Subramaniam v Public Prosecutor
Subramaniam v Public Prosecutor
 1 WLR 965, 100 Sol Jo 566
Judgment Date: 09/07/1956
Catchwords & Digest
COMMONWEALTH – CONSTITUTIONS AND GOVERNMENTS OF MEMBERS OF THE COMMONWEALTH – PARTICULAR MEMBERS OF THE COMMONWEALTH – AUSTRALIA – STATE LEGISLATURE – STATE TRANSPORT CO-ORDINATION (BARRING OF CLAIMS AND REMEDIES) ACT (NSW)
In Hughes and Vale Pty Ltd v State of NSW  AC 241, the Judicial Committee held that the provisions of State Transport (Co-ordination) Act 1931-1951, of New South Wales (the principal Act) requiring application to be made for a licence and all provisions consequential thereon in so far as they purported to apply to, and to the operators of, public motor-vehicles operated in the course of and for the purposes of inter-State trade were invalid as contravening section 92 of the Constitution of the Commonwealth of Australia, which provided that ‘. . . trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.’ The effect of that decision was that mileage charges had been unlawfully imposed upon and collected from respondents, who were operators of public motor-vehicles engaged in inter-State trade, over a number of years. In consequence of the decision State Transport co-ordination (Barring of Claims and Remedies) Act 1954, of New South Wales was passed, which purported in substance to validate the mileage payments and to prevent their recovery. On claims by respondents to recover mileage payments which had been unlawfully exacted under the principal Act: Held assuming that respondents would have had a good cause of action but for Barring Act of 1954, the immunity accorded by that Act to the unlawful exactions was as offensive to the Constitution as the unlawful exactions themselves, and the denial of the right to recover them therefore equally offended against section 92 of the Constitution. The effect of the Act of 1954 was that the burden on respondents’ trade remained just what it was; the freedom of their trade had been in the same degree impaired, and in letter and spirit section 92 was in the same measure defeated.
EVIDENCE – ADMISSIBILITY OF EVIDENCE – HEARSAY – ADMISSIONS – ADMISSIONS BY PARTICULAR PARTIES – BY CO-DEFENDANTS – STATEMENT IN PRESENCE OF PARTY — RECEIVABLE AS EVIDENCE THAT STATEMENT WAS MADE
Appellant was found in a wounded condition in the Rengam District in the State of Johore by members of the security forces operating against terrorists. He was tried on a charge of being in possession of ammunition contrary to regulation 4 (1) (b) of the Emergency Regulations, 1951, of the Federation of Malaya, and put forward the defence, inter alia, that he had been captured by terrorists and that at all material times he was acting under duress. He sought to give evidence, in describing his capture, of what the terrorists said to him, but the trial judge ruled that evidence of the conversation with the terrorists was not admissible unless they were called. The judge said that he could find no evidence of duress, and in the result the appellant was convicted of the offence charged and sentenced to death. On appeal: Held allowing the appeal, that the judge was in error in ruling out peremptorily the evidence of conversation between the terrorists and appellant. Evidence of a statement made to a witness by a person who was not himself called as a witness was not hearsay evidence and was admissible when it was proposed to establish by the evidence, not the truth of the Statement, but the fact that it was made. Statements could have been made to the appellant by the terrorists which, whether true or not, if they had been believed by appellant, might, within the meaning of section 94 of the Penal Code of the Federated Malay States, reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes Thus a complete, or Substantially complete, version according to appellant of what was said to him by the terrorists and by him to them had been shut out. That version, if believed could and might have afforded cogent evidence of duress brought to bear on appellant. He had not been allowed to give relevant and admissible evidence, and it could not be held with any confidence that had the excluded evidence, which went to the very root of the defence of duress, been admitted, the result of the trial would probably have been the same.
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