(Malaysia) The defendant sought to advance a defence of duress under a section of the Penal Code of the Federated Malay States which provided that, with certain exceptions, ‘nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence.’ He sought to have admitted evidence of threats made. Held: What was said to the defendant was admissible to show that the defendant had good reason to fear death or personal injury. Hearsay evidence was admissible as to the state of the defendant’s mind. The appeal was allowed because evidence relied on by the appellant to show that he had had a reasonable apprehension of instant death was wrongly excluded.
The Board recognised the distinction between adducing a statement as evidence of something expressly or impliedly asserted in the statement and simply as evidence that the statement was made: ‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.’