Beruflich Dokumente
Kultur Dokumente
1 Briefing Overview
2 Introduction General
UUUK 4073 3 Introduction Jurisdiction of Evidence Act – Section 2
UNDANG-UNDANG KETERANGAN 1 Interpretation Clauses – Section 3
4 Relevancy of Section 5 – of What Facts Evidence May be Given
Facts Section 6 – Facts Forming Part of Same Transaction
Section 7 – Facts Which are the Occasion, Cause
or Effect of Facts in Issue
MOHAMAD FARHAN BIN KAMARUDIN 5 Relevancy of Section 8 - Motive, Preparation and Previous or
A149226 | 0182788160 | frhnkmrdn@live.com Facts Subsequent Conduct
Section 9 - Facts Necessary to Explain or Introduce
Relevant Facts
PENSYARAH 6 Relevancy of Section 10 - Things Said or Done by Conspirators in
DR. RAMALINGGAM RAJAMANICKAM (PENYELARAS) Facts Reference to Common Design
Section 11 - Facts Not Otherwise Relevant
rama@ukm.edu.my
Becomes Relevant
Section 12 - Facts Enabling the Court to Assess
PROF. MADYA DR. ANISAH CHE NGAH
Damages
anisah@ukm.edu.my Section 13 - Facts Relevant When Right or Custom
in Question
PROF. MADYA DR. RIZAL RAHMAN 7 Relevancy of Section 14 and 15 - Similar Fact Evidence
noryn@ukm.edu.my Facts Section 16 – Existence of Course of Business When
Relevant
PENILAIAN KURSUS & PENGAGIHAN MARKAH 8 Test/Quiz/Viva Section 5 - Section 16
9 Relevancy of Admissions and Confessions - Section 17 - 31
Facts
Pembentangan 20% 10 Relevancy of Admissions and Confessions - Section 17 - 31
Facts
Projek berkumpulan 20% 11 Relevancy of Hearsay rule
Facts
12 Relevancy of Opinion Evidence
Ujian/Viva/Kuiz 20% Facts
13 Relevancy of Character Evidence
Peperiksaan Akhir 40% Facts
14 Revision Topics Weeks 2 - 13
W2 Introduction | General (b) Law of Evidence
Examples of matters covered by adjective or procedural law: To ensure that the evidence once accepted by the courts
Forms are reliable/trustworthy/credible.
Pleadings
Pre-trial discovery Examples:
Jurisdiction of the courts What facts may be proved (what facts are admissible)? - S.3-
Investigation 57
Prosecution How may they be proved? – are they to be proved by oral,
Mode of trials documentary or real evidence? - S.58- 102
Evidence What are the rules which govern these modes of proving
Sentencing facts?
Verdicts
Manners of proving the facts on which the applicability of the
legal rules depend
(c) Role of the Common Law Mahomed Syedol Ariffin v. Yeo Ooi Gark [1916] 2 A.C. 575
...the view of their Lordships is that the rule and principle of the
i. The Act must not be construed against the background of Colony must be accepted as it is found in its own Evidence
the common law Ordinance, and that the acceptance of a a rule or principle
adopted in or derived from English law is not permissible if thereby
Mahomed Syedol Ariffin v. Yeo Ooi Gark [1916] 2 A.C. 575 the true and actual meaning of the statute under construction be
...the view of their Lordships is that the rule and principle of the varied or denied effect.
Colony must be accepted as it is found in its own Evidence
Ordinance, and that the acceptance of a a rule or principle iii. Aids to the interpretation of the Act
adopted in or derived from English law is not permissible if thereby
the true and actual meaning of the statute under construction be English decisions
varied or denied effect. Saminathan and Ors v PP (1955) MLJ 121, 124
This Ordinance is in the main in accordance with English law though
ii. Where the Act is silent on a certain matter well established it does in several respects materially diverge from that law. English
principles of law may be resorted to: decisions serve as valuable guides and indeed are binding
The common law. (Civil law Act 1957)- 7th April 1956 authorities where the English law has been followed in the Evidence
Binding precedent Ordinance, but such decisions upon the meaning of particular words
are of little or no assistance when those words have been specially WordNet
defined in the Ordinance. - All the means by which any alleged matter of fact whose truth is
investigated at judicial trial is established or disproved
Indian decisions - Information presented in testimony or in documents that is used to
Meelamchan and Anor v PP (1962) MLJ 213, 215 persuade the court to decide the case for one side or the other.
A decision of the Supreme Court of India is, of course, not in any way
binding on this court. When, however, it relates to the interpretation Webster
of a statutory provision which is the same in India and in this country That which is legally submitted to competent tribunal, as a means of
such a judgement is entitled to the very highest degree of respect. ascertaining the truth of any alleged matter of fact under
investigation before it; means of making proof; -- the latter, strictly
Privy Council decisions (before 1978, 1985) speaking, not being synonymous with evidence, but rather the
Khalid Panjang & Ors v PP (No 2) (1964) MLJ 108, 111 (FC) effect of it.
All we have to say is that the Privy Council were not discussing the
law of England. They were discussing a section in an Indian statute (f) Types of Evidence
which is word for word the same as the corresponding section of a a) Oral
local statute. In then circumstances a decision of their Lordships is b) Documentary
binding on this Court and a fortiori it is binding on every High Court in c) Real
Malaysia and no Judge is at liberty, whatever his private opinion d) Direct
may be, to disregard it. e) Circumstantial
f) Hearsay
Decisions of other jurisdictions
e.g. Commonwealth countries (a) Oral evidence
Ghouse bin Hj Kader Mustan v R (1946) MLJ 36
those cases (East African decisions) are of course not binding on this Section 3
court but they are entitled to great respect "evidence" includes--
Lim Seng Chuan v PP 91977) 1 MLJ 171
referred to decisions in Papua New Guinea. (a) all statements which the court permits or requires to be made
before it by witnesses in relation to matters of fact under inquiry: such
(e) Meaning of Evidence statements are called oral evidence;
(b) all documents produced for the inspection of the court: such
documents are called documentary evidence;
Document A drawing, painting, picture or caricature is a document.
Section 3
"document" means any matter expressed, described, or howsoever ILLUSTRATIONS (cont'd)
represented, upon any substance, material, thing or article,
including any matter embodied in a disc, tape, film, sound track or A photograph or a negative is a document.
other device whatsoever, by means of--
A tape recording of a telephonic communication, including a
(a) letters, figures, marks, symbols, signals, signs, or other forms of recording of such communication transmitted over distance, is a
expression, description, or representation whatsoever; document.
(b) any visual recording (whether of still or moving images); A photographic or other visual recording, including a recording of a
photographic or other visual transmission over a distance, is a
(c) any sound recording, or any electronic, magnetic, mechanical document.
or other recording whatsoever and howsoever made, or any sounds, A matter recorded, stored, processed, retrieved or produced by a
electronic impulses, or other data whatsoever; computer is a document;
(d) a recording, or transmission, over a distance of any matter by (c) Real evidence
any, or any combination, of the means mentioned in paragraph (a), (not stated in section 3, but reference can be made to section 60 (3)
(b) or (c),or by more than one of the means mentioned in • covers material objects or things produced for the court’s
paragraphs (a), (b), (c) and (d), intended to be used or which may inspection and which are not documents
be used for the purpose of expressing, describing, or howsoever • views out of court
representing, that matter; • A document may constitute real evidence when it is the
existence or nature of the document itself which is in dispute-
Document eg. Dispute as to Ownership of a document./ the existence of
Section 3 a will/ age of manuscript.
ILLUSTRATIONS • Demeanour of a witness.
Admissibility ...there is the question whether the best evidence had been
admissibility of evidence depends on: produced by the prosecution - as it should have been done - of the
the concept of relevancy of a sufficiently high degree deceased’s identification of the appellants as her assailant. It is true
the fact that the evidence tendered does not infringe any of the the investigating officer, probationary inspector Nika Gurudial Singh
exclusionary rules that may be applicable to it did say, in answer to the jury, that he took statements from the
deceased at about 4.45 pm on 9 May and that he had testified to
arresting the appellant at his house at 5.00 pm the same day, and One use of affidavits is to allow evidence to be gathered from
the latter was charged the following day with an offence under witnesses or participants that may not be available to testify in
section 326 of the Penal Code. Production of the statement by the person before the court.
deceased, however, was the best evidence of its contents and yet it
was not produced and nothing on the record shows why it had been STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
held back. 32. Cases in which statement of relevant fact by person who is dead
or cannot be found, etc., is relevant
Public Prosecutor v Sarjit Kaur a/p Najar Singh [1998] 1 MLJ 184
.. . It should also be pointed out that circumstantial evidence does (1) Statements, written or verbal, of relevant facts made by a person
not depend on hypothesis, or theories, or even speculations. They who is dead or who cannot be found, or who has become
must give rise to strong inferences so as to become the best incapable of giving evidence, or whose attendance cannot be
evidence." procured without an amount of delay or expense which under the
(Referred to by the court in Public Prosecutor v Haniff Basree bin circumstances of the case appears to the court unreasonable, are
Abdul Rahim [2004] 3 mlj 271) themselves relevant facts in the following cases:
a) – j)
W3 Introduction | Introduction (Section 2 & 3) In simple words, we use the provisions of the Act to govern
affirmation of affidavits.
Jurisdiction of Evidence Act – Section 2
Affidavits from persons who are dead or otherwise incapacitated, or
(i) Non applicability of rule of evidence to affidavits and arbitration: who cannot be located or made to appear may be accepted by
the court, but usually only in the presence of corroborating
Section 2. evidence.
Extent
This Act shall apply to all judicial proceedings in or before any court, A formerly written affidavit, which reflected a better grasp of the
but not to affidavits presented to any court or officer nor to facts closer in time to the actual events, may be used to refresh a
proceedings before an arbitrator. witness' recollection. Materials used to refresh recollection are
admissible as evidence.
An affidavit is a formal sworn statement of fact, written down,
signed, and witnessed (as to the veracity of the signature) by a taker (ii) Non applicability of rule of evidence to affidavits:
of oaths, such as a Commissioner for Oaths. The name is Medieval Affidavits cannot be used to run foul of what is provided by sec. 91 /
Latin for he has declared upon oath. 92
• Arbitration: Held in an attempt to avoid a court trial and The words "permits or requires" in my view are used in section 3 in the
conducted by a person or a panel of people who are not context of being authorized by law, or required by law and this to
judges. me seems all the more so because of the provisions contained in
• The arbitration may be agreed to by the parties, may be section 165 of the Evidence Ordinance which empower a judge to
required by a provision in a contract for settling disputes, or ask any question he pleases in any form at any time of any witness or
may be provided for under statute. party about any fact relevant or irrelevant.
• S.3 of the EA expressly excludes an arbitrator from the
definition of the word ‘court’.
Considering the definition of evidence as embodied in section 3 of (b) That a man heard or saw something is a fact.
the Evidence Ordinance, I am of the view that evidence signifies
only the instruments by means of which relevant facts are brought (c) That a man said certain words is a fact.
before the court by witnesses and documents. Evidence properly
admitted is thus admissible for all purposes. There are, however, (d) That a man holds a certain opinion, has a certain intention, acts
matters which are not strictly speaking evidence but which may be in good faith or fraudulently, or uses a particular word in a particular
considered by a court and which may be treated as evidence. sense, or is or was at a specified time conscious of a particular
sensation, is a fact.
In order to constitute "evidence" as defined in section 3 of the
Evidence Ordinance an oral statement made to the court has to be (e) That a man has a certain reputation is a fact;
by a "witness". A witness can only give evidence from the witness box
and not from the dock or elsewhere. (c) Facts in Issue-
... In the result I hold that the statement of an accused from the dock
is not evidence. "fact in issue" means any fact from which, either by itself or in
connection with other facts, the existence, non-existence, nature or
Kurup v PP [1934] 1 MLJ 17 extent of any right, liability or disability asserted or denied in any suit
The definition of "Evidence" and "Court" in Section 3 of the Evidence or proceeding necessarily follows;
Ordinance shows that evidence is the testimony of witnesses in a
Court or before a person legally authorized to take evidence. Concerns the liability or non-liability /right of a party.
In Criminal Case:
• Elements of a crime/The charge
(b) Facts – Physical (External) and Psychological (Internal) • Defences relied by the accused
In Civil Case:
"fact" means and includes-- • The issues made by the Court from a consideration of
Physical (external): pleadings. They are facts which the party making the
allegation must prove in order to succeed.
(a) any thing, state of things or relation of things capable of being The F/I are determined by reference to the substantive law.
perceived by the senses;
Psychological (internal):
ILLUSTRATIONS
(b) any mental condition of which any person is conscious; A is accused of the murder of B.
Relevancy (Stephen’s digest) Evidence is not about truth, it’s about proof
Any two facts to which it applied are so related to each other that,
according to the common course of events one, ether taken by "proved":
itself or in conjunction with other facts, proves or renders probable
the past, present or future existence, or non-existence of the other. a fact is said to be "proved" when, after considering the matters
- eg. Res gestae. before it, the court either believes it to exist
ILLUSTRATIONS
(b) A a party to a suit does not comply with a notice given by B the
other party to produce for B's inspection a document referred to in
A's pleadings. This section does not enable A to put the document in
evidence on his behalf in that suit, otherwise than in accordance admit the evidence if it thinks that the fact, if proved, would be
with the conditions prescribed by the law relating to civil procedure. relevant, and not otherwise
Other Facts As Are Hereinafter Declared to Be Relevant (Section 136 gives to the court the power to ask a party tendering
s.6 - Facts forming part of same transaction evidence of a particular fact to show how the fact if proved would
s.7 - Facts which are the occasion, cause or effect of facts in issue be relevant, and the evidence can be admitted only if the court is
s.8 - Motive, preparation and previous or subsequent conduct satisfied that it is relevant)
s.9 - Facts necessary to explain or introduce relevant facts
s.10 - Things said or done by conspirator in reference to common PUBLIC PROSECUTOR V DATO' SERI ANWAR BIN IBRAHIM (NO 3) 1999-
design 2 MLJ 1
s.11 - When facts not otherwise relevant become relevant
s.12 - In suits for damages facts tending to enable court to determine Questions of admissibility of evidence are questions of law and are
amount determinable by the judge. If it is the duty of the judge to admit all
s.13 - Facts which are relevant when right or custom is in question relevant evidence, it is no less his duty to exclude all irrelevant
s.14 - Facts showing existence of state of mind or of body or bodily evidence. Section 5 of the Evidence Act 1950 declares that
feeling evidence may be given in any suit or proceeding of the existence or
s.15 - Facts bearing on question whether act was accidental or non-existence of every fact in issue and of such other facts as
intentional declared to be relevant and of no others. It follows from this that a
s.16 - Existence of course of business party to a suit or proceeding is entitled to give evidence of only facts
s. 17-23, 31 - Admissions which are declared relevant under the provisions of the Evidence
s. 24-30 - Confessions Act 1950. The judge is empowered to allow only such evidence to
s. 32, 33, 73A - Statements By Persons Who Cannot Be Called As be given as is, in his opinion, relevant and admissible and in order to
Witnesses ascertain the relevancy of the evidence which a party proposes to
s. 34-38 - Statements Made Under Special Circumstances give, the judge may ask the party proposing to give evidence, in
s. 39 - How Much Of A Statement To Be Proved what manner the alleged fact, if proved, would be relevant, and he
s. 40-44 - Judgments Of Courts When Relevant may then decide as to its admissibility
s. 45-51 - Opinions Of Third Persons When Relevant
s. 52-55 - Character When Relevant It is therefore manifestly patent that the court has been endowed
with the power to exclude evidence which it considers to be
Section 5 To Be Read With Section 136 irrelevant. A matter of critical importance is whether this power can
be exercised by the court before a proposed witness begins to give
Section 136 evidence. In my opinion, the language employed in the subsection
clearly contemplates the exercise of the power at that stage as it
When either party proposes to give evidence of any fact, the court empowers the court to inquire from a party '. . . in what manner the
may ask the party proposing to give the evidence in what manner alleged fact, if proved, would be relevant . . .' when a party '. . .
the alleged fact, if proved, would be relevant; and the court shall proposes to give evidence of any fact . . .' and to admit the
evidence only if it finds it to be relevant. The word 'proposes' means that the evidence adduced tends to show the commission of other
the court can exercise the power given by the subsection when a crimes does not render it inadmissible if it is relevant to an issue
party wishes to call a witness, that is to say, before a proposed before the jury, and it may be so relevant if it bears upon the
witness begins to give evidence. question whether the acts alleged to constitute the crime charged
in the indictment were designed or accident, or to rebut a defence
which would otherwise be open to the accused.
MUTHUSAMY V PUBLIC PROSECUTOR
[1948] 1 MLJ 57 R V KILBOURNE [1973] AC 729
That what was declared to be inadmissible in the first sentence of
It is the duty of the advocate to prepare his case with due regard to this passage is nevertheless relevant (i e logically probative) can be
the real issues and with special care for the law of evidence. If he seen from numerous studies of offences in which recidivists are
cannot show tersely that a proposed question is relevant he cannot matched against first offenders, and by considering that it has never
complain if the Magistrate promptly excludes it under section 5 been doubted that evidence of motive (which can be viewed as
which provides that evidence may be given of legally relevant facts propensity to commit the particular offence charged, in
"and of no others". These words are mandatory. contradistinction to propensity to commit offences generally of the
type charged) is relevant. All relevant evidence is prima facie
admissible. The reason why the type of evidence referred to by Lord
RELEVANCY V ADMISSIBILITY Herschell LC in the first sentence of the passage is inadmissible is, not
1. All relevant evidence are prima facie admissible, except because it is irrelevant, but because its logically probative
for hearsay and opinion significance is considered to be grossly outweighed by its prejudice
to the accused, so that a fair trial is endangered if it is admitted; the
R V TURNER law therefore exceptionally excludes this relevant evidence;
[1975] 1 ALL ER 70 whereas in the circumstances referred to in the second sentence the
Relevance, however, does not result in evidence being admissible: it logically probative significance of the evidence is markedly greater.
is a condition precedent to admissibility. Our law excludes evidence
of many matters which in life outside the courts sensible people take 2. Not all admissible evidence is always relevant
into consideration when making decisions. Two broad heads of
exclusion are hearsay and opinion. R V KILBOURNE
[1973] AC 729
MAKIN V ATTORNEY GENERAL FOR NEW SOUTH WALES [1894] AC 57 Not all admissible evidence is universally relevant. Admissible
It is undoubtedly not competent for the prosecution to adduce evidence may be relevant to one count of an indictment and not to
evidence tending to show that the accused had been guilty of another. It may be admissible against one accused (or party) but
criminal acts other than those covered in the indictment, for the not another. It may be admissible to rebut a defence but
purpose of leading to the conclusion that the accused is a person inadmissible to reinforce the case for the prosecution.
likely from his criminal conduct or character to have committed the
offence for which he is being tried. On the other hand, the mere fact
3. Court must admit relevant evidence
i. Court is not concerned on the manner the evidence is
obtained or the time as long as it is relevant