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Hearsay which mean an out source information or rumour which can help or impact a case in which in cannot be used in the court directly in a normal situation but in the term of exception criteria there are some ways to accept the hearsays evidence is admisible in the court according to the UK law but in our nation Hearsay cases doesnt play a role much which mean Malaysian Law does not take in note of the hearsay evidance as much.

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1MDB

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Arguments over hearsay evidence in the 1MDB trial continue | New Straits Times

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KUALA LUMPUR: The prosecution in the 1Malaysia Development Berhad (1MBD) corruption trial has tried its best to produce fugitive businessman Low Taek Jho @ Jho Low to testify in the trial but its efforts have failed, the High Court was told today.

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The origins of the hearsay rule can be traced to the trial of Sir Walter Raleigh in 1603, which was found guilty of high treason on the basis of testimony that someone had overheard someone else say they heard Raleigh would slit the King's throat.

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Federal Rules of Evidence 801 and 802 specifically define hearsay and provide that this type of evidence is generally not admissible unless an exception exists. And this rule is consistent with the understanding that a witness relaying another person’s statement or actions can be less reliable than a first-hand account.

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Hearsay is an out-of-court statement offered to prove the truth of whatever it asserts.

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PP v. Norfaizal Mat

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Karam Singh v PP [1967] 2 MLJ 25.

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First hand Hearsay:

First-hand hearsay is defined as “a representation that was made by a person who had personal knowledge of an asserted fact

Second Hand Hearsay:
Is typically not admissible in court unless it falls under specific exceptions

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- Res Gestae
- Dying Declarations

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Hearsay General Rule & Admissibility

Noor Farhana Binti Abdul Halim
LEB 130070
Question:
Hearsay evidence is generally excluded because of
various attendant dangers. Explain what these dangers
are, and also why, despite the general rule, hearsay
evidence is at times admissible with particular reference
to the Evidence Act and relevant cases.

1. General rule of Hearsay Evidence

2. The dangers of Hearsay Evidence
3. Why still admissible?
The General Rule of Hearsay
Definition:
Hearsay is generally an out of court statement made by
a person who is not called in as witness but is repeated
by a witness in court with the intention to prove the truth
of its contents.

By virtue of section 60(1) of the EA, it suggests that

the hearsay rule is inapplicable due to the fact that
evidence shall be direct. i.e; the witness must have
seen, heard, perceived or opined the facts.
Thus, how to determine hearsay?
The test is laid out in the case of Subramaniam v PP:
- 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 evidence, not the truth of the statement,
but the fact that it was made in order to show the
The Dangers of Hearsay Rule
Rationale & Dangers of excluding the hearsay evidence rule;
Leong Hong Kie v PP [1986];

-It is not the best evidence as it is not delivered on oath

-The maker of the statement cannot be cross-examine as to the truth of the facts.
-The danger is that it may be concocted, fabricated, and tailored to suit the witnesss
testimony.
Forms of Hearsay;
-statements, conduct or document

Statements:
Whether a statement amounts to hearsay depends on the purpose of the evidence.

Case: Ratten v R telephone operator case.

Facts: Accused was charged for murder of his wife. A telephone operator gave
evidence that she received a call from a woman who said, get me the police please.

Held; Lord Wilberforce said that the statement was admissible not to show the truth of
the facts but to establish the mental state of the woman at that point of time.
Conduct:
Chandrasekra v R;
A woman who had her throat cut gestured in certain manner to
identify her assailant. It was held that the womans gestures
amounted to hearsay and was inadmissible as the purpose was to
establish the truth.

Document:
Myers v DPP:
Microfilms is inadmissible
Patel v Controller of Customs:
Labels containing the word produce of morocco is hearsay an
inadmissible.
Why still admissible?
1. Common Law Res gestae
-An assertion which forms part of the res gestae, in which if it forms part of the action
or event.
Previous test R v Bedingfield;
Whether the statement made was part of the transaction in relation to the facts in issue
or whether it was contemporaneous (occurring at the same time) with the action/event.

Present test Ratten v R:

Statement was admissible as to show the mental state of the women and that it was
made only minutes before she was shot and there was unlikely any concoction.

2. Section 6 EA
-It reflects the common law res gestae in our EA.
3. Admissions and Confessions S17 -31
Refer s 17,s18 &s21
Case: PP v Dato Seri Anwar Ibrahim (No. 3)
An admission is an exception to the hearsay rule and is admissible.

4. Section 32 Statements of persons who cannot be called as witness

Exceptions to the rule against hearsay - Section 32(1) - Statement of
persons who cannot be called as witnesses.
The prerequisites enumerated in Section 32(1) refer to proving the unavailability of the
maker of the statement or assertion;
Where the maker is dead
Where the maker cannot be found
Where the maker is incapable of giving evidence
Where procuring the attendance will result in unreasonable delay or expense

**It is to be noted that section 32 can be used in both civil and criminal proceeding

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Noor Farhana Binti Abdul Halim LEB 130070Question:Hearsay evidence is generally excluded because ofvarious attendant dangers. Explain what these dangersare, and also why, despite the general rule, hearsayevidence is at times admissible with particular referenceto the Evidence Act and relevant cases. 2. The dangers of Hearsay Evidence3.

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In Malaysia, hearsay evidence is generally not allowed. However, the Evidence Act 1950 permitted a few exceptions, such as section 60, 73A, 73AA etc.

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Often there are times where an important document is no-where to be found and all that is left are copies made by the photocopy machine. While in some cases a new original document may be issued such as certificate of shares1, this may not necessarily be the case in some other situations. In times like this, copies are usually what anyone would want to rely on.

The law in Malaysia on reliance on copies when an original document is missing is mostly covered under the Evidence Act 1950, or more specifically categorized as secondary documentary evidence. Up to date, there has not been much development on the law regarding this issue. As such, the provisions in the Evidence Act are heavily relied on whenever a case involving a misplaced or lost original document is being brought to court. The main provisions under the Evidence Act in relation to production of secondary documentary evidence would be Section 63, 64 and 65. However, it is also worthy to highlight Section 73A of the Act where it covers on the production of an original document in civil cases.

Section 63,64,65 & 73A of the Evidence Act 1950 Section 63 of the Evidence Act lays down documentary evidences which are allowed to be produced as secondary evidences in court, such as certified copies, copies made from the original from a mechanical process, copies made from or compare with the original, counterparts of documents as against the parties who did not execute them or oral accounts of the contents of document given by some person who has himself seen or heard it or perceived it by whatever means. Section 64 on the other hand mainly states that a secondary documentary evidence is allowed to be produced if the primary documentary evidence is unavailable.

Section 65, or more specifically Section 65 (1) (c) of the Act states that secondary documentary evidence may be given of the existence, condition or contents of a document admissible in evidence in cases where the original document has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time. Nonetheless, in producing documentary evidence under Section 65 of the Act, a reasonable explanation must be afforded with regard to the non-availability of the original document. This principle has been laid down a decided case of Tahan Steel Corporation Sdn Bhd v Bank Islam Berhad Malaysia2, whereby the failure of the Plaintiff to furnish a viable explanation of the missing primary document denies the Plaintiff from the exception under Section 65 of the Act, to tender secondary document. As such, in order to rely on this provision, one must be sure to provide a reasonable explanation as to the non-availability of the original document..

Section 73A of the Act states on the admissibility of documentary evidence in civil cases. It requires the production of an original document and lays down the conditions in tendering an original document. There are several conditions to be fulfilled under this section which are,

(i) statement must have been made in the document;

(ii) the original document must be produced;

(iii) the document in question is or forms part of a record purporting to be a continuous record and was made in the performance of a duty to record information supplied to the maker by a person who had, or might reasonably be supposed to have had, personal knowledge of the matter;

(iv) the statement must not have been made by a person interested at a time when proceedings were pending or anticipated, involving a dispute as to any fact which the statement might tend to establish;

and (v) the maker of the statement must be 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.

A case law worth noting which has applied this provision is the case of Alliedbank (Malaysia) Bhd v Yau Jiok Hua3. In this case, Alliedbank Malaysia, which is the plaintiff, had advanced money to Yau Jiok Hua, which is the defendant, on an overdraft account. The plaintiff later instituted proceedings against the defendant to recover the sum. They did this through sending the notices of demand to the defendant vide post. These notices were copies and not originals. The defendant objected the proceedings on the ground that these copies were not admissible stating that the witness tendering them was not the maker of the documents. The court had to determine the admissibility of the documents under Section 73A of the Evidence Act.

The judge, in dismissing the plaintiff's claim held that the plaintiff did not satisfy all the requirements under section 73A and as such, the documents were not admissible. The documents sought to be tendered in evidence are copies of letters written by a law firm and AR cards.

The latter were originals while the former required deliberation as they were copies. They were carbon copies produced from a typewriter.

Therefore, it may constitute as primary evidence IF it has been by one and same uniform process as the top copy. Thus, the principle laid down in this case is that a copy can be admissible if the signature on the copy was produced in the same uniform process, which means that the copy cannot be signed separately. A fresh signature on a copy will render it inadmissible.

Nevertheless, an exception to the above is provided under Section 73A (2), in the sense that should at any stage of the proceeding, the court finds that there will be undue delay or expense caused, the court may order for evidence to be submitted notwithstanding that the original document is not produced but there is a copy of the original certified to be true copy in such manner that the court approves.

This again, gives one the flexibility to rely on a copy if the original document is not made available.

The principle of production of secondary documentary evidence worth highlighting is from the Indian case of Pravin v Ghanshyam & Others whereby in this case, the judge held that "the pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control.

The party sought to produce secondary evidence must establish for the non-production of primary evidence.

Unless it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted". As such, it is clear that it must be established that the original document is unavailable before producing a copy of such document.

In other case such as insurance policies, insurance companies have provided that should an original insurance policy is found to be missing, the policy holder must simply make a statutory declaration or a police report lodged on the loss document4 if they intend to make a claim.

While original documents are regarded as the best evidence rule in any circumstances or disputes, should the originals get burnt in a fire, eaten by a dog or washed away by the sea, the law gives the flexibility in producing copies provided that the conditions laid down are fulfilled.

It is therefore not the end of the world if one were to misplace an original document. Regardless of such, it is always prudent to keep and handle original documents and certificates safely in order to produce strong evidence in court.

For further information, please contact:

Azreena Azimuddin, Azmi & Associates
1 Section 104 of the Companies Act 2016 4 Allianz https://www.allianz.com.my/what-todo-when-claim-documents-are-lost-ordamaged-allianz-malaysia-explains

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Malaysia - Reliance On Copies In The Absence Of Original Documents.

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Often there are times where an important document is no-where to be found and all that is left are copies made by the photocopy machine. While in some cases a new original document may be issued such as certificate of shares1, this may not necessarily be the case in some other situations.

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- Oral hearsay
- Written hearsay
- Hearsay by  conduct

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1. The maker who has passed

2.Maker cannot be found after diligent search

3. The person is incapable of giving evidence

4. The person is out of jurisdiction and to call him would result in undue delay and expense