Evidence 1 Chapter 5 : Relevancy

It is very important because s 5 & s 3.

Note: Sir Rupert Crosss definition- fact in issue are all these facts that (a) a plf in a civil
action or a prosecution in criminal proceedings must establish in order to succeed; (b) any
further facts that the def/accused must establish to rely on a defence.

Note : Legal Relevancy

EA : Chapter 11 ( s 5 55)

General Relevancy : s 5

Read on your own : s 12, 13, 15, 16

Relevancy

Preliminary matters (s136; failure to object; illegally obtained evi) s 6, 7, 8, 9, 10, 11, 14

Preliminary matters

S 136

(1) the court may ask the party proposing to give the evidence would be relevant, and
not otherwise.

** if there is Q in relevancy, start with s 136.

Impact:

Under s 136(1) the court has discretion to see the relevancy of the evidence sought to be
admitted.

The [arty proposing to admit must establish that the evidence falls under one of the relevancy
sections of EA.

If the party fails to establish the relevancy of the evidence, the evidence will be rejected on
ground of irrelevancy.

The term proposes in s 136:

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PP v Dato Seri Anwar Ibrahim

The defence wanted to call the PM (Dr. Mahathir) as a witness in the case and they asked the
court to issue a subpoena. Augustine Paul J rejects the application and held that: a party does
not have an automatic right to call a person as a witness. The court has the power, and indeed
is duty bound to inquire into the relevancy of a proposed witness before he begins to give
evidence, the object is to ensure that evidence is confined to relevant facts and does not stray
beyond the proper limits of the issues at trial.

Note: relevancy is the precondition to be satisfied before the evidence will be deemed
admissible (1st hurdle). Relevancy does not equal to admissibility.

Evidence which is relevant may be excluded by other rules of admissibility under the law
hearsay, privilege.

Formula:

Relevancy
No
Excluded

Yes

Admissibility (is it hearsay / privilege)

Yes
No

General rule : not admissible

Admissible

If falls under exception - admissible

Weight

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Failure to object

Is failure to object fatal? Does failure to object constitutes to a waiver of the requirement of
relevancy? Will inadmissible evidence be rendered admissible if there is no objection?

No, just because fail to object, irrelevant evidence will not become relevant. The judges play
the role to exclude the evidence not fatal. Therefore, failure to object not fatal, can raise the
issue on appeal.

Alcontra Ambrose Anthony v PP

Irrelevant / inadmissible evidence does not become admissible just because there was no
objection. It is the duty of court to exclude all evidence which is irrelevant.

The position is the same in civil and criminal cases. (Boonsom Boonyanit)

Failure to object on mode of proof in civil and failure to object on mode of proof (procedure
in tendering evidence) may be fatal. Objection must be raised before evidence is marked as
exhibit. If there is no objection, it will amount to waiver. The evidence can no longer be
challenged on appeal. (this is because civil, judges no discretion. Once the evidence admitted
as exhibit, cannot be saved).

Boonsom Boonyanit

YB Dato Hj Husam

S 58(1) EA

In criminal proceedings, failure to object on the mode of proof is not fatal. This is because
there is more flexibility in criminal proceedings.

Noliana Sulaiman v PP

This case suggests that the failure to object on the mode of proof in criminal cases are not
fatal and does not amount to a waiver.

S 58(2) EA

The case must be read in light of s 73AA of EA (mirror image of s 58)

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Relevant Evidence which is illegally obtained

Will such evidence be admissible? Must compare position in Us, England & Wales and Msia.

It must be noted that they need to strike a balance. The criminal justice system must be fair to
both the society and the accused.

Malaysia = admissible.

US = not admissible. If arrest and search is illegal also same. OJ Simpson

England & Wales = admissible (same as Msia)

**rmb: if asked this question, must mention US and contrast their law with our law.

In England & Wales and in Msia, the admissibility of illegally obtained evidence is subject to
the discretion of the judge, the judge will exclude on the ground that it will be unfair to the
accused.

Sm Summit Holdings v PP

Lord Diplock was right when he held that it was not the business of the court to discipline the
police. While the court should not condone illegality on the part of law enforcement officers,
the exclusion of evidence is completely inappropriate in a trial. I do not underestimate the
importance of judicial integrity. Judicial integrity is important since the public would lose
respect for the court as a dispenser of justice if it is seen to condone illegality, but judicial
integrity is undermined when the public perceives that factually guilty people are getting
away with serious crimes because of a trivial breach of legislation.

Case Law:

Kuruma v R

Most important: Lord Goddard sets out the tone for common law position. His lordship held
that: illegally obtained evidence is admissible and this applies to both civil and criminal cases.
In criminal cases however, there is a discretion. A judge may exclude illegal / improper
evidence if he finds that it will result in unfairness to the accused.

Goddards example: if police tricks the A and A gives a doc / statement can exclude.

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PP v Hj Kasim

Incorporated Kuruma v R.

How should the discretion be exercised? This is discussed in the below case.

Noor Mohamed v The King

C held that : in all such cases the judge ought to consider whether the evidence which it is
proposed to adduce is sufficiently substantial being regard to the purpose to which it is
professedly directed to make it desirable in the interest of justice that it should be admitted. If,
so far as that purpose is concerned, it can in the circumstances of the case have only trifling
weight, the judge will be right to exclude it cases must occur in which it would be unjust to
admit evidence at a character gravely prejudicial to the accused even though there may be
some tenuous ground to holding it technically admissible. The decision must then be left to
the discretion and the sense of fairness of the judge.

= if the evidence is illegally obtained, but so important that the case will collapse without it,
the judge can admit.

= if you are the defence and the evidence is illegally obtained, you ask the judge to exercise
his discretion to exclude it.

= if you are the prosecution you must say that the evidence is not illegal; say that it is not
prejudicial against the accused.

R v Sang

Lord Diplock: Judicial discretion to exclude illegally obtained evidence is confined only to
confessions / admissions & does not extend to other evidence (evidence obtained from
accused contrary to his right against self-incrimination). The test is : does the prejudicial
effect outweighs its probative value?

Lord Diplock said that Goddard tricking statement means confession. Mages doesnt agree
because she says that Diplock is putting words into Goddards mouth. Therefore, R v Sang
narrowed the application of Kuruma v R.

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= the discretion to exclude will not be exercised and the evidence will be admitted if the
probative value outweighs the prejudicial effect. \= the discretion to exclude should be
exercised and the evidence will be excluded on the ground of unfairness as the prejudicial
effect outweighs the probative value.

Ramli bin Kechik v PP

Incorporates R v Sang

Note: impact of R v Sang

Narrowed the application of Kuruma

Judicial discretion to exclude on grounds of unfairness in now confined to evidence
obtained from accused under his arrest = confession, admission, caution statement.
S 27 EA (information statement)
Blood sample, DNA evidence.

Goh Ching Ang v PP, FC

Mages likes this case, high watermark.

Accused was charged under the ISA (death penalty) for unlawful possession of firearms.
Police raided the house and police said that the accused said: pistol disimpan dalam speaker
box mini coup (s27 information statement). During trial, prosecution tenders this as evidence
and the defence objects and argues that this evidence should not be admitted because it is
involuntary. Issue for the FC: whether the statement is admissible?

Court:

1. S 27 is independent of s 24.
2. Courts in Msia have an inherent discretion to exclude evidence which is prejudicial
even if it is technically admissible on grounds of unfairness.
3. Evidence obtained in an oppressive manner or against the wishes of the accused or by
trick or by conduct which the police ought not to take advantage of would operate
unfairly against the accused and should in the discretion of the court be rejected.
(generous judges).
4. On the facts of the case, they excluded the statement of the accused.

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What we know about Goh Ching Ang: judges have discretion; whenever polices conduct is
wrong, should kick out.

Francis Antonysamy v PP, FC

If Goh Ching Ang is high watermark, this case is mudflat. =.=

Augustine: it follows that Goh Ching Ang cannot be understood to mean that a s 27 statement
must be excluded in all instances where it was supplied involuntarily. In my opinion, the
degree of involuntariness that can be said to be sufficient to exclude that s 27 statement in the
exercise of the discretion of the court must be balanced against the fact that involuntariness is
not a condition of admissibility of such a statement. Therefore the circumstances of
involuntariness must indeed be extraordinary in order to exclude a statement on a ground
which, in the first place, does not affect its admissibility in law.

Mages: dont agree because involuntariness cannot be extraordinary. It is either voluntary or

involuntary.

Krishna Rao Gurumurthi v PP, FC

The whole family was killed because the accused wants the jewellery in the victims shop.

C: it should be borne in mind that the hurdles to overcome for the admission is whether the
probative value outweighs its prejudicial effect. (did not refer to Francis Antonysamy).

Hanafi Mat Hassan v PP, CA

An IT graduate was kidnapped by bus driver, rapes and murdered. The evidences were
overwhelming. They obtained blood sample and matched it to the accused who rape the
victim. Defence argues that the blood sample must be excluded in the exercise of the
discretion of the court as the available evidence shows that the accused was handcuffed at the
time thereby rendering the taking of the blood sample involuntary.

Court: The general rule is that evidence relating to blood sample taken from the accused is
admissible as it is relevant even if it was taken without his consent. This is subject to the
discretion of the court to exclude unfair evidence.

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Dato Seri Anwar Ibrahim v PP, FC

This is sodomy 2. He was arrested, kept in lockup, and was asked to provide DNA by the
decline. The obtained his DNA by his toothbrush, towel, mineral water. The defence argued
that this was illegally obtained by means of trickery and should be excluded.

The initial ruling of the trial judge was that the exhibits should be excluded as they were
obtained by unfair means. But later he changed his mind and ruled the detention was lawful
and therefore no discretion to exclude the evidence.

On appeal to the FC, the court held that even if those exhibits recovered from the lockup were
indeed illegally obtained, which we say were not, in law they remain admissible if found to be
relevant to the case.

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Relevancy (sections)

S 6, 7, 8, 9, 10, 11, 14 evidence that comes under these sections are circumstantial.

Section 6 EA

are so connected with a fact in issue as to form part of the same transaction... whether
they occurred at the same time and place or different times and places.

= applies to civil & criminal

= commonly referred to as res gestae

= topics : relevancy & hearsay

= test: so connected it becomes part of the same transaction (question of fact)

A. Paul : to exclude this fact will render the fact in issue unintelligible. (can understand facgt
in issue if allow s 6 facts to be brought in).

Example: if A snatches your bag (fact in issue), next you would probably scream : HELP!!!
In court the fact in issue is the accused snatched my bag. S 6 fact is I scream for help.

=s 6 illustration (a) important.

Case law:

Chin Choy v PP

There is no universal test for s 6 because it is a question of fact, but there should be guidelines:

i. Proximity of time
ii. Proximity of place
iii. Continuity of action
iv. Community of purpose / design

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Thavanathan Balasubramaniam v PP

Refers to Chin Choy and held that: there is no universal formula but there must be a chain of
connection between the 2 facts, by such facts proximity of time, proximity of place,
continuity of action, community of purpose / design.

** M: s 6 is question of facts, so will need cases to illustrate the application, so all following
cases need to know the facts.

Tan Geok Kwang

The accused is charged with bring found in possession of firearms, facing the death penalty.
Police received a tip off and raided his house. When they raided the house the accused ran out.
The police told him to stop and the A kept running. Police then opened fire and wounded the
A. A ran into a bush and hid into it. Police surrounded the bush and then A threw a hand
grenade out, but the hand grenade did not do anything. The A was caught and there was no
firearm on him when he was caught. When the police officer wanted to tell the court about the
incident after the raid the defence objected and said that the action of throwing hand grenade
was not relevant because the charge is possession of firearms. Refer to chin choy, satisfied the
4 principles, court held that this is res gestae. The hand grenade is relevant under s 6 as it is so
relevant it is part of the transaction.

Kok Ho Leng

Police received a tip off that A is running an illegal betting ring. Police raided his house and
arrested him. After that, the police hung out in the house (searching) and the phone rang. The
person calling said that they want to find the A to place bets. When the police appeared as
witness they wanted to say what happen after the phone rang but the defence objected. Court
refered to Chin Choy, the 4 principles had been satisfied. Court also said that illustration (a)
can be used here as it is immediately after. However, these statements were caught by the
hearsay rule.

Jaafar Hussain

The A was charged with carrying a shotgun and hand grenade. He was walking and was
confronted by police. When he saw the police, he threw both weapons and ran. Police caught
him. He was initially charged with the possession of gun and grenade. When the case went to
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trial, the prosecution only charged him with possession of grenade. When the police came and
gave statement, the defence objected when the police were about to mention about the
shotgun. The court referred to Chin Choy and held that 4 principles were satisfied and
therefore the facts are connected and the evidence is relevant under s 6.

Hamsa Kunju v R

The A was charged with assault. He assaulted the victim at 945pm. There was evidence that
earlier in that day (morning) the A had a fight with the victim at workplace. Can the evidence
of the fight be brought in? Refer to Chin Choy: first 2 elements not satisfied, the last 2
elements satisfied. Therefore, evidence of the fight is relevant.

PP v Sam Hong Choy

A robbed the victim. When the victim was robber he screamed: mintak tolong kejar!!! Can the
statement which was said immediately after the robbery be admitted? Satisfied all the
elements in Chin Choy, can be brought in.

Aziz Muhammad Din v PP

The A is said to have committed statutory rape. The victim was alleged to have been rape on
31.01. She spent the night with the A and eventually she went home on 03.02. When her dad
threatened her and the V told her dad that she was with A and A raped her. The issue was: can
the statement be admitted as part of the transaction?

A. Paul J: there is a difference between a complaint and a statement. If it is a complaint, it

may still be admissible under s 6. Complaint is spontaneous and voluntary; statement is not
voluntary and not spontaneous. Court held that 4 principles in Chin Choy were not fulfilled
and therefore, it is not part of the transaction.

Section 7 EA

the occasion, case / effect, immediate / otherwise which constitute the state of things
under which they happened opportunity

There are 3 limbs:

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 i. Occasion, cause, effect
ii. State of things under which they happened
iii. Opportunity

= civil & criminal also applicable

**Mages: if facts connected nut more remote, use s 7 (question of fact). Facts which are not
part of the res gestae but still connects to fact in issue could fall with s 7. It is not necessary
to identify which limbs the facts belong to.

Occasion, cause, effect

Saw Thean Teik v PP

The A is charged with dangerous driving and the cause is intoxication. The court held that the
evidence can be brought in under this limb.

Dr Jainand v R

The accused was charged with murder. The evidence that was brought in was that the victim
has given money and jewellery to A and had gone to A to demand A to return the money and
jewellery. The court held that this evidence is relevant under s 7 for occasion, cause and
effect. mages: can also be under s 8- motive.

Sidik Sumar v R

S 7 illustration (b) things found at crime scene.

There was evidence of footprints and the crime scene and the footprint was from one place to
another. The court held that the evidence can be brought in as footprints are relevant under s 7
illustration (b).

PP v Toh Kee Huat

Fingerprints in the crime scene can be brought in under s 7.

Kok Ho Leng

Phone call is also accepted in s 7.

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Yusufalli v PP

The court held that a tape recording can be admitted under s 7.

State of things under which they happened

No case lol

Opportunity

Aziz Muhammad Din v PP

Evidence that the victim spent the night with the accused shows that the accused had the
opportunity to rape her. The statement can be admitted under s 7 opportunity.

Section 8 EA

(1) motive / preparation

(2) conduct of any party previous / subsequent

3 limbs:

i. Motive
ii. Preparation
iii. Conduct (previous/subsequent)

Motive

Definition: reason why a person does an act. (not the same as intention)

Example: X puts poison in Ys drink. Xs intention is to kill Y (fact in issue). Why X wants to
kill Y (motive fact relavant).

Note: s 8 illustration (a)

Dila Ram v Emperor

Mere evidence of motive does not equal to guilty. Absence of motive also does not equal to
innocence.

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PP v Oh Laye Koh

Motive can help to establish mens rea.

Boota Singh v PP

The A was charged with murder. The evidence was: 9 months before the murder, the V made
a police report against him. Can the prosecution bring in the police report? The purpose of
this evidence is to show that the A and V has a problem. The court held that the police report
was relevant as it proves bad relationship between A and V.

Wong Foh Hin v PP

A is charged for murdering his daughter. The evidence: 3 months before he killed the V the
wife made a report to the ketua kampong that the husband had interfered with the daughter.
The ketua kampong gave him a stern warning and told him that he is does it again he will
report to police. Unfortunately, 3 months later, he interfered with his daughter again. The wife
saw and went to the ketua kampong. When they got back, the daughter was already dead. The
court held that he had motive as he was already being warned 3 months ago.

Lim Kong v PP

The A was charged with kidnapping. The evidence: the A was in financial trouble.

Hamsa Kunju

The fight can be construed as motive.

PP v Sunny Ang

A was also in financial trouble.

Preparation

Illustration c & d of s 8

What happens before crime : intention preparation attempt actual criminal conduct

Once a person goes beyond preparation, it is a crime. Evidence that a person has been
prepared to commit crime is relevant under s 8(1) helps to infer intention.

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Juraimi bin Husin v PP

Body was buried very soon after V was killed to dig a hole to bury a person needs quite
some time, so this means that the A had dug the hole first. This is pre meditation, intention.

Conduct

S 8(2) + explanation 1 & 2 previous or subsequent

Aziz Mohamad Din + illustration j & k = statement cannot be a conduct

= the conduct must take place before or after the fact in issue (previous / subsequent)

S 8(2) conduct of any party (claimant, defendant, accused, victim)

**in exam, it is very helpful to cite the illustrations

Illustration (e) before, at the time, after

Illustration (j) consent. However, if statement not voluntary, not spontaneous = no conduct

Illustration (k) distinction between complaint and statement. If it is complaint it is conduct.

Chanderasekaran v PP

The A was charged with corruption. One day he came into office and told his colleague that
he just struck rich and gain RM5000 and told people that he won the money in a horse race.
Actually he got the money by corruption. So, all the voluntary statement and information
(giving evidence to back up his story), can those be brought in as a subsequent conduct?
Court say yes because it was voluntary information and it was given without a reason.

Example: X comes to class and say : I kena lottery. Is this covering up? YES. Illustration e.

Mona Fendis case

Immediately after the death of the V the A went on a shopping spree conduct subsequent

PP v Pathmanabhan Naliannen

Illustration (e) can be used in this case destroy and conceal evidence

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Illustration (i) possession

In this case the police found bones and cricket bat with blood. Found watches of V. therefore
it can be said that the A concealed evidence relating to the crime (personal belongings). Also
in possession, personal belongings found in As farm.

Section 9 EA

i. Explain / introduce
ii. Which support / rebut an inference
iii. Which establish the identity of any thing / person
iv. Fix the time / place
v. Show the relation of parties

**need to know that there are 5 limbs, but some are not very important.

Facts to explain / introduce

Illustration (a) & (f)

Facts which support / rebut an inference

Illustration (c)

**must read s 9 with s 8

S 8 lets say I know I committed a crime and there are investigation, I try to get away. My
act of trying to abscond shows guilty behaviour. Lets say I have a valid reason (funeral), my
act of trying to leave, is it guilty behaviour / explanation? If explanation, relevant under s 9
(rebut inference of guilt).

Choo Chang Teik v PP

The 2 accused have just moved in to the house and they were cleaning. One was downstairs
and one was upstairs. Suddenly police not in uniform raided their house carrying crowbars.
Both of them ran. They were caught and charged. The prosecution brought in evidence that
they were trying to run s8. However, the A has explanation: they just moved in and one of
them was previously assaulted. The court held that they have valid explanation.

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Establish identity of thing / person (IMPORTANT)

Establish identity of things

Pathmanabhan Naliannen v PP

The police identified the Vs by looking at their watches. This means that a person can be
identified by their jewellery / personal belongings.

Establish identity of person (5 ways)

a. Fingerprint
b. Voices
c. Photo
d. Visual identification
e. I.D. parade

(did not include DNA because it is in evidence 2)

a. Fingerprint

Example: if my fingerprint was found at the crime scene, it is relevant under s 7. But is does
not stop there. The prosecution must be able to link the fingerprint to the A and fix the
identity. DNA everybody different except for identical twins. Fingerprint also has a very
high value. A person can be convicted based on fingerprint evidence.

PP v Toh Kee Huat

A car was stolen and the stolen car was dump in public spot where there was a lot of traffic.
The car was left there in the middle of the city. The A was caught and charged with theft. On
the surface of the car there were 1000+ fingerprints. However, in the inner surface, there was
only one set of fingerprints belonging to the A. The defence was that there was a lot of people
and a lot of fingerprints. The court noted the point but held that all other fingerprints were
found outside the car while the As fingerprints were inside. Convicted.

** uncommon = shoeprint. Mages say everybody shoeprint will be different. Because the
worn out places and how we walk determines our shoeprint.

b. Voice
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Can a person be convicted purely on voice identification? NOT REALLY. Voice
identification do not have as much weight as fingerprint identification.

Teng Kum Seng v PP

The A was charged with extortion. He demanded money from 3 V through phone and he was
arrested. The V identified him each of the V was separated and asked to listen to the As
and others voice. All 3 of the V picked him out as the man who extorted them. C said they
are prepared to accept because 3 people identified him. (In 1960 there was no scientific
manner)

c. Photo / CCTV

1st principle:

Lai Ah Kam v R

Is it acceptable for the police to identify a suspect using photographs in order to make an
arrest? Yes it is acceptable. The fact that the suspect was identified through photo can also be
revealed in court. However, there are condition for photo identification.

2nd principle:

Example: what if there are 3 photos, and the police asked the V: can you identify who did this?
*proceeds to push one specific photo to V* Law is clear, this is not allowed.

3rd principle:

If the police already arrested the suspect and he is in custody, should the V I.D him by photo
or I.D parade? ID parade.

Girdari Lall v PP

The suspects photo had a police number and it was a mugshot. The said photo was used to
identidy the suspect and the suspect was arrest. The court held that this photo cannot be used
as evidence in court as by one look, the court will know that the accused has criminal record.

Mages: can tell the court that the A was identified by photo and then do an ID parade.

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PP v Kok Heng

The V were going to identify the suspects through photographs. Of all the 10 photographs
presented for inspection, there was a group of 3 that could be separated from the rest in that
they bore the word segamat and has consecutive numbers. There was no other group of 3
among the 10, and the witness was suppose to identify a group of 3 men. The court held that
if there is identification by photographs, the identification and the method must be flawless.
Here, it is flawed.

R v Cook

If a person has taken photos of the actual crime, can it be tendered? Yes. The photo can be
tendered and used to identify the person. Here, a photofit is used to identify the A.

Photofit = V will describe the As face a bit cacat 1.

Taylor v Chief Constable of Cheshire

The court held that CCTV can be admitted as evidence.

Ahmad Najib Aris v PP

The prosecution has the CCTV recording that the V (Canny Ong) was kidnapped at the
parking lot. The court ruled that the evidence is relevant but there was a problem with
admissibility. The federal court ruled that a CCTV evidence must satisfy the rule in s90A
before it can be admitted.

d. Visual identification

There are 2 things that can be observed by the V:

i. Recognition see somebody you already know

ii. Identification observe a total stranger

Dato Mokhtar Hasim (above)

Dock ID:

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Witness is only asked to identify the A as the person he saw for the 1st time in court, without
any ID parade / previous opportunity to identify. However, this is worthless.

Exception: if the A is a person known to the V, because that will be recognition.

Dock ID is said to be worthless because:

i. Between the commission of the crime and the trial there is a huge gap, memory will
fade
ii. If you are the witness and you are asked to identify in court you will of course point to
the OKT.

Kanan v State of Kerala

Arumugam Muthusamy v PP

The court held that Dock Id is not desirable and it si good practice to hold ID parade.

In what case there is no need for ID parade? Recognition; quality of identification very good;
person cannot come to police station.

e. ID parade

It is good practice that after arrest, do ID parade.

Jaafar Ali v PP

Evidence that ID parade was conducted and the witness indentified the A in an ID parade
relevant under s 9 and can be admitted.

Arumugam Muthusamy v PP

ID parade is not mandatory it is only good practice

PP v Sarjeet Singh

The court held that if the suspect is known to the witness, there is no need for an ID parade.

Procedure for ID parade:

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Ong Lai Kim v PP

There is no written law on how ID parade should be conducted.

Good practice guidelines (Mallal on CP)

i. Done in earliest opportunity

ii. Witness not allowed to see the A before the parade
iii. 9 10 person
iv. All persons must be around the same age / same size

Ong Poh Cheng v PP

The court held that the use of one way mirror is allowed.

PP v Joachim Selvanathan

Justice Vernon Ong:

1) All persons at the ID parade should be of the same ethnic group and same station in
life as the A. the disparity of ages between them should not be large.
2) The ID parade must be held at the earliest opportunity and all available witness should
be required to attend. If there are 2 or more suspects, there must be separate ID parade.
3) Witnesses must not be allowed to see the suspects before the parade. They must not be
given prior assistance (photos, verbal or written descriptions).
4) Suspect should be placed among a number of persons in a row not less than 9 or 10.
5) Witnesses should be brought in one by one.
6) Officer in charge must ensure the ID parade is properly and fairly conducted. He must
record every circumstance connected.

Thirumalai Kumar v PP

The court held that a breach of procedure in the ID parade will not automatically render it
fatal. The court must ask itself : how much prejudicial value it brings.

Cases which shows poor quality of ID parade:

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Jaafar Ali v PP

The A was charged with attempted murder. The defence by the A was that around 645pm the
A who was wearing a black jacket and crash helmet asked the complainant to follow him to
look for a 20 sen coin. The complainant then rode on his bike for 15 minutes until they
reached a rubber plantation. The A stopped at the side of the plantation and the complainant
alighted while the A removed his helmet. She said that she could see his face clearly although
it was a little dark. He then showed her photos of women in bikinis. At that time he was 3 feet
away from her and she said that again she saw his face clearly. She noticed that his hair was
short, he had some pimples on his face and he was thin. After about 5 to 10 minutes he began
to strangle her. At that time he was about one and a half feet away from her. She said that she
could see his face clearly also. After a month a sergeant showed her 2 persons in a room and
she identified the A. Then an ID parade was conducted and she identified him again.

Court did not convict the A because evidence based solely on the evidence given by the V.

Mages: dark, can see clearly?

Chan Sin v PP

The A is a 58 years old Chinese man. During the ID parade there was 8 persons: 1 Punjabi, 3
Malays, 2 other Chinese ( 48, 49 years old), 1 Chinese women, and the A.

The court held that there is only one elderly Chinese man in the parade and therefore the ID
parade is flawed and cannot be used.

PP v Amar Singh

Instead of carrying out the ID parade in the police station, the ID parade was carried out in the
prison. The court held that it was very prejudicial and the ID cannot be used.

The Turnbull Direction:

R v Turnbull

When to use this principle:

i. Evidence against the A is wholly / substantially based on identification

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 ii. The defence alleges that it was a mistaken identity
iii. J will have to warn himself of the need to caution before convicting on identification
evidence (mistaken witness can still be very convincing)
iv. C must ask itself if the quality of the identification if good / poor
v. If quality of identification if poor there must be supporting evidence for a conviction
to be sustained

How to determine the quality of ID is good / poor?

a. How long did the witness observe?

b. What distance? Is the witness shortsighted?
c. In what light (dark or clear)?
d. Was the observation impeded? (was there something disturbing when the parade was
going on)
e. Have he seen the person before?
f. How often? (canteen? Guardhouse?)
g. Any special reason to remember this person?
h. Time lapse between original observation and ID parade?
i. Any discrepancy between description to police and person identified?

Turnbull is part of the Msia law, incorporated by

Dato Mokhtar Hashim

Jaafar Ali C apply Turnbull = poor identification

Section 10 EA

anything said, done or written by any one of those persons, in reference to common
intentions

Section 11 EA

Alibi illustration (a)

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Section 14 EA

2 limbs:

i. Any state of mind towards any particular person

ii. Showing the existence of any state of body or bodily feeling

Note : illustrations (i), (o), (p)

State of mind is used particularly:

Lee Wee Teang Anthony v PP

The A was charged with conspiring to commit murder. the V of murder was his wife. He is
having trouble with her and they are going through a divorce. He was alleged to have said: I
hired someone to kill me wife. He mentioned this idea of hiring someone to kill his wife for a
few times: he said to his friends and he said to 2 of his new girlfriends. Can this statement of
state of mind be admitted? The court said yes.

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