## Facts

- During the Malayan Emergency, Subramaniam was found wounded in Johore and charged under Emergency Regulations 1951, reg. 4(1)(b) for possessing 20 rounds of .303 ammunition without lawful authority, an offence carrying the death penalty.
- Subramaniam asserted duress, alleging terrorists captured him and compelled his conduct by threats of death.
- At trial, Subramaniam sought to testify about what the terrorists said to him to explain his fear and compelled conduct.
- The trial judge excluded the alleged terrorist statements as hearsay unless the terrorists were called as witnesses, then found no evidence of duress, convicted Subramaniam, and imposed the death sentence.
- The Supreme Court of the Federation of Malaya dismissed Subramaniam’s appeal.
- Subramaniam appealed by special leave to the Judicial Committee of the Privy Council.

## Issues

1. Whether the accused’s testimony recounting statements made to him by terrorists was inadmissible hearsay.
2. Whether excluding that testimony prevented proper consideration of duress (including under Penal Code § 94) as a lawful excuse to possession under the Emergency Regulations.
3. Whether the erroneous exclusion of relevant admissible defence evidence required appellate intervention for a fundamental miscarriage of justice.

## Decision

- The Privy Council allowed the appeal and reversed the order affirming the conviction and sentence.
- The trial judge erred by treating the terrorists’ statements as hearsay when they were offered to prove they were made and their effect on the accused’s state of mind, not the truth of their contents.
- The exclusion shut out a substantial part of the accused’s account bearing directly on duress and undermined the fairness of the trial.
- Because the excluded evidence went to the root of the duress defence, the Board could not be confident the result would have been the same had the evidence been admitted, constituting a fundamental miscarriage of justice.

## Legal Principles

- An out-of-court statement is hearsay and inadmissible when tendered to prove the truth of its contents.
- An out-of-court statement is not hearsay and is admissible when tendered to prove the fact the statement was made, where that fact is relevant (including to explain a person’s state of mind or subsequent conduct).
- Where a defence depends on the accused’s perception of threats, statements may be admissible to show the threats were communicated and reasonably induced fear, even if the statements’ factual assertions are unproven.
- Wrongful exclusion of relevant admissible defence evidence, especially where it substantially prevents an accused from presenting a defence, can amount to a fundamental miscarriage of justice warranting appellate reversal.

## Conclusion

The Privy Council held that evidence of threats communicated to an accused is admissible when offered to show their effect on the accused’s state of mind rather than to prove the threats’ truth, and it reversed the conviction because excluding that evidence prevented a fair assessment of duress and caused a fundamental miscarriage of justice.


Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.)