Law of Evidence – written notes – Emily Law

Topic 5: Relevancy

Introduction

 S. 3 – ‘relevant’ fact = (refer Act)

 S. 5 – evidence to shows the existence/non-existence of a fact = relevant.
 Relevant fact = admissible; irrelevant fact = not admissible.

Preliminary Matters

 S. 136 – explain the relationship between relevancy and admissibility.

 S. 136(1) – means: court has the discretion to question the relevancy of evidence sought
to be admitted. The party who wants to admit the evidence must establish that the
evidence falls under one of the relevancy section in EA. Failure to so will render the
evidence be rejected on the ground of irrelevancy.
 PP v Dato Seri Anwar Ibrahim
 Held: The court has the power to inquire into the relevancy of a proposed witness.
This is to ensure that evidence is confined to relevant facts & does not stray
beyond the proper limits of the issues at trial.

Failure to Object

 Issue: whether failure to object the inadmissible evidence amounts to waiver.

 Answer:
 Criminal case – not fatal
 Civil case – fatal
 Alcontara
 Fact: the evidence in question was hearsay evidence which was inadmissible and
prejudicial to appellant.
 Held (FC): inadmissible evidence cannot become admissible by reason of failure
to object. It is the duty of court to exclude such evidence.

 Note: however, failure to object may operate as waiver.

A. Failure to object – civil cases

 S. 58(1) – no fact need to be proved if the parties agree to admit at hearing.
 S. 58(2) – s. 58(1) only applicable to criminal proceedings.
 Means: no objection = agree to admit by both parties = need not be proved
 Boonsom Boonyanit
o Held: in civil case, failure to object on mode of proof (procedure of tendering
evidence) may be fatal. Such objection must be raised before evidence is marked

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Law of Evidence – written notes – Emily Law

as exhibit. If there is no objection, it amounts to a waiver where the other party

can no longer challenge such exhibit on appeal.
 YB Dato Hj Husam Hj Musa
o In civil case, once the evidence is marked as exhibit, the court cannot exclude
such evidence.

B. Failure to object – criminal case

 Noliana v PP
o Held: suggests that failure to object to the mode of proof in a criminal case is not
fatal and does not amount to waiver.
 Note: although s. 58(2) seems to suggest that s. 58(1) only applies to criminal case, it is
important to note the new s. 73AA which have the same effect as s. 58(1).

Illegally Obtained Evidence

 Issue: whether evidence that is relevant but obtained illegally is admissible.

 Malaysia – illegally obtained evidence is admissible.

 SM Summit Holdings
o Reason = Judicial integrity will be undermined if guilty people are getting away
with serious crime just because illegally obtained evidence is not admissible and
thus, the person cannot be convicted due to lack of evidence.
o There is a need to strike a balance. The criminal justice system must be fair to
both the society and to the accused.

 Kuruma v R
o The test to consider whether the evidence is admissible = whether it is relevant to
the matter in issue. If it is, such evidence is admissible. The court is not concerned
with how the evidence was obtained.
o It applies to both criminal and civil case.
o However, in criminal case, the judge has the discretion to exclude illegally
obtained evidence if it results in unfairness to the accused.
o Eg: when the police ticks accused to give a document/statement = trickery =
inadmissible.

 The decision in Kuruma is affirmed in PP v Hj Kassim.

 Noor Mohamed v The King

o The judge must consider whether the evidence which proposed to be adduced is
sufficiently substantial.

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o If the case relied solely on the evidence and the case would collapse without the
evidence, such evidence is admissible.
o If the evidence is not important as there are other evidences, the judge should
exercise his discretion to exclude such evidence.
o In another word, whether or not the evidence is substantial is a question of fact to
be decided by the judge.

 R v Sang
o The example given by the judge in Kuruma refers to confession.
o Therefore, judicial discretion to exclude illegally obtained evidence is confined to
only confession/admission and does not extend to other evidence.
o The test = whether the prejudicial effect outweigh the probative value of the
evidence.
o Comment: the judge in this case wrongly understood the example given in
Kuruma. The example in Kuruma does not mean confession.

 Note: Impact of R v Sang

 This case narrowed the application of Kuruma.
 The judge may exercise his discretion to exclude illegally obtained evidence only
when the evidence is obtained from the accused and after his arrest.
 = only for confession/ admission/ information statement

 The test in R v Sang is incorporated in Malaysian case of Ramli bin Kechik v PP

 Goi Ching Ang v PP

 Fact: the accused was charged with possession of firearms. Upon info, the PO
raided the house. The accused said: ‘pistol disimpan dalam speaker box’. Defence
argues that such statement amounts to illegally obtained evidence as it was not
made voluntarily. PP argues that the statement amounts to s. 27 and it does not
need to be made voluntarily.
 Held: the statement made involuntarily is excluded.
 Further held:
o S. 27 (information statement) is independent from s. 24 (confession
obtained illegally is not admissible)
o Under s. 27, the info statement need not to be made voluntarily and it is
still admissible.
o However, the court has inherent discretion to exclude evidence which is
prejudicial or unfair means or obtained in an oppressive manner/by trick.

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Law of Evidence – written notes – Emily Law

 Francis Antonysamy v PP
o Goi Ching Ang cannot be understood to mean the s. 27 statement must be
excluded in all instances where it was supplied involuntary. It must be noted that
voluntariness is not a condition of admissibility.
o Therefore, the circumstances of involuntariness must be indeed extraordinary to
exclude a statement.

 Krishna Rao v PP
o Admission of cautioned statement and discovery statement is quite distinct.
o Admission of cautioned statement requires voluntariness that there is no
oppression inducement, threat/promise (TIPO)
o Admission of discovery statement does not require these prerequisites. However,
the court has the discretion to exclude such evidence if its prejudicial effect
outweighed its probative value.
o Comment: correct judgment.

 Hanafi v PP
 Fact: a girl was kidnapped, raped and killed by bus driver. The defence argued
that the blood sample was obtained illegally as the accused did not consent to the
taking of blood and was handcuffed.
 Held: evidence relating to blood sample taken from accused is admissible as it is
relevant even if it was taken without consent. The mere fact that accused is being
handcuffed does not on its own disclose any improper conduct of PO. Therefore
the blood sample = admissible.

 Dato Seri Anwar Ibrahim v PP (2015)

 Fact: DNA of accused from toothbrush, towel & mineral water bottle was
collected during lock-up.
 Issue: whether such DNA evidence obtained by unfair mean is admissible.
 Held (FC): although the exhibit recovered from lock-up was illegally obtained, it
remains admissible if it is found to be relevant under s. 5.

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Law of Evidence – written notes – Emily Law

Relevancy Sections

1) S. 6 – facts forming part of the same transaction

 The principle in s. 6 is known as res gestae rule.

 Illustration (a)
 Illustration (c)

 Chin Choy v PP
o There is no universal test to determine whether or not the facts form part of the
same transaction.
o However, there is a guideline - whether there is:
i. Proximity of time
ii. Proximity of place
iii. Proximity of action
iv. Community of purpose/design

 Tan Geok Kwang v PP

 Fact: the accused was charged with possession of firearm.
 Held: The evidence that the accused threw a hand grenade at the police when
polices were chasing him is admissible as part of the res gestae because the
groups of facts were so connected that it formed this transaction.

 Kok Ho Leng
 Fact: PO received the info and raided accused’s house and arrested him. The PO
was hanging in the house and conducted search. Several phone calls were
received by the accused with people wanting to bet.
 Held: these facts were relevant under s. 6 although it is after the arrest as it
fulfilled the elements in Chin Choy test.

 Hamsa Kunju
 Fact: the accused was charged with causing hurt to some persons at 9.45pm.
 Held: evidence to show that there was a fight between accused and these persons
in the morning is relevant as it was so connected that it formed part of the same
transaction.

 PP v Sam Hong Choy

 Fact: the accused robed the victim and the victim screamed: ‘minta tolong kejar’.
 Held: this evidence is relevant as it was so connected that it formed part of the
same transaction by applying illustration (a) under s. 6.

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Law of Evidence – written notes – Emily Law

 Aziz bin Muhamad Din v PP

 Fact: victim was raped on 31/1. That night, she was spent with accused. On 3/2,
she went home. Later, her father threatened and asked her where she went. She
told her father that she had been raped.
 Issue: whether victim’s statement to her father is relevant as it was made 3 days
after the rape.
 Held:
o The court notes the difference between a complaint and statement.
o A complaint = made spontaneously and voluntarily.
o A statement = not spontaneous and not voluntary.
o Vitim’s statement was not made voluntarily as she had been threatened by
her father. Therefore, it is not admissible.

2) S. 7 – occasion, cause or effect

 S. 7 – 3 limbs:
a) Occasion, cause/effect (immediate/otherwise)
b) State of things
c) Opportunity
 Note: s. 7 is applicable to both civil and criminal cases.

 Saw Thean Teik

 Fact: the accused was charged with dangerous driving. The evidence showed that
the accused was intoxicated and caused his dangerous driving.
 Held: the evidence is relevant as it falls within ‘occasion, cause/effect’ under s. 7.

 Dr Jainand v R
 Fact: the accused was charged with murder. The evidence showed that the victim
had given some money and jewellery to Dr Jainand and demanded back from him.
 Held: the evidence is relevant as it shows ‘occasion, cause/effect’ under s. 6.

 Sidik Sumar – the evidence of footprints at or near the crime scene is relevant under
illustration (b) of s. 7 to show that these footprints originated from a particular place or
led to another.
 Same goes to Toh Kee Huat – this case referred to finger prints.
 Same goes to Yusufalli – this case referred to tape recorder.

 Aziz bin Muhamad Din v PP

 Fact: (refer in front)
 The fact that the sexual complainant had spent a night with the accused shows
‘opportunity’ under s. 7.

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Law of Evidence – written notes – Emily Law

3) S. 8 – motive, preparation, conduct

 S. 8 – 3 limbs:
a) Motive
b) Preparation
c) Conduct (previous/subsequent)

a. Motive – s. 8(1)

 Boota Singh
 Held: the report made by the deceased against the accused 9 months before the
murder = admissible as showing the relations between the parties and in support
of motive under s. 8.

 Wong Foh Hin

 Fact: the accused was charged with murder of his daughter. 3 months before the
murder, the wife went to Ketua Kampung, complained that her husband raped her
daughter. The Ketua Kampung gave warning to the husband. 3 months later, the
husband raped his daughter again. The Ketua Kampung decided to make a police
report. The daughter was found dead before the report was made.
 Held: the evidence 3 months ago which show that the accused had incestuous
relationship with the victim = admissible as it show that he had a motive for
killing her.

 Lim Kong v PP
 the evidence of financial instability was relevant as it shows the motive of
kidnapping.

 Sunny Ang v PP
 Fact: the accused was convicted on murder based on circumstantial evidence. The
facts of the case show accused’s ‘motive’ to murder victim.
 Some of the facts are:
o Accused bought the deceased insurance against accidents. Less than 24
hours after deceased’s disappearance, the appellant made insurance claim.
o Deceased did not know how to dive but accused allowed her to dive in
dangerous water.
o The accused did not go down to the waters himself when deceased failed
to resurface.

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b. Preparation – s. 8(1)
 Illustration (c) & (d)
 Juraimi bin Hussin v PP
 Fact: this case involves the murder of one Dato’ Mazlan. The body of the
deceased was buried in a hole soon after he was killed. It means that the hole must
have been dug earlier.
 Held: this facts show the ‘preparation’ under s. 8(1).

c. Conduct – s. 8(2)
 Explanation 1 & 2
 Illustration (e), (j), (k)
 Chanderasekara v PP
 Fact: a government servant was charged with corruption. He came to office 1 day
and told his colleagues that he struck lottery and won some money. He bought
diamond rings for his wife.
 Held: these statements support a claim under illustration (e) of s. 8(2) – ‘conduct
subsequent’.

 Juraimi bin Hussin v PP

 Fact: this case involves the murder of one Dato’ Mazlan. The body of the
deceased was buried in a hole soon after he was killed. It means that the hole must
have been dug earlier.
 Held: this fact also shows the ‘conduct’ under s. 8(2).

 Aziz bin Muhamad Din v PP

 Fact: victim was raped and spent a night with accused. Later, her father
threatened and asked her where she went. She told father that she had been raped.
 Held: Vitim’s statement was not made voluntarily as she had been threatened by
her father. Therefore, it is not admissible.
o The court notes the difference between a complaint and statement.
o A complaint = made spontaneously and voluntarily, involves emotion. = conduct.
o A statement = not spontaneous and not voluntary, does not involve emotion = not
a conduct.

 Bala Matik – the evidence of the conduct of pointing to the parang = admissible.
 Cf: Azilah Hadri (Altantuya’s case) – the evidence of the conduct of pointing to a spot +
the words ‘itulah tempat perempuan itu diletupkan’ = not admissible.
 Note: it means, only bare act of pointing amounts to conduct & admissible, nothing more.

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Law of Evidence – written notes – Emily Law

4) S. 9 – facts necessary to explain/introduce

 S. 9 – 5 types of facts which is relevant = facts which:
a. Explain/introduce
b. Support/rebut an inference
c. Establish the identity of anything/person
d. Fix the time/place
e. Show the relation of parties

a) Facts which explain/introduce

 Illustration (a) & (f)

b) Facts which support/rebut an inference

 Illustration (c)
 Choo Chang Teik
 Fact: PO suddenly raided a house without wearing uniform and carried crowbar.
The 2 persons in the house ran off. PP alleged that they ran away because they
were guilty.
 Held: one of the persons in the house had been assaulted and the other one heard
the shout. Therefore, when a person sees there are people suddenly run in the
house, naturally, the person will run. This explanation is held to be valid.

c) Facts which establish identity of thing/person

 PP v Pathmanabhan (Sosilawati’s case)
o Fact: The accused was identified based on her watches/jewellery.
o It shows that identity of a person can be established by things.

There are 5 ways to identify a person:

i. Fingerprint
 Toh Kee Huat
 Fact: The accused was charged for stealing car. 100 fingerprints were found from
the car. However, only 1 fingerprint found from the inner surface of the car,
which belonged to the accused.
 Held: such evidence identify the accused and sufficient to convict the accused.

ii. Voice
 Teng Kum Seng
 Fact: the accused was arrested and charged with extortion. He demanded the
money from victim via phone call. Several accused were brought to the victim to
identify the voice. All the 3 victims identified the same accused.
 Held: the court accepted such evidence.

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iii. Photo
 Lai Ah Kam
o It is acceptable for PO to use photograph to identify the suspect. Such evidence
may be brought to the court.
o However, if the suspect is already in custody, the appropriate way to identify the
suspect is via identification parade, not via photo.
o Further, PO cannot induce/influence the victim.

 Girdari v PP
 Fact: the suspect’s photo contained police number which showed his previous
record of crime.
 Held: such photo is prejudicial against the suspect and it cannot be admitted.

 R v Cook – photos/videos recorded the crime may be used to identify suspect.

 Taylor – CCTV may be used an evidence to identify suspect/crime.
 Ahmad Najib v PP
o The CCTV recording of kidnapping case may be admitted.
o However, it must satisfy the ‘admissibility’ under s. 90A as CCTV amounts to
computer generated evidence.

iv. Visual identification

 R v Turnbull (Turnbull’s Guidelines); adopted in Dato Mokhtar Hashim; Jaafar Ali
1. The judge must warn the trier of fact of the special need for caution before
convicting the accused on identification evidence.
2. The judge must access the quality of evidence.
o Eg: how long did the witness have accused under observation, at what
instance, what light, was the observation impeded in any way, any special
reason for remembering the accused, how much time elapsed between
original observation and subsequent identification, any discrepancy
between the description of the accused given by witness and his actual
appearance.
3. If the quality of evidence is poor, there must be supporting evidence to support a
conviction.

v. Dock Identification
 = identification of an accused for the first time in court at the trial.
 PP v Richard - Mere evidence of identification in court for the 1 st time is not sufficient to
convict the accused unless the accused is a person known to him (recognition).
 Arumugam - Dock ID is not desirable. It is a good practice to hold an ID parade. (ony
good practice, not mandatory)
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Law of Evidence – written notes – Emily Law

vi. ID parade
 Arumugam - Dock ID is not desirable. It is a good practice to hold an ID parade. (Only
good practice, not mandatory)
 PP v Sarjeet Singh – if suspect is known to the witness, ID parade is not necessary.

 Joachim – the procedure of ID parade was summarized as:

1. All persons at ID parade should be of the same ethnic group. The disparity of age
should not be large.
2. The ID parade must be held at the earliest opportunity and all available witnesses
should be required to attend. Separate ID parade must be held where there are 2 or
more suspects.
3. The witnesses must not be given prior assistance.
4. The suspect should be placed among other persons in a row, not less than 9/10.
5. The witnesses should be brought in one by one.
6. The officer in charge must ensure that the ID parade is properly and fairly
conducted and recorded.

 Jaafar Ali – ID parade was flawed as the complainant had seen the accused prior to that.
 Chan Sin
 Fact: the accused was a 58 years old Chinese man. The ID parade consists of 8
persons: 1 Sikh, 3 Malays, 2 other Chinese men (both younger) and 1 Chinese
woman.
 Held: the ID parade was flawed.

5) S. 10 – where 2/more persons have conspired together to commit an offence, anything

said, done/written by any one of them, in reference to their common intention, is a
relevant fact.

6) S. 11 – applicable when alibi is raised. Refer: Illustration (a)

7) S. 14 – state of mind
 S. 14 – facts showing any state of mind towards a person/showing the existence of state
of body/bodily feeling = relevant fact.
 Ler Wee Teang Anthony
 Fact: the accused was charged with conspiring murder of his wife. He had
mentioned to his friends the idea of hiring someone to kill his wife.
 Held: his statement can be admitted as it is ‘particular’ and go to the state of
mind.

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