Documentary Evidence Question 55

The common feature of documents, as the term is popularly understood, I

think, is that the writing or printing or inscription is something capable of being
discerned by the eye, with or without the aid of optical instruments.
Mc Inerney J Beneficial Finance Corporation Co Ltd v Conway [1970] V R 321
Comment. What is the Malaysian position?

Beneficial Finance Corporation Co Ltd v Conway

- Australian case. Year 1969.
- ISSUE: Whether tape recording of a telephone conversation between
witness and defendant is a document?
- DECISION: The Supreme Court held that the tape recording was not a
document.
- DEFINITION of document: something on which things are written,
printed or inscribed and which gives information any written thing
capable of being evidence

WHY?

- There was nothing written, printed or subscribed upon it nor did it convey any
information upon a mere visual inspection of it.
- Although tape recording serves a function corresponding to that of a document,
it does not necessarily follow that a tape recording is a document.
- It partakes more of the character of the unprocessed time machine.
- Unprocessed time machine cards were NOT documents because they convey no
information to anybody.
- And tape recording also convey no information to anyone on a mere visual
inspection of it.

MALAYSIA
S. 3: Definition of document
- Definition of document is comprehensive
- Including
a) tape recording
b) facsimile letter
c) closed-circuit television (CCTV) tapes
d) documents produced by a computer

COMPARISON (Tape Recording)

R v Maqsud Ali
- Tape recording of conversations between two accused person.
- In unknown language and suffered from considerable interference.
- The court held that the tape recording is admissible.
- Reasoning: Evidences gained by new techniques and new devices is admissible
provided that the accuracy of the recording can be proved and the voices
properly identified.

Mohd Ali Jaafar v PP a) the tape must be clean

b) in proper working order
c) not tampered with
d) voices can be identified
e) transcript was prepared

A few principles regarding tape recording:

PP v DSAI (No 3)
- Original 7 tapes burnt.
- Edited 4 tapes not admissible.
- Suspicious circumstances and casts serious doubts on the authenticity of
the edited 4 tapes.

Overview

S. 59 - all facts may be proved by oral evidence EXCEPT contents of documents

S. 61 - Contents of documents proved either by primary or secondary evidence
S. 62 - Primary Evidence
S. 63 - Secondary Evidence

S. 64 - Proof
S. 65 Cases where secondary evidence

is admissible
S.74 Public Documents

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