LAW OF EVIDENCE I

INTRODUCTION /PRELIMINARY MATTERS

GENERAL INTRODUCTION
“All rights & liabilities are dependent upon and
arise out of facts”
Sir James Fitzjames Stephen
• The object of legal proceedings is to
determine the legal rights and liabilities of the
parties. These rights are in turn determined by
facts of the individual case.
SUBSTANTIVE RIGHTS
LAW FACTS /LIABILITIES
 Law can be generally divided into 2 main branches

SUBSTANTIVE
• area of law which determines
LAW
what are the rights and liabilities.

• procedural and determines how

ADJECTIVE facts will be established in court
LAW and how substantive law will be
applied to the facts.
 Trial
• Court trials involves which? Which is more
important?
• Note : trial is not only about substantive law.
• It is a marriage of both substantive and adjective law
.
• Why :
• Rights and liabilities are determined by applying
substantive law to facts of the individual case and
how facts are proved is determined by Adjective Law.
Note :Sir James Fitzjames Stephen
 ADJECTIVE LAW

Pleadings Procedure Evidence

(Statement of claim, (Regulates fact finding/
(Trial Process ,CPC ,CP )
Defence, Charge) What/How facts can be
proved)

Which is the most important ??

As a general rule the Law of Evidence applies equally to both civil
and criminal proceedings . Evidence regulates the fact finding
process of the court in the following manner:

a. it determines admissibility of facts

 
b. it determines the manner in which a fact may be proved
 
c. it determines how much proof will be required to establish a fact.
 
 
 Evidence

1.What facts 2.What type of Evidence ? 3.How much?

can be
established?
Evidence Regulates Fact Finding: 3 pillars of
Evidence

Relevancy

Admissibility

Weight
 Purpose of the law of Evidence:
a. to regulate proving of facts in judicial proceedings
Why??
Adversarial system of trial and not inquisitorial system.
 
b. to ensure like cases are treated alike

c. to limit evidence only to that which is relevant.

 
d. to provide safeguards against manufactured and unreliable
evidence .
 
e. to achieve justice and fairness
PRELIMINARY MATTERS
SOURCES
• The main source of the Law of Evidence in
Malaysia is the Evidence Act 1950(Act 56)

• It is based on the Indian Evidence Act .

• The Indian Act is the codification of the
Common Law.
 OTHER SOURCES
Other sources of the Law of Evidence include the following:
a. Criminal Procedure Code
b. Rules of Court 2012
c. Other Statutes :
• Dangerous Drugs Act 1952
• Kidnapping Act 1961
• Malaysian Anti - Corruption Commission Act 2009
• Sexual Offences Against Children Act 2017 etc
d. Common Law
 
 
 
 Who?
To whom does the EA 1950 apply to??
• AINAN BIN MAHMUD V SYED ABU BAKAR
[1939] MLJ 209
• Note :Evidence Act 1950 will only apply to the
Civil Courts and not to the Syariah Courts.
• (Syariah Court Evidence Act 1997)
 What?
What falls within the ambit of the EA 1950??

Q: Are illustrations part of the sections?

• Note : s.1 – s.167
• Most sections have illustrations
 s.7
• Facts which are the occasion, cause or effect, immediate or otherwise, of relevant
facts or facts in issue, or which constitute the state of things under which they
happened or which afforded an opportunity of their occurrence or transaction, are
relevant.
• ILLUSTRATIONS
• (a) The question is whether A robbed B.
• The facts that shortly before the robbery B went to a fair with money in his possession
and that he showed or mentioned the fact that he had it to third persons are relevant.
• (b) The question is whether A murdered B.
• Marks on the ground produced by a struggle at or near the place where the murder
was committed are relevant facts.
• (c) The question is whether A poisoned B.
• The state of B's health before the symptoms ascribed to poison and habits of B known
to A, which afforded an opportunity for the administration of poison, are relevant
facts.
MOHD SYEDOL ARIFFIN V YEOH OOI GARK
[1916]1 MC 165
 Does the Act apply to all matters in a Civil
Court???
• SECTION 2.   Extent
• “This Act shall apply to all judicial proceedings
in or before any court, but not to affidavits
presented to any court or officer nor to
proceedings before an arbitrator.”
 What are judicial proceedings?
• Not defined in EA1950
• CRIMINAL PROCEDURE CODE
• SECTION 2.  Interpretation: Judicial
Proceedings
• “means any proceeding in the course of which
evidence is or may be legally taken”
• RE LOH KAH KENG (DECEASED) (W02) [1990]
2 MLJ 237
•   s.122 EA
 122.  Communications during marriage.

• No person who is or has been married shall be

compelled to disclose any communication made to
him during marriage by any person to whom he is
or has been married; nor shall he be permitted to
disclose any such communication unless the person
who made it or his representative in interest
consents, except in suits between married persons
or proceedings in which one married person is
prosecuted for any crime committed against the
other.
 Held:
• An inquest is an investigation as to the cause
of death. A judicial proceeding is a trial to
determine rights & liabilities.
• At the end of a trial– verdict on liability
• At the end of an inquest – cause of death
• Inquest is not a judicial proceeding
• EA 1950 does apply but not strictly.
 Teoh Beng Hock Inquest
• https://www.youtube.com/watch?
v=maQK3jNrg9E
 AFFIDAVITS
• MALAYSIA BUILDING SOCIETY BHD V.
UNIVEIN SDN BHD [2003] 5 MLJ 394
• Evidence Act 1950 does not apply affidavits
 
• Reaffirms s.2 EA 1950
 What is an affidavit?
Statement in writing which is made under oath/
affirmation( sworn statement in writing)

Made before an authorized person

(Commissioner for Oaths/ Magistrate)

Person making an affidavit : deponent

 Note : 1
EA1950 does not apply to affidavits ,but that does
not mean affidavits cannot be tendered in
evidence.
Although as a GR evidence before the court should
be oral evidence given by witness in open court.
(See O.38 r.1 ROC / s.59&s.60 EA)
Exception : affidavit evidence can be admitted
under the provisions of the ROC under certain
circumstances. ( Eg : O.38 ROC)
 Note 2:
• General rule EA1950 does not apply to
affidavits but rules of evidence derived from
other sources will apply to affidavits. (ROC &
CPC etc)
• Example: GR no evidence of hearsay or
opinion in Affidavits (Order 41 ROC )
• Exception : affidavits containing hearsay is
allowed for interlocutory matters.
 Note :3
• Evidence of an inadmissible nature cannot be
tendered in court through the back door by
way of using affidavits.(Eg: hearsay)
• A.Paul pg 9: GR an affidavit cannot be
admitted if the deponent is not called as a
witness.
• MARNEEDI SATYAM v VENKATASWANI AIR
1949 Mad 689
• Exception :it falls under s.32 of EA 1950
 Note: 4
• GR : the Act does not apply to affidavits.
• Exceptions :s.32, s.73A ,s.91 &s.92 (judicial
interpretations)
Case Law :
MARNEEDI SATYAM v VENKATASWANI AIR 1949
Mad 689
PP v FORSTER [1988] 2 MLJ 594
CITIBANK NA V MOHD ABDULLAH ANG [1992]1
CLJ 116
 Common Law
To what extent can reference be made to the
Common Law?
• PP V YUVARAJ [1969]2 MLJ 89, PC
• JAYASENA V R [1970]1 AER 219 ,PC
 FACTS
• What does it mean ?
• s.3 EA 1950 "fact" means and includes -
• (a) any thing, state of things or relation of things capable of being
perceived by the senses;
• (b) any mental condition of which any person is conscious;
• ILLUSTRATIONS
• (a) That there are certain objects arranged in a certain order in a certain
place is a fact.
• (b) That a man heard or saw something is a fact.
• (c) That a man said certain words is a fact.
• (d) That a man holds a certain opinion, has a certain intention, acts in good
faith or fraudulently, or uses a particular word in a particular sense, or is or
was at a specified time conscious of a particular sensation, is a fact.
• (e) That a man has a certain reputation is a fact;
• SECTION 5.  Evidence may be given of facts in
issue and relevant facts.
• Evidence may be given in any suit or
proceeding of the existence or non-existence
of every fact in issue and of such other facts
as are hereinafter declared to be relevant,
and of no others.
 FACTS

facts in issue relevant facts

 Facts in Issue
• SECTION 3.  Interpretation
• Fact in issue  means any fact from which,
either by itself or in connection with other
facts, the existence, non-existence, nature or
extent of any right, liability or disability
asserted or denied in any suit or proceeding
necessarily follows;
• SIR RUPERT CROSS : fact in issue are all those
facts that :
• a) a Plaintiff in a civil action or a Prosecutor in
criminal proceedings must establish in order
to succeed , and
• b) any further facts that the Defendant
/Accused must establish to rely on a defence.
How to determine what are the facts in
issue?
• a. the pleadings/charge
• b. the substantive law
• c. admissions/ denial
PP V. DATO' SERI ANWAR IBRAHIM(NO 3)
[1999]3 CLJ 313
• https
://www.youtube.com/watch?v=rEfN2dK9ThQ
 Note :issue of relevancy
• PP v AZILAH HADRI & Anor [2012] 1 CLJ
358 ,HC 
• https://www.thestar.com.my/news/nation/20
07/06/27/witness-records-of-entry-to-malaysi
a-and-china-deleted
/

• Evidence of facts in issue : direct evidence

 Relevant fact:s.3
• Relevant fact : one fact is said to be relevant to
another when the one is connected with the
other in any of the ways referred to in the
provisions of this Act relating to the relevancy of
facts.
• Chapter II
• (s. 5 to s.55)
• s.5
• Focus : General relevancy (s.6-s.16)
• SIR RUPERT CROSS:
• Fact not itself in issue but from which the
existence or non existence of the fact in issue
may be inferred.
• Evidence of facts relevant : circumstantial
evidence
 Relevancy

Logical Legal
Common Sense 2 facts connected under EA1950
( relevancy sections)
 Note:
• Collateral facts: although not evidence of fact
in issue or fact relevant but will still be
allowed.
• Example: evidence of credibility
• : evidence of preconditions
 C.CLASSIFICTION OF EVIDENCE

• Oral/Documentary
• S.3 , s.59 ,s.60 s.s.61
 
• Direct / Circumstantial
 
• Original / Hearsay
• S.60
 
 
 BEST EVIDENCE RULE
• The best evidence rule refers to the principle
that the court admits the best evidence
available The classic illustration of the rule can
be found in Lord Hardwick’s statement:
• “the judges and sages of the law have laid down
that there is but one general rule of evidence
,the best that the nature of the case will admit”
• (OMYCHUND V BARKER 1745)
• Example : Rule against hearsay
 Question:
• Should the best evidence rule apply to :
• a. Admissibility ,
• Or
• b. Weight
What is the distinction between admissibility
and weight??
• Admissibility Weight
If it is not the 2nd best can be
best evidence it admitted but
is not admissible will be given
less weight
 CASE LAW
R V QUINN & BLOOM [1962] 2 QB 245
KAJALA V NOBLE [1982] 75 CR APP REP 149 , CA
PP V LIM KUAN HOCK [1976] 2 MLJ 114 
KPM KHIDMAT SDN.BHD V TEY KIM SUIE [1994]
2 MLJ 627
GNANASEGARAN v. PP [1997] 4 CLJ 6 CA