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
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 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.”
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
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
be justified in admitting the evidence where its probative value is outweighed by its
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.
Answer Question 4
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
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
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.
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.
Answer Question 5
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.
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
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
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
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