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EVIDENCE IEVIDENCE ILAW 4110LAW 4110Sect 1 & 2Sect 1 & 2

Md. Nadzri b. YusoffMd. Nadzri b. Yusoff

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Kinds of LawKinds of Law2 kinds of Laws2 kinds of Laws

SubstantiveSubstantive- Determines rights, duties and - Determines rights, duties and liabilities of persons.liabilities of persons.(i) Criminal Side(i) Criminal Side(ii)(ii) Civil SideCivil Side

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Adjective LawAdjective Law- Defines pleading, procedure and - Defines pleading, procedure and proof in court by which substantive proof in court by which substantive law is applied in practice.law is applied in practice.(i) Procedural Law(i) Procedural Law(ii) Evidence(ii) Evidence

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Law of EvidenceLaw of EvidenceDefinitionsDefinitionsObjectsObjectsPrinciplesPrinciplesMajor FunctionsMajor FunctionsStructureStructureArrangementArrangement

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DefinitionsDefinitions Blackstone: Blackstone: ““that which demonstrates, makes clear, or that which demonstrates, makes clear, or

ascertains the truth of the very fact or point ascertains the truth of the very fact or point in issue”.in issue”.

Bentham: “any matter or facts, the effect, Bentham: “any matter or facts, the effect, tendency or design of which produce in the tendency or design of which produce in the mind a persuasion either affirmative or mind a persuasion either affirmative or disaffirmative of the existence of some disaffirmative of the existence of some other fact”other fact”

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Stephen:Stephen: The law of evidence determines The law of evidence determines ‘‘how the parties are to convince the how the parties are to convince the

Court of the existence of that state of Court of the existence of that state of facts which, according to the facts which, according to the provisions of substantive law, would provisions of substantive law, would establish the existence of the right or establish the existence of the right or liability which they allege to exist’liability which they allege to exist’

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Taylor:Taylor: “ “ All the legal means, exclusive of All the legal means, exclusive of

mere argument, which tend to prove mere argument, which tend to prove or disprove any matter of fact, the or disprove any matter of fact, the truth of which is submitted to judicial truth of which is submitted to judicial investigation.”investigation.”

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Phipson:Phipson: “ “The two main senses of the words are: first, The two main senses of the words are: first,

the means apart from argument and the means apart from argument and inference, whereby the Court is informed as to inference, whereby the Court is informed as to the issues of fact as ascertained by the the issues of fact as ascertained by the pleadings; secondly, the subject matter of pleadings; secondly, the subject matter of such means…Evidence in the first sense, such means…Evidence in the first sense, means the testimony, whether oral, means the testimony, whether oral, documentary or real, which may be legally documentary or real, which may be legally received in order to prove or disprove some received in order to prove or disprove some fact in dispute”fact in dispute”

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ObjectsObjectsTo prevent laxity in the admissibility To prevent laxity in the admissibility

of evidenceof evidenceTo aid the court in drawing To aid the court in drawing

inferences from circumstancesinferences from circumstancesTo assess the value of direct To assess the value of direct

testimonytestimony

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PrinciplesPrinciplesSome of the important principles are Some of the important principles are

such;such;• Evidence must be confined to matters in Evidence must be confined to matters in

issue. Refer to s 5 Evidence Actissue. Refer to s 5 Evidence Act• Hearsay evidence must not be admitted Hearsay evidence must not be admitted

except in certain situationsexcept in certain situations• Best evidence must be tendered in all Best evidence must be tendered in all

casescases• No evidence is complete unless No evidence is complete unless

subjected to cross examinationsubjected to cross examination

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Major FunctionsMajor Functions It determines how It determines how

facts may be facts may be proved;proved;

• TestimonyTestimony• HearsayHearsay• ExhibitsExhibits• EtcEtc

facts which need facts which need not be proved;not be proved;

Part II Evidence Part II Evidence ActAct

(i)(i) S 56S 56(ii)(ii) S 57S 57(iii)(iii) S 58S 58

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StructureStructureWhat sort of evidence which

must be given

By who and in what manner the evidence must be proved

What facts maybe proved or not proved

According to Stephen, Law of Evidence is According to Stephen, Law of Evidence is the part of law of procedure which with a the part of law of procedure which with a view to ascertain individual rights and view to ascertain individual rights and liabilities.liabilities.

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ArrangementArrangementPart I-RelevancyPart I-Relevancy

Facts which may beproved

Fact in issue

Relevant Facts -ss 6-16,ss 17-31,ss 32-33,ss 34-48,ss -ss 6-16,ss 17-31,ss 32-33,ss 34-48,ss 39,ss 40-44,ss 45-51,ss 52-5539,ss 40-44,ss 45-51,ss 52-55

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Part II- On ProofPart II- On ProofTypes of evidence

to be given

Facts which need not be proved

•Judicially noticed ss 56,57•Facts admitted ss 58

Other facts if in issueor relevant may be

proved

Documentary evidenceSs 61-66, ss 67-73,

ss74-78 etc

Oral evidenceSs 59,60

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Part III-Production and Effect of Part III-Production and Effect of EvidenceEvidence

How?

Burden of Proof-ss 101-114

Estoppel-ss 115-117

Witnesses & Examination ofWitnesses

-ss 118-166

Improper admission and rejection of evidence-s 167

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Kinds of EvidenceKinds of EvidenceDirect and CircumstantialDirect and CircumstantialDirect and HearsayDirect and HearsayDocumentary HearsayDocumentary HearsayOral and DocumentaryOral and DocumentaryReal and PersonalReal and Personal

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Direct and CircumstantialDirect and Circumstantial (a) Direct Evidence(a) Direct Evidence Direct (Positive) if proved by;Direct (Positive) if proved by; * Actual production* Actual production * Testimony* Testimony * Admissible declaration of someone who * Admissible declaration of someone who

has perceived ithas perceived it Direct evidence is used in two senses;Direct evidence is used in two senses; * Testimony* Testimony * Statement by a witness as described in s * Statement by a witness as described in s

60 of the Evidence Act60 of the Evidence Act

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(b) Circumstantial (Indirect or (b) Circumstantial (Indirect or Presumptive)Presumptive)

According to According to MunirMunir, , ““circumstantial evidence does not prove the circumstantial evidence does not prove the

point the question but establishes it only by point the question but establishes it only by reference”reference”

It relates to the existence or non-existence of It relates to the existence or non-existence of a relevant fact only. Every relevant fact is a a relevant fact only. Every relevant fact is a piece of circumstantial evidence which is piece of circumstantial evidence which is even considered better than direct evidence.even considered better than direct evidence.

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CasesCasesDato’ Mokhtar bin Hashim v. PP Dato’ Mokhtar bin Hashim v. PP

[1983] 2 MLJ 232[1983] 2 MLJ 232Eng Sin v. PP [1974] 2 MLJ 306Eng Sin v. PP [1974] 2 MLJ 306Sunny Ang v. PP [1966] 2 MLJ 195Sunny Ang v. PP [1966] 2 MLJ 195

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Direct and HearsayDirect and Hearsay(a) Direct(a) Direct It may also refer to “original It may also refer to “original

evidence”, proof of facts by first evidence”, proof of facts by first hand meanshand means

It consists of facts perceived by a It consists of facts perceived by a witness with his own sense-refer to s witness with his own sense-refer to s 60 of the Evidence Act60 of the Evidence Act

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(b)Hearsay(b)HearsayThe oral or written statements of one The oral or written statements of one

who is not called as a witness is a who is not called as a witness is a hearsay.hearsay.

In In Subramaniam v. PP [1956] 22 MLJ 220Subramaniam v. PP [1956] 22 MLJ 220;;* If the object of evidence is to establish * If the object of evidence is to establish

the TRUTH of what is contained in the the TRUTH of what is contained in the statement = it is hearsay and NOT statement = it is hearsay and NOT admissible.admissible.

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* If the object of evidence is to * If the object of evidence is to establish the FACT that the establish the FACT that the statement was made = it is NOT statement was made = it is NOT hearsay and admissible.hearsay and admissible.

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ReasonsReasons In In REJECTINGREJECTING Hearsay: Hearsay:(i) it is second hand evidence.(i) it is second hand evidence.(ii) the truth is diluted and (ii) the truth is diluted and

diminished with each repetitiondiminished with each repetition(iii) it tends to open the door for (iii) it tends to open the door for

fraudfraud(iv) it is not given on oath(iv) it is not given on oath

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In In ACCEPTINGACCEPTING Hearsay: Hearsay:(i) Necessity or expediency as in s 32 (i) Necessity or expediency as in s 32

and s 33 of Evidence Actand s 33 of Evidence Act(ii) The circumstances under which a (ii) The circumstances under which a

statement was made, furnish a statement was made, furnish a guarantee to its truthguarantee to its truth

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EXCEPTIONEXCEPTION to exclusion of Hearsay to exclusion of HearsayHearsay evidence is deemed to be Hearsay evidence is deemed to be

original as in the following situation;original as in the following situation;(i) Statement forming part of res gestae(i) Statement forming part of res gestae(ii) Statement of victim in rape or (ii) Statement of victim in rape or

indecent assault, can be proved by the indecent assault, can be proved by the victim or anyone by conduct.victim or anyone by conduct.

(iii) Statement showing mental or bodily (iii) Statement showing mental or bodily feeling.feeling.

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Statement made in presence of party Statement made in presence of party or agentor agent

Statement to corroborate that a Statement to corroborate that a witness had affirmed something on witness had affirmed something on former ocassion.former ocassion.

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Documentary HearsayDocumentary Hearsay(a) Statement Hearsay(a) Statement HearsayDocumentary evidence of the serial Documentary evidence of the serial

numbers impressed in car engines numbers impressed in car engines compiled by workmen not called as compiled by workmen not called as witnesses held inadmissible as witnesses held inadmissible as hearsay in hearsay in Myers v DPP [1956] AC Myers v DPP [1956] AC 10011001

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(b) Absence of statements in (b) Absence of statements in evidenceevidence

(c ) S 32 (b), 73 A(c ) S 32 (b), 73 A

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Oral and DocumentaryOral and Documentary(a) Oral (a) Oral Refer to S 3 Evidence Act Refer to S 3 Evidence Act It includes;It includes;* Testimony * Testimony * Hearsay* Hearsay* Opinion* Opinion

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(b) Documentary(b) DocumentaryRefer to s 3 Evidence ActRefer to s 3 Evidence Act It can be classified under two heads;It can be classified under two heads;(i) Primary and Secondary(i) Primary and SecondaryPrimary evidence is defined in s 62 Primary evidence is defined in s 62

Evidence Act, it is the evidence Evidence Act, it is the evidence which is required to be given first, which is required to be given first, best evidence of a documentbest evidence of a document

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Secondary evidence is defined in s 63 Secondary evidence is defined in s 63 Evidence Act. It comprises copies or Evidence Act. It comprises copies or oral evidence of contents of oral evidence of contents of documents and admissible only in documents and admissible only in certain cases as specified in s 65 certain cases as specified in s 65 Evidence ActEvidence Act

(ii) Public and Private(ii) Public and PrivatePublic documents are defined in s 74 Public documents are defined in s 74

meanwhile private documents are meanwhile private documents are defined in s 75 Evidence Act.defined in s 75 Evidence Act.

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Real and PersonalReal and Personal(a) Real(a) Real It also known as demonstrative or It also known as demonstrative or

objective evidence where it objective evidence where it comprises of material objects or comprises of material objects or things (other than documents) things (other than documents) produced for inspection by the courtproduced for inspection by the court

Refer to s 60(3) Evidence ActRefer to s 60(3) Evidence Act

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(b) Personal(b) Personal It comprises testimony of witnesses, It comprises testimony of witnesses,

which may be either in the way of which may be either in the way of discourse or by signs.discourse or by signs.

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Evidence Act & Common LawEvidence Act & Common Law Bank of England v. VaglianoBank of England v. Vagliano (1891) AC 107 H/L(1891) AC 107 H/L Issue: In construing a CodeIssue: In construing a Code Principles: Principles: (i) Examine the language(i) Examine the language (ii) The natural meaning uninfluenced by (ii) The natural meaning uninfluenced by

any considerations derived from the any considerations derived from the previous state of law previous state of law

(iii) The law should be ascertained by (iii) The law should be ascertained by interpreting the language usedinterpreting the language used

(iv) Disregard what the law was before(iv) Disregard what the law was before

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Mohamed Syedol Ariffin v Yeo Ooi GarkMohamed Syedol Ariffin v Yeo Ooi Gark (1916) 2 AC 575 P/C(1916) 2 AC 575 P/C Issue: In construing a CodeIssue: In construing a Code Principles:Principles: (i) Rule and principles of the colony must be (i) Rule and principles of the colony must be

accepted as it is found in its own Evidence accepted as it is found in its own Evidence OrdinanceOrdinance

(ii) English principle not permissible if true (ii) English principle not permissible if true and actual meaning of statute be varied or and actual meaning of statute be varied or denied effectdenied effect

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Jayasena v RJayasena v R (1970) AC 618 P/C Sri Lanka(1970) AC 618 P/C Sri Lanka Issue: Ss 3 & 107 Sri Lanka Evidence Act 1950Issue: Ss 3 & 107 Sri Lanka Evidence Act 1950 Principles: Principles: (i) Common law is malleable to the extent that the (i) Common law is malleable to the extent that the

Code is notCode is not (ii) Code embodied the old criminal law and cannot (ii) Code embodied the old criminal law and cannot

be construed in the light of a decision that have be construed in the light of a decision that have changed the common lawchanged the common law

(iii) The burden that is shifted is the legal burden and (iii) The burden that is shifted is the legal burden and to discharge that presumption the quantum of proof to discharge that presumption the quantum of proof is on the balance of probabilities (higher than BRD) is on the balance of probabilities (higher than BRD)

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Cheng Swee Tiang v PPCheng Swee Tiang v PP (1964) MLJ 291 CCA(1964) MLJ 291 CCA Issue: Illegally obtained evidenceIssue: Illegally obtained evidence Principles:Principles: (i) No provision in the Evidence Act to exclude (i) No provision in the Evidence Act to exclude (ii) Court did have discretion to exclude (ii) Court did have discretion to exclude

(majority)(majority) (iii) Evidence Act did not provide for discretions, (iii) Evidence Act did not provide for discretions,

Court has no power (Ambroze J dissenting)Court has no power (Ambroze J dissenting)

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Yuvaraj v PPYuvaraj v PP (1969) 2 MLJ 89 P/C(1969) 2 MLJ 89 P/C Issue: Rebutting presumptionIssue: Rebutting presumption Principles:Principles: (i) There is a distinction between BRD and BOP (i) There is a distinction between BRD and BOP

though not referred in s 3 EAthough not referred in s 3 EA (ii) No enactment is exhaustive(ii) No enactment is exhaustive (iii) Evidence Act is part of the general corpus of (iii) Evidence Act is part of the general corpus of

the law- where the Act is silent or fails to be the law- where the Act is silent or fails to be explicit, can refer to Common lawexplicit, can refer to Common law

(iv) No intention of legislature to do away with well-(iv) No intention of legislature to do away with well-known concepts of the Common law known concepts of the Common law

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PP v SanassiPP v Sanassi (1970) 2 MLJ 198(1970) 2 MLJ 198 Issue: Unsworn statement from the dockIssue: Unsworn statement from the dock Principles: Principles: (i) Statement of the accused from the dock is (i) Statement of the accused from the dock is

not evidence. A witness testifies from the not evidence. A witness testifies from the witness box and subject to X-examwitness box and subject to X-exam

(ii) Code is exhaustive only what is contained (ii) Code is exhaustive only what is contained in the Code itself. Other evidential in the Code itself. Other evidential provisions in CPC, DDA, Seditious Act etc provisions in CPC, DDA, Seditious Act etc

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PP v Glenn Knight JeyasingamPP v Glenn Knight Jeyasingam (1999) 2 SLR 499(1999) 2 SLR 499 Issue: Reception of Common Law in Issue: Reception of Common Law in

SingaporeSingaporePrinciples:Principles: (i) The Code is a facilitative Act(i) The Code is a facilitative Act (ii) Where the Code is silent we can (ii) Where the Code is silent we can

receive the Common Lawreceive the Common Law