Balan Subramaniam a/l Ponnudurai v Public Prosecutor and another appeal [2013] 6 MLJ 306

Balan Subramaniam a/l Ponnudurai v Public Prosecutor and another appeal [2013] 6 MLJ 306

Court of Appeal (Putrajaya)

The Admissibility of Dying Declaration as Evidence

1.    The Appellant was convicted and sentenced to death by the High Court for murdering his wife (‘Angeladevi’) by dousing her with petrol and setting her ablaze at their home.

2.    He was acquitted and discharged of murdering his daughter, Anuradha, and of attempting to murder another daughter, Malini, in the same manner at the same time and place.

3.    The Appellant’s instant appeal against conviction and sentence was met by the prosecution’s cross-appeal against the acquittal and discharge on the two charges concerning his daughters.

4.    The Appellant’s neighbours testified during the trial that they rushed out of their homes on hearing screams and saw the Appellant’s house on fire. They saw Angeladevi and her daughters running out of the house, their bodies ablaze.

5.    They also saw one of the Appellant’s two cars speeding away from the scene but they were unable to verify who the driver was. Malini, the less seriously injured of the three, managed to jump out of a window of a room she was trapped in.

6.    She sustained burns on both forearms and left thigh. Angeladevi and Anuradha, who were then in the living room, were seriously injured.

7.    Angeladevi sustained 90% burns on her body and died of shock at the hospital while Anuradha suffered 30% burns and died of septicaemia with multi-organ failure.

8.    Before her death, Angeladevi had allegedly told her attending doctor, PW21, that it was her husband who had set fire on her.

9.    Anuradha had also given a statement (‘ID60’) to the police that the Appellant came home drunk, threatened to burn them and subsequently came into the living room with a jug of petrol and a lighted newspaper and threw the articles on them.

10.  The High Court admitted Angeladevi’s dying declaration holding that the medical evidence showed she was able to speak; that there was no reason for PW21 to concoct the statement and that there was no apparent reason why Angeladevi would falsely accuse her husband.

11.  However, the evidence from  Anuradha was not admitted as the trial judge ruled it was unsafe to do so as there was no medical evidence to establish that Anuradha was mentally fit when she made the statement.

12.  Malini’s testimony in court contradicted her statement to police about the incident in material respects and the prosecution was allowed to impeach her credibility.

13.  However, the trial court did not rule that her credit was impeached but that her evidence was unreliable and had to be treated with caution.

14.  In the instant appeal, the Appellant contended that the circumstantial evidence against him was weak; that Angeladevi’s dying declaration should not have been admitted as there was no medical evidence of her state of mind given her grievous condition; and that the statement was raised by PW21 for the first time in court without any contemporaneous document to support the fact that it was made.

1.    Whether the learned trial judge was right in admitting the oral statement of Angeladevi to Dr Setow Hoo (‘PW 21’) as a dying declaration.

2.    Whether the judge was right in not admitting Aduradha’s Section 112 of the Criminal Procedure Code (Act 593) statement (‘ID60’) recorded by ASP Zahiri bin Hassan (‘PW23’) as evidence.

1.   Whether the learned trial judge was right in admitting the oral statement of Angeladevi to Dr Setow Hoo (‘PW 21’) as a dying declaration.

(a)   Dr Setow Hoo (‘PW21’) testified to having attended to Angeladevi on 11 October 2004. Her condition was serious. Angeladevi sustained 80% full thickness burns to her whole face, entire arterial aspect of her chest and to both her arms and lower limbs. She also had difficulty in breathing but was conscious.

(b)   In his oral testimony in court, PW21 testified that when he attended to Angeladevi, she told him that her husband was the person who had set her on fire (‘Beliau beritahu saya suami yang membakar dia’).

(c)   PW21 made known about of such a statement being made to him by Angeladevi for the first time when he was giving evidence in court. However, this statement was not supported by any contemporaneous document.

(d)   The learned trial judge admitted Angeladevi’s oral statement to PW21 as a dying declaration under Section 32(1)(a) of the Evidence Act 1950 (Act 65) and gave due weight to this statement.

(e)   Although Angeladevi’s condition upon admission to hospital was serious as testified by the doctors who had attended to her, the judge was satisfied based on the medical evidence before him that Angeladevi was conscious and able to speak.

(f)     The learned judge ruled that the exact words were uttered by Angeladevi. The words uttered by Angeladevi identified the person who caused the fire arising from which she sustained the 90% burnt injuries arising from which she subsequently died.

(g)   According to the Court, the statement made by Angeladevi to PW21 was rightly admitted by the trial judge as a dying declaration under Section 32(1)(a) of Act 65.

(h)   The medical evidence shows that Angeladevi, despite sustaining the severe burn injuries which she did, was conscious, able to speak to the doctors who had attended to her and lucid enough to make the dying declaration which she did.

(i)     Therefore, the Court was in agreement with the learned trial judge that PW21 is an independent witness who had no reason to concoct such evidence.

(j)     To conclude, the Court decided that what been told by Angeladevi to PW21 that her husband (ie the Appellant) was the person who had set her on fire is certainly a material evidence as it relates to the circumstances how she sustained the burn injuries which she did, arising from which she subsequently died.

2.    Whether the judge was right in not admitting Aduradha’s Section 112 of Act 593 statement (‘ID60’) recorded by ASP Zahiri bin Hassan (‘PW23’) as evidence.

(a)   Anuradha was attended by two doctors, Dr Setow Hoo (“PW21”) and Dr Lim Kwang Yang (‘PW20’). PW21 attended to Anuradha on 12 October 2004 between 12 midnight to 1am.

(b)   PW21 agreed in cross-examination that given the fact that the burn injuries sustained by Anuradha and the treatment she was given, it would have been difficult but not impossible for Anuradha to give a statement to the police while she was in the burn unit.

(c)   Anuradha would have been unconscious at any one time and drifting in and out of consciousness while medication was administered to her.

(d)   PW20 also testified to having administered Anuradha with pethidine to sedate her which could cause drowsiness in view of the condition she was in.

(e)   Therefore, he could not say for certain whether the patient was able to fully and normally converse with anyone.

(f)     To prove that the Appellant was the person who poured petrol on his wife and daughter and setting them ablaze, the prosecution attempted to have ID60, Anuradha’s statement recorded by ASP Zahiri bin Hassan (‘PW23’) under Section 112 of Act 593 admitted pursuant to Section 32(1)(a) of Act 65 as an exhibit.

(g)   In ID60, Anuradha related what the Appellant did and said, his threat to burn her and her mother, the lighting of a match, the burning of newspaper, then the pouring of petrol over her mother and her, resulting in the house being on fire, and her sustaining the serious burn injuries as described by the doctors arising from which she died.

(h)   However, the learned trial judge ruled that it was unsafe to admit ID60 as an exhibit by reason of the absence of medical evidence confirming that Anuradha was in a fit condition to make such a statement.

(i)     The Court decided that the trial judge had erred in ruling   the non-admission of Anuradha’s statement (‘ID60’) recorded by PW23.

(j)     The Court further affirmed that ID60 should have been admitted as a dying declaration under Section 32(1)(a) of Act 65 and marked as an exhibit as it relates to the cause of Anuradha’s death or circumstances of the transaction which resulted in her death.

Key Take Away

1.    Despite the general rule of hearsay evidence in which does not allow the admission of a document or a statement made by a person who does not testify in court so to prove the fact that it was made by oral evidence, there are few exceptions may be applicable.

2.    For instance, Section 32(1)(a) of Act 65 covers the exception of hearsay which is known as dying declaration.

3.    A dying declaration is a statement made by a deceased at the time of dying as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death.

4.    Section 32(1)(a) of Act 65 stipulates that any statement made by a person as to the cause of his death, or as to any circumstances of the transaction which resulted in his death in cases in which the cause of that person’s death comes into questions, the statement made is relevant.

5.    Therefore, the court may admit any statement made by a person under expectation of his death or whatever may be the nature of his death in case where his death becomes an issue.