Hearsay and speaking from the grave (1)

Posted on July 6, 2008

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Rocky Bru, in an earlier post, took the view that Bala’s SD is ‘based on hearsay, a lot of hearsay’.

In my view, firstly, not quite.

Secondly, it must not be assumed that hearsay is per se inadmissible for all purposes.

Let’s first try to clear up what is hearsay.

Section 60(1), Evidence Act, 1950 provides :

Oral evidence shall in all cases whatever be direct, that is to say –

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

(c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

Let’s say I brag to Rajraman that I had stolen a pair of jeans from the local mall.

Rajraman now reads that I have been charged with the theft of a pair of jeans and, as is rightly so, feels it his bounden duty to come forward and give evidence as to what he knows.

Would his evidence of what I told him be hearsay?

Well, yes and no.

It would be hearsay and inadmissible if the purpose of the evidence is to prove that I stole the jeans, because Rajraman would not be giving evidence in this regard of what he himself had seen ( see section 60 (1) (a) above ).

It would not be hearsay if the purpose was to prove what was said in the conversation with me ( see section 60 (1) (b) above ). This might amount to circumstantial evidence and, if admitted, its value, if any, would depend on the weight the court gives to such evidence.

However, that would not be the end of the matter.

Shar101 is now charged with theft of rose cuttings.

If Rajraman were to go to court to give evidence against Shar101 in relation to that offence, what Shar101said to Rajraman would be inadmissible as evidence to prove that Shar101 had stolen rose cuttings as such evidence could only be given by one who witnessed it himself or herself.

Look at Bala’s SD, which Howsy has posted HERE .

I’d agree that the following would be hearsay insofar as the truth of what is alleged in these statements go, and would, at best, be admissible to prove that this was what Bala heard in his conversations with the various parties alluded to in these statements.

Para 5 – that ARB received a harassing phone call from a Chinese man calling himself ASP Tan who had threatened him to pay his debts.

Para 7 – that Altantuya Shaaribuu had been given some powers by a Mongolian ‘bomoh’

Para 10 – that Altantuya Shaaribuu was a great liar and good in convincing people. She was supposed to have been very demanding financially

Para 13 – Suras managed to control the situation and had persuaded Altantuya and her two friends to leave the premises. However Altantuya left a note written on some Hotel Malaya note paper, in English, asking Abdul Razak Baginda to call her on her handphone (number given) and wrote down her room number as well

Para 14 – Altantuya had introduced herself to Suras as ‘Aminah’ and had informed Suras she was there to see her boyfriend Abdul Razak Baginda.

Para 15 – These 3 Mongolian girls however returned to Abdul Razak Baginda’s office at the Bangunan Getah Asli, Jalan Ampang again, the next day at about 12.00 noon. They did not enter the building but again informed Suras that they wanted to meet Aminah’s boyfriend, Abdul Razak Baginda.

Para 18 – the 3 Mongolian girls recognized Suras. They become friends with Suras after that and he ended up spending a few nights in their hotel room.

Para 37 – ARB called DSP Musa Safri

Para 39 – ARB had been advised to lodge a police report about the harassment he was receiving from these Mongolian girls.

Para 40 – Amy had sent the same SMS to ARB.

Para 41 – DPS Musa Safri had introduced ARB to one DSP Idris, the head of the Criminal division, Brickfields police station, and that Idris had referred him to ASP Tonny.

Para 48 – Bukit Aman had apparently retrieved the sms message “delay her until my man arrives”from ARB’s handphone.

Para 51 – ARB had sent Datuk Seri Najib Tun Razak an SMS the evening before.

Para 53 – ARB was arrested the same morning at his office in the Bangunan Getah Asli, Jalan Ampang

Except for what Altantuya is supposed to have disclosed to Bala and is narrated in the SD, and which I propose to deal with in another post, the rest of the SD, and in particular that which relates to Bala’s sworn statements relating to the suppression by the police of what he had disclosed whilst in remand, and the fact that the prosecution never touched on these matters during his evidence-in-chief, are all matters well within Bala’s own personal knowledge and which would come within the meaning of direct evidence as described in Section 60 above.

Posted in: Right to know