13. Presumption - Evidence Law 1 PDF

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PRESUMPTION Mainly, two types: Presumptio Juris (presumption of law) and Presumptio Hominis (presumption of facts). Presumption of law – rebuttable, not rebuttable. Presumption of facts – always rebuttable. Law: may be illogical, may not make sense but cannot be intervened by human. Not discretionar...

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PRESUMPTION Mainly, two types: Presumptio Juris (presumption of law) and Presumptio Hominis (presumption of facts). Presumption of law – rebuttable, not rebuttable. Presumption of facts – always rebuttable. Law: may be illogical, may not make sense but cannot be intervened by human. Not discretionary. Facts: made by human, daily life-based. Based on common sense. E.g. A drinks water at 3 o’clock – presumption of fact: A is thirsty. Section 4(1): Presumption of fact. A is caught with hundreds of credit cards – presumption of facts is that he is holding stolen cards. PP need not prove that A stole those cards, but the evidential burden immediately shifts. Section 4(2): Presumption of law, not conclusive, rebuttable. Section 4(3): Presumption of law, conclusive evidence, irrebuttable. PRESUMPTION OF LAW It is a statutory intervention, which upon proving of a fact, an inference of another (fact) can be drawn. Must prove the basic facts, only then presumption can arise. E.g. penal code: Children less than 10 years old – presumption of law is that they are incapable of committing offences. / Certified Copy of document – genuine copy of the document. / Section 108 if not heard of in 7 years you are presumed dead. CONCLUSIVE PRESUMPTION OF LAW Must prove the basic facts, only then the presumption arises. This presumption eliminates every possibility of human discretion and takes control of the process of evaluation of evidence from human logical thinking. Example: 

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Section 112 of EA – birth during marriage conclusive proof of legitimacy. “Conclusive proof” – falls under Section 4(3). How to rebut: Section 9 relationship of parties. Section 113: Presumption that boys under the age of 13 cannot commit rape. Even if the boy is only a few days away from reaching the age of 13, this section still applies.

PRESUMPTION OF FACT Example: A is charged for trafficking drug, when he was caught, a box was found under his seat (containing drugs). On top of the box was a jackfruit – presumed to have used the fruit to cover the smell – using common sense and logic. 

Section 114 of EA adverse inference: Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

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Illustration A: a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. o PP v Wan Mohd Rahim b Wan Mohd Zin: The accused was charged for the theft of a motorcycle under Section 379A of the Penal Code when he was apprehended at a road block riding a motorcycle which was stolen. His pillion ran away during the road block leaving his identity card with the police. It was held on appeal that the magistrate has the discretion whether to invoke the presumption under Section 114(a) or not, leaving the defence to provide evidence to rebut that he was a thief. Illustration B: that an accomplice is unworthy of credit unless he is corroborated in material particulars. If judge admitted statement by the accomplice, cannot rely on it too much – need other corroborative evidence to support the statement. A and B committed an offence together, but B became a prosecution witness – B becomes an accomplice, not charged together with A. o Davies v PP: An accomplice is a participant or accessory to a crime, a person who is involved in the commission of a crime but he is not charged together or charged for a lesser offence – gives testimony for the prosecution. o R v Mullins: An accomplice is a person who has concurred in the commission of an offence. Cross-refer Section 133: An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Conclusion: judge may convict an accused based on statement by an accomplice only – but must put a note in his judgment that he must give corroboration warning to himself of the dangers of using the accomplice’s statement without corroboration to convict the accused. Must treat the statement by the accomplice with caution. Illustration G: the evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. Defence will use Section 144, ill. G to ask the court to presume that the evidence which the other party withholds may contain evidence against them, and favourable to the defence. To avoid this, the prosecution must be honest – must tell the court that they have W1 as potential witness but they refuse to call them and tell defence that they can call W1 as witness if they want to. o Low Kian Boon v PP and PP v Dato’ Seri Anwar Ibrahim (No 3): It was accepted as an established principle that in any criminal proceeding the prosecution has the discretion to choose which witness to call and what documents to produce as long as there is no hidden motive. No adverse inference can be imposed on the prosecution for its failure to call a particular witness or to produce a particular document if there is already sufficient evidence to prove a case.

o Munusamy v PP: Adverse inference under this subsection can only be drawn if there is withholding or suppression of evidence and not merely due to failure to obtain evidence. o Tay Kok Wah v PP: The material witness was not called by the prosecution and in the circumstances of the case, the witnesses’ evidence is material to unfold the basis of the prosecution’s case. The prosecutor cannot discharge his duty by merely offering the witnesses to the defence....