Relevancy Provisions

The relevancy provisions provide for facts which are not direct to the facts in issue, but are
connected/relevant to the facts in issue through several ways.
Sec. 6: Direct and hearsay evidence
- Facts which are not in issue, but are closely connected with a fact in issue as to form
part of the same transaction
- Whether they occurred at the same time and place, or at different times and places
- The provision, which originates from the doctrine of res gestae, covers both, hearsay
and direct evidence.
Doctrine of Res Gestae:
- ‘Res gestae’ literally means “things done”
- It is defined as forming “part of the same transaction”
- It is based on the belief that certain statements are made naturally, spontaneously,
and without deliberation, during the course of an event, thus leaving little room for
misunderstanding or misinterpretation upon someone else hearing it.
Lord Wilberforce in Ratten v R indicated three different ways in which the doctrine of res
gestae may apply:
When a situation of fact is being considered, the question may arise as to when the situation
begins and ends (Direct evidence)
- Illustration (a), (b) to Sec. 6
- Direct circumstantial evidence given by a witness who perceived it with his own senses
can be taken under the res gestae principle to understand what really happened
- The evidence referred to can either be of events happening before or after the fact in
issue occurs
- O’ Leary v The King: Evidence which forms a continuous transaction can be accepted
as part of res gestae so as to fully understand the circumstances of the fact.
- This is where it is necessary to look at the event as a whole, and not in isolation in
order to understand the full impact of the facts.
- The subsidiary events, whether occurring before or after the fact in issue, must be
related to the principal event and not merely be a narrative of past events.
Evidence of spoken words (Direct evidence)
- Direct evidence given by a witness who perceived it with his own senses that the
statement was in fact made
- The statement would not be used to establish the truth of what was said
- E.g: A witness appearing in court to account for the statement that he heard and saw
was said by the maker of the statement (that the statement was made)
- The evidence would be used to establish the state of mind of the maker of the
statement
A hearsay statement made either by the victim of an attack or by a bystander, which
indicates directly the identity of the attacker (An exception to the rule of hearsay)
- The admissibility of hearsay evidence which forms part of the same transaction that
concerns the identification of an attacker made by a bystander or a victim immediately
prior to or during an attack.
- The doctrine of res gestae becomes an exception to the rule of hearsay in that it allows
the admission of hearsay evidence provided that it was made spontaneously
(naturally), contemporaneously, without opportunity for deliberation and thought
so as to eliminate any possibility of fabrication.
- The rationale is that where the events that occur have dominated the mind of the
maker of the statement, the statement would be made naturally, contemporaneously
and without deliberation, thus leaving little room for any form of misunderstanding,
misconception and fabrication.
- The statement uttered by the maker would be reflective of what really occurred.
In admitting hearsay evidence under the doctrine of res gestae, the common law has
developed two distinct approaches:
Strict approach:
- The test of contemporaneity has to be satisfied as the basis for admitting statements
through hearsay.
- R v Christie: “Contemporaneous” under this approach is defined as at the time the
facts in issue occurred. No lapse of time is allowed for such hearsay evidence to be
admitted.
- The timing upon which the statement is made is of great importance. The act or words
must not be a mere narrative of past actions or a report statement. Once the crime is
complete, any subsequent statement is inadmissible. Only words uttered at the time
of the crime are admissible.
- R v Bedingfield (statement made by the victim): The accused was alleged to have
threatened to kill the victim by cutting her throat. One night, the accused and the
victim were in the house, when suddenly, she ran out of the house with her throat
cut, uttering “see what Harry has done!” which was heard by her assistant. Held: The
victim’s statement did not form part of the res gestae principle as it was uttered after
the act of cutting the throat was done, and was thus, inadmissible.
- Teper v R (statement 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.
Held: The evidence was inadmissible as it needed to be so connected so as to form
part of res gestae like the commission of the crime itself.
- If not absolutely contemporaneous with the event, at least so clearly
associated with it, in time, place and circumstance, that they are part of the
thing being done.
Liberal approach:
- Hearsay evidence could be admitted as part of the res gestae principle as long as the
possibility of fabrication, misconception or concoction is non-existent.
- Although the words or actions must be spontaneous or natural, it need not
necessarily be contemporaneous in that there may be a lapse of time between the
event and the statement made.
- There is no fixed time in determining “contemporaneity” or “spontaneity” as it is
dependent on the facts of each case.
- Ratten v R: The accused was charged with murder of his wife using a shotgun. He
claims that it was an accident. However, the operator received a call of a woman
sobbing hysterically when she asked “get me the police, please”. Held:
- In proving that the telephone call was in fact made by the victim, the statement
cannot be regarded as hearsay. This is because it is proposed to establish not
the truth of the statement, but the fact that it was made (direct evidence under
the doctrine of res gestae)
- In proving that the victim was in fact attacked by the accused, the statement
is regarded as hearsay.
- However, applying the doctrine of res gestae as an exception to
hearsay rule, the evidence is admissible as the statement was closely
associated with the time and place of the shooting that occurred
(proximate to the event), thus forming part of the res gestae. It was
made spontaneously and uttered under overwhelming pressure, thus
disregarding the possibility of concoction and fabrication.
- R v Andrews: Shortly after he was attacked and robbed, the victim named his attackers
to the police. However, the victim died before the trial took place. Held: The evidence
by the police was rightly admitted as part of res gestae.
- The event must be so unusual, startling, or dramatic that it dominates the
thoughts of the victim so as to make the statement an instinctive reaction,
which provides no real opportunity for reasoned reflection, thus excluding
any possibility of concoction and fabrication
The liberal approach may be applied when considering hearsay evidence of a statement made
by the victim of the offence.
- Where the impact of the event is so grave upon the victim’s mind, this renders
fabrication impossible.
However, the strict approach is more suitable when considering hearsay evidence of a
statement made by a bystander.
- When dealing with a bystander’s statement, especially when the identity of the
accused is an issue, there is a necessity for there to be a certain degree of
contemporaneity between the statement made and the events that occurred.
- The statement must be a spontaneous utterance due to the unusual nature of events.
Sec. 6 refers to the surrounding and accompanying circumstances, which are inseparable from
the facts in issue and are necessary to explain the nature of the fact itself. Similar to the
doctrine of res gestae, the provision allows acts, declarations and statements which
constitute part of the things said or done to be admissible, even if they are inadmissible under
the rule of hearsay.
Evidence admissible under this provision must form part of the same transaction:
- “Transaction” as defined by Sir James Stephen, and quoted by Chong Siew Fai CJ in
Thavanathan Balasubramaniam v PP: A group of facts so connected together as to be
referred to by a single name, as a crime, a contract, a wrong, or any other subject of
inquiry which may be in issue.
Direct evidence under Sec. 6:
- Illustration (a), (b), (c), (d) to Sec. 6
- Amrita Lal Hazra v R: For direct evidence to form part of the same transaction, it must
satisfy the test of four proximities (which must be considered as a whole):
- Proximity of time
- Unity of proximity of place
- Continuity of action
- Community of purpose

- Chin Choy v PP: The accused was charged for having possession of a revolver and
ammunition under the Emergency Regulation. The offence was committed over a
period of 7 years and in several unspecified places in Pahang. Held: The offences could
not form part of the same transaction as there exists only community of purpose that
is aiding the communist terrorists.
- For direct evidence to be part of the same transaction, there has to be more
than a mere general purpose. It has to be something particular and definite.

- A lapse of time is allowed as long as the element of continuity exists.

- Hamsa Kunju v R: The appellant was convicted for causing grievous hurt by attacking
a fellow worker on a construction site at night. A witness testified that an argument
took place between the appellant and the victim that morning. Held: The argument
and threat supplied the necessary motive that contributed towards the continuity of
the action, purpose and design necessary to form part of the same transaction.
- The evidence formed part of res gestae
- The lapse of time of several hours did not prevent the evidence from being
relevant

- The events must have been so intricately connected with the facts in issue as to
present a complete picture of the circumstances in which the offence was committed.
- Where the events assist in the understanding of the whole situation (when it begins
and when it ends), they are thus, part of res gestae.
Hearsay evidence under Sec. 6:
- For hearsay evidence to form part of the same transaction, the act or statement must
be made spontaneously (naturally), contemporaneously, without opportunity for
deliberation and thought.

- In construing Sec. 6 in light of res gestae, regardless of whether the statement was
made at a different time and place, or at the same time and place as the event, the
courts must consider that:
- The statement must be able to explain the incident
- The statement must be spontaneous and contemporaneous
- Not precisely at the same time and place, but close to it
- The statement must be one of fact, and not of an opinion
- The statement must be made by a victim or bystander of the event

Strict approach to admitting hearsay evidence under the doctrine of res gestae in Sec. 6:
- Leong Hong Khie v PP: The appellants were charged for drug trafficking. The Senior
Customs Officer, who was called to testify, introduced evidence of oral statements
made to him by two informers who were not called as witnesses. The defence
objected on the ground that the statements were hearsay. Held: The evidence did not
form part of res gestae. The statements were inadmissible as the lapse of several days
(between the time of the event and the time the statements were obtained) caused it
to not form part of the same transaction.
- A strict application of the doctrine of res gestae in Sec. 6 as an exception to the
hearsay rule did not allow for the statements to be tendered as evidence.
- The statements were made by way of a narrative of a detached prior event,
which the speaker was so disengaged from (due to the lapse of time)

- Muhammad Allapitchay & Ors v PP: Where the victim was stabbed while he was
asleep, the shout by the victim of the names of the accused after he was stabbed was
not contemporaneous with the action of stabbing. The words were uttered after the
event while the accused were running away from the scene. Held: The statements
amounted to a mere narrative of past events, thus not forming part of res gestae. The
statements should be, if not absolutely contemporaneous, so closely connected as to
form part of the same transaction, that they are part of the thing being done.
Liberal approach to admitting hearsay evidence under the doctrine of res gestae in Sec. 6:
- PP v Mohd Zahari Embong: The court accepted hearsay evidence of the witness
repeating the accused’s statement disclosing that his wife had beat all their children,
and that he killed her without intention. The statement was said to have been made
contemporaneously to the fact in issue, and was thus, accepted by the court under
the liberal approach.
Sec. 7: Circumstantial evidence
- Facts which, although do not form part of the same transaction, are connected to the
facts in issue as it establishes:
- The occasion, cause or effect of a fact
- That opportunity was afforded for the occurrence of a fact
- That the facts constitute a state of things
Occasion, cause or effect:
- Circumstantial evidence which may be brought in to link the accused to the crime
- Illustration (b) to Sec. 7
- Dr Jainand v R: The fact in issue was whether Jainand had murdered Karan Singh. The
evidence which provided that Jainand had taken money and ornaments from Karan
Singh, who on the day of the murder had met Jainand to demand the money and
ornaments, are relevant facts proving occasion, cause or effect of the fact in issue.

- R v Richardson: The fact that the deceased girl was alone in her cottage at the time
she was murdered was held to be relevant as it constituted the occasion of the murder
and footprints at the location of shoes which had been mended with iron knobs or
nails were held to be one of the effects of the fact in issue.

- Ahmad Najib Aris v PP: The victim died as a result of strangulation by a muslin cloth,
which was of the same type that was seized from the accused’s office. Usage of the
muslin cloth upon the victim was also evidenced by the marks left on the victim’s
hands, showing that they had been tied with a folded muslin cloth. The evidence
provided established a cause of the fact in issue.

- PP v Toh Kee Huat: Evidence of the accused’s fingerprints found on the inner surface
of the glass pane of the stolen car established an effect of the fact in issue as the marks
could only have been made during the hours of darkness when the car was taken, or
the morning before its discovery.
Opportunity:
- An opening or a chance for a crime to be committed
- It may be disproved upon the tendering of a valid alibi, which represents a
complete defence to release the accused from the offence charged
- Illustration (c) to Sec. 7
- Aziz Muhammad Din v PP: The evidence of opportunity alone, without the availability
of more evidence, cannot help corroborate that a crime had taken place; is insufficient
to help prove the fact in issue.

- R v Richardson: Not only was the deceased girl alone in her cottage at the time she
was murdered, evidence from the accused’s colleague stating that the accused was
absent for an hour at work on that same day proved the existence of opportunity.
 - R v Donellan: The victim suffered from a certain illness and had to take a particular
medicine every day at a scheduled time. Knowing this, the accused changed the
medicine with poison. The mother of the victim, not knowing that the medicine had
been changed, administered the poison. Held: The accused’s knowledge of the
victim’s illness and intake of medicine provided him with an opportunity to commit
the crime.

- PP v Dato’ Seri Anwar Ibrahim: The presence of the accused within the vicinity of the
crime scene and the proximity of time to the commission of the crime proved that
there was opportunity for the offence to take place.
State of things:
- Refers to the circumstantial situation which is obvious to the witness who perceives it
in that it causes the witness to believe in a certain logical meaning.
- Illustration (a) to Sec. 7
- PP v Muhammad Rasid Hashim: The issue was whether the sexual intercourse was
consensual. The fact that the room was found in a mess caused the witness to
conclude that there was a struggle between the deceased and the accused. Another
witness found the deceased lying on the floor exposed with her face bleeding. The
circumstantial evidence perceived by the witnesses negated any form of consent
having been given by the deceased.
- The evidence of the state of things perceived must be viewed as one whole
transaction (overall state of things)
- The totality of the evidence clearly depicted a scenario whereby the accused
had violently assaulted the deceased before raping her
Sec. 8: Circumstantial evidence
- Facts showing motive, preparation and conduct of those involved in the crime, which
influences, or is influenced by, any facts in issue or relevant facts.
- Evidence must be given directly by a witness who perceives it
Motive (Sec. 8(1)):
- Definition: Factors that move a person to do a particular act
- Lower Perak Cooperation Housing Society Bhd v Ketua Pengarah Hasil Dalam Negeri:
Intention means seeking to do something and is connected to purpose or object,
whereas motive is connected with the reason for doing something.
- Illustration (a), (b) to Sec. 8

- Although motive in itself is not an element required to prove a crime, it is an element

that may help establish why a person commits a crime/ the intention of the person
who committed the crime.
- Motive is especially relevant where all the evidence of the case are circumstantial in
nature
 - Wong Foh Hin v PP: Where the accused was charged for the murder of his own
daughter, evidence that he had raped his daughter was tendered as evidence of
motive. Held: The court admitted the evidence of motive, despite it reflecting the bad
character of the accused, namely that he was a bad father. Even though Sec. 54(1)
disallows evidence of bad character to be tendered, the court upheld the principle
that evidence admissible on one ground will not be rejected due to its inadmissibility
on another ground. In this case, the evidence of rape by the father was relevant, thus
making it admissible.

- Motive, when fully established, serves as corroboration to the facts in issue and upon
consideration with other evidence, it would show that the accused had the
prerequisite intention to kill (Mohamad Deraman v PP)
- Sunny Ang v PP: A claim of insurance for a total of RM450,000 was sufficient to prove
motive of the accused, who was a bankrupt, to kill his girlfriend.

- The absence of motive need not necessarily mean that no intention was present (PP v
Oh Laye Koh)
- PP v Ku Hang Chua: Where there was corroboration of the evidence of rape by the
accused, the fact that there was no motive in raping the complainant does not mean
that the accused is innocent.

- Motive that is tendered as evidence must be in the nature of direct evidence (Sec. 60)
and cannot be proven by hearsay evidence.
- Karam Singh v PP: Evidence of motive given by the deceased’s son to the court must
be rejected as it was a mere repetition of what the father said to him prior to his death.
Preparation (Sec. 8(1)):
- Every action that leads to the production of a crime or facilitating a criminal action
- It is not a criminal act, but it is relevant in contributing towards the establishment of
the facts in issue
- Illustrations (c), (d) to Sec. 8
Conduct (Sec. 8(2)):
- The conduct must directly affect, influence or be affected by the facts in issue or
relevant facts.
- The evidence of conduct, if tendered, must have reference to the facts in issue.
- The nexus between the conduct and the facts in issue must be established so
that the action is not an isolated event.

- Conduct includes both, previous or subsequent conduct of the accused person, the
victim or a third party to be tendered as evidence.
- Previous conduct: The conduct of a person before the commission of the facts in issue.
- At times, a person’s previous conduct may overlap with the preparation to
commit a crime.
- Illustrations (c), (d), (e) to Sec. 8
- R v Ball: A brother and sister were charged with incest during various periods
in 1910. The trial judge admitted evidence showing that the accused had
cohabited as man and wife at an earlier period when they had a child. Thus,
the accused were convicted.
- R v Williams: The accused was charged for making a threat to kill. Evidence of
previous threats and violent conduct to the victim was admissible.

- Subsequent conduct: A person’s action after the crime is committed

- Illustrations (e), (k) to Sec. 8
- Chandrasekaran v PP: The accused was charged and convicted with two
charges of knowingly using genuine forgeries of two government vouchers.
The prosecution tendered evidence that the accused told his colleagues of his
purchase of a $1000 diamond ring for his wife from alleged turf winnings, and
evidence of payment of outstanding bills of $1500.

- Relevant evidence of conduct (previous or subsequent) may be used to infer the guilty
mind or the mens rea to commit a crime.
- However, the conduct must be weighed against the circumstances of the case
in order to establish a link between a conduct and the accused’s state of mind
- This must be done by looking at the totality of the evidence
- Illustrations (f), (h) to Sec. 8

- Thavanathan Balasubramaniam v PP: The accused was charged for corruptly

soliciting money from the complainant. Evidence of the accused being seen
counting the money, as well as holding and later dropping the money on the
floor upon being ambushed by the authorities is indicative of his guilt.
- Chan Kwok Keung v The Queen: The appellants were caught attempting to
illegally bypass the immigration control almost 10 months after the
commission of the offence of murder. Held: The flight of the accused after the
offence has been committed is tantamount to an admission by him of his guilt
of that offence.
- Hamidi Mohd Isa v PP: The accused, who was charged for trafficking drugs, ran
away when approached by the police. The act of him running away was used
to infer his guilty mind, and was said to reflect his knowledge on the existence
of the drugs.
- Syed Ali Syed Abdul Hamid v PP: Where the accused deliberately lied about
where he was heading to (he was in fact heading to Singapore, not
Terengganu), such conduct indicated the existence of the accused’s guilty state
of mind, and was admitted as corroborative evidence of the accused’s offence
of drug trafficking.
Distinction between mere statement and complaint when it is sought to be tendered under
Sec. 8(2):
- A mere statement only confirms the consistency in the making of such statement
where the source of the evidence is only the victim herself.
- It is mere evidence of knowledge and will not form part of a conduct
- It amounts to nothing more than a statement, and can only be tendered as
corroborative evidence under Sec. 157

- A statement forms part of a conduct when it accompanies or explains the actions of

a person.
- Boota Singh v PP: A police report was made by the deceased against the
accused several months before the murder. Although the report was
considered hearsay and inadmissible under Sec. 32 (as it did not fall under the
exception), it was admissible under Sec. 8 as it indicated that the deceased
was on bad terms with the accused (proof of the deceased’s dealings with the
accused). In this case the statements in the report accompanied and explained
the deceased’s act in making the report itself, making it relevant and
admissible.

- For a person’s statement to be regarded as conduct under Sec. 8(2), it must be

accepted as a complaint.
- A complaint is a conduct because it is an expression of feeling made with a view to
redress or punish and is made to someone in authority (Aziz Muhamad Din v PP)
- Illustrations (k), (j) to Sec. 8
- ‘Someone in authority’ is a question of fact:
- PP v Mohammad Tereng Amit: A teacher at the victim’s school
- PP v Teo Eng Chan: The doctor by whom the victim was treated
- For a statement to amount to a complaint, it must be made voluntarily and
spontaneously, and not elicited by leading, inducing or intimidating questions (Aziz
Muhamad Din)
- If the circumstances indicate that, if not for the questioning, there would
probably have not been a voluntary complaint, the answers are inadmissible.

- Aziz Muhamad Din: Where the accused was charged for the rape of an underage girl,
a complaint to the police was made only after the girl was repeatedly questioned by
her father. Thus, the issue was whether her police report could amount to an evidence
of conduct under Sec. 8(2).
- There cannot be said to have been a complaint under Sec. 8(2) as the police
report was only lodged upon threats imposed by the victim’s father to her,
making it involuntarily. Further, the statement given by the victim to her
father, in which she told him that she had “spent the night at her male friend’s
house”, was unrelated to the crime, as well as involuntary, as it was made
after she was repeatedly questioned.
Sec. 9: Circumstantial evidence
- Allows for the admission of circumstantial evidence which is not part of the same
transaction
- Concerned with the explanation of relevant facts or facts in issue
- Helps identify the real nature of a transaction when it itself is not part of the same
transaction
Facts necessary to explain or introduce a fact in issue or a relevant fact:
- Evidence adduced to explain or introduce relevant facts to the facts in issue
- It is not admitted as evidence of the truth of the matter, but merely as explanatory to
the existence of a fact (hearsay evidence is admissible)
- Facts necessary to explain: Illustrations (c), (d), (e), (f) to Sec. 9
- Facts necessary to introduce: Illustrations (a), (b) to Sec. 9
Facts which support or rebut an inference suggested by a fact in issue or a relevant fact:

- Where evidence of conduct has been tendered under Sec. 8(2), evidence of such
conduct may refer to unequivocal acts that are capable of multiple interpretations.
- Issue: Whether A wrote an anonymous letter to B, threatening him and requiring him
to meet A at a particular place at an appointed time.
- Fact supporting the inference that A wrote the letter: A went to the place at
the appointed time.
- Fact rebutting the inference that A wrote the letter: A had some other business
to attend to at the particular place and time.
Facts which show the relation of the parties:
- Verification on the relationship of parties can be crucial in certain cases
- Illustration (b) to Sec. 9
Facts which fix the time or place at which any fact in issue or relevant fact happened:
- Such evidence can be given by a lay witness or an expert witness.
- E.g: A lay witness can provide evidence of the discovery of a body, while an expert
witness, upon discovering a decomposed body, can help determine the time of death
of the victim.
Facts which establish the identity of any person (accused, victim, relevant third party) or thing
seized:
Visual identification:
Photographs:
- Identification through photographs can be made prior to an arrest, in order to effect
the arrest, but not after the accused has been arrested.
- The showing of photographs must not be prejudicial to the accused
 - Lai Ah Kam & Anor v Rex: The complainant made a report of a robbery and an
investigation was carried out. Before the accused was arrested, one of the witnesses
was shown a series of photographs, and the witness picked out the photograph of the
accused.
- If a photograph is shown to a witness after an arrest, it may be a valid ground
for quashing the conviction.
- However, there is no prohibition against showing the witness a series of
photographs before the arrest, provided that nothing has been done by the
police to suggest that a particular photograph is that of the accused, and that
nothing in the photographs contain any indication of the accused.

- Identification using photographs that is done after the arrest is inadmissible

- PP v Kok Heng: Where the identification of the accused was carried out by
photographs that disclosed the fact that the accused were already in police custody,
the evidence obtained was inadmissible.

- Identification using photographs which create the impression that the accused is of
bad character should not be admitted.
- Girdari Lall & Ors v PP: The photograph of the accused along with several other photos
of Indians bore a police number and was a combined profile and full face photo. The
photographs indicate that they were from the police record, from which it could be
inferred that the persons, including the accused, was of bad character. Held: The
photos were obviously taken from the police record and putting them in evidence was
tantamount to saying that the accused was of bad character, thus making the
evidence inadmissible.
Identification parade:
- Alexander v Queen: An identification parade is the most reliable mechanism available
for the identification of the accused.
- The parade is held to 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.
- A parade is especially necessary:
- Where the accused person is not known to the witness
- PP v Sarjeet Singh: Where there was no evidence to show that the
witness knew the accused, failure on the part of the police to organise
a parade gave rise to the assumption that if a parade was conducted,
the witness would not be able to identify the accused.
- To determine whether the identifying witnesses are lying
- Procedural safeguards in conducting an identification parade:
- Ong Lai Kim v PP: There is no specific provision on the procedure for an
identification parade.
- Although there is no specific provision on such procedure, there are several
precautions that must be observed:
- The accused must be identified by the witness in a parade of not less than 10
people (R v Cartwright)
- PP v Chan Chon Keong: Where there are two or more suspects, a
separate parade must be held.
- The parade must be held at the earliest opportunity as a long delay may result
in the identification of the accused to be of no value (Dwarka v Singh)
- PP v Syed Muhamad Faysal: A delay of 2 years and 4 months rendered
the evidence inadmissible.
- An officer interested in the case (investigating officer) should not take part in
conducting the parade
- The parade must consist of participants of similar age, stature and
appearance as the accused
- Pasupathy Kanagasamy v PP: Discrepancies in age or height will cause
the evidence to be rejected
- Prabah Sinathamby v PP: The accused was bearded and wearing shorts
while the other participants were not.
- If the case involves more than one witness, each witness should be called in
one by one, and should be prohibited from communicating with the other
witnesses.
- PP v Ong Poh Cheng: The witnesses were confined to the same room
and had the opportunity of exchanging mutual notes and recollection
of the robbery.
- 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
- The photograph of the suspect should never be shown to the witness
- Jaafar Ali v PP: Where an earlier identification had been made prior to
the identification parade (where the witness had the opportunity of
seeing the accused before the parade), evidence obtained from the
identification parade has no weight/ is of no value.
- The interest of the accused person should be protected in that the presence
of the suspect’s solicitor or friend should be allowed
- Ong Lai Kim v PP: An identification parade involving the use of a one
way mirror may only be held in the presence of the suspect’s solicitor,
friend or an appropriate adult to observe any irregularities that may
occur.
- If the presence of such persons is requested by the suspect, the request must
be fulfilled.
- If the suspect declined the request for their presence, there cannot be said to
have been a procedural defect.
 - If the procedural flaw or breach in the conduct of the identification parade is
such that it caused high prejudicial effect on the accused, any identification
made will be rejected by the court (Duis Akim v PP)
- Thirumalai Kumar v PP: A breach of the procedural requirements in
holding an identification parade does not lead to the inadmissibility of
evidence obtained. However, evidence of bad faith or a deliberate
flouting (disobeying) of procedural requirements, rather than mere
inefficiency, will cause the evidence to not be upheld.
Dock identification:
- Arumugam Muthusamy v PP: Dock identification by a witness for the first time is
undesirable. The normal practice is to have an identification parade where the
accused person is not previously known by the witness.
- Kanan v State of Kerala: A witness who identifies an accused, who is not known to
him, in court for the first time provides absolutely valueless evidence unless there was
a prior identification parade.
- Tan Kim Hoo v PP: Where an identification parade has been conducted first, evidence
obtained from a dock identification is regarded as substantive evidence. A witness’
prior identification in an identification parade corroborates his identification in court.
- PP v Ong Poh Cheng: Failure by a witness to identify in an identification parade does
not necessitate a rejection of the evidence obtained through dock identification.
- Where the court in this case rejected the evidence from the identification
parade due to procedural defects, such rejection is in no way fatal to the dock
identification of the accused.
Turnbull Guidelines: Guidelines established in R v Turnbull which assist the courts in assessing
the quality and probative value of identification evidence:
- A judge must warn himself about the dangers of identification evidence and that there
is a special need for caution in admitting such evidence
- A judge must direct himself to examine closely the circumstances the disputed
identification came to be made (various specific matters that may affect the strength
or cogency of the evidence). He must determine whether or not the identification
evidence is of good or poor quality (ADVOKATE)
- Amount of time the suspect was under observation by the witness
- Distance between the suspect and the witness
- Visibility at the time the witness saw the suspect
- Obstructions between the suspect and the witness
- Knows suspect or has seen him or her before
- Any particular reason for the witness to remember the suspect
- Time lapse since the witness last saw the suspect
- Error or material discrepancy in the description given by the witness
- Where it is established that the identification evidence is of good quality, a judge must
assess the value of such evidence in the conviction of the accused, even in the absence
of other evidence supporting the crucial identification
 - Where it is established that the identification evidence is of poor quality, a judge must
withdraw the case, unless there exists other evidence capable of supporting the
identification evidence

- The guidelines were approved in R v Burchielli and the Malaysian case of Jaafar Ali v
PP: Where the primary issue is the identity of the accused, the principles set out in
Turnbull must be followed.
Fingerprint identification:
- PP v Toh Kee Huat: The accused’s fingerprints found on the inner surface of the car
window were conclusive evidence of the fact that he had tampered with the lock of
the car in order to gain entry.
- Failure by the prosecution to produce fingerprints of the accused is not fatal to the
case as the absence of finger impression does not guarantee the absence of the
accused at the scene of the crime (Mohd Zulkifli Abd Ghani v PP)
- Introduction of fingerprint evidence must be by an expert witness (Sec. 45)
Voice identification:
- In order for voice identification to be of good value, the witness must be familiar with
the voice by having heard it before.
- PP v Daud Ahmad: Where the witness, who was the daughter of both, the victim and
the accused, was the last person to have heard them quarrelling outside the house,
there was no doubt as to the evidence obtained from her voice identification as she
would have recognised the accused’s voice even without seeing him.
- Teng Kum Seng v PP: The appellant was convicted on three charges of putting persons
in fear of injury in order to commit extortion. The identity of the accused was
established by his three victims who were able to recognise his voice, which was found
to be similar as the voice heard through the telephone when the victims were put in
fear of injury in order to extort their money.
DNA Profiling:
- A technique used by forensic scientists to assist in the identification of individuals by
their respective DNA profile.
- Introduction of DNA profiling evidence must be by an expert witness (Sec. 45)
- PP v Syed Muhamad Faysal: Evidentiary value of DNA profiling is significant.
- Ahmad Najib Aris v PP: The accused was convicted for the rape and murder of Canny
Ong. Blood stains, which DNA tests confirmed were the deceased’s, was found on the
accused’s jeans, and inside the deceased’s car that was driven by the accused. The
vaginal swab taken from the deceased also confirmed the presence of semen
belonging to the accused.