Question 2:

Explain what do you mean by proving authenticity of a

document, and distinguish it from proving the contents
of a document. Answer with reference to the relevant
provisions of the Evidence Act 1950 and leading cases.

By;
Nurul Adriana binti Mohamad Roshdi (1520024)
Saidatul Afifah Auni binti Saipuddin (1525132)
‘evidence’ : Section 3
a) all statements which the court permits or requires to be made
before it by witnesses in relation to matters of fact under inquiry:
such statements are called oral evidence;
b) All documents produced for the inspection of the court: such
documents are called documentary evidence.
‘document’ : Section 3
any matter expressed, described, or howsoever represented, upon any
substance, material, thing or article, including any matter embodied in a disc,
tape, film, sound track or other device whatsoever, by means of-
a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description,
or representation whatsoever;
b) any visual recording (whether of still or moving images);
c) any sound recording, or any electronic, magnetic, mechanical or other recording
whatsoever and howsoever made, or any sounds, electronic impulses, or other data
whatsoever;
d) a recording, or transmission, over a distance of any matter by any, or any combination, of
the means mentioned in paragraph (a),(b) or (c),
or by more than one of the means mentioned in paragraphs (a),(b),(c) and (d),
intended to be used or which may be used for the purpose of expressing,
describing or howsoever representing that matter.
Document as evidence
1st: The document must have probative value

evidence which is sufficiently useful to prove something important in a

proceeding

Probative value > Prejudicial Effect

2nd :The document must not be excluded by the exclusionary

rule
Must follow how the act would allow
3rd : The document must be relevant

Desa Samudera Sdn Bhd v Bandar Teknik Sdn Bhd (2012) 1 MLJ 729

“We therefore agree with the respondents’ argument. In the law

governing documentary evidence, as in oral evidence, three matters
come to mind – relevancy, admissibility and weight. They must be
considered in that order. Only evidence which is relevant ought to be
admissible. Irrelevant evidence should be rendered as inadmissible and
the matter ends there.”
 4th : The document must be authentic and its
content is proved
‘evidence’ in Section 3 Evidence Act:

All documents produced for the inspection of the court: such

documents are called documentary evidence.

Authenticity of the Content of the

document document
 Authenticity of the document
State of Delhi v Pali Ram (1979) AIR 14

1. By calling the maker

Section 58 of Evidence Act
“no fact need to be proved in any proceeding which the parties thereto
or their agents agree to admit at the hearing or before the hearing.”

Section 70 of Evidence Act

“The admission of a party to an attested document of its execution by
himself shall be sufficient proof of its execution as against him, though
it is a document required by law to be attested.”
Alliedbank (M) Bhd v Yau Jiok Hua (1998) 6 MLJ 114

“It is settled law where a document is sought to be proved in order to

establish the truth of the facts contained it, the maker has to be called.
Non-compliance with this rule will result in the contents of the
documents being hearsay”
 2. By calling the witness
Section 68 of Evidence Act
“If a document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there is an attesting witness alive and
subject to the process of the court and capable of giving evidence.”

Section 69 of Evidence Act

“If no such attesting witness can be found, or if the document reportedly
to have been executed in the United Kingdom, it must be proved that the
attestation of one attesting witness at least in his handwriting, and that
the signature of the person executing the document is in the handwriting
of that person.”
 3. By calling the expert
Section 45 of Evidence Act
a) When the court has to form an opinion upon a point of foreign law
or of science or art, or as to identity or genuineness of handwriting
or finger impressions, the opinion upon that point of persons
specially skilled in that foreign law, science or art, or in questions as
to identity or genuineness of handwriting or finger impressions, are
relevant facts.

b) Such persons are called experts

Section 46 of Evidence Act
“Facts not otherwise relevant are relevant if they support or are
inconsistent with the opinions of experts when such opinions are
relevant.”

Section 51 of Evidence Act

“Whenever the opinion of any living person is relevant, the grounds on
which his opinion is based are also relevant.”

Illustration
An expert may give an account of experiments performed by him for the
purpose of forming his opinion.
 4. By calling the non-expert

Section 47 of Evidence Act

“when the court has to form an opinion as to the person by whom any
document was written or signed, the opinion of any person acquainted
with the handwriting of the person by whom it is supposed to have
been written or signed, that it was or was not written or signed by that
person, is a relevant fact.”

Explanation
A person is said to be acquainted with the handwriting of another
person when he has seen that person write, or when he has received
documents purporting to be written by that person
 5. By comparison of signature
Section 73 of Evidence Act
“In order to ascertain whether a signature, writing or seal is that of the
person by whom it purports to have been written or made, any
signature, writing or seal, admitted or proved to the satisfaction of the
court to have been written or made by that person, may be compared
by a witness or by the court with the one which is to be proved,
although that signature, writing or seal has not been produced or
proved for any other purpose.”
 2 additional methods:
1. By using indirect/circumstantial evidence
Datuk Harun Idris v. Public Prosecutor (1977) 2 MLJ 155
Facts: Accused was charged for corruption.
Issue: Letter wrote and signed by the accused

Held: Irresistible conclusion that the letter was belong to the accused
2. By using the presumption of ancient document
Section 90 of Evidence Act
“Where any document purporting or proved to be twenty years old is
produced from any custody which the court in the particular case
considers proper, the court may presume that the signature and every
other part of that document which purports to be in the handwriting of
any particular person is in that person’s handwriting, and in the case of
a document executed or attested, that it was duly executed and
attested by the persons by whom it purports to be executed and
attested.”
Commissioners of the Municipality of Malacca v Sinniah (1974) 1 MLJ 77

Issue: Actual date of compulsory retirement. The Defendant argued that he was
prematurely retired. The Defendant tendered Notice of Service issued in 1938

“It has been said that in the case of documents more than twenty years old the
genuineness of which is disputed it is necessary for the courts to consider evidence, external
and internal, of the document in order to enable them to decide whether in particular cases
they should or should not presume proper signature and execution. If the circumstances are
such which throw grave doubts as to the genuineness of the documents the courts will
refuse to draw any presumption. In this case I do not find any circumstance or evidence
which can throw P7 into the field of doubt about its genuineness. I am satisfied that the age
given therein was inserted as given by the defendant himself. There was no suggestion
either in the pleadings or in the evidence that this document (P7) was a fraudulent
document.”
• “The presumption relates to the execution of the
documents, i.e. signature, attestation, etc. In other words, to its
genuineness but not to the truth of its contents. The person
presenting a document under section 90 is relieved of the necessity
of proving that it was executed by the person who is purported to be
the executant but the court will not presume the correctness of any
statement in the document”
 How to prove contents of documents
• Procedures to prove contents are laid out in Section 61 until Section
65
• Section 61 :
• Proof of contents of documents
• 61. The contents of documents may be proved either by primary or
by secondary evidence.
• Section 62 :
• Primary evidence
• 62. Primary evidence means the document itself produced for the
inspection of the court.
• Section 63 :
• (a) certified copies given under the provisions hereinafter contained;
• “Certified copies of public documents
• 76. Every public officer having the custody of a public document which
any person has a right to inspect shall give that person on demand a
copy of it on payment of the legal fees therefore, together with a
certificate, written at the foot of the copy, that it is a true copy of the
document or part thereof, as the case may be, and the certificate shall
be dated and subscribed by the officer with his name and his official
title, and shall be sealed whenever the officer is authorized by law to
make use of a seal, and the copies so certified shall be called certified
copies.”
• (b) copies made from the original by mechanical processes, which in
themselves ensure the accuracy of the copy, and copies compared
with such copies;
• Illustration (a) refers to copies made from the original by some
mechanical process which ensures their accuracy.
• Whereas, Illustration (c) shows that copy transcribed from and
compared with a copy is inadmissible, but a copy transcribed from a
copy and compared with the original is secondary evidence.
• (c) copies made from or compared with the original;
• Copies of the copy will be inadmissible under this clause but a
document may be treated as secondary evidence if it is transcript or
copied from the original copy.
• (d) counterparts of documents as against the parties who did not
execute them;
• Counterparts of a document can be used as against the person who
execute them but it cannot be used as against third party.
• (e) oral accounts of the contents of a document given by some person
who has himself seen or heard it or perceived it by whatever means
• Mami v Kallander Ammal
• “blind person is not competent to give oral documents”
• Owner v Biltive Spinning Co
• “not possible to bring a wall containing the writing to the court”
• Section 61 must be read together with Section 64 and Section 65
• Section 64
• Proof of documents by primary evidence
• 64. Documents must be proved by primary evidence except in the
cases hereinafter mentioned.”
• Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd
• “It is firmly established rule under section 64 that requiring that when
documentary evidence is tendered, primary evidence of the document,
that is to say the production of the document itself is essential.”
• If secondary evidence was to be produced, a legal foundation must
first be given unless it falls under Section 65.
• Lucas v Williams
• “Primary evidence is evidence which the law requires to be given first.
Secondary Evidence is evidence which may be given in the absence of
that better evidence when a proper explanation of its absence has
been given.”
• Section 65 provides 7 circumstances in which secondary evidence
may be given or admissible as evidence is allowed.
• For (c), for this to be used as a reason, a diligent search must first be
done by the party for it to be able to claim the original has been
destroyed or lost.
• Bruce Springsteen v Masquerade Music
• ‘Without difficulty test’
• Whether you can find the document without difficulty. If it takes long
period of time and that document is difficult to find, then you are
justified to produce secondary evidence.
• Tendering secondary evidence without reason, the other party needs
to object the admissibility of that document.
• Lucas v Williams
• “The general principle is the party must prove the content of the
document by original (primary) evidence, but if he can’t then he must
justify by laying legal foundation to prove by secondary evidence. To
disallow proving by using secondary evidence (with legal foundation)
would be unjust.”
• Failure to object ?
• Natchiappin v Laksmi Amal
• Failure to object, it will be considered as a waiver.
 Differences between the two requirements

Proving the authenticity Proving the contents

Procedures  Direct  Rigorous
 Close reference to
provisions

Principles applied  Depends on the  Best evidence rule

situation.
 Flexible. Eg :
1. Different witnesses
called
2. Situation of the
documents