SUBJECT EVIDENCE LAW (LAW 824) - ASSIGNMENT

NAME
STUDENT ID NO
DATE 11 JUNE 2016 (SATURDAY)
NOTE The sentences in purple refer to the answers/remarks of
our Lecturer

ANSWER

Fact in issue: Whether Malik and Jai was responsible for corrupting soliciting
and accepting a gratification of RM 5,000 from Fadil on 25 March 2015.

Jai (Clerk)

When Jai, the clerk in the Department of Inland Revenue found Fadil in
McDonalds Fast Food outlet at Jalan Batu 3, Shah Alam on 25 March 2015 at
about 11 am, Jai has received a bribe a state of things as described in s.7
Evidence Act 1950 (Act).

Ajib (MACC Officer)

Ajib was unable to find any form of records a third person except on notebook of
name and phone number Malik recorded. In the absence of any form of the
identity of anything which is relevant under s.9 of the Act cannot be established.

En. Zul (Officer in Charge MACC)

The investigate conducted by En. Zul on Jai revealed that the bribery was divided
equally with Malik. To prove that Malik envolvement Jai produced other 2 letters
which were duly approved by Malik is considered under s.7 of the Act as facts
which caused the bribery. The evidence is relevant.

When Dr Kami confirmed that Shelli was two months pregnant, this is relevant
under s.8(1) as it shows a motive for her being killed. If Shelli was not killed, her
pregnancy would disclose with whom she was having a relationship and the
person concerned would be exposed.

Dr Kami is giving an expert opinion. Under s.45 of the Act her opinion as an
expert is relevant. When an expert testifies in court, he or she is giving oral
evidence which must be direct under s.60(d).This therefore requires the
presence of Dr Kami to give oral evidence. When Dr Kami is unwilling to come,
she is unable to give oral evidence.

Further, under s.399 Criminal Procedure Code, the Public Prosecutor who
intends to give evidence based on a medical report shall deliver a copy of it to the
accused not less than 10 clear days before the commencement of the trial.The

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accused would then give to the Public Prosecutor three clear days notice before
the commencement of the trial to inform of its intention question the maker of the
report. Hence, Dr Wan cannot just replace Dr Kamiin the trial as he did not
perform the post-mortem and make the report.The testimony of Dr Wan in court
and the fact of pregnancy linking it to the motive for killing Shelli would be just
hearsay not be admissible.

Pak Gad (security guard at Shellis condominium)

Pak Gad saw Shelli went to a waiting car which was parked about 10 metres
away from the Security Gate of the condominium. He was sure the driver was
Ako as he had visited Shellis condominium twice, knew the model of the car to
be Satria Neo and its registration number. On both visits, Akio waited in the car
which was parked at the same place.

The quality of evidence by Pak Gad seemed convincing except for the fact that
nothing was stated that Ako had alighted from the car previously and Pak Gad
had seen him in person fully. Thus, the quality of evidence now seems
questionable especially if it is unsupportable by other corroborative evidence, for
example, the CCTV [Ahmad Najib b Aris v PP (2009) 2 MLJ 613]. If the
prosecution still seeks to call Pak Gad as a witness, then under Arumugam v P
[1998 4 MLJ 406] an identification parade has to be conducted if witness had not
seen the accused before the dock identification.

Also, the court has to be guided by the Turnbull guidelines which stated as
follows:-

i)The need for the judge to warn himself about the dangers of the identification
evidence.

ii)The need for the judge to examine specific matters that may affect the strength
or cogency of the evidence before him. This refers to the court assessing the
quality of evidence.

iii)The question of whether the court can convict the accused based merely on
the good quality of visual evidence even in the absence of other evidence
supporting the crucial identification.

In compliance with the Turnbull guidelines, the court will have to warn itself on the
identification evidence of Pak Gad. This then requires the court to assess the

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identification evidence of Pak Gad. Finally, the court will have to decide whether
in the absence of other corroborative evidence, it is safe to convict the accused
based solely on the said evidence of Pak Gad.

The poor identification of Pak Gad would afford an opportunity for the offender to
kill Shelli. Such opportunity is stated under s.7 of the Act. The conduct of the
offender in committing the killing is reflected under s.8(2) of the Act.

Mr Kimia (Chemist)

Mr Kimia who analysed the blood stains on the screw driver was of the opinion
that the blood found on it corresponds with that of Shelli.Mr Kimia was unable to
discover any finger prints on the screwdriver .

As this is an expert opinion of Mr Kimia, it comes under s.45 of the Act. The
opinion of Mr Kimia that blood stains on the screw driver corresponds with that of
Shelli is therefore relevant. Also relevant was his inability to discover any
fingerprints on the screw driver. This led to his failure to establish the identity of
the offender as stipulated under s.9 of the Act.

Riya (Akos wife)

Riya stated that Ako was not well on 29 and 30 March 2015 due to flu. She
remembered calling him on both nights to check on him. On both of those
occasions he had said that he was resting in bed.

When Riya gave statement in favour of Ako, it is said that Ako has an alibi under
s.103(b) of the Act his wife as a witness. The statement in support of Ako
comes under s.11 of the Act because it was used to back up the claim of Ako.

On the other hand, a close analysis of the wifes statement may raise the issue of
how certain was Riya that the husband was resting in bed on both nights. This is
because Ako by using his hand-phone can merely said he was resting in bed.
Thus, the assertion of Riya in favour of her husband is hearsay unless supported
by other corroborative evidence.

Letter of Shelli

The letter was found by Inspector Dav following a search in the house of Ako.
The letter was written by Shelli to Ako. It has to be presumed here that the
handwriting of the letter was that of Shelli. Under such a presumption, it can be
said that the letter showed a relationship subsisting between Shelli and Ako

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before Shellis death. This is relevant under s.9 of the Act. The contents therein
may be argued to be hearsay generally. However, the fact of the said relationship
cannot be disputed [Subramaniam v PP (1956) 1 MLJ 220]. At this point, it
should also be pointed out that when Inspector Dav first came to the
condominium, he found the house was in proper order which is a state of things
as described in s.7 of the Act. The inference here is that whoever killed Shelli
must have been known to Shelli who had allowed access to the condominium.

In looking at the letter further, it could be seen that the letter referred to the
circumstances which resulted in her death. Under s.32(1)(a) of the Act the
contents (pregnancy, threatening to disclose to the wife of Ako her affairs)
referring to such circumstances are exception to the hearsay rule and are
relevant.

Ako (Accused)

Akos claim that he was at home recovering from flu on 29 and 30 March 2015 is
regarded as conduct which is relevant under s.8(2). However, this claim is
rebutted by under s.9 by the discovery of the above-said blood-stained screw
driver which was hidden in the booth of his car. This claim is further rebutted by
the existence of the letter which showed his relationship with Shelli. Such rebuttal
is relevant under s.9. The contents of the letter which are relevant under s.32(1)
(a) also provided a damning evidence against Ako.