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Hearsay Evidence

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The general hearsay rule is that a statement made by a person not called as a witness is inadmissible to prove the truth of the facts stated and extends to oral evidence as to statements in documents.1 Where oral evidence is relied on, it must be direct in all cases.2 Section 603 has thus codified the rule against hearsay evidence. “Hearsay” does not mean that no witness can be allowed to depose anything which he has heard said by anyone else.4 It is secondary evidence of any oral statement.

Whether an out of court assertion amounts to hearsay depends on the purpose of tendering the statement.5 In Subramaniam v PP6, Privy Council held:

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Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

The concept of hearsay is not always a straightforward one, as exemplified in Ng Lai Huat v PP7, where the judge had reversed his own ruling on the admissibility of an out-of-court assertion. Although it was initially ruled that the evidence of the former Director-General of Prisons in relation to Jimmy Chua’s purported demands did not amount to hearsay, the judge subsequently reversed his ruling and held otherwise, on the basis that the purpose of tendering the statement was to establish the truth of its contents.

Hearsay evidence which ought to have been rejected does not become admissible merely because no objection was taken earlier.9 Hearsay assertions can be a conduct10 or a document. Documentary hearsay is generally inadmissible.11 The implied assertions of hearsay are statements or conduct which rest on some assumption of facts believed by the maker of the statement or the doer of the act which can be inferred by conduct.12 There is a lack of authority on the question of whether the hearsay rule extends to implied assertions. The Evidence Act 1950 does not distinguish between express and implied assertions in statements. It may be argued that all hearsay assertions should be excluded unless they fall within any of the exceptions in the Act.13

The exceptions are statements made by persons who cannot be called as witnesses14, evidence for proving in subsequent proceedings15, evidence obtained under mutual assistance in criminal matters requests16, documentary evidence in civil cases17, documents produced by a computer18, and where the assertion forms part of the res gestae19 or the facts form part of the same transaction20. There are various reasons for the exclusion of hearsay evidence. It is said that hearsay evidence is not the best evidence available as it is made out-of-court and is not verified by any source other than the maker. Since it comes from a source other than the person testifying in the court of the truth of its contents, there is a substantial risk that in the transmission of the information, there has been some errors. The hearsay statements also are not delivered on oath because the veracity of its contents cannot be verified. Further, the maker of the statement cannot be cross-examined and thus the accuracy of the statement cannot be verified.

In summary, under the Malaysian law, although hearsay is not defined in the Evidence Act, it may be excluded by implication as the Act only provides for the admission of “direct” evidence. To be admissible, hearsay must first be shown to be “legally relevant”. Such hearsay must fall within one of the exceptions to the hearsay rule as statutorily provided. If it does not fall within such exceptions, then the issue does arise whether it falls within the common law doctrine of res gestae. The Privy Council decision in Ratten’s case will probably be regarded as good law in the Malaysian courts and will be applied to admit evidence if it can be shown that the statements are reliable in that there is no possibility of concoction or error. Proximity in time and place is relevant, but not a decisive factor. It is relevant only in so far as it affects the issue whether there was ample time (and opportunity) to concoct the evidence or not.21

Cite this Hearsay Evidence

Hearsay Evidence. (2016, Jun 29). Retrieved from https://graduateway.com/hearsay-evidence/

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