UNIVERSITI TEKNOLOGI MARA

SECOND ASSESSMENT LAW529/541

NAME : SERENA JAMES BERNARD

GROUP : LWB06R1

TUTOR : PN. HABIBAH OMAR

Answer sheets:

____________________________________________________
The fact in issue is whether Kemal and Gafur can be found guilty for the murder of Tuat, a
Myanmar under section 302 of the Penal Code.

The first issue is whether the evidence given by Mimie is relevant and admissible or not.

On the facts, Mimie said that a group of man aggressively came out from the pub. Mimie
saw them fighting while descending the stairways. She saw Kemal was looking at someone
behind him and threw punches at him. She also saw Gafur held the man from behind while
Kemal repeatedly punches his face and stomach. Mimie also said that the fight continued for
a minute or two when she finally heard the sounds of fall. She also said that Kemal
repeatedly kicking Tuat but was stopped by Gafur. Before the Kemal and Gafur left, she
heard a man shouted “Fur, look what you made me do”.

Section 60 of Evidence Act 1950 provides that oral evidence must be direct. For an oral
statement to be relevant and admissible, it must be either seen, heard, perceived by the
witness, otherwise it will be a hearsay. The general rule is that hearsay evidence is
inadmissible. Section 59 of the Evidence Act 1950 stated that all facts may be proved by
an oral evidence except the content of documents. But nevertheless, there is an exception to
the hearsay rule which is the doctrine of res gestae. The doctrine of res gestae becomes an
exception to the rule of hearsay in that it allows the admission of hearsay evidence provided

1
that, it was made naturally, spontaneously, contemporaneously, without any opportunity for
deliberation or thought to eliminate any possibility of fabrication from being made.

Section 6 of the Evidence Act 1950 provides that facts which is not in issue but related to
the fact in issue as to form part of the same transaction are relevant. The statements made
under this doctrine are natural, spontaneous, and without deliberation during the course of
an event. Hence, when someone else heard the statement, it will be less misunderstanding
or misinterpretation. The doctrine of res gestae may be applicable when a situation of fact is
in consideration. The question that may arise may relate to when the situation begins and
ends. Illustration a to Section 6 illustrate the murder of B by A beating him. In this
illustration, whatever was said or done by A or B or by the bystanders at the beating or so
shortly before or after it as to form part of the transaction is a relevant fact.

Direct circumstantial evidence given by a witness who perceived the events with his own
senses can be taken under the res gestae principle to comprehend the situations. The
evidence referred to can either be events happening before or after the fact in issue occurs.
In the case of O Leary v The King, evidence which forms a continuous transaction can be
accepted as part of res gestae that is to fully understand the circumstances of the fact. It is
necessary to look at the event, and not in isolation in order to understand the full impact of
the facts. Any subsidiary events must be related to the principal event and not merely a
narrative of the past events irregardless of whether it occur before or after the fact in issue.

Direct evidence also may be given by a witness who perceived it with his own senses that
the statement was in fact made. The statement, however, must not be used to establish the
truth of what was said but to establish the state of mind of the maker of the statement. The
maker of the statement must have uttered the statement as to reflect of what really occurred.
In the case of R v Christie, the meaning of “contemporaneous” under this approach is
defined as at the time the facts in issue occurred. For a hearsay evidence to be admitted,
there can be no lapse of time. The timing upon which the statement is made is of great
importance.

In Teper v R illustrate a statement was made by a third-party (bystander). The accused was
charged for setting fire to his own shop with the intention of claiming against the insurance
companies. A police constable who heard a woman’s voice shouting “your place is burning
and you’re going away from the fire” saw a car moving away but failed to see who or where
the woman was, nor could he see the fire when he heard the shout. It was held that the
evidence was inadmissible as it needed to be so connected to form part of res gestae like
the commission of the crime itself. If not fully contemporaneous with the event, it must at

2
least clearly associate with it, in time, place and circumstance that they are part of the thing
being done.

In applying to the present case, Mimie has witnessed the murder. She saw Gafur held Tuat
so that Kemal can repeatedly punches Tuat on his face and stomach. Here, it is clear that
Mimie herself has perceived the incidents with her own eyes and she is able to comprehend
the situations that was happening. She saw the incident from the moment the three of them
went out from the pub entrance until Tuat fell and was again kicked repeatedly by Kemal.
Mimie is able to give evidence which then forms a continuous transaction. All the evidence
that Mimie gave proved that all the events are related to the principal of the event. Therefore,
since it is not just merely a narrative of the past, it may be accepted by virtue of section 6.
Mimie has also provided an evidence in which she perceived a statement made by Kemal
with her own ears. When she heard a man shouted “Fur, look what you made me do”, that
statement is to establish the state of mind of the maker of the statement. When we look at
the statement, by virtue of the case Teper v R, Mimie saw and heard the whole thing during
the incident.

In conclusion, the evidence that Mimie gave is relevant and admissible.

3
The second issue is whether the evidence by Inspector Amid is relevant and admissible.

On the facts, Inspector Amid apprehend Kemal and Gafur for acting suspiciously at 4:00 am
in the morning, 3km away from the crime scene. He saw the blood stains on Kemal’s hand
and shirt.

Section 8 (2) of Evidence Act 1950 provides that 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 stated that the word “conduct” in this section does not include statements
unless those statements accompany and explain acts other than statements.

Subsequent conduct refers to the action of either an accused person, victim or a third party
after the crime is committed. The nexus between the conduct and the facts in issue must be
established so that the action connected to the facts in issue. In the case of Mahadzir bin
Yusof & Anor v PP, the actions of the accused by going back to the scene of the crime to
confirm that the victim had died and subsequently lay low to avoid the law reflected that the
subsequent conducts are relevant under section 8. Also, in the case of Pathmanathan a/l
Nalliannen & Ors v PP, the conduct of the first accused by keeping silent in fact brought an
intense suspicion towards him hence, showing that he was guilty. In this case, the court found
that it was strange for a lawyer not to take reasonable steps to clear his name upon severe
allegation that he committed the high profile murder of Sosilawati and others especially when
most of his workers were arrested by the police in connection to the murder. In addition,
subsequent guilty conduct was also reflected when all the accused met and discuss the way to
avoid themselves from being incriminated in the crime.

A statement forms part of a conduct when it accompanies or explains the actions of a person.
For a person’s statement to be regarded as conduct under section 8(2), it must be accepted as
a complaint. The evidence of conduct if it is tendered must have reference to the facts in
issue. If there is no evidence to show that the conduct is influenced by any fact in issue or
relevant fact as required by section 8 then it is not admissible. The action becomes equivocal
where the accused can invoke Section 9 to draw some favourable inference against him.

4
Section 9 of the Evidence Act 1950 also provides for facts which support or rebut an
inference suggested by facts in issue and relevant facts is also relevant. This allows for the
admission of circumstantial evidence which is not part of the transaction. Unless the accused
person can rebut the inference made by the court of his guilty condut. In the case of Parlan
bin Dadeh v PP, the accused was charged for possession of drugs. He was approached by
police and was stunned and shocked. The court explain that once the court considers that the
fact the accused looked shock, the accused has the honour to rebut the inference made by the
court. in this case, the stunned and shocked look of the accused person relates to the facts in
issue since the drugs were found tucked away in front of the jeans worn by him. The failure
of the accused in giving credible explanation caused inference of his guilty conduct under
Section 8 remains unrebutted.

In contrast from the case of Abdullah Zawawi bin Yusoff v PP, the prosecution argued that
the conduct of the accused in running away when the drugs was discovered was consistent
with him having knowledge of the presence of the drugs which indicates guilt. On appeal, the
Supreme Court accepted this inference to be rebutted by the fact that the accused only
attempted to run away after the police announced the discovery of the drugs. This was
regarded as a natural response of an innocent man faced with the prospect of arrest on capital
charge. This was strengthened by the fact that the accused had been cooperative with the
police in allowing them to enter the house and search for things in his presence. The
existence of the drugs may come as a surprise to the accused and the possibility that it was
planted by someone creates doubts in this case especially when the court considered the
evidence of possible access to the house by others.

In applying to the present case, Kemal and Gafur was acting in a suspicious manner
especially at 4:00 am in the morning. The subsequent conduct the accused persons by fleeing
the crime scene looking worried gives an assumption that they have done to something
terrible. And in the present case, they fled the crime scene suspiciously because they have
abuse Tuat. The evidence of conduct that is given by Inspector Amid have reference to the
facts in issue that is Kemal and Gafur murdered Tuat. This was strengthened by the evidence
given by Inspector Amid that he saw Kemal’s hand and shirt was stained with blood. By
virtue of section 9 supports the fact in issue which Kemal may have kill a person. When
Inspector Amid saw Kemal and Gafur acting suspicious at dawn looking horrible it may be
assumed that they had a drinking session. In a drinking session, fights may occur and the fact
that a blood stains on Kemal’s hand and shirt was seen, it is supporting that very assumption.
5
In conclusion, the evidence by Inspector Amid is relevant and admissible under section 8(2)
and section 9 to further supports the evidence given under the first section.

6
The third issue is whether the identification parade is relevant and admissible.

On the facts given, Mimie saw and exclaimed that Gafur and Kemal as the person who
murdered Tuat as soon as they were brought in by Inspector Amid. When identification
parade was done 5 hours later, Mimie was called in to identify the murdered to which she
positively identified Kemal and Gafur as the murderers.

Section 9 of the Evidence Act 1950 stated that facts necessary which establish the identity of
any person or things seized are relevant. The identity of persons in the context of section 9 is
the person who are relevant to the facts in issue or relevant facts. In the context of
identification of a person, identification evidence is an assertion by a witness to the effect that
a suspect was or resembles (visually, aurally or otherwise) a person who was present at or
near a place where a crime was committed. The person identified here can either be the
victim, the accused person or third party that is related to facts in issue. A person can be
identified through eye-witness visual identification. An identification parade is the most
reliable mechanism available for the identification of the accused. The parade is held to the
test the reliability of the witness on the question of his capability to identify, from among
several persons made to stand in a queue, the unknown person whom the witness had seen at
the time of the crime.

There are a few procedural safeguards in conducting an identification parade for it to be

valid. First, the accused must be identified by the witness in a parade of not less than 10
people. Second, the parade must be held at the earliest opportunity. Third, an investigating
officer should not take part in conducting the parade. Fourth, the parade must consist of
participants of similar age, statute and appearance as the accused. Fifth, each witness should
be called in one by one and should be prohibited from communicating with the other
witnesses if it involves more than one witness. Sixth, the witness must not be allowed to see
the accused person in the cell or wearing handcuffs as this will cause the witness to judge him
prematurely. In the case of Jaafar Ali v PP, prior to the identification parade, the witness had
the opportunity of seeing the accused before the parade and such evidence obtained from the
identification parade has no weight or is of no value. Seventh, the photographs of the suspect
should never be shown to the witness. Eighth, the presence of the suspect’s solicitor or friend
should be allowed.

7
If there are procedural flaw or breach in the conduct of identification parade and that it causes
a highly prejudicial effect on the accused, any identification made will be rejected by the
court as in the case of Duis Akim v PP. A breach of the procedural requirements in holding
an identification parade does not lead to the inadmissibility of evidence obtained was held in
the case of Thirumalai Kumar v PP. It will still be admissible if it has passed the dock
identification.

In applying to the present case, for an identification to be reliable, it must be done at the
earliest opportunity and in this case, it was done 5 hours after the crime occurred. 5 hours is a
reasonable time for the investigating officer to hold the identification parade. The reason is
because, even after 5 hours the witness may still be able to recall the face of the accused
person. By right, Mimie was not supposed to see the Gafur and Kemal before the
identification parade. However, Mimie saw Gafur and Kemal was brought into the police
station by Inspector Amid and she claimed that the two of them are the persons who
murdered Tuat. By virtue of the case of Jaafar Ali v PP, when an earlier identification had
been made prior to the identification parade the evidence obtained from the identification
parade has no weight or is of no value. Here in the present case, Mimie had identified Gafur
and Kemal as the accused persons who murdered Tuat before the identification parade is
being held. Therefore, since this will cause the Mimie to judge the accused persons
prematurely, in accordance to Jaafar Ali v PP, the evidence has no value.

In conclusion, the evidence from the identification parade may still be relevant and
admissible although there is procedural flaw in the conduct of identification parade.

8
The fourth issue is whether the evidence of post-mortem done by Dr JJ can be relevant and
admissible.

On the facts, Dr JJ did post-mortem on Tuat’s body and found that the cause of death is due
to internal injuries from severe blows on the head and abdomen.

Evidence that is relevant to show occasion, cause or effect may brought in to show. This was
provided under section 7 of the Evidence Act 1950. It stated that facts which are the
occasion, cause or effect, immediate or otherwise of relevant 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. Even though the facts do not form part of the
same transaction but are connected to the facts in issue is relevant as long as it establishes the
occasion, cause or effect of a fact. For instance, if the actual cause of death of the victim can
be linked to the accused such evidence is relevant.

In the case of Ahmad Najib bin Aris v PP, the officer who conducted the post mortem on
the body of the victim found that both of the deceased’s hands were tied with a muslin cloth
folded two or three times and the cause of death was strangulation by the muslin cloth around
the deceased’s neck. It was proven that this muslin cloth was of the same type as the cloth
seized from the accused’s office. There was also the possibility that the deceased died as a
result of bleeding in the abdomen caused by sharp weapon.

Section 9 of the evidence Act 1950 provides that facts necessary which support or rebut an
inference suggested by a fact in issue or a relevant fact are relevant.

On the facts, Dr JJ did post-mortem on Tuat’s body and found that the cause of death is due
to internal injuries from severe blows on the head and abdomen.

By applying the relevant authorities and decided cases in the present case, Dr JJ who did the
autopsy on Tuat’s body has found the cause of death. By virtue of section 7, the evidence of
Dr JJ from the autopsy, it shows Tuat’s cause of death. From the autopsy, Tuat died due to
internal injuries from severe blows on his head and abdomen. Based on the facts given, Tuat
was hit repeatedly on his face and his stomach by Kemal. In assuming that Kemal has
consumed alcohol and that he has lost his control may landed severe blows on Tuat’s head
and abdomen. This proves that the punches may have cause the internal injuries suffered by
Tuat. Although the facts do not form part of the same transaction, but the post-mortem are

9
connected to the facts in issue as it established the cause and effect of the fact in issue. The
post-mortem evidence further supports the fact that the cause of death was due the severe
blows on Tuat’s head and stomach and until the accused persons have rebut the inference
made that they have murdered Tuat, the evidence is relevant.

In conclusion, the evidence of post-mortem done by Dr JJ to show the cause and effect can be
relevant and admissible under section 7 of the Evidence Act 1950.

10