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Documentary evidence - Evidence II

Law (Universiti Teknologi MARA)

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Syarisa Rozlan

DOCUMENTARY EVIDENCE

Definition of documents: refer section 3

A document only becomes documentary evidence when a party seeks to prove its content.

GENERAL RULE TO PROVE THE CONTENTS OF DOCUMENTS

 Section 59 : All facts except the contents of document may be prove by oral evidence
 section 61 : contents of document may be prove by primary or secondary evidence.
GR: Document must be proved by primary evidence except in certain situation. Thus, section
61 must be read subject to section 64.
 Section 64 : expressed cardinal rule (Best Evidence Rule) that all documents must be prove
by primary evidence. In other words, the original document is produced for inspection of
the court.
 Situation as to when secondary evidence can be given are to be founded in section 65.
- Section 65 : operates as exceptions and admissible under certain limited circumstances
as enumerated under 7 situations therein.

PRIMARY EVIDENCE
 Section 62 : refer
Explanation 1 to section 62
 Divided in to 2 parts:
i. Documents which are produced in more than one copy and parties executed
all copies.
- Ex: 4 parties to a contract signed 4 identical copies of contract and all of them
retained one copy each. All of the copies are primary document.
Forbes v Samuel
The partnership deed executed by all of the partners in which each of them is in possession is
primary evidence.
ii. Documents which are executed in counterparts where the document may be
prepared in duplicate but not executed by all parties.
- The party executing the doc and delivered it to the other party, such doc which
in the possession of the other party becomes primary evidence against the party
executing the doc.
- Ex: A and B enters SPA. A signed the contract in duplicate and delivered one
copy to B. The copy which B retains now is primary against A. If A retains
contract not executed by B, then the contract which in A’s possession is
secondary against B.

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Syarisa Rozlan

DOCUMENTARY EVIDENCE
Explanation 2 to section 62
 refer illustration
 Ex: Any copy of the issue in newspaper is primary evidence of the reproduction but not
primary to the original manuscript prepared by auditor.
Explanation 3 to section 62
 Must be read with section 90A, 90B and 90C
PP v Datuk Haji Sahar Arpan
Computer printout was admissible as primary evidence because the online system of the
relevant institutions ensured the data’s authenticity.

SECONDARY EVIDENCE
 When secondary evidence can be tendered? – refer back general rule above.
 Section 63: refer
Para (a) to section 63
 certified copies pursuant to section 76
Para (b) to section 63
 Have 2 limbs under this para:
i. copies produced by mechanical processes (ex: photocopy machine, facsimilie,
scanner etc)
- Thus, a photograph of original docs falls within this para (refer illustration a)
ii. Copies compared with such copies
- copies related to number (i) above (refer illustration b). Generally, a copy of a
copy is inadmissible except where it can be proved that:
a) First copy was made by a mechanical processes
b) There is evidence to prove that the first copy is made from the original
c) Second copy has been compared with the first copy
Para (c) to section 63
 refer illustration c.
- basically relating to recorded conversation (mcm buat transcribing)
- The original taper recorder is a primary evidence, and a transcript of recorded
conversation will become a secondary evidence. But if the copy of transcript is
photocopied, such photocopied version is not secondary.
Para (d) to section 63
 This para read together with explanation 1 to section 62 (yg number ii)
Para (e) to section 63
 the word ‘document’ is the original document itself. Thus, if a person has read a copy of a
written statement, he cannot give an oral account of the content of that document.

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DOCUMENTARY EVIDENCE

EXCEPTIONS TO THE BEST EVIDENCE RULE (SECTION 65)

Para (a) to section 65(1)
 To admit SE under this provision, the party must prove that he has served a notice to the
person who has possession of the original documents as provided in section 66.
Chua Neoh Kow v Malayan Banking Bhd
If there is requirement to serve a notice, then it must be established in evidence that such notice
was in fact given before secondary evidence can be given.
 refer also subsection (2)(a)

Para (b) to section 65(1)

 Read together with section 65(2)(b) and section 22.

Para (c) to section 65(1)

 The two alternative requirements must be read disjunctively & the element of ‘default’ or
‘neglect’ in the second limb is not a requirement under the first limb.
Kwang Boon Keong Keong Peter v PP
When original documents has been lost, there is no requirements to show that there was no
default or neglect with regard to the loss.
 refer also subsection (2)(a)

Para (d) to section 65(1)

 This clause refers to things, which cannot be easily be moved (ex: mcm tulisan kat dinding,
batu nisan etc)
 refer subsec (2)(a)

Para (e) to section 65(1)

Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia
Where the document is a public document, the best evidence rule is not applicable and
secondary evidence may be adduced. This para must be read together with para (f).

Para (f) to section 65(1)

 Must read together with sections 76, 77, 78 and 86 of Evidence Act.
 For both para (e) and (f), must read together with subsec (2)(c)

Para (g) to section 65(1)

 read together with subsec 2(d)

Public Document
 Refer section 74
 Section 75 : other docs not mentioned in section 74 is a private docs.
 Section 76: right to inspect public docs.

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DOCUMENTARY EVIDENCE

Toh Kang Koo v Penguat kuasa Perubatan Hospital Sulatanah Aminah

A medical report by a government doctor is a public docs which can be certified true copy by
the party having interest in it.

Anthony Gomez v Ketua Polis Daerah Kuantan

If an accused is implicated in FIR, he must be given the right to inspect it.

ADMISSIBILITY OF DOCUMENTARY EVIDENCE IN CIVIL PROCEEDING

The presence of maker of the document to prove its contents
 Section 73A(1)(b) : Any statement made by a person in document shall, on production of
the original document, be admissible if the maker of the statement is called as a witness in
the proceedings.
 Proviso : The condition need not be satisfied if
i. The maker is dead
ii. He is unfit to attend as witness (refer section 118)
iii. He is beyond seas and it is not reasonably practicable to secure his attendance
(maker duduk luar negara)
iv. All reasonable efforts to find him have failed
Allied Bank Bhd v Yau Jiak Hua
If the maker live outside Malaysia (like in this case Australia), the proviso to section 73A
applies that the maker of the statement shall be called as a witness need not be satisfied if he
is, inter alia, beyond the seas and it is not reasonably practicable to secure his attendance.

COMPUTER GENERATED DOCUMENT

Section 90A
 The only condition that needs to be satisfied b4 applying this section is that the document
is admissible if it was produced in the course of its ordinary use.
 2 ways to prove ‘in the course of its ordinary use’:
i. By tendering a cert under section 90A(2) read with section 90A(3). Once cert is
tendered, the presumption in section 90A(4) is activated (ie the computer is in good
working order)
ii. By adducing oral evidence to establish the requirement of section 90A(1)
Hanafi Mat Hassan v PP
A cert need only be tendered if a person is not called to testify that the doc was produced by
computer.
Ahmad Najib Aris v PP
It is sufficient for a person responsible for the management of the operation of the computer to
state that the document was produced by a computer in the course of its ordinary use.

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DOCUMENTARY EVIDENCE

PAROL EVIDENCE RULE

PER prohibits a person from adducing oral evidence where the term of the contract have been
put into writing.
 Section 91: ‘…..no evidence shall be given in proof of the terms of the contract..except
the document itself’
Tractor Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd
Where a contract has been reduced into writing, it is the writing must be looked at for the whole
terms agreed by parties.
 Section 92: No extrinsic evidence to contradict, vary, add or subtract the written document
shall be admitted.
Exceptions under the proviso to section 92:
(a) Oral evidence is admissible to invalidate the docs
(b) Oral evidence to prove separate agreement
- to prove collateral contract for matters which the docs is silent
- the oral evidence must not be inconsistent with the documents
Tan Swee Hoe v Ali Hussein
Collateral contract do not offend the extrinsic evidence rule bc the evidence was not
incorporated into the main contract, instead it exist side by side with the main contract.
Tan Chong motor v Alan Mcknight
The primary purpose of proving the pre-contractual statement made by the salesman was to
prove the existence of a warranty, a separate contractual promise, which is allowed under the
proviso.

ELECTRONIC EVIDENCE
 Documentary evidence can be gathered from various sources (ex: websites, text, etc)
 There are five separate foundations in admitting electronics evidence in court. The
foundation which are tailored to specific provisions in Malaysia are as follows:

i. Relevance : It is a basic law that evidence tendered must be relevant to the facts in issue
(ie: it must have the tendency to prove or disprove facts in issue or relevant facts – refer
section 3 for prove or disprove)
ii. Authenticity : it is a process in which the asserter must establish that the digital data
collected by any electronic devices is what it is represents.
iii. Hearsay : Since digital data may contain hearsay statement, the attendance of a maker
is crucial or must prove that it falls under any of the exceptions of hearsay. S90A is
used to overcome any objection on hearsay statement.

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DOCUMENTARY EVIDENCE
iv. Best Evidence : There are no ‘original’ of digital evidence. However S90A relaxes the
Best Evidence Rule and provides explanation 3 to section 62.

 Among the 5 separate foundations, the main challenge in presenting electronic evidence is
authentications. Thus, to determine authentication of electronic evidence are discussed
below.

1. Email
 It is a method of exchanging messages between people via network using electronic
devices.
 Issue on authentication : whether the email is sent and received by the party claiming to
have sent or received it.
 There are several ways on how authentication can be made:
i. Personal knowledge – Witness with personel knowledge may testify as to the
authenticity (ex: author of the email and recipient)
ii. Expert evidence – Testimony from forensic witness that an email was issued from a
particular device at a particular time. This testimony is relevant under section 45.

2. Cloud storage
 Refers to the practice of using a network of remote servers hosted on the internet to store,
manage and process data rather than a local server or a personel computer (ex: Dropbox,
Google drive, Apple Icloud)
PP v Muhammad Hakimin Bin Azman
The court admitted evidence btained from Dropbox. The accused was charged for possession
of seen images linked to terrorist group (IS). The photos was found in the Dropbox application
stored in his laptop.

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