Evidence Bible PDF

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evidence notes for final year student. it is really helpful and easy to comprehend...

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Ultimate Note of Evidence Law “In Notes, We Trust” This note is made 100% based on Dr Jal’s lectures as well as tutorials. They are contributed by all the 46 unsung heroes/ heroines below from the batch of 2016/2017: Lecture Notes: 1) Khirtigha Raja Ratanam 2) Linda Wong Li Ding 3) Soh Lip Shan 4) Malarvili Kunasegeran 5) Diong Pei Jing 6) Lee Sze Yin 7) Valerie Yeo Li Ann 8) Tan Wan Jing 9) Chai Siu Shian

10) H’ng Yen Jun 11) Zarif Khairuddin 12) Low Zhi Yuin 13) Wong Zi Ying 14) Aaika Zulaika 15) Adam Huang Tung Kai 16) Tuan Amira 17) Chew Bi Xien 18) Cherishe Ng Phuay Hui

19) Corina Koh Pei Ling 20) Donna Bong Qian Wei 21) Nur Farehah 22) Farhana Ishak 23) Jasmine Ha 24) Jasleen John 25) Chong Jia Wei 26) Wong Jia Yi

Tutorial Answers: 1) Amanda Tho Yee Lay 2) Jonathan Chong Jialiang

3) Tan Eng Jun 4) Chin Zi Yuan

5) Marsha Madzli 6) Mizah Amran

Note Editors: 1) Jocelyn Chin Yen Yin 2) Shazwin Shaima 3) Lim Khye Xuan 4) Soin Michelle

5) M. Muhaimin Rosli 6) Yeap Yee Lin 7) Kho Jia Yuan 8) Iqbal Harith Liang

9) Jean Lee Jia Ying 10) Esther Hong Hui Jun 11) Corina Robert 12) M.k.Yong @ Loo Yong Feng

13) Hanis Hazidi

None of the people above shall be blamed for any wrong information in this note. Otherwise, do your own note. Thank You.

Contents Chapter Topic

Page

1 2 3 4 5 6 7 8 9 Chapter

1 - 15 16 - 33 34 - 44 45 - 54 55 - 57 58- 66 67 – 75 76 - 85 86 - 91 Page

Introduction Burden of Proof Presumption Prima Facie Corroboration Corroboration : Child Witness Corroboration : Self Collaboration Corroboration : Rule of Prudence Corroboration : Identification Cases Topic

The note that you are using now is the result of the collective hard work done by all the students mentioned in the cover. The lecture notes contributors had to listen back to Dr Jal’s lecture recordings to type out these notes. All these notes and tutorial answers had to be checked and edited by the editors to avoid any wrong or incomplete information. So, if you are not a contributor of this note and are using it, kindly don’t edit the names above as an acknowledgement of our efforts. Thank you.

Note: For recordings (lectures & tutorials), please refer to: https://drive.google.com/drive/folders/1qwLCN8PBkwwa0aRwklkHlSagP1KqUyxE?usp =sharing

Chapter 1: Introduction 1) The Concept of “Fact” in Evidence Law ● In Evidence Law, the concept of “fact” is important. ● Section 3 of Evidence Act defines ‘fact’ as includes : (a) any thing, state of things or relation of things capable of being perceived by the senses; (b) any mental condition of which any person is conscious; Illustration:1 ● Generally, under the law of evidence, any allegation of facts needs to be proved by the production of evidence either in the form of oral evidence, documentary evidence or real evidence ● Fact can be divided into physical or psychological fact: Physical fact = perceived by senses Psychological fact = mental condition of a person. ● Fact can be further divided into fact in issue & relevant fact. This has been laid down in Section 5 of Evidence Act. Evidence may be given of facts in issue and relevant facts Section 5: Evidence may be given to prove the existence or non-existence of every fact in issue and relevant facts. Explanation—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by the law relating to civil procedure. 1.1) Fact in issue ● Fact in issue means disputed fact (s) which need to be proven by the parties using some facts in the proceedings. ● In simple words, facts in issue is the thing that you are trying to establish in a case (exp: in a case of murder, A caused B’s death is a fact in issue since that need to be proven) while fact is the thing that you use to prove a fact in issue. (exp: in a case of murder, A’s finger print is on the weapon used to kill B, is a fact, which is used to prove the fact in issue that (whether) A has caused B’s death.)2 1

(a)That there are certain objects arranged in a certain order in a certain place is a fact. (b) That a man heard or saw something is a fact. (c) That a man said certain words is a fact. (d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact. (e) That a man has a certain reputation is a fact; 2 More example: - In criminal cases such as murder, the prosecution must prove the existence of Actus Reus and Mens Rea. Here, the AR and MR are the facts in issue and the prosecution must bring in relevant evidences to prove their existence. For instance, in proving the facts in issue of MR, relevant evidences that shows the elements of preparation, conduct, motive and opportunity must be submitted before the court. - In civil cases, as for the matters related to breach of contract, facts in issue that need to be proved is

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● Section 3 of the Evidence Act defines “fact in issue” as: S 3: “fact in issue” means any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows. ● So, what facts may be admitted to prove a fact in issue? This will be explained below. 1.2) Relevant Fact: Principle of Relevancy ● Under the principle of relevancy, only relevant facts will be admissible. This is because if all facts are admitted, it will make the trial process longer. Although what is relevant or otherwise is a matter of logic and common sense, it is rendered statutory by the Evidence Act. ● Under Section 3 of the Evidence Act, relevant facts are those fall under section 555. This is called the principle of relevancy. Section 3: A fact is said to be relevant when it is connected to the facts in issue in the way as provided under Sections 5 to 55. ● Therefore, only facts which fall under section 5 to 55 will be admissible, unless expressly declared by the statute itself. Otherwise, that fact will not be admissible no matter how convincing it is. ● For example, Section 45 states that an expert’s opinion carries weight if the expert gives opinion only on his subject matter. Therefore, a layman’s opinion is not relevant according to Evidence Act. ● In short, we must remember that this principle of relevancy (as defined by S3 read together with S5 -55) applies to all types evidences. Thus, any evidence which doesn’t fall under S5-55 is not admissible. ● It doesn’t matter if an evidence is obtained illegally as long as it’s relevance: [Saminathan v PP]3 Facts : The accused was charged with keeping a common betting house. However, in trail, it turned out that the charge, arrest and evidence obtained during searching the house was illegal as the inspector who arrested him and searched the house was not a senior Police Officer under Section 2 of the Betting Enactment. The accused contended that the documents found during the search should not have been put in evidence against him since the police were not in legal possession of them.

(a) there is a valid contract and (b) there is a breach of that valid contract 3

[1955] 21 MLJ 121

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Held

: The doesn't matter if an evidence is obtained illegally since the only thing the court concerned when admitting an evidence is its relevancy. In this case, the documents obtained are a string evidence as they are collaborated with other evidences.

2) Types and Classifications of Evidence There are 5 types of evidences: i) Oral evidence ii) Documentary evidence iii) Hearsay evidence iv) Circumstantial evidence v) Real Evidence

i) Oral evidence ● Oral evidence is evidence of fact brought to the court by verbal statements of a witness, usually under oath. ● How to make a valid oral evidence? a) The oral evidence must be direct: Under S60 of Evidence Act, all evidences given by a witness must be directly obtained by his senses (eye, ear etc). In another words, if something if not directly perceived (saw, heard etc) by you, you can’t make any statement in court to claim that you have witnessed something. Thus, to make a valid oral evidence, you must be the one who directly obtain the evidence by using your sense (i.e saw heard an incident by yourself. This is why hearsays are generally not admissible because it’s a statement made by a third party).4 b) The witness must be competent to give oral evidence: S118 provided for the criteria as to who can give an evidence in the Court. This is called the test of competency: S118: Who may give evidence All persons shall be competent to testify an evidence unless if the person cannot: - understand the questions put to them, or - give rational answers to those questions due to being too young, extreme old age, disease.

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S60(1): Oral evidence shall in all cases be direct, that is to say— (a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; (c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

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Explanation—A mentally disordered person or a lunatic is not incompetent to testify unless he is cannot understand the questions put to him and give rational answers due to his condition. ● The witnesses will also be testified in the following process during the proceeding to prove their consistency of facts: i) Examination in chief, ii) Cross examination iii) Re- examination. ii) Documentary evidence ● Section 3 defines ‘document’ in a wide sense where it includes: - written papers, - computer generated, or - any matter embodied in a tape, disc, film or sound tracks. ● Thus, basically anything documentary can be a documentary evidence. ● How to make a valid documentary evidence: In submitting a documentary evidence, the maker of that document must be called as a witness. Otherwise, the evidence will be inadmissible and considered as documentary hearsay. iii) Hearsay evidence (more on this in Sem 2) ● Hearsay evidence is an out of court statement made by someone who is not called to the court as a witness. Hence, as opposed to an oral evidence, a hearsay is any statement made outside the court. If the statement is made in the court under oath, it will become oral evidence. ● In Malaysia, hearsays are generally not admissible. This is because, statements made by a third party who is not present in court cannot be used to prove a fact. However, there are certain exceptions to this as provided by the Evidence Act such as Section 32 & Section 33: S32 : When the person who made the statement is dead, cannot be found etc (for more details, refer to S32(a) – (j) ) S3 : When a witness to a case is dead, went missing or kept from attending the court by the adverse party before subsequent proceedings can take place. ● Under the hearsay rule, the purpose of a hearsay evidence is to prove that a statement has been made/ a fact. Hearsay can NEVER be used to prove the truth of a statement. [Subramaniam v PP] [Subramaniam v PP] 5 Fact : The accused was charged with unlawful possession of ammunition. His defence was that he had been captured by terrorists and was committed the 5

[1956] 1 MLJ 220

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Held

offence under duress by the terrorists. In proving this, the accused invoked his conversation with the terrorists. The trial judge held that the conversation with the terrorists was inadmissible unless the terrorists testified it. The accused appealed. : Appeal allowed. If a statement is to prove the truth of a statement, the statement is mere hearsay and inadmissible. However, if the statement is to prove that a statement is made, it is admissible. In this case, the accused’s conversation (the evidence) is not to prove whether whatever the terrorists have said was true but to prove that threats were inflicted on him. Thus, the conversation could be admitted as evidence.

● So, when a hearsay is brought to the court as evidence, the purpose of the hearsay must be scrutinised as only hearsay used to prove the a fact/ a statement has been made can be admitted. A hearsay CAN NEVER BE USED to prove the truth of a statement (as there is a risk that the witness may fabricate lies/ twist the facts), exp: - A tells B that D was shot by C. The B is called to the court. The statement made by A to B can only be used to prove that A has made such statement to B. in this case, ’s statement to prove that A has in fact said D was shot by C. However, B can NEVER use A’s statement as evidence to prove that D was in fact shot by C so no one would know if that was true. - A told B that Kuching is badly affected by the haze. If B is called as a witness and B’s purpose of giving a statement is to prove how badly affected Kuching is, the statement cannot be admitted as a hearsay evidence. This is because the purpose of the statement is to prove the truth of what has been said by A. However, if B gives the statement to prove that A was still alive in Kuching when the statement was made, this statement can be an evidence. ● Example cases: [PP v Ng Lai Huat]6 Fact : This was a kidnapping case. One of the prosecutor’s main witness, the Director of Prisons claimed that he heard the co-accused demanded the accused person to be freed and be given a getaway car. This statement by the Director was used to prove that the accused demanded ransom and hence was sought to be admitted for the truth of its contents. Held : The statement was deemed hearsay and hence inadmissible because the statement was used to prove that the statement was true. If the statement was to show that the co-accused actually made a statement, it would be admissible because the prosecutor was only [Subramaniam v Public Prosecutor]7 6 7

[1990] 2 MLJ 427 [1956] 1 MLJ 220

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Held : A statement made to a witness by a person who does not present in the court as witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish by the evidence, not the truth of the statement, but the fact that is was made. The fact that the statement was made, quite apart from this truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. [Cheng Hang Guan v Perumahan Farlim (Penang) Sdn Bhd]8 Held : It is well established that an evidence is not hearsay and is admissible when it is proposed to establish the fact that it was made and not the truth of the statement. As the Privy Council pointed out in Subramaniam’s case, the fact that a statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness. ● Therefore, based on the case of Subramaniam, there are two main things to consider in deciding whether a statement in an examination question is caught by the hearsay rule: i. See if the out of court assertion (which may be a statement or a gesture) is being tendered in court through oral evidence or documentary evidence. (submitting documents containing statements made by a person out of court). ii. Determine the purpose the out of court assertion is being tendered. If the statement is tendered to establish the truth of its contents, it is hearsay. If the statement is being tendered to establish some other fact, it is not hearsay. iv) Circumstantial evidence ● Circumstantial evidence is the type of evidence where no one saw it. (no present witnesses available) ● So, if there is no witness, how are you going to prove it? - Fingerprint - If you can prove motive then you can bring in the evidence for the motive - The subsequent conduct of the accused from the crime scene. - Relationship ● You cannot convict a person based on one fact alone or one piece of evidence only. It is not sufficient. However, if you combine all the relevant evidence, it will be a very strong evidence against the accused. This is called circumstantial evidence.: [Low Kian Boon v PP]9 Fact : In this case, the accused was convicted for culpable homicide not amounting to murder under section 304 (b) Penal Code. There was no direct evidence that he had committed the offence as no one had seemed him murdering the deceased. However, the prosecution charged him primarily based on circumstantial evidence 8 9

[1993] 3 MLJ 352] [2010] 5 CLJ 489

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that the accused bought the parang which was used to kill the deceased and there was clothing with blood stain found in the accused’s home. (presumably changed after the murder) Held : The meaning of circumstantial evidence is evidence of circumstances surrounding an event or offence from which a fact in issue may be inferred. Some examples of circumstantial evidence are: i. motive, ii. acts preparatory to the commission of an offence iii. fingerprints iv. possession of stolen goods and v. presumptions of facts. Thus, it may be a circumstantial evidence if that combination of circumstances when taken together may create a strong conclusion of guilt. : Based on the circumstantial evidence given, the accused can be believed to have committed the crime. ● The Sunny Ang’s case demonstrates the application of circumstantial evidence as stated in s.8 of Evidence Act where there is a motive preparation and previous or subsequent conduct. In this case, the court totally relied on circumstantial evidence, where these evidences can be strong enough to secure a guilty charge: Section 8: Motive, preparation and previous or subsequent conduct (1) Any fact is relevant if it shows a motive or preparation for any fact in issue or relevant fact. (2) The conduct ( both previous and subsequent conduct) of any party or its agent is relevant to a case if the conduct influences or is influenced by any fact in issue or relevant fact. Explanation 1—The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2—When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant. [Sunny Ang v PP] Fact: The accused was charged for murder of his lover, Jenny although there was no direct evidence that Jenny has been murdered because her body was not found. Among the facts adduced were:- The accused was declared a bankrupt a year earlier and was still one when the offence was alleged to have been committed; Page | 7

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The deceased was insured against accidents with several companies; The accused’s mother was named as a beneficiary in some of the insurance policies; The deceased made a will naming the accused’s mother as the sole beneficiary; The deceased was a novice diver and yet the accused had allowed her to dive in dangerous waters; The accused did not go down to the waters himself when the deceased had failed to resurface; The deceased had not worn gloves which were common when looking for corals; Six days after the incident, flippers were found which were severed at the strap and cut in two places; Less than 24 hours after her disappearance, the accused made a formal claim.

Held: Appellant had murdered the deceased, based on the circumstantial evidence above. [PP v Hanif Basree Abdul Rahman]10 Fact : The accused was charged for murdering of his intimate friend. The deceased’s body was found by the deceased’s apartment mates but no one ha...