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CHAPTER III

STATUTORY EXCEPTION: SECTION 33

3.1 INTRODUCTION

Section 33 deals with relevancy of certain evidence for proving, in subsequent proceeding,
the truth of facts therein stated, it reads as follows:
Evidence given by a witness in a judicial proceeding, or before any person
authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial
proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it
states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is
kept out of the way by the adverse party, or if his presence cannot be obtained without an
amount of delay or expense which, under the circumstances of the case, the Court considers
unreasonable: Provided that the proceeding was between the same parties or their
representatives in interest; that the adverse party in the first proceeding had the right and
opportunity to cross-examine; that the questions in issue were substantially the same in the
first as in the second proceeding.

The evidence contemplated by this section is evidence given by a witness in an earlier


judicial proceeding or before any person authorized by law to take evidence. The section
states that such evidence is relevant in a subsequent proceeding for the purpose of proving the
truth of the facts which it states when:

(a) the witness is dead, or


(b) the witness cannot be found, or
(c) the witness is incapable of giving evidence, or
(d) witness is kept out of the way by adverse party, or

(e) witnesss presence cannot be obtained without any amount of delay or expense
which, under the circumstance of the case, the Court considers unreasonable

However, there are five conditions that must be fulfilled in order to make section 33
applicable which are:

(i) that the evidence was given in a judicial proceeding or before any person
authorized by law to take it;
(ii) that the witness is incapable of being called at the subsequent proceeding;
(iii)that the first proceeding was between the same parties as the second proceeding
or between representatives in the interest of the parties to the second proceeding.
(iv) that the party against whom the deposition is tendered had a right and full
opportunity of cross examining the deponent when the deposition was taken; and
(v) that the issues involved are the same or substantially the same in both
proceedings.

The grounds for reception of the evidence appear to be based on rule of necessity or
expediency. Though generally this section seems to be an exception to the hearsay rule,
however the infirmities of the hearsay evidence are not present, because the witness have
given evidence on oath and were subjected to cross-examination. Probably the only
disadvantage appears to be that the judge in the second case is deprived of the opportunity of
watching the witness or knowing the demeanour of the witness with a view to test his
credibility. Therefore, when the court wants to admit the deposition of absent witness under
this section, it must exercised its power with cautioned so that there will be no injustice to
other parties in the case. This principle is clearly laid down under the case of See Yew Poo v
PP (1949) 15 MLJ 131.
The section has been applied in civil as well as criminal cases. Now, if we read sec.
33 again, it uses the words Evidence given by a witness in a judicial proceeding or before
any authority authorized by law to make it, is relevant for the purpose of proving in a
subsequent judicial proceeding or in a later stage of the same judicial proceeding- and the
first clause in the proviso uses the word proceeding was between the same parties or their
representatives in interest while the third clause of the proviso uses the words that the
questions in issue were substantially the same in first as in the second proceeding. It will be

seen that the main clause uses the word subsequent proceeding while the third clause in the
proviso uses the words first and second proceeding. In the first clause of the proviso, the
word proceeding is used without any qualification.
2.1.1

Scope

The general rule is that a witness must give his evidence under oath or affirmation and
subject himself to cross- examination. But this may not be always possible. Thus this section
provides that evidence given by a witness in a judicial proceeding may be used in a
subsequent judicial proceeding subject to certain conditions being fulfilled.
2.1.2

Rationale of Rule

In the case of Chainchal Singh v Emperor1, the court held that:


Where is desired to have recourse to this section on the ground that a witness is
incapable of giving evidence that fact must be proved, and proved strictlyIt is
necessary that provision should be made for exceptional cases where it is
impossible for the witness to be before court, and it is only by a statutory
provision that this can be achieved. But the court must be careful to see that the
conditions on which the statue permits previous evidence given by the witness to
be read are strictly proved.

This case shows that the statement of a person who has become incapable of giving
evidence due to old age or mental incapacity must be proved with sufficient evidence. It does
not mean it must have a medical person in every case. Also in the case of Dato Yap Peng v
Public Prosecutor2 Mokhtar Sidin J stated in emphatic terms that the only way any evidence
given by a witness or witnesses can be used in a subsequent and different judicial proceeding
is by way of this section. Thus judicial notice3 cannot be taken of it under section 57 of the
Act.
2.1.3
1

Requirements of the Section

Chainchal Singh v Emperor AIR 1946 PC 1, 2.


Dato Yap Peng v Public Prosecutor [1993] 1 MLJ 337 (HC).
3
A doctrine which enables a judge to accept a fact without the need of a party to prove it through evidence.
2

The section contemplates proof of five conditions. They are as follows:


(i)

that the evidence was given in a judicial proceeding or before any person
authorized by law to take it;

(ii)

that the witness is incapable of being called at the subsequent proceeding;

(iii)

that the first proceeding

was between the same parties as the second

proceeding or between representatives in the interest of the parties to the


second proceeding;
(iv)

that the party against whom the deposition is tendered had a right and full
opportunity of cross examining the deponent when the deposition was
taken; and

(v)

that the issues involved are the same or substantially the same in both
proceedings.

It must be emphasized that the unavailability of the witness for any of the five
reasons mentioned in the sections should strictly proved.

a. The Previous Evidence


The evidence must have been given by a witness in a judicial proceeding or in a later stage of
the same judicial proceeding or before any person who authorized by law to take it. The
explanation to the section provides that a criminal trial or inquiry shall be deemed to be a
proceeding between a prosecutor and the accused within the meaning of the section. The
words judicial proceeding has not been defined in the Act.
As per Wallis CJ in Lakshamanna v Vardhanamma:4:
The Evidence Act applies to judicial proceedings in or before any court and
accordingly section 33 deals with the admissibility of previous deposition in
subsequent judicial proceeding that is, in a judicial proceeding arising subsequently
to the making of the deposition but the previous deposition need not have been made
itself in a judicial proceeding. According to the language of the section 33 it is

Lakshamanna v Vardhanamma AIR 1919 Mad 540.

sufficient if it was made in a judicial proceeding or in such circumstances as to make


it evidence given by a witness before any person authorized by law to take it.
Section 33 that allows the deposition of absent witness must be exercised with caution to
prevent any judicial prejudice.
b. Unavailbitiy of the Witness
The witness who gave the evidence must have been either dead or cannot be found or is
incapable of giving evidence or is kept out of the way by the adverse party or by his presence
cannot be obtained without an amount of delay or expense which under circumstances of the
case the court considers unreasonable. In Lim Peng Koi v R5, it was held that there are no
absolute standards as to what would be unreasonable delay or expense.
In the case of Syarikat Chip seng Trading Sdn Bhd & Anor v PP6, the court stated that
the Magistrate was entitled to rely on the evidence given by the deceased in this trial for the
purpose of proving the truth of the facts which it states.
To conclude, a tricky question arises when the prosecution wants to admit an
unavailable witness's statement because this conflicts with a defendant's right to question
witnesses. This is known as a defendant's right of confrontation. Essentially, a defendant has
a constitutional right to see, face-to-face, and hear the witnesses testifying against him in
court. So, the prosecution must show that the witness really was unavailable. For instance, if
a witness is not in the state, the prosecution has to show that the witness was beyond process,
meaning that he couldn't be served with court papers ordering him to come to court and
testify. Also, the prosecution must show that it made a good faith effort to get the witness to
attend court.

5
6

Lim Peng Koi v R[1951] MLJ 70.


Syarikat Chip seng Trading Sdn Bhd & Anor v PP[1979] 2 MLJ 82.

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