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.

Circumstantial Evidence II

Circumstantial evidence is evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred. S 5 of the Evidence Act provides that if the evidence is relevant, then it is admissible. Thus, circumstantial evidence is admissible but with a lesser degree of probative value.

One famous case on circumstantial evidence is Sunny Ang v PP (which had been discussed at length in one of our earlier blog posts). In the case of Johar bin Mustapa v PP, the accused was convicted for drug trafficking. Some of the circumstantial evidence which lead to the conviction was that: the accused opened the trunk of the car, removed the bag and threw it away right after the car crash; the accused chased away those who came forward to help him; the accused looked confused when approached; and the accused ran away when he saw the police.

In the case of Yeap Boon Hai v PP, the court relied fully on circumstantial evidence in convicting the accused of murder by setting fire to the family home. Among the circumstantial evidence were: the neighbour living opposite the accused saw him ascending the staircase alone at 3.50am in the morning; the petrol station attendant said the accused had earlier bought petrol with four empty plastic containers; the accused’s brother and sister-in-law testified that the accused argued with his wife when she asked for a divorce; the neighbour next door hear them quarrel at about 3.30am; a chemist testified that the liquid which was in the plastic containers was petrol which had in fact evaporated; the officer of the fire department testified that the fire was started with inflammable liquid such as petrol; and the pathologist testified that the cause of death was from smoke inhalation.

However, in PP v Sarjit Kaur, the accused was found not guilty of the murder of her husband on the following circumstantial evidence which were seen as weak by the court: the accused was an unfaithful wife and was ill-treated; the accused stood to benefit financially from her husband’s death; traces of blood stains were found on a dress belonging to the accused; and the accused had insisted that the maids and her three children go to bed earlier.

The two famous tests used in applying circumstantial evidence are the ‘Irresistable Conclusion Test’ and ‘Beyond Reasonable Doubt’. The Irresistable Conclusion Test is that the judge in looking at all the circumstantial evidence must come to the irresistable conclusion that the accused is guilty, as seen in R v Hodge. The House of Lords in Mc Greevey v DPP stated that when an accused is proved to be guilty beyond reasonable doubt, there is no need for a special direction of the Irresistable Conclusion Test.  

What Court has to pay attention to before admitting a statement as part of Res Gestae?

Res Gestae has already been well explained by one of my learned friends in the previous post. Therefore, i shall go straight into answering the question posted above. Before admitting a statement as part of the res gestae, the Court has to address few issues first. They are the following:-

Firstly, the judge must post a question to himself: can the possibility of concoction or distortion be disregard?

To answer this question, the judge has to take into consideration the circumstances when that particular statement was made. In the midst of making the statement, the maker of the statement must be in the state of pressure. In this time of pressure, the possibility of concoction or distortion would be excluded. In addition to that, the event must be so unusual or overwhelming or dramatic as to dominate the thoughts of the maker so that his utterance was an instinctive reaction to that event and hence, giving no real opportunity for reasoned reflection.

The event must be made spontaneously. What is spontaneously? It means, it must be very closely associated with the event which has excited the statement that it can be fairly stated that the mind of the maker of the statement was still dominated by the event and there are no time for the maker to change or add in additions informations.

At the end of this part, the judge must be satisfied that the circumstances  were such that, having regard to the special features of malice, there was certainly no possibility of any distortion or concoction to the advantage of the maker as well as to the disadvantage of the accused.

Furthermore, the judge has to take into the account of any possibilities of error which might occurred when the maker of the statement made that particular statement. Human after all sometimes can made some mistakes due to few reasons. One of them is due to the sights. For instance, while making the statement, the maker actually suffered some eye problems and because of that his judgement might be inaccurate. 

Based on the above, it can be concluded that, although statement can be admitted as part of res gestae, this rule should be applied with care and it should always be applied strictly. This is to prevent any fabrications to the case; Seah FJ in Leong Hong Khie v PP.

~Pinyin signs out~ *stay tuned to the next interesting post by us!* :)

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.