HEARSAY

FORMULA
1. RELEVANCY
if not relevant will be excluded
If relevant move to the next step
2. ADMISSIBILITY (is it hearsay?)
If it is not hearsay = original evidence (admissible )
If it is hearsay = not admissible as GR
3. EXCEPTIONS
if the hearsay evidence falls under an exception = admissible
Exceptions
1.
2.
3.
4.
5.
6.
7.

s.32*
s.33
s.73A*
s.90A*
res gestae / s.6*
Confessions /Admissions[next chapter]
S 14 fact showing state of mind. Re Soo Leot: if it is fall within s14,
it is OE

WHAT IS HEARSAY?
CROSS an assertion other than one made by a person while giving oral
evidence in the proceeding is inadmissible as evidence of the fact
asserted.
SUBRAMANIAM V PP [1956] MLJ 220
a. out of court assertion
b. repeated in court
c. the original maker of the statement is not witness(cannot be cross
examined )
d. the purpose of adducing the assertion is to prove the truth of
contents
All 4 elements must be present for the statement to fall within the
definition of hearsay.
If it does as a GR it is not admissible
RULE: S60. Oral evidence must be direct.
(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;

HEARSAY
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.
A. PAUL in LIM AH OH V R [1950] MLJ 269
Rule against hearsay is well establish in CL & s60. Anything falls within 4
limbs of Subramaniam = hearsay & not admissible.
WHY HEARSAY X ADMISSIBLE?
1.
2.
3.
4.
5.

Not given under oath

Maker cannot be tested under cross examination
To avoid fabrication and concoction
Unreliable (misreporting & inaccuracy)
Time

TEPER VR (1952) AC480

Hearsay is not the best evidence & is not delivered on oath. Truthfulness
& accuracy cannot be tested in cross-examination.
Distinction between original evidence and hearsay
Not all out of court assertions will fall within the definition of hearsay.
It is only hearsay if the statement is being tendered to prove the truth of
its contents.
It the out of court statement is being tendered for some other purpose
ORIGINAL EVIDENCE/DIRECT EVIDENCE
Original Evidence: Statements which are being tendered for
1.
2.
3.
4.

to show knowledge
that a statement was made
state of emotion/mind
duress

Very subjective: one mans Hearsay is anothers OE. (matter of judicial

opinion)
SUBRAMANIAM V PP (1956)
Accused was charged with unlawful possession of animation & grenade.
Defence: duress as he was threatened by communist. No communist in
court hearsay/ OE?
Held: to show state of mind/ truth of content? The threat has been made
and it is state of mind. s14 state of mind if tendered in court to show
state of mind, it is OE & admissible
RATTEN V R (1972)
Accused was charged for murder of his wife and the gun accidentally shot.
The deceased had telephone, "Get me the police please". Prosecution
wanted to call a telephonist to say that at a certain time she had taken a
call from the accused's house. The telephonist said in evidence that the

HEARSAY
caller, a woman, accepted to have been Ratten's wife, had said, " Get me
the police please", and had been hysterical.
The Privy Council held that it was not hearsay as it is not tendered for the
purpose of truth, and even if it had been, it would have been admissible
under the res gestae principle. It was admissible in order to est the
womans mental state.
R V BLASTLAND (1986)
Accused was charged with burglary & murder of a 12 year old boy &
convicted. He appeal on the ground that the trial judge rejected the
evidence. The House of Lords held that the
statements would only be admissible if the state of mind
of the maker of the statement is either directly in issue itself or is of
direct and immediate relevance to an issue arising at the
trial. The issue at the
trial was whether B had committed the offences charged and
what was relevant to that issue was not the fact of Ms knowledge.
Mark confession truth of content hearsay
Mark knowledge OE but not relevant.
SPARKS V R [1964]
A white man was convicted of indecently assaulting a threeyearold girl w
ho did not give evidence
at the trial. The defence had sought to call the mother to give evidence
that shortly after the assault the child had said to her, It was a coloured
boy.
Prove truth of content ( coloured boy)- hearsay.
The Privy Council held that the trial judge had properly ruled that the
evidence was inadmissible hearsay. The effect of this ruling on the case
would seem to imply that the victim could not identify her assailant.
MYERS V DPP (1964)
there are hearsay evidence in oral form but also can be in documentary
form
CHANDERASEKARA V R (1937)
Victims throat has been cut. Ask him who did this? Pointed at a person =
gesture -> hearsay
EXPRESS & IMPLIED ASSERTIONS
EXPRESS ASSERTION: Statement tendered to prove the truth of its direct
meaning.
Example

It was X who attacked me

It was a white boy
The get away car no was PUxxx

HEARSAY
IMPLIED ASSERTION : Statement is tendered to prove the hidden meaning/
fact.
EXAMPLES:

Hello X Implied assertion : X was there

I saw Ms. X coming out of Hotel Dunia

HEARSAY
hearsay rule will apply to implied assertions :
R V KEARLEY (92) 2 ALL ER 345
Kearley, the accused person was charged with trafficking
in dangerous drugs. In his absence, the police raided his house.
While they were there, there were about 20 calls (some phone calls and
some personal callers) to the house asking for
Chippie (Kearleys nickname)
requesting for drugs. TheHouse of Lords held that the police were not per
mitted to repeat the request
made for drugs because it amounted to inadmissible hearsay and Kearley
was acquitted on the charge of trafficking.
R V TEPER [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." The statement was an
implied assertion of the accuseds presence at the scene. It was held that
the evidence of the policemen will be hearsay and this inadmissible.
WALTON V R [1989] 84 ALR 59
evidence that the child answered the telephone Hello Daddy amounted
to an implied assertion that the child was in fact speaking to his daddy.
However, hearsay rule x apply in implied assertion in this case as the child
was 5 years old
(minority rule)
R V LYDON [1987]- Sean Rules / Sean Rules 85
Robbery case, papers was found written as Sean Rule. There was no one
named Sean charged by prosecution. Hence, not tender for truth
admissible.
(what we see is hearsay but court take narrow approach)
WOODHOUSE V HALL [1980]CRIM LR 645
An officer went undercover to a brothel which was disguised as a massage
parlor. The manager offered prices of sexual services, and the officer
repeated those offers in court. The intention of tendering the words of the
manager as evidence was "other than the truth". That is, to prove that the
parlor was indeed a brothel in disguise for the fact that sexual services
were offered. This was held to be admissible.
Lydon & woodhouse challenging, establish argument one mans hearsay
is another man OE
R v Ratten
get me the police please in a hysterical request by the deceased shortly
before she was killed amount to an implied assertion of hearsay that he
was threatened by someone in the house.

HEARSAY
S.32 EVIDENCE ACT 1950
(1) Statements, written or verbal, of relevant facts made by a person
who is dead or who cannot be found, or who has become
incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which under the
circumstances of the case appears to the court unreasonable, are
themselves relevant facts in the following cases:
Are relevant under the following circumstances: para (a) to (j) [10 paras)
When will s.32 exception apply :
PRECONDITION + AT LEAST 1 PARA (a-j) applies = s.32 exception
Precondition ( dead, cannot be found, incapable, unreasonable
delay/expense )
LEONG HOONG KHIE V. PP : S32 is the exception of hearsay.
PRECONDITIONS
Under s.32 a statement could only be admitted as an exception to hearsay
provided it was made by 4 categories of persons :
a.
b.
c.
d.

a person who is dead, or

who cannot be found, or
who has become incapable of giving evidence, or
whose attendance cannot be procured without an amount of delay
or expense which under the circumstances of the case appears to
the court unreasonable

Must be strictly proven (A.Paul): ALLIED BANK BHD V YAU JIOK HUA (1998)
6 MLJ 1
S 32 requires satisfaction of Precondition + para. Burden : s.104 - Party
wishing to rely on the exception must explain & provide evidence to
support.
a. Dead death certificate
b. Cannot be found diligent & reasonable search by virtue of s104
c. Incapable medical evidence to show medical/ physical/ mental
condition
d. Attendance cannot be procured overseas not sufficient, must
take into account time to secure attendance, cost to secure
attendance, value of claim.
PP V LAM PENG HOA [1996] 5 MLJ 405
precondition (b)- diligence & reasonable search must be done
NG YIU KWOK V PP [1989] 3 MLJ 166
The maker was in Bangkok but refused to appear in court & make it clear
that he is not prepared to turn up in Malaysia precondition (b) satisfied.
SIM TIEW BEE V PP [1973] 2 MLJ 200
Evidence: tally sheet , manifest and gunny sack
On the sack: Sim Tiew Bee,Sibu show that it belong to Sim Tiew Bee

HEARSAY
Tally sheet, Manifest: created in ordinary nature of business S32(1)(b)
Held: Court does not accept that gunny sack fall within s32(1)(b) although
precondition (maker cnt be found) satisfied rejected. However, even
tally sheet & manifest fall within s32(1)(b) but it does not satisfy the
precondition rejected. The maker must be called.
Section 32(1)a: Dying declarations
Conditions:

maker is dead
cause of death comes into issue

Statement relates to :

cause of death (after infliction of injury), or

the transaction which results in death (before infliction of injury)

No need for statement to be made in expectation of death

Can be verbal (exact words based on recollection) or in writing (actual
words)
CHANDRASEKARA V R [1937] 1 AC 220
throat was cut, act of pointing to the accused hearsay.
Exception: dying declaration- admissible (statement of cause of death)
PAKALA NARAYANA SWAMI V KING EMPEROR [1939] MLJ 59
Accused was charged with murder. Victim found cut in 7pcs. The victim
told his wife that I am going to accuseds house as the accuseds wife
called me to collect the money that they owed me. The wife repeated the
statement in court.
Held: Not necessary for dying declaration to make after injury. Statement
before injury can be admitted. Eg. On the way to meet someone = dying
declaration. However, there must be some form of proximity of time
between the transaction & the death.
YEOH HOCK CHENG [1938] MLJ 166
Deceased was dead on 14/3. She made 1st statement to her father on 5/3
that accused threatened to kill her if she told anyone that she slept with
him. 2nd statement was made to her sister on the day of her death that she
is going out to meet the accused.
Held: 1st statement too remote, 2nd statement satisfy proximity can
be admitted as DD
BOOTA SINGH V PP [1933] MLJ 195
police report made 9 month before death too remote- not dying
delaration
HAJI SALLEH V PP [1931] FMSLR
1 month before the death, victim made statement that the Accused

HEARSAY
threatened to kill him was held to be too remote & not admitted as dying
declaration
TOH LAI HENG V R / ONG HER HOCK V PP
Weight of dying declaration is high because person going to die wont lie.
Dying declaration can be verbal or in writing. If it is verbal, exact word can
be used. If it is in writing, it must be actual word used by deceased.
NARANJAN SINGH V PP [1949] MLJ 122
The dying declaration made to the nurse. It was held that if there is
interpreter, the interpreter must be called & the PO who recorded it must
also be called. Dying declaration made in response to question, the
question must be told to the court.
CHAN PHUAT KHOON V PP (1962) MLJ 127
Court has to evaluate whether the deceased is worthy of credit before
weighing the statement of the deceased.
SECTION 32(1) b
when the statement was made by any such person in the ordinary
course of business, and in particular when it consists of any entry or
memorandum made by him in books kept in the ordinary course of
business or in the discharge of professional duty; or of an
acknowledgment written or signed by him of the receipt of
money, goods, securities or property of any kind; or of a document used
in commerce, written or signed by him, or of the date of a letter
or other document usually dated, written or signed by him;
ELEMENTS :
1.
2.
3.
4.

Precondition
Statement made in the ordinary course of business etc
By a maker who has personal knowledge of matters stated
only allows first hand hearsay

cf: section 73A

SECTION 73A Admissibility of documentary evidence in civil cases
etc.
(1) Notwithstanding anything contained in this Chapter, in any civil
proceedings where direct oral evidence of a fact would be admissible,
any statement made by a person in a document and tending to establish
that fact shall, on production of the original document, be admissible as
evidence of that fact if the following conditions are satisfied:
(a) if the maker of the statement either (i) had personal knowledge of the matters dealt with by the statement; or
(ii) where the document in question is or forms part of a record
purporting to be a continuous record, made the statement (so far
as the matters dealt with thereby are not within his personal

HEARSAY
knowledge) in the performance of a duty to record information
supplied to him by a person who had, or might reasonably be
supposed to have had, personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall
be called as a witness need not be satisfied if he is dead, or unfit
by reason of his bodily or mental condition to attend as a witness,
or if he is beyond the seas and it is not reasonably practicable to
secure his attendance, or if all reasonable efforts to find him have
been made without success.
(2) In any civil proceedings, the court may at any stage of the
proceedings, if having regard to all the circumstances of the case it is
satisfied that undue delay or expense would otherwise be caused, order
that such a statement as is mentioned in subsection (1) shall be
admissible as evidence or may, without any such order having been made,
admit such a statement in evidence (a) notwithstanding that the maker of the statement is available
but is not called as a witness; and
(b) notwithstanding that the original document is not produced,
if, in lieu thereof, there is produced a copy of the original
document or of the material part thereof certified to be a true
copy in such manner as may be specified in the order or as the
court may approve, as the case may be.
Difference between s.32(1)b & s.73A:
i.
ii.
iii.
iv.

s.32 applies to both civil & criminal , s.73A only civil.

S.32 applies to both verbal & documentary ,s.73A only
documentary
s.32 only 1st hand hearsay , s.73A can admit both 1st hand and 2nd
hand hearsay.
S.32 precondition must be satisfied, s.73A hearsay can be admitted
even if witness is available.
1. Dr X examines Mr. Y and Dr.X prepares the report. Dr.X has died and
now the report is being tendered by another witness , Dr.Z . 1st
hand
2. J takes the measurements of the shipment and reads it to K while K
records the details and signs the document. Both J & K cannot be
found. Document is tendered through L. K 1st hand, L2nd hand

SIM TIEW BEE V PP [1973] 2 MLJ 200

Manifest & tally sheet ordinary business but x precondition reject
Gunny sack x ordinary business but satisfy precondition - reject
SYARIKAT JENGKA SDN.BHD V ABDUL RASHID [1981] 1 MLJ
Evidence was tendered to prove how much timber was extracted. The

HEARSAY
report was prepared by ps son but he had passed away precondition
satisfied. However, he did not take a proper record. It was held that it does
not made in ordinary course of business as it is not systematic.
WAN SALIMAH WAN JAFFAR V MAHMOOD OMAR [1998] 1 CLJ 480
Record can be created before/after dispute. Record after dispute will be
given less weight.
ABDUL KHODER V LOW YAM CHAI [1989]2 MLJ 483
Medical report by doctor can be admitted under S32(1)(b)
NG YIU KWOK V PP [1989] 3 MLJ 166
Receipt & bill fall under para b.
VAYNAR SUPPIAH V KMA ABDUL RAHIM[1974] 2 MLJ 183
Court declares that S32(1)(b) does not admit 2 nd hand hearsay but only
admit 1st hand hearsay. If report prepared by person without personal
knowledge> 2nd hand hearsay --> inadmissible
ALLIED BANK BHD V YAU JIOK HUA [1998] 6 MLJ 1
Augustine agreed with Vaynar that S32(1)(b) only admit 1 st hand hearsay.
S73A allows 2nd hand hearsay.
S.32(1)c: when the statement is against the pecuniary or proprietary
interest of the person making it, or when, if true, it would expose him or
would have exposed him to a criminal prosecution or to a suit for
damages;
Conditions
i.
ii.
iii.

Precondition
Statement against pecuniary , or
Would expose maker to criminal or civil action

Ilustration: f
SUSSEX PEERAGE CASE [1844] 11 CI & F 85
Ps father with title of lordship must have Kings permission to marry but
married without such permission. After the death of the parents, p wants
to claim the title of lordship. In order to prove that the P is the legitimate
child, the priest was called as a witness to testify the parents marriage is
legal. Statement made by the priest was against the interest.
PP V FORSTER [1988] 2 MLJ 594
Affidavit from Germany sworn by 2 person who was travelling with the
accused, states that the drug belong to them but not belong to Foster. The
court held that as long as there is risk of prosecution, it falls under para(c)
but the weight may be low.
WARD V PITT [1913] 2 KB 130
For statement admitted under S32(1)(c), maker must have personal

HEARSAY
knowledge of the fact. In this case, a claim was made by an illegitimate
child against the employers of the deceased workman alleged to have
been his father. The applicant relied on admissions made by his father to
the paternity, and that he had intended to maintain the child & marry the
applicants mother. It was held that although the statement made by
deceased were in fact against his interest, there was no guarantee that
the deceased had personal knowledge.
TUCKER V OLD BURY UDC [1912] 2 KB 317
The maker of the statement should be aware, at the time of making it,
that such statement would be against his interest.
S.32(1)h : when the statement was made by a number of persons and
expressed feelings or impressions on their part relevant to the matter in
question;
DU BOST V BERESFORD [1810] 2 CAMP 511
Plaintiff, a painter, had painted the Hope couple & exhibited it in public
with the title beauty & the beast. Defendant destroyed the picture and
his defence was the paint was a libel. Du Bost claimed damages.
Witnesses were called who swore to the impression produced by the
picture in their own mind, that it was intended to be a representation of
defs brother in law & his wife.
Held: witnesss statement as to his own feelings were original evidence,
his account of the comments of the bystanders was hearsay, but
nevertheless admissible.

s.32(1) i & j
(i) when the statement was made in the course of, or for the purposes of,
an investigation or inquiry into an offence under or by virtue of any written
law; and
(j) where the statement was made by a public officer in the discharge of
his duties.
(2) The provisions of paragraph (i) and (j) of subsection (1) shall apply only
in relation to a criminal proceeding.
Issue : of conjunctive or disjunctive reading - (i) and (j)
1. i & j - Read together (conjunctive)
2. marks the end of the section (disjunctive)
Conjunctive Reading
1. Precondition
2. When the statement is made in the course of an investigation;
and
3. Where it was made by a public officer

HEARSAY
Both i & j must be satisfied ie only statements made by a public officer in
the course of any investigation will be admissible- narrow interpretation- 1
exception
MICHAEL ANOYO AKABOGU V PP (conjunctive)
KOBRA TABA SEIDALI v. PP [2014] 2 CLJ 12,CA
It is essential to note that s. 32(1) (i) must be read conjunctively with (j)
and is only related to public officers and not witnesses. Section 32(1) (i)
and (j) was dealt by Hamid Sultan JC (as he then was) in PP v. Sim Kay
Chay [2008] 1 CLJ 838; where he had this to say:
Whether ss. 32(1) (i) and (j) must be read conjunctively or disjunctively is
a matter of controversy and cases have been decided in both ways .If it is
read conjunctively, then the new provision is only limited to the
statements made by public officers. On the other hand, if it is read
disjunctively, then it relates to a wide variety of statements. Jeffrey Tan JC
(as he then was) stated in Public Prosecutor v. Michael Anayo Akabogu
that it is trite that any ambiguity in the language of provisions leading to
proof in criminal proceedings, such as ss. 32(1) (i) and (j), is to be narrowly
construed.
Disjunctive Reading
1. Precondition
2. ( i ) Statement made by any person in the course of an
investigation/
|
( j) statement made by a public officer
wider interpretation : 2 exceptions
PP V MOHD JAMIL BIN YAHYA [1993] 3 MLJ 702,HC (pg 176)
& is not conjunctive but simply marks the end. A case involving the
offence of drug trafficking, the admissibility of a statement made by the
deceased under s112 CPC. The statement was admissible under S32(1)(i)
PP V LAM PENG HOA [1996] 5 MLJ 405 ,HC(pg 178)
disagree Michael Anayo. The 2 subsections were meant to be disjunctive
& to provide for 2 different situations is clearly discernible from the
following subsection (2) which uses the word provision in the plural & not
singular. The word and which joins subsection (1)(i) & (j) could admit of
no more significance than an exposition of the draftmans preference of a
conjunction as an ending to all the provision in S32(1).
PP V MOHD.FAIRUS [1997] 5 MLJ 57,HC
Paragraphs enumerated in s32 before the section was amended, each
para can be considered as spelling out a separate set of circumstances
where a statement can be made admissible. So, each of the two inserted
para can also stand on its own.
(i):s.107 ,112 ,113/ (j) 119/112

HEARSAY
BANDAHALA UNDIK v. PP[2014] 1 CLJ 708 ,CA
The doctor who confirmed that the deceased was dead did not give
evidence as he had left the country and his report was admitted under s.
32(1)(j) of the Evidence Act 1950
s.33 Allows for evidence by a witness in case to be admitted in a
subsequent proceeding or at a later stage in the same proceeding as an
exception to hearsay. Elements:
1. Precondition (witness is not available)
Dead/Cannot be found/Incapable/Kept away/Unreasonable delay
2. The evidence was given in a judicial proceeding or before anyone
authorised to by law to take it.
3. Same parties
4. Opportunity & Right to cross examine (in earlier proceeding)
5. Same issues
Lakshamanna v Vardhanamma AIR 1919:
Applies not only evidence given by a witness in a judicial proceedings but
also evidence given by a witness before any authorised person.
Note : Will apply to both civil and criminal
s.73A Elements:
1) Only civil cases
2) Only statements in a document
3) Under this section a statement would be admissible in 3 circumstances:
a) Where the maker is called as a witness(document will be admitted
to show consistency) - Original Evidence (S.73A (1) b)
b) Where the maker of the statement is not available (proviso
:s.73A(1)b- statement is admitted as an exception to hearsay.
c) where the maker is available but not called as a witness( s.73A(2)a)
statement is admitted as an exception to hearsay.
4) This section will allow both primary and secondary copies.(s.73A (1)+
(2) b)
5) Statement must be made before the dispute(s.73A (3))
ALLIED BANK BHD V YAU JIOK HUA (1998) 6 MLJ 1
allows second hand hearsay provided it was in the performance of a duty
to record information supplied to him by a person who had, or might
reasonably be supposed to have had, personal knowledge of those
matters. (s.73A (1) a (ii))
ARAB MALAYSIAN MERCHANT BANK V CHONG ON FOH MEDICAL HALL
[1997] 4 MLJ 532
The maker of the document could not attend court as he was busy & also
because he had already attended court for 5 or 6 times for the same
matter, only to have the matter adjourned & where the claim was only for
a sum of 5k+, the court used its discretion to admit the doc,
notwithstanding that the maker was available but was not called as a
witness.

HEARSAY
s.90A Admissibility of docs produced by computers & of
statements, contained therein.
(1) In any criminal or civil proceeding a document produced by a computer
or a statement contained in such document, shall be admissible as
evidence of any fact stated therein if the document was produced
by the computer in the course of its ordinary use, whether or not
the person tendering the same is the maker of such document or
statement.
(2) For the purposes of this section it may be proved that a document was
produced by a computer in the course of its ordinary use by tendering to
the court a certificate signed by a person who either before or after the
production of the document by the computer is responsible for the
management of the operation of that computer, or for the conduct of the
activities for which that computer was used.
Elements
1) Civil /criminal
2) Document was produced by a computer in the course of its ordinary
use
3) Any facts stated therein shall be admissible in evidence
4) Whether or not the person tendering the same is the maker of such
document or statement. (exception to hearsay rule)
Condition
1. Document was produced by a computer in the course of its ordinary
use
2. S.90A(2):this may be proved by tendering in a certificate signed by
the person responsible for the operation of that computer.
GNANASEGARAN v. PP [1997] 3 MLJ 1 :
Oral evidence by person in charge of operations was sufficient to satisfy
the requirements of s.90A (2)
Document Produced By A Computer: s.3 definition of document &
computer
smartphone would fall within this definition
Note : s.62

In Malaysia a wide interpretation has been adopted and has been held to
include the following documents:
a.
b.
c.
d.

Bank statements (GNANASEGARAN v. PP [1997] 3 MLJ 1)

computerised bus tickets (Hanafi Mat Hassan v PP [2006] 4 MLJ 134
DNA results (Ahmad Najib Aris v PP [2009] 2 MLJ 613
CCTV recordings (Ahmad Najib Aris v PP [2009] 2 MLJ 613

HEARSAY
e. E- mail print outs (Petroliam Nasional (PETRONAS) V. Khoo Nee
Kiong
f. H/p call logs data (AZILAH HADRI & ANOR v. PP) CA ( PP v Azilah) FC
Witness : Celcom Officer who prepared the scripted logs data from raw
data (computer print out )
CA Held : s.90A(2) not satisfied as : We noted that it was not the evidence
of SP61 that he was the person responsible for the management and
operation of that computer. What he said was: Pada masa saya mencetak
dokumen ini daripada computer saya, computer saya tersebut adalah di
dalam berkeadaan baik dan di dalam perjalanan fungsinya yang biasa
begitu juga printer untuknya.
FC: In this case, the call logs were produced by computers in the course of
their ordinary use by the very makers, namely PW61, PW62 and PW63
hence dispensing with the requirements of tendering to the court signed
certificates that they were responsible for the management of the
operation of the computers, or for the conduct of the activities for which
those computers were used for. The need to adduce the certificates as
required by s. 90A(2) of the Evidence Act 1950 had thus become
redundant.
Note : Is this too wide an interpretation?? Should the operation of s.90A be
confined to only computer print outs where the document contains
information processed and calculated by the computer itself and not to
any document created using a computer only as a processing tool for an
identifiable human maker of the document.
Examples :
DNA results , CCTV recordings , bank statements , automatic bus tickets,
parking ticket , call logs from handphone etc
E- mails ,MMLS announcements , Bulletin Boards, facebook post,
WhatsApp messages ,SMS, letters , contracts created using a computer
by an identifiable human maker.
Res Gestae(RG)

statements which are part of the same transaction as the fact in

issue
spontaneous statements
excited utterance rule
instinctive reaction to the drama unfolding
It is an exception to hearsay
Eg. stop thief!! get me the police!! Your house is on fire!!

Logic : no threat of fabrication or concoction as it is a spontaneous and

instinctive reaction to an event.

HEARSAY
BEDINGFIELD (1879)
Facts : Murder charge . Defence claims it was a suicide. Victims throat had
been cut, she rushed out of the room and said to her aunt: See what
Harry has done to me
Cockburn CJ : it is RG only if the statement is made contemporaneously
with the fact in issue. On facts: not RG as not part of same transaction.
Statement was made after it was all over.
TEPER - X RG.
Your place burning and you are going away from the fire (26 minutes
after the fire started)
RATTEN (1972)
Get me the Police(few minutes b4 attack) Original Evidence to show
state of mind & Implied Assertion to show husband was attacking her. The
statement was sufficiently contemporaneous to be RG. The statement was
hearsay could nevertheless be admitted as part of the RG because it was
made only minutes before she was shot & in circumstances most likely to
have been free of concoction.
RG Test : facts are such that they exclude the possibility of concoction or
fabrication.
R V ANDREWS (1987) - BEDINGFIELD overruled
Accused was charged with burglary & manslaughter. The statement of the
victim who later died, made within a few min after attach, to the police as
to the identity of assailants, were held to be admissible as part of RG. Test:
1. Whether the possibility of concoction and distortion can be
disregarded. Will consider the circumstances in which the statement
was made.
2. Was the event unusual/ dramatic as to dominate the mind of victim.
3. Whether the deceased had a motive of his own to fabricate &
concoct.
4. The possibilities of error in the facts narrated in the statement Need
not be contemporaneous (approximate)
Does common law RG apply in Malaysia? YES: Mohamed Allapitchay
(1958)
Issue: Is S6 same with Common Law RG?
S.6 seems to reflect the common law principle of RG. A. Paul suggests that
s.6 is an exception to hearsay and that it is the codification of the
common law RG principle.
End effect of this approach: Any Evidence which falls within s.6 would fall
within RG and can be admitted as an exception to hearsay.
Chotka v State AIR 1958
S6 embodies the rule of admission of evidence relating to what is
commonly known as RD. Acts/ declarations accompanying or explaining
the transaction/ the facts in issue are treated as part of the RG and

HEARSAY
admitted as evidence. The requirement is that the statement sought to be
admitted must have been made contemporaneously with the act or
immediately after it & not at such an interval of time from it as to allow
fabrication or to reduce the statement to mere narrative/ past events.

KOK HO LENG V PP (1941)

Although no specific reference to RG is found in S6, the connection
between the section & the CL rule was made in this case. S6 is the section
which deals with what is known as RG in England. A telephone message
has some analogy to the shouting of the bystanders.
LEONG HONG KHIE V PP (1986)
applied the Ratten test in the context of s.6 and rejected the statement.
Accused was charged with drug trafficking. Statement made by certain
informers over a period of several days were held amount to hearsay but
they could not be regarded as part of the RG because there as a danger of
concoction & fabrication.
Arguments that s.6 is not RG as an exception to hearsay. There is a
misconception on what is RG at common law. L. Wilberforce in Ratten: RG
can be used 3 ways :
a. assaults before the killing which are part of the continuous orgy /act
. (Original evidence :HAMSA KUNJU: Buttrose.J)
b. spoken words which are not admitted to show truth of
contents(original evidence :PP V SAM HONG CHOY (1996) /Ratten
c. hearsay statements by victim /accused/bystanders : Teper
S.6 - Chin Choy test
(wider compared to Andrew test)
RG - Andrews test - as an exception to hearsay.( can the possibility of
concoction and distortion be disregarded)
S 6 is relevancy, not exception!
1. HAMSA KUNJU: Buttrose.J
Where the accused was charged with causing hurt to some person
at 9.45pm, evidence to show that altercations between the accused
and these persons occurred in the morning was relevant as it was
connected that it formed part of the same transaction
2. PP V SAM HONG CHOY (1996)
Accused was charged with having firearms in his possession.
Statement made by bystander tolong kejar, perompak was held to
be a relevant fact & is admissible by virtue of S6 EA.
3. LEONG HONG KHIE V PP (1986)
BOOTA SINGH
police report made 9month before murder- too remote & could not strictly
amount to a report regarding the circumstances of the transaction which
resulted in death.

HEARSAY

TAN GEOK KWANG (1949) MLJ 203

accused was charged with possession of a revolver. The facts that he was
wounded in the course of running away from the police & that he ran into
a blukar which was surrounded by the police & that a hand grenade was
then thrown from the blukar at the police, were held to be relevant. The
evidence relating to the throwing of the hand grenade is admissible under
s6 as part of the RG because the group of facts forming this transaction
was so connected that the exclusion of evidence relating to the hand
grenade would tend to render evidence as to other facts unintelligible.
BANDAHALA UNDIK v. PP
Res gestae stands as an exception to the hearsay rule 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. The res gestae principle is embodied in
sections 6 to 9 and 14 of the Act. 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 being done. Contemporaneity or spontaneity
must be shown before the statement is made admissible
The statements accompanying the act to be admissible should as far as
possible be contemporaneous to the act in issue which it relates. 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 matters which are usually subject to some rule of exclusion, so as to
enable the court to look at the events in the proper perspective.
The leading cases which demonstrate the concept, application and
limitations are many. To name a few are as follows: (i) Ratten v. R [1971] 3
All ER 801; (ii) Nye and Loan [1977] 66 Cr App Rep 252; (iii) Teper v. R
[1952] 2 All ER 447.
MOHD KHAYRY ISMAIL v. PP[2014] 1 LNS 412 ,CA
Tape recording evidence or CCTV recording, etc. at common law will be
admissible based on 'res gestae' principles as truth of its contents
although they may be hearsay or even self serving statement. Section 6 of
EA 1950 and also other sections give statutory recognition to 'res gestae'
principle in the widest form and is not restricted to the common law
parameters.

HEARSAY
The new amendments such as section 90A do not displace common law
rules as to admissibility. That is to say if the party cannot admit a
document in consequence of the common law restriction then he may get
the document admitted under any of the new provisions such as section
90A, etc.