LAW529: LAW OF EVIDENCE I

FINAL ASSESSMENT

PREPARED FOR:

MADAM HABIBAH OMAR

PREPARED BY:

NAME STUDENT ID GROUP

JASREEZAL AMAR NOORIS 2019324555 LWB06E

BIN JASLI

DATE SUBMITTED: 14TH OF FEBRUARY 2020

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Name: JASREEZAL AMAR NOORIS BIN JASLI

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QUESTION 1
The facts in issue in this present case is whether Van-Luyk committed arson and
mischief. This is evident as Van-Luyk was charged with arson under section 435 of the Penal
Code and was also charged for two counts of mischief under section 425 of the Penal Code.

The first issue is whether Nugent’s evidence on the slashing of the tire and her burning
car is relevant and admissible.

According to the facts given, on December 26, 2016, Nugent noticed that one of the
tires of her car, a Chevrolet bearing registration number WTY110 was flat, in which the tire
turned out to have been slashed on its side. Then, on February 7, 2017, Nugent woke up in
the middle of the night at around 2.05 am to find her car in flames, which prompted her to call
999.

According to Section 9 of the Evidence Act 1950, facts are relevant to explain or
introduce facts in issue. For example, in illustration c of Section 9 of the Evidence Act 1950
state that the fact that at the time when A left home, he had sudden and urgent business at
the place to which he went is relevant to explain the fact that he left home suddenly. To
illustrate, in Lim Seng Chuan v PP, it was submitted that evidence adduced in a trial within a
trial or voir dire to determine whether a confession was voluntarily made or not constitute facts
necessary to introduce the facts in issue pursuant to Section 9 of the Evidence Act 1950.
Facts which show time and place where facts in issue happen is relevant under Section 9 of
the Evidence Act 1950.

In applying the law to the present issue, referring to the facts give, Nugent’s evidence
would be under direct evidence under Section 60(1)(a) of the Evidence Act 1950 as she saw
the condition of her Chevrolet bearing registration number WTY110 on two occasions in which
first on December 26, 2016, one of the tires was and second on February 7, 2017, the car was
in flames. Under Section 9 of the Evidence Act 1950, this evidence would be relevant and
admissible as Nugent is trying to introduce the fact that her vehicle was damaged on two
separate occasions that occurred at her home, in which Section 9 also governs the fact on
time and place in which the arson and mischief had happened, which is at Nugent’s home and
one month and 12 days in which the gap of the two incidents happened.

In conclusion, by virtue of Section 9 of the Evidence Act 1950, Nugent’s evidence is

relevant and admissible.

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 The second issue is whether Tuan Sefton’s evidence on the Nugent’s burnt vehicle is
relevant and admissible pursuant to Section 7 of Evidence Act 1950 for being facts that
constitute state of things under which the facts in issue happened.

According to the information provided, Tuan Sefton, a fire prevention officer with the
Petaling Jaya Fire and Emergency Services, arrived at the scene at 3:05 a.m. The fire had
been completely extinguished by that point thanks to the efforts of several firefighters. Mr.
Sefton noticed that the fire had no obvious external causes. Tuan Sefton noticed a lot of
damage to the engine compartment when he inspected the vehicle, especially on the driver's
side. The fire had also begun to breach the firewall that separated the engine compartment
from the car's interior cabin. The passenger side was relatively unscathed. A can of accelerator
and a burnt lighter were discovered on top of the car. Mr. Sefton photographed the car
numerous times. He testified that the external fire had burned intensely and generated a
significant amount of radiant heat, which could have caused fires to spread to nearby
structures. He smelled gasoline on the car near where it was burned the most and concluded
that it was arson.

According to Section 7 of the Evidence Act 1950, any facts that constitute the state
of things under which the facts in issue happen, shall be relevant & admissible. Among other
situations that fall under this limb are, if it refers to the condition of the crime scene, marks on
the scene of the accident, the witness who heard the victim crying or shouted, or the
knowledge of the victim’s daily routine. At the core of this discussion’s application, it simply
refers to circumstantial situations which are obvious to the witness who perceives it to have a
certain logical meaning.

To illustrate, in PP v Muhammad Rasid bin Hashim, one of the issues raised was
whether the sexual intercourse was consensual. The evidence of consent cannot be elicited
from the victim who was dead. Therefore, the court looked at the evidence adduced to see
whether there existed circumstantial evidence which could support or justify a finding on the
issue of consent. In this case, the court admitted and considered the evidence of a Chief
Inspector who studied the crime scene, which shows the evidence of the state of things, that
are inter alia, the sign of struggle, the signs and scars of a defensive nature, and the testimony
of the victim’s friend who found the victim full of bruises & blood, to came out with an irresistible
conclusion that the sexual intercourse indeed happened without the victim’s consent.

In applying the law to the present issue, Tuan Sefton’s evidence would be under direct
under Section 60(1)(a) of the Evidence Act 1950 as Tuan Sefton has perceived the scene

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of Nugent’s burnt car at her home and have investigated the aftermath of the vehicle.
Moreover, his evidence would also fall under Section 60(1)(c) of the Evidence Act 1950 as
he perceived the scene by using his sense of smell when he gasoline on the car. Since Tuan
Sefton is a fire prevention officer with the Petaling Jaya Fire and Emergency Services, his
evidence can fall under Section 60(1)(d) of the Evidence Act 1950 as he can held as an
expert in fire prevention. Furthermore, the picture of the burnt car would fall under
documentary evidence under Section 3, paragraph (b) of the Evidence Act 1950. Hence, it
shall be complied with Section 61 of the Evidence Act 1950 to prove the content of the
picture.

By applying section 7 of the Evidence Act 1950, Tuan Sefton’s evidence would be
relevant and admissible as based on his observation and investigation of the burnt vehicle and
the fact that he discovered a can of accelerator and a burnt lighter on top of the car a state of
things in which the arson had happened. By applying the case of PP v Muhammad Rasid bin
Hashim, this is because Tuan Sefton, based on his experience as fire prevention officer have
studied and investigated the scene of the burnt car in which he saw the condition of the vehicle
and the fact he saw the can of accelerator and a burnt lighter and also the fact that he also
smelled gasoline on the car, would deduce a logical conclusion that someone have committed
arson by burning Nugent’s car.

In conclusion, Tuan Sefton’s evidence would be relevant and admissible pursuant to

Section 7 of the Evidence Act 1950 as the evidence constitutes the state of things under
which arson had happened.

The third issue is whether Destinee’s evidence on the text message and police report
is relevant and admissible.

Based on the facts given, Destinee, Nugent’s 20 years old daughter, testified that on
December 30, 2016, she received a text message from Van-Luyk, her former boyfriend. The
text message read as follows: "How was ur Christmas ... hope ur mom's car is good. And
happy new year hope ur more blessed this year with a job ..." Destinee testified that she found
this text message to be "strange" because the last message she had received from Van-Luyk
was on November 15th. In that last conversation, they never spoke about her mother's car.
This text message prompted Destinee to file a police report.

By virtue of Section 8(2) of the Evidence Act 1950, it states that the conduct of any
parties to the suit or his agents is relevant, provided, by the case of Parlan Dadeh v PP, the

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conduct is related to facts in issue. ‘Conduct’ can be previous conduct or subsequent conduct,
in which we will focus on the previous conduct. Previous conduct is the conduct of an accused
or victim prior to the commencement of the facts in issue. To illustrate, in illustration c of
Section 8, it states that the fact that before the death of B, A obtain poison like that which was
administered to B, is relevant.

In applying the law to the present issue, Destinee’s evidence would be deemed
relevant under Section 8(2) of the Evidence Act 1950 as it will be based on Van-Luyk’s
previous conduct before the arson of Nugent’s vehicle. Four days after one of Nugent’s vehicle
tyre was slashed, Destinee received a text message from Van-Luyk in which he specifically
stated on Nugent’s vehicle. This conduct would deem to be strange to Destinee since previous
text message that Van-Luyk sent to Destinee does not mention on Nugent’s vehicle. Hence,
Destinee’s evidence on the text message would be deemed relevant and admissible under
Section 8(2) of the Evidence Act 1950 as it would link the previous conduct of Van-Luyk
before the arson happened.

Moreover, Section 9 of the Evidence Act 1950 is concerned with the explanation of
relevant facts or introducing facts in issue. It is not admitted as evidence of truth but merely
as explanatory to the existence of a fact. For instance, a police report which may constitute as
the first information report under section 107 of the Criminal Procedure Code may be
produced in the absence of the complainant as it is used to start the ball rolling, which is the
starting of an investigation. A first information report is corroborative evidence that will assist
the police and the prosecution in the case.

In applying the law to the present issue, after receiving the text from Van-Luyk,
Destinee filed a police report. Under Section 9 of the Evidence Act 1950, this police report
would be deemed relevant and admissible as it is to introduce the fact that Destinee have
notified the police and the police report would be deemed as the first information report under
section 107 of the Criminal Procedure Code, which is used to start an investigation.

In conclusion, by virtue of Section 8(2) of the Evidence Act 1950 and Section 9 of
the Evidence Act 1950, Destinee’s evidence on the text message and police report is relevant
and admissible.

The fourth issue is whether Nugent’s evidence is relevant and admissible.

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 Based on the facts given, Nugent bought a new car, a Ford Focus. She also fixed the
CCTV camera facing the street where her car was parked. However, one month later, on
March 7, 2017, at approximately 7am, Nugent exited her home to go to work. She smelled the
odour of gasoline, and the odour was stronger when she opened the door of her car.

Similar Facts Evidence (SFE) is evidence that an accused has on previous occasions
misconducted himself in a way like the misconduct being alleged against him in the proceeding
before the court. As a general rule, according to Noor Mohammed v The King, this similar
facts evidence is not admissible, not relevant and at the same time highly prejudicial because
by looking at the previous history of criminality of the accused, the court may blindly jump to
the conclusion that the accused should be guilty. Section 5 of the Evidence Act 1950
emphasizes that evidence which is not part of the same transaction or has no connection to
the main fact is generally not admissible. Nevertheless, there is an exception when the
evidence is categorised under similar fact evidence.

There are three common law exceptions, namely, the exception under the Specific
Purpose Test, the exception under the Striking Similarity Test, and the exception under the
Probative Value Test. For this discussion, we will focus on the striking similarity test.

As for the striking similarity test, the concept is that similar facts evidence is admissible
if the repetition of the previous misconducts and the current one charged is strikingly similar.
The ‘striking similarity’ approach was first introduced by Lord Goddard in the case of R v Sims,
whereby the court held that the evidence on one count was admissible on the other counts
because 'the acts they described bear a 'striking similarity’, and therefore, the accused was
found liable for 6 homosexual offences involving 4 men.

In Malaysia, SFE is applied in Malaysia via sections 11, 14 and 15 of the Evidence
Act 1950. By virtue of Section 11(b) of the Evidence Act 1950, it states that facts are relevant
if they make the existence or non-existence of any fact in issue highly probable or improbable.
The word ‘highly’ requires the element of probative force to be higher than what would normally
be required. In Abu Bakar Ismail v R, the court held that the evidence of similar acts of
fraudulent endorsements by the appellant to obtain a grant of a driving licence went far beyond
showing that the appellant, having committed 8 similar acts previously, was a person who was
likely to have committed the two acts with which he was charged.

In applying the law to the present issue, under Section 5 of the Evidence Act 1950,
generally, the evidence which is not part of the same transaction or has no connection to the

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main fact is generally not admissible, however, it shall be noted that in Malaysia there are
exceptions on SFE under sections 11, 14 and 15 of the Evidence Act 1950. In reference to
the facts given, the striking similarity, as the modus operandi of the accused which is Van-
Luyk in this situation is strikingly like the arson that he caused on February 7, 2017. This is
because it happened a month after the arson happened and there is a use of gasoline in which
Nugent smelled which is under direct evidence under Section 60(1)(c) of the Evidence Act
1950. In applying section 11(b) of the Evidence Act 1950, Nugent’s evidence on the
attempted arson would be deemed relevant and admissible as the strikingly similar action
made by Van-Luyk would make him as the person who committed such arson and mischief.

In conclusion, under the similar facts evidence of Section 11 of the Evidence Act
1950, Nugent’s evidence is relevant and admissible.

The fifth issue is whether the identification by CCTV made by Nugent and Inspector
Campbell is relevant and admissible under Section 9 of the Evidence Act 1950.

Based on the facts given, Nugent double-checked the footage from her security
camera, being cautious. Someone was seen pouring fluid from a gas can over the front end
of her car in the video. The man tried to light it. The attempt, however, was thwarted by the
unexpected rain. The man rushed out of her house. The dousing of her car occurred around
2 a.m., according to the time stamp on the footage. Nugent dialled 911 right away. Inspector
Campbell, for his part, reviewed the video and noticed a male wearing a hoodie with his face
covered pouring fluid from a can over the front of the car. Another person is seen pacing back
and forth in the driveway. At one point, the person who poured the fluid threw something on
the windshield and the two individuals promptly run away. The rain then suddenly poured.

According to Section 9 of the Evidence Act 1950, facts are relevant if it is to establish
the identity of a person or a thing. The identity of a person can be done by visual identification,
photograph, voice, DNA, smell, videotape or CCTV, and fingerprint. Referring to the facts
given, only the issue to establish the identity of a person through videotape or CCTV is
relevant. According to R v Caldwell & Dixon, the identification of an accused person from
CCTV or video tape were indeed allowed provided that such identification is spontaneous and
independent. However, the production of the CCTV tape falls under the production of
documentary evidence. Hence, it needs to comply with Section 90A of the Evidence Act
1950, or else, according to Ahmad Najib Aris v PP, the CCTV tape will be regarded as
inadmissible.

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 In applying the law to the present issue, Nugent and Inspector’s Campbell’s evidence
would be under direct evidence under Section 60(1)(a) of the Evidence Act 1950, in which
the saw the footage from the security camera. By applying Section 9 of the Evidence Act
1950, the identification made by Nugent and Inspector Campbell would be deemed relevant
and admissible as the identification made by the two have identified that there were two
individuals that were involved in the attempted arson of Nugent’s vehicle. Nugent have
identified that a man was pouring gasoline on the vehicle and when it was thwarted, the man
was seen running away. As for Inspector Campbell, he noticed a male wearing a hoodie with
his face covered pouring fluid from a can over the front of the car and another person is seen
pacing back and forth in the driveway. It shall be noted that the CCTV footage shall under
documentary evidence under Section 3, paragraph b of the Evidence Act 1950 and it shall
be complied with Section 90A of the Evidence Act 1950. Since this footage was from
Nugent’s security camera, this documentary evidence has complied with Section 90A of the
Evidence Act 1950, since Nugent is the victim in this situation.

In conclusion, the identification made by Nugent and Inspector Campbell would be

deemed relevant and admissible under section 9 of the Evidence Act 1950 in which
identification through CCTV or videotape has been made.

The sixth issue is whether the identification made on the cigarette butt and lighter by
Dr Tintin, is relevant and admissible.

Based on the facts given, a drenched cigarette butt and a lighter which were found at
the driveway were taken by Inspector Campbell and sent to Dr Tintin. A fingerprint that
matched Van-Luyk were found on the lighter but nothing on the butt.

Under Section 9 of the Evidence Act 1950, facts are relevant if it is to establish the
identity of a person or a thing. Referring to the facts given, only the issue to establish identity
of a person through fingerprint is relevant. Fingerprint identification is one of the earliest
methods of identification. According to Mansor Mohd Rashid v PP, the court acknowledged
that where the identity of a culprit is in question or required to be proved, fingerprint evidence
would be of a great significance and immense value.

In applying the law to the present issue, Section 60(1)(a) of the Evidence Act 1950
shall be applied to Dr Tintin’s situation as he saw the evidence of a drenched cigarette butt
and a lighter and examined it to find the identity of the people involved. Section 9 of the
Evidence Act 1950 is applied in this situation as it is used to establish the identity of the

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people which was gathered through the lighter. This is because for the cigarette butt,
identification was unable to be done as the cigarette butt was drenched and rendering it
impossible to find any identification to occur since the evidence is tampered with. As for the
lighter, the identification by fingerprint made by Dr Tintin is relevant and admissible as the
fingerprint identification was obtained by Dr Tintin since he has examined the lighter and when
examine with Van-Luyk’s fingerprint profiling after the arrest, it come to a match which was
held in Mansor Mohd Rashid v PP, the fingerprint evidence will serve a great importance to
place Van-Luyk at the crime scene and the suspect for the arson and two counts of mischief
that was done to Nugent. Furthermore, Dr Tintin’s evidence would be under direct evidence
under Section 60(1)(d) of the Evidence Act 1950, in which the evidence is made by an
expert. This shall be read together with Section 45 of the Evidence Act 1950. Therefore, the
fingerprint identification that place Van-Luyk as the suspect and was there at the scene by Dr
Tintin is relevant and admissible as Dr Tintin is considered as an expert on fingerprint profiling
that would assist the court to identify the suspect of the crime.

Hence, by virtue of Section 9 of the Evidence Act 1950, Dr Tintin’s identification on

the lighter would be relevant and admissible. However, it shall be noted that as for the cigarette
butt it not relevant and admissible since the cigarette butt was drenched and was tampered
with water.

The seventh issue is whether Destinee’s testimony is relevant and admissible to

establish a motive under Section 8 of the Evidence Act 1950.

Based on the facts given, Destinee testified that she began dating Van-Luyk when they
both worked at McDonald's in 2013. Destinee added that for the duration of their 8 months
relationship, she and Van-Luyk saw each other almost daily. Destinee and Van-Luyk broke up
in March 2016. It was a bitter clash and there was discord for the next two or three weeks.

Section 8(1) of the Evidence Act 1950 states that any evidence as to motive is
relevant, and thus, admissible. According to R v Steane, motive refers to a “reason” or “why
a person does a particular act”. in Dato Moktar Hashim v PP affirmed that the proof of motive
is relevant if all the evidence is circumstantial in nature. However, the motive must strictly be
proven by direct evidence, as per the case of Karam Singh v PP. However, according to the
case of Wong Foh Hin v PP, the court clarified that such evidence is admissible because any
facts relevant to prove motive is strong and convincing evidence which have a high degree of
probative value.

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 In applying the law to the present issue, Destinee’s evidence would be deemed
relevant and admissible under Section 8(1) of the Evidence Act 1950, in which the evidence
can establish the motive on why Van-Luyk have committed such crime to Nugent, which is
Destinee’s mother, which is also relevant to point out under Section 9 of the Evidence Act
1950 to show the relation between Nugent and Destinee as mother and daughter. By referring
to the facts, Destinee and Van-Luyk were lovers, and they broke up in March 2016. However,
the breakup was bitter and there was discord for the next two or three weeks. This can identify
the motive of Van-Luyk in committing the crime to Nugent’s vehicle as a revenge to Destinee
for breaking up with him, in which the Destinee’s evidence will prove that the motive is strong
and convincing evidence which have a high degree of probative value as seen in Wong Foh
Hin v PP.

In conclusion, Destinee’s evidence is relevant and admissible under Section 8(1) of

the Evidence Act 1950 as it will establish the motive on why Van-Luyk committed the crimes.

The eighth issue is whether Destinee’s identification of the person in the video as Van-
Luyk is relevant and admissible under section 9 of the Evidence Act 1950.

Moreover, Destinee also testified that she recognised the person in the video as Van-
Luyk by looking at his sweater, his demeanour, and the way he ran.

As discussed earlier, Section 9 of the Evidence Act 1950 states that fact is relevant
if it is to establish the identity of a person or a thing, in which can be done by videotape or
CCTV. According to R v Caldwell & Dixon, the identification of an accused person from CCTV
or video tape were indeed allowed provided that such identification is spontaneous and
independent. However, the production of the CCTV tape falls under the production of
documentary evidence. Hence, it needs to comply with Section 90A of the Evidence Act
1950.

In applying the law to the present issue, Destinee’s evidence would be deemed direct
evidence under Section 60(1)(a) of the Evidence Act 1950 since she saw the video footage
with her eyes. As discussed earlier, the production of CCTV from Nugent’s security camera is
documentary evidence that has complied since Section 90A of the Evidence Act 1950. As
explained earlier, Destinee and Van-Luyk are ex-lovers. This means that both would know
each other mannerism, fashion style and running style. Therefore, Destinee’s identification of
Van-Luyk in the video footage is relevant and admissible under Section 9 of the Evidence
Act 1950 since the identification was made spontaneously by Destinee as seen in R v

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Caldwell & Dixon, in which since Destinee know Van-Luyk mannerism, style and running
style, she would easily recognize Van-Luyk from the video.

In conclusion, Destinee’s identification of Van-Luyk in the video is relevant and

admissible under section 9 of the Evidence Act 1950.

The ninth issue is whether Don’s evidence is relevant and admissible pursuant to
section 6 of the Evidence Act 1950, under the doctrine of res gestae.

Another prosecution witness, Don, who stays two houses apart, testified that he just
reached home from a business trip on the night of March 7, 2017. When he was taking out his
bags from the boot of his car, two men rushed past him. He heard one man said, ‘the fire ain’t
start, Van!!’ Another man responded, ‘Damn the rain...’ Don however did not see who they
are.

Section 6 of the Evidence Act 1950 states that facts are relevant if they are so
connected to the facts in issue, as to form a part of the same transaction. This section relates
to the principle of Res Gestae, which means things done. In the case of Thavanathan
Subramaniam v PP, the court clarified that ‘same transaction’ within the meaning of Section
6 of the Evidence Act 1950 is to be decided based on the circumstances of each case, and
the facts must relate to each other by factors such as the proximity of time, proximity of place,
continuity of action, and community of purpose & design. ‘Same Transaction’ in Section 6 of
the Evidence Act 1950 can either be in Direct evidence or Hearsay evidence. As for this
discussion, we will focus on hearsay evidence.

As for Hearsay Evidence, there are two possible approaches, either Strict Approach,
or Liberal Approach, in which we will focus on the Liberal Approach. A more modern concept
of Liberal Approach can be illustrated in Ratten v R whereby the court held that the words
uttered by the wife saying, “Get me the police, please” before the line got disconnected and
she was shot dead, could indeed be satisfy res gestae, because it was closely associated with
time and place of the shooting and was made spontaneously under an overwhelming
pressure. In Malaysian practice, the judge in PP v Mohd Zahari Embong adopted liberal
approach and accepted hearsay evidence of the witness who merely repeated the accused’s
statement confirming that the wife beat all their children to death, and he killed his wife without
any intention.

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 In applying the law to the present issue, Don’s evidence would be deemed as hearsay
evidence since Don only heard what the two men were saying but he did not saw who they
are. Generally, hearsay evidence would be deemed inadmissible. Nevertheless, Don’s
evidence would be relevant and admissible under Section 6 of the Evidence Act 1950 as it
connects to the facts in issue which is the mischief caused by Van-Luyk to Nugent’s car on 7th
March 2017 as to form a part of the same transaction. Since Don’s evidence is hearsay
evidence, by virtue of the liberal approach in Ratten v R, whereby the time factor is not strict.
In applying the case of Ratten v R, Don’s evidence that he heard one man said, ‘the fire ain’t
start, Van!!’ Another man responded, ‘Damn the rain...’is closely associated with the time and
place of the mischief and it was made spontaneously by these two men. Moreover, in applying
PP v Mohd Zahari Embong when one of the men said the name of Van in his statement, it
means that self-incriminatory statement was done in which when it was repeated by Don, it is
relevant and admissible under Section 6 of the Evidence Act 1950.

In conclusion, Don’s evidence is relevant and admissible under Section 6 of the

Evidence Act 1950.

The tenth issue is whether Inspector Campbell’s evidence that was found at the Shell
Petrol Station is relevant and admissible.

Furthermore, Inspector Campbell went to the neighbourhood gas stations. He located

video footage from a Shell Petrol Station located 1km away from Nugent house which captured
Van-Luyk and Ramore at the gas pump. The receipt for the gas purchase reflected a time of
1:41 am.

Section 8(1) of the Evidence Act 1950 allow the evidence of the act of preparation
relevant to the facts in issue to be tendered before the court. “Preparation” is defined in
Lakshmi Prasad v Emperor as devising or arranging means necessary for the commission
of an offence as opposed to an attempt, which is a direct movement towards the commission
after the preparation are made. For example, in illustration (c) of Section 8, the fact that A
procured a poison, like the one that was administered to B is relevant as to show preparation.

In applying the law to the present issue, by virtue of Section 9 of the Evidence Act
1950, Inspector Campbell’s identification is relevant and admissible as it was done through
the CCTV footage at the Shell Petrol Station in which he captured Van-Luyk and Ramore at
the gas pump at the footage. Furthermore, as per Section 9 of the Evidence Act 1950,
Inspector Campbell’s evidence is relevant and admissible as it establishes the fact that show

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the time and place in which the mischief occurred. This is because as per the receipt for the
gas purchase reflected a time of 1:41 am and the fact that the Shell Petrol Station located 1km
away from Nugent house. This because as per the CCTV footage from Nugent security
camera, the mischief occurred 19 minutes after Van-Luyk and Ramore was spotted at the
Shell Petrol Station. Furthermore, by applying Section 8(1) of the Evidence Act 1950, the
fact that Van-Luyk and Ramore was spotted at a Shell Petrol Station located 1km away from
Nugent house shows that there was an act of preparation to commit the mischief to Nugent’s
car. The assumption is that Van-Luyk and Ramore was at the Shell Petrol Station to fill
gasoline to a gas can so that it can be used to pour the oil to Nugent’s car, in which by applying
the case of Lakshmi Prasad v Emperor, after the preparation made by Van-Luyk and
Ramore, they went and pour the gasoline to Nugent’s car and attempted to commit the
mischief but failed due to rain.

In conclusion, by virtue of Section 8(1) of the Evidence Act 1950 and Section 9 of
the Evidence Act 1950, Inspector Campbell’s evidence that was found at the Shell Petrol
Station is relevant and admissible.

The eleventh issue is whether Ramore’s evidence is relevant and admissible.

Ramore were brought to the police station for interrogation three days after the arson.
He related to Inspector Campbell the incidents that happened on the night of March 7, 2017.
Ramore claimed that Van-Luyk requested for him to be on a lookout when Van-Luyk wanted
to ‘pay Destinee back’. Ramore negotiated with the police and agree to give evidence for the
Prosecution.

Section 133 of the Evidence Act 1950 states that an accomplice shall be a competent
witness against an accused person, and a conviction is not illegal simply because it is based
on the uncorroborated testimony of an accomplice. Furthermore, under Section 114 of the
Evidence Act of 1950, the court may presume the existence of any fact that it believes is
likely to have occurred in relation to the facts of the case, based on the common course of
natural events, human conduct, and public and private business. To illustrate, illustration b
of Section 114 of the Evidence Act 1950 states that unless an accomplice is corroborated
in material particulars, the court may presume that he is unworthy of credit.

Furthermore, Section 8(1) of the Evidence Act 1950 states that any evidence as to
motive is relevant, and thus, admissible. According to R v Steane, motive refers to a “reason”
or “why a person does a particular act”. In Dato Moktar Hashim v PP affirmed that the proof

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of motive is relevant if all the evidence is circumstantial in nature. However, the motive must
strictly be proven by direct evidence, as per the case of Karam Singh v PP. However,
according to the case of Wong Foh Hin v PP, the court clarified that such evidence is
admissible because any facts relevant to prove motive is strong & convincing evidence which
have a high degree of probative value.

In applying the law to the present issue, Ramore’s evidence would be direct evidence
under Section 60(1)(a) and (b) of the Evidence Act 1950 as Ramore was present at the
crime scene in the very beginning. This is because based on the facts of given, on 7th of March
2017, he was with Van-Luyk where the crime happened as he was asked to be on a lookout,
and he also heard that Van-Luyk said that he wanted to ‘‘pay Destinee back’. It shall be noted,
under Section 114 of the Evidence Act 1950, Ramore may be presumed by the court that he
is unworthy of credit unless there is corroborative evidence that Ramore was present at the
crime scene. However, this can be rebutted as the evidence of identification of Ramore by
Inspector Campbell via the video footage from Nugent’s security camera and the video footage
that was found at the Shell Petrol Station has identified Ramore at the crime scene with Van-
Luyk. Moreover, under Section 133 of the Evidence Act 1950, since Ramore is an accomplice
in Van-Luyk’s crime, he shall be a competent witness against Van-Luyk.

Furthermore, it shall be noted, since Ramore heard that Van-Luyk said that he wanted
to ‘‘pay Destinee back’, his evidence is relevant and admissible under Section 8(1) of the
Evidence Act 1950 as it can give evidence of motive that Van-Luyk committed the crime as a
revenge to Destinee for breaking up him. Moreover, this evidence can also be corroborative
evidence to Destinee’s evidence in which the in Destinee’s evidence, due to the bitter break-
up, Van-Luyk acted the crime due to revenge for the break-up.

In conclusion, by referring to Section 133 of the Evidence Act 1950, eventhough

Ramore is an accomplice, he is a competent witness against Van-Luyk. Moreover, by virtue
of Section 8(1) of the Evidence Act 1950, Ramore’s evidence is relevant and admissible as
it will give evidence of motive on why Van-Luyk committed the crime.

The twelfth issue is whether Van-Luyk’s confession to Magistrate Wamy is relevant

and admissible.

Based on the facts given, the next day, Van-Luyk was brought to the police station. He
was interrogated by Inspector Campbell for a straight 10 hours which ends at 2am. Then, at

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10 am, Van-Lyuk was brought to see Magistrate Wamy. Van-Lyuk confessed on the arson of
the Chevrolet.

Under section 17(2) of the Evidence Act 1950, a confession is an admission made
at any time by a person accused of an offence, stating, or suggesting in the inference that he
committed the offence. Hence, for a confession of a person to be admissible, it must first be
established that it comes from a person who has been accused of an offence, and second,
the confession refers to an admission of guilt about a crime committed by the accused.
Voluntariness under section 24 of the Evidence Act 1950 is a prerequisite before it can be
admissible. By virtue of Dato’ Mokhtar bin Hashim & Anor v PP, “voluntary” means the
statement has not been obtained by fear, prejudice or hope of advantage held out by a person
in authority. Also, a confession is regarded as voluntary if no threat, oppression, promise or
inducement (TOPI) is in existence, as per section 24 of the Evidence Act.

Section 24 of the Evidence Act 1950 has four prerequisites which must be satisfied.
First, a confession is regarded as being made involuntarily and held inadmissible if it appears
to the court that it has been obtained from the accused through an inducement, threat, or
promise. Where the interrogation has been carried out at unusual hours and for long hours
and with the accused's hands handcuffed to the back, it is accepted as oppressive. In Lim Kim
Tat v PP, the statement was taken after questioning the accused for four nights in a row and
he had not had sufficient sleep, it was held that the confession was obtained under oppression.

Second, the TOPI comes from a person in authority. Based on R v AB, a person in
authority refers to persons who are ordinarily engaged in the arrest, detention, examination,
or prosecution of the accused. Third, the TOPI must have reference to the charge against the
accused. Fourth, the TOPI, in the opinion of the court, gives the accused person grounds
which would appear to him reasonable for supposing that by making a confession, he would
gain an advantage or avoid any evil of a temporal nature in the proceeding against him. By
this, it means that the accused honestly believes that he will gain an advantage or avoid a
dreadful outcome if he confesses voluntarily.

Section 26 of the Evidence Act 1950 does not admit a confession obtained from the
accused while he was in police custody unless other written law provides for it, or where it is
made in the immediate presence of a Session Court Judge or Magistrate. This is considered
as a procedural safeguard for the accused person. In PP v Nomezam Apandy bin Abu
Hasan, a confession was recorded by the magistrate following an extensive inquiry into why
the accused chose to confess. The magistrate has also warned the accused that the charge

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carried a death penalty. The issue was that the magistrate had not complied with section 115
of the Criminal Procedure Code which provides for the procedural mechanism and the mode
of recording. It was held that where the procedural requirement is remediable by calling the
magistrate to testify, the confession is deemed to have been made voluntarily. Although
section 115 of the CPC has been deleted, it remains as a practice of the court.

In applying the law to the present issue, the confession that was made by Van-Luyk to
Inspector Campbell was not relevant and admissible as the confession had failed the four
prerequisites under Section 24 of the Evidence Act 1950. This because the confession was
made involuntarily since there was an existence of inducement. Firstly, as seen Lim Kim Tat
v PP, the interrogation was oppressive as Van-Luyk was interrogated by Inspector Campbell
for a straight 10 hours which ends at 2am. Secondly, the inducement comes from Inspector
Campbell who is a person in authority as it satisfies the requirement under R v AB. Thirdly,
the inducement for the confession is the for the charge of arson two counts of mischief.
Fourthly, the inducement has made Van-Luyk to believe that he will gain an advantage or
avoid a dreadful outcome if he confesses voluntarily in which he thought that he could get a
lesser sentence or more time to rest so that he can think before confessing to Magistrate
Wamy.

In applying Section 26 of the Evidence Act 1950, the confession that was made by
Van-Luyk to Magistrate Wamy is relevant as the section specifically states that a confession
from the accused while he was in police custody is not admissible unless other written law
provides for it, or where it is made in the immediate presence of a Session Court Judge or
Magistrate. However, it shall be noted the such confession made by Van-Luyk to Magistrate
Wamy is not relevant and admissible since the removal of impression by inducement under
Section 28 of the Evidence Act 1950 is not fulfilled. This is because, the eight hours gap
from the confession at the police custody and at the Magistrate is not sufficient for Van-Luyk
to remove the trauma and exhaustion from the continuous interrogation made by Inspector
Campbell.

Hence, the confession made by Van-Luyk to Magistrate Wamy is not relevant and
admissible as it fails to fulfil Section 28 of the Evidence Act 1950 as there was no removal
of impression caused by the inducement.

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