Evidence Tutorial, Question 14 - Lavernya bala subramaniam (A166528), Firm 11

Question 14 is about the admissibility and relevancy of the evidence given by the witness for
the situation provided.

The first evidence was given by Natasha Hudson. Based on my opinion, I believe that the
statement given by Natasha Hudson falls under the Principle of Res Gestae under Section 6 of the
Evidence Act 1950 (EA). In simple words, this section admits facts that form part of the same
transaction where it is so connected that it cannot be separated. According to Sir James Stephen, the
phrase “same transaction” means a group of facts so connected together as to be referred to by a
single legal name as a crime, a contract, a wrong or any other subject of enquiry which may be in
issue.

Under the Principle of Res Gestae at common law, spontaneity, proximity or contemporaneity
must be shown before the fact is made admissible. However, under Section 6 EA, even when a fact is
not closely connected with the fact in issue, it may form part of the same transaction. From this, it is
clear that under Section 6 EA, the facts can occur at the same time and place or at different times and
places. In the case of Hamsa Kunju v R [1963], the appellant was convicted on three charges of
causing hurt and grievous hurt. It was argued for the appellant that a threat made by him in the
morning should not have been admissible to prove the offence which occurred at night as the evidence
was alleged to be prejudicial to the fair trial of the appellant. However, the court ruled that the threat
made in the morning formed part of the same transaction as to the event at night and came within the
rule of res gestae. It was held that the whole of that evidence was part of the res gestae and was
material and relevant. Chong Siew Fai CJ in the case of Thavanathan a/l Balasubramaniam v PP
[1997] held that in each case, the judge has to decide according to the circumstances, drawing the line
between the facts, which are so connected with the facts in issue as to be part of the same transaction
and facts which are beyond that limit. No precise limit can be prescribed. In some cases, the
transaction lie within narrow limits of time; in other cases, they may be spread over a long period.
Therefore, based on the explanation given, I believe that the statement given by Natasha Hudson falls
under the Principle of Res Gestae under Section 6 EA as the facts is one that is so connected to the
facts in issue and it happened within a reasonable time which according to the situation given, is a day
before the murder took place. Hence, I believe that the statement given by Natasha Hudson as
evidence is relevant and admissible under Section 6 EA under the Principle of Res Gestae.

The second evidence is given by Thayalan. Based on my opinion, I believe that the statement
given by Thayalan falls under previous conduct under Section 8(2) EA. Section 8 EA in general deals
with three principle facts namely motive, preparation and conduct. Subsection 1 of Section 8 EA deals
with relevancy of motive and preparation whereas Subsection 2 of Section 8 EA deals with relevancy
of conduct. Furthermore, according to Explanation 1 in Section 8 EA, it is stated that the word

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‘conduct’ does not include statements unless those statements accompany and explain acts other than
the statement. Thus, a statement is not relevant as conduct unless it is accompanied by acts. Both the
act and statement will constitute the conduct.

The word ‘conduct’ means one’s behaviour or something that reflects one’s state of mind and
some of the examples of an ‘act’ would be one’s facial expression or when one is feeling
uncomfortable among others. Apart from that, Illustration (g) in Section 8 EA provides as follow:-

“The question is whether A owes B RM10, 000. The facts that A asked C to lend him
money, and that D said to C in A’s presence and hearing: “I advise you not to trust A for
he owes B RM10, 000,” and that A went away without making any answer are relevant
facts.”

Based on the Illustration above, I believe that it shows that silence may amount to
conduct and thus relevant under Section 8 EA. Therefore, based on the explanation given, I
believe that Thayalan’s statement is admissible under Section 8(2) EA as firstly, the statement
was accompanied by an “act’ which was shown when Thayalan questioned Bobby (the accused)
if he was jealous that his wife was seen going out with Tan often and he did not answer and
changed topic. This shows that Bobby was not comfortable with the topic and I believe this falls
under previous conduct. Secondly, based on Illustration (g) of Section 8 EA, I believe it is
somehow related to the situation given as the accused did not reply Thayalan’s question and
proceeded to switch topic. The silence by the accused made Thayalan’s statement relevant.
Hence, I believe that the statement given by Thayalan as evidence is relevant and admissible
under Section 8(2) EA as previous conduct.

The third evidence is given by Balqis. Based on my opinion, I believe that the statement
given by Balqis falls under the first part of Section 8 which is Section 8(1) EA which shows
motive. As stated above, Subsection 1 of Section 8 EA deals with relevancy of motive and
preparation. Motive is that which a factor induces a person to do a particular act. Every
voluntary act has a motive. Motive and intention must be distinguished. A person’s intention is
his decision to do or not to do a particular act, but his motive is the reason for forming that
decision. Therefore, motive is the emotion supposed to have led to the act. Motive relates to
psychological facts which can be proved by the conduct of the accused. However, in the case of
Mohamad Deraman v PP [2011] and PP v Pathmanabhan Nalliannen & Ors [2013], the courts
held respectively that the absence of motive may effect but does not destroy one’s case but
absence of intention destroys one’s case.

In criminal cases, motive is very important and material especially when a case depends
entirely on circumstantial evidence. This can be seen in the case of Wong Foh Hin v PP [1966]
where the court held that motive was admissible as the case relied on circumstantial evidence

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and motive has high probative value. However, in the case of PP v Oh Laye Koh [1994], it was
held that the absence of motive does not mean no intention was present. Based on the
explanation given, I believe that Balqis’s statement shows motive on the part of the accused that
led him to murder his wife. According to Balqis in his statement, he states that after Thayalan
asked if the accused was jealous that his wife was seen going out with Tan often, the accused
kept quiet but whispered slowly as if to say “hmmm…Tan” while smiling before changing the
topic. From this, I believe it is clear that the accused action where he whispered “hmmm... Tan”
while smiling shows that a motive was form by what Thayalan has told him which is the
accused wife was seen going out with another man often. Therefore, from Balqis statement, I
believe that the motive of the accused to murder his wife is jealousy. Hence, I believe that the
statement given by Balqis as evidence is relevant and admissible under Section 8(1) EA as it
shows motive.

The last evidence is given by Inspector Sahab. Based on my opinion, I believe that the
statement given by Inspector Sahab falls under the exception of the hearsay rule under Section
60 EA. Hearsay means a statement made out of court that is offered in court as evidence to
prove the truth of the matter asserted. The general rule for Hearsay evidence is that it is not
admissible in court as it is not direct evidence. Evidence that is not direct is what a witness
testifies in court about what he heard from a third party who is not himself called as a witness.
The evidence of such witness is inadmissible to prove the truth of the fact stated. However,
there are a few exception to the rule of hearsay under Section 60 EA. Section 60(1) EA laid
down the following exception:-

60. (1) Oral evidence shall in all cases whatever be direct, that is to say—

(a) If it refers to a fact which could be seen, it must be the evidence of a witness
who says he saw it;

(b) If it refers to a fact which could be heard, it must be the evidence of a witness
who says he heard it;

(c) If it refers to a fact which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he perceived it by that
sense or in that manner;

(d) If it refers to an opinion or to the grounds on which that opinion is held, it must
be the evidence of the person who holds that opinion on those grounds.

Based on the situation given, I believe the first part of Inspector Sahab’s statement is
admissible and relevant as it falls under the exception of Section 60(1)(b) EA where he refers to
a fact which could be heard and is evidence of the witness who heard it himself (Thayalan).

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This situation differs and can be extinguish from the case of Billy Max Sparks v The Queen
[1954] where the child told the mother that a coloured boy indecently assaulted her but the child
was not called to give evidence in the trial. The Privy Council held that the mother’s evidence
was hearsay and inadmissible. In the current situation, Inspector Sahab repeated what Thayalan
said and Thayalan was a witness called to testify. Hence, the first part of Inspector Sahab’s
statement until where he wrote it down is admissible and relevant.

However, the second part of Inspector Sahab’s statement where he states that Thayalan
came to him and told that he did not inform one more thing which is a day before the death of
the accused wife, the accused told Thayalan that he hates his wife and feels like killing her, I
believe this statement is inadmissible in court as it does not fall in any of the exception of the
hearsay rule under Section 60(1) EA. This is because as soon as Inspector Sahab told this part,
Thayalan immediately stood up and denied it. Apart from that, this part of Inspector Sahab’s
statement was not told by Thayalan himself during his testimony as a witness. Hence, I believe
that this part of Inspector Sahab’s statement does not fall under any of the limb provided under
Section 60(1) EA. Hence, I believe that the second part of Inspector Sahab’s statement is
inadmissible in court although it might be relevant to show the intention and motive of the
accused of murdering his wife.