Does the court really concern with the manner that the evidence is obtained?

    "Whether the courts should refuse to entertain evidence because it has been obtained by the party    tendering it in an illegal or improper manner is a question principally of policy, to which no answer is to be found in the laws of evidence as such"- Peter Murphy

The issue here is, whether the court should admit the evidence as admissible to prove the offence charged/claim, and leave the aggrieved party to his remedy OR whether the court should act as 'watchdogs' and should decline to allow a party guilty to profit by it?

Firstly, we look at the United States position on this issue. As we know, United States focus on human right issue, and of course it includes right of an accused/defendant. The constitutionally entrenched rights of the defendant require the exclusion of evidence obtained in violation of any of the defendants' fundamental constitutional right. For example, if evidence is seized during a unlawful search, it is contrary to the Fourth Amendment right to be protected against unlawful search and seizure. In such circumstances, the court must as a matter of law exclude the evidences. 

In Malaysia, the courts tend to follow the principle in England. In Kiruma v The Queen, the court held that the test to be applied in considering whether the evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how evidence was obtained. In R v Sang, the defendant was charged with conspiracy to utter counterfeit United States banknotes. The defence counsel claimed that he had been induced by an informer, acting on the instruction of the police, to commit an offence that he would not committed otherwise. Lord Diplock in this case stated under English System of Criminal Justice, it does not give rise to any discretion on the part of the judge himself to acquit the accused or to direct the jury to do so, notwithstanding that he is guilty of the offence. This was later followed by the Malaysia case How Poh Sun v PP.

Another Malaysia case which illustrated this issue is Saminathan v PP, where Aitken J held that the legality or illegality of a person's arrest does not concern the court which is trying him and, in respect of certain documents that were seized by the police during the illegal search of the appellant's room, that the court was only concern with the relevance of the documents seized and not with the manner in which the police obtained. This principle was also affirmed in the case PP v Gan Ah Bee.

In conclusion  Malaysia court tends to take into consideration the relevancy of the evidences rather than the manner evidences obtained. However much the judge may dislike the way in which a particular piece of evidence was obtained before the proceeding, if it is admissible evidence probative of the accused's guilt, it is not part of a judge judicial function to exclude it.

Relevancy v. Admissibility

  Relevancy is defined as any 2 facts to which it applied are so related to each other that, according to the common course of events one either taken by itself. In the other hand, admissibility is a question of law and refers to whether evidence may be tendered on a fact in issue, relevant facts or a collateral fact.General rule of evidence law is the facts in issue and relevant facts must be relevant and admissible before they are admitted in court. However, this general rule is subjected to some exceptions (hearsay and opinion), where not all relevant evidences are prima facie admissible.

  There are some differences between admissibility and relevancy. Admissibility is a matter of law, relevancy is usually though not invariably a matter of logic and common sense. In Musa Saday v The State, the Court of Appeal held that:

i.) Where a fact his relevant it could not be excluded of law except by virtue of a spesific statutory provision of rule of law.

ii.)There is no general rule of law  in civil as well as in criminal cases taht evidence which is relevant is excluded, nearly by the way in which it has been obtained.

  Besides, the admissibility of evidence, depends first on the concept of relevancy of a sufficiently high degree of probative value and secondly, on the fact that the evidence tendered does not infringe any  of the exclusionary rules may be applicable on it. Relevancy is not primarily depends on rules of law but admissibility is founded on law. Thus, relevancy usually known as logical relevancy while admissibility known as legal relevancy. Relevancy is a question of fact which is duty of lawyers to decide to tender such evidence in court. In the other hand, admissibility is the duty oof court to decide whether an evidence should be received by the court.

  In general, a relevant fact given in evidence under S.5 to S.55 of Evidence Act 1950 is admissible in the court. However, a relevant fact under S.5 to S.55 may not admissible if the other sections of the Act do not permit it to be received by the court. There are main exclusionary rules in Act which excluded the admissibility of facts although it is relevant, which is hearsay and opinion, despite its high degree of relevance, on the reasoning that the witness who narrates the 3rd party's statement to the court may have no personal knowledge of the facts stated and the party against whom the evidence is admitted may have no opportunity of cross-examining the 3rd party.

 

On Relevancy & Admissibility

Legal relevancy is founded on law, i.e. in the provisions laid down from S 6 to S 55 of the Evidence Act. These provisions state what facts are relevant according to the law.

An example is found in S 7. In Aziz bin Muhd Din v PP, the fact that the sexual complainant had spent a night at the flat with the accused merely showed opportunity. Similarly, fingerprints of the defendants shows opportunity and is thus relevant. In Sidik Sumar, the court held that evidence of footprints at or near the scene of the crime or that the footprint came from a particular place or lead to a particular place is relevant under S 7. Another example would be when there is a fact necessary to introduce a relevant fact as laid down in S 9.

Admissibility is a question of law and refers to whether evidence may be tendered on a fact in issue, a relevant fact or a collateral fact. S 6 provides for the admissibility of statements that are part of the same transactions as the fact in issue. The court in PP v Haji Kassim stated that whatever is logically probative is not necessarily admissible in evidence, unless it is so under the Evidence Act.

S 136 states that the court decides on the issue of admissibility. This provision also shows that ‘relevancy’ is the test for admissibility. In PP v Shee Chin Wah, it was held that though an evidence may not be part of the charge and may be prejudicial to the accused, it may be admitted, the main consideration being relevancy of the evidence. In Alcontara Ambross Anthony v PP the court said “it is the duty of the judge to admit all relevant evidence and to exclude all irrelevant evidence”. For example, the court in R v Walton exercised their powers when the majority of judges decided that the statement ‘Hello Daddy’ which was tendered to show that the person on the other end of the line was Walton was inadmissible.

The Federal Court in Desa Samudra Sdn Bhd v Bandar Teknik Sdn Bhd and 5 others said “In the law governing documentary evidence, as in oral evidence, three matters come to mind- relevancy, admissibility and weight. They must be considered in that order. Only evidence which is relevant ought to be admissible. Irrelevant evidence should be rendered as inadmissible and the matter ends there. Now, relevant evidence which is rendered admissible is still subject to the element of weight. The court can either attach due weight to the evidence, or some weight, little weight or no weight at all”. 

Sunny Ang v PP – Circumstances Evidence

        Circumstances Evidence may be defined as any fact from the existence of which the judge may infer the existence of a fact in issue. It is not the evidence direct to the point of issue, but evidence of various facts other than facts in issue which are so connected with the facts in issue that taken together they form a chain of circumstances leading to an inference or presumption of the principle fact.

       In the case of Sunny Ang v PP [1967] 2 MLJ 195, The appellant was charged and convicted of the murder of his girlfriend despite the fact that the body of the deceased was never discovered. The facts adduced by the prosecution were so compelling that the court reached the irresistible conclusion that the appellant had murdered the deceased.

Fact of the case:

- August 1963, the offence was committed about 5pm at sea near 2 island called 

  Pulau Dua which known as the Sister islands.

- The appellant had hired a sampan from a boatman called Yusof and on his 

  directions Yusof had taken both the appellant and Jenny (victim) to a place 

  between the two islands where he dropped anchor.

- Appellant stated that they went there was to collect corals and Jenny was to assist   

  him in doing so.

- Appellant assisted Jenny to put on the diving equipment which had been brought 

  in the sampan and allowed her, a novice diver, to go down alone, wearing a  

  flipper which had previously been cut, into water which he know were 

  dangerous and hazardous with the result that she meet her death.   

    

In this case, the circumstantial evidences can be strong enough to secure a guilty charge.  I would say there is a motive preparation and previous or subsequent conduct under Section 8 of Evidence Act 1950.

Firstly, the appellant has the motive to murder his lover in order to get the insurance’s money. Motive is that which induces a person to do a particular act. In this case, the appellant had been made a bankrupt in October 1962 and was still a bankrupt on 27 August 1963, being the day on which the offence was alleged to have been committed. He was in need of money and that could be a motive for the crime. On 27 August 1963, Jenny was insured against accidents with several insurance companies, the total sum being $450,000. Thus, we can see all these caused appellant has the motive to murder Jenny in order to get the money.

Secondly, the appellant had shows his preparation in this case.  Preparation is a preliminary act which leads to the commission of the offence.  Why there is a preparation exists? The reasons are below:

(a)    On 27 August 1963 the appellant allowed Jenny to go down into the water near 

         Pulau Dua alone. According to an expert witness, it was not safe for a novice 

         to scuba dive alone.

(b)   Jenny had only a little experience of what is called scuba diving and might 

        fairly be described as s novice scuba diver. This was known to the appellant, 

        although he claimed that she had made good progress under his tuition.

(c)    The waters near Pulau Dua were dangerous and hazardous. The appellant had 

        dived in these waters on previous occasions and was in a position to know 

         this.

(d)   The heel strap was severed and on examination it was found that the strap had 

        been cut in 2 places by knife or sharp instrument.

The 4 points above showing that appellant had made a preparation on murdering Jenny. He knew that the water near Pulau Dua was dangerous and it surely will endanger the safety of Jenny. He still insisted to let her do into water alone. And the most important part that the flipper has been cut by knife or sharp instrument. So, these can shown the preparations of Sunny, who wanted her lover dead.

Lastly, is the fact which shows the previous or subsequent conduct. In this case, the appellant made formal claims in the 3 insurance companies which had issued policies covering her against accidents within less than 24 hours after the disappearance of Jenny. This can be assured the court that the appellant’s guilty of murder. Besides that, the conduct of the appellant was described by the Yusof was lack of urgency.

In conclusion, I agree with the court that all these circumstances evidences can concluded that Sunny had the motive to murder his lover and he did that just for the money.

What is Res Gestae?

           

            Res gestae literally means things done. It refers to all facts so connected with a fact in issue, and are incidental to it. they are admissible as truth of its contents although they may be hearsay, or self serving statement and inadmissible in evidence. 

           The res gestae principle is embodied in Section 6, 7, 8, 9 and 14 of the Evidence Act 1950. The statement in order to constitute res gestae can be made by the parties to the transaction or even by bystanders. However, the statement should have been made at or about the same time the act was done. Contemporaniety or spontaniety must be shown before the statement is made admissible. For example, A is accused of murder of B by assaulting him. Whatever was said by A or B or bystanders at the time of assault or shortly or after it, may be relevant as it forms part of the whole transaction.

          The statements accompanying the act to be admissible should as possible be contemporaneous to act in issue which it related. Further, they should be spontaneously made so that there is no opportunity for fabrication. The whole purpose of the res gestae rules is to admit evidence of matter which are usually subject to some rule of exclusion, so as to enable the Court to look at the events in the proper perspective.

        In R v Bedingfield [1879], the accused was charged with murder. The defence was suicide. An exclamation made by the deceased woman while rushing out of the house with her throat cut was in question. The accused had entered that house a minute or two earlier. The statement was "see what Bedingfield has done to me". It was held inadmissible as the transaction in question, i.e the girl having her throat cut, was over by the time she made the statement, so it was not part of the transaction. The decision was subject to to severe criticism. The approach in Bedingfield is no longer followed in England.

       In Ratten v R [1971] 3 ALL ER 801, the accused was charged with the murder of his wife. The defence was that the shot was accidental. The deceased had telephone, "Get me the police please". The accused had denied that any telephone calls had been made from his house on the evening in question and to his rebut this, the prosecution wanted to call a telephonist from the local exchange to say that at a certain time she had taken a call from the accused's house. The telephonist said in evidence that the caller, a woman, accepted to have been Ratten's wife, had said, " Get me the police please", and had been hysterical. The defendant objected to this evidence being given, saying it was hearsay and not within any of the exceptions. The Privy Council held that it was not hearsay, and even if it had been, it would have been admissible under the res gestae principle. Lord Wilberforce set out the modern form of the res gestae rule, as follows:

" In their Lordship's opinion, the evidence was not hearsay evidence and was admissible as evidence of fact relevant to an issue.

The mere fact that evidence of a witness includes evidence as to words spoken by another person who is no called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on "testimonial" ie, as establishing some fact narrated by the words.

Their Lordship, as already stated, do not consider that there is any hearsay element in the evidence, not in their opinion was it so presented by the trial jugde, but they think it right ti deal with the appellant's submission on the assumption that there is: ie that the words said to have been used involve as assertion of the truth of some facts stated in them and that they may have been so understood by the jury. The Crown defended the admissibility of the words as part of the 'res gestae' a contention which led to the citation of numerous authorities.

... The test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. Thus may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the  words (or vice versa), and differences in location being relevant factors, but not taken by themselves, decisive criteria. As regard statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clear made in circumstances of the spontaneity or involvement in the even that the possibility of the concoction can be disregarded. Conversely, ....

The test should be not the uncertain one, whether the making of the statement should be regarded. But if the drama, leading to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happened, it ought to be received. The expression 'res gestae' may conveniently sum up these criteria, but the reality of them must always be kept in mind."

         However, in the case of Teper v R [1952] 2 ALL ER 447, Teper was charged for the burning down of a shop. The prosecution wanted to called a policeman to say that he heard a women shouting "Your place is burning and you going away from the fire." It was held that the evidence of the policemen will be hearsay and this inadmissible.

        In conclusion, it must be emphasized that of all types if relevant facts which are admissible to prove the main facts in issue, the principle of res gestae plays an important role.