Evidence II: LXEA 4122

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