Dying Declaration is admissible under Section 32(a) of Evidence Act 1950. It must be proved to have been made by the deceased, must narrate the cause and circumstances of his death (PP v Mohd Jamil bin Yahya & Anor). If the declarant survives, the statement is not relavant as a dying declaration but it may be relied on under Section 157, to corroborate his testimony when examined.
Although it is admissible, it is a weak type of evidence because:
(a) It is not made on oath;
(b) It is not subject to cross-examination;
(c) It is made in the absence of the accused; and
(d) There is no peril of the prosecution for perjury.
The rational for admitting dying declaration is laid down in R v Woodcock as:
(a) They are declarations made in extremity, when the party is at the point of death,
and when every hope of this world is gone;
(b) Every motive to falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth;
(c) A situation so solemn and so awful is considered by law as creating an obligation
equal to that which is imposed by positive oath administered in a court of justice.
A dying declaration may be made:
(a) To anyone: police officer, magistrate or private person; and
(b) In any form: written or oral. If written, it is proved by examining a person who
recorded it. If oral, it is proved by examining some person, who was present at the
time and heard the statement being made.
Under English Law, the declarant must have been:
(a) In actual danger of immediate death, at the time of making the declaration;
(b) Fully aware of his danger;
(c) Must have died subsequently.
Below are the differences between the English Law and Malaysian law in Dying Declaration:
English Law
(i) Dying declaration is admissible only in criminal case, and that only in the prosecution
for murder of the deceased.
(ii) Dying declaration is admissible only when there are expectation, knowledge and
death
Malaysian Law
(i) Dying Declaration is admissible in any case whether civil or criminal.
(ii) Dying Declaration is admissible when the cause of death is in question. Expectation
and knowledge are not essen
I would also like to add that dying declaration is the exception to hearsay evidence and it is admissible in the court. However, it must be made contemporaneous and spontaneous after the event. Generally, a dying person is presume to tell the truth. However, the admissibility of dying declaration must be done with utmost caution and it is still subject to adverse inferences. In the case of Mohammad bin Allapitchay, the defense raised the issues on identification because the environment is very dark when the event occurred.Hence, the defense counsel can raise the question that the person seen by the deceased person is not the accused.
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