How does Capacity, Intention and Revocation Affect Wills?

Capacity

1. Age – s.4 of Wills act – no will made by any person below the age of majority (18) is valid.

Issue: whether there should be a maximum age. One possible argument is to require persons of a certain age to acquire a doctor’s certificate. However, if done so, another issue is whether a will made without such certificate is valid?

2. Mental competence

- s.3 of Wills Act – every person of sound mind

- Banks v Goodfellow (Cockburn CJ) – testator must have a sound and disposing mind and memory.

i) Nature of business

Testator must be aware that he is engaged in a testamentary act, i.e. expressing his wishes regarding the disposition of property that takes effect upon death.

ii) Recollection of the property

Testator must have a general awareness of the property he wishes to dispose of and not every item.

Waters v Waters – testator doesn’t need to know every atom of his property, as long as he knows generally the state of his property and what it consists of. How much he ought to know depends on how much he has.

iii) Objects of his bounty

Testator must be aware of the existence of potential beneficiaries.

Harwood v Baker – testator executed a will few days prior to his death in which he left all of his property to the wife and excluded some relatives. Will was invalid. Testator was too ill to give sufficient consideration to the potential claims of his relatives. Question was whether the testator was capable of recollecting who were his potential beneficiaries and intelligently excluded them.

iv) Manner of distribution

Testator must be able to recollect the manner in which the property is to be distributed between the objects of his bounty.

Boughton v Knight – testator must have an understanding to comprehend his relationship with the objects of his bounty and their claim upon him.

- Two types of lack of mental capacity: (i) persons born with limited mental capacity, (ii) mental impairment

1.Wood v Smith

Testator was 82, made a will 2 days before death. Court held that there was insufficient evidence that the testator was able to comprehend the extent of his property or the nature of the claims of those he was excluding.

  

2. Brown v Pourau

Testatrix was occasionally subject to trances in which she talked to spirits and fairies because she believed that a Maori curse was placed on her. Will was still valid.

3. In the Estate of Park

Testator was 78 and had suffered 2 strokes. He was previously a successful businessman but became forgetful and confused. He married a cashier he hardly knew. They were married and the testator executed a new will. The will was invalid on grounds of lack of mental capacity.

Capriciousness

- Even if a will is eccentric, it can still be valid if it’s Banks v Goodfellow competent.

1. Boughton v Knight

The law doesn’t prevent a man from making a will that is moved by capricious, frivolous, mean or bad motives

2. Bird v Luckie

A man is not bound to make a will that deserves approbation from the prudent, wise or the good. Some wills may seem capricious but if the testator is brought back to life, he would be able to explain why the will was made that way.

3. William Shakespeare left his wife his ‘second best bed’.

4. Henry, the Earl of Stafford, described his wife as the worst of women and guilty of all crimes. He left her five and forty brass halfpence which will buy a pullet for her supper.

Delusions

- It is an irrational belief which cannot be eradicated by a rational argument. Only delusions that influence the testator in making his will may render the will invalid.

1. Dew v Clark

Testator gave his only child a small gift out of his large estate. He treated her with great cruelty in her youth and described her as a fiend, a monster, Satan’s special property and a very devil. However, evidence showed that she was of exemplary character. Will was invalid.

2. Boughton v Knight

Testator left bulk of his estate to strangers. Will was invalid due to the testator’s insane dislike for the son.

3. Waring v Waring

Testatrix suffered various delusions including one where the PM used to visit her house, disguised as a fish peddler, to have an improper connection with her.

4. Smee v Smee

Testator believed he was the son of King George the IV and that his father prevented him from benefiting a trust fund which was diverted to favour his brothers. The will totally excluded his brothers. Court held that the will was invalid.

5. Re Nightingale

Testator was dying from cancer. He cut out his adopted son who was the main beneficiary under his first will, from his second will. Court held that the testator probably thought that the son was trying to murder him because the son had gently pushed him back onto the bed when he tried getting up.

6. Banks v Goodfellow

Testator left most of the estate to his niece. She had cared for him and stayed with him. He was once in a lunatic asylum. He was still suffering from 2 delusions, i.e. he was being pursued by devils and evil spirits and that a dead man pursued and molested him. He was however capable of managing his affairs. Will was valid.

When must the testator have mental capacity?

- Must be mentally competent when the will is executed. Lack of competency before or after execution of will is not fatal.

1. In the Estate of Walker

Testator was declared a lunatic. She suffered delusions which made her violent. She however took interest in general topics, was a clever woman with excellent memory and etc. Her will made in the presence of 3 doctors certifying she was mentally competent was valid.

2. Chambers and Yatman v Queen’s Proctor

A barrister was alleged to have strange and eccentric habits. He suffered from delusions including that he was an object of scorn to his friends and the world. He made a will, committed suicide and the will was still valid.

3. Parker v Felgate

If a mentally competent testator gives instructions to a solicitor to make his will, then loses mental competence before the will is executed, the will may still be valid.

4. Battan Singh v Amirchand

Instructions given to lay intermediaries to be passed to solicitors were held to be invalid.

Burden of proof

1. Barry v Butlin

The burden of proof in proving mental capacity lies on the party propounding the will. If the will is rational on its face, the presumption is that the testator had mental capacity. The burden shifts to the party opposing the will to rebut such presumption by evidence to the contrary. If successfully rebutted, the burden shifts back to the propounder.

2. Symes v Green

Testator made a will which his nephew challenged. The will was rational and properly executed, so the testator was presumed to be mentally competent. Evidence however showed that he was suffering from insanity when he made the will. The burden shifted back to the propounder who failed to prove that the testator had mental competence.

- If the will is irrational on the face, the presumption is that the testator lacked mental capacity.

1. Austen v Graham

The testator left a small gift to his brother and the rest to the Turkish Ambassador to benefit the poor in Constantinople and to erect a cenotaph with the testator’s description. Court found it absurd since the testator was an English native and a Christian. However, evidence showed that the testator had in his early life adopted the mode of living of a Mohamedan. Will was valid.

- There is a presumption that if the testator has been mentally competent prior to the will, he is also mentally competent during the execution.

- If the testator is known to be insane before execution, presumption is that the testator was still insane at the execution.

1. Cartwright v Cartwright

Testator’s will was rational on its face. Presumption was that she was mentally competent but evidence showed that she was insane 6 months before the will’s execution. The will was still upheld because of evidence that the testatrix understood the state of her affairs and to give what was proper in the way she has done.

Effect of mental incompetence

The will fails if the testator lacks mental incompetence. However, if the incapacity only affected 1 part of the will, the rest may still be valid.

1. Re Bohrmann

Testator was a psychopath. He however had exceptional acumen in managing his private affairs. He made substantial gifts to English Charities. However, he added a codicil to revoke gifts made to English Charities in favour of American Charities because he suffered a delusion that he was being persecuted by the London County Council. The judge upheld the will with the omission of the revoking clause.

- It is always recommended to arrange for the testator to be examined by a medical practitioner.

1. Kenward v Adams

If the testator is old and infirm, the making of his will should be witnessed and approved by a medical practitioner.

- There is no presumption that a person who is addicted to alcohol lacks testamentary capacity unless evidence can show that the testator was severely drunk when he made the will.

1. In the Estate of Heinke

Testator revoked a substantial gift to his housekeeper of 16 years, during a bout of heavy drinking. Codicil was held invalid on the ground that the deceased had not been of sound mind, memory and understanding.

2. Chana v Chana

A will was upheld even though the testator was a heavy drinker. A will becomes invalid if it can be shown that the drunkenness prevented the testator from knowing the nature of his act.

Intention

- A testator must have animus testandi when he executes a will. If no intention, the will is invalid. The testator must know and approve of the contents of the will.

1. d’Eye v Avery

Testator suffered a stroke and was unable to communicate. He made a will with the help of a former dancing partner. Although he had capacity to make a will, he lacked knowledge and approval. Will was invalid.

- If a will is properly executed and if the testator had mental capacity, the presumption is that there is animus testandi.

1. Lister v Smith

If a paper appears to be the record of a testamentary act, but in reality it was the offspring of joke, not seriously intended as a disposition of property, it should not be a valid will.

2. Nichols v Nichols

Testator’s will was written ‘I leave all my property between my children…that they will worship God, and not black coats.’ Black coats referred to lawyers whom the deceased was one and whom he loved to ridicule. The document was executed where the deceased wanted to show how short a will could be. The deceased never again referred to the will and regarded himself as not having made a will. Court pronounced intestacy.

Wishes intended to take effect on death

- testator must make an expression of wishes, normally to dispose of his property upon his death.

1. Hodson v Barnes

The words ’17-1925. Mag, Everything I possess. – J.B.’ was held to not constitute a will.

2. In the Estate of Knibbs

A barman on a liner said to the head barman during a chat about his sister Iris that ‘If anything ever happens to me, Iris will get anything I have got’. Court held that those words were mere gossip spoken without animus testandi.

3. Re Stable

Deceased was a young soldier. His solicitor mistakenly told him he could not make a will. He told his fiancée that he would give everything to her if anything happened to him. Court held that the will was valid as the statement was made with animus testandi.

Conditional Wills

- Testator may make wills which are conditional on the occurrence of some specified event. If condition is not fulfilled, there is no animus testandi.

                                             

 1. In the Goods of Hugo,

A married couple executed a joint will before a journey which had a condition that it is effective if they died together by the same accident. They survived the journey. The joint will was invalid.

2. In the Goods of Spratt

Testator was a soldier serving in New Zealand. He wrote to his sister saying that if the war continued and if he dies in an accident, his money goes to his sister. The testator died years after the war ended. Will was valid because it was not conditional. A will is unconditional if the testator says that he is led to making the will due to the uncertainty of life.

Knowledge and Approval

- The testator must know and approve of the contents of the will.

1. Cleare v Cleare

The testator must know and approve of the contents of the will. Lack of knowledge and approval renders a will invalid.

- The burden of proof is on the propounder of the will. If the will is duly executed and made by a testator with the mental capacity, the presumption would be that there was knowledge and approval. The burden then shifts to the person challenging the will to rebut the presumption. If evidence exists to rebut the presumption, the burden goes back to the propounder.

Suspicious circumstances

1. Tyrrell v Painton

If there are circumstances which excite the suspicion of the court, the propounder of the will has the burden to prove affirmatively that the testator knew and approved of the contents of the will. If successfully proven, the burden shifts to the party challenging the will to prove fraud, undue influence or mistake.

Wills prepared by beneficiary

1. Barry v Butlin

When a party prepares a will under which he benefits from it, it becomes a circumstance that excites the suspicion of the court. The Court will not uphold the will unless the suspicion is removed.

In this case, the testator gave nothing to his son. He gave a large amount to his Attorney. However, the suspicions were removed because, amongst others, the testator had been very friendly with the attorney and the will was executed openly in the presence of respectable witnesses.

2. Wintle v Nye

The solicitor made a will for the testatrix, Nye, which disposed of a substantial amount of property for the solicitor. The solicitor didn’t advise Nye to seek independent advice and the will was beyond the understanding of the testatrix. Court held that there was a heavy burden on the solicitor to prove knowledge and approval on behalf of Nye. Will was invalid.

3. Re Dabbs

Testator executed a will which was prepared for him on a computer by the claimant who was a major beneficiary under the will. The principle is that the greater the degree of suspicion, the greater will be the burden of dispelling that suspicion.

4. In Re A Solicitor

A solicitor was struck off the Roll for failing to advise 2 sisters-in-law to seek independent advice when they sought to make wills for the solicitor and his family.

Wills prepared by close relatives of a beneficiary

1. Tyrrell v Painton

Testatrix had made wills in favour of the defendant. However, she later made another will benefiting her cousin instead. The defendant’s son later visited her accompanied by his friend, a strange man. The testatrix made a new will though she was exhausted in favour of the defendant. It was written in the son’s handwriting and witnessed by the son and his friend. The will was invalid.

Principle: Even wills prepared by close relatives of a beneficiary can excite the suspicion of the court. Any well-grounded suspicion will suffice.

Mistake

- Not every mistake will affect knowledge and approval

i) Mistake as to whole will

1. Re Meyer

2 sisters attempted to make a codicil in favour of the other but mistakenly executed the other’s codicil. When the first of them died, it was held that the codicil is not valid as she had not intended to sign it. There was no animus testandi.

ii) Mistake as to legal effect

- A mistake as to the legal effect of the testator’s provision doesn’t affect the validity of the will.

1. Collins v Elstone

Testatrix left 2 wills and a codicil to the 1^st will. The 2^nd will contain a clause revoking all previous dispositions. She did not wish to revoke any earlier testamentary dispositions but the executor said that it wouldn’t. The advice was given mistakenly. Court held that since she knew of the clause, it revoked the earlier will.

iii) Mistake as to contents

-If any part was included by mistake without testator’s knowledge and approval, it can be omitted provided it doesn’t change the sense of the will.

1. In the Goods of Oswald

Testatrix executed a later will not realizing it contained a revocation clause. Court held that the revocation clause can be excluded.

 2. In the Goods of Boehm

Testator intended a bequest to be given to his daughters, Georgiana and Florence. The counsel who drafted the will mistakenly inserted Georgiana in both bequests. Court held that the name Georgiana could be omitted from the bequests intended for Florence.

3. Morrell v Morrell

Testator instructed that all his 400 shares in his company should pass to his nephews. Counsel drafted the gift as comprising forty shares. Courts held that the word could be omitted since the testator didn’t approve the inclusion of the word forty. All shares were passed to the nephew.

Fraud

- Testator is intentionally misled or deceived thus affecting the making of his will.

1. Allen v M’Pherson

The testator, having made large bequests to the appellant in his will, executed a final codicil containing a much smaller gift. It was alleged that this was the result of false representations made about the appellant’s character to the testator who was feeble in mind and boy. It was held that this is fraud.

2. Wilkinson v Joughin

Testator married a married woman. She deliberately concealed the fact from him. Testator described her as his wife in the will. The gift was void due to fraud. However, a gift to her daughter was valid since she was innocent.

3. Re Posner

Facts were similar but the testator was not deliberately misled since neither he nor his wife knew at the time of marriage that the wife was still married. Gift was upheld as there was no fraud.

Undue influence

- Coercion. Whether the influence asserted is coercion or persuasion?

1. Hall v Hall

In this case, the will failed because it was made for the sake of peace in consequence of the violence from the sole beneficiary, his wife.

Principle: If pressure of whatever character is exerted to overpower the volition of the testator in the making of his will, then it is considered as coercion.

2. Parfitt v Lawless

In this case, the priest served as the testatrix’s confessor. He received bulk of the testatrix’s estate under the will. There was no coercion.

Principle: i) No presumption of undue influence arises from the proof of a relationship

                ii) To prove undue influence, it is necessary to prove coercion, i.e. the testator’s                       volition was overborne.

  

a) No presumption

1. Craig v Lamoureux

Husband was the sole beneficiary under the ill wife’s will. He was instrumental in having her prepare a will. However, there was no evidence of coercion.

2. Mynn v Robinson

Wife made a new will departing from a previous will 9 days before her death in an extremely weak state. Presumption of undue influence arose and wasn’t rebutted. The husband had a record of deceptive behaviour. The presumption arose because of the circumstances surrounding the will’s execution.

b) Coercion

1. Wingrove v Wingrove

It is not sufficient to show that a person has the power to coerce the testator. It has to be shown that the power was indeed exercised. Coercion may be present even without actual violence. For instance, if a testator is so old that he is dependent and the caretaker threatens to leave him.

2. Betts v Doughty

Testatrix was 80 years old and attempted to alter her will to exclude the plaintiffs. The plaintiffs told her that if she executed a new will, she could not reside in their house. A solicitor’s clerk brought the new will for execution but was not allowed to see her. Courts upheld the earlier will but imposed a trust on the plaintiffs to hold their shares as trustees for the beneficiaries under the intended will.

3. Re Harden

Testatrix was dominated by a man who allegedly had occult powers as a medium. He passed messages from the other side as to how the testatrix should dispose of her estate. Wills were invalid due to undue influence.

Hampson v Guy – the weaker the testator, the easier to prove undue influence

Boyse v Rossborough – strong evidence of fraud or undue influence must be adduced since the allegations impart an element of moral condemnation.

Re Cutcliffe’s Estate – the party who made the pleas of undue influence would be penalized for costs if their pleas were unsuccessful. 

What are Pleadings under Civil Procedure Law in Malaysia

Pleadings

Definition: written statements of facts exchanged between parties in a civil proceeding

O 18 + O 19 of the ROC: service of pleadings, set-off, counterclaim (O 15), default of service and close of pleadings

General rule: Parties are bound by their pleadings

The Chartered Bank v Yong Chan [Federal Court]

In this case, the respondent had issued a cheque which was dishonoured. He brought a claim against the bank for libel. In the pleadings, his claim was based on libel. The trial judge held that the action based on libel was barred by the limitation period. However, the judge gave damages of $1,000 for breach of contract.

On appeal to the Federal Court, it was held that the learned judge was clearly wrong when he concluded that the pleadings included a claim for breach of contract. Since he had decided on an issue not raised on the pleadings, the judgment was set aside and a new trial was ordered.

Exceptions:

1. Illegality

i) Wai Hin Tin Mining Co Ltd v Lee Chow Beng

The plaintiffs claimed repayment of an interest free loan of $2,500 lent by the plaintiffs to the defendant for the defendant to purchase shares in the plaintiff company. The defendant did not object to the legality of the loan. The Court held that the plaintiffs’ claim was based on an illegality as the loan transaction contravened the companies’ articles of association and the Companies Ordinance of 1940. Therefore, the claim was dismissed.

ii) North Western Salt Co Ltd v Electrolytic Alkali Co Ltd

House of Lords laid down 4 situations where the Court will not enforce a claim based on illegality even if it was not pleaded:

a         1) Ex facie illegal (it is obvious on the face of it

      2) Evidence of extraneous circumstances tending to show that it was an illegal object
3) Unpleaded facts which taken by themselves show an illegal object
4) Where the Court have all the relevant facts and it can be seen clearly that the contract had an illegal object

2. Lack of jurisdiction

Joseph Crosfield & Sons Ltd v Manchester Ship Canal Co

In this case, certain statutes provided that certain disputes are to be heard by way of arbitration. An action was brought by the plaintiff to the Court in contravention with the statutes. Although the issue of jurisdiction was not raised in the pleadings, the Court will allow an objection of lack of jurisdiction to be raised during the trial. The claim was dismissed.

3. Point not pleaded but presented and developed without objection

i) Kaliammal v Manickam

The principle is that if a defendant wishes to rely on a statute of limitation, it must be pleaded. If an action to recover a debt is statute-barred, the plaintiff will not be able to claim for recovery of the debt provided the defendant has pleaded the limitation period. However, the six years period is subject to s. 26(2) of the Limitation Act which provides for a fresh accrual of action if the defendant acknowledges the claim. The limitation period will then set in later.

ii) KEP Mohamed Ali v KEP Mohamed Ismail [Federal Court] – the acknowledgment to the debt under s.26 of the Limitation Act applies even if not pleaded.

4. Wisma Punca Emas exception

Wisma Punca Emas Sdn Bhd v Dr Donal R O’Holohan [Supreme Court]

In this case, the appellant contended that the main issue was a question of negligence but the trial judge awarded the claim of nuisance, i.e. physical damage to adjoining land and awarded both damages accordingly.

The respondent contended that nuisance was not pleaded in the statement of claim. Furthermore, there was a great difference between negligence and nuisance. The Court held that the difference between negligence and nuisance is not important as the facts also showed nuisance. It should be noted however that the decision sets a dangerous precedent as a plaintiff may get away with statement of claims that are vague and lacks clarity and precision.

Charge under the Criminal Procedure Code (CPC)

Definition: Charge is not defined in the CPC

Basically, it is a specific accusation made against a person of an offence alleged to have been committed by him.

General principles of charges:

1. Jagar Singh v PP [ACRJ Perak]

The appellant was convicted on a charge which stated that he drove his car carelessly without reasonable regard to the safety, comfort or convenience of other road users. There were two offences in 1 charge and the conviction was bad for duplicity.

Principle: an accused person must know exactly what is the charge he is called upon to answer and he should know of what offence he has been convicted.

2. PP v Leong Yoon Meow [High Court]

Principle: In drafting a charge, if what an accused person is alleged to have done cannot be described in the language of any statutory provision creating an offence, then the probability is that no offence has been committed.

3. Datuk Haji Wasli bin Mohd Said v PP [High Court]

Principle: Art. 145(3) of the FC allows the PP to prefer whatever charges and at whatever time he chooses. The Court has no inherent power to override that provision.

Form of Charges

SS. 152 – 154

1. PP v Chung Tshun Tin [High Court]

The accused should be informed with certainty and accuracy, the exact nature of the charge brought against him, otherwise he may be prejudiced in his defence.

2. PP v Dato’ Seri Anwar bin Ibrahim [Federal Court]

- It is mandatory to follow s. 153 of the CPC where the time stated in the charge must be particular as it is a ‘material matter’.

3. Law Kiat Lang v PP [Federal Court] - the date in the charge has never been material – the Court didn’t refer to s.153(1)

4. Pang Neng Tiong v PP [High Court]

In this case, the charge was for attempted robbery under s.397 of the PC read with s. 511. However, s. 511 doesn’t provide for the relevant punishment. Court held that s. 393 of the PC which provides for the offence under s.397 should be stated in the charge instead of s. 511. The Court allowed the charge to be amended.

S. 421 – omission to frame charge doesn’t nullify a conviction or sentence unless a failure of justice was caused.

Errors on Charges

S. 156 – no error in stating or omitting to the state the offence or the particulars therein shall be regarded as material unless the accused was misled by the error or omission.

S. 422 – general provision to cure any error, omission or irregularity unless it occasions a failure of justice.

Low Seng Wah v PP [High Court] – burden is on the accused to establish that he was misled by the error or omission

Gunalan a/l Visuanathan v PP [High Court]

The appellant was charged under s.392/397 of the PC for robbery. However, on the facts the appellant did not use any weapon and therefore the charge should be under s.329 of the PC. However, the defective charge did not cause a failure of justice as he knew what type of offence he was charged with. It was curable under s. 422.

Periasamy & Anor v PP [High Court]

The accused was charged under s. 148 of the PC with the offence of rioting and being in possession of weapons. However, the charge stated that the accused had rioted using deadly weapons which might cause death. Held: charge was defective as it was inconsistent with s. 148. The error was material and not curable under s. 422 as it would prejudice the accused.

Amendment of Charges

SS. 158 -162

1. PP v Salamah bte Abdullah

The appropriate time to amend the charge is at the end of the prosecution’s case even though s. 158 provides that amendment may be made before judgment.

2. PP v James Tan [High Court]

Where the facts disclose another offence for which the accused is not charged, the court ought to amend the charge unless there are reasons for not doing so.

3. Hee Nyuk Fook v PP [Supreme Court]

Where in the course of trial a charge is amended, it is mandatory to read and explain the amended charge to an accused person pursuant to s. 158(ii) of the PC. Whether s. 158 is mandatory depends on the facts and circumstances of each case.

Authorities For Adverse Possession In Land Law Malaysia

Adverse possession

- Other powers of state land. 

Adverse possession against state land – s.48

Against private land – s.341

Adverse possession – the longer a person stays on the land, the more it becomes his or her land.

S.425 – unlawful occupation

1. Sidek bin Haji Muhammad & Ors v Govt of the State of Perak & Ors

- the title to State land can only be acquired by alienation and not otherwise. Such alienation must be effected in accordance with the provisions in the statute.

2. Government of Negeri Sembilan v Yap Chong Lan

- strengthens the point of s.48. Squatters do not own land. Order 89 of the Rules of Court 2012 – evict squatter. Summary possession.

3. Sidek bin Haji Muhammad & Ors v Govt of the State of Perak & Ors

The appellants went to Perak to open up a large part of the jungle area. They met with the government officers and there was a promise by the officers that each family will receive 5 areas of paddy land. Some squatters were given 3 acres and others including the appellant didn’t get any. Appellants were asked to vacate the land.

Held: Appellant had no cause of action against the respondents. Squatters have no right at all in law and in equity. S.48 was quoted. S.78 – land not alienated then too bad. S.425 – offence for unlawful occupation. Equity couldn’t apply.

4. Bohari bin Taib & Ors v PTG Selangor – procedures on the eviction of squatters is order 89 of the ROC 2012.

5. Tetuan Tokoyaki Property Sdn Bhd v Sam Kok Sang

- Even if you were given certain facilities, it doesn’t indicate that they recognize your ownership.

i) Mere applying to the State Authority for land doesn’t grant a licence from the State Authority to live or continue to live on the land.

ii) An illegal squatter has no protection in law or in equity to enable him to claim a right to live or continue to live on the lot. Merely erecting a building on the lot and occupying it doesn’t create any right or equity against the rightful land owner.

iii) Mere payment of assessment for the first defendant’s house doesn’t impliedly give him the permission or consent to continue to live on the lot as the charge is imposed by the local authority because ss. 127 and 163(1) of the Local Government Act 1976 empowers the local authority to impose charges.

iv) By providing water, electricity and litter bins, it doesn’t mean that the State Authority had impliedly given the first defendant permission to live or continue to live on the said lot.

Note: Compensation may be given by the government to squatters although it is not compulsory legally.

6. Government of the State of Negeri Sembilan v Yap Chong Lan & Ors

Issue: whether the respondents have acquired equitable interest/right to remain on the lots?

1. The collector has no authority to bind the State Authority.

2. No equitable estoppel in public law. Cannot use against the Public Authority in exercising its powers.

There was a promise by the collector to allow the respondents to stay on the land. The promise was for a 99 years lease. Held: Collector has no right to bind the SA.

S. 78(3)

7. UMBC v Pemungut Hasil Tanah Kota Tinggi

Privy Council – no intervention by equity. NLC is complete and comprehensive. Cannot apply equity to NLC.

- If want to apply equity, only apply it in private ownership. No reason to extend it to public law of planning and control where it binds everyone.

8. Chong Wooi Leong & Ors v Lebbey Sdn Bhd

Politician promised to give TOL to certain people during election. Promise is not binding

9. Muniandy a/l Subramaniam & Ors v Majlis Perbandaran Langkawi Bandaraya Pelancongan & Anor

- About a temple that existed since 1928, i.e. before state government acquired the land. The status of the land was reverted back to State land. Temple had to be demolished.

Similar Fact Evidence In Malaysia (Part 2)

SFE (Part 2)

Statutory exceptions:

S. 15 – accidental or intentional; part of series of similar occurences; same person

Makin is wider in application.

S. 14 – covers the entire state of mind

Both s. 14 and s. 15 involve mens rea.

S. 11(b) – existence or non-existence of any fact in issue or relevant fact highly probably or improbably.

S. 14

1. R v Straffen – defence was mistaken identity (actus reus) – s. 14 and s. 15 not applicable. Some argued that SFE can be admitted in relation to actus reus by using s.11(b)

2. Explanation 2 to s. 14 clearly shows SFE can be allowed as an exception. S. 15 is more restrictive.

3. Teo Koon Seng v R – before allowing SFE it requires a great deal of particularity and an immediate reference to the fact in issue.

4. PP v Teo Ai Nee – Prosecution has to prove that state of mind existed particularly, not generally

Note: Courts have taken a very restrictive approach on this section based on Explanation 1 and the illustrations to the section.

5. X v PP

Accused was charged with aiding and abetting bandits. Prosecution wanted to bring in evidence that in previous occasions, he was seen hanging out with bandits, to show state of mind and that he was consorting with them. Court used s. 14 and s.11(b) to admit. S. 15 was rejected because no issue as to accidental or intentional.

6. Anthony Ler Wee Teang v PP

Statement could be brought in because it was particular and showed state of mind.

Note: s. 14 is influenced by the Makin/Boardman/DPP v P test, but the common law principle is much wider as it can also include evidence of actus reus.

S. 15:

3 conditions:

a. accidental or intentional or done with particular knowledge or intention

b. act formed part of series of similar occurrences

c. the person doing the act was concerned. (s. 15 is known as the systems section)

PP v DSAI (No. 3)

SFE must be of the same specific kind as the fact in issue and the court will consider if there is proximity in time, in method and a nexus between the 2 set of facts.

Note: s. 15 will not apply to AR, only MR. There must be independent direct evidence of AR. SFE evidence under s.15 will only be admitted to rebut accident by establishing system.

Cases

1. Junaidi bin Abdullah – cannot use s. 15 to bring in SFE unless there is a real anticipated defence, not just a fancy defence.

2. Teo Koon Seng v R – s. 15 can only be used if there is an issue of accident

3. PP v Ang An An – Accused of driving ‘kereta sapu’. Private vehicle used illegally as a commercial vehicle. He was observed by police officers ferrying people in his car. On the 3^rd day they arrested him. Issue: can the prosecution bring in day 1 and 2 in relation to the charge for day 3? S. 15 is used.

Azlan Shah: Evidence of past observations are relevant under s.15 of EA, used to anticipate any defence the accused might raise. Provided that it is accidental or intentional. Must have direct evidence of actus reus. Must be part of a series of similar occurrences. Same person must be involved.

4. PP v Mohamad Fairus Omar

Same principle as in Ang An An. Drug possession. Previously accused had possessed drugs (can’t bring in s. 15 unless there is direct evidence of possession of drugs. S. 15 is confined to mens rea – accidental or intentional)

S. 11(b)

• SFE may be admitted on the basis that the evidence renders it highly probably that it was the accused who has committed the offence.

• Controversial

Is S. 11(b) an exception to SFE?

There are three answers to this, yes, no and maybe.

YES

SFE may be admitted on the basis that the evidence renders it highly probable that it was the accused who has committed the offence - R v Raju [1953] MLJ 131

1. Abubakar Bin Ismail v R [1954]

Accused was charged with endorsing a license without checking the documents properly. This is a licence which had to be endorsed in Singapore. Two counts of not ensuring or not verifying whether the person already had a licence in Malaysia. The evidence that was brought in was that in a number of other occasions, he had endorsed the documents without checking whether the person already had a valid licence in Malaysia. They raised S. 11(b) and the court held in 8 other occasions the same offences were done and it was highly probable that these two occasions were done in the same. Court allowed the evidence to be brought in under S. 11(b) because they were relevant to the fact in issue.

2. X v PP [1951]

Court discussed S. 14 and S. 11(b) and held that for S. 11(b) the test was high probability and not high probativeness (high probability is a lower and easier test compared to high probativeness).

Note: SFE admitted under S. 11(b) applies the “Highly probable” test.

NO

a)      Augustine Paul – DSAI: S. 11(b) subject to S. 54

The judge came to a conclusion that S. 11(b) was not an exception for SFE to be brought in. The reasoning given was because it was subject to S. 54.

b)      Accepted Interpretation of S. 11(b)

Rangayyan v Innasimuthu [1955]

The case dealt with the interpretation of S. 11(b). S. 11 only applies to facts which are immediately connected to the fact in issue. Since the definition of SFE is another event similar but not connected, therefore S. 11(b) does not apply to SFE.

 Ismail v Hasnul [1968] (FC case)

S. 11 does not admit collateral facts which are not conclusive and no connection with the main facts.

c)      Stephen’s interpretation

Stephen is the person who drafted the Evidence Act. In his commentary, he said it does not apply to things which are similar but not connected to the fact in issue.

Note: Jeffrey Pinsler

He wrote an article, on the SFE and principles of admissibility, and said, the major difficulty of the interpretation of S. 11(b)… 11(b) are limited to facts which are connected to the facts in issue and events which are similar but not connected can only be brought in under S. 14 and S. 15. Further, to allow SFE to be brought in by S. 11(b) would make S. 14 and S. 15 redundant.

R v Pharbudas Ambaram [1874] 11 BHC 90

Indian case where the judges stated S. 11 should not be construed in its widest significance but considered as limited in its application to S. 14, so construed S. 11 cannot be used to bring in one crime to prove another crime even though it is cogent.

MAYBE

Jeffrey Pinsler

What if used to bring in actus reus instead of mens rea. What should be the test then, high probability or common law test of high probativeness test. It should be high probativeness test. S. 14 and S. 15 only deals with mens rea, causing a gap in the law. Therefore, in order to deal with the gap in the law, should bring in SFE for actus reus through S. 11(b).

R v Pharbudas Ambaram [1874] 11 BHC 90

Also stated that S. 11(b) should be applied to the actus reus which are not covered by S. 14 and S. 15 and the test should be high probativeness test.

Conclusion:

S. 11(b) is not an exception to SFE, it was never drafted or intended to be an exception. However, if at all it could be argued to be an exception to SFE, it can only be allowed for actus reus and the test must be the probativeness test, which is the current common law test which is also applicable in this country.

Does the Common Law Test apply to the sections?

• Current approach suggest that both S. 14 & S. 15 impliedly requires the balancing test as put forward in Makin/Boardman/DPP v P.

1. Tan Meng Jee v PP [1998] 1 MLJ 537

While the plain wording of the EA does not adopt the probative approach, it makes it quite clear that… A balancing process must take place, which is inherent to the EA is one of degree and not one of substance…

Principle that emerges is that when S. 14 and S. 15 are being argued, it must go through the balancing test, which is the common law test where probative must outweigh prejudice.

2. PP v Teo Ai Nee [1995] 2 SLR 69

3. Azahan Bin Mohd Aminallah v PP [2005] 5 MLJ 334

Referred to PP v Teo Ai Nee

A trial judge deciding whether SFE should be allowed must go through the weighing process by weighing the probative value against the prejudicial effect towards the accused which is impliedly interpreted into S. 14 and S. 15.

What is Similar Fact Evidence in Malaysia?

Similar Fact Evidence (SFE) in Malaysia (Part 1)

What is SFE? - Evidence of facts which are similar to the fact in issue but which are unconnected to the charge.
E.g. X is charged with murder of his wife and 2 years ago, X had assaulted his wife but not charged. The SFE is violence against the spouse. Someone who has assaulted his spouse is likely to attack her again.

General rule: SFE is not admissible Res inter alios actae: all evidence that has nothing to do with the present dispute will be excluded.
Note: SFE is a subspecies of bad character evidence.

Bad character evidence is not admissible or a GR. Can be examined together In criminal proceedings, SFE can be introduced in:
a) previous conviction for a similar offence
b) previous charge for a similar offence
c) previous misconduct similar to the present charge
d) factual background
e) accused is charged in a single proceeding for several counts.

If there is similarity between 2 counts, SFE may be introduced between the 2 counts.
 GR: SFE is not admissible.

1. Makin v Attorney General for New South Wales A husband and wife were charged with murder of a baby. The baby was found buried in the backyard. The baby was an adopted child. The couple looked after the child and gets a lump sum payment for adopting the child. Prosecution argued that the couple took the money and killed the baby. They found 13 other babies buried in the backyards of houses occupied by the couple previously. GR: SFE is not admissible. Exception: Can bring in SFE to show system, modus operandi, or to rebut the defence of accident or any other defence.

2. Rauf bin Hj Ahmad v PP – incorporated Makin into Malaysia

3. Wong Kok Wah v PP Accused was charged with importing goods without paying customs. Prosecution brought in witness who claimed to have worked for the accused. The witness was previously arrested because of goods in which the accused had not pay customs. SFE is not admissible.

Why exclude SFE?

R v Bond a. prejudicial effect (prejudging that accused is more likely to commit the offence because of his previous conviction)
b. unfair
c. natural justice – accused will only be prepared to answer the current charge d. time/costs – practical reasons

Exceptions to SFE The law has evolved and has created certain exceptions to the GR against SFE in the interest of justice. Where these exceptions apply, SFE will be admissible.

Note: SFE will be admissible where its probative value outweighs its prejudicial effect.

Exceptions: 1. statutory – s. 11(b), s.14, s.15 2. common law – Makin/Boardman test The existence of both statutory and common law exceptions were identified in the following cases:

1. R v Raju (Spencer Wilkinson J)
In this country such evidence of similar acts is often admissible under s.15, s.14 and s.11. S. 14 is to rebut accidents, the common law is to rebut defences or to prove identity. S. 11 could include common law.

2. Junaidi bin Abdullah v PP
On the principle laid down in Makin and Boardman, we are of the opinion that for the purposes of adducing SFE is justifiable on grounds of relevancy and necessity, in addition to those under s.14 and s.15. *Must discuss both statutory and common law Common law exceptions: Note: the current test to determine admissibility is probative value outweighs its prejudicial effect. It is a question of fact Makin Test 1st limb – GR: SFE is not admissible 2nd limb – exceptions to SFE Specific purpose test: SFE will only be admitted: a. to rebut the defence of accident b. to show system/modus operandi (designed) c. to rebut any other defence

Note: R v Raju Junaidi bin Abdullah

1. R v Boardman
A headmaster was charged with attempted buggery and incited buggery with 3 boys. Victims were his students (involves child witnesses and sexual offences). Prosecution wanted to bring in corroboration, using evidence between victims interchangeably. The striking similarity was that the accused always wanted to play the passive role. Accused appealed on the ground that SFE can only be used to rebut the defence.

House of Lords reformulated Makin’s test. Note: Did not overrule Makin, only reformulated the test. a. SFE does not depend on specific categories under Makin.
b. A high degree of relevance will be required. The evidence is so highly relevant that to exclude it would be an affront to common sense.
c. A strong degree of probative force is required. Such a probative force is derived where there is a striking similarity.
d. The similarity is so striking that when judged by experience or common sense it could not arise for pure coincidence.

Boardman test: 
a. Where the probative value outweighs its prejudicial effect
b. Such probative value will arise where there is a striking similarity between SFE and the current charge
c. Striking similarity: unique and not merely stock trade

2. DPP v P test (R v P)
Accused was charged for raping 2 of his daughters. He threatened his daughters not to tell and paid for their abortions. Prosecution wanted to bring in SFE (corroboration). Accused denies the charge. Makin is not viable. Boardman can be used if there is a striking similarity. However, it was stock trade. Therefore, striking similarity is no longer a prerequisite. Reformulated the Boardman test: striking similarity is not a prerequisite for SFE evidence to be admissible. The test in Boardman is simply that the probative value outweighs the prejudicial effect. Such probativeness could exist where there is a striking similarity but this is not a prerequisite.

Case law on application of Makin/Boardman test 

1. R v Smith (Brides in the bath)
Mr. Smith was charged with the murder of his wife and she was found dead in the bathtub, she had drowned. His defence: she had fits and drowned accidentally. He claimed that he knocked the door and she didn’t answer as she was already dead. He called for help from the landlady and the landlady verified his story. Prosecution found out that wife no.1 and no.2 drowned in the bathtub. He moves from town to town. He changes his name and married in a different name. He always pretended to be a business man, or an art dealer, etc. He always finds well to do women. In all cases, the parents would object, and the women were prepared to marry him regardless. He always asks the landlady whether ‘do you have a long bath?’ He convinces her to make a mutual will. He will ask the lady to get insurance and he is the beneficiary. He will go to the doctor and convince her and the doctor that something is wrong with her. It was found out that the door wasn’t broken. Court: SFE was allowed, there was a system/modus operandi.

2. R v Bond
Accused was charged with illegal abortion/procuring miscarriage. Defence was accident. Evidence: another patient on whom he had performed an illegal abortion. He told her that he had put a lot of girls ‘right’. Court allowed SFE

 3. R v Wilson
Accused was charged with rape. He had a previous charge still pending for indecent assault against another woman. Prosecution wanted to hear both counts together, and use evidence interchangeable (corroboration). Defence was that rape was accident. It was a mistake of consent. He picked up the woman in the club and offered to give a lift home. On the way home he attacked her. Makin and Boardman was not applicable. Court held: nothing striking, no system, no modus operandi, SFE not admissible.

4. R v Straffen
Accused was charged with murder of a young girl by strangulation. She was not sexually assaulted and her body was dumped in an open area (no attempt at concealing body). Accused was already in prison (mental health institution). He escaped and the girl was killed during that short period of time. Accused denied it. Defence: mistaken identity. He had confessed to killing 2 other girls in the past. They were also young girls, strangled, not sexually assaulted, and dumped in an open area. Prosecution wanted to bring in accused’s confession and there is a similarity between the 2 girls and the current victim. There was a striking similarity: not sexually assaulted, no attempt to conceal body. Makin test was used – to rebut the defence of mistaken identity.

5. R v Thompson (powder puff case)
Accused was charged with committing indecency in a public toilet with 2 boys. These boys after the assault (16th of March) made a police report, said that the man made an appointment with them to go back to the toilet for the man to sexually assault them again. The boys were there again. The accused was seen approaching them and gave them money. The police arrested him. Defence: mistaken identity. They searched him and found a powder puff. They searched his house and found indecent photograph of boys in his house. Can you bring that evidence in? It shows that he may be a homosexual. SFE cannot be used to show that the accused had certain tendencies. However, the judge allowed the powder puff, and SFE was admitted. It was clearly prejudicial.

Augustine Paul: the reformulated Makin/Boardman test will apply in Malaysia

Makin Test: Rauf bin Hj Ahmad v PP Wong Kok Wah v PP

Boardman test: Junaidi bin Abdullah PP v Veeran Kutty

DPP v P Test: PP v Teo Ai Nee (Singaporean case) Azahan bin Mohd Aminallah v PP (COA) – present law is DPP v P – referred to Teo Ai Nee PP v Mohamad Roslan bin Desa

1. Azahan bin Mohd Aminallah v PP
Accused was charged with raping his 15 year old daughter in an oil palm estate. Accused didn’t have a legal representative. Matter was postponed to appoint a lawyer. On the 2nd date, the legal aid lawyer didn’t appear. The judge didn’t postpone and proceeded. The daughter gave testimony that he had raped her many times. Prosecution wanted to add to the charge. They amended the charge to 4 counts. The Court found a prima facie case and he had no defence. He said that she was influenced by her mother that was having an affair with another man. HC confirmed the conviction On appeal, the COA referred to DPP v P, and held we should balance probative and prejudicial. The Sessions Court and HC were wrong because they admitted SFE without checking. The accused was also unrepresented.

2. PP v Mohamad Roslan bin Desa
The accused was charged with murder. He had a previous conviction of robbery that had caused the death of a person. COA ruled: can’t bring it in as there was no striking similarity. FC held: Courts below rejected SFE because no striking similarity. DPP v P made it clear that striking similarity was no longer a prerequisite. In England, SFE has been codified in the Criminal Justice Act 2003.

3. R v Z
Accused was charged with rape. Defence: mistake as to consent. He has 4 previous charges of rape against him. In 3 previous cases, he was acquitted. The 4th case he was convicted. Prosecution wanted to bring in 4 previous charges. Accused argued that 3 acquittals cannot be brought in. Trial judge held can only bring in previous conviction and not acquittal. The issue now was whether previous acquittal can be brought in. HL: Acquittal can be brought in provided probative value outweighs the prejudicial effect. Probative value: 1) number of previous acquittals 2) time lapse between the charges.

 4. R v Barrington
misconduct need not be criminal in nature.

5. PP v DSAI (No. 3)
Defence can also adduce SFE. If the defence was to adduce SFE, the test: whether it is cogent enough to raise a reasonable doubt.

6. R v Ananthanarayanan 
The appellant was convicted of indecent assault on four women. The complaints were all made the same time and evidence suggested that the complaints were not spontaneous but prompted by the social services department. Appellant argued that the evidence may have been contaminated. Held: there was a real possibility that the complaints were not truly independent of each other, and the judge shouldn’t have directed the jury that the evidence of the women was mutually corroborative. Evidence was disallowed.

7. R v H
Defendant was charged with sexual offences against his adopted daughter and his stepdaughter. The girls had discussed the matter and told the defendant’s wife. The defence alleged that there was a possible collusion and that the evidence was contaminated. The House of Lords held that the probative force and the prejudicial effect of such evidence must be considered. Even though there was a risk of contamination, the judge allowed the evidence as the probative force outweighed the prejudicial effect.

I'm back

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