Dying Declaration originated from a legal maxim "nemo moriturus praesumitur mentire", that is a man will not meet his maker with a lie in his mouth.
Hearsay evidence is not admissible in court. However, dying declaration is an exception to this rule and its admissibility is explained in Section 32 of the Evidence Act 1950.
The section states that the statements can be made either in written or verbal, by a person:
Hearsay evidence is not admissible in court. However, dying declaration is an exception to this rule and its admissibility is explained in Section 32 of the Evidence Act 1950.
The section states that the statements can be made either in written or verbal, 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, which under the circumstances of the case, appears to the court unreasonable.
In must be noted that the law laid down in Section 32 is different from English common law relating to dying declaration.
Dying Declaration Under Section 32 of the Evidence Act
Dying Declarations Under English Common Law
Dying Declaration Under Section 32 of the Evidence Act
- It must either relate to the cause of the maker's death or to the circumstances which led to his death.
- The person who made the statement was or was not at the time the statement was made under expectation of death.
- The statement is admissible in any case in which the death of the maker of the statement is in question.
- Apply to both civil and criminal proceedings.
Dying Declarations Under English Common Law
- It must relate exclusively to the cause of death itself.
- The person who made the statement must at the time of the statement was made under expectation of death.
- The statement is admissible in homicide cases (murder and manslaughter) only.
General Principles Relating to the Admissibility of Dying Declarations
- A dying declaration need not be proved by writing at all. However, the exact words spoken by the deceased must be given. (per Rose CJ in Toh Lai Heng v R [1961] ML 53)
- Where a dying declaration is made in answer to questions, then the questions should be recorded. If this is not done, the value of the deposition may fairly be questioned. (per Briggs Ag J in Naranjan Singh v PP [1949] MLJ 122)
- The statement must be formally proved. It cannot be proved merely by the production of the document; it must shown affirmatively that the document accurately represents what the deceased said. (per Briggs Ag J in Naranjan Singh v PP [1949] MLJ 122)
- Dying declaration is not a statement made on oath and which had not been submitted to the test of cross-examination. (per Whyatt CJ in Mohamed bin Allapitchay & Ors v R [1958] MLJ 197)
- It is essential for the court to assess the credibility of the deceased before relying on the statement made by him. (per thomson CJ in Chan Phuat Khoon v PP [1962] MLJ 127)
- Non-production of a dying declaration by the prosecution is fatal. (per Ong Hock Thye FJ in Chow Siew Woh v PP [1967] 1 MLJ 228)
- A dying declaration does not require any corroboration. (per Hill JA in Mary Shim v PP [1962] MLJ 132)
Besides, Section 32(1)(b) mentions the statements must have been made in the course of business. This paragraph is confined in its operation to a statement which is based on the personal knowledge of its maker. Hence, only first-hand hearsay is admissible (refer the High Court case of Allied Bank Bhd v Yau Jiok Hua [1998] 6 MLJ 1). Also, in order to dispense with the attendance of the maker the entry must not contain any expression of opinion (per Winslow J in Vaynar Suppiah & Sons v KMA Abdul Rahim & Anor [1974] 2 MLJ 183).
As in the case of a dying declaration, the evidentiary value of a statement may be reduced in the absence of cross-examination of the make of the statement. However, it was held by the Supreme Court in Ng Yiu Kwok & Ors v PP [1989] 3 MLJ 166 that since the entries are made in the course of business, there is a presumption that they had been made with a disinterested motive and can be taken to be generally true.
As in the case of a dying declaration, the evidentiary value of a statement may be reduced in the absence of cross-examination of the make of the statement. However, it was held by the Supreme Court in Ng Yiu Kwok & Ors v PP [1989] 3 MLJ 166 that since the entries are made in the course of business, there is a presumption that they had been made with a disinterested motive and can be taken to be generally true.
On the other hand, in order to be admissible, the statement must be against pecuniary or proprietary interest of the maker; or it must contain some wrongdoing, negligent or reckless conduct on part of the maker. The rationale of admitting a statement against the interest of the person making it is that a person is not likely to make a statement against his own interest (per Lord Buckmaster in Dal Bahadur v Bijal Bahadur AIR [1930] PC 79).
Application of the Section 32
Application of the Section 32
- A statement is relevant only if it falls within the scope of 1(a) until (j) of the section (per Edgar Joseph Jr J in Kee Lik Tian v PP [1984] 1 MLJ 306).
- The issue for determination is the admissibility of a statement under the section and the weight to be attached to it (per KC Vohrah J in PP v Mohd Jamil bin Yahya & Anor [1993] 3 MLJ 702).
- Evidence must be adduced to show why a witness could not give evidence and the mere fact that the witness is in foreign country is not sufficient to invoke the aid of the section to tender a statement made by him (per Winslow J in Vaynar Suppiah & Sons v KMA Abdul Rahim & Anor [1974] 2 MLJ 183).
- Where evidence adduced was insufficient to render a statement admissible under 1(i) (per Wahab Patail J in PP v Chow Kam Meng [2001] 7 CLJ 38).
Written by: A132900
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