LAW OF EVIDENCE 2

LAC4213
SIXTH LECTURE/ONLINE LECTURE:
TUESDAY/
16 JUNE 2020/24 SYAWAL 1441
• NEW SEMESTER 2, 2019/2020
SCHEDULE
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 EVIDENCE 2 EVIDENCE 2
(OUTLINE) (OUTLINE)

FINISH DOCUMENTARY
EVIDENCE PRIVILEGES

FINISH PRESUMPTIONS EXAMINATION

OF
WITNESS

CORROBORATION
EVIDENCE STANDARD
&
BURDEN OF PROOF

ESTOPPEL
 Please video record our
lecture and tutorial…
Share it with your friends
who are unable to serve
the internet
CORROBORATION
EVIDENCE:
THE EXCEPTIONS
 General
principle:
Section 134
Testes
Ponderantur
Non
Numerantur

Exception:
Exception:
Matter
Matter
of Issue
of
practice/
law
prudence

Sworn
Unsworn Entries Evidence Sexual
Seditious evidence Visual Previous
Evidence of book of an offences
cases of a identification statement
Of child account accomplice cases
child
 Per Augustine Paul JC in
Aziz Bin Muhamad Din V PP
[1996] 5 MLJ 473

Corroboration required Corroboration required

as matter of law as matter of practice.
 •QUESTION:
•WHAT IS THE
DIFFERENT
BETWEEN MATTER
OF LAW &
PRACTICE?
 •QUESTION:
•WHAT ARE THE
REQUIREMENTS
FOR
CORROBORATION
EVIDENCE?
 Requirements
for
corroboration

The evidence The evidence The The

must be in question corroboration corroboration
relevant must evidence evidence must
& be credible/ must be implicate the
admissible. strong. independent. accused
 •REMEMBER:
•CORROBORATION
•EVIDENCE
•ONLY ALLOW TO
BE USED TO
•SUPPORT
•STRONG EVIDENCE
NOT
•WEAK EVIDENCE
BEFOREHAND!!!
 •QUESTION:
•WHY WE NEED TO
SUPPORT STRONG
EVIDENCE?
 •ANSWER:
•BECAUSE OF
THE NATURE OF
WITNESS AND
BECAUSE OF THE
NATURE OF THE
CASE WHICH
CREATE DOUBT
 •QUESTION:
•WHAT ARE TYPES
OF
•EVIDENCE
•THAT CAN BE
USED AS
CORROBORATION
EVIDNENCE?
 Corroboration evidence
• It is worth noting that
corroboration was not limited to
direct evidence of independent
witnesses. It was frequently
provided by a combination of
pieces of circumstantial
evidence which together tended
to show that the defendant
committed the crime.
• See R v Hills [1988] 86 Cr.
App. R. 26.
 Unsworn
evidence of
a child
(Keterangan
seorang
kanak –
kanak yang
tidak
bersumpah)
Please refer to Section 118
& 133A
 Matter of law: Unsworn evidence of a child
• Section 118 of the Malaysian
Evidence Act 1950 provides that
“All persons shall be competent
to testify unless the court
considers that they are prevented
from understanding the
questions put to them or from
giving rational answers to those
questions by tender years,
extreme old age, disease, whether
of body or mind, or any other
cause of the same kind”.
 Matter of law: Unsworn evidence of a child
• Section 133A of the Evidence Act 1950
provides for Evidence of child of tender
years (Keterangan seseorang kanak – kanak
yang masih muda) that “Where, in any
proceedings against any person for any
offence, any child of tender years called
as a witness does not in the opinion of the
court understand the nature of an oath,
his evidence may be received, though not
given upon oath, if, in the opinion of the
court, he is possessed of sufficient
intelligence to justify the reception of the
evidence, and understands the duty of
speaking the truth.
 Matter of law: Unsworn evidence of a child
• Provided that, “where evidence admitted
by virtue of this section is given on behalf
of the prosecution, the accused shall not
be liable to be convicted of the offence
unless that evidence is corroborated by
some other material evidence in support
thereof implicating him”.
• Dengan syarat bahawa, jika keterangan
yang diterima menurut seksyen ini diberi
bagi pihak pendakwa, tertuduh itu tidak
boleh disabitkan atas kesalahan itu
melainkan jika keterangan itu disokong
dengan keterangan – keterangan material
lain yang menyokong keterangan tersebut
dan melibatkannya.
 Matter of law: Unsworn evidence of a child
• Sidek Bin Ludan v PP [1995] 3
MLJ 178 Abdul Malik Ishak J
states “The proviso to section
133A of the Act in simple
terms means this: A
conviction cannot stand on
the uncorroborated evidence
by an unsworn child
witness….”. See also Yusaini
Bin Mat Adam v PP
[2000] 1 CLJ 206.
 Matter of law: Unsworn evidence of a child
• Section 133A of EA 1950 makes it
obligatory for a trial court, to have
a preliminary inquiry, to
ascertain the capacity of the child
to understand the questions and
give rational answers. The object is
to determine whether the child is in
position to be sworn. See
Muharam Bin Anson v PP [1981]
1 MLJ 222 and R v Hayes (1977)
64 Cr App R 194.
 Matter of law: Unsworn evidence of a child
• The main reason for the need of
corroboration evidence for
children testimony because
children, are unable to
differentiate between “fantasy”
and “reality”. See Chao Chong &
Ors v PP [1960] MLJ 238; Loo
Chuan Huat v PP [1971] 2 MLJ
167; Tham Kai Yau & Ors v PP
[1977] 1 MLJ 174 & Shanmugam
a/l Munusamy v PP [1999] 1 MLJ
288.
 Sedition
cases
(Kes – kes
hasutan)
Please refer to section
6
 Matter of law: Sedition cases
• Section 6 (1) of the Sedition Act
1948 (Act 15) provides that:
“Notwithstanding anything to
the contrary contained in the
Evidence Act no person shall be
convicted of an offence under
section 4 on the uncorroborated
testimony of one witness”.
• Refer to the case of Lim Guan Eng
v PP [1998] 3 CLJ 769.
Please refer to Section 34
 Matter of law: Entries of book account
• Section 34 provides “Entries in books
of accounts regularly kept in the
course of business are relevant
whenever they refer to a matter into
which the court has to inquire, but
the entries shall not alone be
sufficient evidence to charge any
person with liability”.
• Refer to the case of Sim Siok Eng &
Anor v Poh Hua Transport &
Contractor Sdn Bhd [1980] 2 MLJ 72,
73.
 Sworn
evidence of a
child
(Keterangan
seorang
kanak –
kanak yang
bersumpah)
 Matter of practice: Sworn evidence of a child

• As Lord Goddard C.J. in Reg v

Campbell [1956] 2 QB 432, 438
said: “The sworn evidence of a
child need not as a matter of
law be corroborated, but a
jury should be warned not that
they must find corroboration,
but that there is a risk in
acting on the uncorroborated
evidence of young boys or
girls...”
 Evidence of
an
accomplice
(Keterangan
rakan
sejenayah)
Please refer to Section 114
Illustration b & Section 133
 Matter of practice: Evidence of an accomplice

• Section 133 provides “An

accomplice shall be a competent
witness against an accused
person; and a conviction is not
illegal merely because it proceeds
upon the uncorroborated
testimony of an accomplice”.
• Section 114 Illustration (b): “An
accomplice is unworthy of credit
unless he is corroborated in
material particulars”.
 Matter of practice: Evidence of an accomplice
• In Daud Bin Awang Ngah & Ors v PP
[1958] MLJ 168 it was stated that
“There is no rule of law which
demands that in every case where an
accused person gives evidence which
tends to incriminate a co-accused, the
jury should be warned that it is
dangerous to convict upon such
evidence unless it is corroborated.
Whether or not such a warning should
be given to the jury is not a matter of
law. It is a matter to be decided in the
light of the circumstances of each
individual case”.
 Matter of practice: Evidence of an accomplice

• This accomplice rule only

applies to cases where the
accomplice is a prosecution
witness. It does not apply to
defence witness. (See Daud
Bin Awang Ngah & Ors v PP
[1958] MLJ 168, 169-170 &
Davies v DPP [1954] AC
378).
 Visual
Identification
evidence
(Keterangan
identiti visual)
 Matter of practice: Identification evidence
• In PP v Chan Choon Keon & Ors
[1989] 2 MLJ 427, Faiza Thamby
Chik JC states “In dealing with the
evidence of visual identification, the
court has to remind itself of the
special need for caution before
convicting the accused in reliance on
the correctness of the
identification…”.
• See also the case of R v Turnbull
[1977] QB 224.
 Sexual offences
cases
(Kes – kes
jenayah seksual)
 RAPE

SODOMY MOLESTATION

SEXUAL
OFFENCES

HARASSMENT INDECENCY
 Matter of practice: Sexual offences

• Roberts CJ’s in PP v Emran bin

Nasir [1987] 1 MLJ 166, he stated
at p 171 that: “I warn myself that,
on a charge of rape, it is
dangerous to convict on the
evidence of the complainant
alone, since experience has
shown that female complainants
have told false stories for various
reasons”.
 Matter of practice: Sexual offences

• In England, this view was also found in R v

Henry, R v Manning (1968) 53 Cr App R 160.
There, Salmon LJ said at p 153: “…it is really
dangerous to convict on the evidence of the
woman or girl alone. This is dangerous
because human experience has shown that
in these courts girls and women do
sometimes tell an entirely false story which
is very easy to fabricate, but extremely
difficult to refute. Such stories are
fabricated for all sorts of reasons, which I
need not now enumerate, and sometimes for
no reason at all”.
 • Can refer
further to my
textbook on
“Sexual
Harassment at
the Workplace,
Current Law
Journal
Publication.
 LAST POINT
FOR
CORROBORATING
EVIDENCE
 Previous
statement
(Pernyataan
terdahulu)
Please refer to Section 157
 Other exception: Section 157
• Section 157 of EA 1950 provides “In order to
corroborate the testimony of a witness, any former
statement made by him whether written or verbal,
on oath, or in ordinary conversation, relating to the
same fact at or about the time when the fact took
place, or before any authority legally competent to
investigate the fact, may be proved”.
• Bagi menyokong testimoni seorang saksi, sesuatu
pernyataan dahulu yang dibuat olehnya sama ada secara
bertulis atau lisan, atas sumpah atau dalam percakapan
biasa, berhubungan dengan fakta yang sama pada atau
lebih kurang pada waktu fakta itu telah berlaku, atau
dihadapan mana – mana pihak berkuasa yang kompeten
di sisi undang – undang menyiasat fakta itu, boleh
dibuktikan.
The important issue to be
considers:
Whether the “previous
statement” under section
157 can be consider
corroboration evidence?
 Requirements
for
corroboration

The evidence The evidence The The

must be in question corroboration corroboration
relevant must evidence evidence must
& be credible/ must be implicate the
admissible. strong. independent. accused
 Other exception: Section 157
• Previous statement under section 157 is consider
corroboration evidence See the case R v Koh Soon Poh
[1935] MLJ 120; PP v Teo Eng Chan [1988] 1 MLJ 156;
& Lim Baba v PP [1962] MLJ 201.
• Previous statement under section 157 cannot be
consider as corroboration evidence. See the case
Karthiyayani v Lee Leong Sin [1975] 1 MLJ 119; Aziz
Mohd Din v PP [1996] 5 MLJ 473; & PP v Paneerselvan
[1991] 1 MLJ 106.
• Statement admitted under section 157 of EA 1950 is not
corroboration evidence but it only serve to show
“consistency”. See PP v Dato’ Seri Anwar Bin Ibrahim
(No 3) [1999] 2 MLJ 1; Morgan a/l Perumal v Ketua
Inspektor Hussein Bin Abdul Majid [1996] 3 MLJ 281; &
YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd
[1997] 2 MLJ 621.
 EVIDENCE 2 EVIDENCE 2
(OUTLINE) (OUTLINE)

FINISH DOCUMENTARY
EVIDENCE PRIVILEGES

FINISH PRESUMPTIONS EXAMINATION

OF
WITNESS

FINISH CORROBORATION
EVIDENCE STANDARD
&
BURDEN OF PROOF

ESTOPPEL
•REMINDER
EVIDENCE 2: TAKE HOME MID TERM
TEST (45% MARKS)
DATE/DAY:
14 – 21 JULY 2020 (ONE WEEK)

TOPICS

CHAPTER 1 CHAPTER 3
CHAPTER 2
DOCUMENTARY CORROBORATION
PRESUMPTION
EVIDENCE EVIDENCE

REFERENCE ALLOWED:
EVIDENCE ACT 1950 (ACT 56)
Individual assignment/Case review (15% Marks).
Due Date: 21 July 2020
1. Matthew Lim v Game Warden,
Pahang [1960] MLJ 89. (3% Marks)
2. Wong Swee Chin v Public
Prosecutor [1981] 1 MLJ 212. (3%
Marks)
3. Yeak Chie Chai v Gan Bee Aik
[1984] 1 MLJ 305. (3% Marks)
4. PP v Scott Allen Hazlett & Ors
[2005] 3 CLJ 47. (3% Marks)
5. Public Prosecutor v Mohd Bandar
Shah bin Nordin & Anor [2005] 2
MLJ 349. (3% Marks)
 Please come for
virtual tutorial next
week….
Tutorial questions 3
a) Analyse the requirements needed to establish
presumption of illegitimacy. Illustrate your answer
with reference to relevant provisions of Evidence
Act 1950 [Act 56] and decided cases.
b) In 2003, Ali pursue his study in the city of Aceh,
Northern Sumatera, Indonesia. In 2004, huge
tsunami had destroyed Aceh and many cities close
to the Indian ocean. Since the tsunami tragedy, Ali
family has not able to communicate with Ali. Ali
family has make many attempts to contact Ali and
even went to Aceh to locate for Ali, but unable to
find Ali. In January 2020, Ali family want to seek
declaration from court that Ali is no longer alive.
Advice Ali family about the requirements needed
to successfully draw such declaration from the
court. Illustrate your answer with reference to
relevant provisions of Evidence Act 1950 [Act 56]
and decided cases.
 •THANK YOU,
•SEE EVERYBODY FOR
CLASS AND
TUTORIAL…STAY
SAFE!!