Devandran a/l Appu v Public Prosecutor and Another Appeal [2020] MLJU 2148

Case Review: Devandran a/l Appu v Public Prosecutor and Another Appeal [2020] MLJU 2148

Court: Court of Appeal (Putrajaya)

Judges: Yaakob Md Sam, Hadhariah Syed Ismail and Nordin Hassan JJCA

Date of Judgement: 1st September 2020

Topic: Exception to Hearsay Evidence – Dying Declaration

Facts

1.     The Appellant, Devandran a/l Appu was tried at the Penang High Court and was found guilty for the offences of –

Section 302 of Penal Code

Punishment for Murder

302. Whoever commits murder shall be punished with death.

Section 307 (1) of Penal Code

Attempt to murder

307. (1) Whoever does any act with such intention or knowledge and under such circumstances, that if he by that act caused death he would be guilty of murder, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable to imprisonment for a term which may extend to twenty years.

2.     Dissatisfied with the outcome of the proceeding, the Appellant appealed against the High Court’s decision and brought the matter to the Court of Appeal.

3.     As a matter of fact, the deceased and his wife (SP10), who were both in the living room of their house, were attacked by two men who stopped by in front of their house at around 10.40 p.m. on 2nd June of 2014.

4.     The unidentified pillion (later known as the Appellant), who was wearing a black helmet with visor came down from the motorcycle, climbed over the locked fence and entered the car porch with a “parang” before breaking the windshield of a car parked in that porch.

5.     Subsequently, he retreated to the motorcycle to get a bottle of Tiger Beer, which SP10 testified it reek like petrol and returned to the deceased and SP10 who were standing inside the house and was separated from the Appellant by the grill.

6.     At that moment, the pillion had opened his visor.  Since the lighting of the porch was bright and the distance between the pillion and the deceased and SP10 was very close, SP10 could eventually recognize the pillion as the Appellant, who is known as “Munish” or “Devandran” (his real name), someone that she has known for around eight to nine years prior to this incident.

7.     The Appellant later lit the Tiger Beer bottle with a lighter and caused the fire.  The Appellant then threw the Tiger Beer bottle towards SP10 and the deceased, which later on poured the content of the bottle towards them and thereby causing their faces, necks and hands to suffer a serious burn.

8.     After the incident, all the three sons of the deceased and SP10 arrived at their house.  SP10 testified that the deceased was still able to speak although he was suffering from the burns.

9.     In front of SP10 and their sons, the deceased uttered “Munish yang buat terbakar ini”.  The deceased was later taken to Hospital Bukit Mertajam together with SP10 before being transferred to Hospital Pulau Pinang.

10.  However, he passed away a week later and the cause of death was confirmed due to severe second-degree burns.  The Appellant was therefore charged in the High Court for two offences under Section 302 and Section 307(1) of the Penal Code respectively and was convicted for both offences.

11.  The Appellant however, appealed to the Court of Appeal on one ground of evidence, namely on the wrong admission of dying declaration.

12.  The Appellant submitted that the dying declaration was wrongly admitted without caution and observation of laws on its admissibility as the trial judge failed to remind himself that the evidence was not made under oath nor was it tested by cross-examination.

13.  Secondly, the statement “Munish yang buat terbakar ini” was not in actual words uttered by the deceased bearing the fact that Malay language was not his and SP10’s mother tongue.

14.  Third, the trial judge did not apply his mind as to whether the deceased had spoken the truth or not and simply admitted the dying declaration as evidence under Section 32(1)(a) of Evidence Act 1950 (“Act 56”).

15.  Lastly, the Appellant contended that adverse inference under Section 114(g) of Act 56 should have been invoked by the trial judge when none of the deceased’s sons, who were alleged to have heard the dying declaration, were called to give evidence.

Issue 1.     Whether the trial judge has erred on facts and law when admitting the ‘dying declaration’ of the deceased?
 

Ratios

1.     In deciding the issue, the Court referred to Section 32(1)(a) of Act 56 which governs the admissibility of dying declaration as one of the exceptions to hearsay evidence. The section reads as follows:

“32(1) Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases:

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such a statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

2.     Apart from the above provision, the Court of Appeal also referred to some cases which established the principles of dying declaration.  Nevertheless, it can be seen that there were not many cases referred to by the Court.

3.     First, the Court of Appeal referred to the case of Mohamed bin Allapitchay & Ors v Reg [1958] 1 ML J 197 particularly in deliberating the failure of the trial judge to caution himself that the dying declaration was not given under oath or subjected to cross-examination thus caused miscarriage of justice to the appellant.

4.     Secondly, the Court of Appeal also made reference to Singapore’s case of Toh Lai Heng v Regina [1961] 27 MLJ 53 whereby the Singapore Court of Appeal laid down the principle of dying declaration which requires the actual words of the deceased to be recorded.

5.     In this aspect, there was only one recent case referred to by the judges in the judgement, namely the case of Murugan a/l Krishnan lwn Pendakwa Raya dan satu lagi rayuan [2018] ML JU 15 which follows the principle in Mohamed bin Allapitchay & Ors v Reg [1958] 1 ML J 197 on the requirement of caution.

6.     In light to this matter, the Court of Appeal applied the correct provision of Section 32(1)(a) of Act 56 to discuss the issue of dying declaration and to decide that the alleged statements uttered by the victim witnessed by SP10 should not be admissible as evidence under the same provision.

7.     The High Court in this case did not provide any explanation as to the reception of the principles laid down in its referred cases.  The Court of Appeal believe that the High Court could have mentioned in clear voice the three requirements for the admissibility of dying declaration, namely the “Ipsissima Verbal Rule”, caution and capacity to testify together with cases which reflect the application of these requirements and relate it back to the facts of the present case.

8.     Other than that, despite the fact that the dying declaration falls under one of the exceptions of hearsay evidence, there was nothing mentioned in the case in regard to this matter. To iterate the final findings of the Court of Appeal, it has been justified that the statement was hearsay evidence and only then the Court of Appeal proceed to decide on its admissibility.

Decision

1.    The Court of Appeal agreed with the Appellant’s counsel on all four submissions that the dying declaration was wrongly admitted mainly because the learned trial judge had taken a simplistic approach in admitting it without considering the law and its effect which is prejudicial to the appellant.

2.    However, the Court maintained the finding of the High Court which found the Appellant liable as the testimony from SP10 was strong enough to stay on its own even without being supported by the dying declaration.

Key Take Away

1.     In hearsay evidence, it is of general rule that such would not be admitted as evidence under Malaysian Evidence Act 1950.  According to Section 60 of that Act 56, it implies that all oral evidence must be direct in order for it to be admissible.  A statement is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.

2.     However, hearsay statement can be admitted as evidence where it was made exceptions under Section 32 of the same Act. It shall be established that the maker of the statement falls under any one of the four categories of persons proven to be absent.  Since the maker of statement falls under a person who is dead, the evidence must then be tendered under the exceptions in Section 32 of such Act.

3.     Section 32(1)(a) of Act 56 also states that under common law ‘dying declaration’, it must relate only to the death of the maker of the statement.  Thus, for it to be admissible, it must have been made after the expectation of death is met.

4.     It is undeniable that both leading cases coupled with the relevant provision of Section 32(1)(a) of Act 56 cited and referred to by the Court were indeed necessary to this issue in establishing the rationale behind not admitting dying declaration evidence.

5.     To elaborate further, pursuant to the same Section 32(1)(a) of Act 56, the statement must firstly, be made by the victim who is a dead person either as to the cause of his death or circumstances of the transaction which resulted in the death.

6.     However, the Court in this case could have been additionally included the second condition apart from the one aforementioned in the judgement, the case of Yong Kong Tai v Salim Jalal [1997] 2 MLJ 380 where the Court provided the second condition is that the witness must not summarize what was spoken by the deceased but must give word for word as given by the dying person.

7.     In the current case, it was submitted that the deceased could not possibly have uttered “Munish yang buat terbakar ini” for the reason that if such a dying declaration was indeed uttered by the deceased, it must have been uttered in Tamil.

8.     Therefore, it was submitted that the words “Munish yang buat terbakar ini” were not the actual words uttered by the deceased and ought not to be admitted under Section 32 (1)(a) of Act 56.

9.     It is important to take into consideration that both of the victims or deceased’s mother tongue in these cases were the language of Tamil. Hence, the only condition for the witnesses in proving the alleged dying declaration is to repeat the exact word uttered by the deceased.

10.  Even though it could be understood that the witnesses might translate what was uttered by the deceased to ease the understanding of the Court, the Courts in both cases had taken a strict approach which indirectly shows that the translation could have been provided only by the Court interpreter and not the witnesses.

11.  Therefore, to conclude, the Court decided that the alleged statement made by the deceased to SP10 in the current case is irrelevant and should not be admissible as evidence pursuant to Section 32(1)(a) of Act 56. It is believed that if the Court of Appeal did not have any stronger evidence that stands alone without the dying declaration, the accused conviction could have been appealed successfully.

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