Summary of Public Documents Under Evidence Act 1950 PDF

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A summarize topic of Public Documents under Evidence Act 1950...

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PUBLIC DOCUMENTS DEFINITION (1) Public Documents: Section 74 defines Documents as:

“Public

(a) documents forming the Acts or records of Acts of : (i)

Sovereign authority;

(ii) Official bodies and tribunals; (iii) Public officers, legislative, judicial and executive whether Federal or State or of foreign country. (b) public records of documents kept in Malaysia.

private

(2) Private Documents Section 75 – defines Private documents as documents other than those mentioned in s. 74.

Dr Munawar Ahmad Anees v Ketua Pengarah Penjara Malaysia [1999] 2 MLJ Okt filed an application as against IGP and Ketua Pengarah Penjara for certain doc of all his movement from the date of his arrest til production to court. The issues for the court’s consideration was therefore, whether: (i) an application for r ecords maintained under the Prisons Rules and the Lockup Rules (‘the Rules’) could be made as an independent question; (ii) the application was for records maintained under the relevant provisions of the Rules; (iii) the Rules gave any right to inspection of its records; and (iv) the application could be made under the Evidence Act 1950. Held: dismissing the application: As to whether an application could be made under the Evidence Act 1950, reliance was entirely upon ss 74 and 76 of the Act. For s 76 to apply the document m ust be shown to be a public document, the applicant must have a right to inspect it and the applicant must tender the legal fees therefor. By virtue of s 74 a public document is a document which must itself form the act or record of the acts of a public officer. A record of matters that a public officer is required by law to maintain is a public document, even though it may be a record of acts of visitation by other persons (see p 302A– 303A) . With regard to the applicant’s right to inspect the documents, there is nothing in the Prisons Act 1995, the Prison Rules 1953 and the Lockup Rules 1953 that conferred a right upon the applicant to inspect the records . Furthermore there was no undertaking or offer to pay any fees by the applicant. Lastly, the applicant had not included the general cure-all prayer that would have allowed the court to consider other orders. Therefore the application should be rejected.

Wong Seng Giap & Anor v Wong Keng Giap & Anor [1999] 2 CLJ – (refer)

CERTIFIED COPIES OF PUBLIC DOCUMENTS (1) The entitlemen This entitlement is ba s. 76 Public documents which any person has a right to right to inspect. Right inspect, can be proved by a certified copy, bearing a (a) FIR u/s. 107 C certificate that it is a true copy . It shall be dated. have a right? (b) Confession u/s Thus section 76 can be construed in two parts : confession , bu (c) Witnesses statement u/s. 112 – right to inspect to what extent. Therefore, the right to inspect must be established independently Re Neo Guan Chye [1935] 4 MLJ 271 –.The affidavit filed by an executor or administrator for the Commissioner of Estate Duties is a quasi-confidential document and there is no law or rule which gives to a beneficiary to the estate the right to inspect the same. (it is a public doc u/s. 74 (b) public records kept in Malaysia). Kulwant v PP [1986] 2 MLJ 10 HC Spore - OKT in this case applied for statements made by him to the police. Held: s. 78 of SEA gave a right to a certified copy of a public document where there was a right to inspect that document. No right to inspect is given by the EA. It must be found in some other statute. The applicant had no right under any law to inspect a statement he m ade to the police, therefore he cannot ask a court to compel productions of a certified copy of his earlier statement.

So the Spore courts required that before Okt apply for a public doc, he must establish that he has right to inspect through statute.H/ever in Malaysia the position is different as stated in the following case. Khoo Siew Bee & Anor v KP Kuala Lumpur [1979] 2 MLJ 49 - Two OKT were jointly charged an offence under DDA 1952. Before being charge, each had made a caution statement under s. 113 CPC to the police. The defence counsel asked for copies , but the president of sessions court advise to apply for a ruling from HC . The defence later write to KP Kuala Lum pur asking for a copy, but similar reply was given. The issue therefore was whether the OKT who made such a caution statement had an interest in that statement which was r ecorded fr om him. Suffian LP Held: that as the OKT who made such caution statement had an interest in that statement he has the right to inspect and obtain certified copy upon the payment of the described fees before the commencements of trial. (note: Suffian LP also states that the ruling only applies to statement recorded from the OKT and not from others who are potential witness against or for them- as to which the PO is under no duty to supply to the defence.)

Anthony Gomez v OCPD Kuantan [1977] 2 MLJ 24 –the OKT was charged with criminal intimidation of one Bernard. The solicitor for the OKT wrote to the police asking for FIR which was made by Bernar d u/s. 107 CPC. Police denied the request and instead replied it is only available to the maker or his solicitor. The OKT`s solicitor thereupon applied for an order u/s. 44 of Specific Relief Act 1950 that the OCPD supply a certified copy of the report to the OKT. The application was dismissed in the HC but on appeal to the FC it was held: allowing the appeal, although s. 76 of CPC is silent as to the right of a per son to inspect a FIR , it is clear that under the common law the OKT has that right as he is a person interested in it and inspection is necessary for the protection of his interest. The FIR is adm issible in evidence in criminal trials u/s. 57 EA and thereupon the OKT or his solicitor should be supplied with a copy. Husdi v PP [1979] 2 MLJ 304 – OKT was charged u/s. 457 PC Counsel applied for c/statement made by OKT and of the of the statements recorded by the police in course of their investigation from other witnesses. The application was refused by the DPP and application was made to HC. As the case came for trial only , Okt statement was pursued as the OKT has right of his own c/statements . Held: (1) the right to inspect a statement to the police made in the course of police investigations, which is a statutory, not a common law creature, would depend on the construction of the CPC. There is no provisions in CPC or EA which is construable as giving a right to inspect such a statement. (2) the statement made to the police in the course of a police investigation is a privileged document and there can therefore be no r ight to inspect such a document. Further as a matter of public policy it is undesriable for the PO to supply the defence with the police statements, as there is a real danger of tampering with witnesses. Huzair B. Hassan v KPD JB [1991] 1 CLJ – OKT charged u/s. 39B DDA. For the preparation of his trial, the police should supply him or his solicitor his uncautioned statement as he is entitle it u/s. 74 and s. 76. Police states that the statement was an intelligent statement. Held: Since it involve national security and national interest . The court was satisfied that the police were conducting the investigation under special law, therefore the supply of such doc subject to 1985 Act and not u/s. 74 or 76 EA. Hj Abd. Ghani b Ishak v PP [1980] 2 MLJ 196 - The Okt charged for corruptt practice and he applied to PP (1) his statement whether cautioned or un cautioned (2) stattement of co accused (3) offer him the opportunity to inspect and make photostate copies of the document seized by the BSN in conection with the trial. Held: (1) ast to OKT`s cautioned or uncautioned statement it was a public doc and since he has interest on it, he is entitle for it. (2) the co accused`s statement , OKTis not entitled becox they can be a competent witnesses.(3) Okt is entitled to inspect and make copies of doc seized by BSN.

METHOD OF PROVING PUBLIC DOCUMENTS

PROOF OF PUBLIC DOCUMENTS – by producing the certified copies in the manner set out u/s. 76 (2)

PROOF OF DOCUMENTS.

CERTAIN

OFFICIAL

s. 78 – the following public documents may be proved as follows:

Certification of the Copy

Here it relates to the manner of a certification of a copy a public document. The copies also known as certified copies and should contain: (a) a certificate at the bottom stating that it is true copy of document or part (b) it must be dated (c) subscribe by the officer with his name and official title (d) certificate shall be sealed whenever the officer is authorized by the law to make use of a seal. These are statutory provisions of s. 76. The effect of non compliance will render the copy inadmissible in evidence. Re Tan Ah Chuan & Anor [1954] 20 MLJ 135 – Certified copy was not signed –case thrown off Mohd Hanifah v PP [ 1956] 22 MLJ 33 – A certified copy of the notes of evidence which is not dated will not be admitted in evidence in a case u/s. 193 PC. The date is an essential requirement of the certificate and there are obvious reasons why this is so as is apparent from other provision of the E/Ord. The words of s. 76 E/Ord are too clear to admit of any gloss upon them. A certified copy raises certain presumptions u/s. 79 ( 1) the court shall presume that any officer by whom such documents purports to be certified held, when he signed it, the official character which he claims in such document. It is obvious therefore that the date is essential for the purpose of establishing whether on a particular date the officer held the official character which he claims.

Singgara Singh v PP [1967] 1 MLJ 15

(a) – Acts, Order or Notifications of the Government of Malaysia or of any State: (1)

(2)

(3)

by records of the departments , certified by head of those departments or; by a Minister in the case of Federal or CM or State Secretary in case of state government. Or by any document printed under their order.

(b) - proceedings of Parliament or of the State Legislature by minutes of the body or by the published Acts of Parliament, Ordinances Enactments, etc. (c) – proclamations, orders or regulations issued by the Crown in U.K. or the Privy Council or Minister by copies or extracts from London Gazette. (d) Acts of the executives or the proceedings of a foreign legislature by journals published by their authority. (e) - proceedings of a municipal body town board or local authority in Malaysia by a copy of the proceedings or by a printed book published by the authority of that body. (f) - Public documents of any other class in a foreign country by the original or by a copy certified by the lawful keeper....