SECTION 9 OF EA 1950

• Section 9 of EA 1950 provide for facts necessary to explain or introduce relevant facts which states:

“Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant so far as they are necessary for that purpose”. (Fakta – fakta yang perlu untuk menghurai atau mengemukakan sesuatu fakta isu atau fakta relevan, atau yang menyokong atau mematahkan sesuatu kesimpulan yang dibayangkan oleh sesuatu fakta isu atau fakta relevan, atau yang menentukan identity sesuatu benda atau seseorang yang identitinya relevan, atau yang menetapkan masa atau tempat di mana sesuatu fakta isu atau fakta relevan telah berlaku atau yang menunjukkan hubungan pihak – pihak yang sesuatu fakta itu telah terurus olehnya, adalah relevan setakat mana fakta – fakta itu perlu bagi maksud tersebut).

IDENTITYBY

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IDENTITYPARADES

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IDENTITYBY GENETIC

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TURNBULLGUIDELINES

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SECTION 9 OF EA 1950• Principle and scope

• Section 9 of the Evidence Act 1950 makes relevant, the identity of a person or thing etc. A person can be identified in a number of ways, viz by a person’s finger prints, foot-prints, similarity of his writing, personal resemblence to another person, by bloodtype etc. Recently genetic or DNA finger-printing has, as it were, come of age, making identification of a person, particularly in rape and kindred (family/relative) sexual offences, affiliation (link) proceedings and paternity suits virtually a certainty.

SECTION 9 OF EA 1950• (a) Identity by Fingerprints - This is often useful and regularly resorted

to when necessary.

- In PP v. Toh Kee Huat [1965] 1 MLJ 76 where Ong J was convinced that it was the respondent who had stolen the alleged car in question. Fingerprints found in various parts of the car were clearly identified by the fingerprints experts, to belong to the respondent. Here the other relevant sections will be ss. 45, 46 and 51 of the Evidence Act.

SECTION 9 OF EA 1950• (b) Identity by Voice - This can also identify the wrong doer or

criminal.

- In Teng Kum Seng v. PP [1960] 2 MLJ 225 where the identity of the accused was established by his three victims who were able to recognize his voice on the telephone, which was found to be similar, when he telephoned the three victims when attempting to put them in fear of injury in furtherance of extorting money from them.

SECTION 9 OF EA 1950• (c) Identity Parades - In criminal investigations, identification by identification parade is frequently

resorted to. It is the Court’s duty to see that the identification was conducted properly and under lawful conditions. Because, if identification is conducted under improper conditions it is bound to be rejected.

o The Malaysian Courts have been wary (Cautious) of identity parade identifications. In Low Thim Fatt v. PP [1989] 1 MLJ 304 the appellant appealed against his conviction and sentence. The main grounds of his appeal were:

(a) the identification parade where PW2 (a prosecution witness) identified the appellant was irregular because, before PW2 attended the identification parade, she was asked by the police to peep through the glass in the door to see whether the appellant was the one who pointed the gun at her.

o Justice Dr. Zakaria Yatim J following Chang Kim Seong v. PP held that the manner in which the identification was conducted was highly irregular. Since the witness had the opportunity to see the appellant beforehand, the evidence of her subsequent identification at the trial was vitiated. However, the court dismissed the appeal because there is nothing in the evidence to show that the identification of the appellant by two other prosecution witnesses was improperly done.

SECTION 9 OF EA 1950• (c) Identity Parades - In Chang Kim Siong v. PP [1968] 1 MLJ 36, the fact was that this witness had been

given an opportunity by the police to see the accused prior to the formal identification, at the identification parade. Pike CJ held that since the witness had an opportunity to see the appellant beforehand, the evidence of subsequent identification at the parade by the witness was vitiated.

• On this subject it is useful to remember the advice of Willan CJ in Chan Sin v. PP [1949] 15 MLJ 106 where he said that:

“police identification parades should be held in the usual and proper manner. The suspect should be placed with a sufficient number of others of the same age and nationality as the suspect”.

- Holding that the identification parade conducted by the police was irregular, the learned Judge, referred to two English authorities to show what should be the right thing to do. He cited R v. Dickman 5 Cr App Rep. 135 at p. 143 that “The police ought not, either directly or indirectly, do anything which might prevent the identification being absolutely independant, and they should be most scrupulous (careful) in seeing that it is so”. He said that in R v. Chapman 7 Cr App Rep 53 at p. 56 where the LCJ said: “the usual and proper way in such cases is to place the suspected man with a sufficient number of others and to have the identifying person pick out a man without assistance”.

o Willan CJ pointed out that in this country it has always been the practice in Police Identification Parades that all the persons on the Parade should be of the same nationality as that of the suspect; as far as possible they should be from the same station in life as the suspect, and there should be not great disparity (difference) of ages in the persons on the Parade.

SECTION 9 OF EA 1950

• (c) Identity Parades - In PP v. Amar Singh [1948-49] MLJ supp. 55 where

the accused was in jail when police brought a witness to identify him. Such identification was rejected as being improper and unfair.

- A complainant’s identification of the accused was made, when the accused was surrounded by a group of people who had chased and caught him, was rejected as being unsatisfactory and unreliable under the circumstances in Leong Ah Seng v. R. [1956] 22 MLJ 225

SECTION 9 OF EA 1950• (d) Identify by Photographs• On the admissibility of photographs as evidence Marshall J said in the celebrated case of

R. v. Maqsud Ali [1965] 2 All ER 464 at p. 469: “For many years now photographs have been admissible in evidence on proof that they

are relevant to the issues involved in the case”.

o However in case of identity, Laville J said in PP v. Kok Heng & 2 Ors. [1948] 14 MLJ 171 that the usual rule is that once a man has been arrested, the identification should be by personal inspection. Though in certain circumstances identification by photographs (though allowable) may be reliable, it is dangerous if followed by an identification parade, because it must inevitably (unavoidable) tend to identification of the photograph rather than the person. In this case, the accused persons were first identified by photographs, then followed by an identification parade. The identification was rejected as being irregular.

• In Loke Soor Har v. PP [1954] 20 MLJ 149, a crucial issue on the accused’s trial for murder was the identification of the murderer. To establish the accused person’s identity, a police officer had shown to the identifying witness some photographs of known pickpockets. This evidence was held to be prejudicial as it led to the impression that the appellant was a known pickpocket, and should not have been admitted.

• In Girdari Lall v. PP [1946] 12 MLJ 87 it was said that though it is not objectionable for the police to use a combined profile photograph of a person before his arrest in order to assist them in ascertaining whom they should arrest, nevertheless it cannot be tendered in evidence because it may show more than his identity and may be prejudicial as showing his bad character.

SECTION 9 OF EA 1950• (e) Identification by Genetic Fingerprinting - Genetic fingerprinting (also called DNA testing, DNA

typing, or DNA profiling) is a technique used to distinguish between individuals of the same species using only samples of their DNA. Deoxyribonucleic acid (DNA) is a nucleic acid that contains the genetic instructions used in the development and functioning of all known living organisms.

o Suddenly the legal world is waking up to the possibilities of DNA fingerprinting, and the fact that every person in the world (apart from identical twins) has a unique print. Now the police realize that it is a powerful tool. DNA or genetic fingerprinting finds most obvious application in establishing parentage in paternity and immigration disputes. Previously available paternity test could disprove paternity when it was shown that a child had a genetic factor that was not present in either the mother or father.

o Such test however hardly ever achieved a sufficient degree or probability that a particular man was the father to convince the Court of positive identification. The new system however achieves levels of probability in favour of identification sufficient to establish beyond all reasonable doubt who the real father is.

SECTION 9 OF EA 1950

• The other major application for this technique is in forensic medicine. If a DNA fingerprint of a suspected rapist matches that from a semen sample from the victim his guilt is proved. With variations of this technology it is possible to analyse the DNA from blood and semen stains that are several years old, and human hair roots.

• In R v. Cannon The London Times Law Report April 1989 p. 3, the accused John Cannon was found guilty of a rape committed a year before the alleged killing of Mrs. Shirly Bank. He was convicted on genetic fingerprint evidence.

SECTION 9 OF EA 1950• The issue for consideration was whether the

prosecution had made out a prima facie case. It quite clear that in this area it will be the genetic fingerprinting expert who will be allowed to give his expert opinion with his experiments and findings to back him up. Section 45, 46 and 51 will apply.

• It is perhaps in these types of cases where the expert may be allowed to give his opinion on the ultimate issue.

• As Raja Azlan Shah said in Wong Swee Chin v PP [1980] 1 LNS 138, case except on purely scientific matters, the expert’s opinion is accepted to assist the Court. This may be one type of situation that comes within the exception.

SECTION 9 OF EA 1950

• In PP v Hanif Basree Abdul Rahman [2008] 3 MLJ 161, the respondent/accused was charged for the murder of his intimate friend, one Noritta bte Samsuddin (‘the deceased’) on 5 December 2003. At the close of the prosecution’s case he was acquitted and discharged by the learned trial judge without being called for his defence. The prosecution’s appeal to the Court of Appeal was dismissed and hence this appeal. The body of the deceased, when found by her apartment mates (SP12 and SP28), was facing downwards with her mouth stuffed with two face towels and her hands and legs tied. Wet tissue papers were recovered from a waste paper basket in the room of the deceased.

Continue…• The main issues in this appeal were: (i) whether from the pathologist’s and chemist’s evidence it could be

irresistibly concluded that the accused was the last person to have had sexual intercourse with the deceased and therefore was the one who caused her death;

o Held, dismissing the appeal: (1) The DNA profile from the swabs taken from part of body of the deceased

showed that it belonged to an ‘unknown male 1’ and did not match the DNA profile of the accused.

(2) The prosecution’s case was based on the discovery of the DNA of the deceased, accused and the ‘unknown male 1’. The DNA profile of a person could only belong to that person and that person only. Therefore it was only when a person was identified and the DNA matched that of the identified person could it be of any use towards solving a crime investigation.

SECTION 9 OF EA 1950

• The issue for consideration was whether the prosecution had made out a prima facie case.

• It quite clear that in this area it will be the genetic fingerprinting expert who will be allowed to give his expert opinion with his experiments and findings to back him up. Section 45, 46 and 51 will apply.

• It is perhaps in these types of cases where the expert may be allowed to give his opinion on the ultimate issue. As Raja Azlan Shah said in Wong Swee Chin v PP [1980] 1 LNS 138, case except on purely scientific matters, the expert’s opinion is accepted to assist the Court. This may be one type of situation that comes within the exception.

SECTION 9 OF EA 1950• Turnbull’s Identification Guidelines• Particularly in the case of visual identification of the accused by one or even

more witnesses, it is useful to bear in mind the guidelines laid down in the leading English Court of Appeal case of R v. Turnbull [1977] QB 224 which are now well known and have been consistently applied both in England and in a number of Commonwealth countries.

• The case mentioned by Hashim Yeop Sani J (as he was then) in Dato’ Mokhtar Hashim v. PP [1983] 2 MLJ 232, 261 & was also quoted with approval by Mohamed Azmi SCJ in the Supreme Court in Yau Heng Fang v. PP [1985] 2 MLJ 335, 339.

• The guidelines seem to have acquired more than a highly persuasive value in view of the most recent pronouncement of the Judicial Committee of the Privy Council in Reid v. Queen, Dennis v. Queen and Whylie v. Queen Law Report August 15, 1989 PC [The London Times] which quashed the murder verdicts of the appellants because there was a failure to follow the Turnbull Identification guidelines.

SECTION 9 OF EA 1950• Turnbull’s Identification Guidelines• In the case of Dennis there was no warning by the trial Judge in the terms required

in R v. Turnbull. The jury were never told that visual evidence of identification was a class that was particularly vulnerable to mistake and the reasons for the vulnerability, that honest witnesses could well give inaccurate but convincing evidence and that accordingly such evidence had to be treated with special care. There were no exceptional circumstances to justify that failure to give a clear warning of the danger of mistaken identification. Accordingly the conviction had to be quashed.

• In Reid’s case the Judge failed to give the general warning as to the dangers of identification evidence and an explanation of the reasons for such a warning, and appeared not fully to have appreciated how irreconcilable (difference) was the evidence of the identifying witness with other evidence. Having regard to the impossibility of reconciling the evidence, the Judge should have withdrawn the case from the jury at the conclusion of the protection’s case and directed an acquittal.

• In Whylie’s case the Judge gave certain warnings about the dangers of identification evidence, but failed to explain that visual evidence of identification was a category of evidence which experience had shown was particularly vulnerable to error, errors in particular by honest and impressive witnesses and that had been known to result in wrong convictions. Accordingly identification evidence had to be treated with very special care.

SECTION 9 OF EA 1950• Turnbull’s Identification Guidelines• In Reg v. Turnbull, the four appellants were convicted of various offences.

The prosecution case against them was based wholly or substantially on a number of visual identifications. On appeal against their convictions that the Court had been cautious enough before conviction them on identification evidence.

• The Court of Appeal held that the trial of the first two appellants having correctly followed the practice necessary in cases depending on identification, their appeals would be dismissed; however the practice not having followed in the trials of two other appellants, their appeals would be allowed. Before lying down the guidelines at p. 228 the Court of Appeal sought to state that rationale for doing so. The three appeals before their Lordships raised problems relating to visual identification in criminal cases. Such evidence could and had brought about miscarriages of justice in a number of cases recently. The number of such cases though small compared to the number in which evidence of visual identification had been proved to be satisfactory necessitated in the Court’s taking some steps to reduce the number as far as possible.

• The danger of miscarriage of justice occuring could be reduced if the trial Judges summed up to the juries the following rules. The guidelines are as follows:

SECTION 9 OF EA 1950• Turnbull’s Identification Guidelines

• FIRSTLY: Whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some references to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the Judge need not use any particular form of words.

SECTION 9 OF EA 1950• Turnbull’s Identification Guidelines

• SECONDLY: The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in anyway, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asked to be given particulars of such descriptions, prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

SECTION 9 OF EA 1950• Turnbull’s Identification Guidelines• In Tan Kim Hoo v PP [2007] 6 CLJ 557, the accused were charged under ss. 3

and 3A of the Firearms (Increased Penalties) Act 1971, and subsequently convicted and sentenced to death. This was their appeal against that decision. Amongst the ground advanced by accused was in respect of their identity as the perpetrators of the offence with which each was charged. It was submitted that the test identification parade had been badly conducted and that having regard to all the surrounding circumstances, it was unsafe to sustain the convictions based on identification evidence.

• Held (Dismissed the appeal) states “The issue of identity of each of the accused in the instant case was a question of fact and must be determined by a trial court like any other fact sensitive issue in accordance with well-established guidelines governing the judicial appreciation of evidence. The pertinent passages from the judgment under appeal showed that the learned judge appreciated the evidence placed before him and applied the correct legal tests to that evidence. He asked himself the right question and took into account all the relevant material. He was well aware of the danger of acting on evidence of identification and subjected the evidence on that issue to careful scrutiny. Having done all that, he found the evidence compelling and therefore acted on it. And he gave cogent reasons for so doing. Nothing more may fairly be expected of a trial judge in a case as this and, indeed, the direction by the learned judge on the issue of identification was admirable and beyond criticism”.