PENCERAIAN BAGI BUKAN MUSLIM

Penceraian amat biasa di Malaysia dan mengikut kajian angkanya semakin meningkat.

Penceraian terdapat dua jenis sekiranya mengikut Law Reform (Marriage and Divorce) Act 1976 iaitu Penceraian Bersesama dan Penceraian Unilateral.

Perbezaan antara perceraian bersesama dan perceraian unilateral

Di praktikal, penceraian bersesama adalah sangat mudah kerana asalkan pasangan suami isteri bersetuju bercerai dan menghadiri ke Mahkamah sekali, perkahwinan akan dibubarkan mengikut seksyen 52 LRA 1976.

Namun, bagi penceraian unilateral adalah amaty berbeza kerana ia terpaksa mematuhi S54 LRA 1976 iaitu:-

Proof of breakdown 54. 

(1) In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say: Law Reform (Marriage and Divorce) 37

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; 

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; 

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; 

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition. 

Hal ini  bermakna pasangan suami dan isteri salah satu pihak perlu membuktikan kepada Mahkamah bahawa suami atau isterinya melakukan penzinaan/ tingkahlaku yang tidak munasabah seperti pukul memukul/ meninggalkan suami atau isteri sekurang-kurangnya dua tahun / suami dan isteri berpisah sekurang-kurangnya dua tahun.

Persamaan Perceraian Bersesama dan Perceraian Unilateral

Isteri boleh meminta nafkah isteri dan sekiranya pasangan mempunyai anak hasil perkahwinan, pihak yang mendapatkan hak penjagaan, kawalan dan pemeliharaan anak-anak hasil perkahwinan boleh mendapatkan nafkah anak. Contohnya, sekiranya suami mendapatkan hak penjagaan, kawalan dan pemeliharaan anak-anak hasil perkahwinan, suami boleh meminta nafkah anak dengan isteri. 

Namun tiada nafkah SUAMI. 

Sekiranya terdapat harta matrimonial seperti rumah, kereta, bank akaun semua boleh dipertikaian dalam kedua-dua penceraian ini.

Penceraian di Malaysia

Hari ini, saya ingin berkongsi ilmu berkenaan penceraian. Penceraian ini untuk bukan Muslim.

Terdapat 2 jenis penceraian. Penceraian bersama iaitu penceraian yang disetuju oleh kedua-dua iaitu suami dan isteri. 

Penceraian unilateral ialah penceraian dibangkitkan oleh salah satu pihak dan penceraian sebegini timbul akibat daripada:-

(a) Suami atau isteri melarikan diri dan tidak tahu kedudukan terkini suami dan isteri;

(b) Suami dan isteri berpisah 2 tahun;

(c) Suami dan isteri mempunyai hubungan sulit dengan pihak ketiga (adultery) dan lain-lain

Apa perbezaaan antara penceraian bersama dan penceraian unilateral?

Penceraian bersama 

(a) pasangan suami dan isteri hanya perlu menghadiri ke Mahkamah sekali sahaja.

(b) mengambil masa yang cepat

(c) Isu nafkah isteri, nafkah anak dan hak jagaan anak ditentukan oleh suami dan isteri

Penceraian unilateral 

(a)  pasangan suami dan isteri mungkin perlu menghadiri ke Mahkamah lebih daripada satu kali dan perlu duduk di kandang saksi sebagai saksi 

(b) mengambil masa yang panjang

(c) Isu nafkah isteri, nafkah anak, hak jagaan anak ditentukan oleh Mahkamah

Malaysia Legal System

The hierarchy of courts begins from the Magistrates' Court, Sessions Court, High Court, Court of Appeal, and finally, the Federal Court. There are two statutes which are relevant to jurisdiction of court ie Subordinate Court Act 1948 and Court of Judicature Act 1964.

 Article 121 of the Constitution provides for two High Courts of co-ordinate jurisdiction, the High Court in Malaya, and the High Court in Sabah and Sarawak. Thus this creates two separate local jurisdiction of the courts – for Peninsular Malaysia and for East Malaysia. The highest position in the judiciary of Malaysia is the Chief Justice of the Federal Court of Malaysia(also known as the Chief Justice of Malaysia), followed by the President of the Court of Appeal, the Chief Judge of Malaya, and the Chief Judge of Sabah and Sarawak. The superior courts are the High Court, Court of Appeal, and the Federal Court, while the Magistrates' Courts and the Sessions Courts are classified as subordinate courts.

Magistrates Courts

Magistrates are divided into First Class and Second Class Magistrates, the former being legally qualified and having greater powers. Second Class Magistrates are now not normally appoint

In criminal matters, First Class Magistrates' Courts generally have power to try all offences of which the maximum term of imprisonment does not exceed 10 years or which are punishable with fine only, but may pass sentences of not more than five years imprisonment, a fine of up to RM10,000, and/or up to twelve strokes of the cane under section 87 (1) Subordinate Court Act 1948. The Magistrates Courts hear all civil matters with less than RM100,000 in dispute. The Magistrates' Courts also hear appeals from the Penghulu's Courts.

Session court

The monetary jurisdiction is not exceeded RM1,000,000-00 Ringgit Malaysia. 

High Court

The two High Courts in Malaysia have general supervisory and revisionary jurisdiction over all the Subordinate Courts, and jurisdiction to hear appeals from the Subordinate Courts in civil and criminal matters.

Court of Appeal

The Court of Appeal generally hears all civil appeals against decisions of the High Courts except where against judgment or orders made by consent. In cases where the claim is less than RM250,000, the judgment or order relates to costs only, and the appeal is against a decision of a judge in chambers on an interpleader summons on undisputed facts, the leave of the Court of Appeal must first be obtained.The Court of Appeal also hears appeals of criminal decisions of the High Court. It is the court of final jurisdiction for cases which began in any subordinate courts.

Federal Court

The Federal Court is the highest court in Malaysia. The Federal Court may hear appeals of civil decisions of the Court of Appeal where the Federal Court grants leave to do so. The Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the High Court in its original jurisdiction (i.e. where the case has not been appealed from the Subordinate Courts).

Law of Corroboration in Sexual offence

As we know that generally there is no law in evidence act 1950 to say that corroboration is needed for sexual offences. However, the court tend to ask for corroboration in sexual offences. why it is so? This is because the judge held that woman involved in sexual offences tend to fabricate some stories or telling lies. From the history, the judge held there are too many cases involve false accusation by the woman. From my personal view, I feel that corroboration for sexual offences are needed even there is no clear provision for this matter. From my experience, I had witnessed a case where a male co-worker had been accused for raping his co-worker in car. After the incident, the victim did not go to the police station to report her case instantly but only being asked by her boy friend to do so then she only went to report the case. I am not sure about the reason, but from I have come out with few inferences:
First: the victim feel ashamed, afraid that this matter will be spread around
Second: the victim actually consent to the sexual intercourse with her co-worker then after found out by her boy friend, and her boy friend felt angry and asked her to do so in order to save face

From the above two reasons I have listed, I seriously feel that corroboration is needed even in a form of documentary or oral evidence is suffice. It is undeniable that the society always hate rapist but don't forget that an accused is always presumed innocent until proven guilty. With corroboration, only the justice could be served.

Res gestae

Res gestae describes a common-law doctrine governing testimony. Under the Hearsay rule, a court normally refuses to admit as evidence statements that a witness says he or she heard another person say. The doctrine of res gestae provided an exception to this rule. 

In Malaysia there are actually some people confuse about S6 Evidence Act 1950 with the Res Gestae. Some cases do actually show that S6 has incorporated the principle of Res Gestae. However from the illustration of S6 of evidence act do show that S6 is much more wider than the principle res gestae. This is because to apply the principle of res gestae, there must be actions can be constituted as a transaction. In the case of Amrita Lal Hasra, in order to consider what is included in a transaction, 4 criterias must be taken into consideration, they are: (a) proximity of place, (b) proximity of time (c) continuation of action (d) communication of purpose and design. It is very clear that S6 of evidence act does not depend on these 4 criterias. 

Difference between S6 and Res Gestae

Bear in mind that S6 does not include hearsay evidence but Res Gestae does. So in order to render the hearsay evidence admissible under the evidence law, the principle of res gestae apply. Normally, the court refuse to render hearsay evidence admissible this is because the maker of the statement must be called to the court to give their statements. To render a hearsay evidence admissible under res gestae, the case of R v Andrew must be referred. In that case, the court held that to admit a hearsay evidence, there must be no error, the person (who give the statement) must be dominated by the event happen. 

Res Gestae and S32

S32 of evidence act 1950 is talking about the dying declaration. Dying declaration is a hearsay evidence. For example, A before dying tell B that C has killed A. Then B bring this statement to court. This evidence is admissible under the principle of res gestae provided the criterias in the case of R v Andrew are fulfilled. S32 is also an exception to hearsay evidence.

Best Evidence Rule In Malaysia

Best evidence rule means that if there are two ways of proving a matter and one method is more cogent than the other the more cogent method must be adopted. Circumstantial evidence is not to be adduced if there is direct evidence available. Evidence to show that a party consented to a particular matter should not be given by others if the party himself can be called as a witness.

Does Malaysia apply best evidence rule? Before knowing the answer let we see a brief history of best evidence rule. Its beginnings manifested itself around the years 1699-1700 when Holt CJ in Ford v. Hopkins in allowing a goldsmith’s note as evidence against a stranger of the fact that the goldsmith had received money, said that the Court must take notice of the usage of the trade; that "the best proof that the nature of the thing, will afford is only required". Of course we can't ignore a famous landmark case named Omnychund v Barker, the Judges and sages of the law have laid it down that there is but one general rule of evidence; the best that the nature of the case will allow.

Some how later, in the case of  Garton v. Hunter Lord Denning MR said that:

That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in one’s hand, one must produce it. One cannot give secondary evidence by producing a copy. Nowadays we cannot confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. It changes the best evidence rule. It brings out a scenario that if one have the original copy of evidence, one must produce it but not a photocopy of it. However, if one only have the photocopy of the evidence, the court still render it as admissible but the weight of the evidence will be decided by the court.

In Kajala v. Noble the defendant was charged with using threatening behaviour likely to cause a breach of the peace, in a serious disturbance in a public street during which a large group of mainly Asian youths hurled missiles at the police. A prosecution witness had identified the defendant as one of those youths. He had recognised him on a BBC news item about the incident. The prosecution had relied on a video cassette recording, which the Court was satisfied was an authentic copy of the original. On appeal against his conviction on the ground inter alia that only the copy of the video film was produced when the original film which existed should have been produced, and that the prosecution were not entitled to rely upon a copy, since it was secondary evidence, the production of which could not be justified under those circumstances, Ackner LJ said:

We cannot agree. The old rule that the party must produce the best evidence that the nature of the case will allow and that any less good evidence is to be excluded, had gone by the board long ago. The only remaining instance of it is that, if an original document is available in one’s hands one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. The old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes or films.

How about position of Best Evidence rule in Malaysia?

In Malaysia How Chien v. PP was one of the earliest cases in which the best evidence rule was invoked. In that case Mills J in quashing the appellant’s conviction for smuggling forty packets of cigarettes, for want of the evidence of the smuggled objects themselves stated "I rule that ordinarily prosecuting officers should produce before the Court such real evidence as circumstances reasonably permit; if it is not reasonably practicable to produce the material thing itself they should produce a portion of it, or a sample of it or a photograph, or a sketch or some other evidence which may supply the Court with the best evidence reasonably obtained under the circumstances." To support his decision he cited the ruling of an English Judge that "it is clear to everybody that if justice is to be administered, the greatest precautions must be taken to see that the best evidence available is presented to the Court.

It is clearly shows that Malaysia has applied the Best evidence rule. Look at S65 of Evidence Act 1950. 

In conclusion, Malaysia has applied the principle of best evidence rule but if best evidence is not available, the courts still admit all relevant evidence then only decide the weight.

S15 Evidence Act 1950 Similar fact evidence

The similar fact evidence

For similar fact evidence, we shall refer to the landmark case Makin v. Attorney General for New South Wales [1894] AC 57. The brief fact of this case is A husband and wife were charged with murdering a child they were fostering and burying it in their backyard. During their trial evidence of twelve other babies found buried in the backyards of their previous residences was offered as evidence. The appeal was based on whether this evidence was admissible or whether it was unfairly prejudicial to their defence. Lord Herschell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances.'It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other'. In short, evidence of similar fact only could be admitted when it is not merely relevant and probative, In R v Smith, 1915, (11 Cr App R, 229), the ‘brides in the bath’ case, the defendant was accused of one murder but evidence was offered of two more. The admission of this evidence followed similarly from the improbability that three different women with whom he had gone through a form of marriage, and who had made financial arrangements from which he would benefit, had all drowned in the bath by accident shortly afterwards.

Although the leading cases in which the similar fact principle was established concerned the crime of murder and the admission of similar facts which were not disputed, from the beginning of the twentieth century onwards there was growing pressure on the judiciary to lower the threshold for the admission of such evidence in order to obtain convictions in sexual cases. This pressure was particularly strong in relation to cases involving allegations of homosexuality. Later in the case of In the case of R v Sims, (1946, 31 Cr App R 158) the Court considered an appeal which turned on whether allegations of buggery made by three different men against the accused could be admitted within the same trial in support of one another. However, In the judgment drafted by Denning J, the Court ruled that the principle applied to strikingly similar facts in such cases as Makin and Smith should be extended and applied to similar allegations. The judgment failed to present any sound rationale for changing the law in this manner.

Some how later,  in the case of DPP v Boardman (1975), which concerned allegations made by three adolescent boys against their male teacher, the House of Lords lent its own authority to the judgment in Sims, while rejecting its view of homosexuality. At the same time that it did this, however, it drew attention to the grave dangers which might follow from this change in the law. Lord Cross pointed out that that there was a marked difference between cases which involved allegations and the cases (such as Makin and Smith) which involved counts of murder and undisputed evidence of previous deaths. In the original cases there was, said Lord Cross, ‘no question of any witness for the prosecution telling lies’. ( the witness for case In AG v Makin is a deceased and the case of R v Smith the deceased is the wife, so deceased in fact unable to tell lies). Lord Wilberforce underlined this view and warned against the danger that, as a result of the extension of the similar fact principle, innocent defendants might find themselves facing a series of grave allegations, all of which were false.

The general test prescribed by DPP V Boardman was a cautious one. In deciding the question of admissibility, the judge should weigh the probative value of the evidence against its prejudicial effect. If the similar fact evidence was so weak, so unreliable or so contaminated that its probative value was outweighed by its capacity to prejudice a jury, then it should be excluded. In their judgment their Lordships reinforced the caution embodied in this test by placing particular stress on the need for there to be ‘striking similarities’ between allegations before the possibility of their being admissible could even be considered.

Later about year 1990 onwards, the principle of  DPP v Boardman seems have been replaced by few cases. In the case of DPP v P, Lord Mackay went on to reject the requirement that allegations, in order to be admissible, should be ‘strikingly similar’. In doing so he wrongly claimed that this requirement applied only to cases where identification was at issue. Bear in mind that , the judgment will let the defendant or accused suffered more from false allegations. 1995, in R v H, the second safeguard which had been put in place by Boardman was also removed. Lord Mackay, who once again gave judgment, made explicit what had already been implicit in his earlier judgment and held that, in ruling on the admissibility of a series of similar allegations, the judge should generally assume that the allegations in question were true. ( My own opinion= this clearly not practicable because the judge in the end has to access whether the probative value is higher than prejudicial effect, if the judge has to assume the allegations in questions were true then all the evidence sure admissible.)

In short, the principle of innocence until proven guilty or the presumption of innocence of the accused has been seriously affected. Because these decisions have permitted, and indeed encouraged, the admission of evidence which is both highly unreliable and massively prejudicial, innocent defendants have again and again found themselves facing large numbers of allegations, all of which are false..

However bear in mind that the principle laid down in te case R v H is not applicable in Malaysia as it is clearly shown in the case of PP V Veeran Kutty. Malaysia has clearly adopted the principle in the case of DPP V Boardman which means in order to render a similar fact evidence admissible it must show the probative value overcomes the prejudicial effect.