‘hearsay’ and inadmissible?

From : KTemoc Konsiders

Oh oh oh, it’s the usual from PKR that malaysiakini has just reported.

The party leadership is still pushing the campaign against Najib (but not AAB or KJ), relying on what Burmaa Oyunchimeg, prosecution witness, told the court on on June 29. She claimed she saw a photograph of Altantuya dining in Paris with the third accused Abdul Razak Baginda and a government official known only as ‘Najib Razak’.

malaysiakini reported:

PKR wants the police to check the passport of Deputy Prime Minister Najib Abdul Razak to determine if there is any link between him and slain Mongolian national Altantuya Shaariibuu.

Speaking at a press conference in Kuala Lumpur today, the opposition party’s supreme council member Latheefa Koya said it is important for the police to look into this matter since Najib previously denied knowing Altantuya.

She said this based on the testimony of the murder victim’s cousin Burmaa Oyunchimeg during the ongoing murder trial.

Latheefa said the police should check the passports of all three individuals, to determine if they were in Paris at the same time.

This has become a joke when PKR political interests have degenerated into exploiting a side issue to press in its campaign against Najib for … whatever interests its leadership might and may have in mind. But then, hardly unexpected of a de facto party with a de facto leader.

It so happened I asked Raja, a visitor to Susan Loone blog, who has been noted to post erudite and very carefully thought out legal commentaries in relation to the Altantuyaa’s case, a few questions this morning.

I have learnt a few things from him and even had one of my vague understanding of hearsay evidence confirmed as correct – champagne all around ;-)

I asked Raja:

… how would the court (i.a.w world’s best practice, of course) assess or categorize the ‘evidence’ or statement by Burmaa Oyunchimeg about the photo which she saw but could not produce.

Would her claim that the late Altantuyaa told her a person in the photo was a Malaysian officer named Najib Razak be considered as ‘hearsay’ and inadmissible?

I have heard of some exceptions to hearsay evidence where (from vague recollection) a dying man were to reveal to a priest or monk that his murderer was, say, KTemoc (gulp), that could well be admitted - would I be correct here, and if so, would this example, admittedly drawing a long bow here, be akin to the Altantuyaa’s

Raja commented (I have slipped in some comments of my own but in different highlights):

a. For something to be admissible it must first be relevant to the issue.

b. Then if relevant it must not be inadmissible for being hearsay evidence. For example, a confession statement by a witness or a suspect under interrogation by the police is inadmissible if the purpose is to use it in court to prove the truth of contents.

That prosecution witness was not answering questions posed to her by the prosecution when she said she was shown by Altantuya a photograph of a group of people sitting around a table for a meal and among them was a government official (meaning the DPM), Razak and the deceased. If the purpose was to prove the fact of a possible conspiracy involving a high government official and the accused, and to attack the credibility of that government official, that government official is not on trial, nor is he a witness - and so is the Government of Malaysia not on trial.

“…witness was not answering questions posed to her by the prosecution when she said she was shown by Altantuya a photograhg …” – hmmm, KTemoc wonders why the prosecution witness decided to go on her own bat by bringing out the thus-far unavailable photograph which dear old Tian Chua had pounced on to help make available through some ‘magic’ of his own

Some foundation must first be built by counsel to allow its admission into evidence - and in this case the prosecution had nothing like that in mind. The witnessed was not being examined on the possibility of such a photograph or any photograph. While that may be so, prosecution should have allowed the witness to continue. If the defense objects the judge would most certainly sustain that objection on the ground of relevancy.

But that was not what happened. Both counsel from the prosecution and the defense stood up to object! The attorney holding a watching brief has had to ’stand up’ to ask the judge to allow the witness to have her say or complete her testimony.

I find the behavior of counsel for the prosecution strange though not unexpected. Allowing their witness to continue with her testimony would not have damaged their case - though irrelevant.

I am not sure why the defense is objecting!

Before evidence is admissible in court, it has first to be relevant. The photograph is not relevant.

Really? You wouldn't have thought so with the way they PKR crowd have been baying.

Forget the trial for a minute. If relevant what does it prove? It proves that the DPM had lied to the people when he said he did not know the accused - but he is not even a witness in this trial?

Could that be made a basis to charge him with conspiracy to murder? In my opinion - insufficient to prove anything more than the fact that they were having a meal. Period.

Hmmm, legally speaking of course. But politically speaking, which ends justify the dirty poo flinging, trust a party virtually bankrupt of policies and (democratic) process to squeeze to the last drop of Mongolian blood to somehow extract Najib’s from the non relevant issue.

Then Raja commented on my hypothetical case of “a dying man revealing to a priest or monk that his murderer was, say, KTemoc (gulp)” and whether such an example could be akin to Burmaa’s claim of Altantuyaa showing her a photo?

A dying declaration is an exception to the common law rule against hearsay. You are right.

… explains my elation and reckless offer of champagne …

Altantuya never made a statement that could be said to be her ‘dying declaration’. The letters left by her referring to Razak is admissible only to prove her state of mind if that is in issue - and not the truth of contents e.g. Razak was trying to have her killed unless she stopped harassing him.

Good try PKR, and I do mean it, because as they say, fling enough poo and some will inevitably stick. And bugger the feelings of the family of the late Altantuyaa by unnecessarily (for them) indulging in sensational mud rucking, and bugger also ethical due process.

The reformasi way?

kzso : any good lawyers can advise on this 'hearsay’ and 'inadmissible' in court?