EVIDENCE 1 (OUTLINE)

THE HISTORICAL BACKGROUND

THE EVIDENTIAL CONCEPT

ILLEGALLY OBTAINED EVIDENCE

HEARSAY EVIDENCE

RES GESTAE

RELEVENCY SECTIONS(SECTION 7, 8 & 9)

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EVIDENCE 1 (OUTLINE)

SIMILAR FACT EVIDENCE

ADMISSION & CONFESSION

EXPERT’S OPINION

JUDICIAL NOTICE

DYING DECLARATION

History of Act• The Evidence Act 1950 is the main source of the law

of evidence in Malaysia. The Evidence Act 1950 is modeled on the Indian Evidence Act which is a codified form of English Law.

• Per Thomson CJ (as he then was) in Looi Wooi Saik v PP [1962] MLJ 337, 339 (CA) stated:

“In this country the question is governed by the terms of the Evidence Ordinance which is the same as the Indian Evidence Act…It is generally accepted that the Indian Act was drafted by Sir James Stephen in 1872 with the intention of stating in a codified form of English law relating to evidence as it stood at that date”.

• The Indian Evidence Act, originally passed by the British parliament in 1872, contains a set of rules and allied issues governing admissibility of any evidence in the Indian courts of law.

Sir James Fitzjames Stephen, (March 3, 1829 - March 11, 1894

Purpose of rules of evidence • Sharma J in PP v Sanassi [1970] 2 MLJ 198 provides the

purposes of the law of evidence are:• To regulate the proving of facts in judicial proceedings so

that the relevant substantive law can be applied to proved facts.

• To ensure justice by providing for set of rules so that cases are treated alike where the rules of evidence are concerned.

• To limit or restrict the investigations made by the courts within the bounds prescribed by general convenience. In other words, to limit the evidence to materials facts and not to waste time discussing issues, which are too remote or which would raise multiplicity of issues.

• To ensure the tendering of the best evidence possible.

• To protect the accused as well as the public and to ensure a fair trial.

Law of Evidence: Is It Substantive or Adjective?

• In all lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the lex fori, i.e. the law of the state in which the case is being litigated.

• All questions of evidence to determine the admissibility and probative value of evidence and whether a witness is competent, are dealt with under the lex fori. Foreigners are tried to our procedure and law of evidence.

• See Bain v. Whitehaven and Furness Junction Ry. Co. (1850) 3 H.L. Cas. 1.

The Role of the Common Law• There have been frequent references to the common

law by the local courts and the common law plays a significant part in law of evidence which cannot be ignored. However it is submitted that the courts should seeks the answer in the Evidence Act 1950 first and should only refer to the common law where it is absolutely necessary (where there is an ambiguity or where there is a lacuna).

• See The Governor and Company of the Bank of England v Vagliano Brothers [1891] AC 107; Jayasena v. R [1970] 1 All ER 219; PP v Sanassi [1970] 2 MLJ 198; PP v Yuvaraj [1969] 2 MLJ 89 & PP v Glenn Knight Jeyasingam [1999] 2 SLR 499.

EVIDENCE.Section 3 of EA 1950,

Evidence includes:• (a) all statements which the court permits or requires to be

made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence;

• (b) all documents produced for the inspection of the court: such documents are called documentary evidence;

• However, the use of the word ‘includes’ is intended to make the definition of ‘evidence’ in the section extensive. This means that the meaning of the word ‘evidence’ in the section goes beyond the narrow statutory meaning explicitly set out.

• This view is based in the case of Chin Seow Noi v PP [1994] 1 SLR 135 where Yong Pung How CJ said at page 156 that “The use of the single word ‘includes in our section 3 is clearly intended to make the definition of evidence an extensive one”.

Types of evidence

DOCUMENTARY EVIDENCE

ORAL EVIDENCE

CIRCUMTANCIAL EVIDENCE

HEARSAY EVIDENCE

PHYSICAL EVIDENCE

PRIMARY & SECONDARY EVIDENCE

SIMILAR FACT EVIDENCE

Facts in issue & relevant facts• Section 5 of EA 1950, Evidence may be given of facts in issue

and relevant facts. It provides that:

“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”.

o This section lays down the rule that evidence may be given only of fact in issue and others facts declared by this Act to be relevant, and no other.

Facts in issue• Fact in issue in civil proceeding - It is identifiable from the pleadings. The

whole point of which is to set out the parties’ allegations, admissions, and denials. Matter which are left open in dispute.

- See How Paik Too v Mohideen [1968] 1 MLJ 51, 52.

• Fact in issue in criminal proceeding - In any event, whenever there is a plea of not

guilty, everything is in issue and the prosecution have to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent.

- See R v Sims [1946] 1 All ER 697, 701.

Relevant facts• Section 3 of EA 1950 provides that: - relevant mean “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”.

• Whatever is logically probative is not necessarily admissible in evidence unless it is so declared under the Act. Matters that are logically relevant but not legally admissible include privileges, hearsay and character evidence.

• PP v Haji Kassim (1971) 2 MLJ 115 stated that “If any fact is sought to be introduced in evidence it must be relevant and admissible under section 5”.

• Chong Siew Fai CJ in Thavanathan a/l Subramaniam v PP [1997] 2 MLJ 401 at page 409 stated that “Of the law of evidence, the cardinal rule relating to relevancy is that subject to exclusionary rules, all evidence which sufficiently relevant to the facts in issue is admissible”.

Continue…• Per Thesiger J in R v Harz [1966] 3 All ER 433, 449 stated that: - “The main general rule governing the entire subject is that evidence which is

sufficiently relevant to an issue before the court is admissible and all that is irrelevant or insufficiently relevant should be exclude. Thus the word relevant is to all intents and purposes synonymous with the phrase of probative value”.

o Lord Simmon of Glaisdale in DPP v Killbourne [1973] AC 729 “evidence is relevant if it is logically probative or disapprobative of some matter which requires proof”.

o Per Lawton LJ in R v Turner [1975] 1 ALL ER 70 states: - “Relevance, however, does not result in evidence being admissible: it is a

condition precedent to admissibility. Our law excludes evidence of many matters which in life outside the court sensible people take into consideration when making decisions. Two broad heads of exclusion are hearsay and opinion”. Facts declared to be relevant by the Act are contained in section 6 to 55 (Part One, Chapter Two).