TOPIC 2

LAW OF EVIDENCE I
LAW 4110

MEANING AND SCOPE OF EVIDENCE

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 Kinds of Law
2 kinds of Laws

⚫ Substantive
- Determines rights, duties and liabilities
of persons.
(i) Criminal (ii) Civil

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⚫ Adjective Law
- Defines pleading, procedure and proof in
court by which substantive law is applied
in practice.
(i) Procedural Law
(ii) Evidence

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 Law of Evidence
⚫ Definitions
⚫ Objects
⚫ Principles
⚫ Major Functions
⚫ Structure
⚫ Arrangement

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 Definitions
⚫ Blackstone:
“that which demonstrates, makes clear, or
ascertains the truth of the very fact or point in
issue”.
⚫ Bentham: “any matter or facts, the effect,
tendency or design of which produce in the mind
a persuasion either affirmative or disaffirmative
of the existence of some other fact”

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⚫ Stephen:
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 which they allege to exist’

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⚫Taylor:
“ All the legal means, exclusive of mere
argument, which tend to prove or disprove
any matter of fact, the truth of which is
submitted to judicial investigation.”

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⚫Phipson:
“The two main senses of the words are: first, the
means apart from argument and inference,
whereby the Court is informed as to the issues
of fact as ascertained by the pleadings;
secondly, the subject matter of such
means…Evidence in the first sense, means the
testimony, whether oral, documentary or real,
which may be legally received in order to prove
or disprove some fact in dispute”
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 Objects
⚫ To prevent laxity in the admissibility of
evidence
⚫ To aid the court in drawing inferences
from circumstances
⚫ To assess the value of direct testimony

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 Principles
⚫ Some of the important principles are such;
• Evidence must be confined to matters in
issue. Refer to s 5 Evidence Act
• Hearsay evidence must not be admitted
except in certain situations
• Best evidence must be tendered in all
cases
• No evidence is complete unless subjected
to cross examination
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 Major Functions
⚫ It determines how ⚫ facts which need not
facts may be proved; be proved;
• Testimony ⚫ Part II Evidence Act
• Hearsay (i) S 56
• Exhibits (ii) S 57
• Etc (iii) S 58

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 Structure
What sort of evidence which
must be given

What facts maybe proved By who and in what manner

or not proved the evidence must be proved

⚫ According to Stephen, Law of Evidence is the

part of law of procedure which with a view to
ascertain individual rights and liabilities.

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 Arrangement
Part I-Relevancy
Facts which may be
proved

Fact in issue

Relevant Facts
-ss 6-16,ss 17-31,ss 32-33,ss 34-48,ss
39,ss 40-44,ss 45-51,ss 52-55
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 Part II- On Proof
Types of evidence
to be given

Facts which need

Other facts if in issue
not be proved
or relevant may be
•Judicially noticed ss 56,57
proved
•Facts admitted ss 58

Oral evidence Documentary evidence

Ss 59,60 Ss 61-66, ss 67-73,
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ss74-78 etc
Part III-Production and Effect of
Evidence
How?

Burden of Proof
-ss 101-114

Estoppel
-ss 115-117

Witnesses & Examination of

Witnesses
-ss 118-166

Improper admission and rejection of evidence

-s 167

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 Kinds of Evidence
⚫ Direct and Circumstantial
⚫ Direct and Hearsay
⚫ Documentary Hearsay
⚫ Oral and Documentary
⚫ Real and Personal

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 Direct and Circumstantial
⚫ (a) Direct Evidence
⚫ Direct (Positive) if proved by;
⚫ * Actual production
⚫ * Testimony
⚫ * Admissible declaration of someone who has
perceived it
⚫ Direct evidence is used in two senses;
⚫ * Testimony
⚫ * Statement by a witness as described in s 60 of
the Evidence Act

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(b) Circumstantial (Indirect or Presumptive)
According to Munir,
“circumstantial evidence does not prove the point
the question but establishes it only by reference”
It relates to the existence or non-existence of a
relevant fact only. Every relevant fact is a piece
of circumstantial evidence which is even
considered better than direct evidence.

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 Cases
⚫ Dato’ Mokhtar bin Hashim v. PP [1983] 2
MLJ 232
⚫ Eng Sin v. PP [1974] 2 MLJ 306
⚫ Sunny Ang v. PP [1966] 2 MLJ 195

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 Direct and Hearsay
⚫ (a) Direct
⚫ It may also refer to “original evidence”,
proof of facts by first hand means
⚫ It consists of facts perceived by a witness
with his own sense-refer to s 60 of the
Evidence Act

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⚫ (b)Hearsay
⚫ The oral or written statements of one who
is not called as a witness is a hearsay.
⚫ In Subramaniam v. PP [1956] 22 MLJ 220;
⚫ * If the object of evidence is to establish
the TRUTH of what is contained in the
statement = it is hearsay and NOT
admissible.
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⚫ * If the object of evidence is to establish
the FACT that the statement was made =
it is NOT hearsay and admissible.

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 Reasons
⚫ In REJECTING Hearsay:
⚫ (i) it is second hand evidence.
⚫ (ii) the truth is diluted and diminished with
each repetition
⚫ (iii) it tends to open the door for fraud
⚫ (iv) it is not given on oath

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⚫ In ACCEPTING Hearsay:
⚫ (i) Necessity or expediency as in s 32 and
s 33 of Evidence Act
⚫ (ii) The circumstances under which a
statement was made, furnish a guarantee
to its truth

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⚫ EXCEPTION to exclusion of Hearsay
⚫ Hearsay evidence is deemed to be original
as in the following situation;
⚫ (i) Statement forming part of res gestae
⚫ (ii) Statement of victim in rape or indecent
assault, can be proved by the victim or
anyone by conduct.
⚫ (iii) Statement showing mental or bodily
feeling.
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⚫ Statement made in presence of party or
agent
⚫ Statement to corroborate that a witness
had affirmed something on former
ocassion.

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 Documentary Hearsay
⚫ (a) Statement Hearsay
⚫ Documentary evidence of the serial
numbers impressed in car engines
compiled by workmen not called as
witnesses held inadmissible as hearsay in
Myers v DPP [1956] AC 1001

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⚫ (b) Absence of statements in evidence
⚫ (c ) S 32 (b), 73 A

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 Oral and Documentary
⚫ (a) Oral
⚫ Refer to S 3 Evidence Act
⚫ It includes;
⚫ * Testimony
⚫ * Hearsay
⚫ * Opinion

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⚫ (b) Documentary
⚫ Refer to s 3 Evidence Act
⚫ It can be classified under two heads;
⚫ (i) Primary and Secondary
⚫ Primary evidence is defined in s 62
Evidence Act, it is the evidence which is
required to be given first, best evidence of
a document
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⚫ Secondary evidence is defined in s 63
Evidence Act. It comprises copies or oral
evidence of contents of documents and
admissible only in certain cases as
specified in s 65 Evidence Act
⚫ (ii) Public and Private
⚫ Public documents are defined in s 74
meanwhile private documents are defined
in s 75 Evidence Act.
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 Real and Personal
⚫ (a) Real
⚫ It also known as demonstrative or
objective evidence where it comprises of
material objects or things (other than
documents) produced for inspection by
the court
⚫ Refer to s 60(3) Evidence Act

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⚫ (b) Personal
⚫ It comprises testimony of witnesses,
which may be either in the way of
discourse or by signs.

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 Evidence Act & Common Law
⚫ Bank of England v. Vagliano
(1891) AC 107 H/L
⚫ Issue: In construing a Code
⚫ Principles:
(i) Examine the language
(ii) The natural meaning uninfluenced by any
considerations derived from the previous state of
law
(iii) The law should be ascertained by interpreting
the language used
(iv) Disregard what the law was before
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⚫ Mohamed Syedol Ariffin v Yeo Ooi Gark
(1916) 2 AC 575 P/C
⚫ Issue: In construing a Code
⚫ Principles:
(i) Rule and principles of the colony must be
accepted as it is found in its own Evidence
Ordinance
(ii) English principle not permissible if true and
actual meaning of statute be varied or denied
effect
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⚫ Jayasena v R
(1970) AC 618 P/C Sri Lanka
⚫ Issue: Ss 3 & 107 Sri Lanka Evidence Act 1950
⚫ Principles:
(i) Common law is malleable to the extent that the Code is
not
(ii) Code embodied the old criminal law and cannot be
construed in the light of a decision that have changed
the common law
(iii) The burden that is shifted is the legal burden and to
discharge that presumption the quantum of proof is on
the balance of probabilities (higher than BRD)
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⚫ Cheng Swee Tiang v PP
(1964) MLJ 291 CCA
⚫ Issue: Illegally obtained evidence
⚫ Principles:
(i) No provision in the Evidence Act to exclude
(ii) Court did have discretion to exclude (majority)
(iii) Evidence Act did not provide for discretions,
Court has no power (Ambroze J dissenting)

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⚫ Yuvaraj v PP
(1969) 2 MLJ 89 P/C
⚫ Issue: Rebutting presumption
⚫ Principles:
(i) There is a distinction between BRD and BOP though not
referred in s 3 EA
(ii) No enactment is exhaustive
(iii) Evidence Act is part of the general corpus of the law-
where the Act is silent or fails to be explicit, can refer to
Common law
(iv) No intention of legislature to do away with well-known
concepts of the Common law

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⚫ PP v Sanassi
(1970) 2 MLJ 198
⚫ Issue: Unsworn statement from the dock
⚫ Principles:
(i) Statement of the accused from the dock is not
evidence. A witness testifies from the witness
box and subject to X-exam
(ii) Code is exhaustive only what is contained in
the Code itself. Other evidential provisions in
CPC, DDA, Seditious Act etc
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⚫ PP v Glenn Knight Jeyasingam
(1999) 2 SLR 499
⚫ Issue: Reception of Common Law in
Singapore
⚫ Principles:
(i) The Code is a facilitative Act
(ii) Where the Code is silent we can receive
the Common Law
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