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By Haris Ibrahim
July 6, 2008
Rocky Bru, in an earlier post, took the view that Bala’s SD is ‘based on hearsay, a lot of hearsay’.
In my view, firstly, not quite.
Secondly, it must not be assumed that hearsay is per se inadmissible for all purposes.
Let’s first try to clear up what is hearsay.
Section 60(1), Evidence Act, 1950 provides :
Oral evidence shall in all cases whatever be direct, that is to say -
(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
(c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
Let’s say I brag to Rajraman that I had stolen a pair of jeans from the local mall.
Rajraman now reads that I have been charged with the theft of a pair of jeans and, as is rightly so, feels it his bounden duty to come forward and give evidence as to what he knows.
Would his evidence of what I told him be hearsay?
Well, yes and no.
It would be hearsay and inadmissible if the purpose of the evidence is to prove that I stole the jeans, because Rajraman would not be giving evidence in this regard of what he himself had seen ( see section 60 (1) (a) above ).
It would not be hearsay if the purpose was to prove what was said in the conversation with me ( see section 60 (1) (b) above ). This might amount to circumstantial evidence and, if admitted, its value, if any, would depend on the weight the court gives to such evidence.
However, that would not be the end of the matter.
Look at Bala’s SD, which Howsy has posted HERE .
I’d agree that the following would be hearsay insofar as the truth of what is alleged in these statements go, and would, at best, be admissible to prove that this was what Bala heard in his conversations with the various parties alluded to in these statements.
Para 5 - that ARB received a harassing phone call from a Chinese man calling himself ASP Tan who had threatened him to pay his debts.
Para 7 - that Altantuya Shaaribuu had been given some powers by a Mongolian ‘bomoh’
Para 10 - that Altantuya Shaaribuu was a great liar and good in convincing people. She was supposed to have been very demanding financially
Para 13 - Suras managed to control the situation and had persuaded Altantuya and her two friends to leave the premises. However Altantuya left a note written on some Hotel Malaya note paper, in English, asking Abdul Razak Baginda to call her on her handphone (number given) and wrote down her room number as well
Para 14 - Altantuya had introduced herself to Suras as ‘Aminah’ and had informed Suras she was there to see her boyfriend Abdul Razak Baginda.
Para 15 - These 3 Mongolian girls however returned to Abdul Razak Baginda’s office at the Bangunan Getah Asli, Jalan Ampang again, the next day at about 12.00 noon. They did not enter the building but again informed Suras that they wanted to meet Aminah’s boyfriend, Abdul Razak Baginda.
Para 18 - the 3 Mongolian girls recognized Suras. They become friends with Suras after that and he ended up spending a few nights in their hotel room.
Para 37 - ARB called DSP Musa Safri
Para 39 - ARB had been advised to lodge a police report about the harassment he was receiving from these Mongolian girls.
Para 40 - Amy had sent the same SMS to ARB.
Para 41 - DPS Musa Safri had introduced ARB to one DSP Idris, the head of the Criminal division, Brickfields police station, and that Idris had referred him to ASP Tonny.
Para 48 - Bukit Aman had apparently retrieved the sms message “delay her until my man arrives???from ARB’s handphone.
Para 51 - ARB had sent Datuk Seri Najib Tun Razak an SMS the evening before.
Para 53 - ARB was arrested the same morning at his office in the Bangunan Getah Asli, Jalan Ampang
Except for what Altantuya is supposed to have disclosed to Bala and is narrated in the SD, and which I propose to deal with in another post, the rest of the SD, and in particular that which relates to Bala’s sworn statements relating to the suppression by the police of what he had disclosed whilst in remand, and the fact that the prosecution never touched on these matters during his evidence-in-chief, are all matters well within Bala’s own personal knowledge and which would come within the meaning of direct evidence as described in Section 60 above.
By V. Anbalagan and Sharanjit Singh, New Straits Times
July 5, 2008
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By Malik Imtiaz
Friday July 4, 2008
P Balasubramaniam has made an about turn and released a new statutory declaration. From media reports, it appears that he claims that those parts of his original Statutory Declaration that pertained to the Deputy Prime Minister were made under duress.
He has not been forthcoming with particulars of his purported duress. This is unfortunate as it raises many questions that the Malaysian public is deserving of answers to. As I understand it, the inflicting of duress in law requires the subjecting of a person to the kind of treatment that would leave that person with no doubt that he or someone close to him would be in grave danger, life and limb, unless that person cooperated with the person inflicting duress.
Is Balasubramaniam saying that representatives of Keadilan inflicted duress or that his previous lawyer did? We cannot overlook the statement given by Anwar Ibrahim at the same press conference yesterday in he explained how Balasubramaniam had come to make the Statutory Declaration. From this perspective, the accusation of duress is not a trivial one as it carries grave implications and consequences.
In the same vein, if in fact the police were in contact with Balasubramaniam yesterday, after the press conference at which he released his original (and now retracted) Statutory Declaration as the media suggests, the police should also make it clear to the rakyat what it is that transpired, if only to clear up any doubt as to the circumstances in which Balasubramaniam retracted his original statement.
I say this because the original Statutory Declaration was itself of grave importance and carried with serious implications. I have noted that some writers have been quick to question or dismiss the value of the original Statutory Declaration for it allegedly being hearsay, or put another way, containing only second hand information not directly within the knowledge of Balasubramaniam.
I do not share this view. Allow me to explain why.
The law requires direct evidence of a fact. Second-hand knowledge is considered to be unreliable. However it does not follow that ‘hearsay’ evidence is not admissible or irrelevant in all cases. Evidence is multi-faceted and is never merely proof of one fact. Considered from different angles, a single piece of evidence may tell more than one story.
For example, A tells B that A had stolen some money. B then tells C. C’s evidence of the conversation is not admissible as an admission by A or as proof of theft. Put another way, A could not be convicted purely on the say so of C. Evidence of A having committed the theft would have to be put before the court, in one form or the other. This is the essence of the hearsay rule.
However, this does not mean that the fact of B telling C is of no relevance. The fact is that A and B had that conversation and though C’s evidence may not be able to establish the truth of what was told to him by B, it can establish that such a conversation took place. The law permits this. If admitted, such evidence could be considered as ‘circumstantial evidence’.
Seen in this light, it is clear that the original Statutory Declaration was of great significance. In it Balasubramaniam categorically stated that he gave information to the police about the conversations he had had with Razak Baginda and Altantuya AND that such information was excluded from his statement AND that the Prosecution did not ask him any questions about this aspect of the information he gave to the police. These pieces of evidence were not hearsay as they were matters directly within the knowledge of Balasubramaniam. They were also manifestly relevant.
Additionally, for the reasons explained above, the fact of the conversations between Balasubramaniam and Razak Baginda and Altantuya respectively were also of relevance for equally suggesting an alternative or additional line of enquiry that the police ought to have looked into but apparently did not.
The about-turn and the possible, though as yet uncertain, involvement of the police do not do any good for the already seriously undermined confidence of the rakyat in the justice system.
We deserve better.
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By New Sraits Times
July 5, 2008
KUALA LUMPUR: The lawyer who had taken down the statutory declaration by private investigator P. Balasubramaniam said it was done voluntarily.
Americk Singh Sidhu claimed Balasubramaniam had been "intimidated" to change his story within 24 hours.
He said at a press conference he first met Balasubramaniam two months ago where he was asked for assistance in preparing a formal document incorporating evidence that had not been presented in the Altantuya Shaariibuu murder trial.
"I started the process about two weeks after that.
"I would have met him a few times when I recorded in longhand what Balasubramaniam said to me."
Americk said he had no reason to doubt that what Balasubramaniam told him was the truth.
Americk said the statutory declaration was read in front of a commissioner for oaths, who then attested it.
"I am, therefore, extremely surprised that Balasubramaniam, in a space of 24 hours has engaged the services of another lawyer and affirmed another statutory declaration swearing the first one was untrue and that he was forced to sign it."
Americk said he had last spoken to Balasubramaniam at his office on Thursday.
"After we finished with the press conference we went back to my office.
"He had been receiving a lot of phone calls but Balasubramaniam did not answer them."
Americk said when he asked him who had been calling him, Balasubramaniam said it was "ASP Tony from the Altantuya trial".
"He spoke in front of me. It was lively, they were talking about fish head curry.
"The impression I got was Balasubramaniam was going to meet Tony in Brickfields at 6.30pm."
