April 2021:

Question 1:
Part (a):
● Letchumanan Chettiar v Secure Plantation Sdn Bhd- The burden of proving the
genuineness of a document is the party which produces it and asserts its validity,
regardless of the fact that it was the plaintiff who alleged that the documents were
forged. (note: regardless of whichever party alleges forgery).
● OTF, Raju is asserting that the transfer form is valid. Following the decision in
Letchumanan, the legal burden is placed on Raju to prove the validity of the document.

Therefore, only after Raju proves the validity of the Transfer Form will the Courts
consider a claim of forgery:

● Sembagavally Murugason v Tee Seng Hock:

○ Jeffrey Tan FCJ - allows for Letchumanan to apply for all civil cases - and not
limit it to cases on power of attorney.
○ Applies Boonsom Boonyanit v Adorna Properties - Forgery to be established
on a balance of probabilities.
○ “Since it is found that the P had in fact signed the other documents, it is now for
the P to prove forgery on a balance of probabilities”.

● No need discuss standard as question only asks for burden of proof

Part (b):
● Sembagavlly gives 4 methods as to how signatures or handwriting can be proved,
following such order:

● S.60(1)(a) EA 1950 - Calling Ahmad as a witness - evidence of a witness that said he

saw it.
● S.45 EA 1950 - Opinions of Experts - genuineness of handwriting (including signatures).
● S.47 EA 1950 - Non-Expert Opinion - niche to the issues of handwriting
○ ‘acquainted’ - defined under the explanation to the Section.
● S.73 EA 1950 - Court makes a comparison
○ Astana International Sdn Bhd v RHB Bank Bhd - procedure as to how the
Courts are to carry out the comparison under S.73 EA 1950.

● S.68 EA 1950 - document is required by law to be attested - witness must be called for
the purpose of proving its execution.
Question 2:
Part (a):
● Teper v R
● Recaliva Design Steel (M) Sdn Bhd v Vista Access Sdn Bhd

Part (b)(i):
● Test of reliability - R v Andrews - 4 factors:
○ Dramatic event that dominated the mind of the maker;
○ Made close to the event (while the mind of the maker was still dominated);
○ Special features
○ Question of error
● Applies in Malaysia under Leong Hong Khie v PP & Section 6
● Test used to be - same/one transaction but has developed to one of reliability as
discussed under R v Andrews.

Part (b)(ii):
● S.32(1)(a) EA 1950 - explain when it can apply & the requirements.
● Yong Kong Tai; Samarakoon Banda; Ong Her Hock; Yosep Yangubani; Pakala
Narayana Swami
Question 3:
Part (a):
● Eye witness - evidence relevant under S.9 EA 1950.
● Where the case depends wholly or substantially on identification evidence, and the
correctness of which is disputed by the defendant. (satisfied OTF)
● The issue here is the risk of mistake. Hence, to guard against this mistake, the law has
created the Turnbull Warning.
● Applied in Malaysia and reworked under Duis Akim v PP - discuss 3 step test.
○ Argue that quality is poor - need supporting evidence - OTF, ID parade. However,
the ID parade only took place a month later.
■ Issue: Lapse of time - PP v Dharma Raj - lapse of time may lessen the
ability of Cheng to accurately identify the assailants. Dharma Raj - 2
months, OTF, 1 month.
■ If the court finds that this is good supporting evidence - reliability of the
evidence would increase.

Part (b):
● Mode of Proof:
○ Shirt would fall under real evidence - S.60(3)
○ Opinion evidence - S.45 EA 1950 - science - DNA (Pathmanabhan Nalliannen) -
note question states “blood type”.
■ Person who tested the shirt should testify
● Shirt was found in Hassan’s room - relevancy under S.7 (state of things) or S.9
● “Blood type” - only connects to Hum Li to a certain extent - not entirely - circumstantial
evidence - cannot conclude Hassan’s involvement in the murder, but can be taken into
consideration. (Not BRD).

Part (c):
● Relevancy - S.9 - identification
● CCTV footage - so long as it is clear, it shall be direct evidence - No documentary
hearsay as there is no human intervention; Castle v Cross; .
○ S.3 - computer generated document
○ S.90A needs to be complied with // Gnanasegaran
○ If S.90A is not satisfied, rely on Mohd Khayry v PP (R v Maqsud Ali).

Part (d):
● Relevancy - S.8 - motive // S.14 - state of mind
● If statement is being tendered for the truth of the matter stated - hearsay -
Subramaniam - hence, inadmissible if one of the exception applies
● Exception to hearsay - S.90A - used as a hearsay exception in Mohd Khary, however,
Avnet Azure - S.90A should not be used as a hearsay exception (discuss)
● S.90A will also be used as mode of proof; Mohd Khayry (R v Maqsud Ali).
● Note: Bergamo Development - whatsapp messages - tendered certificate.
Question 4:

● Standard of proof is not legislated - there is a lacuna in malaysian law - hence, common
law is applied (and English Standard of Proof is applied).
● See Eric Chan Thiam v Sarawak Securities - suggests that legislature should step in
(2004 case) ; Sinnaiyah (2015) etc.
● See:
https://www.thomasphilip.com.my/data/uploads/pdf/resources/civil-fraud-drastic-revision-
standard-of-proof.pdf
● Discuss and give own opinion.

Question 5:
Part (a):
● OTF, there is a SPA between the parties. Harriet wants to tender an oral statement which
contradicts/varies the terms of the SPA.
● Discuss S.91 EA 1950.
● Where terms of the contract has been reduced into writing (S.91), no oral agreement
shall be admitted unless the exceptions apply - S.92 EA 1950
○ Not S.92(b) as SPA is not silent on when payment should be made.
○ The most relevant exception - S.92(d) - subsequent oral agreement to modify any
such contract...except in cases in which the contract...is by law required to be in
writing
■ See Voo Min En and Abdul Hal bin Haji Masud- pg 123 manual
■ SPA is required to be in writing (?) - hence, this exception is unlikely to
be applicable.

● Note: S.7 Covid-19 Act 2020 - however, it does not apply to SPAs

Part (b):
● S.114(b) - if unworthy of credit, Courts cannot convict
○ However, this is a presumption that the Court can make
○ If the Court does not make this presumption, an accused person CAN BE
CONVICTED under S.133 where the testimony of the accomplice is
uncorroborated.

● Pg 216 manual - Ng Yau Thai; Ghazali bin Salleh v PP -

● Therefore, not in conflict as the presumption is drawn on the Court’s discretion.
Question 6:
Part (a):
● Lee Kok Nam - photocopy - secondary evidence under s.63 EA 1950
● Documents must be proved by primary evidence except in cases hereinafter mentioned -
S.64 EA 1950
● Admissibility of secondary evidence only if exceptions apply - OTF, S.65(1)(a)(i) applies
● S.66 EA 1950 - Notice to produce must be given if the document is one under S.65(1)(a)
- notice should be given to the bank.
● If the Bank produces the original, the photocopy need not be tendered. However, if the
Bank does not tender the original, S.65(2)(a) - secondary evidence may be admitted.
● Note - S.66(b) may apply - notice not required.

Part (b):
● Urchin’s letter - hearsay - Subramaniam - exception S.73A
○ S.73A - civil case - hearsay found in letter - original letter can be tendered -
urchin is the maker - he has personal knowledge on the matter - proviso as he
cannot attend court (unable to attend court as he is beyond the seas).

● Bank-in slips:
○ Computer generated document - S.90A
○ Bespile Case.
○ Mohd Khayry (Maqsud Ali)

Part (c):
● Litigation privilege - is this document prepared for litigation or not (is the dominant view
for the purpose of litigation?) - if yes, it will be privileged - Waugh v BRB
● If Polo testifies, the memo can only be used to refresh his memory or corroboration.
● OTF, argue that privilege will not apply if its preparation was not dominantly for trial.
Question 7:
Part (a):
● S.136(1) - where evidence is relevant, it is admissible, even if it is obtained illegally
● DSAI / R v Sang

Part (b):
● S.57 EA 1950.
● Pembangunan Maha Murni Case
● Pang Ah Chee Case
 July 2019

Question 1:
Issues in Part (a) - pg 186 Q&A:
● If the documents are tendered as exhibits, they have to be relevant, and if they are
tendered for the truth of the matter stated, they will be hearsay - Subramaniam
● Will the IO be allowed to tender on the contents of the documents?
○ If the documents are tendered, they will be primary evidence and no need for the
witness testimony
○ It is arguable that the IO is tendering the general findings of his investigation due
to the voluminous amounts of evidence (i.e not tendering for the truth of the
matter stated). S.65(1)(g) read together with S.65(2)(d) EA 1950. This would be
secondary evidence.

● If it is hearsay, failure to object does not amount to a waiver since hearsay evidence is
irrelevant and hence inadmissible - Keruntum Sdn Bhd v The Director of Forests.
● However, if the evidence is not hearsay, it will be admissible as they are relevant.
● On the part of the IO’s testimony - S.73AA EA 1950 - failure to object the admission of
secondary evidence - waiver.

Issues in Part (b) - pg 116 Q&A:

● Is there a witness to the signature? OTF - No.
○ If there was, he would be required to testify under S.60(1)(a) - Sembagavally
Murugason v Tee Seng Hock.
○ Hence - testimony of PW2 is not direct evidence.

● Expert witness - S.45 EA 1950

○ Opinion must be sought on an issue that is listed under S.45(1) - OTF,
handwriting
○ Who is an expert? S.45(2), DMH v PP and Junaidi v PP;
■ PW2 will not be an expert in handwriting merely based on where he
works/ what he works at - this in itself cannot be sufficient proof that he
has special skills in identifying signatures - Kumaraguru; Lin Lian Chen
■ See Tengku Jonaris case.

● Non-Expert Opinion - S.47 EA 1950

○ Must be proved that PW2 is acquainted with the handwriting and signature of
Tim.
○ “Acquainted” defined in the Explanation to the Section.
○ Leong Yeu Moi v Neo Ai Si - just because a relationship is established does not
mean that a party is acquainted with another’s handwriting.
■ OTF, Court determined so on the ground that PW2 was Tim’s banker.
○ Should have taken into account PW2's admission that he is not familiar with
Tim’s writing.
Issues in Part (c):
● Court needs to determine prima facie case based on a MAX EVALUATION - S.173(f)
CPC; Balachandran
● Failure to cross examine:
○ Ayoromi Helen; AG Bahrun - failure to cross examine on material points
tentamounts to an acceptance of the testimony.
● PP v Saimin: The proof of the case against the accused depends for its support not
upon its absence or weaknesses of the explanation on his part but on the positive
affirmative evidence of his guilt by the prosecution.

Issues in Part (d):

● Sequestration of witnesses - GR - difficult for the court to determine the credibility of the
witness.
● Tomlinson v Tomlinson; Yomeishu
● Exceptions - accused or expert witnesses - Dr Soo v Foo Fio Na.
● This is not a rule of law, and is based on the discretions of the Court.

Conclude whether gross miscarriage has been suffered based on the answers above.

Question 2 - pg 240 Q&A:

● Parties to the civil case:

○ Porter (P) v Dobby (D); and
○ Porter (P) v Opus (D)

● Porter v Dobby:
○ COA: Repayment of Loan
○ Defence: Negligence in released loan based on forged documents.

○ Burden of proving COA on Porter - S.101 EA 1950 - balance of probabilities

(Sinnaiyah; Miller)
○ Burden of proving defence - validity of the loan - Letchumanan; Sembagavally -
burden on Porter
○ Only then will Dobby have a legal burden to prove there is forgery - Balance of
Probabilities Boonsom Boonyanit v Adorna Properties

● Porter v Opus:
○ COA: breach of contract, repayment of loan
○ Defence: deceit and duress

○ Burden of proving COA on Porter - S.101 EA 1950 - balance of probabilities

(Sinnaiyah; Miller)
 ○ Since the execution of the contract is not disputed, the burden lies on Opus to
prove duress as per S.102 illustration (b).
○ Standard - balance of probabilities - as per cases above.

Question 3:
Part (a):
● Competence - S.118 - compallable - Ghouse
● Legal advice privilege - S.126 EA; lawyer-client relationship - DS Najib v PP.
○ If legal advisor is not a lawyer, S.129 applies instead (litigation privilege) - Wang
Han Lin v HSBC

Part (b):
● Opinion evidence (note: opinions are relevant)
○ If expert - S.45 EA 1950 - “science”
○ Discuss requirements of S.45
○ Junaidi - only those with special skills can give evidence - “expert”
○ DMH v PP
○ Lin Lian Chian; Kumaraguru

Part (c):
● Rob:
○ If not hearsay - Rob’s testimony - S.65(1)(g)& (2)(d) EA 1950
○ If hearsay, find exceptions - S.32(1)(b) - Tempil Perkakas (personal knowledge
and ordinary course of business) or S.73A

● Digitilised copy
○ Secondary evidence as per S.63(b)
○ Discuss S.64 and if applicable, S.65(2)

Question 4:
Part (a):
● Court’s discretion must arise - basic facts must first be proven - discuss.
● Evidence must be material evidence, must be evidence that is available and deliberate
suppression.
● P has legal burden to prove a criminal case BRD - Court can draw adverse inference
after considering certain factors.
● Discuss the 4 factors
● If the court decides to invoke presumption, it will be held that…if produced, would be
adverse to his case.
● It is a rebuttable presumption and PP can rebut this beyond reasonable doubt.
Part (b):
● Discuss answer on page 162 study manual.
● May be rebutted on a balance of probabilities.

Question 5:
Part (a):
● Issue - admissibility of hearsay - relevancy

● When hearsay evidence is sought to be tendered, the person that tenders it may not be
able to prove an exception to hearsay.
● The judge will “keep in view” the evidence tendered (that is not admissible) and mark it
as “ID” - this will continue until a witness is brought to prove any ingredients of the
hearsay exception.
- Until and unless ID documents are specifically converted into proper exhibits,
must be disregarded as well as any oral testimony referring to the said ID.
- [Henry Devarajah Anthony James v Petrozchem Oilfield Services]
● Once the hearsay exception is proven, the Judge can then mark the hearsay
statement/document as an exhibit and tender it as evidence.
● So long as the Court is not functus officio, the Judge is allowed to change his ruling on
admissibility.

● See page 12 & 15 Revision Guide.

● Revision guide:
- [Sampo Material v Tenaga Nasional] - ‘the mere fact that documents were
marked as exhibits does not make them admissible until their contents have been
properly proven’
- [DSAI v PP]- FC held that trial judge may review any previous ruling he made
and if need be, reverse the earlier findings.
- [Malaysia National Insurance v Malaysia Rubber Development] - hearsay
evidence which ought to have been rejected does not become admissible merely
because no objection was taken earlier, admissibility is a question of law.
- !! [Ng Yin Kwok v PP] (SC) court can reverse its ruling on admissibility of a piece
of evidence which has been admitted earlier during the trial

Part (b):
● There are areas in the law where the Courts, in their discretion, to determine whether or
not the standard of proof has been achieved (based on the number of witnesses called).

○ S.114(g) EA 1950 -
■ where material witness is not called, adverse inference may be made -
judge needs to take into account whether there are gaps in the
 prosecution’s case - if complete (through other witnesses), no adverse
inference will be drawn

○ Suspect witnesses
■ Corroborative evidence required
■ Prosecution should tender corroborative evidence (includes witnesses) in
the event it is required by the Court, esp if it is a matter of practice and
prudence.

● See Page 287 RG.

Question 6:
Part (a):
● GR: If the evidence is legally relevant, then the court shall admit it - S.136(1) EA 1950 /
DSAI (2015)

● If there is no specific rule on mode of proof (Part II EA 1950), Mohd Khayry & Maqsud
Ali - where so long as the accuracy of the evidence has been proved and it has not been
tampered with, it is admissible. (Common Test of Admissibility).

● No specific provision on weight - question of fact determined based on the other

available evidence tendered in trial.

Part (b):
● S.2 EA 1950 - EA does not apply to affidavits presented to any Court.
● Sometimes, statements made in an affidavit is tendered in court – this must comply with
the EA – statements being tendered in trial as evidence and not used in their function as
affidavits
● Affidavits used during interlocutory applications (proceedings before trial) – court looks at
the affidavit to determine the application – therefore requirements for affidavit is seen at
this stage – they do not need to comply with the EA – can contain hearsay (as they are
not being used as evidence as trial, merely used to support the interlocutory application)
● O38r2 – evidence by witness statements - pre-written Q&A will be submitted (is
considered an affidavit) – statements in the witness statement must comply with the EA
● – Faridah Ariffin (civil trial chapter)
● Indian case of Rama Naidu v Ramadevi (not Malaysian law but additional reading
material) – (statements of the) affidavit becomes evidence when the deponent appears
for cross-examination
● In summary – discuss s.2, how affidavit becomes evidence (statement in the affidavit) –
if the deponent is unavailable to give evidence (hearsay so exception needs to apply) or
as corroboration under s.157 or if there is a need to impeach his witness for a
contradictory statement made in the affidavit; affidavit also becomes evidence when it
falls under O38r2 - provided EA is complied with.

Part (c):
● PC decision that redefined hearsay.
● Prior to this, out of court statements repeated in court was hearsay and was only
admissible if exceptions applied
● Subramaniam v PP: Hearsay evidence may or may not be admitted. If it is tendered for
the truth of the matter stated, it may only be admissible if an exception applies. If it is not
tendered for the truth of the matter stated, it may be admitted.
● Discuss facts of Subramaniam
● See pages 32 - 34 RG for reference.
Question 7:
Part (a):
● Definition S.17.
● Discuss who can make an admission - S.18 / 19 / 20 CPC
● Admissible under s.21 – against the maker and in some circumstances for the maker
● Can be excluded in civil cases if it falls under s.23 – Without Prejudice rule
● Anandagoda v R - admissions in civil and criminal cases

Part (b):
● Definition - S.17(2) - maker is the accused himself
● Exclusion - S.24, S.25 (read together with S.113 CPC - all confessions made to police
are inadmissible), S.26, Oppression (introduced in DMH v PP in Malaysia)

Part (c):
● Trial within trial - judge to focus on the admissibility or relevancy issue.
● Applied when there is an issue of voluntariness; impeachment ; whether legally
privileged communication is admissible (Celcom [2020] Case).

● S.27 – information – voir dire is conducted at the behest of the accused that is trying to
prove that the prejudicial effect on the manner the evidence was obtained outweighs its
probative value (R v Sang) – burden to prove involuntariness is on the accused
● If there is an argument on voluntariness of a confession (NOT s.27) – it is on P to prove
that the confession is relevant
● Impeachment - to determine credibility - burden is on party that invokes the proceedings
 November 2019

Question 1:
Part (a):
● Wanda is a competent witness - S.120(1) EA 1950
● Is the evidence privileged? S.122 EA 1950.
○ Conditions:
1. The maker of the communication and the recipient are or have been
married;
2. The communication was made during marriage.

○ OTF, content of the argument - communication made during continuance of a

valid marriage.

● If Wanda is not willing to testify, she cannot be compelled to do so (Limb 1). If she is
willing to, she cannot proceed to do so unless Lorki consents (Limb 2)
● None of the exceptions apply.
● Objection sustained.

Part (b):
● Maker of the report is Dr Strangefellow. However, Dr Nolittle is giving his opinion based
on said report. Is this considered hearsay?

● Pathmanabhan A/L Nallianen: The D argued that the evidence of the expert was
inadmissible hearsay and the expert himself was not the person who carried out the
entire analysis upon which his report was based.
○ Here, it was ruled that the facts underlying expert opinion are not inadmissible on
the ground of hearsay. This is because generally experts rely on test results and
data that are not necessarily obtained or conducted by them personally in coming
up with their opinion.

● Discuss Rita Krisdianti v PP. The laboratory assistant (who was not called as witness)
played a minor role, all tests were run under the supervision of the chemist (called as
witness). Hence, it was sufficient that the chemist was present and observed the results
and will not be held as hearsay.
○ OTF, it should be noted that Dr. Strangefellow and Dr. Nolittle were not in the
same department!

● Therefore, the objection will be overruled. The objection may only be on the weight the
evidence was admitted, but not its admissibility.
Part (c):
● General Rule - S.118 EA 1950
○ 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.
● Explanation to S.118 - Mentally disordered persons or lunatics are competent unless
their condition prevents them from giving rational answers.

● Mohd Amin Ishak v PP - 17 year old was not a child of tender years.
○ OTF, Pepper is a minor but will be difficult to say that she is of tender years.
Hence, she may be a competent witness.

● Chao Chong v PP: Children find it difficult to distinguish between the result of
observation and the result of imagination.
○ Likely does not apply to Pepper.

● Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Nor: No need for
corroboration for civil cases.

● Objection overruled.

Part (d):
● Police report is important when:
○ Maker does not attend (hearsay issue) - OTF, Lorki is present;
○ Corroboration (S.157 EA) - however, Mohd Ridzwan bin Abdul Razak v Asmah
binti Hj Mohd Nor: No need for corroboration for civil cases.
○ Impeachment - Lorki is not going to impeach himself.
● Failure to tender report - adverse inference?
○ Material evidence - difficult to satisfy; presumption can be invoked as Lorki has a
BOP as he is a Plaintiff
Question 2:
Part (a):
● Relevancy - words uttered in the message are defamatory - relevant under S.5 EA - also S.9 to
show who wrote it
● Subramaniam v PP - tendered for the truth of the matter stated? - defamation suit - hence, it will
not be tendered for the TRUTH - therefore, not hearsay.
● Whatsapp message - document produced by a computer (as defined under S.3 EA) - discuss
S.90A, Bergamo, Mohd Khayry & Maqsud Ali v R.

Part (b):
● S.5 - S.55 EA 1950 - relevancy is a question of law
● Admissibility - only arises when the evidence is relevant - after this, must comply with Part II of
the EA - must also comply with competency and privilege found under Part III EA 1950 - also a
question of law.
Question 3:

● Impeachment through previous inconsistent statement; S.155(c)

● Discuss procedure (leave required, discrepancies, etc) - when decision is to be given -
cases of Muthusamy (Discrepancies); Munusamy (When to impeach); Dato Mokhtar
Hashim.

Note: Discrepancies → Court decides whether to grant leave → S.145 EA

Question 4:

● Pg 283 Revision Guide

Part (a):

● S.101 EA - DPP to prove that Kow is guilty - S.101 denotes a legal burden - “proved”
under S.3 & Jayasena - legal burden - on the prosecution
○ All the ingredients of the offence and negate any defence that has been raised by
the defence
● Mat v PP - BRD

Part (b):

● S.101 - legal burden on the plaintiff - illustration (b) even in civil actions - STG as the P to
prove how Kow transferred such money and that Kow made alterations
● Standard of Proof - Yuvaraj - BOP - definition in Ministry of Pensions case
 ○ Sinnaiyah & Sons - allegation of fraud is one of a criminal nature made in civil
action - this case held that it shall be proven on a BOP (overruling Ang Hiok
Seng).

Part (c):

● Whenever an attempt to rely on S.105, there is a need to tie the facts to whether it falls
within S.105 - if not, the D is merely disputing the ingredients raised by the P then there
is no burden - if S.105 applies, D has legal burden (according to Jayasena) and he has
to dispute such on a balance of probabilities
Question 5:

● Only circumstantial evidence - we should draw the Court to the irresistible conclusion
test
● See 273/274 Revision Guide

● Discuss the different types of evidence on the facts:

1. Ah Soh’s 75 year old neighbour: Eyewitness - places Boon at the time of the
crime - issues surrounding her testimony (old, dark, no specs), her evidence is
still relevant under S.9 and no rule of admissibility has been breached - court
shall determine how much weight to give it - since she lives across Boon,
RECOGNITION would increase the quality of her evidence.

2. Golam the petrol station attendant: Relevant - preparation under S.8 EA - helds
Court infer that Boon did it on purpose etc.

3. Kit and Kat: Shows notice (S.8) - Discuss hearsay - could be dying declaration -
Can also show the state of mind of Mill (is this relevant?)

4. Kepoh - the fact that they were quarreling and that his voice was there under S.9

5. Bodek - opinion evidence - link to Golem’s evidence and how Mills died
6. Dr Gugat - opinion evidence

● Submit that there is evidence that puts him at the scene, his motive, and link to how Mills
died. Conclude irresistible conclusion test and urge Court that this has been proven
BRD.
Question 6:

Part (a):

● Real evidence - computer - footage - document - defined under S.3 EA 1950

● Relevant under S.8 or S.9
● S.90A - certificate or witness or Mohd Khayry + Maqsud Ali (evidence in question in
Mohd Khayry was CCTV footage)

Part (b):

● Romeo’s identification - relevant under S.6 (transaction which led to his arrest) or S.9
● Actual evidence that should be tendered are both the footage of the camera and the
CCTV (to allow the Court to determine on their own accord)
● Otherwise, Maverick’s evidence would be secondary evidence under S.63(e), and there
is a need to satisfy S.65.
● Wong Soon Choon v PP*** - failure to tender CCTV footage:
○ If there are eyewitnesses, but footage is not tendered, the Court is deprived of all
available evidence and hence the accused is denied his right to a fair trial.
○ “We need only consider whether it is safe to convict on unsatisfactory
identification evidence and when there is also no nexus by way of DNA to link the
accused by taking into consideration the best evidence by way of CCTV footage
to assist in the identification has not been produced.”

Part (c):

● Previous ARREST - not previous conviction etc.

● Discuss whether or not an arrest is bad character - PP v Choo Chuan Wang - arrest is
bad character
● Bad character is irrelevant and can only be admissible if S.54 applies (as it is a criminal
proceeding)
○ Explain the 2 subsections of S.54.
○ Discuss R v Stirland - Court should not allow evidence of suspicion (i.e the
arrest) even if one of the provisions appears to apply.
○ Submit that it should be inadmissible.

Question 7:

● Discuss whether or not the accused has the right against self-incrimination.
 June 2018:

Question 1:

● See Revision Guide pg 3 - 5.

Question 2:

Part (a):

● S.101 + illustration (b) - burden on the Plaintiff to prove the ingredients of fraud and
forgery (+breach of trust +misappropriation of money + trespass to goods etc).

● Yacht - Trolls believes this was done by Hugo - forged Anna’s signature
○ Burden placed on Trolls to prove the forgery (Trolls would want to prove that
Hugo SIGNED the document - ie forged Anna’s signature) - but how does this tie
to validity??

● Note issued:
○ Troll will say that the note is genuine as it appears to be signed by Hugo and it
will link him to the misappropriation of money.
○ Hugo on the other hand, will be arguing that he did not issue the note and that his
signature has been forged.

● Letchumanan - burden is placed on the party that alleges its validity.

● Sembagavally - standard

● Overall standard of proof - Sinnaiyah (elaborate, discuss previous position in Ang Hiok
Seng). Miller v Ministry of Pensions - definition.

Part (b):

● Photograph (secondary evidence) cannot be tendered without memory card or negatives

for film (primary evidence) - photograph not hearsay - no human intervention - Castle v
Cross
● Sven should only be called when the primary evidence cannot be tendered - explain why
primary evidence is not available:
○ Can be missing (discuss S.65); or
○ that it has been wiped (Positive Well Marketing v OKA Concrete Industries
case + S.65(1)(c) - lost of destroyed)
■ Court was satisfied of the authenticity of the photo saved on the
computer’s memory from the memory card
■ Furthermore, the person who took the photograph can confirm if it had not
been tampered with (as Sven would have seen with his own eyes what
had been taken).
 ● S.90A - Sven to tender certificate or called as witness (hence, if not called, he can just
tender a certificate) - Gnanasegaran

Question 3: - See pg 217 - 220 RG

Part (a):

● Faxed copy - Jawan Empeling v PP

● S.63(b) - secondary evidence
● Discuss S.61 & 64.
● OTF, Bingsu cannot tender original copy as per S.65(1)(a)(i) - apply S.65(2)(a)

Part (b):

● Baro is the maker of the delivery notes - working in Singapore

● Hearsay - exception has to apply - S.32(1)(b) - difficult to argue that his attendance will
be hard to secure (Singapore is near)
● Alternatively, discuss S.73A instead

Part (c):

● ​Best evidence rule – can additional terms be added?

● S.92 – where contents have been proven through s.91 – general rule – no evidence of
any oral agreement or statement which seeks to contradict, vary, add or subtract the
terms of the written contract unless the exceptions applies
● S.92(c) – condition precedent – would not have purchased the steel bars but for the oral
agreement – Tan Chong Motors
● Oral agreement is admissible

Question 4:

● Judicial Notice - S.56 makes it clear that the fact taken notice of need not be proven.
● Presumptions work the same way - presumed to exist - no need to prove - defined in S.4
EA 1950

● Distinctions:
○ Presumptions have basic facts - must be proven first before the presumption may
be made; JN - no basic facts - instead S.57 list of things court must take judicial
notice of
○ “Rebuttability” -
■ presumptions of fact (rebuttable); presumptions of law (rebuttable or
irrebuttable);
■ JN - Pembangunan Maha Murni & Phang Ah Chee - treated to be
existing without the need of proof - undisputed - rare that they can be
rebutted.
Question 5:

● See pg 273 RG and Question 5 November 2019.

● Also consider the bad character of Solo for being in a gang - PP v Choo Chuan Wang
● Also see R v Abadom - for comparison of fingerprint by Azmi:

Question 6:

Part (a):

● S.33 EA 1950
● See pg 69 RG & Ms Amreeta’s document with updates

Part (b):

● Louis is an accomplice because of participation - even if Louis did not “outrage the
modesty”, he would still have knowledge on Alfred’s intentions and he will be held to be
an accomplice.
● Rule of corroboration - S.133 (accomplice is a competent witness) and S.114(b) (court
may presume that an accomplice is unworthy of credit unless corroborated) - Gazali
● Matter of practice and prudence - hence, Louis can give uncorroborated evidence, but it
is prudent for there to be corroboration - although the discretion lies in the courts, it must
not be arbitrary (done in accordance with case law) - if it can be shown that Louis is an
active participant in the offence, the court should exercise its discretion for corroboration
- Discuss DSAI - accomplice - should be corroborated
● Discuss PP v Nomezam.
Question 7:

Width and Scope of S.126 EA:

● S.126 - only advocate/solicitor-client privilege - communication, advice and contents of

documents are privileged - can only be waived with the client’s consent - however, see
proviso as to when privilege will not apply.
● Can also discuss illustrations - (a) for GR, (b) for 1st proviso and (c) for 2nd proviso.
● Dato Au Ba Chi, Dato Anthony See - although disclosed, does not amount to waiver of
privilege.
● S.127 - extends to firm of the advocate

Protection - is it for the advocate or client or both:

● Is privilege protective on client & solicitor also?(No doubt on client, but issue arise on
solicitor)
● Discuss - Leonard Teoh; Tan Chong Kean v Yeoh Tai Chuan; Gideon Tay

● Leonard Teoh (COA): Solicitor wants to break privilege (disclose privilege information
without client express consent) for the purpose of absolving/defending himself from
civil/criminal action & to get out of legal trouble -
○ Court held that a solicitor can disclose privileged information if it is to save
himself - solicitor’s denial to disclose such information led the court to believe
that he was hiding something and he cannot hide behind the “skirt of privilege”.
Tan Chong Kean v Yeoh Tai Chuan (Federal Court) overruled Leonard Teoh.
(Note: this is a civil action, however, this does not matter as these cases discuss the
interpretation of S.126 EA, which apply in both civil and criminal cases):

● Suit of client against his lawyer for breach of confidentiality. Remedy sought an
injunction to stop the lawyer from disclosing confidential information.
● Client had sought the lawyer (Yeoh) to enter into a joint venture (JV). Yeoh had advised
the client to enter into trust deeds. The client did not pay all the money, and the party
(of the JV) took action against the lawyer.
● The lawyer held that they should have been indemnified by their client. Yeoh wanted to
commence third party proceedings against their client. The basis were the trust deeds -
that showed that the client was the one entering into the JV.
● Hence, the issue was whether the trust deeds could be used to support their third party
proceedings.
● Questions by the FC:
1. Is there a cause of action? Yes. Breach of confidentiality is a cause of action.

2. Whether a solicitor sued for a debt in his personal capacity is allowed in

his defence to rely on confidential information reposed in him in his
capacity as a solicitor? Solicitor is not allowed to diverge privileged
information even if it is to defend himself.

3. Whether in a court action for breach of solicitor-client privilege, it was

sufficient if the client merely pleaded the breach without disclosing the
contents of the privileged document? If the privileged information was
included in the SOC, it would be construed as abandoning the privilege.
Hence, it is sufficient to mention that such documents are privileged.

4. Whether S.126 EA by using the words ‘unless with his client’s express
consent’ rejected the concept of an implied waiver at common law? No
such thing as implied consent.
● Hence, the decision in Tan Chong Kean is right, it is protection for the client, not
protection for the solicitor.

● Gideon Tan v Tey Por Yee (COA):

○ Although this was not a criminal charge, the parties nonetheless argued using
cases to hold that committal proceedings are of a criminal nature. The Court held
that the right of the lawyer to defend himself in committal proceedings did not
create an exception to the rule of solicitor-client privilege. (Privilege cannot be
waived).
○ In this case, the lawyer relied on Leonard Teoh and said that they were allowed
to reveal privileged information - Court held that privilege could not be waived
even if it was for protecting himself.

● Submit that according to cases above, it is clear that S.126 only protects the clients and
not advocates.
 November 2018:

Question 1:
Part (a):

● S.101 - overall burden on Prosecutor (illustration (a)) and Plaintiff (illustration (b)).
● S.102/S.103 (rewatch 2.15pm - 31/7)
● Discuss the standards - Miller v Ministry of Pensions definition - different standards etc.

Part (b):

● See pg 215 Revision Guide.

● See S.90D, E, F EA 1950, namely S.90E EA 1950:

Background:

(LPQB’s summary):
○ Section 90D EA states that the Chapter shall apply for the purpose of
determining the admissibility of evidence obtained pursuant to a request made
under the Mutual Assistance in Criminal Matters Act 2002 (Act 621)

○ Section 90E EA provides inter alia, for any testimony, statement, deposition,
together with any documents or thing exhibited or annexed to such statement or
deposition that is received by the Attorney General pursuant to a request made
under Act 621.

In respect of the criminal matter, shall on its production be admitted as evidence

without further proof of any fact stated therein.

○ Section 90F EA provides that a certificate by the Attorney General or anyone

authorized by him to make such a certificate certifying that any testimony,
statement or deposition to which such certificate is attached, together with any
document or thing exhibited or annexed thereto, if any, has been received by the
Attorney General pursuant to a request made under Act 621 in respect of any
criminal matter referred to in the certificate, shall on its production be conclusive
evidence of the facts contained therein in the certificate.

● A key witness is abroad, instead of flying witness back, allows AG to engage the legal
bodies of other countries, and try to take the testimony of the witness for Malaysia
(subject to Oath, take trial at overseas) – recording of testimony will be remitted back to
Malaysia
○ Allows evidence to be tendered without it being “hearsay”.
Question 2:
● Cross-examination - leading questions allowed - S.143 EA 1950
● Previous conviction - explanation 2 to S.54 - bad character
○ Can only be raised during the cross examination of the accused if S.54(2) applies
○ OTF, PC seems to be similar in fact with the current charge - argue S.52(2(a) - to
show that he is guilty of the current charge as well - only applicable when the PC
is similar in fact
■ Note that para (a) is very rarely invoked
■ If P knew of the SFE, they would have tendered such evidence under the
general relevancy provisions - therefore, when accused is being
cross-examined, it will not be the first time the Court is hearing of the bad
character (SFE) - hence, the general restriction of S.54 does not apply -
therefore, no need to apply the exception (i.e S.54(a)).
■ Submit that since this is not shown in the question, we are moving on the
basis that this is made available to the court for the first time - restriction
applies - discuss S.54(a).

● SFE - must be relevant under S.14, 15 or 11(b) EA - when tendered, to determine which
section applies, question to ask is:

What ingredients of the offence the P is seeking to prove (i.e AR, MR or Identity) - if
MR (S.14,15), if identity (S.11(b), if AR (not allowed to used SFE to prove AR- Raju)

○ possession of drugs ingredients - (i) custody and control (AR), (ii) dangerous
drug (AR) and (iii) knowledge (MR - presumed) & (iv) identity

○ OTF, prosecution is raising SFE to prove custody and control - see Radhi Yakob
case - cannot use SFE to prove AR as per Raju

○ Common law exception - Boardman test - PV outweighs PE? Conclude. Also

discuss R v Bond.

Question 3:

● What is hearsay? out of court statement … inadmissible unless exception applies, if not
tendered for truth = not hearsay; PP v Subramaniam

● Exception: S.6 (res gestae), admission & confession (S.17-S.31) – confession (specific
for criminal cases)

● Unavailable as witness (S.32-33), Special circumstances: S.34-S.38, S.73A (specific for

civil cases), S.90

● Admission (specific to criminal & civil cases) , S.32(1)(i) & (j) – criminal proceeding

Question 4:

● See pg 27 Revision Guide

● ASP Aftar
- S 5- all evidence tendered must be relevant to the FIR and RV
- Received call on dead body, ‘multiple stab wounds and identified as Misrun, the
 deceased- S 7 - state of things under which investigation commenced, in which
the body was found
- The message
a. Content of the message- S 8 - motive
b. Registered under A- S 9- identification
- Mode of proof
● The message is tendered for the truth of the matter stated to show motive
● S 90A- hearsay exception- computer generated document
- Bergamo - S.90A used to tender whatsapp message, Avnet Azure
- S.90A should not be used as a hearsay exception.
- [Masqud Ali, Mohd Khayry
● Harina
- S 9, S 5.
- Since it was said after the commission of the offence- S 17(1)- admission
- Tendered for the truth of the matter stated since it will be tendered as an
admission - hearsay
● S 17 admission is an exception to hearsay

● Inspector

A revealed that he had an altercation with the deceased

- S 8(2), S 6,
- Also S 17(1)- admission
● [Anandagoda]- it is an admission not a confession. Admissions can exist
in criminal cases

A brought Inspector to the bushes

- S 27- information given under S 27 need not be confession but must however be
given in custody (Eng Sin - on custody)
- S 8- subsequent conduct
● [Pathmanaban] - gave information to police that led to the discovery.
- S 27 admission was argued to be inadmissible as they argued the
prejudicial effect outweighs the probative value thus the statement
was excluded
- subsequently court held that the conduct of pointing was relevant
and admissible even though the S 27 statement was excluded

Dr Hema

● Post mortem- cause of death

- Relevant under S 7- -however this evidence is also an opinion evidence given by
an expert S 45
● Only on areas specified in S 45 and [Junaidi]
● Only be given by an expert (specially skilled in that area)
 - Knife- blood on the knife matches the DNA of the deceased (murder weapon)
● Directly connects to the deceased and connects to the A by his
knowledge of where it was placed
● Since DNA evidence are always produced through a computer - S 90A
(mode of proof of evidence must be satisfied)

Question 5:

● Civil cases:
○ Corroboration not required in Civil cases - Mohd Ridzwan bin Abdul Razak v
Asmah binti Hj Mohd Nor (FC), the Court held:
■ The need for corroboration is closely connected to the standard of proof in
a criminal case - BRD;
■ Civil cases are not subject to such a high standard - hence, no rule of
corroboration
■ OTF, it was a civil action for tort of sexual harassment - Asmah
(complainant) suffered - hence, is there a need for corroboration as she is
a suspect witness?

● Criminal cases:

○ Definition of Corroboration - R v Baskerville - independent testimony which

affects the accused by connecting or tending to connect him with the crime. In
other words, it must be evidence which implicates him, that is, which confirms in
some material particular not only that the evidence that a crime has been
committed, but also that the accused committed it.

■ Independent testimony - cannot come from the suspect witness itself,

must be independent from the suspect witness - exception under S.157
EA - previous CONSISTENT statement (is inconsistent with the definition
of Baskerville, but is considered corroborative evidence in the EA, which
triumphs over any english law).

■ Lim Guan Eng (application of S.157); DSAI (2015)

■ Discuss suspect witnesses:

● Accomplice - Tan See Boon
○ Rule of Corroboration - required as a matter of practice
and prudence

● Complainants in Sexual Offences -

○ Rule of Corroboration - required as a matter of practice
and prudence

● Children - Chao Chong v PP - cannot distinguish between

imagination and reality
○ Sworn testimony - matter of law
 ○ Unsworn - matter of practice and prudence
○ Sexual offences against children act - may convict on
uncorroborated evidence (see notes)

Question 6: See page 327 RG.

Part (a):
● Apollo – D’s spouse
○ Competent witness under s.120(1) also for the plaintiff
○ Competent and compellable witness – Ghouse
○ But subject to privilege – s.122 – he cannot be asked questions on the marital
communication between him and Belle
○ However, the evidence that Apollo will testify to is not covered by privilege (discuss)
■ Requested Olympus draft a letter to terminate the agreement
■ Received payment

● Olympus – legal adviser to Apollo as well as Belle (D)

○ s.118 – competent and compellable – Ghouse
○ s.126 – he cannot be asked on matters that are privileged and such privileged can only
be waived by his client – Dato Au Ba Chi and Datuk Anthony

Part (b):
● Seeking to recall Athena as a witness
● S.138(4) – recall by P – at the discretion of the court
● Tan Kah Khim v Liew Chin Chuan
○ The discretion of the court is exercised by considering whether there has been
 unforeseen circumstances or inadvertent omissions provided that no prejudice or
surprised is caused to the other party
○ The court is more likely to permit the recalling of witness if application is made
immediately after the party closes It cases but not if it is after the defence has close it
case or if it is just before judgment
■ OTF, we are not clear as to the stage of the proceedings – not told whether P has
closed his case or whether D has closed his case – only that Athena has finished
testifying
■ But based on q(a), it appears as if we are still in the midst of P’s case
■ Since P has not yet closed its case, the court is more likely to allow P to call its
own witness
■ D is hardly prejudiced because P has not yet closed the case – D has not yet
begun his case in defence

Question 7:
Part (a):
● See pg 409 RG.
● Note: Difference between impeachment and discrediting - see S.146(c)
● When discrediting a witness, there is a need to see his demeanor, compare his evidence
to other evidence, character, and look for consistencies in his testimony.
● [AG of Hong Kong v Wong Muk Ping]- when assessing the credibility of a witness, it
should not be done in isolation, instead be done so in taking into account all the other
available evidence. This is because a confident/good witness can be unworthy of credit.
- ‘Its common that witnesses who make poor impressions in the witness box at the
end of the day after considering all other evidence to be truthful and accurate and
conversely, witness who seemed impressive and reliable be found to be rejected
thus it is dangerous to assess the credibility of the evidence given by witness in
isolation from other evidence which is capable of throwing light on its reliability’

● The other available evidence ie. the fact that his testimony in the box has been
inconsistent with the evidence found/not found and does not support his versions of the
events as explained.
- This evidence is admissible under S9 to rebut the inference
Part (b):

Are there restrictions to questions asked in rape trial, wanted to CE Lea on her previous
relationship?

● S.138(2): GR: examination and CE must relate to relevant facts, (can ask relevant
questions but subject to restriction which is S.146A)

● S.146A: only offence of RAPE, restriction on accused person adducing/asking

questions, about the sexual activity of the complainant w/any other person than the
accused, if sexual activity between complaint & accused; NO RESTRICTION unless

Sexual Activity between the complainant & other persons:

a) Prosecution has first adduced sexual complainant’s activity or the absence of it (&
evidence of it must be rebutted)

b) Accused person disputing the fact that it wasn’t him (dispute as to identity & not
consent)
 c) Accused adducing evidence of the complainant sexual activity which gave him a
basis to belief, that there was consent; but only covers situation where there is
another person in sexual activity, at the same time where the complainant & the
accused person were engaging in sexual relations

● Therefore, the most relevant exception would be (b). Morti is disputing the identity of the
perpetrator - Morti is saying it is Wilmard since the latter was with Lea that night.

July 2017:
Question 1:
Part (a):
● S.101, illustration (a) - “prove” + definition in S.3 EA - legal burden on prosecution;
Standard - BRD - Mat v PP & Saimin v PP.

Part (b):
● Discuss S.105 - legal defence - Jayasena v PP
● OR evidential burden - no legal burden - only have to raise it as a live issue
○ NOTE: choose only one otherwise it would seem as though we are contradicting
ourselves.

● Standard - Balance of probabilities - Miller v Ministry of Pensions

Part (c):
● Validity of power of attorney is a key issue - if valid, transfer is valid - if POA is not valid,
transfer is not valid.
● OTF, Bakar has denied that he had signed it - Raman and Mokhtar are relying on the
validity of the document, hence, according to Letchumanan, R and M must first prove its
validity. Sembagavally - standard of proof on balance of probabilities.

● Following this, Bakar will have the burden to prove forgery.

○ Boonsom Boonyanit / Sinnaiyah & Sons - standard - balance of probabilities

Question 2:

Part (a): - see RG

Part (b): - See RG - pg 393 - 396***

Whether prosecution is legally permitted to call evidence in rebuttal after the close of the
defence case?
● [PP v Chia Leong Foo] quoted the english decision of:
● R v Killick:
The GR is that the prosecution needs to present completely, the evidence that supports
 the prosecution before P closes its case.

Only under special circumstances is the prosecution allowed to reopen the case after the
defence is closed such as to rebut a defence not raised in P’s case under the discretion
of the court. (Has to be a defence where the D has a legal burden to prove (general,
special defence or a proviso) and not just seeking to rebut the P’s case.

Depends whether P is seeking to improve on something it has already begun or whether

it is seeking to refute something that is characterised as fresh evidence contained in the
defence’s case

P should adduce evidence as reasonable available to refute any defence foreshadowed

(by looking at s.112 statements, statements made in XE, etc.) but not expected to
attribute a defence which has not yet been disclosed – where there is lack of particularity
when it was first revealed and the particularity was only furnished at trial. The Judge may
still exercise discretion

P also allowed to reopen the case where D did not in cross-examination of PW, raise the
defence they are relying on

● Summary on Killick:
○ GR: Prosecution must disclose totality of its case before prima facie is
established
○ Court is given discretion to depart from this and re-open its case - whether to call
fresh witnesses or re-calling witness
■ Court to consider the fairness of the case - i.e where P was blindsided
(could have been raised) or whether P could have but chose not to
address the issue (Court will not allow reopening of the case)

● S.425 CPC - Court given statutory discretion in a criminal case (to summon and examine
persons)
● [Osman bin Ali v PP]

Question 3:
● Yes it is sufficient - discuss Sunny Ang (missing corpse - convicted for murder);
Pathmanabhan Nalliannen;
● Azilah Hadri - logic - when crimes are committed, they try to make sure there are no
eyewitnesses (direct evidence) - if direct evidence is mandatory before a conviction can
be made, many may get away with committing crimes - see pg 141 study manual
● Irresistible conclusion test
○ Discuss Jayaraman - irresistible conclusion = BRD
Question 4:
Part (a):
● Upon proof of the basic fact, court has discretion whether or not to make the
presumption. Where they do, it will exist until proven otherwise. If not, it will not exist until
proven it exists.
● S.114(g) - Court may presume that evidence which could be and is not produced would if
produced be unfavourable to the person who withholds it.
● Discuss notes under S.114(g).

Syarikat Timbermine Case:

● Breach of contract case - P’s burden to prove breach of contract - ingredients: valid
contract, breach, damages. Only when these are proven will D be invited to provide a
defence.
○ D can submit no case to answer - but this will mean that D is waiving his right to
provide evidence. OTF this was the case. However, the P failed to prove that
there was an existing legal contract - no enforcement of agreement.

● P’s burden in a civil case is not absolved even if the D did not adduce evidence. (P does
not necessarily win right away) - S.101 & 102 - only when the case is proven on a
balance of probabilities.

● In terms of S.114(g) -
Part (b):
● When defence in a criminal trial refuses to give evidence:
○ Prima facie - definition - S.173(h)(iii) CPC
○ Where there is a PF case, the court must convict the accused - Mohd Radzi.

● When defence refuses to call a particular witness:

○ S.114(g) - adverse inference against the accused
○ Goh Ah Yu; Baharom

Question 5:
● Loafer needs to prove that there is an agreement between him and Frank, there has
been a breach, and Loafer has suffered damages.

● Memorandum of agreement:
○ This was entered into between Frank and Syarikat One Hand
○ Relevant under S.6 / S.9 / S.11(a) or (b)
○ Mode of proof - tendering an agreement - S.91 EA - must be the document itself
(primary evidence) or secondary evidence

○ Note: If the question requires the signature to be proven - discuss

Sembagavalley.

● Oral agreement:
○ Relevant under S.5 - FII - relationship
○ S.92 - written agreement between L and F must first be proven according to S.91
- OTF, unclear as to whether there L is mentioned in the MOA
○ Instead, call Frank/Loafer/Bob to testify - S.60(1) - standard is one of a balance
of probabilities (depends whether or not the Courts want to believe L).
○ Syarikat Timbermine case - before a person can invoke their rights of a
contract, they must first prove the existence of the contract.

● Copy of the first progress payment prepared by Jenny:

○ Relevant to show that work was done -
○ Tendered for the truth of the matter stated - Subramaniam - exceptions?
■ S.32(1)(b) - discuss all the requirements - personal knowledge? Loafer
has personal knowledge, but Jenny may not.
■ Use S.73A instead - must tender original UNLESS S.73A(2)(b) applies -
CTC allowed provided Court allows Jenny to not be called as a witness
despite her being available (S.73A(2)(a))
● S.73A(1)(ii) - (i) continuous record where (ii) person supplying the
information had personal knowledge and (iii) recorded in the
performance of a duty to record the information - OTF, fulfilled.
Question 6

Part (a):

● Obligation to raise the defence during P’s case (through cross-examination) or

prior to the beginning of the trial (through statements made to police)
● Tan Kim Ho
- Defence must indicate what his defence is during cross-examination in the
prosecution’s case so that they may disprove the defence
- Failure to do so and only introducing the defence during D’s case may cause
the defence to be seen as an afterthought (fabrication)
● Credibility of the defence is reduced
● P will be allowed to call witness to rebut – Shaw and Killick (but not relevant in
this question)
● Can alibi stand when there is ID evidence (which is direct evidence)? – depends
on the weight of the evidence – burden on proof is on P
- Not the circumstances of the ID
- More than one witness – but see Turnbull – there can still be a risk of mistake

Part (b):

● no eye witnesses, Azilah Hadri; most cases are built on circumstantial evidence, hence if
no eye witness no need ID parade
● no suspect known – cannot conduct ID parade
● if witness is unavailable to identify the perpetrator (only saw a quick glance)
● case not wholly/substantially based/dependent on ID evidence (but this fact is only
known later during trial, investigation must be finished and fruitful only can proceed in
trial, hence once in trial will only know whether it is substantially or wholly based on ID
evidence)
● if accused person doesn’t dispute what has been seen by the witness (risk of mistake
not present, hence no need for ID parade)
● eye-witness is of good quality (ID parade mainly functions as corroborative evidence,
only need when the ID evidence is poor) – again only know during the end of trial
● difficult to assemble person who is similar to the accused person, then not needed (ID
 parade not needed, because if can’t conduct it properly, why for proceed?) - hard to find
similar persons (with specific traits)
● Are ID parades mandatory? Arumugam v PP (FC recognise that not necessary to always
conduct ID parade)

Question 7:

Part (a):
● No re-examination where there is no cross-examination
● Tendering new evidence in re-examination – s.138
○ Permission of court needed
○ Further cross-examination is allowed - here, D was not allowed to do so
○ Breach of s.138
○ Court to dismiss the entire claim – is this allowed at this juncture?
■ Earliest point that courts can make this decision is at the close of P’s case
If D makes a submission of no case to answer
■ If D does not do so, the court can only decide at the end of D’s case

● Conclude - Court has erred in their decision - Insufficient judicial appreciation of

evidence

Part (b):
● S.159 - should have been done in Court - Moomin - not complied with
● Must at least adhere to S.161
 November 2017:

Question 1:
Part (a) - See pg 246/247 RG

Part (b) - rewatch 14/8 - 9am-10.20 am.

● S.4
● A presumption of law which is rebuttable
● Once BF proven, court has no choice but to make the presumption until it is proven otherwise by the party
of whom the presumption is made against
● What are the basic facts – three types (discuss)
● What are the presumed facts – all draw to the same presumed fact
● Mkini Dotcom Case!!!!
● [Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd]

Question 2:
● Initially, no contractual relationship between BDSB and JSB – but then they decided to contract directly
● Email – BDSB to JSB and Maha’s letter forms the creation of contract
○ Relevant under s.5
○ Not hearsay – not tendered for the truth of the matter stated
○ Mode of proof for both – s.91 – because they form an agreement – Illus. (a)
○ Then only s.90A for the email – three options

● For Maha’s letter – she must be called as a witness – if disputed, signature must be proved – s.67
Maha admits – s.68
● Witness to testify – s.60(1)
● Prove the signature – s.45,47,73

● Rosie’s letter
○ Hearsay – being tendered for the truth of the matter stated – Subramaniam – showing that JSB is
entitled to payment and that it will be made within 14 days
○ Exceptions must apply for it to be admissible
○ s.32(1)(b) – unlikely to be satisfied as she is in Sabah only – and no personal knowledge
○ S.73A – court can dispense with attendance even where witness is available – second hand
hearsay is allowed – no need for personal knowledge as long as it is part of a continuous record
etc. – supplier of the information must have personal knowledge
○ An admission – s.17(1) – of the debt being due and when it has to be paid

Question 3:
Part (a):
● Genius:
○ Expert opinion - S.45 EA - 2 requirements:
■ Category? Likely science - Chandrasekaran - broad enough to cover this
■ Specially skilled

○ DPP would want to dispute that he is not an expert. However, OTF, it states that
Genius is an expert. Hence, so long as CSB can prove that he is an expert, the
DPP will not have any valid ground to object.

● Rookie:
○ DPP will argue that he may not be an expert through experience - has not
obtained the required experience that connotes him being specially skilled -
hence, not an expert.
○ Lack of experience will only affect the weight of the evidence (and not its
 relevancy) - Junaidi; DMH
Part (b):
● Relevant - attacking credibility of the witness - S.146
● Discuss S.118 - competence - former spouse can be called as witness
● Marital Communications Privilege - S.122 - can only be waived if G consents.

Question 4:
Part (a):
● Demeanour of witness - but demeanour itself is not everything - Wong Muk Ping v AG
of HK (See pg 408 RG for judgement)
● Testimony of the witness - is it worthy of belief?
● Compare with other evidence - consistency
● S.146(a),(b),(c) - credibility, character, etc

Part (b):
● Trial judge has the benefit of seeing the demeanour of the witness and the appellate
courts are slow to interfere. (Furthermore, inconsistencies from the witness’ evidence
should be obvious from the notes of evidence, etc).
● Discuss points under (a).

Question 5:
Part (a):
● Teper v R; Recaliva Design
○ Not the best evidence available, risk of concoction & fabrication
○ Court not able to see the demeanor of witness/maker
○ Lord Normand, R v Teper - Hearsay is not the best evidence and it is not
delivered on oath. Truthfulness and accuracy of the person making the statement
cannot be tested by cross examination and his demeanor is lost.
○ Recaliva Design: relying on S.60(1)(a) – in line with ‘best evidence rule’

Part (b):
● Both testimonies - relevant under S.9 - identifying perpetrator
● Tendered for truth of the matter stated - hearsay - Subramaniam;
● Exception - S.32(1)(a) -
○ Cause of death of the maker comes into question - OTF, accused has only been
charged with causing an illegal abortion - however, discuss that this caused the
death of the maker - Yong Kong Tai v Salim bin Jalal; King v Samarakoon
Banda
○ Circumstances of the transaction which resulted in her death - Pakala Narayana
Swami -
Question 6:

● 3 issues:
1. Requirements of S.27;
2. Intan’s testimony;
3. Voluntariness of S.27

● Evidence sought to be tendered – information that led to discovery of the drugs

○ Relevancy and admissibility – s.27
○ What are the ingredients of s.27
■ information given by the accused
■ In the custody of the police
■ This information must lead to the discovery of a fact (they must find the drugs
where it was said to be concealed) – capable of being concealed – Mohd Farid
● Siew Yoke Keong – ingredients of s.27 needs to be proven by P but this does not include
voluntariness – no need for P to prove that the information given was voluntary
○ Reaffirmed in cases like Pathmanabhan / Francis (contrasting judgement in Mohd Desa -
must be proven by the prosecution but this was held to be wrong in law)
○ Accused can still rely on lack of voluntariness - voir dire - accused to prove on BOP.
○ Note: Court has discretion to admit/discard evidence under R v Sang

● Inspector Intan’s evidence which she recorded in her notebook (yellow part in question) :
○ Finding of credibility – is for question for Judge to decide can choose either one but must
be based on evidence
○ Note book – relevant for Refreshing memory, S.157 statement which is consistent
○ Prosecution is the person invoking, hence need to prove on BRD

NOTE:
● Pathmanabhan - conduct such as pointing to the place can be included under s.8 even
where statement is excluded under s.27
● where two persons make a joint statement – cannot be admissible under s.27
June/November 2016 - See 14/8 recording