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Evidence Law EVIDENCE LAW 1 1 Evidence Law Table of content Topic Historical Development Evidence Act 1950 Page number of Sources of Evidence Law in Malaysia Concept Section 5 Section 6 Section 7 Section 8 Section 9 Similar Fact Evidence Admission Confession Hearsay Evidence Presumption Tutorial 2 E...

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Evidence Law

EVIDENCE LAW 1

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Evidence Law

Table of content

Topic Historical Development Evidence Act 1950

Page number of

Sources of Evidence Law in Malaysia Concept Section 5 Section 6 Section 7 Section 8 Section 9 Similar Fact Evidence Admission Confession Hearsay Evidence Presumption Tutorial

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Historical Development of Evidence Act 1950 1. Malaysian Evidence Act 1950 is based on Indian Evidence Act 1872, which is a codified version of English law 2. Looi Wooi Saik v PP (1962) MLJ 337 at 339, the court held that Malaysia is governed by Evidence Ordinance which is based on Indian Evidence Act. Indian Evidence Act was drafted by Sir James Stephen, with the intention of codifying English law

Sources of Evidence Law in Malaysia 1. Evidence Act 1950. It should be noted that the Illustrations in Evidence Act need not be applied strictly. As the Evidence Act is not a comprehensive Code, the Malaysian law of evidence is complemented by other sources of law 2. Common Law. Only if the Evidence Act is not clear and vague can a party refer to common law. • If the Evidence Act specifically defined and provide a certain proposition of law, reference to the common law is not allowed. • Saminanthan v PP [1955] MLJ 121 at 124 English decisions serve as valuable guides and indeed are binding where the English law has been followed in the Act but such decisions are of little assistance when those words have been specifically defined in the Act • The acceptance of a rule or principle derived from English law is not permissible if it changes, varies or denies the true and actual meaning of the statute • PP v Yuvaraj [1969 Court must give effect to the relevant provisions of the Act, whether or not they differ from common law • Mahomed Syedol Ariffin v Yeoh Ooin Gark [1916] The view of their Lordship was that the rule and principle of the colony must be accepted as it is found in its own Evidence Ordinance and the acceptance of a rule or principle, which is

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derived from the English law, is not permissible if it changes, varies or denies the true and actual meaning of the statute • Where the Act is silent on a particular matter, principles of common law may be resorted to provided that the cut off date under Section 3 and 5 of the Civil Law Act is observed • Ghouse bin Haji Kader Mustan v R For matters in which the Act is silent, the Act must be construed in light of its common law background

3. Indian case decisions • Khalid Panjang v PP (No 2) 1964 If a court is discussing a provision which is pari material with a provision in the Indian statute, a decision of the Indian court is binding • Meelamcham & Anor v PP [1962] MLJ 213 The court held that a decision of an Indian court is not binding on a Malaysian court. However, if it relates to the interpretation of a statutory provision which is the same in both India and Malaysia, such a judgment is entitled to the very highest degree of respect. Where the Act is clear, it would be wrong to look to Indian authorities for the purpose of supplementing or restricting the natural meaning of the provisions of the Act • Chandrasekaran & Ors v PP (1971) 1 MLJ 153 In this case, the court had to decide whether the relevancy and admissibility of a typewriting as evidence to show that a specific typewriter had been used to prepare the specific document could fall within the definition of “science or art” in order to allow for opinion evidence on typewriters to be admissible. The trial court referred to an Indian decision where it was held that the admissibility of a typewriting as evidence was not a matter of science or art within the meaning of

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Section 45 of the Evidence Act. This decision was however not followed when it went to appeal 4. Decisions of other jurisdictions • Ghouse Bin Hj Kader Mustam v R Although the decisions of courts of other jurisdictions (eg: East African decisions) are not binding on Malaysian courts, they remain persuasive in nature.

Extent of application of the Evidence Act 1. Section 2 of Evidence Act provides that Evidence Act shall be applied to all judicial proceedings in or before any court but not to affidavits presented to any court or officer not to proceedings before any arbitrator A. The Act does not apply in a preliminary inquiry or inquest 1. Inquiry or inquest is a process performed by magistrate to determine the cause of death • PP v Shanmugam The duty of the magistrate is to inquire when, where how and after what manner the deceased came by his death and whether any person was criminally concerned in the cause of death

B. The Act does not apply in the Syariah courts 1. Initially the court in Ainan v Syed Abu Bakar ruled that the Evidence Act applies to all inhabitants regardless of race or religion 2. However it has been established that Syariah matters is a State matter, the Syariah Evidence Enactment of each State applies accordingly where the proceeding takes place in Syariah courts 3. Any form of lacuna in the Syariah evidence law will cause reference to be made to hukum syarak

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C. The Act does not apply to affidavits • Ridel-de Haen Ali v Liew Keng Pang The Act does not apply in respect to affidavits presented to any court or officer 1. However an affidavit may be admissible in evidence as a statement if it is capable of being regarded as a statement in writing in compliance with the conditions prescribed by Section 32 of Evidence Act (statement of relevant fact by a dead person)

‘EVIDENCE’ 1. It is derived from ‘evident evideria’ 2. It literally means to show clearly or to prove 3. It is something which tends to prove the existence or non existence of some fact 4. It includes the use of testimony, exhibits and documentary evidence • PP v Sanassi Evidence signifies only the instruments by means of which relevant facts are brought before the court by witnesses and documents

‘LAW OF EVIDENCE’ 1. Law of evidence is derived from “lex fori”. It means evidence shall be governed by the law of the place where the dispute arises 2. Law of evidence is a law which governs the process of how evidence should be obtained, adduced, used and evaluated 3. It comprises of rules governing the presentation of information concerning facts in dispute and proof in proceedings before a court. 4. It is rules governing the relevancy and admissibility of evidence 5. It sets out how parties to a dispute are required to convince the court of the existence of a state of facts

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Concepts ‘RELEVANCY’ 1. Relevancy is the degree of connection between a fact that is given in evidence and the issue to be proved (question of law) 2. Section 5 of Evidence Act provides that only relevant facts can be produced as evidence. 3. A fact is said to be relevant when it is connected with another fact so as to make the other more or less probable (section 3) 4. For example, in crime, facts that can prove intention and motive would make its relevancy more probable 5. Relevancy of evidence can be divided into 2: • Logical relevance 1. it is evidence that has tendency to make a material fact more or less probable than it would be without the evidence 2. A fact that has the tendency to make another fact more or less probable through logical deductions 3. In order to determine the logical relevancy of evidence: Step 1: Review the substantive law. Look into its pleadings or allegations depending on whether it is a civil or criminal case Step 2: Determine whether the evidence tendered bears a logical relation to any fact as a consequence of the logical deductions • Legal relevance 1. Legal evidence is evidence where the probative value (value of believability) of the evidence outweighs its prejudicial effect (probative danger; unfairness created by the fact) 2. In order to determine the legal relevancy of evidence: Step 1: Assess its probative value Probative value is determined by looking at the time the offence is committed, how remote it is to the facts in issue and its connection to the surrounding circumstances Step 2: Identify its prejudicial effect

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If a fact can produce many inferences, there is prejudicial effect. If a fact cannot be disputed, there is no prejudicial effect Step 3: Balance its probative value against its prejudicial effect Evidence is legally relevant and admissible only when its probative value substantially outweighs its prejudicial effect The outcome is dependent on the judge’s discretion The court will only admit evidence that is legally relevant Legally relevant evidence must be logically relevant but not vice versa For example: Hearsay evidence is inadmissible as it is logically relevant but not legally relevant

‘ADMISSIBILITY’ 1. Admissible evidence is evidence that the judges find useful in helping prove or disprove a fact and admits in court 2. The moment evidence is admissible, it will go through examination in chief 3. All admissible facts are relevant but not all relevant facts are admissible • Relevancy is a precondition to admissibility of evidence • Evidence must be proven to be relevant first before it can be admissible • Thavanathan Balasubramaniam v PP All evidence, which is sufficiently relevant to the facts in issue, is admissible • Once evidence is admitted, it cannot be rendered inadmissible on another ground 4. Section 136(1) of EA provides that the court may inquire any party into the relevancy of the evidence tendered and shall admit it if it is proven to be relevant 5. Section 165 of EA provides that the court may question witnesses or parties as to the relevancy of evidence

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‘WEIGHT’ 1. Weight is the strength, value and believability of evidence presented on a factual issue by one party as compared to evidence introduced by the other party (question of fact) 2. It is an assessment of probative value which admissible evidence has in relation to the facts in issue also known as sufficiency of proof. It can only be done once evidence has been rendered relevant and admissible 3. It is a question of fact to be determined based on the circumstances of each case 4. The court will look into the type of evidence, quality of evidence and demeanor of witnesses. Evidence which carries more convincing and probable truth bears more weight upon the case 5. There are 3 types of weight, high value, low value and no value 6. Weight is determined by question of fact. Weight of evidence must be determined after it is admissible and relevant. 7. Weight of an evidence is determined by a trial judge

RELEVANCY AND WEIGHT OF EVIDENCE ARE DISTINCT MATTER • RvA A woman who was living in the same flat with her boyfriend and the accused, a friend, had allegedly been raped by the accused along a riverbank. The accused alleged that the intercourse was consensual as the pair had supposedly been having an affair. The issue was in regards to the tendering of two forms of evidence • Evidence of sexual history with other men. It is irrelevant to the issue whether the victim consented to sexual intercourse on the occasion alleged in the indictment or to her credibility thus bearing no weight on the case • Evidence of sexual history with the accused. Though it is logically relevant to the issue, it cannot be proved that the victim consented to the rape in question. Thus relevancy and sufficiency of proof are different things. To be relevant the evidence need merely have some tendency in logic and common 9

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sense to advance the proposition in issue. Although the evidence is relevant and admissible, it is not sufficient to prove that the victim consented to the sexual intercourse merely because of a supposed sexual history with the accused

DISTINCTION BETWEEN CONCEPTS 1. Relevant evidence are facts that makes the existence or non existence of another fact more or less probable 2. Admissible evidence is evidence that is legally relevant in proving or disproving a fact 3. Inadmissible evidence is evidence that cannot be considered by the court 4. Weight of evidence is the satisfaction of evidence that has been admitted to a standard determined by the judge ‘FACT’ 1. External/Physical facts are any thing, state of things or relation of things capable of being perceived by the senses 2. Internal/Psychological facts are any mental condition of which any person is conscious ‘FACT IN ISSUE’ 1. Facts in issue are facts which parties are disputing, necessary to establish claims, liability and defences. It does not exist in isolation, are preceded by other facts which makes it more or less probable 2. In criminal cases, it is the ingredient of the offence that must be proved in the charge 3. In civil cases, facts in issue can only be pointed out by the court after considering the pleadings filed by the parties • PP v Yuvaraj The degree of probability of the existence or non-existence of a fact, which is required in order for it to be ‘proved’ or ‘disproved’, depends upon the nature of the proceedings and

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what will be the consequence in those proceedings of a finding that a fact is ‘proved’ or ‘disproved’. In a civil case, the determination of the suit in favour of one party on a balance of probabilities. In a criminal case, the conviction of the accused beyond reasonable doubt

‘PROVED’ 1. Section 3 of EA- A fact is said to be proved when after considering the matters before it, the court believes it to exist or its existence is so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that it exists ‘DISPROVED’ 1. Section 3 of EA- A fact is said to be disproved when after considering the matters before it, the court believes that it does not exist or its non-existence is so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that it does not exist ‘NOT PROVED’ 1. Section 3 of EA- A fact is said to be not proved when the court does not believe that the fact does or doe not exist or a prudent man does not believe that its existence or non-existence is probable

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CLASSIFICATION OF EVIDENCE Oral and Documentary evidence 1. There are two types of evidence, oral statement and documentary evidence. For oral statement, it must be taken on oath if not it becomes hearsay.

ORAL EVIDENCE 1. Section 60 of EA, which provides that oral evidence must be direct, governs oral statement; it must be either seen, heard, perceived by the witness 2. Oral evidence that is not direct is hearsay evidence and thus inadmissible 3. Section 59 of EA provides that all facts, except for the contents of documents, may be proved by oral evidence 4. It is evidence offered by a competent witness under oath, which is used to establish some fact or set of facts. A witness who has been subpoenaed must testify, if not he will be guilty for contempt of court

DOCUMENTARY EVIDENCE 1. The meaning of document can be found in Section 3 of Evidence Act which provides that it is any matter expressed, described, represented upon any substance, material, thing or article including any matter embodied in disc, tape, film, sound track or other device. 2. Section 61 of EA provides that for documentary evidence it must be proved whether it is a primary evidence or secondary evidence. 3. Section 62 of EA provides that primary evidence means the document itself must be produced for inspection in court. Primary evidence is the original document itself. 4. According to Section 63 of Evidence Act secondary evidence includes certified copies, copies made from original by mechanical process, copies compared with the original,

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5.

6. 7.

8.

counterparts of documents as against the parties who did not execute them and oral accounts of the contents of documents given by some person who has himself seen or heard or perceived it by whatever means. Section 90A of EA provides that document produced by a computer, shall be admissible if the document was produced by computer in the course of its ordinary use whether or not the person tendering the same is the maker of such document or statement Document also be classified as public document and private document. Public document as governed under Section 74 of Evidence Act provides that it includes documents forming the act of the sovereign authority, official bodies and tribunal and public officer and public records kept in Malaysia of private document. Private document as governed under Section 75 of Evidence Act provides that private documents are all documents other than those mentioned in Section 74.

Direct and circumstantial evidence DIRECT EVIDENCE 1. Section 60 of Evidence Act provides that oral evidence must be direct. 2. Direct evidence can be looked at 2 perspectives. 1) Section 5 of EA which provides that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue an of such other fact as are hereinafter declared to be relevant and of no others. 2) Section 60 o f EA, which provides that oral evidence must be direct evidence.

***It should be noted that there are 3 situations where facts need not be proved. These are facts that are judicially noticeable as per Section 56 of Evidence act, facts of which court must take judicial notice as per Section 57 of Evidence Act and facts already admitted as per Section 58 of Evidence Act. 13

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CIRCUMSTANTIAL EVIDENCE 1. Circumstantial evidence is used to secure a conviction. • Sunny Ang (1960) was the first case relating to circumstantial evidence. In this case, the accused was a broke and he wanted to take girlfriend’s life insurance. One Sunny Ang brought his girlfriend to go scuba diving. On that day, Sunny Ang and his girlfriend was seen at the sea by a fisherman. 1 hour later was seen by the fishermen to have come back. The next day, Sunny Ang made the insurance claim. When the body was found, it was found that the flipper has been cut All of the circumstantial evidence provided shows motive. The circumstantial evidence shows that there is an irresistible conclusion that Sunny had in fact killed his girlfriend • Sunny Ang v PP- Circumstantial evidence may also be direct. If direct evidence is not related to facts in issue, it must be connected to form irresistible conclusion. Circumstantial evidence can also be direct evidence. Thus it may fall under Section 60 of EA. Also, circumstantial evidence must be relevant as per Section 5 of Evidence Act. • Mokhtar Hashim v PP The test of beyond reasonable doubt is equivalent to that of the irresistible conclusion. Where the circumstantial evidence, when looked at as a whole can only produce one conclusion, thus the accused has been proven to be guilty beyond reasonable doubt

Real evidence • People v OJ Simpson In this case the real evidence was a pair of gloves found in wife’s mansion. The accused was charged for murdering his ex

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wife. However the gloves adduced, as evidence did not fit his hands, which lead to his acquittal

Hearsay evidence 1. Hearsay evidence is an out-of-court statement repeated in court by a witness who is not the maker of the statement as evidence to prove the truth of the matter asserted. 2. It is inadmissible in court as its prejudicial effect outweighs its probative value. The statement repeated by the witness in court could be concocted, fabricated and tailored to suit the witness’ testimony. 3. It is hearsay and inadmissible only when the object of the evidence to establish the truth of what is contained in the statement 4. It is not hearsay and admissible when it is proposed to establish that the statement was made and the state of mind o...