EVIDENCE I

LAW 4110
Sect 1 & 2

Md. Nadzri b. Yusof

1

Kinds of Law
2 kinds of Laws
Substantive

- Determines rights, duties and

liabilities of persons.
(i) Criminal Side
(ii) Civil Side
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 Adjective

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

Law of Evidence
Definitions
Objects
Principles
Major

Functions
Structure
Arrangement

Definitions
Blackstone:

that which demonstrates, makes clear, or

ascertains the truth of the very fact or point
in issue.
Bentham: any matter or facts, the efect,
tendency or design of which produce in the
mind a persuasion either affirmative or
disaffirmative of the existence of some
other fact
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 Stephen:

The law of evidence determines

how the parties are to convince the
Court of the existence of that state of
facts which, according to the
provisions of substantive law, would
establish the existence of the right or
liability which they allege to exist
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 Taylor:

All the legal means, exclusive of

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

 Phipson:

The two main senses of the words are: first,

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

prevent laxity in the admissibility

of evidence
To aid the court in drawing inferences
from circumstances
To assess the value of direct
testimony

Principles
Some

of the important principles are

such;
Evidence must be confined to matters in
issue. Refer to s 5 Evidence Act
Hearsay evidence must not be admitted
except in certain situations
Best evidence must be tendered in all
cases
No evidence is complete unless
subjected to cross examination
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Major Functions
It

determines how
facts may be
proved;
Testimony
Hearsay
Exhibits
Etc

facts which need

not be proved;
Part II Evidence
Act
(i) S 56
(ii) S 57
(iii) S 58

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Structure
What sort of evidence which
must be given

What facts maybe proved By who and in what manner

or not proved
the evidence must be proved

According

to Stephen, Law of Evidence is

the part of law of procedure which with a
view to ascertain individual rights and
liabilities.
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Arrangement
Part 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
39,ss 40-44,ss 45-51,ss 52-55
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Part II- On Proof

Types of evidence
to be given

Facts which need

not be proved
Judicially noticed ss 56,57
Facts admitted ss 58

Oral evidence
Ss 59,60

Other facts if in issue

or relevant may be
proved

Documentary evidence
Ss 61-66, ss 67-73,
ss74-78 etc
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Part III-Production and Efect of

Evidence
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
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Kinds of Evidence
Direct

and Circumstantial
Direct and Hearsay
Documentary Hearsay
Oral and Documentary
Real and Personal

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Direct and Circumstantial

(a)

Direct Evidence
Direct (Positive) if proved by;
* Actual production
* Testimony
* Admissible declaration of someone who
has perceived it
Direct evidence is used in two senses;
* Testimony
* Statement by a witness as described in s
60 of the Evidence Act
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(b) Circumstantial (Indirect or

Presumptive)
According to Munir,
circumstantial evidence does not prove the
point the question but establishes it only by
reference
It relates to the existence or non-existence of a
relevant fact only. Every relevant fact is a
piece of circumstantial evidence which is
even considered better than direct evidence.
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Cases
Dato

Mokhtar bin Hashim v. PP

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

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Direct and Hearsay

(a)

Direct
It may also refer to original
evidence, proof of facts by first
hand means
It consists of facts perceived by a
witness with his own sense-refer to s
60 of the Evidence Act
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 (b)Hearsay
The

oral or written statements of one

who is not called as a witness is a
hearsay.
In Subramaniam v. PP [1956] 22 MLJ 220 ;
* If the object of evidence is to establish
the TRUTH of what is contained in the
statement = it is hearsay and NOT
admissible.
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If the object of evidence is to

establish the FACT that the
statement was made = it is NOT
hearsay and admissible.

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Reasons
In

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

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

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 EXCEPTION

to exclusion of Hearsay
Hearsay evidence is deemed to be
original as in the following situation;
(i) Statement forming part of res gestae
(ii) Statement of victim in rape or
indecent assault, can be proved by the
victim or anyone by conduct.
(iii) Statement showing mental or bodily
feeling.
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 Statement

made in presence of party

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

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Documentary Hearsay
(a)

Statement Hearsay
Documentary evidence of the serial
numbers impressed in car engines
compiled by workmen not called as
witnesses held inadmissible as
hearsay in Myers v DPP [1956] AC
1001

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 (b)

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

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Oral and Documentary

(a)

Oral
Refer to S 3 Evidence Act
It includes;
* Testimony
* Hearsay
* Opinion

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 (b)

Documentary
Refer to s 3 Evidence Act
It can be classified under two heads;
(i) Primary and Secondary
Primary evidence is defined in s 62
Evidence Act, it is the evidence which
is required to be given first, best
evidence of a document
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 Secondary

evidence is defined in s 63
Evidence Act. It comprises copies or
oral evidence of contents of
documents and admissible only in
certain cases as specified in s 65
Evidence Act
(ii) Public and Private
Public documents are defined in s 74
meanwhile private documents are
defined in s 75 Evidence Act.
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Real and Personal

(a)

Real
It also known as demonstrative or
objective evidence where it
comprises of material objects or
things (other than documents)
produced for inspection by the court
Refer to s 60(3) Evidence Act
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 (b)

Personal
It comprises testimony of witnesses,
which may be either in the way of
discourse or by signs.

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Evidence Act & Common Law

Bank

of England v. Vagliano
(1891) AC 107 H/L
Issue: In construing a Code
Principles:
(i) Examine the language
(ii) The natural meaning uninfluenced by
any considerations derived from the
previous state of law
(iii) The law should be ascertained by
interpreting the language used
(iv) Disregard what the law was before
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 Mohamed

Syedol Ariffin v Yeo Ooi Gark

(1916) 2 AC 575 P/C
Issue: In construing a Code
Principles:
(i) Rule and principles of the colony must be
accepted as it is found in its own Evidence
Ordinance
(ii) English principle not permissible if true
and actual meaning of statute be varied or
denied efect
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Jayasena v R
(1970) AC 618 P/C Sri Lanka
Issue: Ss 3 & 107 Sri Lanka Evidence Act 1950
Principles:
(i) Common law is malleable to the extent that the
Code is not
(ii) Code embodied the old criminal law and cannot
be construed in the light of a decision that have
changed the common law
(iii) The burden that is shifted is the legal burden and
to discharge that presumption the quantum of proof
is on the balance of probabilities (higher than BRD)

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 Cheng

Swee Tiang v PP
(1964) MLJ 291 CCA
Issue: Illegally obtained evidence
Principles:
(i) No provision in the Evidence Act to exclude
(ii) Court did have discretion to exclude
(majority)
(iii) Evidence Act did not provide for discretions,
Court has no power (Ambroze J dissenting)
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Yuvaraj v PP
(1969) 2 MLJ 89 P/C
Issue: Rebutting presumption
Principles:
(i) There is a distinction between BRD and BOP
though not referred in s 3 EA
(ii) No enactment is exhaustive
(iii) Evidence Act is part of the general corpus of
the law- where the Act is silent or fails to be
explicit, can refer to Common law
(iv) No intention of legislature to do away with wellknown concepts of the Common law

38

 PP

v Sanassi
(1970) 2 MLJ 198
Issue: Unsworn statement from the dock
Principles:
(i) Statement of the accused from the dock is
not evidence. A witness testifies from the
witness box and subject to X-exam
(ii) Code is exhaustive only what is contained
in the Code itself. Other evidential
provisions in CPC, DDA, Seditious Act etc
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 PP

v Glenn Knight Jeyasingam

(1999) 2 SLR 499
Issue: Reception of Common Law in
Singapore
Principles:
(i) The Code is a facilitative Act
(ii) Where the Code is silent we can
receive the Common Law
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