MUHAMMAD HAFIZ BIN HASHIM

2011283422

LAW OF EVIDENCE 1

CHAPTER 1 & 2: INTRODUCTION AND SECTION 5 (RELEVANCY) 1. Evidence and the Law of Evidence a. Evidence i. Ordinary meaning any information obtained from witnesses, documents, objects which prove a certain facts ii. Section 3 EA oral and documentary evidence iii. Real and physical evidence also cannot be excluded b. Law of Evidence i. How to convince the court to establish certain facts to also establish the existence of rights and liabilities which the parties allege ii. What needs to be brought by the plaintiff and defendant to prove or disprove the FII iii. How the evidence is obtained, adduced, used and evaluated iv. Every evidence brought to the court must be in compliance with the EA

2. Importance a. To prove the elements of substantive law b. To ensure the accuracy of finding c. To observe justice and to avoid convicting an innocent man d. To ensure finality in decision making e. To filter what can and what cannot be brought before the court to ease the process of justice f. To ensure that only reliable and trustworthy evidence are accepted by the court

3. Four cannons of the law of evidence a. Evidence brought to the court must be relevant to FII and relevant facts b. Hearsay evidence is not admissible unless it falls under the exception as provided in EA c. Best Evidence Rule d. Evidence is only complete after it has undergone Exam in Chief, Cross Exam and Re Exam

4. Forms of evidence a. Oral

FOR DOMESTIC USE ONLY

Page 1

MUHAMMAD HAFIZ BIN HASHIM b. Documentary c. Real/Physical

2011283422

LAW OF EVIDENCE 1

5. Sources a. Evidence Act 1950 b. Privy Councils decision binding as long as the court touches on the statute which is word in word in pari materia with local statute

a. Khalid Panjang v PP (No 2)(1964) i. Six accused was charged of robbery and murder the victim, a manager and his watchmen was carrying money to pay labourers in a Citroen car found shot and charred to death in the burning vehicle with all the money gone ii. On e of the conspirators reported to the police iii. The trial court rejected a Privy Councils case iv. On appeal the court held that the Privy Council was not discussing the law of England - they were discussing a section in an Indian statute which is word for word the same as the corresponding section of a local statute binding on this Court and every High Court in Malaysia and no Judge is at liberty, whatever his private opinion may be, to disregard it c. Common Law and Indian cases not binding but persuasive a. Saminathan v PP (1955) MLJ 21 i. If the provisions of EA are clear, the court will not refer to CL ii. The court will only consider English cases if there is a lacunae in the statute

b. PP v Yuvaraj (1969) 2 MLJ 89 i. The court refers to the Res Gestae Principle in CL

FOR DOMESTIC USE ONLY

Page 2

MUHAMMAD HAFIZ BIN HASHIM 6. Who will be subjected to the EA

2011283422

LAW OF EVIDENCE 1

a. Section 3 EA defines court exclusive of arbitration and all administrative proceedings, Syariah Court, affidavits (a sworn statement of ones beliefs and carries no weigh t) and also inquest or inquiry proceedings b. *preliminary inquiry falls under EA as it is part of a full trial in the court* a. Re Low Kwong Meng

7. Relevancy, admissibility, weight of evidence a. Relevancy i. Evidence, connected to one another, having the tendency to make any facts more or less probable ii. Determinable through logic and human experience iii. Precondition to admissibility a. R v Wilson (1991) i. Before the court shall determine the admissibility, the evidence must be of relevance to the FII or relevant facts

iv. Question of law and must adhere with EA 1. Legal probative value v prejudicial effect 2. Logical anything which may a\make the facts more or less probable

b. Admissibility i. Evidence accepted by the court where the court finds it useful to prove or disprove a fact ii. Also a question of law iii. Mainly based on the rule of law

c. Weight of evidence i. Strength and value of the evidence ii. A question of fact iii. Probative value v prejudicial effect in relations to the FII iv. In short, the court will look at the qualitative value of the said evidence

FOR DOMESTIC USE ONLY

Page 3

MUHAMMAD HAFIZ BIN HASHIM 8. Facts in Issue and Relevant Facts a. Section 5 EA

2011283422

LAW OF EVIDENCE 1

i. FII is usually the elements of the crime/civil wrong ii. Relevant facts are facts indirectly related to the FII usually in the form of circumstantial evidence

9. Facts proved, disproved and not proved a. Proved i. The court believes that such facts exist b. Disproved i. The court believes that such facts do not exist c. Not Proved i. The court fails to believe that such facts exist or not

10. Legal and Evidential Burden a. Civil on the party alleging a fact b. Criminal legal burden always on the prosecutor, evidential burden depends on the stage of the prosecution stage (prima facie or defence call)

11. Classification of evidence a. Oral evidence (section 118, 60) v documentary evidence(section 61-63) b. Direct evidence v circumstantial evidence (indirect but relevant) c. Direct evidence (section 60) v hearsay (witness gives statement of a 3 rd party and the 3rd party cannot verify it)

12. Hearsay Evidence a. witness gives statement of a 3rd party and the 3rd party cannot verify it b. Documentary evidence which cannot be verified by the person making it

13. Best Evidence Rule a. No evidence is admissible unless it is the best nature that the case will allow b. Court will most probably reject circumstantial evidence if there is direct evidence a. Chow Siew Woh v PP (1967)

FOR DOMESTIC USE ONLY

Page 4

MUHAMMAD HAFIZ BIN HASHIM

2011283422

LAW OF EVIDENCE 1

i. The deceased made a dying declaration when she was stabbed the prosecutor did not produce ii. The prosecutor only produce witnesses who gave statements and who did not witness the actual crime being committed (circumstantial) iii. The accused was acquitted

14. Section 5 of EA a. Applies to a judicial proceeding b. The evidence must be either relevant to the FII or relevant facts c. This provision is a concept section and no evidence shall be tendered under this provision d. How and who will decide whether the evidence is relevant or not i. Section 135 and 136 Courts discretion and satisfaction ii. Section 165 judge may question and the question will not be subject to any examination in order to determine relevancy a. Anwar Ibrahim (No 3) i. Anwar Ibrahim was charged with corruption using his position to influence the IGP to stop investigating his case ii. Subpoena Tun Mahathir and Rafidah Aziz to give statements on the grounds to prove political conspiracy iii. The late Justice Augustine Paul rejected not relevant to the FII as the charge was a corruption charge against the accused, political conspiracy by another towards him was not relevant

e. Some certain matters are deemed to be relevant and need not be proven i. Section 56 judicial notice ii. Section 57 what amounts to judicial notice iii. Customary something which had been a widely accepted practice iv. Section 58 where both parties accept or admitted the facts

FOR DOMESTIC USE ONLY

Page 5

MUHAMMAD HAFIZ BIN HASHIM

2011283422 a. Pembangunan Maha Murni (1986)

LAW OF EVIDENCE 1

i. Claim judicial notice it is customary that earnest money must come from the purchase fee and that the usual fee is 4% ii. Court held that the former amounts to a judicial notice and the latter namely the amount does not amount to a judicial notice as it depends on the agreement between the parties

f.

Importance of Section 5 i. Facts must be relevant before it can be admissible a. R v Turner i. The general rule in the law of evidence is that the evidence must be relevant before it can be admissible

g. Legality in obtaining the evidence probative value v prejudicial effect a. PP v Saminathan i. Accused was charged under the keeping a common betting house, an offence under the Betting Enactment ii. The police had given marked paper notes for two persons to use inside the house where the betting took place later raided and arrested the accused iii. Held the court will not concern itself in the manner in which the evidence is obtained the main concern of the court is its relevancy

b. R v Sang i. The appellant was charged with conspiring with others to utter forged United States banknotes ii. Issue - whether the involvement of the appellant in the offence charged arose out of the activities of an agent provocateur - an alleged police informer - appellant had been induced to commit the offence by an informer acting on the instructions of the police FOR DOMESTIC USE ONLY Page 6

MUHAMMAD HAFIZ BIN HASHIM

2011283422

LAW OF EVIDENCE 1

iii. Held HOL the court has no power to reject illegally obtained evidence however must ascertain the probative value v the prejudicial effect a judge is not concerned with how the evidence was obtained but is primarily concerned with how the prosecution used the evidence

c. Haji Kassim i. An imam in Segamat hacked his daughter once to her death ii. Went to the psychiatrist to establish whether he was of unsound mind at the time of the murder iii. Made a self-incriminating statement or a confession that he was the one who did it to the psychiatrist iv. Held not admissible - a person in authority in the institution where he conducts routine examination of a patient - any inducement, threat or promise proceeding from him, having reference to the charge against the patient, must render any self-incriminatory statement by the patient inadmissible

d. Gooi Ching Ang i. The appellant was convicted of two charges under the Internal Security Act 1960 for having in his possession or control firearms and ammunition without lawful authority ii. In the first instance court - The prosecution relied solely on witness statements testify the appellant had made self-incriminating statement contended non voluntary as the statement was made under police custody iii. Held conviction was set aside CHONG SIEW FAI CJ Fairness requires fair trial which, in turn, needs fair procedure. Fair process requires that the legitimate interests of both the prosecution and the defence are FOR DOMESTIC USE ONLY Page 7

MUHAMMAD HAFIZ BIN HASHIM

2011283422

LAW OF EVIDENCE 1

adequately provided for. While the police ought to be given a reasonable opportunity to question suspects and accused persons, in its investigation, the accused must also be reasonably protected from the danger of extraction of unreliable statements and of statements (even if reliable) by some improper means. Evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by conduct of which the police ought not to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission iv. The court took into account the probative value v the prejudicial effect

h. Evidence if not disputed i. If clearly irrelevant even though not disputed it will not render them inadmissible if the court accepts it can be the ground for an appeal a. MNI Sdn Bhd v Malaysia Rubber Development b. Goh Beng Seng v Dol c. Norhana Sulaiman

FOR DOMESTIC USE ONLY

Page 8