Section 5 of Evidence Act PDF

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Section 5 of EA...

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Section 5 Section which determines what evidence that can be brought to court. There are two types of evidences i)

Evidence that can be prove facts in issue

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Meaning facts in issue

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E.g: There is case in Malaysia (murder), facts in issue: whether A kill B, anything that can prove fact of the issue, can bring the evidence to the court

ii) -

That can prove any relevant fact Evidence which Is relevant that are those mention in Sections 6 – 55.

Section 136 and Section 165 of EA -

Section 5 must be read together with these two provisions.

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These two provisions allow the court to ask question, to ask witness to adduce any evidence or testimony which can determine facts in issue or relevant fact.

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Power of the court stated in these two provisions are quite wide and contrary to the fact that our system is adversarial system,

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System- judge in always passive.

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But these two provisions allow the court to ask question/ be an umpire/ to actually practice the inquisitorial power

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From these two sections read together with Section 5 this power could only exercise to determine whether the evidence is relevant or evident can prove the fact in issue.

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You must note that even though these provisions give power to the court to as question to ask witnesses or to ask witnesses to produce document but the power is strictly is to determine whether the evidence is relevant or evident can prove the fact in issue.

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Case: Teng Bong How v PP o Judge had assumed the role of the prosecutor and he cross examine the witness and that cross examination was not for the purpose of clarifying testimony but went much further to include matters not arising from the evidence. Judge proceeded to convict the accused and upon appeal the ac was acquitted. Supreme Court held that although sec 165 power are wide it should not totally

be inquisitorial in nature. Shall not entrap the accused and extract any admission and cannot be used against the accused to supply a gap in evidence in the prosecution. It can be seen that, literally if the power in sec 165 if applied is wide, practically it cannot be used more than to just establish whether the evidence relate to fact in issue or whether the evidence is relevant and admissible. -

Case: Ahmad Norizan bin Mohamad v PP o The trial judge has excessively intervened in the process of cross-examination of the accused person. o On appeal, the CoA held that the cross examination by a judge has a different effect on a witness as opposed to cross-examination by an advocate, especially when the witness knows the fact that the opposing advocate is an adversary unlike the judge will be decider of the dispute between the parties. o In this case, the judge was in breach of Section 165 of the EA and consequently the accused was severely prejudiced and disadvantaged. o The accused was acquitted and discharged.

Improperly obtained Evidence -

Related to section 5 because it says that evidence can be brought if it shows facts in issue and relevant fact,

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Thus, issue arises can this evidence can be improperly obtained evidence

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Look at facts and circumstances of each case

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Some evidence relevant but not admissible (hearsay or opinion)

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Law is quite clear on this. As long as it is relevant, it does not matter how a particular party obtain the evidence, so improperly obtained evident is relevant then its admissible.

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However, there are cases which are discuss prejudicial effect of the improperly obtained evidence.

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Case: Kuruma v Queen o the accused was charged with unlawful possession of ammunition during a period of emergency in Kenya. The search was made unlawfully and it is

illegal. However, the court held that the evidence was admissible due to probative value of the evidence outweighed the prejudicial effect. o Probative value outweighs prejudicial effect is on the fact that at that particular time the state of Kenya was in period of emergency. Illegal search made by the army in the case clearly the value of the evidence outweighs prejudicial effect because the state in the period of emergency. o During the state of emergency, army or police offer have excessive power and the particular facts in issue in relation to unlawful position of ammunition during the period of emergency. o Held that evidence even though improperly obtained, the probative value outweighs prejudicial effect. o Evidence is relevant and admissible. -

Case: R v Sang o the two accused were charged with conspiracy to forge and possess the bank notes. o However, the court held that the evidence was inadmissible because the evidence operated unfairly towards the accused person o Read agent provocateur (spy, police personnel), but they encouraged the accused to commit the crime. o When there in entrapment, court look at the E. Is the accused prepare to commit the crime? So, this would actually be determined with facts and circumstances of the case. o If acc is not ready/ no intention, but he was entrapped or provoke by the agent provocateur. Court can exercise its inherent judicial power to exclude this type of evidence.

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Assessment of probative value as opposed to the prejudicial effect is clearly on facts and c of the case.

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Cannot have one rule fit all.

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When there is objection is made foe the court to exercise its judicial power to exclude evidence on the ground that prejudicial effect outweighs the probative value then argument need to be given why is it prejudice and cannot be accepted.

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The party who adduced the evidence must give reason.

Procedure if the court needs to decide on improperly obtained evidence or needs to decide whether relevant evidence should be excluded -

To conduct a trial within a trial, voir dire.

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Voir dire is in relation to a procedure where the court stops the main trial and goes to trial within a trial to decide whether the particular could be accepted or not.

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This is because the evidence is relevant but it its improperly obtained or because t may have prejudicial effect/ objection is made by another party/ when objection is made by that party, they have burden to proof that the e is prejudicial on the standard of balance of probabilities.

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E.g: Confession of accused o Confession must be voluntary. If not voluntary, then it is prejudicial. o Defense counsel usually object the admissibility of the confession. The admissibility of the confession or voluntariness of the confession is decided in trial within a trial. o The party will only argue on one small issue. (Confession) o If party manage to argue, prosecution says that the confession is voluntary then the evidence is admissible. o

If defense argued that the particular confession is not voluntary and they bring in all evidence and shows than the confession is not voluntary then the confession is not admissible.

Relation to Facts Need Not Be Proved. -

There are two categories i.

Facts judicial notice a. Section 56 – Facts judicially notice need not be proved b. Section 57 – List out the facts that must be taken into judicial notice 

That means if you want to prove facts and facts has been listed in Section 57, then you DON’T HAVE to bring evidence.

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Can also be done with invitation to take judicial notice. 

Book – judicial notice

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Parties can also invite the court to take judicial notice on the existence of certain fact.

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From 18 March to 28 April, Malaysia under RMO,

ii.

Facts that has been admitted in civil proceeding o Section 58 o It is more transparent than criminal trial. o Parties need to exchange document or documents are agreed to waive by the party o Certain facts can be agreed by the party. o Statement of agreed facts – need not be proved....