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Starting of the Trimester ……

• Course Info
• Books
• Mid Term
• Assignments – Registration & Deadline
• Lecturer – 3 (Ms. Rebecca; Dr. Munzil; Ms. Yusnita)
• QR Code for attendance
• Adhere to basic rules please
• When in doubt always ask

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Topic 1-Introduction & Preliminary Matters
Preliminary matters:
• sources of the Law of Evidence,
• application of the Evidence Act 1950,
• impact of common law,
• interpretation section,
• fact in issue and fact relevant to fact in issue,
• classification of evidence,
• types of evidence;
• relationship
• between relevancy, admissibility and weight;
• Legal and logical relevancy;
• Matters relating to the best evidence rule.
• Procedure to adduce evidence in court ,marking of exhibits and chain of evidence.
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Course Learning Outcomes (CLO)
Course Learning Outcomes (CLO)
CLO1: Comprehend the main principles of the Law of Evidence in
Malaysia with reference to the topics in the syllabus.

CLO2: Apply the main principles relating to the Law of Evidence in

Malaysia with reference to the topics in the syllabus.

CLO3: Analyse the evidential rules in Malaysia with reference to the topics in the syllabus.

CLO4: Critically evaluate the rules of evidence in Malaysia with reference to the topics in the syllabus.

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Topics coverage ….
• Topic 1 – Introduction & Preliminary Matters
• Topic 2 – Burden of Proof
• Topic 3 – Standard of Proof
• Topic 4 – Presumptions
• Topic 5 – General Relevancy
• Topic 6 – Hearsay and Exceptions to Hearsay
• Topic 7 – Admission and Confessions

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Assessment …
• Mid Term – 20 % - tentative Week 6
• Assignment – 20% - Due date 29 Aug @ 1 p.m
• Presentation, Attendance & Class Participation 10% -
Brown File Submission. Due date 21 Sept 2018 @ 4 p.m
• Final & Supplementary Written Examination 50%

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Sample brown file….

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A.SOURCES AND APPLICATION

SOURCES
• The main source of the Law of Evidence in Malaysia is the
Evidence Act 1950(Act 56)

• It is based on the Indian Evidence Act .

• The Indian Act is the codification of the Common Law.

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Scheme of the Evidence Act 1950
• Different Parts of the Act

Part I – Preliminaries & Relevancy

Part II – Mode of Proof (Chap III, IV, V, VI)
Part III – Production & Effect of Evidence (Chap VII, VIII, IX, X, XI)

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OTHER SOURCES

Other sources of the Law of Evidence include the following:

a. Criminal Procedure Code
b. Rules of Court 2012
c. Statutes
(Dangerous Drugs Act 1952, Kidnapping Act 1961, Malaysian Anti -
Corruption Commission Act 2009 etc.)
d. Common Law

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To whom does the EA 1950 apply??

• AINAN BIN MAHMUD V SYED ABU BAKAR [1939] MLJ 209

• Note :Evidence Act 1950 will only apply to the Civil &
Criminal Courts. The Act is not applicable to Syariah Courts and
Arbitration matters.
• (Syariah Court Evidence Act 1997) & (Arbitration Act 2005)

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What falls within the ambit of the EA 1950??
• Q: Are illustrations part of the sections?
• s.1 – s167
• Majority of which will have illustrations

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Eg: s.7
• Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts
or facts in issue, or which constitute the state of things under which they happened or
which afforded an opportunity of their occurrence or transaction, are relevant.
• ILLUSTRATIONS
• (a) The question is whether A robbed B.
• The facts that shortly before the robbery B went to a fair with money in his possession
and that he showed or mentioned the fact that he had it to third persons are relevant.
• (b) The question is whether A murdered B.
• Marks on the ground produced by a struggle at or near the place where the murder was
committed are relevant facts.
• (c) The question is whether A poisoned B.
• The state of B's health before the symptoms ascribed to poison and habits of B known to
A, which afforded an opportunity for the administration of poison, are relevant facts.

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MOHD SYEDOL ARIFFIN V YEOH OOI GARK [1916]1 MC 165
Note : illustrations are an important aid to statutory
interpretation which have been expressly provided by
the legislature and should not be rejected unless in very
exceptional and special cases.
The application of sections are not confined to illustrations.

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Does the Act apply to all matters in a Civil
Court???
• SECTION 2. Extent
• “This Act shall apply to all judicial proceedings in or before
any court, but not to affidavits presented to any court or officer
nor to proceedings before an arbitrator.”

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What are judicial proceedings?
• CRIMINAL PROCEDURE CODE (REVISED 1999)
• SECTION 2. Interpretation: Judicial Proceedings
• “means any proceeding in the course of which evidence is or
may be legally taken”

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• RE LOH KAH KENG (DECEASED) (W02) [1990] 2 MLJ 237 ; the High
Court held:
• inquest case – EA 1950 does not apply – witnesses cant rely on s.122
EA.

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• MALAYSIA BUILDING SOCIETY BHD V. UNIVEIN SDN BHD [2003] 5
MLJ 394
• What is an affidavit?
Statement in writing which is made under oath/ affirmation( sworn
statement in writing)
Made before an authorized person (Commissioner for Oaths/
Magistrates )
Person making an affidavit : deponent

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Affidavits may be tendered in evidence during judicial proceedings.
Note :GR evidence before the court should be oral evidence given by
witness in open court.(See O.38 r.1 ROC 2012 / s.59&s.60 EA)
Exception : affidavit evidence can be admitted under the provisions of
the ROC 2012 under certain circumstances.

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Note: although the EA expressly excludes affidavits from its
operation ,the rules of evidence/law of evidence will
continue to operate through procedural rules found in the
ROC 2012 which govern affidavits. (Order 41 ROC )
Note : GR no evidence of hearsay, belief , opinion in Affidavits.

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• Note : As a general rule evidence has to be given by witness in open
court under the Evidence Act.
• Exceptions:
• i) Evidence in Chief can now be given by witness statements provided
all parties agree and are given copies .(Order 38 ROC)
• ii)Interlocutory applications
• iii) Court has the power to order the affidavit of any witness to the
read in court with discretion to call him as a witness if
necessary.(Order 38 r 2 ROC)

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• Many civil proceedings can be disposed off based on affidavit
evidence alone .
• (family law matters , guardianship, interlocutory matters etc.)
• Advantages: saves time , cost and minimizes emotional stress.
• Disadvantages: not tested under cross examination ,no opportunity
to see the demeanour only dead letters.
• Note : not appropriate for a judge to resolve conflicts of facts based
on affidavit evidence

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Common Law
To what extent can reference be made to the Common Law?

• JAYASENA V R [1970]1 AER 219 PC

• PP V YUVARAJ [1969]2 MLJ 89 PC

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• JAYASENA V R [1970]1 AER 219 PC
Lord Devlin, on behalf of the Privy council, said:
“The decision of the House of Lord in Woolmington is an example of a
change in the context of the law resulting from a change in the manner
of applying it. The common law is shaped as much by the way it is
practiced as by judicial dicta. The common law is malleable to an extent
that the Code is not. The Code embodied the old criminal law and
cannot be construed in the light of a decision that has changed the
law”

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• PP V YUVARAJ [1969]2 MLJ 89 PC
Lord Diplock in delivering the opinion of the Privy Council said:
“ In Malaysia (as in India) the law of evidence has been embodied in a
statutory code, the Evidence Ordinance. In so far, as any part of the law
relating to evidence is expressly dealt with by that Ordinance, the courts in
Malaysia must give effect to the relevant provisions of the Ordinance
whether or not they differ from the common law rule of evidence as
applied by the English Court. But no enactment can be fully comprehensive.
It takes its place as part of the general corpus of law. It is intended to be
construed by lawyers and upon matters about which it silent or fails to be
explicit, it is presumed that it was not the intention of the legislature to
depart from well established principles of law.”

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 B. FACTS

• SECTION 5. Evidence may be given of facts in issue and relevant

facts.
Evidence may be given in any suit or proceeding of the existence or
non-existence of every fact in issue and of such other facts as are
hereinafter declared to be relevant, and of no others.

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 FACTS

facts in issue relevant facts

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Facts in Issue
• SECTION 3. Interpretation
• Fact in issue means any fact from which, either by itself or in
connection with other facts, the existence, non-existence, nature or
extent of any right, liability or disability asserted or denied in any suit
or proceeding necessarily follows;

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• SIR RUPERT CROSS : fact in issue are all those facts that :
• a) a Plaintiff in a civil action or a Prosecutor in criminal proceedings
must establish in order to succeed , and
• b) any further facts that the Defendant /Accused must establish to
rely on a defence.

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How to determine what are the facts in issue?
• a. the pleadings/charge
• b. the substantive law
• c. admissions/ denial
• PP V. DATO' SERI ANWAR IBRAHIM(NO 3) [1999]3 CLJ 313
• Evidence of facts in issue : direct evidence

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Fact in issue are the ingredient of offence
eg: for theft u/s 379 ingredients are
i) moveable property
ii) Accused took property out of the possession of another person
iii) Taking w/o consent
iv) Movement of the property (taking)
V) Accused took property with intent to cause :
a – wrongful loss to the person
b – wrongful gain to himself

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Relevant fact
• Relevant fact : one fact is said to be relevant to another when the
one is connected with the other in any of the ways referred to in the
provisions of this Act relating to the relevancy of facts.
• Chapter II
• (s. 5 to s.55)

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• SIR RUPERT CROSS:
• Fact not itself in issue but from which the existence or non existence
of the fact in issue may be inferred.
• Evidence of facts relevant : circumstantial evidence

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 Relevancy

• Logical Legal

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C.CLASSIFICTION OF EVIDENCE

• Oral/Documentary

• Direct / Circumstantial

• Original / Hearsay

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 D.BEST EVIDENCE RULE

• 1. The best evidence rule refers to the principle that the court admits
the best evidence available .The classic illustration of the rule can be
found in Lord Hardwick’s statement:
• “the judges and sages of the law have laid down that there is but one
general rule of evidence ,the best that the nature of the case will
admit”
• (OMYCHUND V BARKER 1745)

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• Should the best evidence rule apply to :
• a. Admissibility ,
• Or
• b. Weight

• What is the distinction between admissibility and weight??

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• Admissibility Weight
If it is not the 2nd best can be
best evidence it admitted but
is not admissible will be given
less weight

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Admissibility ……
• Admissibility is govern By sect 136 where it is determine by court
• The court has inherent power to exercise discretion to exclude
evidence

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R V QUINN & BLOOM [1962] 2 QB 245
KAJALA V NOBLE [1982] 75 CR APP REP 149 , CA
PP V LIM KUAN HOCK [1976] 2 MLJ 114
KPM KHIDMAT SDN.BHD V TEY KIM SUIE [1994] 2 MLJ 627
GNANASEGARAN v. PP [1997] 4 CLJ 6 CA

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