be considered as substantial evidence as it only corroborated the other evidence that the accused commit such offence. The confession is tendered only to support with the other evidences.
  8. 8. Position in Singapore In Singapore, the position of this confession is considered to be substantial evidence against the accused. It is enough to convict co-accused. Case can be illustrated here is Abd Razak and Chin Siow Noi Requirements Before the section can be invoked the following conditions must be fulfilled namely:- a) The persons must be tried jointly for the same offence. b) There must be a confession which is proved. c) The confession must be done affecting the maker and the co-accused. In the case Dato’ Mohktar Hashim, the accused never confessed but the court considered the confession made by the co-accused. c) Discovery of Statement (section 27) The local classicus case is Pulukuri Kotayya v R. Section 27 is on discovery not recovery. Thus, if the police had prior knowledge on the existence of the thing discovered, it is recovery. Case can be related here is PP v Liew Sam Seong. Meaning of discovery can be found in the case Mohd Farid Sukis and Basri bin Salihin. Issue arise here whether section 27 is subject to section 24 of EA? There are two opinion of this issue which are section 27 is independent and dependent. Section 27 is independent from the section 24 based on the cased Goi Ching Ang, Krishna Rao and Francis Anthonysamy because the voluntariness rule is not applicable. If the court that the statement to be involuntary, the court may excluded as evidence according to it discretion. In the case Mohd Desa Hashim, section 27 is dependant to the section 24. Voluntariness rule is applicable to this case only and it was overruled. KEEP IT PROPERLY. PASS TO YOUR FRIENDS SHARING IS CARING

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