Hearsay Evidence

o A statement made out of court

that is offered in court as
evidence to prove the truth of the
matter asserted.

o See the trial of Sir Walter Raleigh;
Subramaniam v PP [1956] MLJ 220;
Ratten v R [1972] AC 378; PP v Datuk
Seri Anwar bin Ibrahim (No.3) [1999]
2 MLJ 1
Hearsay evidence is evidence that is not direct. Direct evidence is the testimony
of a person who testifies directly to the court in pursuance of his own
knowledge of a fact or observation of a fact. 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 a witness is inadmissible to
prove the truth of the fact stated. Hearsay is therefore properly speaking
secondary evidence of any oral statement.

E.g when witness A says that B told him about the happening of an event X (B
is not call before the court). As assertion about event X being not based on his
own observation so he is not qualified to speak about it. BUT if the object is
only to prove Bs assertion of the event and NOT TO PROVE THE TRUTH
OF THE EVENT, A then is competent to speak about it and such evidence
tender may be received if it has any relevancy in the case.

In Subramaniam's case [1956] MLJ 220, In this case, the accused was charged
with unlawful possession of ammunition. His defence was that he had been
captured by terrorists and was acting under duress. The trial judge held that the
evidence of his conversation with the terrorists was inadmissible unless the
terrorists testified. The Privy Council allowed his appeal. The hearsay rule was
not infringed because his evidence about what the terrorists had said to him was
not adduced in order to show that what the terrorists had said was true but in
order to show that threats had in fact been made.
What is hearsay evidence?
Continue
Ratten v R [1972] AC 378 at page 387
The mere fact that evidence of a witness includes
evidence as to words spoken by another person who
is not 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 'testimonially', i
e as establishing some fact narrated by the words

Reason for excluding hearsay
evidence
it is not the best evidence
it is not given on oath
the veracity and accuracy of the
out-of-Court maker of the statement made to
the witness cannot be tested
by cross-examination
the Court is not able to see the
demeanour of the witness
it may be concocted, fabricated and
tailored to suit the witness testimony
See Leong Hong Khie v PP and Tan Gong Wai v PP [1986] 2 MLJ 206; PP v Ng Lai
Huat [1990] 2 MLJ 427 & Re Soo Leot [1956] MLJ 54.
It follows that a party, who wishes to have a statement
admitted, not in proof of its truth but to show that it was
made, must also show its relevancy.
In this respect, Augustine Paul J said in PP v Datuk Seri Anwar bin Ibrahim
(No.3) [1999] 2 MLJ 1 at pages 168 169:
When learned counsel said that the statement is sought to be admitted to show
that it was made and not to establish its truth, I asked him the purpose for such
admission. He said that it is admissible merely to show that it was made. In my
opinion, the fact that a statement was made does not on its own make it
admissible. It must be shown to be relevant to a fact in issue as the fact that a
statement has been made may be admissible for many purposes. It becomes
relevant only when it is desired, for instance, to show the state of mind of the
person to whom it is made and that the mental state of the witness evidenced
by the statement is itself directly in issue at the trial. It is to ascertain this
purpose that I asked learned counsel the reason for which he wanted the answer
of Nor Azman to be admitted. If the purpose is not shown, the court would be
in no position to rule on the relevancy of the statement with regard to the facts
in issue, and, if it is not relevant at all, the statement would amount to hearsay
and thereby become inadmissible.
Objection to the admissibility of
hearsay evidence
Hearsay evidence which ought to have been rejected
does not become admissible merely because no
objection was taken earlier.

Per Lee Hun Hoe CJ in Malaysia National Insurance
Sdn Bhd v Malaysia Rubber Development Corp [1986]
2 MLJ 124, 127. Hearsay evidence which ought to have
been rejected does not become admissible merely
because no objection was taken earlier.

The authorities are clear on this. Perhaps, it is only
necessary to cite Sarkar, Laws of Evidence, 13th
Edition, page 51 which reads: -- "An erroneous omission
to object to evidence not admissible or relevant under
the Act does not make it admissible. It is the duty of the
court to exclude all irrelevant or inadmissible evidence
even if no objection is taken to its admissibility by the
parties..."
European Convention on Human Rights (articles
6(1) and 6(3)(d)).
Article 6 Right to a fair trial:
In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
Everyone charged with a criminal offence has the following minimum rights:
to be informed promptly, in a language which he understands and in detail, of the nature
and cause of the accusation against him;
to have adequate time and facilities for the preparation of his defence;
to defend himself in person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free when the interests of
justice so require;
to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against
him;
to have the free assistance of an interpreter if he cannot understand or speak the language
used in court.

Sixth amendment of the US
Constitution
In the United States the sixth amendment of its
Constitution which stated:
I n all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district where in the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence
Types of hearsay evidence
Anything to be proved by oral testimony may be
proved only by witnesses through personal
observation of their own senses and not from
what they have been told. The evidence must
therefore be direct in this sense.

In Malaysia, section 60 of Evidence Act 1950 lay
down that oral evidence must be direct. 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. Oral
evidence will only be admissible if witness has
perceived it by one or more of his 5 senses
namely:
Sight

Hearing

Smell

Taste

Touch
Hearsay in oral form
Billy Max Sparks v The
Queen [1964] AC 964, a white
man was convicted of
indecently assaulting a girl of
the age of three years and nine
months. About an hour and a
half after the event, the child
told her mother that a coloured
boy did it. The child however
did not give evidence at the
trial. The Privy Council held
that the trial judge had properly
ruled that the mothers evidence
was hearsay and inadmissible.
The mothers evidence of what
her child told her was to prove
the identity of the assailant,
therefore inadmissible as
amounting to hearsay.
Hearsay in oral form
PP v Siew Sung [1966] 1 MLJ 145. In this case,
the accused was convicted in the magistrates court
at Kuala Lumpur under section 10(1) of the
Lotteries Ordinance 1952 of promoting a lottery by
operating in a pin-table without a valid permit. The
pin-table was found by the police in the shop. The
police inspectors evidence was that his enquiries
led him to believe that the accused was the owner of
the machine that was rightly struck out as hearsay
since there was no evidence that the accused was
the owner of the pin-table.

It was held that the evidence of the police
inspector was inadmissible as hearsay. Indeed, the
inspector on cross-examination admitted that he had
no ascertained who the owner of the shop was. He
only relied on others view that led him to believe
that the accused was the owner of the machine,
which was clearly hearsay.
Hearsay in oral form
Karam Singh v PP [1967] 2 MLJ 25. In this
case, the appellant appealed against his
conviction for murder. There was no
eyewitness of the attack on the deceased and
the prosecution case was based entirely on the
circumstantial evidence. At the trial, the
deceaseds son Harban Singh gave evidence
that his father had told him on the night before
he was killed he had a quarrel between him and
the appellant. Thus in fact Harbans Singh had
not witnessed any quarrel between his father
and the appellant. Instead, his father only told
him.

The Federal Court held that all evidence of the
deceaseds son even if true, was inadmissible as
hearsay evidence and should not have been
allowed to influence the jury in arriving at their
verdict.
Hearsay in oral form
Malaysian National Insurance Sdn. Bhd. v
Malaysia Rubber Development
Corporation [1986] 2 MLJ 124, it was held
by Lee Hun Hoe CJ that the evidence
adduced by D.W.1 was clearly hearsay
evidence which was derived from interviews
between P.W.1 and P.W.2 who were not
called in the hearing. Hence, the evidence
given by D.W.1 was not derived from his
own knowledge and it was right for the trial
judge to hold that such evidence was hearsay.
Hearsay in oral form
Salha v Reg (1959) 22 MLJ 110 where the appellant was convicted of the murder of Niah bte
Yusuf (Niah) and sentenced to death. One of the defences set up was that Niah could have been
murdered by one Suhaime. The prosecution then called Suhaime and Inspector Lim Chye Heng to
give evidence. The effect of Suhaimes evidence for the prosecution was that at 9 a.m. on 16 April
1958, when Niah was murdered he was at Changi with an elderly person in the house of his adopted
brother. Inspector Lims evidence was that he took Suhaime to Changi and as a result of his
investigation he released Suhaime. During Lims cross-examination by the defence the trial Judge
put questions to Inspector Lim and received answers as follows (at p. 110):
His Lordship: Q: You went down to Changi with the last witness? (Suhaime)
A. Yes
Q. Did you interrogate this elderly person and also a person who is the adopted brother-in-law of
the last witness?
A. Yes
Q. Were you satisfied yourself as a result of that interrogation?
His Lordship: Q: (Cont.) that the last witness was at Changi at 9 oclock on the morning of 16
April?
A. Yes , my Lord.
The important feature to note was that neither the elderly person nor Suhaimes adopted brother was called as a
witness by the prosecution. Tan Ah Tah Ag. CJ at p. 110 said: It is clear that Inspector Lim Chye Heng did not
himself see Suhaime at Changi at 9 a.m. on 16 April 1958, and when he said he was satisfied that Suhaime was in
Changi at that time he merely relied on what he was told. In our opinion this answer given by Inspector Lim Chye
Heng was inadmissible in that it purported to prove a fact based on information supplied to him by the elderly
person and adopted brother of Suhaime and was clearly hearsay. Accordingly because inadmissible hearsay
evidence was wrongly admitted, this combined with other unsatisfactory features of the case, the appellants
conviction was quashed.

Hearsay in written form
Allied (M) Bhd v Yau Jiok Hua [1998] 6
MLJ 1, 14
It is settle law where a document is sought to
be proved in order to establish the truth of the
facts contained it, the maker has to be called.
Non compliance with this rule will result in
the contents of the documents being hearsay.
Hearsay in written form
Myers v Director of Public Prosecutions [1965] AC
1001, the appellant was convicted together with another
man of offences relating to the theft of motor cars. The
prosecution case was to prove that the disguised cars
were stolen by reference to the cylinder block numbers
indelibly (permanently) stamped on their engines.
Therefore, they sought to adduce evidence, which
derived from records kept by a motor manufacturer. The
witnesses called were the employees of the
manufacturers of the cars who were in charge with the
keeping of those records/data and not with their
compilation. The defense council objected to the
admission of such evidence since it was hearsay. The
manufacturers records could not be tendered as proof
of the truth of the facts stated. The trial judge however,
admitted the evidence and convicted the appellant. The
appellant then appealed to the Court of Criminal Appeal
on the ground that the evidence ought to have been
excluded but his appeal was dismissed.

On appeal to the House of Lords it was held that the
records constituted inadmissible hearsay evidence. The
officer who was called in this case could not prove such
records were correct. The appeal was then allowed and
the conviction was set aside.
Hearsay in written form
In Tan Siak Heng v. Rex [1950] 16 MLJ 214, the
conviction of the accused for criminal breach of trust
was quashed on appeal because at his trial written
hearsay evidence was wrongly admitted. The
appellant was employed as a conductor by a bus
company. On a charge of criminal breach of trust
against him it was proved that he had issued a used
ticket to a passenger who happened to be a detective.
To prove the criminal breach of trust, a deputy
accountant of the bus company was allowed to tender
in evidence certain records to show that the money
received had not been paid to the company. However,
these records were not compiled by the witness and
furthermore he had no personal knowledge of the facts
recorded. Apart from these records there was no
evidence of the failure to pay over the money.

The appellant's appeal was allowed because clearly
inadmissible written hearsay evidence was wrongly
admitted.
Hearsay in written form
In Patel v. Comptroller of Customes [1966]
AC 356 where the appellant was charged with
making a false entry in that he declared the
origin of the coriander seeds to be India
whereas it was Morocco. The prosecution relied
entirely on the labels and markings which
asserted that the goods were the "produce of
Morocco".

On appeal the Privy Council held that the
legend "produce of Morocco" written on the
bags was from an evidential point of view
inadmissible against the appellant as hearsay,
and that the list of exceptions to the hearsay
rule could not be extended to include such
things as labels or markings. Perhaps the reason
to exclude labels or markings as exceptions to
the hearsay rule can be found in the judgment
of Lord Hodson Nothing here is known of
when and by whom the markings on the bags
were affixed and no evidence was called to
prove any fact which tended to show that the
goods in question in fact came from Morocco.
Hearsay in written form
In Beh Heng Seong v PP [1972] 2 MLJ 190, the
appellant was charged with a breach of the Sale of
Food and Drugs Regulations by manufacturing
sour plum juice in which there was saccharin
(Artificial sweetener). This is prohibited for the
use in the manufacturer of food or drinks. The
prosecution sought to adduce evidence that a
bottle of the sour plum juice offered for sale was
labeled with a piece of paper bearing a certain
portrait which was alleged to be manufactured by
one Beh Kwang Chee. However, there was no
indication as to whether Beh Kwang Chee was a
shop or of the address of this person or the shop.

It was held that the allegations on the label must
be regarded as hearsay and inadmissible.
Hearsay in written form
In Sim Tiew Bee v. PP [1973] 2 MLJ 200, the appellant had been
charged and convicted of the offence of being concerned in the
importation of uncustomed goods. At the trial the evidence of the
following documents was tendered and admitted:
(a) the ships manifest without the master or the officer
responsible for the document being called to prove the contents;

(b) the tally sheet prepared by a tally-clerk who was called to give
evidence but who stated that the measurements were taken by a
coolie in the presence of the tally-clerk;

The Federal Court held that evidence (a) and (b) should not have
been admitted, unless the absence of the maker could be
explained, which then would have been admitted as an exception
to the rule against hearsay as specifically provided by s. 32.
Hearsay by conduct
Acts can be completely hearsay. For instance, a situation might
arise where A nodded affirmatively in answer to Bs questions Did
C inflict your injuries? The sign of nodding made by A cannot be
given by B to prove that C did cause the injuries as it amount to
hearsay unless it comes under any of the exception to the rule.

In the case of Chandrasekara v The King [1937] AC 220 the
appellant was charged with the murder of a woman by cutting her
throat. At the trial, evidence was admitted that the victim had made
certain signs in which the apparent effect was possibly indicated to
the appellant. She was then asked whether it was the appellant who
had cut her throat, and in answering that question she nodded her
head. She died shortly afterwards from asphyxia (being unable to
breathe normally) resulting from the injury to her throat.
The Privy Council held that evidence as to signs made in answer
to questions put to the deceased was admissible. However,
statements of witnesses as to what interpretation they put upon the
signs were not admissible.
Hearsay by conduct
In Teper v R [1952] AC 480, the accused was
convicted of arson (is the crime of maliciously,
voluntarily, and willfully setting fire). Of a shop
belonging to his wife in which he carried on the
business of dry goods store. The prosecution
called a Police Constable Cato as a witness who
deposed that after hearing the fire alarm he heard a
womens voice shouting, Your place burning and
you going away from the fire. Immediately
afterwards he saw a black car being driven by a
man resembling the appellant. The words were
spoken some 220 yards from the site of the fire
and about 26 minutes after the fire had begun.

The Privy Council held that the evidence was
inadmissible hearsay and quashed the conviction.
Exception to the rule against hearsay
Dying Declarations
- Dying declarations of a victim that relate to facts surrounding the act that caused his or
her dying condition are excepted from the hearsay rule. Such declarations are admissible.
To be admissible as a dying declaration, the declaration must have been made while the
victim was at the end of life (extremity) or under a sense of impending death and without
hope of recovery.

- In most jurisdictions, if the statement is to be introduced at a trial, the person making the
declaration must actually have died. If that person did not die, he or she would, of course,
appear as a witness. A transcript of oral evidence of the dying declaration of the victim is
admissible and may be repeated in court provided it is shown that the person knew that he
was dying when the declaration was made, that the statement pertained to his own
homicide, and that he was competent to testify. In the trial of A for murder, for example,
the statement the deceased made, a few minutes before his death, that A shot him will be
held admissible.
o In the case of Chandrasekara v The King [1937] AC 220 where it was further held that
the direct question to the deceased whether it was the appellant and her nod of assent
constituted a verbal statement and admissible under section 32 of the Ceylon Evidence
Ordinance 1895. It is submitted that the sign of nodding made by the deceased shortly
before her death was initially regarded as hearsay. However, it was admissible and
relevant as showing the cause of the deceaseds death which falls within the exception of
hearsay under section 32 of the Ceylon Evidence Ordinance. In Malaysia, we have
statements by persons who cannot be called as a witness under section 32 of the Evidence
Act 1950.
Exception to the rule against hearsay
Res Gestae
- Still another exception to hearsay testimony comes under the heading of res gestae.
Res gestae are involuntary exclamations or acts made at the time the offense was
committed and are so closely connected to the main fact in issue as to be a part of it.
These utterances or acts are not planned, but are forced from the individual by the
excitement of the moment. The ground of reliability upon which such declarations
are received is their spontaneity; they are the facts talking through the party.

o In Teper v R [1952] AC 480, where the Privy Council later went on to consider
whether the evidence fell within res gestae exception to the rule. Unfortunately, it
did not because according to Lord Normand It is essential that the words sought to
be proved by hearsay should be, if not absolutely contemporaneous with the action
or event, at least so clearly associated with it that they are part of the thing being
done, and so an item or part of the real evidence and not merely a reported
statement. One element which attracts attention is that while a gap of about 26
minutes was considered as having broken the causal link between one fact and the
other.

o In Malaysia, we have section 6 of the Evidence Act 1950.
Conclusion
In summary, there is no definite and clear definition of hearsay both under
common law and Malaysia. The Act is silent on the actual meaning of hearsay.

However, the case of Subramaniam can be considered as the landmark case in
determining whether an out of court statement is hearsay or not to be
admissible as evidence. Hence, the effect of the rule against hearsay is to
exclude an out of court statement where such statement is used to affirm the
truth of facts contained in them and where the makers are not called as
witnesses.

However, if the purpose is to tender the statement as evidence of the makers
state of mind, the statement will be in issue or relevant and may be admissible
as original evidence.