Hearsay EvidenceA statement made out of court that is offered in court as evidence to prove the truth of the matter asserted.

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?

ContinueRatten 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 evidenceit 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 evidenceHearsay 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 ConstitutionIn the United States the sixth amendment of its Constitution which stated: In 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 evidenceAnything 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 formBilly 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 formPP 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 formKaram 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 formMalaysian 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 formSalha 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. YesQ. Did you interrogate this elderly person and also a person who is the adopted brother-in-law of the last witness?A. YesQ. 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 formAllied (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 formMyers 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 formIn 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 formIn 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 formIn 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 formIn 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 conductActs 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 conductIn 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 hearsayDying 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.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 hearsayRes 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.

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.

In Malaysia, we have section 6 of the Evidence Act 1950.

ConclusionIn 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.

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not behearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained inthe statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of thestatement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequentlyrelevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presencethe statement was made.*