ULV 4612 LAW OF EVIDENCE I

TOPIC 4: RELEVANCY
4.0 Introduction
1. According to the Court of Appeal case of YB Dato’ Hj Husam Hj Musa v Mohd
Faisal Robhan Ahmad [2015] 1 CLJ 787, it was held by Hamid Sultan JCA that it is
trite law in the law of evidence that, there is a 3-step approach in admitting an
evidence and the first step would be to determine the RELEVANCY of the evidence.
Only if it is relevant, then it will proceed to the second stage to assess whether it
violates any rules of admissibility such as hearsay, etc.
2. This is further supported by S. 136 of the EA 1950, which states that:
S. 136:
(1) When either party proposes to give evidence of any fact, the court may ask the
party proposing to give the evidence in what manner the alleged fact, if proved,
would be relevant; and the court shall admit the evidence if it thinks that the fact, if
proved, would be relevant, and not otherwise.
3. From the case of Dato Seri Anwar Ibrahim, it was held that the court possesses
inherent jurisdiction to determine whether a particular evidence is relevant and may
reject such evidence if it is found not to be relevant.
7.0.1 Failure to object
4. Would a failure to object an irrelevant evidence by the counsel render the evidence
being admitted in court? The answer is NO. As mentioned, the court has a duty to
exclude irrelevant evidence and this can be seen in the Federal Court decision of
Alcontara Ambros [1996] 1 MLJ 209. Therefore, a failure to object to irrelevant
evidence is NOT FATAL.
5. However, if the counsel fails to object to the MODE OF PROOF (procedure in
tendering evidence), then it could be fatal as objection must be raised before an
evidence is marked as exhibit.
7.0.2 Relevant but illegally obtained evidence
6. From the landmark case of Kuruma v R [1955] 1 All ER 236, PC, it was held by Lord
Goddard that despite the evidence being illegally obtained, if it is relevant to the
matter in issue, then it is still admissible and the court is not concerned with how the
evidence is obtained.
7. Under the common law practice, it can be seen that whether or not to exclude a
particular evidence, we look at the IMPORTANCE of the evidence. Meanwhile in the
US legal system, they adopt the ‘fruit of the poison tree’ doctrine where evidence
obtained illegally are generally discarded, which is a spectrum on another extreme.
8. There is a possibility that relevant evidence can still be discarded if it is illegally
obtained in Malaysia. From the latest development in the Federal Court case of
Krishna Rao Murumurthy [2009] 2 CLJ 603, a determination is to be assessed on
whether the PROBATIVE value of the evidence OUTWEIGHS its PREJUDICIAL
effect. If it does, then it can still be admissible but if it is not, then it will not be
admissible.
9. Additionally, from another Federal Court decision of Goi Ching Ang v PP, it was
held that the court possesses inherent jurisdiction to exclude the evidence if it is
unfair. In a Court of Appeal case of Hanafi Mat Hassan [2006] 4 MLJ 134, the
accused protested that his blood sample was taken without his consent and was
therefore unfair. However, the court held that he was merely handcuffed, and
therefore, it cannot be said that there had been improper conduct on the part of the
police as they were standard procedures.
10. Also, in another recent Federal Court decision of Dato Seri Anwar Ibrahim v PP, the
accused challenged that his blood sample was taken without his consent and with
trickery. The court dismissed such challenge and held that the fact that he was only
detained was not unlawful and at any event, an illegally obtained evidence can still be
admissible. We can see from the trend of cases that in Malaysia, despite existence of
the principles to exclude illegally obtained evidence, the courts are reluctant to do so,
especially if they are relevant.

4.1 Section 6
1. S.6
Facts which, though not in issue, are so connected with a fact in issue as to form part
of the same transaction are relevant, whether they occurred at the same time and
place or at different time and places.
2. The rationale of the rule is that it admits in evidence a fact which is not in issue
because it is connected with the fact in issue that its admission helps to show the
character of the fact (Jaafar bin Hussain) while its exclusion would tend to render
evidence as to other facts intelligible (Tan Geok Kwang).
3. ‘same transaction’
Chin Choy v PP [1955] 1 MLJ 236 (CA)
In this case, the appellant was charged with 2 offences, one being in possession of
revolver while the other for possessing ammunition. The period which these offences
covered were from 1948 to 1955. The prosecution seeks to join these 2 offences
together and to be tried together.
In citing the Indian authority of Amrita Lal Hazra v Emperor, the court held what
amounts to same transaction:
a. Proximity in time;
 b. Proximity in place;
c. Continuity of action; and
d. Community of purpose and design.
The court held that as regard time and places, the charges considered range over a
period of 7 years and over a number of unspecified places. Meanwhile, as for
continuity of action and community of purpose or design, the only community of
purpose which exists is the purpose of aiding the communists. However, the court
held that there must be more than general purpose or design, for there must be
something particular and definite. Therefore, the offences do not form part of the
same transaction and were therefore wrongly joined.
4. This principles has been supported in another more recent Federal Court decision in
Thavanathan Balasbramaniam v PP [1997] 3 CLJ, where the term ‘transaction’ was
explained as:
‘...In each case, the Judge has to decide according to the circumstances, drawing the
line between the facts which are so connected with the fact in issue as to be part of the
same transaction and facts which are beyond that limit. No precise limits can be
prescribed. In some cases the transaction lies within narrow limits of time; in other
cases they may be spread over a long period. In some cases, two facts occurring at the
same time and place may have no connection between them; but in other cases two
facts separated by a vast distance of time and place may be parts of the same
transaction. As stated earlier, it all depends on the circumstances of each case.
Where the transaction consists of different acts, in order that the chain of such acts
may constitute the same transaction, they must be connected by such factors as the
proximity of time, proximity or unity of place, continuity of action, and community
of purpose or design. ’
5. It is to be noted that the factors laid down are to used disjunctively, NOT
CONJUCTIVELY. What this means is that so long as the facts fulfill either ONE of
the 4 connecting factors, then it can be relevant under S.6 as part of the res gestae.
6. Cases in support:
Tan Geok Kwang v PP [1949] 1 MLJ 203
In this case the appellant was charged with being possession of a revolver. When the
police was trying to arrest him, he ran and was shot by the police. Thereafter, he
jumped into a blukar. While the police were surrounding the blukar, one hand grenade
was thrown out from the bukar. At the trial, evidence that the hand grenade was
thrown from a blukar was tendered in as evidence.
The court held that the evidence is admissible under S. 6 as part of the res gestae,
because the group of facts forming this transaction was so connected that the
exclusion of evidence relating to the hand-grenade would tend to render evidence as
to other facts unintelligible.
7. Jaafar bin Hussain v PP [1950] 1 MLJ 154
The appellant was charged with 2 offences, the first of carrying a shot gun while the
other for carrying a hand-grenade, both at the same time and place. The trial judge
directed that the trial should proceed with the second charge only. Hence, during the
second charge trial, evidence was tendered that the appellant was carrying a shot gun.
On appeal, it was contended by the appellant that the evidence should not have been
admitted because the appellant was charged only for carrying hand-grenade.
The court disagreed with the appellant and held that where as in this case, one of the
charges is stayed and the other is proceeded with, the evidence touching the stayed
charge CAN still be admissible, as the facts are so connected with the facts on which
the other charge is born as to form part of the same transaction.
8. Kok Ho Leng v PP [1941] 1 MLJ 143
There was a raid on the premises of the appellant pursuant to the Betting Enactment.
The judge had held that based on the conduct of the persons on the premises and the
appellant himself and what was found from the premises, the prosecution had
successfully established the case. One of the point of interests then in this case is
whether a telephone message to the premises DURING the raid was admissible in
evidence.
The court held that it is admissible under S. 6 and thinks that the telephone message is
analogous to the shouting of bystander. Thus, in fulfills the res gestae requirement
and is therefore relevant. For reference, Illustration A of S.6 is as follows:
A is accused of the murder of B by beating him. Whatever was said or done by A or B
or the bystanders at the beating or so shortly before or after it as to form part of the
transaction is a relevant fact.
9. Hamsa Kunju v R [1963] 1 MLJ 228
The appellant was convicted for causing hurt and grievous hurt to 3 complainants at
9:45pm. One of the evidence that the prosecution seeks to tender is the incident
occurred in the morning before the grievous hurt took place later. The incident
occurred between the appellant and another worker where appellant was found hitting
the worker. The other man, one of the complainants later, intervened and stopped the
appellant.
The judge held that the whole of the evidence was part of the res gestae and was
material and relevant. The complainant’s earlier intervention in the incident and his
threat to report the matter to the Union supplied a motive for the attack on him by the
appellant a few hours later.
10. Sam Hong Choy [1996] 1 CLJ 514
The accused was alleged for involving in an armed robbery. The prosecution’s key
witness, PW9 gave evidence that having heard the sound of gun-fire and someone
 shouting “Tolong! Kejar perompak!” he saw 2 men running past him and PW later
gave chase. The accused contended that the words amounted to hearsay and was
therefore inadmissible.
The court disagreed and held that in the circumstances, the prosecution’s intention in
introducing was not to establish the truth of those statements but that they were in
fact, made. In any event, those words were in the nature of an exclaimation and was
therefore a relevant fact under S. 6 of EA.
Again, Illustration (a) to S.6 of EA perfectly fits into this case as well.
11. Aziz Muhamad Din v PP [1997] 1 CLJ Supp 523
The accused was found guilty of statutory rape and this was his appeal against the
said conviction. The victim of the alleged rape stated that the accused had sexual
intercourse with her on 31/1/1995. On 3/2/1995, after REPEATED QUESTIONING
from her father, the victim said that she had stayed over at a friend’s place. The father
immediately lodged a police report to this effect. One of the contentions in this case
was whether the statement made by the victim to her father amounted to a relevant
evidence.
Augustine Paul J held that a complaint made by rape victim is relevant under S. 8
Illustration J of the EA:
“The question is whether A was ravished. The facts that shortly after the alleged rape
she made a complaint relating to the crime, the circumstances under which and the
terms in which the complaint was made are relevant. The fact that without making a
complaint she said that she had been ravished is not relevant as conduct under this
section, though it may be relevant...”
The judge held that not only it is relevant under S.8, it is also part of the res gestae
under S. 6 of EA, and therefore, it is relevant. However, the judge remarked that since
the statement made by the victim in this case did not amount to a complaint, but was
only a statement made after being coerced by threatened by her father. Furthermore,
the statement that “...saya ada bermalam di rumah Suhaimi” does not relate to the
crime for which the accused has been charged and, in any event, was not made
voluntarily and spontaneously. The burden is on prosecution to establish that the
statement amounts to a complaint within meaning of S. 8.

4.2 Section 7
1. S. 7:
Facts which are the occasion, cause or effect, immediate or otherwise, of relevant
facts or facts in issue, or which constitute the state of things under which they
happened or which afforded an opportunity of their occurrence or transaction, are
relevant.
2. ‘occasion, cause or effect’
 Dr. Jainand v R (1949) AIR All 291
The fact in issue was whether Jainand had committed the murder of Karan Singh. The
fact that Jainand had taken money and ornaments from Karan Singh and had on the
day of murder gone to Jainand to demand the money and ornaments back are relevant
facts showing occasion, cause and effect of the fact in issue.
3. Sidik Kumar v Emperor (1942) Sind AIR 11
Evidence that there were footprints at or near a scene of offence or that these
footprints came from a particular place or led to a particular place, is relevant
evidence under S. 7, and there is no reason why statements made by persons skilled in
identifying footprints, should be excluded.
4. PP v Toh Kee Huat [1965] 1 MLJ 76
Respondent was acquitted at the close of prosecution case on a charge of theft of a
motor-car. However, his finger-prints were found on the inner surface of the glass
pane and on appeal, the court held that the weight of evidence of finger-print can
never be decried. In this case, it establishes a clear cut prima facie case and if it
remains unrebuted, would warrant a conviction.
5. Saw Thean Teik v R [1995] 1 MLJ 124
Appellant was charged for dangerous driving. Evidence showing he was intoxicated
was tendered and the court held that it is admissible under S. 7 of the Evidence
Ordinance. It may well be that it was due to the intoxicants (cause), that had led the
appellant into dangerous driving.
6. ‘facts constituting the state of things’
Illustration (a) to S. 7
The question is whether A robbed B. The facts that shortly before the robbery B went
to a fair with money in his possession and that he showed or mentioned the fact that
he had it to third persons are relevant.
7. ‘facts affording opportunity or their occurrence or transaction’
Aziz Muhamad Din v PP [1997] 1 CLJ Supp 523
Facts refer above.
The High Court held that from the evidence adduced, it is clear that both the victim
and accused had spent a night together. From here, it has constituted evidence of
opportunity for the accused to commit rape upon the victim.
(However, Augustine Paul J held that mere opportunity must have been supplemented
by proof of circumstances of such a nature as to lead to the inference that it was
probable that advantage would have taken of the opportunity. In this case, the
prosecution has failed to establish this.)
8. Pathmanabhan Nalliannen v PP & Other Appeals [2017] 4 CLJ 137
The Federal Court held that there was opportunity for the accused persons to commit
the murder because the farm, being the scene of the crime, is the property of the first
accused. Before going to the farm, one the deceased persons, Sosilawati, had given
notice to the first accused of her intention of meeting up with him, which necessitated
going to the farm. When Sosilawati & Co. went into the farm, an opportunity was
afforded to the 3 accused persons to successfully carry out the murders.

4.3 Section 8
1. S. 8:
(1) Any fact is relevant which shows or constitutes a motive or preparation for any
fact in issue or relevant fact.
(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in
reference to that suit or proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence against whom is the subject
of any proceeding, is relevant if the conduct influences or is influenced by any fact in
issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1 - The word “conduct” in this section does not include statements unless
those statements accompany and explain acts other than statements; but this
explanation is not to affect the relevancy of statements under any other section of this
Act.
Explanation 2 - When the conduct of any person is relevant any statement made to
him or in his presence and hearing which affects his conduct is relevant.
4.3.1 ‘motive’
2. Edgar Joseph Jr. SCJ held, in the case of Lower Perak Co-operative Housing Society
Bhd. v Pengarah Hasil Dalam Negeri [1994] 2 MLJ 73, that there is a fundamental
difference between intention and motive; intention means seeking to do something
and is connected to the purpose or object whereas motive is concerned with the reason
for doing something.
3. Where there is clear proof of motive for the crime, that lends additional support to the
finding of the court that the accused was guilty but the absence of clear proof of
motive does not necessarily leads to the inference that the accused was innocent
(Atley v State of UP). Mere motive also would not warrant conviction (PP v Ku Hang
Chua).
4. Illustration (a):
A is tried for the murder of B. The facts that A murdered C, that B knew that A had
murdered C and that B had tried to extort money from A by threatening to make his
knowledge public are relevant.
4A. The one case that is appropriate to support motive based on Illustration A is the
Federal Court decision of Wong Foh Hin v PP [1964] 1 MLJ 149. In this case, the
appellant was convicted for murder of his daughter. On appeal, the sole question was
whether the evidence of the fact that months before, the wife had complained to the
village headman that the appellant had “interfered” with the daughter, was admissible.
Federal Court held that the evidence was admissible under S. 8 for it is clearly the
strongest possible evidence of motive. This is because the village headman had
warned the appellant should he interfered with the daughter again, then police
investigation would be ensued against him. Therefore, in view of circumstantial
evidence, this piece of evidence is relevant in the sense during the night of the murder
itself, appellant interfered with the daughter again. Had she been alive, there is a
strong possibility that she would be the main witness for the charge of rape against
her own father and thus, the court held that it supplied motive for appellant to murder
her.
4B. Boota Singh v PP [1933] 2 MLJ 195b
Police report was made by the deceased against the accused 9 months before the
murder. The court held that the police report could be admissible under S. 8 to
establish motive on the part of the accused as it indicates that the deceased was on bad
terms with the accused.
4C. Illustration (b):
A sues B upon a bond for the payment of money. B denies the making of the bond.
The fact that at the time when the bond was alleged to be made B required money for
a particular purpose is relevant.
5. The one case appropriate to this Illustration is the case of Lim Kong v PP [1962] MLJ
195. In this case, the appellant was convicted of kidnapping one Teng Wan Fook. One
of the evidence sought to be admitted was the fact that he was in financial difficulty.
Learned counsel for the accused Mr. David Saul Marshall contended that the piece of
evidence is prejudicial towards his client as it was evidence of bad character and was
therefore not admissible under S. 54. However, the learned judge held that the
evidence of financial difficulty supported equally to the case for the defence as well as
evidence of motive for the prosecution. Where a crime is financial, evidence that the
accused was being pressed to find money to satisfy his debts is relevant as tending to
show possible motive.
6. Cases involving money as motive includes famous cases such as Sunny Ang (killing
girlfriend to claim for insurance) and PP v Juraimi Husin (killed Dato’ and robbed
his money and later on went on a shopping spree).
4.3.2 ‘preparation’
7. Illustration (c):
 A is tried for the murder of B by poison. The fact that before the death of B, A
procured poison similar to that which was administered to B is relevant.
Illustration (d):
The question is whether a certain document is the will of A. The facts that not long
before the date of the alleged will A made inquiry into matters to which the
provisions of the alleged will relate, that he consulted lawyers in reference to making
the will, and that he caused drafts of other wills to be prepared of which he did not
approve are relevant.
8. Cases showing ‘preparation’ include:
PP v Juraimi Husin
After decapitated the deceased, the accused persons buried the remains of the body in
a hole in the ground that he had earlier dug and prepared.
Pathmanabhan Nalliennen v PP
There was preparation prior to the murder. Logs were brought into the farm with the
intention of lighting them up later. This preparatory act falls squarely within S. 8 of
the EA, as held by the Federal Court.
4.3.3 ‘conduct’
9. Explanation 1 & 2 to S. 8 are relevant. The same goes to Illustrations (e), (f), (h), (i),
(j) and (k).
The one case supporting Illustration (e) is the case of Chandrasekaran v PP where
the accused a public servant, was charged for corruption as against the government.
After getting the money, he paid up all his debts and bought diamond rings for his
wife. Furthermore, he went on and told others that in fact, he got rich because of
winning lottery.
The court held that the fact that he kept making unnecessary explanation to others so
as to render things favourable to himself is a relevant fact, particularly to show
subsequent conduct after committing a crime.
10. Furthermore, in the case of Pathmanabhan Nalliennen, the fact that the accused
persons tried to dispose of and to conceal the personal items of the deceased persons
is relevant fact to show subsequent conduct after killing the deceased. It supports
Illustrations (e) and (i).

4.4 Section 9
1. S. 9:
Facts necessary to explain or introduce a fact in issue or relevant fact, or which
support or rebut an inference suggested by a fact in issue or relevant fact, or which
establish the identity of any thing or person whose identity is relevant, or fix time or
 place at which any fact in issue or relevant fact happened or which show the relation
of parties by whom any such fact was transacted, are relevant so far as they are
necessary for that purpose.
2. In essence, there are 5 classes of relevant facts under S. 9:
4.4.1 ‘explain or introduce a fact’
3. Illustration (a):
The question is whether a given document is the will of A. The state of A’s property
and of his family at the date of the alleged will may be relevant facts.
Illustration (d):
A sues B for inducing C to break a contract of service made by him with A. C on
leaving A’s service says to A: “I am leaving you because B has made me a better
offer.” This statement is a relevant fact as explanatory of C’s conduct, which is
relevant as a fact in issue.
Illustration (e):
A accused of theft is seen to give the stolen property to B, who is seen to give it to A’s
wife. B says as he delivers it: “A says you are to hide this.” B’s statement is relevant
as explanatory of a fact which is part of the transaction.
4. 4.4.2 ‘support or rebut an inference’
Illustration (c):
A is accused of a crime. The fact that soon after the commission of the crime A
absconded from his house is relevant under section 8 as conduct subsequent to and
affected by facts in issue.
The fact that at the time when he left home he had sudden and urgent business at the
place to which he went is relevant as tending to explain the fact that he left home
suddenly. The details of the business on which he left are not relevant, except in so far
as they are necessary to show that the business was sudden and urgent.
5. Choo Chang Teik v PP [1991] 3 MLJ 423
Police raided a house. On seeing the police the first appellant ran away but he was
arrested eventually. The second appellant jumped out of window and he was also
arrested. The act of running was admissible as they supported the inference of the
police officers that the appellant knew that they were guilty of possessing heroin.
(However, as it turns out, the 2 appellants had nothing to do with the drugs found
within the premise as they were only cleaners and they ran simply because they were
afraid of the police!)
4.4.3 ‘establishing identity’
6. There can be numerous methods of establishing identity of a person.
a. ‘fingerprint’
Refer to the case of Toh Kee Kuat as above.
7. b. ‘voice’
Teng Kum Seng v PP [1960] MLJ 225
Each of the 3 victims was given opportunity to listen to a number of persons,
including the appellant, all strangers to them, speaking on the telephone and all 3 of
them had identified the voice of the appellant as the voice which had spoken to them
on the phone.
Court held that such evidence was entitled to be admissible.
8. c. ‘photo’
Lai Ah Kam v R [1939] 1 MLJ 306
When a crime has been committed there is no objection to a witness being shown by
police a number of photographs and being asked if he could recognise one as that of a
wanted man. When the examination of a number of photographs is made to assist the
police to effect an arrest there is no objection to it provided that there has been no
prompting and that nothing has been done by the police to suggest that a particular
photograph may be that of a wanted man.
It is otherwise when a photograph has been shown to a witness after arrest; and if that
has been done it may be a ground for quashing a conviction.

Girdari Lall v PP
The appellants were convicted for robbery. At the trial, a police photograph of one of
the accused (“mugshot”) was put in evidence. It bore a police number and was a
combined profile and full face photograph.
It was held that the production of such photograph would be apt to prejudice a jury
and to embarrass a judge. It was obviously a police record and putting it in evidence
was tantamount to saying that the man was of bad character.
PP v Kok Heng [1948] 1 MLJ 171
There were 10 photographs presented for inspection. The witness was asked to
identify 3 men. Of the photographs, there was a group of 3 that could be separated
from the rest in that they bore the word ‘Segamat’ and had consecutive numbers.
There was no other group of three among the ten.
 On the facts of the case, the method of identification was flawed as it is prejudicial
and tends to give a forgone conclusion to the witness.
R v Cook (Photofit)
Photofit (photo of crime) is admissible. It is a visible representation of the image or
impression made upon the minds of the witnesses by the sight of the person or the
object it represents; and therefore is, in reality, only another species of the evidence
which persons give of identity, when they speak merely from memory.
9. d. ‘visual identification’
There is a distinction between recognition and identification. Recognition is more
reliable than mere identification. Recognition of person known to the witness would
be more reliable than identification by a witness of a stranger (Dato Mokhtar
Hashim, per Hashim Yeop Sani FCJ).
10. Generally, case laws have established that evidence given by a witness identifying an
accused as the person whom he saw at the scene of the crime or in circumstances
connected with the crime will generally be of little value if the witness has not seen
the accused since the incident in question and is asked to identify him for the first
time in the dock (Jaafar bin Ali v PP).
11. The above position of little significance of ‘dock identification’ was approved by
other cases such as Kanan v State of Kerala & Arumugam v PP, where they held that
it is good practice to hold identification parade first which would then strengthen the
prosecution’s case (it does not mean that ID parade is mandatory).
12. The one case demonstrating the flaws in dock identification is the case of PP v
Richard Devadason, where a witness had on an earlier circumstance, failed to
identify the respondent during an ID parade held just weeks after the incident. The
witness had also admitted to the fact that she could not identify the respondent.
However, during trial, which was about 1 and a half year after the incident, the
witness suddenly recalled her memory and identified the respondent as the
perpetrator. More stupid, she said that she can identify him was solely because he was
handcuffed at the dock.
Without a doubt, the judge found that the manner of identification was totally
unsatisfactory.
13. e. ‘ID Parade’
As mentioned earlier, ID parade is merely a good practice, the practice of which is not
mandatory under the law. However, identification at ID parade may strengthen the
prosecution’s case.
14. There is no written law on constructing how a ID parade should be done. However,
Justice Vernon Ong held in the case of PP v Joachim Selvanathan, the following
steps are to be taken:
 a. All persons at the ID parade should be of the same ethnic group and same station in
life as the suspect. The disparity of ages between them should not be large. Persons in
the line-up need not be of exactly the same description;
b. The ID parade must be held at the earliest opportunity and all available witnesses
should be required to attend at the very first parade. Separate ID parades must be held
when there are 2 or more suspects;
c. The witnesses must not be allowed to see the suspect until the moment when
everything is ready and they walk in to identify him. Witnesses must not be given
prior assistance via photographs or verbal or written description;
d. The suspect should be placed among a number of persons in row - not less than
nine of ten. The suspect should be invited to stand where he pleases in the row. He
may change his position after each witness has been called in. he should be asked if
he has any objection to any of the persons present or to the mode of arrangement;
e. The witnesses should be brought in one by one. Each witness who has completed
the ID parade process should be kept apart from the other witnesses who are yet to
come in;
f. The officer in charge must ensure that the ID parade is properly and fairly
conducted. He must record every circumstances connected with the identification, the
names of the witnesses and their decisions as fully and fairly and carefully.
15. It does not mean however that a slight breach of procedural rules in ID parade would
automatically render the result inadmissible. It depends on the extent of prejudice or
unfairness caused by such irregularities. When there is evidence of bad faith or a
‘deliberate flouting’ of procedural requirements, instead of mere inefficiency, then the
parade may not be upheld (per Yong Pung How CJ in Thirumali Kumar v PP).
16. The following are 3 cases showing ID parade being badly done:
Jaafar bin Ali v PP
On 5/5/1997, the victim aged 11, at about 6.45pm, went to a shop to look for her
sister. She then saw a male person (the accused) seated on a motorcycle, the accused
was wearing black jacket and a crash helmet. The accused then asked her to follow
him to look for 20 cents. She seated behind the motorcycle and went to a rubber
plantation.
The accused stopped and removed his crash helmet. Victim says she could see his
face clearly though it was already dark. She noticed that he was short, had some
pimples on his face and was thin. During that time, the accused was showing pictures
of bikini women to the victim. After about 5 to 10 minutes, accused started strangle
her neck and she said she could see his face clearly also. She then became
unconscious.
 She was hospitalised for 25 days. Afterwards, she went to a police station where she
was shown to 2 persons in the room. She identified one of the persons as the accused
who had strangled her. Then, she attended an ID parade, there were about 10 persons
in the parade and again, she identified the accused. She had not seen the accused prior
to the incident and after the parade, she was shown photographs of the accused and
later in court, she identified the accused in dock.
On appeal to the High Court, Augustine Paul J held that in assessing identification
evidence, the Turnbull guidelines should be adopted (I will explain in detail later on
the Turnbull guidelines). The Turnbull guidelines state that whenever the conviction
of accused depends solely on the identification of witness, then the judge MUST be
mindful of credibility of the evidence as a mistaken witness can be a convincing one
and that a witness may be quite honest and still be mistaken. Then, if the judge opines
that the identification evidence lacks in credibility, additional corroborative evidence
in support are then needed to convict the accused.
In this case, to the mind of Augustine Paul J, he opined that the identification was not
done properly. Victim herself had admitted that she had only seen the accused for
about 5 to 10 minutes, after the accused removed his helmet at the plantation. To say
that she had the accused “under observation” at all time is a misappreciation of facts.
Furthermore, there were bruises around her eyes showing that victim could not have
observed the accused well at that time. Adding to that is the fact that the day was
getting darker during the incident. Moreover, at the police station, the victim was
given choice to pick 1 of the men as the accused, and with that in mind, she proceeded
with the ID parade. Therefore, the identification lacks credibility as a forgone
conclusion may have been implanted on the victim’s mind and additional support are
needed. Prosecution failed to do so. Conviction was quashed.
Chan Sin v PP [1949] 1 MLJ 106
The accused was a 58-year-old Chinese man and the ID parade consisted of a Sikh, 3
Malays, 2 other middle-aged Chinese man and 1 Chinese woman. The fact that there
were only 1 elderly man there had rendered the ID parade worthless.
PP v Amar Singh
The accused was already in prison and witness was brought to identify him in prison.
A forgone conclusion may have been imposed upon the minds of the witness.
Therefore, the identification lacks probative value.
17. As mentioned earlier, the Turnbull guidelines. The High Court case of Jaafar Ali
earlier had explained on the Turnbull directions well and below are some of the
extracts of the principle:
(a) The need for the judge to warn himself of the dangers of identification evidence
Whenever the case against an accused depends wholly or substantially on the
correctness of identification of the accused, the judge should warn the jury / himself,
 of the special need for caution before convicting the accused. He should be mindful
that a mistaken witness can be a convincing one and that a number of such witnesses
can all be mistaken.
(b) Examining the strength or cogency of the identification evidence
Secondly, the judge should examine closely the circumstances in which the
identification by each witness came to be made. How long did the witness have the
accused under observation? At what distance? In what light? Was the observation
impeded in any way, as for example by passing traffic or a press of people? Had the
witness ever seen the accused before? How often? If only occasionally, had he any
special reason for remembering the accused? How long elapsed between the original
observation and the subsequent identification to the police? Was there any material
discrepancy between the description of the accused given to the police by the witness
when first seen by them and his actual appearance?
(c) Question of when the judge may convict accused in the absence of supporting
evidence
When the quality [of identification] is good, as for example when the identification is
made after a long period of observation, or in satisfactory conditions by a relative, a
neighbour, a close friend, a workmate and the like, the jury can safely be left to assess
the value of the identifying evidence, even though there is no other evidence to
support it: provided always, however, that an adequate warning has been given about
the special need for caution. Were the courts to adjudge otherwise, affronts to justice
would frequently occur ...
When in the judgment of the trial judge, the quality of the identifying evidence is
poor, as for example when it depends solely on a fleeting glance or on a longer
observation made in difficult conditions, the situation is very different. The judge
should then withdraw the case from the jury and direct an acquittal unless there is
other evidence which goes to support the correctness of the identification.
18. Not only ID parade, the Turnbull guidelines are applicable when identification
evidence is concerned.

4.5 Sections 10, 11 & 14

1. S. 10:
Where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or written
by any one of those persons, in reference to their common intention after the time
when the intention was first entertained by any one of them, is a relevant fact as
against each of the persons believed to be so conspiring, as well for the purpose of
proving the existence of the conspiracy as for the purpose of showing that any such
person was a party to it.
2. Liew Kaling v PP
Things said, done or written while the conspiracy was ongoing is relevant as evidence
of common intention. However, once the conspiracy has consummated, in the sense
that it had ended, then the statements made after commission of the crime were not
admissible for the purpose of proving conspiracy.
3. S. 11:
Facts not otherwise relevant are relevant -
(a) if they are inconsistent with any fact in issue or relevant fact;
(b) if by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.
Illustration (a):

The question is whether A committed a crime at Kuala Lumpur on a certain day.

The fact that on that day A was at Taiping is relevant. The fact that near the time
when the crime was committed A was at a distance from the place where it was
committed, which would render it highly improbable, though not impossible, that he
committed it is relevant.
4. S. 14:
Facts showing the existence of any state of mind, such as intention, knowledge, good
faith, negligence, rashness, ill-will or goodwill towards any particular person, or
showing the existence of any state of body or bodily feeling, are relevant when the
existence of any such state of mind or bodily feeling is in issue or relevant.
Explanation 1—A fact relevant as showing the existence of a relevant state of mind
must show that the state of mind exists not generally but in reference to the
particular matter in question.
Illustration (p) A is tried for a crime.
The fact that he said something indicating an intention to commit that particular crime
is relevant. The fact that he said something indicating a general disposition to commit
crimes of that class is irrelevant.
5. A case demonstrating Illustration P is the Singaporean case of Ler Wee Teang
Anthony v PP [2002] 2 SLR 281. Accused was charged for murder of his wife. The
fact that the accused had, on numerous occasions, uttered his motive of killing his
wife to other people, showed that clearly, he was obsessed with the idea of having is
wife killed. All these utterances demonstrated his ill-will towards the his wife and
were therefore relevant to the charge against him.