Subsequent Conduct: Absconding/ Flight

Explanation 2 of Section 8 of the Evidence Act states that when the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant. We can also further refer to illustration (h) where the fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal and the contents of the letter are relevant.

Per Augustine Paul J in Public Prosecutor v Chia Leong Foo, the fact that the absconding or flight of a person is admissible under Section 8 which allows inferences to be drawn. However, the absconding or flight of a person after the commission of the crime alone is not enough to be considered to show that the absconder was having any guilty mind and amount to admission of guilt. Such conduct must be considered

in the totality of the evidence adduced.

For instance, in Chan Kwok Keung & Anor v The Queen where the appellant were found stowed away nearly ten months after the commission of the crime. The prosecution led no evidence that they had been hiding for all or any part of this period. One of the appellant gave some information in his statement after his arrest to the police as to where the appellants were living or working but no evidence was given as to whether these leads were followed up. The prosecution failed to produce evidence to justify the jury that the only reasonable explanation for the appellants stowing away on the ship from Hong Kong to Macau was that they were on the run because they knew they might be arrested and charged with this murder. There could have been variety of other reasons for their having stowed away nearly ten months after the murder. Therefore, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind because even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime, such is the instinct of self preservation.

We can also make comparison between the case of Roslan bin Sabu v Public Prosecutor and Taib Mohammad v Public Prosecutor where both cases involved the possession of drugs. In the former case, James Foong JCA was of the view that the appellant's act of throwing away  the two bags and running off after the police had ordered him to stop can lead to one inference that the appellant knew what he was carrying were illicit drugs since the plastic used to wrap them were so transparent. The contents could be seen right through both the plastic bags and the plastic wrappers. Unlike the latter case where the plastic bag was black in color and the drugs were also wrapped with brown tapes. There was a likehood that the accused may not know the contents on the bag he was carrying because the strong color of the bag may conceal the identity of the drug and this will give benefit of the doubt to the accused that he had no idea what was he carrying. Therefore, it would not suffice to satisfy the mens rea element of the appellant on possession. The flight coming from the accused person after being arrested can equally be the reaction of an innocent but surprised person ( Per KV Vohrah J referred to a passage from the judgment in the Indian Supreme Court in Matru @ Girish Chandra v The State of UP). 

In a nutshell, in order for the act of absconding or flight to be capable of amounting to an admission of guilt, there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question. However, if the accused fail to put forward any explanation of absconding after the occurrence of a crime is a point in favour of the prosecution (see Public Prosecutor v Chia Leng Foong). 

HEARSAY

Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. Hearsay evidence is generally not accepted in court. The general rule is that all relevant evidence are prima facie admissible, except for hearsay and opinion.

In Subramaniam v PP, LMD Silva said:

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It 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 . The fact that the statement was mde, quite apart from the truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made."

There are two main things to consider in deciding whether a statement in an examination question is caught by the hearsay rule.

First, see if an out of court assertion, which may be a statement or a gesture, is being tendered in court either through oral evidence or where the witness is tendering a document containing statements made by a person out of court.

Second, determine the purpose for which the out of court assertion in the question is being tendered or repeated in court. If the statement is tendered to establish the truth of its contents, it is hearsay. If the statement is being tendered to establish some other fact, it is not hearsay. (Subramaniam v PP)

In PP v Ng Lai Huat, the utterance of one of the five accused persons to the police officer who negotiated with them and who sought to give evidence of these utterances at the trial as to the ransom which they required were held to be hearsay because they were tendered to prove the truth of those utterances i.e. that a ransom had been demanded by all of them.

In Sparks v R, the defendant who was white was charged with indecently assaulting a girl under four years old. The mother's evidence of what her daughter (the complainant) had said about her assailant, "it was a coloured boy", was ruled inadmissible because it infringed the hearsay rule since the defendant was relying on the girl's statement for the truth of what had been asserted.

Rationale for the hearsay rule

• hearsay is not the best evidence
• the risk of errors in transmission (misreporting and inaccuracy through repetition)
• the demeanour of the original source is lost
• hearsay statements are normally not on oath
• the maker of the statement cannot be cross-examined
• to avoid fraud, concoction or fabrication
• to save time at the trial and prevent multiplicity of issues
• to avoid surprise and prejudice
• the defendant's right of confrontation 

_________________________________________

How accurate can the spontaneous statements made connected with the fact in issue be to render it admissible?

Statements made spontaneously by the victim to the witness can be made admissible in court. In the case of Ratten v R, Lord Wilberforce held that hearsay evidence may be admitted if the statement is made in the involvement of pressure as to exclude concoction and distortion. In that case, the call to police was made in being forced from deceased by an overwhelming pressure, thus it is made spontaneously. Based on that judgement, it can be sum up that, the statement made spontaneously can be admissible because there is no time or no room for the victim to fabricate, add in or change his statements. Plus, the statement was made contemporaneously after the incident. Apart from this, a case in Ireland, The People (Attorney General) v Crosbie., the court of appeal held that the words spoken by the victim were admissible although it was hearsay because it formed part of the criminal act for which the accused was tried. The Court further stated that the statement made by the victim was immediately after he had been stabbed by the defendant. In that case, the words spoken by the victim were spoken within one minute of the stabbing.

Question is, How accurate can those spontaneous statement be to render it admissible?

For instance, a person who was seriously injured after the stabbing uttered the words to another. In that circumstance, the state of mind of that injured person might not be as clear as when he was not injured. There are possibilities that his vision and judgment were not that accurate compare when he was not injured. After all, they are only human and human errors might occurred in that kind of tension situation. Another example is when Siti’s bag was snatched during the night where the street was dark. Subsequently, the Siti was seriously injured when her head was knocked against the concrete floor. Adam saw the person lying down right after she fell and she told Adam that “a guy who looks like Ali snatch my bag and push me”. In that dark street, Siti’s judgment might be wrong although her statement was made spontaneously. The identification of the real person who snatch Siti’s bag might not be right. If the court admit this evidence, it might bring injustice to Ali.

All and all, the requirements of the statement done must be spontaneous and contemporaneous which is connected to the fact in issue is something quite subjective and the court had to use its discretion very carefully to scrutinize the evidence.           

~Pinyin signs out~

complaint as conduct, how?

How could complaints make by a complainant be treated as conduct under section 8 of Evidence Act 1950? This could be answer by looking into the analysis of section 8(2) and 3 cases as followed:

1. section 8(2), this section is relating to conduct of:
(i)  any party or agent of any party (eg: family members) to any suit or proceeding in reference to that suit or proceeding;
(ii)  any party or agent of any party in reference to any fact in issue therein or relevant thereto;
(iii) any person an offence against whom is the subject of any proceeding;
no matter it was previous or subsequent thereto as long as it influences or is influenced by any fact in issue or relevant fact.

explanation: in section 8(2), TWO requirements are set up: Firstly, the nature of conduct must have influencing factors and has no time limit. Secondly, the parties of who the conduct was relevant (as stated above).

In Explanation 1 & 2, they function as exception clause in a way that it excluded the admission of mere statement.to regard as a conduct unless the statement made is relevant to the conduct. However, the mere statement might be relevant under other section in Evidence Act.

2. case of Aziz bin M. Din v PP, in this case discuss the issue of STATEMENT vs COMPLAINT

STATEMENT:
(i) relevant only as corroborative evidence under section 157
(ii) restricted by section 73A(7) (restriction on admissibility of statement in civil suit)
(iii) could only prove knowledge and no evidence conduct

COMPLAINT:
(i) relevant as it is also part of res gestae under section 6
(ii) not subject to section 73A(7)
(iii) not mere knowledge but is a kind of feeling with a view to punish and is made to authority (eg: police)

3. case of PP v Ku Hong Chua

Facts: The accused was charged with rape. The crucial question as whether there was consent on the part complainant to the sexual intercourse.
Held: complainant made the complaint almost immediately after the incident, this gave her no opportunity for reflection to falsely incriminate the accused out of remorse. Moreover, the police officer's evidence shown that complainant's appearance where her hair looked disordered, the way she holding her stomach and her dress was ruffled. And she looked weak.
Based on all these observation, it made the complaints to the police officer to be validly taken as relevant fact. This was in line with Illustration (j) under section 8.

4. case of PP v M. Terang b Amit

Facts: PP appealed against the decision that Respondent was acquitted on the charge of using criminal force to outrage the modesty of victims (students of age average 12) on the ground that there was no report made in first reasonable opportunity.
Held: the magistrate had failed to consider that the complainants were all school children so they might not possessed the idea to lodge a report and do not have the opportunity to lodge it. That made their report turn to be admissible.
Principle: if there was a valid reason in failing to file a report shortly as mentioned in Illustration (j), it do not invalidate the admissibility of the complaint.

5. conclusion
Basically, these were the matters which had to take into account before a complaint could be considered as a conduct and become admissible in court under section 8 of Evidence Act.

Section 7 -Evidences of mere opportunity in Rape cases- Why women choose not to report nor go to court when they are being raped?

Literally millions of women are raped each year, but few rapes are reported- perhaps 4-5% or even less.-Laura "RAPE" December 2012 , The Centre For Development

Under Section 7 of the Evidence Act 1950, 3 categories of fact are said to be relevant:

(a) Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue;

(b) Facts which constituted the state of things under which they happened; or

(c)Facts which afforded an opportunity for their occurrence or transaction.

Today, I will discuss on (c) facts which afforded an opportunity for the occurrence or transaction.

Basically, evidence of mere opportunity cannot amount to corroboration unless it is supplemented by proof of circumstances of such a nature as to lead to the inference that it was probable that advantage would be taken of the opportunity. In other words, although opportunity itself is a relevant fact, it cannot be a piece of admitted evidence in court by itself. The facts which afforded an opportunity for the occurrence /transaction is closely related to Rape cases because in most rape cases, it is actually utmost difficult for the victim to provide evidences, likewise other criminal cases such as robbery (the weapon/ stolen goods) and murder(the dead body weapon).Even if the fact shows that there is an opportunity for the rape case to be taken place, this fact cannot amount to corroboration if there is no any other supported evidence. Therefore, in rape cases, the accused can always easily raise doubt and get acquitted.

In Aziz Bin Muhamad Din v PP,the accused and the victim spent the night in a house owed by A. A went out on the night where the rape was alleged been taken place, and when A came back on the following morning, the victim and the accused already wake up and was having breakfast. The situation clearly afforded an opportunity for a rape case to occurred  However, the court held that although it constitutes evidence of opportunity, it is setted law that evidence of mere opportunity, without more, cannot amount to corroboration. There is uncertainty and doubts in the medical evidence. 2 different medical evidences show that (i) the victim had old multiple tears in her hymen and it was one week old, (ii) the old tear in the hymen was between 48 hours-3 months old. Augustine Paul JC stated the medical evidence which corroborates the evidence of the complainant would have constituted supplementary evidence. But, in this case, the only available evidence is that of mere opportunity which cannot amount to corroboration of the evidence of the victim. Therefore the accused was accquited.

We have to distinguish rape cases with other crimes where the evidences are hard to adduced to the court plus the consent of the victim is difficult to be determine. Normally, in rape cases, the victim would not go directly or immediately to the police station to lodge a report because they were under trauma, agony and shock. Some of them do not go to the police because they are too ashamed or to avoid unpleasant encounters with the police officers. In fact, some of the victims are threaten by the rapist to not report to police. In all circumstances above, it may cause delay to provide evidence especially if the victim had bath and clean their bodies. It is also wrong for the court to rely solely on medical evidences because there might have several different tears in victim's hymen due to previous sexual intercourse with their husband.

To avoid failure to prove a rape case, most of the victims choose not to make police report. In situation where the accused is acquitted, women who are raped are consider the criminals, as though they brought it on themselves and are thus gulity of 'seducing the man', even if this was not true at all. One example is where Lord Campbell-Savours, the Labour peer, used parliamentary privilege to identify a woman during a debate on rape legislation in the House of Lords, describing her as 'a serial and repeated liar' after a man initially found guilty of a sex attack on her had his conviction overturned. Her identity was later published in the Daily Mail. And there is example where the victim was arrested for perverting the justice after report that she was been raped.(***please refer article :"If I get raped today, I would not report it" by Julie Bindel, 25/10/2006) These are why woman choose not to go to the police and court even if they were raped because they are afraid of a greater hurt.

It is true that the evidence of mere opportunity should be taken with extra care in order to avoid fabrication of evidence and it is no doubt that it is the duty of the prosecutor to prove beyond reasonable doubts in all criminal cases. Anyhow, something has to be done as we can see the law may no longer guarantee justice and the safety of the woman. It is undeniable that the evidence of mere opportunity should corroborate with supplementary evidence, however judges has to be caution towards the fact of each cases in order to give faith in society toward our legal system.

***http://www.guardian.co.uk/society/2006/oct/25/penal.crime

Sunny Ang v PP: A Review

Take the circumstances in the Sunny Ang case in the context of the Malaysian Penal Code and judiciary system as it is today. Would the decision have been similar?

If we properly scrutinize the decision of Sunny Ang, it is clear that there is one missing element of murder i.e., death. There was no prove that the accused’s girlfriend, Jenny Cheok died. She had merely been missing after the couple’s scuba diving trip in the straits between Sisters’ Island. Her dead body was never found.

The unanimous decision to sentence the accused to death was made in the High Court, by a seven-man jury. It must be noted that juries are laymen, and if not properly guided by the counsels or court, would most likely be guided by emotions of their own. The accused went on to appeal against the decision of the High Court at the Federal Court and the Privy Council but both applications were rejected.

The Federal Court ruled that the incident was not a mere accident. This is true, for the circumstances, when roped together, would clearly show the intention to cause death on the part of the accused.

One of the contentions for the appeal was that the trial judge erred in law in failing to direct the jury on a possible verdict of culpable homicide not amounting to murder. Learned judge also went on to state that it was not necessary to give that direction to the jury and that the case was one in which the appellant was either guilty of murder or not guilty of any offence whatsoever. Question: Could attempt to murder be a more suitable charge? (See S307 Penal Code, particularly illustration b).

Illustrations (a) to (d) of S300 of the Penal Code contains the element of death of a victim as a consequence of acts of an accused. The opening words of S299 of the Penal Code reads “whoever causes death”. Death appears to be a necessary element. Without the death of Jenny Cheok, all the other evidences could only have proven intention to murder. The acts of preparing to cause death alone should not have been sufficient to convict the accused of murder.

In a nutshell, the decision could have been different if the sentence was not made by a seven-man jury. They ought to have been informed of the ingredients/elements of murder before they decided to sentence the accused to death. 

Dying Declaration

        Dying Declaration is admissible under Section 32(a) of Evidence Act 1950. It must be proved to have been made by the deceased, must narrate the cause and circumstances of his death (PP v Mohd Jamil bin Yahya & Anor). If the declarant survives, the statement is not relavant as a dying declaration but it may be relied on under Section 157, to corroborate his testimony when examined.

Although it is admissible, it is a weak type of evidence because:
(a) It is not made on oath;
(b) It is not subject to cross-examination;
(c) It is made in the absence of the accused; and
(d) There is no peril of the prosecution for perjury.

The rational for admitting dying declaration is laid down in R v Woodcock as:
(a) They are declarations made in extremity, when the party is at the point of death,   
     and when every hope of this world is gone;
(b) Every motive to falsehood is silenced, and the mind is induced by the most powerful 
     considerations to speak the truth;
(c) A situation so solemn and so awful is considered by law as creating an obligation 
     equal to that which is imposed by positive oath administered in a court of justice.

A dying declaration may be made:
(a) To anyone: police officer, magistrate or private person; and
(b) In any form: written or oral. If written, it is proved by examining a person who 
      recorded it. If oral, it is proved by examining some person, who was present at the 
      time and heard the statement being made.

Under English Law, the declarant must have been:
(a) In actual danger of immediate death, at the time of making the declaration;
(b) Fully aware of his danger;
(c) Must have died subsequently.

Below are the differences between the English Law and Malaysian law in Dying Declaration:

English Law
(i) Dying declaration is admissible only in criminal case, and that only in the prosecution 
     for murder of the deceased.
(ii) Dying declaration is admissible only when there are expectation, knowledge and 
     death

Malaysian Law
(i) Dying Declaration is admissible in any case whether civil or criminal.
(ii) Dying Declaration is admissible when the cause of death is in question. Expectation 
        and knowledge are not essen

Motive vs Intention

Introduction
Motive is a psychological fact which can be trace from the conduct of the accused / suspect. On the other hand, intention is a decision to execute an action or not. In other words, intention is the result of the motive and it established a higher level of culpability as it has caused harm to others.

Example
Manfred stole a watch from a shop because he wants to give it as a gift to a massage therapist which helps him massage daily. The motive in this case is Manfred wish to gives the massage therapist a gift and the intention in this case is to steal the watch from the shop. 

Justification on Guilt 
Evidence of motive is relevant and material in criminal cases but it cannot stands on its own to convict a person. In other words, motive has to collaborate with other relevant facts in order to prove the fact in issue.Contrary, intention is a direct evidence and and clear proof that the accused has committed the crime and hence it can stands on its own to convict the culprit.

Decided Cases
Nath Singh v R

Fact 
In this case the accused was tried for the murder of Karnail Singh. Evidence was led to show that Karnail Singh was extorting money from the accused on the grounds that he knew the accused had killed one Bhan Singh. Eventually, this fact was admitted to show motive for this murder. 

Judgement
The evidence to show alleged motive for a crime is admissible even though such evidence suggest the commision of another crime by the accused.

Relevancy and Admissibility of Evidence

Evidence is the backbone of any civil and criminal trial. Section 5 of the Evidence Act 1950 mentions evidence may be given of facts in issue and relevant facts, but not others. An act can only be regarded as evidence if it is connected to the facts in issue or any relevant facts. The word " and of no others" in section 5 is mandatory (See Muthusamy v Public Prosecutor). Read also section 6 until section 55 which talks about facts declared to be relevant by this Act.

Relevancy of evidence is a question of fact and the general rule is that all relevant evidence are prima facie admissible to the Court. However, this general rule is subject to few exceptions. Firstly, hearsay and opinion are not admissible to the Court laid down in the case of R v Turner. Secondly, a relevant evidence would be tender inadmissible if the nature of the evidence is so prejudice to the accused, which overrides its probative significance.

The second exception concerns with two scenarios. Citing from the Court in the landmark case of  Markin v AG of New South Wales, it is not competent to adduced evidence other than those covered in the indictment because if the acts of a previous crime committed by the accused is being admit as an evidence, it would leave the impression to the jury that the accused is more likely to commit the same nature of crime again. This type of evidence will only be admissible if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or the evidence is to rebut a defense which would open to the accused. If it fails to bear upon the question, it is inadmissible not because it is irrelevant, but the weight of its prejudicial nature to the accused is greater than its probative significance.

Another scenario that might affects the admissibility of the evidence is the legality of the evidence obtained. Citing from the remark of Crompton J in R v Leatham centuries ago, “it matters not how you get it; if you steal it even, it would be admissible". The court is not concerned with how the evidence was obtained (See Kurma v The Queen), evidence illegally or improperly obtained is admissible as long as it is relevant. But, it is not admissible if it is obtained from a trick (See Public Prosecutor v Haji Hashim), that would be prejudice to the accused where a fair trial would be endangered. Note that entrapment set up by the authorities is generally not consider as a trick (See R v Sang). A evidence is not admissible if the strict rule of admissibility would operate unfairly against the accused (Per Lord Goddard in Kurma v The Queen).

However, not all admissible evidence is universally relevant. Per Lord Simon in the case of R v Kilbourne, admissible evidence may be relevant to one count of an indictment and not to another. It may be admissible against one accused (or party) but not other. It may be admissible to rebut a defense but inadmissible to reinforce the case of the prosecution.

Therefore, it is important to remember that:

1) All relevant evidence is admissible (subject to conditions);

2) Not all admissible evidence is relevant; and

3) Irrelevant evidence is inadmissible.

Common Law's Res Gestae & Section 6 of Evidence Act 1950

*read the previous post for more information regarding doctrine of res gestae

Although it is not explicitly mentioned in the Evidence Act 1950, it said that the principles of res gestae is incorporated into our Evidence Act 1950.  Section 6 of Evidence Act 1950 stated that 'Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and place'. Hence, this section admits facts, which technically comes under the expression of res gestate, i.e., a group of facts so connected together as to be referred to by a single legal name as a crime, a contract, a wrong (Thavanathan v PP).

So, the question is what is the difference between common law perspective of res gestae & section 6 of Evidence Act 1950 ?

1. Occurrence of the Fact.

Under common law, before a fact is made admissible, it must be shown that there must be elements of spontaneity or proximity or contemporaneity. Unlike section 6, the fact need not prove those elements but rather contemplates the possibility of the acts happening at different times and places being connected with the fact in issue, so as to form part of the same transaction. 

To illustrate, under common law, in Ratten v The Queen, a women's voice was heard on the telephone 'Get me the police please' and gave the address 59 Mitchell Street. Before the operator could make the connection to the police the caller hung up. Shortly afterwards the caller was shot dead by her husband who asserted that his gun went off accidentally while he was cleaning it. The Privy Council held that the words were admissible as part of the res gestae. One of the basis allowing the evidence to admitted was the statement made by the victim was made in spontaneity and in close proximity to the crime, therefore no possibility for concoction and fabrication. 

However, in Hamsa Kunju v R, the appellant was convicted on three charges of causing hurt and grievous hurt. It was argued that the appellant that a threat made by him in the morning should not be made admissible to prove the offence which occurred at night as evidence as it was alleged to be prejudicial to the fair trial of the appellant. If under the position of common law, this very evidence would likely to be held inadmissible as there is a gap of time in between the making of the threat and the occurrence of the offence, which would likely to diminish the element of spontaneity nor proximity nor contemporaneity. Nonetheless, the court ruled that the threat in the morning formed part of the same transaction as to the events at night hence admissible. 

2. Rigidity

Doctrine of res gestae is governed under strict surveillance in common law to uphold the originality of the evidence - preventing concoction and fabrication. Differ with section 6, whereby which is more wider in its wording and application.

In R v Mead,  it is said that the proof of dying declaration as these is confined to homicide cases only; and the subject of the dying declaration must be in the immediate circumstances of the cause of death. It can be seen that the English Law is very reluctant to allow hearsay evidence to be proved and those evidences must fulfilled the governing criteria. 

In comparison to section 6 which is more flexible, in Jaffar bin Hussain v PP, the appellant was charged with two offences, firstly with carrying a shot gun and second, being a hand-grenade. At the trial, the learned trial judge directed that the trial should proceed won the second charge only. During the trial on the second charge, evidence given was based on the fact that the appellant was carrying a gun. The appellant was convicted. On appeal, it was argued that the evidence regards to appellant carrying a gun should not have been admitted, because the second charge was relating to hand-grenade. However the court stated that the evidence was rightly admitted in this case as the facts of carrying arm and ammunition is so connected together as to form one transaction, hence the evidence must be stayed admissible.

In a nutshell, the wording of section 6 allows a wider interpretation and application of doctrine of res gestae as to common law's position which is must strict and rigid.