FACTS WHICH NEED TO BE PROVED

• Facts which are not judicially noticed or formally

admitted have to be proved by oral or documentary
evidence, or real evidence or a combination of these
modes of proving facts.
• Oral evidence
– Meaning of oral evidence: refer s.3(a) – all
statement which the court permits to be made
before it by witnesses in relation to matters of
fact under inquiry.

1
FACTS WHICH NEED TO BE PROVED(2)
• S.59: All facts except the contents of documents may
be proved by oral evidence
• S.119: A witness who is unable to speak may give his
evidence in any manner eg. by writing or by signs-
deemed to be oral evidence
• S.60(3): if oral evidence refers to a material thing -
(real evidence- view, demeanour of witnesses, murder
weapon, etc).

2
 ORAL EVIDENCE
• General rule: the best evidence available must always
be given- high probative value. ( Chow Siew Woh’s
case)- original evidence
• S.60 : E is direct when it goes straight to establish
the main fact in issue:
“(a) if it refers to a fact which could be seen, it must be the
evidence of a witness who says he saw it”
• proving actus reus-relevant fact
• When a witness (x) says that he saw B inflict a wound
on C with a knife.- eye witness.

3
 ORAL EVIDENCE
• “(b) if it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it”
• proving intention /mens rea- S.300 p/c
• relevant fact: a witness (Y) says that he himself
heard B shouting at C- “I am going to kill you.

4
 ORAL EVIDENCE (2)
“(c) if it refers to a fact which could be perceived by any other
sense or in any other manner, it must be the evidence of a
witness who says he perceived it by that sense or in that
manner”
• Z perceives the familiar perfume used by B

5
 ORAL EVIDENCE (2)
“(d) if it refers to an opinion or to the grounds on which that
opinion is held, it must be the evidence of the person who holds
that opinion on those grounds”
• General rule: Witnesses are generally not allowed to
inform the court of the inferences they draw from
facts perceived by them, but must confine their
statements to an account of such facts.
• If the witness interprets the facts which he
perceives he is offering his opinion.

6
 ORAL EVIDENCE (3)
• The distinction between a fact and an opinion is
reflected by S.3 which defines a fact as including ‘any
thing, state of things, or relations of things capable
of being received by the senses”.
• Exceptions : (a) expert witnesses may testify to their
opinions on matters involving their expertise.
(S.45,46,51)

7
 EVIDENTIARY VALUE OF ORAL
EVIDENCE
• Oral evidence is the basic and most important mode
of proof, i.e witnesses testifying as to what they
directly perceived of the incident (facts in issue).
• The whole structure of the trial is built around oral
evidence which is constituted by the processes of
examination in chief, cross-examination and re-
examination.

8
EVIDENTIAL VALUE OF ORAL EVIDENCE
(2)
• The weight and value of oral evidence depends on its
credibility as determined by the court.
• The court’s assessment as to credibility:
– When a witness tells lies –not a reliable witness as
such his evidence must be scrutinized with great
care. ( Khoon Chye Hin v Public Prosecutor) (1961)
MLJ 105
– Interested witness – no legal presumption that an
interested witness should not be believed.
(Balasingham v PP) (1959) MLJ 193 eg.relative.

9
 DETERMINING THE CREDIBILITY OF A WITNESS

• Tests used:
– Whether unshaken in cross examination is an all-
sufficient acid test for credibility?
– No, instead the inherent probability or
improbability of a fact in issue is the prime
consideration. (Muniandy & Ors v PP) [1966] 1 MLJ
257
– If oral evidence is unreliable the safest policy
would be to rely on documentary evidence.
– PP v DSAI [1999] 2 MLJ 1

10
 REAL EVIDENCE
• S.60(3) –concerns those forms of evidence which the
court will consider on the basis of its own perception
for the purpose of determining the inferences to be
drawn.
• refers to the production of a material thing (knife,
blood –stained shirt,tape recording, photographs,
police sketches, photofit pictures etc. before the
court.
• Document – may constitute real evidence when it is
the existence or nature of the doc .itself which is in
issue rather than its contents.

11
 REAL EVIDENCE (2)
• Eg. If the dispute concerns the ownership of a
document, the document is not tendered as a record
of its content but as the object of the dispute.
• Real evidence is linked to oral evidence b’cos the
condition of a murder weapon or a packet of drugs for
eg. is usually proved during the course of oral
evidence. Real evidence – relates to the presentation
of exhibits.

12
 REAL EVIDENCE(3)
• Exhibits other than written documents
• Items of evidence other than written
documents may require authentication as well.
Is the gun or knife produced by the
prosecution in court the same as the one
allegedly used by the accused? Did the video
tape or film accurately record the incidents?

13
 REAL EVIDENCE (4)
• Example:
• The accused is charged with murder by striking X on
the head with a hammer. A police officer , Sergeant
Chan, testifies that he found a hammer on the
accused when he arrested him. The prosecution
wishes to tender this hammer as evidence. The
officer has already testified that he arrested the
accused and seized the hammer from him.

14
 REAL EVIDENCE (5)
Q. Please describe the hammer you seized from the
accused.
A. It had a black handle about 9 inches long with grip
marks and an iron head that was rusty. The back of
the head had two prongs and one of the prong ends
had been broken off.

(The exhibit may already have been marked for

identification. If not it may be done at this stage.
The prosecutor will say to the judge:)

15
 ADDUCING EVIDENCE (exhibits)
• ‘Your honour, may I tender the item and ask that it
be marked as prosecution’s exhibit A for
identification’
• The exhibit may then be shown to the defence
advocate and with the court’s leave to the witness.
( The examination in chief continues)
Q. Sergeant Chan, I show you prosecution’s exhibit A
for identification. Please would you examine it?
(The witness examines it)

16
 ADDUCING EVIDENCE (exhibits)
Q. Have you seen that exhibit before?
A. Yes, this is the hammer I seized from the accused.
Q. How do you know this?
A. Well, it confirms my description. (He points to the
various parts of the hammer as he repeats his
description and mentions that the hammer has the
same markings which he inscribed on the hammer
after it was seized from the accused).

17
 ADDUCING EVIDENCE (exhibits)
Q. How would you compare the condition of this hammer
now with its condition when you seized it from the
accused?
A. Exactly the same apart from the markings I made
on it.
Prosecutor: ‘ Your honour, may prosecution exhibit A for
identification be admitted into evidence. May it be
marked as prosecution’s exhibit no. 1 (P1)’

18
 ADDUCING EVIDENCE
(exhibits)
• The witness will only be able to identify an exhibit as
in the above example concerning the hammer if he can
testify to its physical characteristics.

• Sometimes items of evidence cannot be identified in

this way because there are no distinguishing
characteristics which can be perceived by the
witness.

• Examples include drugs in the form of powder, blood,

semen and other substances.

• In such cases, it is necessary to link the possession of

the item thru’ successive witnesses, 19
 CHAIN OF POSSESSION
• I.e, to establish an unbroken chain of possession so
that the court is satisfied that the substance is in its
original state and has not been tampered with in any
way. Only then will it be admitted in evidence.

• Establishing a chain of possession is a demanding task

because unless the item is accounted for throughout
the period from the time it is obtained to the time it
is presented in court, the chain will not be complete-
objection can be made on the ground that the chain
of possession had not been established.

20
• Therefore raise a serious doubt in the prosecution’s
case.
• Well illustrated in the case of Namasiyiam & Ors v PP
[1987] 2 MLJ 336 .

• Pendakwa Raya lwn Syed Ahmad Saifuddin bin Syed

[2006] 3 MLJ 267

21
 AFFIDAVIT EVIDENCE
• Generally, any fact required at the trial must be
proved by oral evidence and in open court. One of the
exception: affidavit evidence

22
 AFFIDAVIT EVIDENCE (2)
• The affidavit is sworn or affirmed in the usual way
and therefore stands as the witness’s testimony as if
he had testified at the trial.

• However the deponent can be cross-examined orally

on the evidence he has deposed to.

• S.165: Court has the power to order production

– In order to discover or obtain proper proof of
relevant facts.

23