11
EVIDENCE IEVIDENCE I
LAW 4110LAW 4110
Sect 1 & 2Sect 1 & 2
Md. Nadzri b. YusoffMd. Nadzri b. Yusoff

22
Kinds of LawKinds of Law
2 kinds of Laws2 kinds of Laws
SubstantiveSubstantive
- Determines rights, duties and liabilities of- Determines rights, duties and liabilities of
persons.persons.
(i) Criminal Side(i) Criminal Side
(ii)(ii) Civil SideCivil Side

33
Adjective LawAdjective Law
- Defines pleading, procedure and proof in- Defines pleading, procedure and proof in
court by which substantive law is appliedcourt by which substantive law is applied
in practice.in practice.
(i) Procedural Law(i) Procedural Law
(ii) Evidence(ii) Evidence

44
Law of EvidenceLaw of Evidence
DefinitionsDefinitions
ObjectsObjects
PrinciplesPrinciples
Major FunctionsMajor Functions
StructureStructure
ArrangementArrangement

55
DefinitionsDefinitions
 Blackstone:Blackstone:
““that which demonstrates, makes clear, orthat which demonstrates, makes clear, or
ascertains the truth of the very fact or point inascertains the truth of the very fact or point in
issue”.issue”.
 Bentham: “any matter or facts, the effect,Bentham: “any matter or facts, the effect,
tendency or design of which produce in the mindtendency or design of which produce in the mind
a persuasion either affirmative or disaffirmativea persuasion either affirmative or disaffirmative
of the existence of some other fact”of the existence of some other fact”

66
Stephen:Stephen:
The law of evidence determinesThe law of evidence determines
‘‘how the parties are to convince the Court ofhow the parties are to convince the Court of
the existence of that state of facts which,the existence of that state of facts which,
according to the provisions of substantiveaccording to the provisions of substantive
law, would establish the existence of thelaw, would establish the existence of the
right or liability which they allege to exist’right or liability which they allege to exist’

77
Taylor:Taylor:
““ All the legal means, exclusive of mereAll the legal means, exclusive of mere
argument, which tend to prove or disproveargument, which tend to prove or disprove
any matter of fact, the truth of which isany matter of fact, the truth of which is
submitted to judicial investigation.”submitted to judicial investigation.”

88
 Phipson:Phipson:
““The two main senses of the words are: first, theThe two main senses of the words are: first, the
means apart from argument and inference,means apart from argument and inference,
whereby the Court is informed as to the issueswhereby the Court is informed as to the issues
of fact as ascertained by the pleadings;of fact as ascertained by the pleadings;
secondly, the subject matter of such means…secondly, the subject matter of such means…
Evidence in the first sense, means theEvidence in the first sense, means the
testimony, whether oral, documentary or real,testimony, whether oral, documentary or real,
which may be legally received in order to provewhich may be legally received in order to prove
or disprove some fact in dispute”or disprove some fact in dispute”

99
ObjectsObjects
To prevent laxity in the admissibility ofTo prevent laxity in the admissibility of
evidenceevidence
To aid the court in drawing inferencesTo aid the court in drawing inferences
from circumstancesfrom circumstances
To assess the value of direct testimonyTo assess the value of direct testimony

1010
PrinciplesPrinciples
Some of the important principles are such;Some of the important principles are such;
• Evidence must be confined to matters inEvidence must be confined to matters in
issue. Refer to s 5 Evidence Actissue. Refer to s 5 Evidence Act
• Hearsay evidence must not be admittedHearsay evidence must not be admitted
except in certain situationsexcept in certain situations
• Best evidence must be tendered in allBest evidence must be tendered in all
casescases
• No evidence is complete unless subjectedNo evidence is complete unless subjected
to cross examinationto cross examination

1111
Major FunctionsMajor Functions
 It determines howIt determines how
facts may be proved;facts may be proved;
• TestimonyTestimony
• HearsayHearsay
• ExhibitsExhibits
• EtcEtc
 facts which need notfacts which need not
be proved;be proved;
 Part II Evidence ActPart II Evidence Act
(i)(i) S 56S 56
(ii)(ii) S 57S 57
(iii)(iii) S 58S 58

1212
StructureStructure
What 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 theAccording to Stephen, Law of Evidence is the
part of law of procedure which with a view topart of law of procedure which with a view to
ascertain individual rights and liabilities.ascertain individual rights and liabilities.

1313
ArrangementArrangement
Part I-RelevancyPart I-Relevancy
Facts which may be
proved
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

1414
Part II- On ProofPart II- On Proof
Types of evidence
to be given
Facts which need
not be proved
•Judicially noticed ss 56,57
•Facts admitted ss 58
Other facts if in issue
or relevant may be
proved
Documentary evidence
Ss 61-66, ss 67-73,
ss74-78 etc
Oral evidence
Ss 59,60

1515
Part III-Production and Effect ofPart III-Production and Effect of
EvidenceEvidence
How?
Burden of Proof
-ss 101-114
Estoppel
-ss 115-117
Witnesses & Examination of
Witnesses
-ss 118-166
Improper admission and rejection of evidence
-s 167

1616
Kinds of EvidenceKinds of Evidence
Direct and CircumstantialDirect and Circumstantial
Direct and HearsayDirect and Hearsay
Documentary HearsayDocumentary Hearsay
Oral and DocumentaryOral and Documentary
Real and PersonalReal and Personal

1717
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 has* Admissible declaration of someone who has
perceived itperceived 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 60 of* Statement by a witness as described in s 60 of
the Evidence Actthe Evidence Act

1818
(b) Circumstantial (Indirect or(b) Circumstantial (Indirect or
Presumptive)Presumptive)
According toAccording to MunirMunir,,
““circumstantial evidence does not prove the pointcircumstantial evidence does not prove the point
the question but establishes it only by reference”the question but establishes it only by reference”
It relates to the existence or non-existence of aIt relates to the existence or non-existence of a
relevant fact only. Every relevant fact is a piecerelevant fact only. Every relevant fact is a piece
of circumstantial evidence which is evenof circumstantial evidence which is even
considered better than direct evidence.considered better than direct evidence.

1919
CasesCases
Dato’ Mokhtar bin Hashim v. PP [1983] 2Dato’ Mokhtar bin Hashim v. PP [1983] 2
MLJ 232MLJ 232
Eng Sin v. PP [1974] 2 MLJ 306Eng Sin v. PP [1974] 2 MLJ 306
Sunny Ang v. PP [1966] 2 MLJ 195Sunny Ang v. PP [1966] 2 MLJ 195

2020
Direct and HearsayDirect and Hearsay
(a) Direct(a) Direct
It may also refer to “original evidence”,It may also refer to “original evidence”,
proof of facts by first hand meansproof of facts by first hand means
It consists of facts perceived by a witnessIt consists of facts perceived by a witness
with his own sense-refer to s 60 of thewith his own sense-refer to s 60 of the
Evidence ActEvidence Act

2121
(b)Hearsay(b)Hearsay
The oral or written statements of one whoThe oral or written statements of one who
is not called as a witness is a hearsay.is not called as a witness is a hearsay.
InIn 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 thethe TRUTH of what is contained in the
statement = it is hearsay and NOTstatement = it is hearsay and NOT
admissible.admissible.

2222
* If the object of evidence is to establish* If the object of evidence is to establish
the FACT that the statement was made =the FACT that the statement was made =
it is NOT hearsay and admissible.it is NOT hearsay and admissible.

2323
ReasonsReasons
InIn REJECTINGREJECTING Hearsay:Hearsay:
(i) it is second hand evidence.(i) it is second hand evidence.
(ii) the truth is diluted and diminished with(ii) the truth is diluted and diminished with
each repetitioneach repetition
(iii) it tends to open the door for fraud(iii) it tends to open the door for fraud
(iv) it is not given on oath(iv) it is not given on oath

2424
InIn ACCEPTINGACCEPTING Hearsay:Hearsay:
(i) Necessity or expediency as in s 32 and(i) Necessity or expediency as in s 32 and
s 33 of Evidence Acts 33 of Evidence Act
(ii) The circumstances under which a(ii) The circumstances under which a
statement was made, furnish a guaranteestatement was made, furnish a guarantee
to its truthto its truth

2525
EXCEPTIONEXCEPTION to exclusion of Hearsayto exclusion of Hearsay
Hearsay evidence is deemed to beHearsay 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 indecent(ii) Statement of victim in rape or indecent
assault, can be proved by the victim orassault, can be proved by the victim or
anyone by conduct.anyone by conduct.
(iii) Statement showing mental or bodily(iii) Statement showing mental or bodily
feeling.feeling.

2626
Statement made in presence of party orStatement made in presence of party or
agentagent
Statement to corroborate that a witnessStatement to corroborate that a witness
had affirmed something on formerhad affirmed something on former
ocassion.ocassion.

2727
Documentary HearsayDocumentary Hearsay
(a) Statement Hearsay(a) Statement Hearsay
Documentary evidence of the serialDocumentary evidence of the serial
numbers impressed in car enginesnumbers impressed in car engines
compiled by workmen not called ascompiled by workmen not called as
witnesses held inadmissible as hearsay inwitnesses held inadmissible as hearsay in
Myers v DPP [1956] AC 1001Myers v DPP [1956] AC 1001

2828
(b) Absence of statements in evidence(b) Absence of statements in evidence
(c ) S 32 (b), 73 A(c ) S 32 (b), 73 A

2929
Oral and DocumentaryOral and Documentary
(a) Oral(a) Oral
Refer to S 3 Evidence ActRefer to S 3 Evidence Act
It includes;It includes;
* Testimony* Testimony
* Hearsay* Hearsay
* Opinion* Opinion

3030
(b) Documentary(b) Documentary
Refer 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 Secondary
Primary evidence is defined in s 62Primary evidence is defined in s 62
Evidence Act, it is the evidence which isEvidence Act, it is the evidence which is
required to be given first, best evidence ofrequired to be given first, best evidence of
a documenta document

3131
Secondary evidence is defined in s 63Secondary evidence is defined in s 63
Evidence Act. It comprises copies or oralEvidence Act. It comprises copies or oral
evidence of contents of documents andevidence of contents of documents and
admissible only in certain cases asadmissible only in certain cases as
specified in s 65 Evidence Actspecified in s 65 Evidence Act
(ii) Public and Private(ii) Public and Private
Public documents are defined in s 74Public documents are defined in s 74
meanwhile private documents are definedmeanwhile private documents are defined
in s 75 Evidence Act.in s 75 Evidence Act.

3232
Real and PersonalReal and Personal
(a) Real(a) Real
It also known as demonstrative orIt also known as demonstrative or
objective evidence where it comprises ofobjective evidence where it comprises of
material objects or things (other thanmaterial objects or things (other than
documents) produced for inspection bydocuments) produced for inspection by
the courtthe court
Refer to s 60(3) Evidence ActRefer to s 60(3) Evidence Act

3333
(b) Personal(b) Personal
It comprises testimony of witnesses, whichIt comprises testimony of witnesses, which
may be either in the way of discourse ormay be either in the way of discourse or
by signs.by signs.

3434
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 any(ii) The natural meaning uninfluenced by any
considerations derived from the previous state ofconsiderations derived from the previous state of
lawlaw
(iii) The law should be ascertained by interpreting(iii) The law should be ascertained by interpreting
the language usedthe language used
(iv) Disregard what the law was before(iv) Disregard what the law was before

3535
 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 Evidenceaccepted as it is found in its own Evidence
OrdinanceOrdinance
(ii) English principle not permissible if true and(ii) English principle not permissible if true and
actual meaning of statute be varied or deniedactual meaning of statute be varied or denied
effecteffect

3636
 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 Code is(i) Common law is malleable to the extent that the Code is
notnot
(ii) Code embodied the old criminal law and cannot be(ii) Code embodied the old criminal law and cannot be
construed in the light of a decision that have changedconstrued in the light of a decision that have changed
the common lawthe common law
(iii) The burden that is shifted is the legal burden and to(iii) The burden that is shifted is the legal burden and to
discharge that presumption the quantum of proof is ondischarge that presumption the quantum of proof is on
the balance of probabilities (higher than BRD)the balance of probabilities (higher than BRD)

3737
 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 (majority)(ii) Court did have discretion to exclude (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)

3838
 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 though not(i) There is a distinction between BRD and BOP though not
referred in s 3 EAreferred in s 3 EA
(ii) No enactment is exhaustive(ii) No enactment is exhaustive
(iii) Evidence Act is part of the general corpus of the law-(iii) Evidence Act is part of the general corpus of the law-
where the Act is silent or fails to be explicit, can refer towhere the Act is silent or fails to be explicit, can refer to
Common lawCommon law
(iv) No intention of legislature to do away with well-known(iv) No intention of legislature to do away with well-known
concepts of the Common lawconcepts of the Common law

3939
 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 not(i) Statement of the accused from the dock is not
evidence. A witness testifies from the witnessevidence. A witness testifies from the witness
box and subject to X-exambox and subject to X-exam
(ii) Code is exhaustive only what is contained in(ii) Code is exhaustive only what is contained in
the Code itself. Other evidential provisions inthe Code itself. Other evidential provisions in
CPC, DDA, Seditious Act etcCPC, DDA, Seditious Act etc

4040
PP v Glenn Knight JeyasingamPP v Glenn Knight Jeyasingam
(1999) 2 SLR 499(1999) 2 SLR 499
Issue: Reception of Common Law inIssue: Reception of Common Law in
SingaporeSingapore
Principles:Principles:
(i) The Code is a facilitative Act(i) The Code is a facilitative Act
(ii) Where the Code is silent we can receive(ii) Where the Code is silent we can receive
the Common Lawthe Common Law