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3.1 INTRODUCTION
Section 33 deals with relevancy of certain evidence for proving, in subsequent proceeding,
the truth of facts therein stated, it reads as follows:
Evidence given by a witness in a judicial proceeding, or before any person
authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial
proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it
states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is
kept out of the way by the adverse party, or if his presence cannot be obtained without an
amount of delay or expense which, under the circumstances of the case, the Court considers
unreasonable: Provided that the proceeding was between the same parties or their
representatives in interest; that the adverse party in the first proceeding had the right and
opportunity to cross-examine; that the questions in issue were substantially the same in the
first as in the second proceeding.
(e) witnesss presence cannot be obtained without any amount of delay or expense
which, under the circumstance of the case, the Court considers unreasonable
However, there are five conditions that must be fulfilled in order to make section 33
applicable which are:
(i) that the evidence was given in a judicial proceeding or before any person
authorized by law to take it;
(ii) that the witness is incapable of being called at the subsequent proceeding;
(iii)that the first proceeding was between the same parties as the second proceeding
or between representatives in the interest of the parties to the second proceeding.
(iv) that the party against whom the deposition is tendered had a right and full
opportunity of cross examining the deponent when the deposition was taken; and
(v) that the issues involved are the same or substantially the same in both
proceedings.
The grounds for reception of the evidence appear to be based on rule of necessity or
expediency. Though generally this section seems to be an exception to the hearsay rule,
however the infirmities of the hearsay evidence are not present, because the witness have
given evidence on oath and were subjected to cross-examination. Probably the only
disadvantage appears to be that the judge in the second case is deprived of the opportunity of
watching the witness or knowing the demeanour of the witness with a view to test his
credibility. Therefore, when the court wants to admit the deposition of absent witness under
this section, it must exercised its power with cautioned so that there will be no injustice to
other parties in the case. This principle is clearly laid down under the case of See Yew Poo v
PP (1949) 15 MLJ 131.
The section has been applied in civil as well as criminal cases. Now, if we read sec.
33 again, it uses the words Evidence given by a witness in a judicial proceeding or before
any authority authorized by law to make it, is relevant for the purpose of proving in a
subsequent judicial proceeding or in a later stage of the same judicial proceeding- and the
first clause in the proviso uses the word proceeding was between the same parties or their
representatives in interest while the third clause of the proviso uses the words that the
questions in issue were substantially the same in first as in the second proceeding. It will be
seen that the main clause uses the word subsequent proceeding while the third clause in the
proviso uses the words first and second proceeding. In the first clause of the proviso, the
word proceeding is used without any qualification.
2.1.1
Scope
The general rule is that a witness must give his evidence under oath or affirmation and
subject himself to cross- examination. But this may not be always possible. Thus this section
provides that evidence given by a witness in a judicial proceeding may be used in a
subsequent judicial proceeding subject to certain conditions being fulfilled.
2.1.2
Rationale of Rule
This case shows that the statement of a person who has become incapable of giving
evidence due to old age or mental incapacity must be proved with sufficient evidence. It does
not mean it must have a medical person in every case. Also in the case of Dato Yap Peng v
Public Prosecutor2 Mokhtar Sidin J stated in emphatic terms that the only way any evidence
given by a witness or witnesses can be used in a subsequent and different judicial proceeding
is by way of this section. Thus judicial notice3 cannot be taken of it under section 57 of the
Act.
2.1.3
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that the evidence was given in a judicial proceeding or before any person
authorized by law to take it;
(ii)
(iii)
that the party against whom the deposition is tendered had a right and full
opportunity of cross examining the deponent when the deposition was
taken; and
(v)
that the issues involved are the same or substantially the same in both
proceedings.
It must be emphasized that the unavailability of the witness for any of the five
reasons mentioned in the sections should strictly proved.
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