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Status Level Credit Hours Contact Hours Pre-requisite (if any) Co-requisite (if any) Teaching Methodology Method of Evaluation state weightage of each type of assessment Department: Public Law Department Bachelor of Laws (LL.B) Law of Evidence 1 LAW 4110 Core 4 3 3 None None Lectures, Tutorials & Seminars Test 1 15% Test 2 15% Tutorial Assessment 10% Final Examination 60% Total: 100% Coordinator: Prof Dr Haji Mohd Akram Shair Mohamed Mr. Mohd Shahrizad Mohd Diah Assoc. Prof. Dr Ismail Yunus Assoc. Prof. Dr Mohamed Akram Asst. Prof Dr. Rani Kamaruddin Semester 1 and 2 1. That students acquire a basic knowledge of the law of evidence.
Semester Offered Course Objectives
2. 3. 4. That students appreciate the relationship between the law of evidence and substantive law subjects. That students gain experience in applying the law of evidence to practical problems. That students can acquire and enhance transferable skills for effective learning and the application of the law of evidence.
The above objectives aim to equip students to grasp the law of evidence when he is practicing law as an advocate and solicitor or as a judge or otherwise dealing with legal matters in his various positions as a legal advisor. Learning Outcomes 1. To define the meaning of Evidence 2. To identify the various modes of evidence 3. To employ the theory of evidence into the skills that can be applied on courts 4. To examine the various relevant evidential issues to comprehend relevancy and admissibility of evidence. 5. To intergrate the knowledge of evidential and procedural laws into the areas of substantive laws. 6. To justify the usefulness of the knowledge of evidence laws into practical skills. 7. At the end of each topics, the students will be able to identify and provide relevant legal solution on each topics. 8. At the end of the semester the students will have a sound grasp of evidential laws. They will be freely apply the law to practical problems. “The law of evidence determines how the parties are to convince the court of the existence of that state of facts, which according to the provisions of substantive law would establish the existence of the right or liability that they allege to exist”. - J.F. Stephen, A Digest of the law of evidence, 4th edn. London: Macmillan, 1881, p. 2. This course aims to provide a basic outline of the law of evidence in Malaysia, particularly as provided for in the Malaysian Evidence Act, 1950. This course enables students to appreciate the theoretical basics of the law of evidence and their relationship with substantive law. Wherever necessary, the basic principles of Islamic law of Evidence will be pointed out in so far as they are important for comparative study. Main references for the course will be on local authorities. Authorities from other jurisdictions will also be cited to better understand the principles of the law of evidence. As the course is meant for final year law students, it is imperative that basic knowledge of the technicalities of the law of evidence is
imparted first. The first few weeks of the course will be devoted on the basics of evidence such as mode of evidence, relevancy sections and similar fact evidence. The next few weeks will cover important topics like admission and confession, expert opinion and exceptions to the rule of hearsay. Finally, this semester will cover the important topic on forensic evidence and the basics of evidence that will apply. The lecturer will attempt to explain how specific provisions of evidence will apply when this type of evidence are used. COURSE OUTLINES WEEK WEEK 1 TOPICS REFERENCES of the
A. Introduction to the Law of The historical background Evidence. Malaysian Evidence Act 1950. Salmond: “Law is divided into substantive law and adjective law.”
Substantive law deals with the rights and duties of the parties. Adjective law is to gain access to the court of law to vindicate your rights. Need to know procedure to defend your clients and to study evidence to prove the case to the courts. Adjective law is lex fori or law of the forum. Foreigners are tried to our procedure and law of evidence. Other cases: See Bain v Whitehaven Railway 1. Mohd. Syedol Ariffin v. Yeoh Ooi Junction  3 H CL. 1-19. Gark.  1 ML 165 2. Ainan v. Syed Abu Bakar  MLJ 209 B. 1. 2. The Role of the Common Law PP v. Yuvaraj  2 MLJ. 89 Jayasena v. R  1 All ER 219, AC 618. Deals with the interpretation of the code. The code is not malleable to that extent the common law is. Therefore to interpret the code must look at the code first. C. Is the Evidence Act exhaustive? In PP v Sanassi  2 MLJ 198, Sharma
A. The Principles of Interpretation 1. Bank of England v Vagliano  AC 107 2. Yeo Hock Cheng v R  MLJ 104 3. Pakala Narayana Swami v King Emperor  MLJ 59 Lord Macmillan held that the Evidence Act is a code and we cannot look at the previous state of law. However no code is exhaustive. Some matters can be left out. If the code is silent we can import common law to fill in the lacunae.
Since the Evidence Act is not exhaustive can we receive the common law? The Privy Council in PP v Yuvaraj  2 MLJ 89 lucidly expressed that no enactment is exhaustive. THE CONCEPTS OF FACT AND FACT IN p. The code is there but in matters when the code is silent we can receive the common law. THE EVIDENTIAL CONCEPTS FACTS IN ISSUE IN CRIMINAL CASES R v Simms  KB 531. admissions and denials so that before the trial everyone knows . E. D. PP v Glenn Knight Jeyasingam  2 SLR 499 at 519 The Singaporean Apex Court brought out a good part of the law. If a man is charged of killing a man and he pleads not guilty. On matters where the act is silent or fails to be explicit. everything is in issue and the prosecution Bentham mentioned that the has to prove the whole of their case definition of fact is dual in nature that including the identity of the accused. FACTS IN ISSUE IN CIVIL PROCEEDINGS It is identifiable from the pleadings. Many other matters can be found in other statutes such as section 113 CPC. The fact that he denies the charge is an issue in that dispute. Dangerous Drugs Act. The Code is exhaustive only what is contained in the Act itself. Seditious Act that contained evidential provision. Scope of the Evidence Act By virtue of section 2 the Evidence Act cannot apply to affidavits or to arbitrations.539. The Evidence Act is part of the general corpus of the law that is applied by lawyers. The PC told us that although the Evidence Act is in the form of a code there is no intention on the part of the legislature to do away with well-known concepts of the common law. 1. Lord Goddard A. In civil matters. In that sense it is not exhaustive.4 J had on occasion made a pronouncement whether the Evidence Act is exhaustive or not. The code is a facilitative Act. necessary knowledge or intent. ISSUE Whenever there is a plea of not guilty. the includes physical facts or nature of the act and the existence of any psychological (mental). The whole point of which is to set out the parties’ allegations. can have a reference to the common law. Facts in issue mean the subject in dispute.
The significance of this section is apparent. It can be read together with section 136 where the judge can ask in what way is the evidence relevant to the facts in issue – as exercised by Augustine Paul J in the Dato’ Seri Anwar Ibrahim’s case. Consequently. but the judgement must be based upon facts declared by the Evidence Act to be relevant and duly proved. Whatever is not provided for in the Act is irrelevant and therefore inadmissible.e. It gives evidence of facts in issue and facts that are relevant to the facts in issue as herein after declared section 6 – 55 and of no others. 1950 could be considered as judicial evidence in Malaysia. only evidence declared by the Evidence Act. . B. i. only evidence that is declared relevant by the Act and ‘of no others’. only evidence that is declared relevant by the Act and “of no others”. Haji Kassim  2 MLJ 115 (Federal Court) Whatever is logically probative is not necessarily admissible in evidence unless it is declared so under the Act. Section 5 must be read with section 136(1) of the Act: Relevancy is a concept that runs through the Evidence Act 1950.e. If the judge asked the lawyer about relevancy under section 136. Whatever is not provided for in the Act is irrelevant and therefore inadmissible. Section 5 declares what is relevant evidence. i. you should direct the judge’s mind to section 5. only evidence declared relevant by the Act can be considered as judicial evidence. Must prove the facts in issue. 1. THE CONCEPT OF RELEVANCY See also: Section 136: Court to decide as to admissibility of evidence. Matters that are not admitted become an issue. Section 5 is the backbone of the Evidence Act.5 the facts in issue are matters to be exactly what matters are left in dispute and decided in pleadings. In a contract. therefore open to proof or disproof. Consequently. Section 165: Judge has power to put questions about any fact relevant or irrelevant. 2. PP v Dato’ Seri Anwar Ibrahim (No: 3)  2 MLJ 1 Fact in issue must be relevant to fact in issue PP v. the terms. Section 5 declares what is relevant evidence. implied or express could be denied or traversed. The significance of this section is apparent.
Relevant Evidence and other related Issues: Some Comments From the Dato Mokhtar’s Case..M. Malayan Law Journal xv. but Spencer and Flin exclusionary rules. The concepts of logical and Chong Siew Fai CJ in Thavanathan legal relevancy Subramaniam v. Kilbourne  AC 729: “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . and (b) it sufficiently relevant to the facts in issue is must be legally admissible. it is no less his duty to exclude all irrelevant evidence.. would be relevant. relevant and admissible and in order to ascertain the relevancy of the evidence which a party proposes to give. the cardinal Evidence must satisfy not only the rule relating to relevancy is that. 1950. the judge may also ask the party proposing to give evidence. 170 (HC) held: “Questions of admissibility of evidence are questions of law and are determinable by the judge. Admissibility.” Other cases: PP v. 1950 declares that evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as declared to be relevant under the provisions of the Evidence Act. Dato’ Seri Anwar bin Ibrahim(No3)  2 MLJ 1. Recommended Reading: H. all evidence which is note: (a) it must be relevant. PP 3 CLJ 150 held that: “The law of evidence. and he may then decide as to its admissibility. in what manner the alleged facts. if proved. If it is the duty of the judge to admit all relevant evidence. admissible. The judge is empowered to allow only such evidence to be given as is. subject to test of relevance. in his opinion.6 Augustine Paul J in PP v. “(L)ogical probativeness” . C. Zafrullah 1984. Section 5 of the Evidence Act.
logically probative or disprobative evidence is evidence which makes the matter which requires proof more or less probable. 3. It 5. PP v Saminathan  MLJ 39 R v Kuruma  AC 197 Gan Ah Bee  2 MLJ 106 Re Kah Wah Video  2 MLJ Ramli b. it will be admissible. the door to exercise the exclusionary discretion was closed. It is discretion to be exercised judiciously. Haji Kassim (supra) “ … (W)hatever is logically probative is not necessarily admissible in evidence. Discretion to omit illegally obtained evidence Noor Muhamad  AC Where if the evidence was procured legally.7 . In R v Sang  AC 402. is not the concern of the court.” PP v. 3 ADMISSIBILITY OF EVIDENCE ILLEGALLY OBTAINED 1. Factors will . Kecik  2 MLJ 33 Wako Merchant Bank v Lim Lean Heng  4 CLJ 223-226 Under the common law as long as the evidence is relevantly procured.. i. hearsay and character evidence.. 2. WEEK 2.) This discretion to exclude in England was restored by statute in the Act of Parliament (Police And Criminal Evidence Act 1984). does not of itself express the element of expedience which is so significant of its operation in law . 4. In Malaysia we follow the common law..” Matters that are logically relevant but not legally admissible include privileges. (Ramli Kecik (supra) did not address this issue.e. It is sufficient to say . that relevant evidence... unless it is so under the (Act). the judge can exercise his exclusionary discretion to omit that evidence. if the prejudicial effect outweighed its probative value. is relevant it is admissible. even if you steal it. In Malaysia it is not certain. It is of high persuasive value to us.. Lord Goddard emphasized that as long as it 6.
Williams G. 1955. Krishna Rao Gurumurthy  1 MLJ 274 Kang J addressed his mind that evidence illegally obtained the judge must judiciously exercise his discretion to exclude illegally obtained evidence if the prejudicial effect will outweigh probative value. 3. Legal Studies. Other related case: Cheng Swee Tiang v PP (1964) 30 MLJ 291 Recommended Readings: 1. These are. Krishnan  1MLJ 8 (Federal Court). Illegally Obtained Evidence. Criminal Law Review. 261. 13. to a charge and (c) cases involving Evidence brings witnesses. (b) and proof. Evidence Obtained by Illegal Means. 339. Robins v. Tong. There is another type of something that brings about a presumption recognised by the Malaysian persuasion in the mind of the tribunal court called the statutory presumption. 1994. Evidence is parties or where the accused pleads guilty the media to bring about proof. Yeo. Definition of evidence SECTION 5: PROVING CASE BY EVIDENCE • Lim Soh Meng & Anor v. 31. Improperly Obtained Evidence: A Reconsideration. (a) cases of judicial notice. Proof is B is presumed. Illegally Obtained Evidence and The Concept of Abuse of Process: A Possible Reconciliation. One . the presumptions such as the common law counsel prove evidence by presumptions that a guilty man is innocent documents. Evidence leads/generates until proven guilty or that a man is sane proof. cases where the admission of facts by both They are not synonym. Choo. Evidence is the cause while until proven insane. 1981. or to prove fact A.8 depend on the nature of illegality. 1989. Melbourne University Law Report. Singapore Law Report. National Trust Co  AC 515 Definition of proof and the difference between evidence Proof is not required in three situations. 4. 2. 97. fact proof is the consequence.
9 of fact as to the existence or non. The witness was told someone out of court that witness to it. • Real evidence. Malaysia adopted the adversarial system. and the light which his . Teper v R  AC 480. see his demeanour. • Hearsay evidence. Malayan Law Journal. it not subject to cross-examination. As opposed to giving hearsay evidence that is repeating a statement in court made outside court. There is cross-examination to test the credibility of witnesses. Definition Drugs Act 1984 where possession of a by Act in 3 forms: required amount of drugs raises a statutory presumption that the accused is a trafficker Proved: of drugs. 486 Lord Normand summarized the classic rationale for exclusion as being “It is not the best evidence and it is not delivered on oath. 2. xxv Types of Evidence (Media of Proof) • Oral evidence. • Circumstantial evidence. It is the engine for the discovery of truth. It is not tested by cross-examination for the truthfulness of evidence. 1972. Testimonial Evidence (Oral evidence) – sections 59 & 60 to be read together. The Evidence Act: A Case For Reform. Distinction between Weight and Admissibility of Evidence. • Documentary evidence. Repeating out of court statement in court to establish the truth of the matter is hearsay. how he reacts to questions to appreciate the evidence. Section 59 states that all facts.example is section 37(1) of the Dangerous existence of fact in issue. What is perceived by one or more of the five senses to prove the truth of assertions. Singh. The witness did not see the facts. may be proved by oral evidence. Disproved: Not proved: Recommended Reading: H. not the best evidence therefore it is unreliable 1. The purpose of reexamination is to repair the damage. If the witness is present in court. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by crossexamination. except the contents of documents. Hearsay evidence Second hand evidence. the court can see him.
2. 2. If the purpose is to prove the truth of the fact in issue. 3. If the purpose to tell the court the fact that the statement is made. 5. Repetition of statement out of court through a witness in court. 1. 4. 1.” Such evidence can be concocted and the court has no chance of appreciation. ie when it is given to prove the truth of the fact asserted. and if relevant under the section of relevancy. 4. Section 60: Direct evidence is evidence perceived by one or more of 5 senses. it is not hearsay. Subramaniam v PP  MLJ 220 De Silva enumerates the judicial definition of hearsay. If that witness is asked to testify it is not hearsay. it is admissible. it is hearsay. Ratten v R  AC 378 A question of hearsay will only arise when the statement is given testimonially. Teper v R  AC 480 Re Soo Leot  MLJ 54 Salha v R  25 MLJ 110 Ratten v R  AC 378 HEARSAY CAN BE ORAL OR IN WRITING Chandrasekaran & Ors v PP  1 MLJ 153 Patel v Controller of Customs  3 All ER 593 Hearsay can be in the form of conduct or . May be admissible if relevant under section of relevancy.10 demeanour would throw on his testimony is lost. Look at the purpose of that statement. 2. to use it testimonially. Subramaniam v PP  1 WLR 965 Sparks v R  AC 964 Reception of Hearsay evidence Section 59: Witness must give direct evidence. 3.
Other sections relevant. Chandrasekera Alisandiri  AC 220 4. 3. The contents of documents may be proved either by primary or by secondary evidence. R v Abdullah 1887 All. computer. . Must be able to tell the court the reasons why you cannot prove by primary evidence. Section 104: The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other facts is on the person who wishes to give the evidence. ordinary or expert. Section 61. alias Proving the document is subject by the hearsay rule. Documents must be proved by primary evidence except in the cases hereinafter mentioned. CIRCUMSTANTIAL EVIDENCE Sections relevant: sections 6 –16 (Relevancy section) : Section 45-51 (Opinion evidence) Circumstantial evidence is inferential evidence where direct evidence is not available to be given by witnesses. DOCUMENTARY EVIDENCE Definition in section 3: Transaction of thought of something permanent. It is not exhaustive. You must call the maker of the document. Chandrasekaran & Ors v PP  1 MLJ 153. Anything that represent an idea by audio. Documents must be proved by primary evidence unless you are permitted to prove by secondary evidence by virtue of section 65. telex. Sections 61-65. Section 65 lays down the reasons that you can use to prove case by secondary evidence. Section 64 states the mode of proving.11 implied assertion. To be read together with section 64.
While the same transaction. Ahmad Ibrahim. authorities raided his premises he took out the phone. 1973. 113. all these are circumstantial evidence to prove that murder. facts before the murder at the scene have footprints. surrounding and accompanying . 1987. These transaction were relevant This section refers to those under section 6 and 7. We can call an expert to give an opinion. Sunny Ang v PP  2 MLJ 195 Wills on Circumstantial evidence. Can plant someone finger print. Ahmad Ibrahim.12 When a murder is committed and there is no direct evidence. It depends. Dato Mohktar Hashim & Anor v PP  2 MLJ 232 A cumulative effect that irresistably point to the accused. Malayan Law Journal. xxvi. The Best Evidence Rule. Current Law Journal. Note On Circumstantial Evidence. drawing an inference the existence or non-existence of a fact. or blood on the weapon. Visiting the scene of the crime. xlvi.1. Real Evidence The real subject matter itself – ie the identity of the offensive drug. WEEK 4 Res Gestae – Par in rei gestae (Part 1. for example a finger-print. 2. Conviction on Circumstantial Evidence. Mohd Akram. Recommended Readings: 1. Circumstantial evidence is more superior. He can be convicted. Locus in quo. 1. 1961. Malayan Law Journal. Kok Ho Leng v PP  MLJ Rep of the transaction) 119 Section 6: Facts forming part of Charged with gambling. 3. He is of the opinion that in direct evidence a witness can lie. 1.
R v Bedingfield. this doctrine will admit evidence not under any head of evidence. and are necessary to explain the nature of the fact itself. R v Bedingfield (1879) 14 Cox CC name. The utterance of the statement was so contemporaneous.14 Cox CC 341. Under the common law. It is connected by RG. Statement and conduct that are not exactly contemporaneous. See illustration (b). Ratten v R  AC 378 the law took a liberal term. Consist of acts. 6 – 55 that deal with relevancy. Statement made during the pressure of the moment. However to exclude this evidence will cause injustice. thing done (including words). Bedingfield was overruled by R v Andrews. It means the events that happened in the course of a transaction. 2. 2. which are inseparable from facts in issue. are enough to be proximate and contemporaneous. It must be legally and logically relevant. To exclude such evidence will make the evidence intelligible and unjustifiable. 3. 4. The evidence may occur at different Section 6 does not explain the concept of times and place. This doctrine under the common law very restrictive condition and is strictly applied. (HoL)  1 All ER 513. i. It is an application of the common law doctrine of Res Gestae. It is unlikely to be unreliable and admissible under Res gestae. this principle allows evidence not under any head of admissibility. Here the House of Lords referred to Ratten. The statement done on the pressure of the moment. Judges very much mersmerised by Res gestae doctrine. fact in issue by proximity of time and place and continuity of purpose and OLD LAW circumstances. 3. is a reliable statement. We have sections 5.e. crime/ tort. Under the common law. No chance to concoct his story. Hamsa Kunju v R  MLJ 228 (Singapore) Mohamed bin Allapitchay & Ors v R  MLJ 197 Leong Hong Khie v PP. Thavanathan a/l Balasubramaniam v PP  2 MLJ 401. when there is no time to concoct. The action must be contemporaneous and conduct. Tan Gong .13 circumstances. A transaction is a group of facts to which you give a legal 1. 4. Incident dominated his mind. Section 6 a very broad section. bystanders. statement and statement of spontaneous under the common law. 341 Ratten changed the way of thinking.
Law Quarterly Review. Jaafar Hussain v.14 Wai v PP  2 MLJ 206 Don Prophinit v PP  5 SLR 193 Sawal Das v State AIR 1974 729. 4. Malaya) When there is a direct connection between one fact and another. then the former is admissible even if it discloses that the accused is guilty of other offences. Sibley. 85. 19. Specially Admissible Evidence Res Gestae. Illustration (a) section 6. 1. . Nasser Din v E AIR 1945 All 46 PP v Sam Chong Hoey v PP  MLJ Other relevant cases: 1. 3. PP  MLJ 154 (Court of Appeal. Malayan Law Journal. Veeran Kutty  3 MLJ 498 4. Mills v. Statement by bystanders. 5.C Recommended Readings: 1. Doctrine of Res Gestae in Law of Evidence. 2. 2. 2. PP v. Doctrine of Res Gestae in Law of Evidence. 19. 203. 1987. Phipson. PP  MLJ 203 (Court of Appeal. then the former is admissible as part of the res gestae. 3. Federation of Malaya) If one act forms a part of the same transaction with another act that is in issue. Sibley. Chin. Law Quarterly Review. cxxix. R  3 All ER 865 P. 6. Res Gestae and Hearsay : A Malaysian Perspective. Law Quarterly Review. Relevancy. Tan Geok Kwang v.
Per Bhargava J at 299: of relevant facts or facts in issue. 435. Premeditation . 3. 55. Section 7 makes relevant facts which cause to fact in 2. Dr Jainand v R AIR 1949 All 291. or any agent to any party. 66. 6 Section 7 provides: 1. 1972. Stone. are money and ornaments from relevant.” consequence. 6. Res Gestae Reagigata.15 20. or “The fact in issue was whether which constitute the state of things Jainand had committed the under which they happened or murder of Karan Singh. Motive is the reason why a person does a particular act. Campbell. There must be an “Evidence that there were opportunity for the occurrence of the footprints at or near a scene of fact in issue to be relevant. to any suit or proceeding in reference to that suit or Motive Every act must have a motive. A fact in issue cannot occur in isolation. Motive is an emotion that leads that person to do that act. Karan Singh and had on the day of murder gone to Jainand to For any fact in issue to occur. 540. Section 8 provides: (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. S7 makes any facts occurrence facts in issue must be an occasion and an opportunity for its occurrence. there demand the money and must be circumstances where the fact ornaments are relevant facts in issue to occur. 3 Modern Law Review.” Footprints constitute an effect of a fact in issue that are relevant. Law Quarterly Report. 5. The which afforded an opportunity for facts that Jainand had taken their occurrence or transaction. Motive is different from intention. immediate or otherwise. Facts which are the occasion. Res Gestae and Hearsay Evidence. offence or that these footprints came from a particular place or led to a particular place. (2) The conduct of any party. There must be cause showing occasion. per Weston J in Sidik Sumar v E AIR issue that provide the occasion is a 1942 Sind 11: relevant fact. WEEK 5. is relevant evidence under section 7. cause or effect. cause or for the occurrence and the effect of the fact in issue.
if the victim as soon as reasonable makes a complaint to the person in authority. and whether it was previous or subsequent thereto. 2. It does not include statement unless those statements accompany and explain acts other than statements. To carry out preparation. 2. 1. is relevant if the conduct influences or is influenced by any fact in issue or relevant fact. 195 Boota Singh v PP  MLJ Explanation 1. Motive and preparation. . that complaint will be evidence of a conduct. To carry out prior conduct. and the conduct of any person an offence against whom is the subject of any proceeding. The relevancy of a complaint in sexual cases was considered by Muhammad Kamil J in PP v Mohammad Tereng bin Amit  1 MLJ 154. 1. or in reference to any fact in issue therein or relevant thereto. Chandrasekaran & Ors v PP  1 MLJ 153 COMPLAINT OF SEXUAL OFFENCE Illustration (j) If an offence has been committed by the accused. It showed that WFH was likely to be very concerned that this time there will be a police investigation and the police would interview the daughter. Conduct relevant. Conduct Can be previous or subsequent conduct. Distinguish conduct from statement. Explanation 1 adds an important qualification to the word conduct in the section. Look at section 8 in two aspects 1. The word conduct in this section does not include statements unless those statements accompany and explain acts other than statement: but this explanation is not to affect the relevancy of statements under any other section of this Act.16 proceeding. Wong Foh Hin v PP  MLJ 149 The evidence concerning the interview with the Orang Tua shows how strong the motive must have been when the wife went off in the night time to see the Orang Tua on the second occasion.
stated devoid of feelings. 1. such as the polic3 . Section 9: Facts necessary to 1. made spontaneously. made with aview to redress or punish and is made to someone in authority . the moment the accused disturbed the deceased. 2. explain or introduce relevant facts. That conduct amount to complaint. made to a person in authority. have 3 factors 1. must not be result of tutoring or corroborate the evidence of a witness. The value of a mere statement only to 2. 3. Facts established identity of person. A complaint . Makes relevant 7 facts. of information. S 11 (a) Facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. such evidence must be inconsistent with any other hypothesis than that of the accused’s guilt. These evidence led to the conclusion that they are more probable and more consistent with his innocence under s 9. she made a FIR under S 107 CPC. the former evidences conduct. Facts which established time and place which fact in issue is PP v Teo Eng Chan & Ors  1 MLJ 156 Karam Singh v PP  2 MLJ 25. 4. unlike a bare statement. Facts to explain fact in issue or relevant facts. A statement is something that is 3.17 The difference between a statement A complaint. Ong Hock Thye FJ: “In a case where the prosecution relies on circumstantial evidence. Admissible to show motive and conduct under s 8 (explanation 1) 1.” . Aziz Muhamad Din v PP  5 MLJ 473 The difference between a complaint and a mere statement in s 8 is that the former is expressive of feelings. 2. 6. evidence as conduct must and a complaint. The prosecution case was based entirely on circumstantial evidence. but not necessarily to a public officer. 5. but the latter has no such tendency. Mere relay Its contents emotive and the intent punitive. In Boota Singh. Facts which support or rebut fact in issue.27 & 28. Facts which suggest an inference – s 11(a). inducement. the latter of knowledge. Facts to introduce fact in issue or relevant facts.
PP v Toh Kee Huat  1 MLJ 76 The evidence of fingerprints is admissible to prove identity. the judge should remind the jury of any specific weaknesses which had appeared in the identification evidence. Identity and other matters Turnbull guidelines. Chan Sin v PP Id parades must be held in the usual and proper manner. He should instruct the jury to the possibility that a mistaken witness can be a convincing one. Facts show relation of parties in so far they are necessary for that purpose. Whenever the case against the accused depends wholly or substantially on the correctness of one or more identification of the accused. Girdari Lall & Ors v PP  MLJ 87 A combined profile photograph is inadmissible in evidence because it shows more than identity. Taylor v Chief Constable of Cheshire  1 All ER 225. 2. 5. The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. 3. Finally. By Lord Widgery CJ 1. Teng Kum Seng v PP  MLJ 225. which the defence alleges to be mistaken. Recognition is more reliable than mere identification. but once he is arrested the identification should be by personal inspection. 1. Dato Mokhtar Hashim v PP  2 MLJ 232.18 relevant under s 7. . Evidence of identity from a video tape recording taken while the crime was in progress is admissible. Visual id There is a distinction between recognition and identification. PP v Kok Heng & Ors  MLJ 171 The identification of a suspect by photograph before arrest is acceptable. the suspect must be placed with sufficient number of others of the same nationality and age as himself. 4. the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. 2. Although id of voice on the telephone is admissible its weight is a matter of opinion. 3. Identification of voice.
the evidence obtained from such a procedure has no value. separate identification parades must be held. Other cases: Girdari Lall & Ors. Where the accused is known to the witnesses. Jaafar b Ali v PP  4 MLJ 406. Cases in which it is necessary to hold ID parades. Procedure of ID parade. PP v Chan Choon Keong & Ors  2 MLJ 427. Ong Lai Kim v PP  3 MLJ 111. Malaya) It is improper to use photograph of . PP  MLJ 149 (High Court. There is no written law regarding procedure. Malaya) A combined profile photograph is inadmissible in evidence because it shows more than identity. It is proper to hold an id parade by using a one-way mirror but must be used with the safeguards enumerated in Archbold’s Criminal Pleading and Practice. Where the witness had the opportunity to see the accused prior to the id parade. The practice of holding a proper id parade is summarized in Mallal’s Criminal Procedure. Where there are two or more suspects. v. Ong Lai Kim v PP  3 MLJ 111. the question of id parade does not arise. ID parade is admissible under s9 Jaafar Ali v PP  4 MLJ 406.19 ID Parade. PP  MLJ (FMSR) 87 (High Court. Loke Soo Har v. PP v Sarjeet Singh  2 MLJ 290 The necessity of holding an id parade can only arise where the accused persons are not previously known to the witnesses.
PP.20 known pickpockets for purposes of identification as the photographs show more than identity. Malaya) The evidence of a voice on the telephone is admissible for the purpose of proving identity. v. Chan Choon Keong & Ors. (b).  MLJ 171 (High Court. PP v. See also: PP. Toh Kee Huat  1 MLJ 76 (High Court. 2. 945. 1989.  3 MLJ 111 PP v. Malaya) (a). Amar Singh [1948-49] MLJ Supp. Teng Kum Seng v. R. Chiong Cheng Wah  3 MLJ 56 11. Williams. R  MLJ 225 Ong Lai Kim v. Hussain bin Sidin  3 CLJ 2570 Recommended Readings: 1. 55 Leong Ah Seng v. but once he is arrested the identification should be by personal inspection. v. . v. PP  2 MLJ 315 14. 1963. PP v. The identification of a suspect by photograph before arrest is acceptable. Identity Parades. Current Law Journal. PP  MLJ 225 (High Court. Kok Heng & Ors. Turnbull & Ors.  QB 224 13. PP and Ors.  2 MLJ 427 12. The identification and the method by which it is held must be faultless. Malaya) The evidence of finger-prints is admissible to prove identity. Mohd Akram. Yau Heng Fang v. Identification Evidence and Turnbull Guidelines : Should Our CourtsFollow?. PP v.
Mirza Akhbar v. Ismail v Hasnul/ Abdul Ghafar v Hasnul  1 MLJ (FC) Section 11 does not admit collateral facts. 1.Week 4 WEEK 7 Section 10: Evidence of Conspiracy Liew Kaling v. It must be in reference to the common intention existing at See also: the time. PP.  AIR (P. v. ‘common intention’ more persons to commit an signifies a common intention offence or an actionable existing at the time when the wrong. PP said or written by one of  14 MLJ 74 them. Ng Lai Huat  2 MLJ 427 5.E. Malaya) conspirator in reference to common Statements made after the design. (b). PP  two conditions: (a).) 747 S 11: When facts not otherwise relevant becomes relevant (a) If they are inconsistent with any fact in issue or relevant fact. Chandrasekaran v. Can only admit facts under s 11 within the confines of the section relating to relevancy.C. when the thing was. under Khalid Panjang & Ors. the provisions of section 11 may be wide enough to cover . There is reasonable ground to MLJ 108 (Federal Court) A statement made after the believe that the conspiracy carrying out of a conspiracy is exists. There was an inadmissible to prove the agreement between two or conspiracy. PP  MLJ 306 – Things said or done by (High Court. (b) If by themselves or in connection with other facts they make the existence or non. Cannot disclose even if relevant. which are neither conclusive nor connected with the fact in issue. are relevant against each other.) 176 6. Example: Privilege information between husband and wife/ solicitor and client. completion of a crime are not admissible for the purpose of Things said or done by conspirators proving conspiracy.C. This case is important because it limits the areas of relevancy. K. Sardul Singh v. 479. PP  1 MLJ 153 7. then can admit it. State of Bombay [1957} AIR (S. Nik Hassan bin Nik Hussain v. (a) There is always the fear that certain aspects of relevant evidence at common law may not be provided for in the Acts. However. statement was made.21 Criminal Law Review. Have to ensure the collateral facts are relevant. v.existence of any fact in issue or relevant fact highly probable or improbable.
Dato Mokhtar Hashim  2 MLJ 335 If the accused relies on the defence of alibi. Section 11 is also limited in its operation by section 54 Evidence Act 1950. There must be some proximate connection between the collateral maters and the issues before these matters can be adduced under section 11. Absence of opportunity under s 7. S 103: Burden of proof as to particular fact + illustrations. illustration (a). 15 and 11(b). 174-175 R v Parbhudas Ambaram (1874) 11 Bom HCR 90 Alibi Section 11. Raja Azlan Shah J (as he was then) held that section 11 could not be so widely read as to include collateral matters that have no bearing at all on the fact in issue or relevant facts. 1950. Section 402 CPC to give notice within 10 days. WEEK 8 Similar Fact Evidence Definition Similar Fact Evidence is evidence that renders the existence or nonexistence of a fact in issue probable by reason of its resemblance thereto and not by reason of it being connected Relevant provisions – sections 14. he should create a doubt. From the wordings of section 11.22 any situations not provided for or dealt with by the other sections in the Evidence Act. Dato’ Seri Anwar Ibrahim(No. it may seem that anything at all may be adduced under the section. PP v.3)  2 MLJ 1. He has the legal burden to prove his defence. Absence of motive under s 8. Section 11 provides: Facts not otherwise relevant are relevant if they are inconsistent with any act in issue or .
therewith. Generally such evidence is inadmissible. When a person is charged with an offence, the fact that he has a disposition to commit an act, means that he has committed the similar act. relevant fact; by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable. (It is highly probable that he did it or improbable that he did not do it.) if Cases: 1. Abu Bakar bin Ismail v. R  MLJ 67 (High Court, Singapore) (a). Similar fact evidence is admissible to prove knowledge. (b). Propensity evidence is not admissible under section 11(b). Ismail v. Hasnul; Abdul Ghafar v. Hasnul  1 MLJ 108 (Federal Court) Section 11 does not admit collateral facts which are neither conclusive nor connected with the fact in issue. Poon Soh Har & Ors. v. PP  2 MLJ 126 (Criminal Court of Appeal, Singapore) The evidence of past criminal activities is inadmissible if it is merely intended to show that the accused has been guilty of other criminal acts. See also: 4. R v. Parbhudas (1874) 11 Bom HC 90 PP v. Lim Chen Len  2 MLJ 41 Chee Chin Tiam v. PP  1 MLJ Rangapula & Ors. v. PP  1 MLJ 91 Hussain bin Sillit v. PP  2 MLJ 232 14. Facts showing existence of state of mind or of body or bodily feeling. Facts showing the existence of Section 14 makes the state of mind relevant. (see Subramaniam v PP) Also state of body or bodily feeling relevant.
any state of mind, such as intention, knowledge, good faith, negligence, rashness, illwill or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or bodily feeling is in issue or relevant. Section 15 to rebut similar fact. Facts bearing on question whether act was accidental or intentional. When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. Section 15 is application of general rule as laid down under section 14. Section 54 provides that bad character Rule as laid down in Lord Herschell’s is not admissible unless it is relevant. proposition No. 1 in Makin v. AG for NSW When the accused is charged of an  AC 57 at 67: offence, the prosecution must try him “ It is undoubtedly not with evidence. If there is sufficient competent for the evidence he will be convicted. The prosecution to adduce accused will not be tried by his bad evidence tending to show history, bad disposition or propensity that the accused has been to commit the bad act to prove a guilty of criminal acts charge against him because evidence other than those covered of bad character is prejudicial and by the indictment, for the have no connection with the fact in purpose of leading to the issue. The bad character is irrelevant. conclusion that the Res alios acta. (Limb 1 of Makin) accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.” Evidence of similar facts is not admissible, if it shows nothing more that bad disposition or propensity. The rule is
Cases: 1. Maidin Pitchay & Ors. v. PP  1 MLJ 82 (High Court, Malaya) (a). Section 15 of the Evidence Act was designed to enable the prosecution to offer evidence in advance to rebut a defence which would otherwise be open to the accused. (b). The mere fact that the evidence adduced tends to show the commission of other offences, does not render it inadmissible if it be relevant to an issue before the jury. 2. Datuk Haji Harun bin Haji Idris v. PP  2 MLJ 155 (Federal Court) Evidence of ‘system’ may be adduced to rebut a defence which is open to the accused.
confined to misconduct on other occasions. Cases: 1. Yong Sang v. PP  MLJ 131 (High Court, Malaya) Evidence showing that the accused is the sort of person who is likely to have committed the offence for which he is charged is inadmissible. 2. Chew Ming v. PP  MLJ 11 (High Court, Malaya) Propensity evidence is inadmissible for the purpose of proving identity. 3. Kan Sik Fong v. PP  MLJ 163 (High Court, Malaya) Similar or non-similar fact evidence is not admissible if its prejudicial effect outweighs its probative force. 4. Nahar Singh v. Phang Hon Chun  2 MLJ 141 (High Court, Malaya) Evidence of similar frauds on the part of the defendant is admissible to rebut a defence raised.
The fact that the accused has a disposition to commit the act is irrelevant because it is prejudicial (see section 54). To show that he has a disposition to do so or commit a similar act need not necessarily be inadmissible if we can make it relevant, to rebut a defence, to show act was accidental or to rebut mens rea. For character evidence to be admissible it must be relevant. How can we show character evidence is relevant. Can if we can show character evidence to show mens rea, state of mind. Character evidence is relevant if the prosecution to rebut a defence open to the accused, defence of accident, common design or purpose or the accused defence of not guilty. (Limb 2 of Makin)
Exception as laid down in Lord Herschell’s proposition No. 2: “On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be (a). relevant to an issue before the jury, and it may be so relevant, if (b). it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or
(c). to rebut a defence which would otherwise be opened to the accused.”
. the prosecution must have evidence and not by his bad character. of negativing accident. 2. Eng Hock  1 MLJ 217 (High Court. inter alia. federation of Malaya) Evidence which is indicative of the state of mind is admissible under sections 11(b) and 14. Raju & Ors. PP  MLJ 10 (Court of in the Malaysian cases below: Appeal. If the evidence is normally lawfully Restatement of the law in obtained. Malaya) Past acts are admissible if (a) it is shown that such past acts are of the same specific kind and (b) they form part of a series of occurrences. v.  MLJ 21 (High Court. Malaya) (a). This dictum was reinforced by Lord Du Parq in the PC case of Noor Muhamad  AC. proving identity. 4. Similar fact evidence should only be admitted if it has a real material bearing to the issues as it would be unjust to admit highly prejudicial evidence merely because it is technically admissible. where if the (b). X v. it must satisfy the test of Boardman  AC 421 relevancy to be admissible. 3. 14 and 15 of the Evidence Act permit similar fact evidence to be admitted for the purposes. PP.26 The Makins approach was applied 1. v. Even if it is logically and relevant but if the prejudicial effect outweighed its probative value then a trail judge has discretion to exclude such evidence. R. Ang An An. This is known as exclusionary discretion. Kan Sik Fong v PP  MLJ 163 5. v. and rebutting a defence. proving mens rea. PP. If a person is charged with an offence. Rauf Hj Ahmad v PP  MLJ 190. Sections 11.
PP v Veeran Kutty  3 MLJ 498. The trial court admitted the similar fact evidence. The principle of Boardman was that the similar fact evidence of other offences must be strikingly similar with that evidence given in. the judge can exercise his exclusionary discretion to omit that evidence. the test for admissible ‘similar fact’ evidence is . the accused committed incest with his 2 daughters. Malaysian cases adopting Boardman’s principle 1. In this case the similarity was not striking but the system was there. If there is no strong evidence aliunde. Yong Pung How CJ held: “With the abandoning of the requirement that such evidence should have ‘striking similarity’ in the modern test set out in DPP v P. Junaidi bin Abdullah v PP  3 MLJ 217. it must be strikingly similar. to shut out prejudicial effect that would create injustice to admit that evidence of previous act. The approach in DPP v P In DPP v P  3 WLR 161. if the prejudicial effect outweighed its probative value. 434-435 In PP v Teo Ai Ni & Anor. In this case the evidence were Cases that followed DPP v P PP v Teo Ai Nee & Anor  2 SLR 69 Lee Kwang Peng  3 SLR 278. bound to have high probative value despites its inevitable prejudice. 2.27 evidence was procured legally. The decision of Noor Mohamad influences the thinking of the common law judges and this in turn influences the outcome of Boardman. ON appeal it was held that according to Boardman for similar fact evidence to be admissible. 290 Tan Meng Jee v PP  2 SLR 422. In the House of Lords Lord Hailsham admitted similar fact evidence provided the way the offence was committed was strikingly similar. If this similar fact evidence was not allowed. cannot admit similar fact evidence. whether the evidence is of probative value. Because of high probative value you can get it admitted. it would be an insult to common sense. The mother made a police report and the accused was charged with statutory rape.
Similar fact evidence also applies to civil cases 1. provided that the probative value of such evidence outweighs its prejudicial value. 206. that its probative force in support of the allegation that an accused person committed a crime must be sufficiently great to make it just to admit the evidence. 26. Evidence of System. At the moment our courts are stuck at Veeran Kutty and Junaidi. If we accept that the Malaysian Evidence Act is a facilitative Act. Malayan Law Journal.28 not strikingly similar. Maybe we can receive the Singapore decisions that endorse DPP v P in the future. Mood Music Publishing Co Ltd v De Wolfe Ltd  1 All ER 763. Chu Fai. Peiris.” Note that Singapore Evidence Act has section 2(2) that receives principles of English Common Law. Hales v Kerr  2 KB 601 3. 1987. the courts can readily receives new principles at Common Law. 175 3. 4. 1989. Our lawyers have to make our judiciary aware of these new developments. 2. Evidence of System in Commonwealth Law. Malaya Law Review. Ahmad Ibrahim. Singapore Law Review. Part 1. . Similar Fact Evidence: The Principles of Admissibility. 34. The House of Lords reviewed over 70 cases and concluded that it is not necessary for similar fact evidence to be strikingly similar. 1984. 1977. Journal of Malaysian Comparative Law. Approaches to the Admissibility of Similar Fact Evidence. lxxxi. 2. Nahar Singh v Pang Hon Chin  2 MLJ 141 Recommended Readings: 1. No reason to exclude similar fact evidence. which is absent in the Malaysian Ordinance. Jeffrey Pinsler. 2. goes to weight not admissibility. and sufficiently great to outweigh any prejudice to the accused in tending to show that he is guilty of another crime.
Havard Law Review. . Under s 17(1) an Provisions for Admission: Sections admission is a statement. Malayan Law Journal. and which is made by any of the persons and under the circumstances hereinafter mentioned. An admission is a statement. 193 A. Similar Facts after Boardman. 3. documentary stating or suggest a fact in Provisions for Confession: Sections issue or relevant fact made by people under 17(2). Seyadu v King  53 NLR 251.25. Mary Clyde v Wong Ah inference as to any fact in issue or Mei (1970) 2 MLJ 163 relevant fact. 91. Stone.B. xxxi.28. 10 SECTIONS 17 TO 31: ADMISSION & S 17(1) reads with 18 & 21. WEEK 9. Law Quarterly Review. Hoffman. Datuk Seri Anwar Ibrahim Singapore & Brunei. Ahmad Ibrahim. by a Direct admission of stabbing. 1994. 8. by authorized agents under sections 17 to 31. 5. confession is an admission made at any time. Part II. oral or documentary. slightly different. S 17(1) gives CONFESSION partial definition of admission. oral or 17(1). 1932. which suggests any 2. The Rule of Similar Fact Evidence. Evidence of System. the circumstances found in s 18: 1. by parties to a proceeding Admission is informal admission 2. It is completed by s 18. 1978. Similar fact Evidence: Probative Value vs Prejudicial Effect. persons from whom the parties to Although the Malaysian Evidence Act the suit have derived their interest owes its inspiration from India.29 5. Munir. Cases: MEANING AND PRINCIPLES OF CONFESSION 1. 1975. 954 7. 1. Journal of Malaysian Comparative Law. 31.27. persons who have any proprietary out of court.29 &30. it is in the subject matter of the suit. Ours is similar in Sri Lanka. Proceedings include criminal Section 17: proceeding.26. by representation judicial admission or admission made 4. 46. (No 3) Paul J. According to Stephen. India does not have s 17(2). 199 6. Formal admission in s 58 or pecuniary interest – only applicable in civil cases. 18-21. It is extra3. 24.
A direct admission is relevant. Where he makes an admission stating the fact in issue. 2. To amount to application in Sarawak. WLR 817. 3. Use the objective test. At the trial court these statements were admitted and he was convicted. 1. it should not be admitted. BUT Was that a confession? Look at the definition of confession.30 person charged with a crime. taking the statement as a whole and without reference to . 17(2): A confession is an admission made at any time by a person 2. Suggesting the inference. Anandagoda v R  1 These are pieces of cumulative evidence. run over her with the car. The objective No-where in the statement suggests he had test. If the statement is a confession. At the Privy Council the major plead of defence was that the court had erred in law (s 25 & 26). It has no fact is not a confession. stating or  MLJ 48. His appeal was rejected. Lord Guest: “Whether a statement amounts to a confession or not must be decided objectively. His appeal was dismissed. This definition of confession has 2 parts. Section 17(2) is much broader than the Indian law. S 17(2) stating or suggesting – was there a direct admission? Can you draw an inference? It is not a confession but still admissible as an admission under s 17(1). 18 & 21. admission. stating Read all the statements together. Does this or suggesting an inference that he give rise to inference that he actually did committed the crime. Pakala Narayana Swami v R accused of an offence. Crown counsel argued that what the learned brother had said is true. it must be plenary in nature. the offence. In the police station he told everything. Only read at the totality of the evidence. suggesting the inference that he Sir John: An admission of an incriminating committed that offence.
the defence must straight away object. Confession to be an admission 1. (s 24). PP  MLJ 20 4. the cautioned statement is presumed to be voluntary. 2. Made voluntarily s 24. it is not voluntary. 2. A confession in a cautioned statement tendered by the prosecution. Once a statement a confession by applying the Anandagoda objective test.31 extrinsic facts. Lim Yon Hong (1931) SSLR 96 2.” Lord Guest said that the test whether a statement is a confession is an objective one. Re Sunshine Securities  1 MLJ 57 1. R v Thompson  2 QB 12. How much evidence must be tendered to say that . Lemanit v. Simirah v. Dato Mokhtar Hashim & Anor v PP  2 MLJ 232). the 2nd stage must be covered –to be admissible it must be relevant and voluntary. This was applied in Lemanit v PP  2 MLJ 26. 18 dictum of Cave J 5. If the inferential statement was a confession made involuntary. The objective test in Anandagoda – the inferential admission of guilt by the accused charged – took at the statement in totality. which states or suggests the inference that the maker committed the offence. Singapore) 2. Cases: 1. Aziz Mohamed Din v PP  5 MLJ 473 4. A confession is a statement. 609 per Lord Sumner. Lam Choon v. PP  2 MLJ 26 (Federal Court. Chua Hock Lee  MLJ 239 3. Ibrahim v R  AC 599. taken as a whole without reference to extrinsic facts. Hasibullah bin Mohd Ghazali v PP  3 MLJ 321 3. whether to the mind of reasonable person reading the statement at the time and in the circumstance in which it was made it can be said to amount to a statement that the accused committed the offence or which suggested the inference that he committed the offence. Ling Ngau Leng v. If the counsel did not object. Must be a confession s 17(2). it is inadmissible.
32 the evidence is involuntary It is not necessary to have a lot of evidence to activate voir dire. Other cases:. The voluntariness of statement relies on section 24. R v Wilson  1 NZLR 316 . Need not be evidence under section 3. probable that the statement was made involuntarily. Mere bald statement will not suffice. Also accepts the element of oppression. 3. DPP v Ping Lin  3 All ER 175 6. per Sharma J: A slight inducement will suffice to render the confession involuntary. Dato Mokhtar Hashim v PP  2 MLJ 232 No statement by the accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement. 1. Here the prosecution has to prove statement was voluntary beyond reasonable doubt. 4. which give rise to a believe in the mind of the accused and which in the opinion of the court he will get an advantage or suffer an evil of a temporal nature. Aziz Mohamed Din  5 MLJ 473 7. PP v Law Say Seck & Ors  1 MLJ 199. Dato Mokhtar Hashim v PP  2 MLJ 232 5. Most recently followed by Dato Seri Anwar Ibrahim & Anor v PP  3 CLJ 313. Hasibullah Mohd Ghazali v PP  3 MLJ 321. opinion of Ariffin Jaka. DPP v Ping Lin  3 All ER 175. that confession is not voluntary. 2. Section 24 If a confession is a result of inducement. The defence must submit a well reason premise. threat. The court will determine that inducement. 8. promise held out by a person in authority (someone who can influence the outcome of the trial). That inducement caused the confession. R v Priestly (1965) 51 Cr App R 1 R v Prager  1 WLR 260.
4. inducement or promise operates on the mind of the accused through the hope of escape or fear of punishment connected with charge – If the inducement leads to confession. 609 per Lord Sumner DPP v Ping Lin  3 All ER 175) Chua Beow Huat v PP  2 MLJ 31 Pakala Naraya Swamy v E AIR 1934 PC 47 Chua Beow Huat v PP  2 MLJ 29. 3. 285. 1. For s 26 to apply it is not When an accused makes a confession under necessary to show formal arrest. Eng Sin v PP  2 MLJ custody of police: section 26. 1977. The subjective limb when the threat. It provides 3. 378 In Datuk Mokhtar Hashim. Malaya Law Review. Datuk Mokhtar Hashim & Anor  2 MLJ 232 Ibrahim v R  AC 599. 1988. 2. Abdoolcader FJ said at p 272 that it appears from DPP v Pin Lin  AC 574 that the classic test of admissibility of the accused’s confession should be part objective and part subjective. No PC 253 confession made by a person in police 4. 6. The Police Act 1967 defines him as a member of the Royal Malaysian Force 7. A probationary Inspector is a person below the rank of an Inspector. CONFESSIONS MADE TO THE POLICE: SECTIONS 25 AND 26 S 24 makes a confession made by an accused to a person in authority irrelevant if it was made by inducement. Statement of accused while in 1. The Admissibility of Testimony at a Trial Within a Trial : Not The Whole Truth. 312 2. The objective limb is satisfied if there is a threat. Sambu v R  MLJ 16 abusing their powers. 5. Fair Trails : New Buttresses for Accused Person. Windslow. inducement or promise – in the opinion of the court that the nature of inducement caused the confession. 19. 1. The word police officer is not defined in the EA or CPC. Malaya Law Review. Barret v PP  2 MLJ 284. Nazir Ahmad v KE AIR 1936 further safeguard to the accused. If he .33 Recommended readings. promise or oppression. Winslow. . Chong Teng v PP (1960) 26 custody shall be admissible unless MLJ 153 made to a Session Court Judge or magistrate. threat. 168 S 26 is to prevent the police from 2.
it is sufficient that the accused cannot go as he wishes. v. S 25 prohibits a confession made to a police officer whether the confessor is in police custody of police or not. Malaya Law Review. PP  1 MLJ 85 PP v. PP  MLJ of the Session Court Judge or 153 (High Court. PP  2 MLJ 168 (Federal Court) The term ‘custody’ in section 26 does not necessarily mean formal arrest. S 26 goes further. S 25 applies to confessions made to the police. interpreter is admissible under section 26. accused was in police custody. Malaya) Inspector it is excluded.) To ensure the accused gives his statement freely without any inducement or pressure. Confessions. Chong Teng v. These 2 sections have 2 A confession made through an different roles to protect the accused. S 26 governs confessions while the accused was in police custody. or doctor while he is in police custody is inadmissible unless made in the presence of Session Court judge or magistrate. Recommended Reading: See also: 5. 88. Malaya) magistrate. s 26. Awang Bongkok (1956) 22 MLJ 90 Lim Sing Hiaw v.34 cannot depart at his own free will suffice to constitute custody. Cases: Eng Sin v. such a confession shall be excluded unless it was made in the immediate presence 4. Winslow. 1982. Koh Jok Sim v. 6. Confession made to any person. PP. 28. Abdullah b. They are not identical. Confirmation and Resurrection: The Rescue of Inadmissible Information to the Police. Sections 25 and 26 compared. Tan Keo Hock  2 MLJ . made to any persons other than the police. Under s 26 Sections 25 and 26 of the Evidence the question is “Under what Act and section 113 of the circumstances was the confession Criminal Procedure Code do not made?” If the answer is that the apply to statements made to an confession was made while the excise officer or a customs officer. 7. 1. eg fellow prisoner. This is to guarantee their voluntary nature. There are 2 clear and definite rules. PP  2 MLJ police officer below the rank of an 50 (High Court. friend 2. Under s 25 the relevant question is “To whom was the question made?” If the answer is that it was made to a 3. the Session Court Judge or magistrate is required to comply with the procedure in s 115 CPC when recording down such a confession. Ng Goh Weng  1 MLJ 127 (federal court) Section 26 does not invalidate statements admissible under section 113 of the Criminal Procedure Code.
It is an exception to s 24. How much of information received from accused may be proved. and that information leads to the discovery of fact (weapon). Recommended Reading: Chin. 1988. PP  30 MLJ 275 Wai Chan Leong v. can give evidence of that information. PP v Krishna Rao a/l Gurumurthi fact (s 5) – the fact the knife was & Ors  1 MLJ 274 connected to the stabbing. as relates distinctly to the fact thereby discovered may be proved. PP  1 MLJ 25 PP v.35 190 Muka bin Musa v. 10. to his knowledge he knew it was there. 11. 1. 9. (psychological fact). PP  3 MLJ 356 Abdul Ghani v. 3. Pulukuri Kotayya & Ors v E AIR 1947 PC 67 2. Yee Ya Mang v PP  1 MLJ 120 )HC) 2 ideas: . If the information leads to the discovery off the fact. Chandrasekaran & Ors v PP  1 MLJ 153 (HC) Raja Azlan Shah: “Section 27 appears to be a concession to the prosecution. Norzilan bin Yaakob & Anor  1 MLJ 442 8. the thing was hidden (physical fact). so much of that information. whether the information amounts to a confession or not. it is relevant 3. gives information to the police. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer. 1. Section 27: Discovery statement. Malayan Law Journal. Statements by Accused Persons in Custody. so much of that information that distinctly relates to the discovery of the fact. clii. If the accused was in the custody of the police and gives information to the police that leads to the discovery of he fact. can give evidence of fact. so much of that information. 25 & 26.” When the accused in the custody of the police. Meaning of the word information. the Discovery – consequence accused knew it was there Information – cause.
Follow Police A Criminal Evidence Act 1984 in England . A discovery statement being taken must be recorded contemporaneously (matter of fact very difficult) PP v Basri bin Salihin  1 AMR 111. Sinnadurai J was of the opinion the statement be tape recorded and videotaped (if possible).” Per Gunn Chit Tuan SCJ PP v Liew Sam Seong  1 MLJ 223 Meaning of discovery S 27 cannot be used to turn an ordinary Connotes the idea of concealment. Cited Thurthell 24. 25 & 26. it includes knowledge derived by the person informed by the accused as well as the means taken to impart that knowledge. 10 held that even if the given voluntarily? information was given involuntarily. “It must also be observed that the legislature had sued the expression ‘information’ in s 27 and therefore did not intend it to have the same meaning as a statement. Raja Azlan Shah J in PP v Er Ah Kiat Must the information given in s 27  1 MLJ 9. 636 (PC): “It is worthwhile to make the observation at this point that the reason given for allowing it to be proved . Although that expression is not defined in the Act. Somebody derives knowledge. Derivation of knowledge from the accused to a person in authority. 358. It is recovery. it is S 27 appears to be an exception to s still admissible under s 27. unlike a statement. Murugan Ramasamy  3 WLR 632. recovery into a discovery of fact.36 1. Wai Chan Leong v PP  3 MLJ 356. 2. See statement of RAS in and Hunt that was referred to with Chandrasekaran. Imparting of knowledge. If the police already know of the facts it is not discovery. 2. approved in Goi approval by Viscount Radcliffe in Queen v Ching Ang v PP  1 MLJ 507. With the assistance of the accused it is discovered.
any portion thereof is nevertheless admissible in evidence if it leads to the discovery of a relevant fact. S 27 is subject to s 24. (Vijay Kumar  Crim LJ 1619. “ … in a number of Indian cases it has been held that the rule permitting admissibility … in s 27 is an exception … (to section 25 &26). It must be voluntary. Admissibility of evidence under s 27 is in no way related to the making of the confession. since the discovery itself provides the acid test.) … in order for a confession or other statement or information to . It qualifies for admission any such statement or information that might otherwise be suspected on the ground of a general objection to the reliability of evidence of that type. The reason is that. such evidence is admitted on clear grounds of relevancy or directly connecting the accused with the object recovered. Mohamed Desa Hashim v PP  3 MLJ 350 (FC) Sri Ram wore the legislature robe – legal fiction. the truth of the statement that led to the discovery is thereby guaranteed. It is the express intention of the legislature that even though such a statement is otherwise hit by section 24-26. but it does not qualify the all pervading qualification enacted in s 24. rather.37 that accused person gave information that led to the discovery of a relevant fact is not related in any special way to the making of a confession. (none of the cases say).” Raja Azlan Shah in Chandrasekearan (HC) S 27 is a concession to the prosecution. It should be the policy of the law when such discovery statement must be voluntary.
of the desirability as to the voluntariness of s 27 information. The FC did not want to disagree with Sri Ram who contemplated that the statement be volunteered.” The Federal Court say that by looking at authority RAS in Chandrasekaran on s 27 being a concession to the prosecution and an exception to s 24-26. due to the lack of language nexus between s 27 and s 24 …. it has been decided by local cases that the statement is not subject to s 24. We have s 3 & s 5 of the Civil Law Act: “ …. as a matter of policy.38 qualify for admission under section 27. However. S 27 not subject to s 24. In Goi Ching Ang v PP (supra) a different panel of the FC reinstated s 27 as an independent provision. it must have been made voluntarily. No nexus between 24 and 27. Juraimi Husin v PP  1 MLJ 537 (CA) In PP v Krishna Rao a/l Gurumurthi & Ors  1 MLJ 274 Kang J said while the FC was minded to leave it to the . There is a vested discretion in the trial judge to exclude evidence which is prejudicial to an accused even though the said evidence may be “technically admissible”. “… we are in complete agreement. Chong Siew Fai CJ at 524. with the view expressed in the judgement of this court in Md Desa. Any departure from the entrenched judicial interpretation laid down … would be a policy issue … be left to the legislature….
Tan Hung Song v. only so much of the information as distinctly relates to the fact discovered. Malaya) Section 27 stands by itself and is not abrogated by section 113 of the Criminal Procedure Code. then information relating specifically to such facts may be adduced. PP. Krishnan v. R  MLJ 181 (Court of Criminal Appeal. Wai Chan Leong v.39 discretion of the trial judge whether to exclude any evidence that may have been obtained improperly from the accused. 6. PP  3 MLJ 356 (Supreme Court) . King Emperor (1947) AIR PC 67 The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this. Malaya) Section 27 cannot be used to turn an ordinary recovery into a discovery of fact. v. PP v. Liew Sam Seong  1 MLJ 223 (High Court. Sandra Margaret Birch  1 MLJ 129 (High Court. Singapore) Section 27 is not intended to admit a confession generally. Once the facts discovered are identified. 5. no yardstick was prescribed to enable the judge to decide when such evidence should be excluded. 4. Pulukuri Kottaya v. 1. It ids therefore clear that the test of admissibility of evidence under s 27 when voluntariness is in issue is whether the prejudicial effect of its admission would outweigh its probative value. PP  1 MLJ 292 (Supreme Court) A statement is not admissible under section 27 if it shows more than information which distinctly relates to the facts discovered. 3. 2.
xxxiii. v. Sum Kum Seng v. Murugan Ramasamy  A. WEEK 11 ADMISSION & CONFESSION: PART 2 Case law: Per Buhagiar J in Noor Mohamed v Palanivelu & . The Scope of Section 27 of the Evidence Act. Part 1. Mohd Akram. Current Law Journal. Lan Kee Ho v.40 For section 27 to apply. 137 16. PP  1 MLJ 247 10. Queen v. PP  2 MLJ 632 19. Lum Kum Seng v. Satish Chandra Seal & Ors. R. PP  2 MLJ 78 14. Norzilan Yaakob & Anor  1 MLJ 442 15. 1990. PP  1 MLJ 244 9. PP. Basri Salihin  1 CLJ 420 21. 1. xx. 1990. v. 1 8. Sharif Saad  2 MLJ 770 20. Part II. Chong Soon Koy v. Packiam & Anor v. 1. the information must be such as has caused discovery of fact. Pang Chee Meng v. Tan Hung Sung v. PP. Adnan  2 MLJ 392 13. v. See also: 7. 2.  17 MLJ 181 11. PP v. Jamali b. PP  MLJ 233 12. Current Law Journal. The Scope of Section 27 of the Evidence Act. Tan Keo Hock  2 MLJ 190 17. PP  1 MLJ 110 18. PP  1 MLJ 244 Choo Yoke Choy v. PP v. Emperor  AIR Cal. v. Mohd Akram. C. PP  1 MLJ 137 Recommended Readings: 1. PP. Hashim & Anor v.
41 When a person is charged with reckless driving and he makes an admission and he was found guilty. PP  26 MLJ 153 1. The main reason for the decision was that the conviction merely proved that another court. A confession is admissible if it is made after the inducement is removed. It has a special meaning for and is founded on the lawyers. • In answer to question which he need not have answered. 95-96. (For more reference see Cross & Tapper at pp. The conviction is not relevant. Nazir Ahmad v. the plaintiff wants to admit the plea of guilty as evidence. When there . threat or promise has  MLJ 90 (High Court. 18. and Without warning that he was not bound to make it and his evidence might be used against him. PP v. acting on evidence that was unknown to the tribunal trying the civil proceedings. 5 & 21. he is convicted by his admission. encouraging litigants to try to settle out of court. Malaya) been fully removed. Neo Wan Kee  1 MLJ 368 if it is made: 3.) Section 28: Confession made after Case: the impression caused by Abdullah bin Awang Bongkok v. King Emperor  AIR PC 253 • Under promise of secrecy. In the public interest if there public policy of is a real dispute between the parties. was of opinion that the defendant was guilty of careless driving. • Under deception. 600. Rush & Tomkins Ltd v Greater London WITHOUT PREJUDICE Council & Anor  3 All ER 737. Chong Ten v. Tan Seaw Chuan  1 MLJ Section 29: Confession otherwise 318 relevant does not become irrelevant 2. If occurs a major injury and the plaintiff brings a civil suit for an action on negligence. The plea is in a different court. Anor  MLJ 114. COMMUNICATION “The without prejudice rule is a rule governing the A kind of privilege that is important admissibility of evidence to know. PP v. • When accused was drunk whether voluntarily or involuntarily. 740. PP inducement. If the plea is based on the admission. 116: Hollington v F Hewthorn & Co Ltd  KB 587. it is relevant on fact in issue or relevant fact under s 17(1). She Eng Gek v DA De Silva  MLJ 55 The conviction of one of the defendants for careless driving was held to be inadmissible as evidence of his negligence in proceedings for damages on that ground against him and his employer.
to decide the terms or the cost occurred. 454-458. For s 23 to apply there must be a dispute and a communication to settle that should suggest terms for the settling the dispute. 394: Per Abdul Malik Ishak J in Dusun Desaru Sdn Bhd v Wang Ah Yu  5 MLJ 449. 331-332. If that negotiation fails and then go to court. May use it as a threat with no serious attempt to settle. The use of the word without prejudice is not conclusive. McTaggart v McTaggart  P 94. these statements are protected by section 23. Per Chang Min Tat FJ in Malayan Banking Bhd v Foo See Moi  2 MLJ 17. S 23 will apply when there is negotiation between disputing parties with the aim of genuine settling the dispute. or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.” 2 conditions: 1. “The privilege may be waived by the person entitled to claim it. This will depend on the intention of negotiations. The court is not aware of these statements at the time. Explanation – Nothing in this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under section 126. Without prejudice to the rights of the parties concurred.42 is actual litigation contemplated between the parties. Waiver of the privilege Per Coomaraswamy J in A-B Chew Investments Pte Ltd v Lim Tjoen Kong  3 MLJ 328. Intention to settle. 740. if want to admit damaging statements made during negotiation. Rush & Tomkins Ltd v Greater London Council & Anor  3 All ER 737. 18. Section 23: Admission in civil cases when relevant In civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given. either expressly or by allowing evidence to be given of matters in respect of which privilege might have been claimed: 17 Halsbury’s Laws of England (4th ed) para 235…” . During negotiations parties made a lot of damaging admission with a view to settle out of court. conduct to negotiate a settlement. Per Abdul Malik Ishak J in Oh Kuang Liang v Associated Wood Industries Sdn Bhd  4 MLJ 390. Litigation contemplated/ dispute 2. without prejudice statements. can give evidence of such terms. Once negotiation successful. settle their differences rather than litigate them to a finish. Lim Tjoen Kong v A-B Chew Investments Pte Ltd  3 MLJ 4.
2. Nordin Johan  2 MLJ 221 (Federal Court) 15. 335. Yap Chai Chai & Anor v PP  1 MLJ 219 13.  2 MLJ 78 Recommended Reading: Mohd Akram. Bhuboni Sahu v The King AIR  PC 257 10. PP  1 MLJ 524 6. Lim Kheng Boon & Ors. v. and Confession of a Co. Juraimi Husin v PP  2 CLJ 383 12. Lim Chow Yoon v PP  1 MLJ 205 9. Param Hans Yadas v. Herchun Singh & Ors v PP  2 MLJ 209 11. PP v Dato’ Seri Anwar Ibrahim & Anor  3 CLJ 313. Abdul Rashid & Anor v PP  1 SLR 119 5. in Malaysia confessions by co-accused persons may be included in the whole body of what is understood to be evidence within the perimeters set by our Evidence Act. v. ( PP v Dato’ Seri Anwar Ibrahim & Anor  3 CLJ 313. • confession is legally proved. 1989. In section 3 of the Evidence Act 1950 which uses the word includes makes the definition of evidence an extensive one. state of Madhva Pradesh (1952) AIR SC. v. 3. Yeoh Tech Chye and Lim Hong & Anor. PP v Rozmaan bin Jusoh & Anor  2 SLR 181 7. Mustari Suri  2 MLJ 77 8. Matassan Hj. 377-385. Kashmira Singh v. 266. It was held that the natural interpretation of section 30 sis that it allows the conviction of an accused to be sustained solely on the basis of a confession by his coaccused. • they are tried for the same offence. 4. Confession against coaccused Confession by one person is taken into consideration against another if: both are tried jointly. 159 4. The current position: As against an accused person. Ramachandran a/l Suppiah & Anor v PP  2 SLR 671 PP.43 Section 30. v. 1252. Noliana bte Sulaiman v PP  1 CLJ 36 2. PP. Shankaria v State of Rajasthan AIR  Supreme Court 1248. PP. PP  2 MLJ 353 9.) 1. The Evidential Value of a Retracted Confession. Current Law Journal. In contrast to the situation in India. 8. Chin Seow Noi & Ors v PP  1 SLR 135 14. Serudin & Ors. Lee Yuan Kwang & Ors v PP  2 SLR 349 6.Accused Under Section 30 of The Evidence Act. . v. PP. 377-385. and • confession of the guilt affects the maker and the others. v. the confession of a co-accused could play a supportive role and can form a basis of a conviction. State of Bihar  2 SCC 201 7. Sim Ah Cheoh & Ors.  2 MLJ 176 5. provided the evidence emanating from the confession satisfies the court beyond reasonable doubt of the accused’s guilt. Dato’ Mokhtar hashim & Anor v PP  2 MLJ 232.
The Evidential Value of a Retracted Confession. Malayan Law Journal. PP. 1989. The Privy Council declared that the threats were wrongly excluded for they were not Section 31: Admissions not conclusive proof but may estop. PP 1 WLR 965 In this case the statements in issue were threats allegedly made by terrorists to the accused who pleaded duress to the charge of unlawful possession of firearms. xxi. may estop that person from denying the contrary. 2. 2. 1981. 1. Anamolies in the Law on Confession. . the makers not being available to give It is important to determine whether an outof-court statement is hearsay or not as demonstrated in Subramaniam v. Parties relied on that admission. Current Law Journal. Santhiadas v. Yap Sow Keong v. PP  2 MLJ 241 Retraction of confession does not invalidate the original confession. WEEK 12 The Rule Against Hearsay. v. 2. Singh. Osman & Anor. v PP  1 MLJ 137 3. • Meaning and Rationale for Exclusion. You are estopped from denying that fact if other party suffer a detriment. and Confession of a Co. PP  MLJ 90 2. The trial judge excluded the threats as being an out-of-court assertion and thus. Abdul Ghani v. State of UP  AIR SC 264 puts the court on inquiry as to the 5.Accused Under Section 30 of The Evidence Act. Admissibility and Effect of Exculpatory Statements in Criminal Cases. H. xlv Admissions are not conclusive. admissions are not conclusive proof of the matter admitted but may operate as estoppels under sections 115 and 117 of the Evidence Act 1950. 335. Retracted Confession. Heong. The objection to hearsay is that the evidence cannot be tested in court. Mohd Akram. Mustari Suri  2 MLJ 77 value and weight of the original confession. Under section 31. its voluntary character. but they may operate as estoppels under the provisions hereinafter contained. Admissions are not conclusive proof of the matters admitted.44 1. hearsay. 3. change his position. but can rebut. Recommended Readings: and probability of its being true. 1974. The Rule Against Hearsay excludes out-of-court assertions where such evidence is used to affirm the truth of facts contained in them and where the makers are not witnesses. 2. It 4. Malayan Law Journal.
Since only ‘relevant’ facts are It is admissible provided that it is admissible. Mohd Akram. it admissible when it is proposed to declares ‘relevant’ certain types of established by the evidence. It is not hearsay and statements are admissible. PP. (See also section 60 1. Campbell. Instead. PP  2 MLJ 427 Ratten v. It is hearsay and inadmissible clearly intended to exclude such when the object of the evidence is to evidence. Malaya) 2. Vi C. However. 6. Chang Min Tat. “Evidence of a statement made to a witness by a person who is not himself The Evidence Act 1950 does not called as a witness may or may not be define hearsay although Stephen hearsay. iii. 1990. 1990. i. it follows that an out-of. but the fact that it was admissions. 1. the rule is subject hearsay. 7. court statement that does not fall into any of those categories is ‘irrelevant’ Cases: and inadmissible. 4. Ng Lai Huat v. Current Law Journal . Malayan Law Journal. Malayan Law Journal. They ruled: to a number of exceptions. Current Law Journal.Hearsay Rule and the Evidence Act 1950. Malaya Law Review. Singh. 1971. 2.) Court. Hearsay Evidence. 5. confessions. The Hearsay Rule. 3. The Hearsay Rule: A doctrine in Retreat? A Reappraisal of the Hearsay Rule in Singapore (1990) 32 Malaya Law Review 239 Mohd Akram. Hearsay Evidence. dying made. . 2. R  AC 480 Nahar Singh v. that is. not the truth out-of-court statements such as of the statement. Leong Hong Khie v.” declarations and business records. 2.relevant.45 evidence. 1981. Re Soo Leot  MLJ 54 (High of the Evidence Act 1950. Queen  63 ALJR 226 Teper v. 6. R  AC 378 Walton v. Note Hearsay Evidence of Conspiracy. 2. Tan Gong Wai v. 1977. 4. 34. Odgers. the Act stipulates establish the truth of what is contained the circumstances where out-of-court in the statement. Pang Hon Chin  2 MLJ 141 Recommended Readings: 1. 217 5. clxxxviii. PP  2 MLJ 206 (Federal Court) See also: 3.
Before a statement can be adduced under any of the said paras (a) to (h). 1. then the out-of-court statement cannot be adduced.46 Exceptions: Section 32. He has been incapable of giving evidence because of his illness of body and mind. 3. Before we can admit hearsay Other relevant case: Satish Chandra Seal v evidence under section 32. It Per Abdul Malik Ishak J in Yong Kong Tai also applies to civil and criminal v Salim bin Jalal & Anor  2 MLJ 380.) Before evidence can be adduced under section 32. a common sentiment was cases. (To prove death – to bring the death certificate. 388-389. 2. If this is not satisfied. mentioned above. if the person had not been heard of in not less than 7 years by the people whom he would have communicated. . must lay a Emperor (1944) 2 Cal 76. or under s 108. Pakala Narayana Swami v The concept under the code is wide King Emperor. Statements of Persons Who Cannot Be Called as Witnesses. He is out of jurisdiction and to call him would cause unduly delay and expense. must first be satisfied. Maker who has since died. 4 reasons to admit hearsay evidence.”  MLJ than in common law. or the witness has seen him die. It includes 59 statements made by the deceased as to cause of death or circumstances of transaction relating to his death. the legal foundation must be laid. foundation. 1. Statements made by such persons are relevant in the cases outlined in paras (a) to (h) of the Act. the court can draw a presumption). one the four preconditions. 4. Maker cannot be found after diligent search. Sim Tiew Bee v PP  2 MLJ 200. Yeo Hock Cheng v R  Section 32(a) Dying declaration MLJ 91 2.
it was held that the circumstances of the transaction were proximately connected. The connection is too far and irrelevant. ie the fact in issue were relevant under section 32 where the circumstances constituting the transaction of the cause of death is relevant to the admissibility of the dying declaration. Section 32(a) is broadly worded vis-à-vis the common law. But if entertain a little bet of hope. It is not proximately related.The first statement was deemed to be inadmissible because it is too remote and not connected with the death. Relying on a leading Indian case of Pakala Narayana Swami v King Emperor  MLJ 59. Under common law.47 expressed where the judge pointed out the difference between the common law and the Evidence Act with respect to dying declaration. the statement must be made the declaration labouring under hopeless imminent of death. 1. Illustration (a) shows that it is receivable in civil as well as in criminal cases. . that would not be a dying declaration. One was made 11 days before her death. 3. dying declaration relates to homicide 2. If the statement relates to the cause of his death or relates to the circumstances of the death is also considered making a dying declaration. The statement was proximately related to her death and relevant to the fact in issue. The statement on the eve of her death form the transaction that relates to the circumstances of her death. Under the common law. and relevant under section 32(a). The scope is wider than the common law. to her father and the other on the evening of her death to her sister. The local law is broader in 3 ways. the dying declaration only in homicide case and if the victim is labouring under a settled hopelessness of death and if the victim entertain an iota of doubt of his death. that is not a dying declaration. In Yeo Hock Cheng v R  MLJ 91 the admissibility of the 2 statements alleged to have been made by the deceased was in issue. Under common law for dying declaration to be admitted. The difference only goes to weight. Circumstances of transaction that relates to cause of death is not covered under common law.
which is hearsay. the wife made a police report 9 months before her death. the value of the deposition may fairly be questioned. answer to questions then the questions should be recorded. R v Waugh  AC 203 R v Bottomley  38 LJ Newsp 311 A dying declaration need not be If the oral statement is the last dying words proved by writing at all. 2. the record should show the questions asked and the answers given. where a deposition is made in answer to questions. 1. However. If the statement is taken down in writing by person such as the police or a nurse. 123: “We desire to stress once more that it is desirable that. although a detailed record might show the criticism to be unjustified. the actual words of the Where a dying declaration is made in deceased must be recorded. It can be in the form of conduct or implied assertion. as far as possible should be in Q & A form (ipsissima verba) because or not the writer is bound to introduce his own opinion. there is no reason why we the exact words spoken by the cannot admit those dying declaration. It 1. so in what way is the statement connected? A dying declaration can be made in any form.48 In Boota Singh v PP  MLJ 195. Per Briggs Ag J in Naranjan Singh v PP  MLJ 122. . If this is not done. it was held that the statement made 9 months before was terribly remote. after the accused had disturbed HK.” R v Santokh Singh  MLJ 178) 2. The prosecution tendered that the evidence is relevant under section 32 because it was a transaction that relates to the cause of death. However. Chandrasekera alias Alisandiri  AC 220 R v Abdullah 1887 All A dying declaration to be in writing. of the deceased.
2. Mohamed bin Allapitchay & Ors v R  MLJ 197. 2. 1.49 deceased must be given. If the witness is not competent. 1. According to the legal sense there is no requirement that a dying declaration must be corroborated. AIR 1962 1252. Ong Her Hock v PP  2 MLJ 45 In admitting a dying declaration the court must bear in mind the fact that it was a statement not made on oath and which had not been submitted to the test of crossexamination. the court cannot receive such dying declaration. Nembhard v R  1 All ER 183 (PC) shared the same sentiment. 1. A DYING DECLARATION MUST BE COMPLETE 1. 199. Must a dying declaration be corroborated? Abdul Sattar v State AIR 1956 SC Muniappan v State of Madras. only goes to weight. When a dying declaration was put in evidence. Chan Phuat Khoon v PP  MLJ 127. The judge must be conscious of this fact that the credibility of the deceased is not tested and because of this it is also a requirement that the dying declaration must be credible. Toh Lai Heng v R  MLJ 53 2. 128 The dying declaration that seeks to be admitted must be made by a credible witness. Nembhard v R  1 All ER 183 (PC) State of Uttar Pradesh v Chet Ram & Ors  1 CLJ 1079 . 2. It is essential that the court assess the credibility of the deceased before relying on the statement made by him. the judge must be aware of the pertinent fact that a dying declaration is not made on oath and is not subject to crossexamination.
Malaya) The history of her illness as related by the deceased to the doctor before she died is admissible under section 32. should be a credible witness. State of Mysore (1956) AIR SC 168 . 4. PP  MLJ 195 (High Court. 2. the maker. Singapore) If a dying declaration is reduced to writing. Singapore) The recollection of the last words of a dying man by a witness who heard the actual words at the scene may properly be received in evidence. Malaya) For a statement to be admissible under section 32. PP  28 MLJ 132 (High Court. Boota Singh v. Chandrasekaran v. Kusa & Ors.50 3. PP  2 MLJ 45 (Court of Criminal Appeal. Chan Phuat Khoon v. Malaya) The out-of-court assertion must have proximity to the cause of the maker’s death. then the actual words of the deceased must be recorded. PP  MLJ 132 (High Court. Mary Shim v. Toh Lai Heng v. 5. Ong Her Hock v. 3. if alive. Khushal Rao v State of Bombay (1958) SCR 552 It is neither the rule nor practice that we need to corroborate a dying declaration. Abdul Sattar v. 1. It will depend on the circumstances of the case. State of Orissa (1980) AIR SC 559 8. See also: 6. or to any of the circumstances that resulted in his death. v. R  AC 220 7. R (1961) 27 MLJ 104 (Court of Criminal Appeal.
2. (d) . PP  2 MLJ 200 consisting. (c) Interest in escaping criminal prosecution . O`Brien  1 S. 4. goods. See also: For example. 4. statement to his own detriment . 178. PR v. signed by him. made: (a) Pecuniary interested. The Problem of Recollection Concerning Statements of Deceased Persons. (g) and (j). 30. Abdul Rashid  1 MLJ 201 (Federal Court) or signed by him. unless it is true.Statements against Cases: the interest of the maker. (b) Proprietary interest. securities or property of any kind written 2.. Sim Tiew Bee v. or whose attendance cannot be b) Acknowledgement of receipt procured. Before a statement can be admissible under section 32(b). confession of accused who is dead implicating himself and an accomplice in a R v. Self-interest induces a man to be cautious and he is not likely to make a 3. of the following: (Federal Court) An out-of-court statement made in a) Entry in books which are kept the course of business is in ordinary course of business admissible if it is proved that the or in discharge of maker of it is dead. written or in the ordinary course of business. Syarikat Jengka v. 591 Higham v. it c) Documents used in commerce must be proven to have been made usually dated. or has become incapable. and 1.C. 1988.g. Malaya Law Review. Ng Yiu Kwok & Ors. 1. Forster Frank Edald Heinrich  2 MLJ 594 Sussex Peerage’s Case [1843-60] All ER 55 . PP  3MLJ 166 Section 32 (c) . of money. see illustrations 3. Lin Ah Hoi  CLJ 1375 (b) . Interest against which declarations are 5.51 Recommended Reading: Jeffrey Pinsler. v. e. or cannot be professional duty. (c) . Ridgway  10 East 108 PP v. Cases: Section 32(b): Statements made in ordinary course of business. found.
see illustrations (k) and (l) 1. (c) matters of public or general interest. 165 (Privy Council) (a). see illustration (m). Conditions for relevancy are: (a) the declarant was aware of the existence of such right. (b) statement was made before any controversy as to right or custom arose. (b) custom. (b) relationship by marriage. . The application of section 32(e) and (f) is not limited Section 32 (f): Statement in will or deed relating to family affairs.C. see illustrations (e) and (f). Section 32(d): opinion as to: Statements giving (a) public right.52 crime. (c) relationship by adoption. Mohamed Syedol Ariffin v. Conditions for relevancy are: (a) person making the statement had special means of knowledge about the relationship. For example. For example. (b) statements must have been made before the question in dispute was raised. (d) Interest in escaping suit for damages. For example. For example. see illustration ( I ) Section 32 (e): Statement relates to existence of : (a) relationship by blood . Yeoh Ooi Gark  1 M.
Lee Shiah Yee  1 MLJ 193 (High Court. Robert Boon Teck Chua  1 CLJ 102 7. Lim Kim Luang v. PP v. R . Pitt  2 KB 130 11. Mohd Fairus b. Forster  2 MLJ 594 2. Du Bost v. PP v.53 by the common law restrictions. Benesford  2 Camp 511 12. Nembard v. (b). 1 All ER. 3. Omar  . Mohamed Abu Bakar v. Malaya) The inscription in Chinese characters on the tombstone of the deceased was admissible as it showed a father-son relationship of two deceased persons within the meaning of section 32(f) of the Evidence Act 1950. Illustration (n). Pappa  2 CLJ 265 6. Borneo) The entry of a son’s name on a tombstone of the deceased is admissible evidence of pedigree relationship. See also: Section 32 (h): Statement by several persons. Tucker v Oldbury KDC  2 KB 317 10. 2. PP v. The illustration given in the statute does not in fact illustrate the section. expressing feeling. Section 32 (g): Statements contained in any document relating to a transaction mentioned in section 13(a). Shanmugan v. Lee Kim Luang v. Ward v. Michael Anayo Akaboyk  3 MLJ 42 8. see. For example. Abdul Rahim  3 MLJ 188 5. 183 9. Syed Abu Tahir  1 MLJ 26 4. PP v. In Re Estate of Chan Chin Hee  SCR 6 (Supreme Court. 1. Fee Shiah Yee  1 MLJ 193 3.
Dato` Yap Peng v. 7. under section 155 or to corroborate a witness. See also: Are relevant in a: 3. xxl. Mohd.v. Depositions in former trials are admissible when the witness: (a) is dead . proceeding. (b) if the adverse party in the first proceeding had right and opportunity to cross examine. Pembenaan Yeoh Tiong Conditions of relevancy of such evidence are: (a) if the proceeding was between the same parties or representatives. P. Jamil bin Yahya & Anor  3 MLJ 702 Lim Peng Rooi v. Union Alloy (M) Sdn. 3 MLJ 167 P. 2. Bhd.P  2 MLJ 195 (a) subsequent judicial proceeding: 4. or (d) is kept out of the way by the adverse party. v. amount of delay or expenses. under section 157. and (c) if the question in issue were the same in the first and subsequent proceedings. Regina MLJ 57 (High Court. . or (b) cannot be found. Malaya) Before any evidence can be adduced under section 33. or (e) cannot be produced without an 2. P. Duncan v. Kee Saik Kooi & Anor .  1 or MLJ 337 (b) later stage of the same 5. occasion is also admissible to contradict a witness. Mohamed Kunju v. Sykt. 26 8. which court considers unreasonable.54 5 MLJ 57 Section 33: Evidence in previous 1.P. 6. Admissibility of Evidence in Former Proceedings under Section 33 of the Evidence Act 1950. 131 Lay Sdn. PP  15 MLJ Recommended Reading: Mohd Akram. or (c) becomes incapable of giving evidence. Bhd. v. Depositions by such witnesses: (a) in a judicial proceeding. it is incumbent on the party adducing such evidence to prove the prerequisite that the witness is dead or cannot be found or is incapable of giving evidence. R  MLJ See Yew Poo v. 1991. P.P. or (b) before any person authorised by law to take them. judicial proceedings. Evidence given on a different Current Law Journal.P [ 1966] 1 MLJ 271 (Federal Court) Evidence is admissible under section 33 when the court is satisfied that the circumstances contemplated in that section have been proved.
55 WEEK 13 OPINION EVIDENCE Relevant provisions: sections 45-51. When the court has to form  2 MLJ 320 an opinion upon a point of 3. The court can call persons to give opinion to assist the Leading cases: 1. science or art. 217 2. Khoo Hi Chiang v PP  genuineness of handwriting 1 MLJ 265. When the need for expert evidence arises Expert evidence is only admissible to furnish the court with scientific information. Identity of handwriting. or in questions as to identity or genuineness of handwriting or finger impressions. which is unlikely to be outside . In many matters such as scientific or medical matters. Art. (supra at p 159): “ The expression ‘science or art’ is elastic enough to be given a liberal interpretation” General principle When a witness is called to give evidence. are relevant facts. In Chandrasekaran v PP  1 MLJ 153. Question of identity. What is science or art is not defined but the court has given them a wide meaning. Junaidi v PP  3 MLJ court in informing the judge. Raja Azlan Shah gave them a flexible meaning. An expert is especially skilled on those points on which he is asked to give opinion. PP v Muhamed bin Sulaiman Major section. relevant under section 9. art. the court cannot give proper judgment. Section 45: Opinion of experts is relevant upon a point of: • • • • • Foreign law. 2. he must give evidence of fact of what he has perceived. 270or finger impressions. The witness cannot give opinion of the facts. 159. An expert is a person who is an expert in matters of science or art. or Finger impressions. the opinions upon that point of persons specially skilled in that foreign law. or as to identity or 4. PP v Virammal AIR 1923 Mad foreign law or of science or 178. section 45: 1. Such persons are called experts. Science. Only the court or the judge can give an inference of the facts.
In these situations facts and opinion intertwined. 2. Giving opinion is only the role of the judge. Secondly if the witness is allowed to give opinion evidence it will usurp the function of the court. . Facts and opinion becomes intertwined. sometimes there is a total mix-up between opinion and facts. Law in its wisdom will allow opinion evidence. Syed Abu Bakar v PP  2 MLJ 19. or state of drunkenness. 1. In this instance the opinion of a layperson can be received. It is not admissible for a witness to give an opinion because opinion evidence is less probative and not relevant. the court will draw an inference whether the fact is proven or not. 1. Other examples would be the state of the weather. 23 An opinion of an expert must be supported. There are 2 exceptions. Section 47 is an example of a non-expert opinion. When the witness observes the facts. In these circumstances the court can receive non-expert evidence. It deals with handwriting opinion. UAB v Tai Soon Construction Sdn Bhd  1 MLJ 182. For example when the witness is to give an opinion on the speed of a vehicle.56 the experience and knowledge of a judge. Opinion of an expert. 2. the witness shall perceive that it is fast or not. Not fair to cogent justice to preclude such opinion evidence of a layperson. The question will be on how much weigh does such evidence have and it will depend on circumstances. 187-188 When the witness gives evidence of the fact.
in his opinion. exception in that field. Case law Folkes v Chadd 99 ER 589 An expert may base his opinion on a description given to him.57 The judge has to enquire the Whether he had acquired the expertise by a person’s qualification as an expert systematic academic study. In this case the court can form its own opinion. Case law: R v Mason (1911) 7 Cr App R 67. and it is not necessary to call an expert. R v Turner  1 All ER 70 The difficulty is whether the opinion is necessary or not necessary. The rationale is that when the court does not have the expectation on the subject matter of that enquiry. or has an in that particular field. The court would have perceived the facts without the assistance of an expert. If the court can form an opinion. . He court can determine by his knowledge and how he acquired it. the wounds could have been self-inflicted. It was clear that the injuries were caused by blunt or sharp instruments. it is not necessary for the court to call an expert. A medical witness who had not seen the body of a deceased person might be asked whether. R v Masih  Crim LR 395 R v Weightman (1990) 92 Cr App Rep 291 Lim Ting Hong v PP  2 MLJ 119 Jayaraman & Ors v PP  2 MLJ 306 Dato Mokhtar Hashim v PP  2 MLJ 232 In the Federal Court. the FC state that must make a distinction between an opinion of an expert and an opinion of a non-expert. and the court cannot form an opinion without an expert. the court can ask an expert to assist the court. Experts should not give conclusions on matters that are eminently matters for the court to decide. assuming that the facts described by another witness who had seen the body are true. Based on the court own experience there is no need to rely on expert opinion.
C. Mohamed Kassim bin Yatim  1 MLJ 64 (High Court. Munusamy v. PP v. 3. Lim Siew Hong  1 MLJ 262 (High Court. Malaya) Expert evidence. PP  1 MLJ 153 (High Court. he may be so by experience. 7.  MLJ 221 (H. v. 2. PP  2 MLJ 19 (Federal Court) It would be erroneous for a judge to form his conclusion on a matter such as disputed handwriting without the aid of expert evidence. especially of handwriting. C. Thai Airways International Ltd  2 MLJ 91 (F. to call expert evidence on the part. Sivagami Achi v. who wishes to submit that the meaning of words in a foreign language is ambiguous. PP. he need not be so by special study.58 1. P RM Ramanathan Chettiar & Anor. 8. v. Malaya) Expert opinion on typewriting is as much a matter of science study as handwriting and fingerprint evidence and is therefore admissible. Chandrasekaran v. Mohamed Sulaiman  1 MLJ 320  2 MLJ 320 (Federal Court) The expert must be ‘skilled’. 5. Syed Abu Bakar bin Ahmad v. Borneo) A semi-skilled or a semiprofessional may be accepted as an expert witness under certain circumstances.) Expert evidence is needed to prove a . is merely opinion evidence and is not conclusive. Mary Shim v PP  MLJ 132 2. Shriro (China) Ltd & Ors.) It is the duty of counsel. Kong Nen Siew v. 4. 6. PP  1 MLJ 492 (Supreme Court) The court is entitled to accept expert opinion on evidence that is of an elementary nature.
Teng Kum Seng v. Allapa relevant if they support or are Chettiar  1 MLJ 43 inconsistent with the opinions of Singapore Finance Ltd. 534. Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai  3 MLJ 61 followed the leading SC case of Murarilal v State of MP AIR 1980 SC 531. illustrations (a) and (b). In Dalip Kaur v Pegawai Polis Daerah. 66 the learned judge held that handwriting opinion of a handwriting expert is not conclusive. This is by opinion of an expert against an expert. OPINION OF HANDWRITING EXPERT In PP v Mohamed Kassim  1 MLJ 64. It goes to weight. PP  MLJ 225 (High Court. UMBC  2 MLJ 193 Facts not otherwise relevant. The court is entitled to give it proper credit. English court had to have expert evidence given on certain questions regarding Muslim family law in Malaysia. Syarikat Perkapalan Timor v. The court needed a handwriting expert to assist the court because it was not within the expertise of the judge. Viswalingam  1 MLJ 10. 10. or if they are inconsistent with opinions of experts. Lim Kah experts when such opinions are Ngam  2 MLJ 202 relevant. are relevant: if they support opinions of experts. V. U. opinions of expert Facts not otherwise relevant are Collector of Land Revenue v. .59 foreign law. Malaya) The evidence of an expert on handwriting. The judge relied on the opinion of a handwriting expert and 9. This case involves forgery of a document. poor and requires corroboration. Section 46 Facts bearing upon For example see. especially Chinese characters must be treated with caution. Bukit Mertajam  1 MLJ the opinion of a handwriting expert must be viewed with caution. Viswalingam v.
Or by his admission – no need to produced.18 & 21). It deals with written or signed. the opinion of any opinion as to handwriting when person acquainted with the handwriting of relevant the person by whom it is supposed to have been written or signed. MUST THE OPINION OF A HANDWRITING Although a handwriting expert is third class. Section 67: Proof of signature and To prove handwriting: handwriting of person alleged to 1. By calling the maker – direct evidence have signed or written document 1.(Whenever the opinion of any living person is relevant. call him (sections 17. By indirect or circumstantial wholly or in part by any person. shall be proved to be in his 3. When the court has to form an opinion as Section 47 is an example of a non. the grounds on which his opinion is based are also relevant. It is not conclusive and must be corroborated.60 found that the documents were forged. that it was or was no written or signed by that person. before the case of Murarilal v State of MP the opinion of handwriting expert need to be corroborated. of very low expertise. the evidence – Datuk Harun Idris v signature or the handwriting of so PP  2 MLJ 155: Eusof much of the document as is alleged Abdoolcader held that it could be to be in that person’s handwriting proved by circumstantial evidence. Murarilal v State of MP reviewed this position and stated that it is neither a rule of law or promise that the opinion of a handwriting expert is subject to a special category.) Opinion of a non-expert. section 45. EXPERT BE CORROBORATED? For example the secretary of the person . 46 (Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai  3 MLJ 61) & section 51: Grounds of opinion when relevant:. On appeal of the major ground was the judge had erred in law because he had relied on the opinion of a handwriting expert. is a relevant fact. AIR 1967 SC 1326 held that there is nothing technical about proving handwriting. Handwriting can be proven by a Fakhruddin v State of Madhya Pradesh non-expert. If a document is alleged to be signed or to have been written 2.to the person by whom any document was expert opinion. By the opinion of an expert – handwriting.
writer to write a specimen and the court will compare. he did not know the nature of the act. It is the question for the judge to decide whether she is peritus. can ask the others admitted or proved. still use section 45 for expert opinion. R. she is an expert and to determine whether she is an expert. The judge cannot form an . is a preliminary question. Lim Ting Hong v. v. in this respect I don’t agree that the secretary gives an opinion of a non-expert. Is the judge clever enough to compare the specimen? (see Fakhruddin v State of Madhya Pradesh) Opinion of person as to handwriting is relevant if he is acquainted with the handwriting. Lim Chin Shang  MLJ 125 (High Court. 1. (an expert). b. In this situation. If the person is already familiar with her boss’s handwriting. he has seen the person writes. Witness cannot give opinion For example: A commits murder and claims that he has non compos mentes. A person is acquainted with the handwriting if: a. 2. writing or seal with If the handwriting is in issue. It is useful to require an expert. the courts are prepared to accept a witness’s personal experience as the basis of his expert knowledge. It is quite imprudent not to use section 45. Ultimate issue rule When a witness comes to court he gives evidence of fact relevant to fact in issue. Section 73: Comparison of Other mode: signature. PP  2 MLJ 119 In matters relating to secret societies. However. he has received documents in answer. c.61 may be familiar with his handwriting. Singapore) Experience may be a basis for accepting a witness as an expert. documents are habitually submitted to him in the ordinary course of business. and she can be called to give opinion on the handwriting. How much weight to give on such evidence depends of the standing of the witness.
The judge will give an opinion from the expert’s observation. He should say. The judge is to decide whether the accused is insane. 214: “But except on purely scientific issues. Opinion evidence never decides the ultimate issue.” UAB v Tai Soon Heng Construction Sdn Bhd  1 MLJ 182 Zakaria Yatim J held that in the law of opinion. the court will draw an inference whether the fact is proven or not. a psychiatrist is called. an expert only to assist and cannot decide the ultimate issue on the forged cheque. The court will draw an inference that the accused is insane. When he gives evidence he cannot say. When the witness gives evidence of the fact. It is not admissible for a witness to give an opinion because opinion evidence is less probative . The ultimate issue rule is already entrenched in the legal system. This is the role of the court. which is required to weigh all the evidence and determine the probabilities. It cannot transfer this task to the expert witness. the prosecution only gives evidence to prove these issues. Only the court decides.” From this the court will agree or disagree. The court is to form an opinion or to draw an inference as to the ultimate issue. The rule is seen more in breach than in performance. the court must come to its own opinion. opinion. I noted that he behaved in the way more consistent with his insanity. The judge is seen to merely adopting the expert’s opinion in the notes of evidence. To prove it. Section 5 and 136 makes only relevant fact or relevant fact in issue and of no other. In the ultimate analysis it is the tribunal of fact. “The accused has non compos mentes”.” From my observation. expert evidence is to be used by the court for the purpose of assisting rather than compelling the formulation of the ultimate judgments.62 of ultimate issue. per Raja Azlan Shah CJ in Wong Swee Chin v PP  1 MLJ 212. For example when the prosecution wants to prove a negligent act. whether it be a judge or jury.
including the expert’s. Singapore) Experts should not be asked to give conclusion on matters which are eminently matters for the court to decide. Lim Chin Sheng  23 MLJ 125 21. . PP v. Chin Sen Wah v. Ong Chan Tow v. Chin Sen Wah v. PP  26 MLJ 225 20. PP  MLJ 247 (High Court. Mohamed Kassim Yatim  1 MLJ 64 18. PP  1 MLJ 153 19. Secondly if the witness is allowed to give opinion evidence it will usurp the function of the court. Malaya) The ultimate decision on any issue is with the court. Syed Abu Bakar bin Ahmad  2 MLJ 19 17. PP  24 MLJ 154 Wong Swee Chin v. The role of the expert witness. Wong Chop Saow v. PP v. See also: 16.63 and not relevant. See also: PP v. PP  MLJ 154 (High Court. Lin Lian Chen  1 MLJ 316 OTHER RELEVANT MATTERS. v. Teng Kun Seng v. PP  1 MLJ 212 (Federal Court) It is the tribunal of fact that decides on the ‘ultimate’ issue and the value of any evidence. Chandrasekaran & Ors. R. PP  1 MLJ 212 (a). Chong Wei Khan  3 MLJ 165 PP v. R  MLJ 160 (High Court. Malaya) Stipulates the procedure to be followed when an expert gives evidence. v. Lee Ee Teong  19 MLJ 244 22. Wong Swee Chin v. Giving opinion is only the role of the judge.
Singapore Finance Ltd v. Journal of Malaysian Comparative Law. . 2. Expert Testimony – Some Reflections From Malaysia.2)  1 MLJ 423 (High Court. Malaya) When there is a difference in the evidence between two witnesses on scientific matters.64 (b). 1980. Conflicting opinion evidence. Raja. PP  2 MLJ 232. 2. The court preferred the evidence of one expert to that of another on questions regarding the alleged murder weapon. Alagappa Chettiar  1 MLJ 43 (Privy Council) Where there is a conflict between the opinions given by more then one expert. 1. 1978. 2. What Blood Can Tell And How?. On Disproving FingerPrint Evidence. the court may examine the scientific grounds and bases on which they rely. 1984. Malayan Law Journal. 243. 4. Collector of Land Revenue v. Pavone v. Singapore) In evaluating the conflicting expert evidence. 1. PP (No. Recommended Readings: 1. xxxix. Current Law Journal. then it is incumbent on the party concerned to have expert testimony to explain the difference. the judge has a right to prefer one opinion to the others. such as drugs. 262. Dato Mokhtar Hashim & Anor v. Ganeson. 3. 3. Zafrullah. Lim Kah Ngam (S’pore) Pte Ltd & Eugene HL Chan Associates  2 MLJ 202 (High Court.
1955. 687 5. Peter Gillies. or • meaning of words or terms used in particular districts or by particular classes of persons. Nimai Charan . Admissibility of Opinion Evidence. Australian Law Journal. Opinion Evidence. The Infallibility of Fingerprints. “General customs or rights” include those common to any considerable class of persons. Section 49: Opinion as to usages and tenets. Australian Law Journal. 61. Section 50: Opinion on relationship. 1958.65 4. 591 Section 48: Opinion as to general custom or right. • constitution and government of any religious or charitable foundation. Wilson. 1990. Expert Testimony. Jackson. Zafrullah. Criminal Law Review. as to: • usages and tenets of any body of men or family. 34 9. Detection of Fingerprint on Documents. Criminal Law Review. Eddy Q. 75. 6. 7. 1986.C. Journal of Malaysian Comparative Law. Case: Dolgobinda Paricha v. 597. Criminal Law Review. 60. 1984. Doyle QC. Opinions of persons are relevant if they are with special means of knowledge. 243 8. The Ultimate Issue Rule.
Singapore) Character evidence of the accused is generally inadmissible. Malaya) Evidence Act 1950 The fact that a person is unable for See also section 170 Criminal the time being to satisfy his Procedure Code creditors is not evidence of bad character. Pacific Tin Consolidated Corp. Malaya) The opinion of an expert may be An expert must give the reasons in supported by a clear statement of support of his evidence. PP  MLJ 327 WEEK 14 EVIDENCE OF BAD CHARACTER. Hoon See also section 60 (1) (d) Wee Thim  2 MLJ 35 (Federal Court) (a). . Habee Bur Rahman v. Borneo) Character evidence is generally inadmissible because of its prejudicial nature. 146A Court. 1. those facts. PP  MLJ 195 (High See sections 52 to 55. 2. (High Court. 1. 146. See also: 3. the grounds or reasoning upon which such opinion is based may be inquired into. In all cases of opinion evidence. Kong v. (b).66 Misra and Ors (1959) AIR SC 914. Lai Yong Koon v. 2. Where the opinion of experts is based on reports of facts. Sim Ah Oh v. R  MLJ 206 (High Court. PP  2 MLJ 194 (High Court. OK Nair v. v. unless within the experts’ own knowledge. PP  28 MLJ 42 Section 51: Grounds of opinion. 3. must be proven independently. what he noticed and on what basis he has formed his opinion.
DPP  A. although no evidence of it is given.C. Taylor  A. Girdari Lall v. PP  MLJ 201 (High Court.67 4. PP  MLJ 87 14. Malaya) Character evidence is admissible if it relates to a fact in issue or the credibility of a witness.C. Choo Chuan Wang  2 CLJ 1242 Judicial Notice and Formal Admissions See sections 56. PP  MLJ 149 (Federal Court) Section 54 does not make inadmissible any character evidence which is otherwise admissible under some other sections of the Act. PP v. General Rule: All facts in issue and relevant facts must be proved. DPP  AC 304 12. Jones v. PP v. Murdoch v. Certain matters are so notorious or clearly established that evidence of their existence is deemed unnecessary. 574 11. PP (1954) MLJ 149 13. Selvey v. Loke Soo Har v. FMS) Islamic Law is not foreign but local law and therefore. based upon convenience and . Wong Foh Hin v.C. Lim Baba v. Yong Pak Yong v. Malaya) Section 56: Facts judicially noticeable need not be proved. 635 9. Laton  6 FMSLR 128 (SC. It is 3. VeeranKutty  3 MLJ 498 15. R v. DPP  A. Ramah v. 309 10. PP  1 MLJ 28 (High Court. Exceptions: Sections 56 and 57. Winfield  4 All ER 164 8. the courts must take judicial notice. Samivelu v. The court finds that the fact exists. Malaya) A court is only bound to take judicial notice of any regulations when the relevant Gazette notification is either quoted in the charge or adduced in evidence. PP  MLJ 176 (High Court. See also: 6. Cases: 1. 2. Butterwasser  1 KB 4 7. Maxwell v. 5. 57 and 58. R v.
Judicial Notice and the Judge’s Personal Knowledge: Current Law Journal 4. N. Pembangunan Maha Murni v. Judicial Notice VisA-Vis Personal Knowledge: Malaysian Experience. MODERN FORENSIC The component of forensic science is TECHNOLOGY AND THE LAW incorporated in the course of Evidence OF EVIDENCE both in the first and second semester courses . Re Gun Soon Thim  2 MLJ 351 11. See also: 7.68 expediency. Lin Lian Chen  1 MLJ 316. Section 58: Facts admitted need not be proved. Malaysia) The payment of a 2% commission to a broker has not developed into a recognised custom or usage so as to entitle it to be judicially noticed. Cosdel (S) Pte Ltd & Anor. PP  1 MLJ 287  1 MLJ 287 (High Court.  3 MLJ 199 (COA. Plaza Singapura (Pte) Ltd v. Singapore) When a court may take judicial notice of a trade custom or usage. Madhavan Nair v. Jururus Ladang  2 MLJ 30 (SC. the court may take judicial notice of what is notorious and what everybody knows. Re KO (an infant)  1 MLJ 494 9. Mohd Akram. Balakrishnan v Swantine  1 CLJ 503 10. It expedites hearing of many cases and produces uniformity of decision on matters of fact. Lee Chow Meng v. PP. v. Recommended Readings: Mohd Akram 2002. Govt. 288. 1986. of Malaysia  2 MLJ 286 8. Current Law Journal. 5. 2. must take judicial notice. In passing a sentence. 6. Section 57: Facts of which court 4. liii. Malaya) The court may take judicial notice that there has been an increase in the commission of offences in Kuala Lumpur involving firearms.
Investigation of arson h. Blood samples. Consent to take intimate samples c. At the very beginning of the course when dealing types of evidence elements of forensic science are touched upon – especially in the area of ‘real evidence’ eg. Availability of database of fingerprint samples. . Legally and illegally obtained forensic evidence a. 3. by DNA profiling. subject to Turnbull warning. This will be the calling of the experts. section 10 – evidence of conspiracy – are dealt in semester 1. effect of fact in issue. Fingerprint a. Fingerprint b. opinion thereto. Alibi. Resemblence. In Evidence II. Identification f. arson –identification of the cause. DNA profiling DNA profiling technique Restriction Fragment Length Polymorphison (RFLP) Polymerase Chain Reaction (PCR) Analysis In the first semester – when dealing with sections 9. Refusal of consent/ without consent c. London: Sweet & Maxwell 1990. Standard for match g.9. fixing time and place of occurrence of the subject matter. how to prove handwriting. Chapter 13 p. DNA profiling e. Police procedures in taking samples. provocation. 4. The law of expert evidence – Ian Freckelton. Expert evidence e. particularly when discussing documentary computer generated documents. border dispute on sea or land. Consent to take nonintimate samples b. Breach of safeguard b. Bodily samples d. 5.69 1. fingerprint and palm identification – the tests involved in identification of drugs. crime science visits. When discussing the law relating to defences under the Evidence Act –eg. Visual images of suspects – fotofit. Forensic Evidence a class of Real Evidence a. 45-51 of the Evidence Act. London: Sweet & Maxwell 2000 Chapter 14 – Expert Evidence Law and Practice by Tristam Hodgkinson. and many related matters – under sections 7 – cause. REFERENCES: Phipson on Evidence – 15th Edition. Destruction of samples d. blood alcohol levels. tape and video recording evidence – where the provence principle is important – essentials of forensic evidence is taught in the context. grouping of blood stains. in Evidence 1. Generally forensic law – involves obtaining opinion of expert and nonexperts – under sections 7. Ballistic test g. c. 436. self defence drunkenness – and quantum of evidence required. motor vehicle accident. Footprint f. of trial. 11 and 45-51 – identity of things. Hugh Selby. persons places etc. Development of forensic technology Forensic science and techniques 2.
Random occurrence ratio j. Expert evidence PP v Hanif Basree Abdul Rahman b. Matches g.70 LBC Information Services 1999. h. Bodily Samples a. Collection of samples  MLJ 160 e. Dental Impression c. Likelihood of stains being left at the crime scene f. Blood tests. Order for taking of samples f. Intimate samples c. The future of the admissibility of DNA profiling evidence 6. Weight of evidence l. Blood and body tissues b. Samples taken at police station . Blood and other scientific test of paternity 7. Production of evidence d. Hair d. Inferences to be drawn for refusal to consent b. Prosecution fallacy i. Blood samples a. Identification of DNA PP v Mohd Abbas Bin Danus Baksan d. Guideline to deal 2004 3 CLJ 34 with DNA evidence (The Noritta Case) c. Statistical evidence k. Development of Forensic DNA profiling CASE LAW: Application of DNA profiling PP v Ahmad Najib Aris 2004 CLJ 21 to the law (The Canny Ong’s Case) Limitation of DNA profiling.expert evidence e. Intimate samples e. The challenge of presentation of DNA evidence. a.
1999. 1993. Singapore: Butterworths. heroin exhibit Fingernails – chipping exhibit Essential Readings Basic Text Books: 1. Stephen J. 6.K. The Law of Evidence. For Further Readings: 2. Cross on Evidence. Kuala Lumpur: Malaya Law Journal. The Law of Evidence. Evidence. The Law of Evidence in Malaysia and Singapore. 8. 2. 1988. 2000. London : Butterworths. Evidence Advocacy and the Legal Process. 10. A Digest of the Law of Evidence. J. Cross and Tapper.D. Pinsler J. 1993. 7. Evidence. . A Practical Approach to Evidence in Malaysia and Singapore. 1996. Kuala Lumpur: Pelanduk Publication. 1994. Evidence. Ltd. Rafiah Salim. Kuala Lumpur: Central Law Book Corporation Sdn. Singapore: Butterworths. New York: MacMillan & Co. 6th edition. Drugs 2 methods of identifying cannabis. 1987. 12th edition. 3. 2004. Evidence. India: Wadhwa & Co. Ratanlal & Dhirajal. 4. 1994. 1992. 2nd edition. Mohd Akram. Augustine Paul. Bhd.71 g. R. Evidence: Practice & Procedure. 2003. Kuala Lumpur: Hamid Ibrahim. 4. Materials and Commentary. Kuala Lumpur: Janab. Heydon. Evidence in Malaysia and Singapore: Cases. Phipson. London: Sweet and Maxwell.F. 2000. Sarkar. The Law of Evidence. Hamid Sultan. Destruction samples of 8. 3. 15th edition. India: Wadhwa and Co. Nathan. 5. The Law of Confessions. Recommended Books 1. 9. Chin Tet Yung. Kuala Lumpur: Butterworths. 1904. 5th edition. ganja. S.
2. 3. Hj. Mohd Shahrizad Mohd Diah . Akram Shair Mohamad Mr. Mohd. 2006/2007 Affected Prepared by: Prof. Criminal Procedure Code.72 Australia: Butterworths. Dr. Proposed Start Date (Semester) Semester 1. 2006/2007 Batch of Students to be Semester 1. Statutes: 1. The Evidence Act 1950 (revised (2003) The Oaths and Affirmation Act 1949.
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