450
Malayan Law Journal
[2010] 4 MLJ
Words addressed to others, and writing, are no doubt the most usual forms; but
words uttered in soliloquy seem equally receivable.
A
We also find the following passage in Phipson on Evidence (7th Ed). At p 262:
A statement which the prisoner had been overhead muttering to himself, if
otherwise than in his sleep, is admissible against him, if independently proved.
Further reference may be made to Wigmore on Evidence Vol IV 1048 (at p 3) as
follows:
The theory of the hearsay rule that an extra-judicial assertion is excluded unless
there has been sufficient opportunity to test the grounds of assertion and the
credit of the witness by cross-examination by the party against whom it is
offered, eg if Jones had said out of court: ‘The party-opponent Smith borrowed
this fifty dollars’, Smith is entitled to an opportunity to cross-examine Jones
upon that assertion. But if it is Smith himself who said out of court, ‘I borrowed
this fifty dollars,’ certainly Smith cannot complain of lack of opportunity to
cross-examine himself because his assertion is admitted against him. Such a
request would be absurd. Hence, the objection of the hearsay rule falls away,
because the very basis of the rule is lacking, viz the need and prudence of
affording an opportunity of cross-examination.
B
C
D
E
[28] In this appeal the second appellant had responded to certain questions
posed to him by SP17. The responses reflected that he has knowledge of
events that transpired earlier on. The defence has attempted to detract the
evidence by suggesting that SP17 is not a credible as it is averred that he may
bear some grudge against the second appellant. If so, then it is not in
consonance with this fact that he responded to give the second appellant
assistance by fetching him at the Shell petrol station.
G
[29] In contrast reference to the evidence of the first appellant is described
as ‘highly suspect’ (RR Vol 2(8) p 2764). After appraising the defence version
of the first appellant (RR Vol 2(8) p 2763) the HC judge summarised up as
follows:
H
The defence of the first accused, in a nutshell, is one of a total denial of the
commission of the offence charged, and that he was never inside the house of the
deceased at the time the deceased was assaulted. If anyone was inside the house at
the time of the murder, it was the 3rd child and her boyfriend, one mysterious
Ivan. The first accused testified:
Apa yang saya ingin memberitahu Mahkamah bahawa saya tidak pernah
membunuh orang tetapi apa yang saya silap buat dalam kes ini iaitu membawa
teman wanita saya untuk melarikan diri dari rumah.
F
I
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