Professional Documents
Culture Documents
Department:
Public Law Department
Programme
Course Title
Law of Evidence 1
Course Code
LAW 4110
Status
Core
Level
Credit Hours
Contact Hours
Pre-requisite
(if any)
Co-requisite
(if any)
Teaching Methodology
None
Method of Evaluation
state weightage of each
type of assessment
Test 1
15%
Test 2
15%
Tutorial Assessment 10%
Final Examination 60%
Total:
100%
Instructors
Semester Offered
Semester 1 and 2
Course Objectives
1.
None
Lectures, Tutorials & Seminars
2
2.
3.
4.
Course Synopsis
3
imparted first. The first few weeks of the course will be devoted on
the basics of evidence such as mode of evidence, relevancy sections
and similar fact evidence.
The next few weeks will cover important topics like admission and
confession, expert opinion and exceptions to the rule of hearsay.
Finally, this semester will cover the important topic on forensic
evidence and the basics of evidence that will apply. The lecturer
will attempt to explain how specific provisions of evidence will
apply when this type of evidence are used.
COURSE OUTLINES
WEEK
WEEK
1
TOPICS
REFERENCES
of
the
A.
The Principles of Interpretation
1. Bank of England v Vagliano [1891]
AC 107
2. Yeo Hock Cheng v R [1938] MLJ 104
3. Pakala Narayana Swami v King
Emperor [1939] MLJ 59
Lord Macmillan held that the Evidence Act
is a code and we cannot look at the
previous state of law. However no code is
exhaustive. Some matters can be left out. If
the code is silent we can import common
law to fill in the lacunae.
4
J had on occasion made a pronouncement
whether the Evidence Act is exhaustive or
not. The Code is exhaustive only what is
contained in the Act itself. Many other
matters can be found in other statutes such
as section 113 CPC, Dangerous Drugs Act,
Seditious Act that contained evidential
provision. In that sense it is not exhaustive.
D. Since the Evidence Act is not
exhaustive can we receive the
common law?
The Privy Council in PP v Yuvaraj [1969]
2 MLJ 89 lucidly expressed that no
enactment is exhaustive. The Evidence Act
is part of the general corpus of the law that
is applied by lawyers. On matters where the
act is silent or fails to be explicit, can have
a reference to the common law. The PC
told us that although the Evidence Act is in
the form of a code there is no intention on
the part of the legislature to do away with
well-known concepts of the common law.
1.
5
the facts in issue are matters to be exactly what matters are left in dispute and
decided in pleadings. In a contract, therefore open to proof or disproof.
the terms, implied or express could be
denied or traversed. Matters that are
not admitted become an issue. Must
prove the facts in issue.
B.
See also:
Section 136: Court to decide as to
admissibility of evidence.
Section 165: Judge has power to put
questions about any fact relevant or
irrelevant, but the judgement must be based
upon facts declared by the Evidence Act to
be relevant and duly proved.
1. PP v Dato Seri Anwar Ibrahim (No:
3) [1999] 2 MLJ 1
Fact in issue must be relevant to fact in
issue
6
Augustine Paul J in PP v. Dato Seri
Anwar bin Ibrahim(No3) [1999] 2 MLJ 1,
170 (HC) held:
Questions of admissibility of
evidence are questions of law and
are determinable by the judge. If it
is the duty of the judge to admit all
relevant evidence, it is no less his
duty to exclude all irrelevant
evidence. Section 5 of the
Evidence Act, 1950 declares that
evidence may be given in any suit
or proceedings of the existence or
non-existence of every fact in issue
and of such other facts as declared
to be relevant under the provisions
of the Evidence Act, 1950. The
judge is empowered to allow only
such evidence to be given as is, in
his
opinion,
relevant
and
admissible and in order to ascertain
the relevancy of the evidence
which a party proposes to give, the
judge may also ask the party
proposing to give evidence, in what
manner the alleged facts, if proved,
would be relevant, and he may then
decide as to its admissibility.
Recommended Reading:
H.M. Zafrullah 1984. Admissibility,
Relevant Evidence and other related Issues:
Some Comments From the Dato Mokhtars
Case. Malayan Law Journal xv.
C. The concepts of logical and Chong Siew Fai CJ in Thavanathan
legal relevancy
Subramaniam v. PP[1997] 3 CLJ 150 held
that: The law of evidence, the cardinal
Evidence must satisfy not only the rule relating to relevancy is that, subject to
test of relevance, but Spencer and Flin exclusionary rules, all evidence which is
note: (a) it must be relevant, and (b) it sufficiently relevant to the facts in issue is
must be legally admissible.
admissible.
Other cases:
PP v. Kilbourne [1973] AC 729:
Evidence is relevant if it is
logically probative or disprobative
of some matter which requires
proof ... (L)ogical probativeness
7
... does not of itself express the
element of expedience which is so
significant of its operation in
law ... It is sufficient to say ... that
relevant evidence, i.e. logically
probative or disprobative evidence
is evidence which makes the
matter which requires proof more
or less probable.
PP v. Haji Kassim (supra)
(W)hatever is logically
probative is not necessarily
admissible in evidence, unless it is
so under the (Act).
Matters that are logically relevant but not
legally admissible include privileges,
hearsay and character evidence.
WEEK
2, 3
ADMISSIBILITY OF EVIDENCE
ILLEGALLY
OBTAINED
1.
39
R v Kuruma [1955] AC 197
Gan Ah Bee [1975] 2 MLJ 106
Re Kah Wah Video [1986] 2
2.
3.
4.
MLJ
Ramli b. Kecik [1986] 2 MLJ
33
Wako Merchant Bank v Lim
Lean Heng [2000] 4 CLJ 223-226
8
depend on the nature of illegality.
Krishna Rao Gurumurthy [2001] 1 MLJ
274
Kang J addressed his mind that evidence
illegally obtained the judge must
judiciously exercise his discretion to
exclude illegally obtained evidence if the
prejudicial effect will outweigh probative
value.
Other related case:
Cheng Swee Tiang v PP (1964) 30 MLJ
291
Recommended Readings:
Definition of evidence
SECTION 5: PROVING CASE BY EVIDENCE
1.
2.
3.
4.
9
of fact as to the existence or non- example is section 37(1) of the Dangerous
existence of fact in issue. Definition Drugs Act 1984 where possession of a
by Act in 3 forms:
required amount of drugs raises a statutory
presumption that the accused is a trafficker
Proved:
of drugs.
Disproved:
Not proved:
Recommended Reading:
H. Singh. 1972. The Evidence Act: A Case
For Reform. Malayan Law Journal. 2. xxv
Types of Evidence (Media of Proof)
Oral evidence.
Hearsay evidence.
Documentary evidence.
Circumstantial evidence.
Real evidence.
Distinction between Weight and
Admissibility of Evidence.
1.
10
demeanour would throw on his testimony
is lost. Such evidence can be concocted
and the court has no chance of
appreciation.
2.
3.
4.
2.
3.
4.
5.
1.
2.
11
implied assertion.
3.
Chandrasekera
Alisandiri [1939] AC 220
4.
R v Abdullah 1887 All.
alias
12
When a murder is committed and there is
no direct evidence, facts before the murder
at the scene have footprints, or blood on the
weapon, all these are circumstantial
evidence to prove that murder. We can call
an expert to give an opinion, drawing an
inference the existence or non-existence of
a fact.
Sunny Ang v PP [1966] 2 MLJ 195
Wills on Circumstantial evidence.
He is of the opinion that in direct evidence
a witness can lie. Circumstantial evidence
is more superior. It depends, for example a
finger-print. Can plant someone finger
print. He can be convicted.
Dato Mohktar Hashim & Anor v PP
[1983] 2 MLJ 232
A cumulative effect that irresistably point
to the accused.
Real Evidence
The real subject matter itself ie the
identity of the offensive drug.
Locus in quo.
Visiting the scene of the crime.
Recommended Readings:
WEEK
4
1.
2.
3.
13
circumstances, which are inseparable
from facts in issue, and are necessary
to explain the nature of the fact itself.
It is an application of the common
law doctrine of Res Gestae, i.e. thing
done (including words). It means the
events that happened in the course of
a transaction.
14
5.
6.
2.
2.
3.
4.
15
20. 435.
WEEK
5, 6
5.
6.
Section 7 provides:
1. Dr Jainand v R AIR 1949 All 291.
Facts which are the occasion, cause
or effect, immediate or otherwise, Per Bhargava J at 299:
of relevant facts or facts in issue, or
The fact in issue was whether
which constitute the state of things
Jainand had committed the
under which they happened or
murder of Karan Singh. The
which afforded an opportunity for
facts that Jainand had taken
their occurrence or transaction, are
money and ornaments from
relevant.
Karan Singh and had on the day
of murder gone to Jainand to
For any fact in issue to occur, there
demand
the
money
and
must be circumstances where the fact
ornaments are relevant facts
in issue to occur. There must be cause
showing occasion, cause or
for the occurrence and the
effect of the fact in issue.
consequence. Section 7 makes
relevant facts which cause to fact in 2. per Weston J in Sidik Sumar v E AIR
issue that provide the occasion is a
1942 Sind 11:
relevant fact. There must be an
Evidence that there were
opportunity for the occurrence of the
footprints at or near a scene of
fact in issue to be relevant.
offence or that these footprints
came from a particular place or
led to a particular place, is
relevant evidence under section
7.
Footprints constitute an effect of a fact in
issue that are relevant.
S7 makes any facts occurrence facts in
issue must be an occasion and an
opportunity for its occurrence. A fact in
issue cannot occur in isolation.
Section 8 provides:
(1)
Any fact is relevant which
shows or constitutes a motive
or preparation for any fact in
issue or relevant fact.
(2)
The conduct of any party,
or any agent to any party, to
any suit or proceeding in
reference to that suit or
Motive
Every act must have a motive. Motive is
different from intention. Motive is an
emotion that leads that person to do that
act. Motive is the reason why a person does
a particular act.
Premeditation
16
proceeding, or in reference to
any fact in issue therein or
relevant thereto, and the
conduct of any person an
offence against whom is the
subject of any proceeding, is
relevant
if
the
conduct
influences or is influenced by
any fact in issue or relevant
fact, and whether it was
previous
or
subsequent
thereto.
Look at section 8 in two aspects
1.
Motive
and
preparation.
2.
Conduct
relevant.
Distinguish
conduct
from
statement.
1.
Explanation 1.
The word conduct in this section does
not include statements unless those
statements accompany and explain acts
other than statement: but this
explanation is not to affect the relevancy
of statements under any other section of
this Act.
Explanation 1 adds an important
qualification to the word conduct in the
section. It does not include statement
unless those statements accompany and
explain acts other than statements.
2. Wong Foh Hin v PP [1964] MLJ 149
The evidence concerning the interview
with the Orang Tua shows how strong the
motive must have been when the wife went
off in the night time to see the Orang Tua
on the second occasion. It showed that
WFH was likely to be very concerned that
this time there will be a police investigation
and the police would interview the
daughter.
Conduct
Can be previous or subsequent conduct.
1. Chandrasekaran & Ors v PP [1971] 1
MLJ 153
COMPLAINT OF SEXUAL OFFENCE
Illustration (j)
If an offence has been committed by the
accused, if the victim as soon as reasonable
makes a complaint to the person in
authority, that complaint will be evidence
of a conduct.
The relevancy of a complaint in sexual
cases was considered by Muhammad
Kamil J in PP v Mohammad Tereng bin
Amit [1999] 1 MLJ 154.
17
The difference between a statement A complaint, evidence as conduct must
and a complaint.
have 3 factors
1.
made spontaneously.
The value of a mere statement only to 2.
must not be result of tutoring or
corroborate the evidence of a witness.
inducement.
A statement is something that is 3.
made to a person in authority.
stated devoid of feelings. Mere relay Its contents emotive and the intent punitive.
of information.
In Boota Singh, the moment the accused
disturbed the deceased, she made a
FIR under S 107 CPC. That
conduct amount to complaint.
Admissible to show motive and
conduct under s 8 (explanation 1)
1.
2.
18
relevant under s 7.
Facts show relation of parties in so far
they are necessary for that purpose.
Identity and other matters
Turnbull guidelines.
By Lord Widgery CJ
1. Whenever the case against the
accused depends wholly or
substantially
on
the
correctness of one or more
identification of the accused,
which the defence alleges to
be mistaken, the judge should
warn the jury of the special
need for caution before
convicting the accused in
reliance on the correctness of
the
identification
or
identifications. He should
instruct the jury to the
possibility that a mistaken
witness can be a convincing
one.
2. The judge should direct the
jury to examine closely the
circumstances in which the
identification by each witness
came to be made.
3. Finally, the judge should
remind the jury of any
specific weaknesses which
had
appeared
in
the
identification evidence.
19
ID Parade.
ID parade is admissible under s9
Jaafar Ali v PP [198] 4 MLJ 406.
Cases in which it is necessary to hold
ID parades.
PP v Sarjeet Singh [1994] 2 MLJ 290
The necessity of holding an id parade
can only arise where the accused
persons are not previously known to
the witnesses. Where the accused is
known to the witnesses, the question of
id parade does not arise.
Procedure of ID parade.
Ong Lai Kim v PP [1991] 3 MLJ 111.
There is no written law regarding
procedure. The practice of holding a
proper id parade is summarized in
Mallals Criminal Procedure.
Ong Lai Kim v PP [1991] 3 MLJ 111.
It is proper to hold an id parade by
using a one-way mirror but must be
used with the safeguards enumerated in
Archbolds Criminal Pleading and
Practice.
PP v Chan Choon Keong & Ors
[1989] 2 MLJ 427.
Where there are two or more suspects,
separate identification parades must be
held.
Jaafar b Ali v PP [1998] 4 MLJ 406.
Where the witness had the opportunity
to see the accused prior to the id
parade, the evidence obtained from
such a procedure has no value.
Other cases:
Girdari Lall & Ors. v. PP [1946]
MLJ (FMSR) 87 (High Court, Malaya)
A combined profile photograph is
inadmissible in evidence because it
shows more than identity.
Loke Soo Har v. PP [1954] MLJ 149
(High Court, Malaya)
It is improper to use photograph of
20
known pickpockets for purposes of
identification as the photographs
show more than identity.
PP. v. Kok Heng & Ors. [1948] MLJ
171 (High Court, Malaya)
(a).
The identification of a
suspect by photograph before arrest is
acceptable, but once he is arrested the
identification should be by personal
inspection.
(b).
The identification and the
method by which it is held must be
faultless.
PP v. Toh Kee Huat [1965] 1 MLJ 76
(High Court, Malaya)
The evidence of finger-prints is
admissible to prove identity.
Teng Kum Seng v. PP [1960] MLJ
225 (High Court, Malaya)
The evidence of a voice on the
telephone is admissible for the
purpose of proving identity.
See also:
PP. v. Amar Singh [1948-49] MLJ
Supp. 55
Leong Ah Seng v. R [1956] MLJ 225
Ong Lai Kim v. PP and Ors. [1991] 3
MLJ 111
PP v. Chiong Cheng Wah [1988] 3
MLJ 56
11.
PP v. Chan Choon Keong & Ors.
[1989] 2 MLJ 427
12.
R. v. Turnbull & Ors. [1977] QB
224
13.
Yau Heng Fang v. PP [1985] 2
MLJ 315
14.
PP v. Hussain bin Sidin [1991] 3
CLJ 2570
Recommended Readings:
1.
2.
21
Criminal Law Review. 479.Week 4
WEEK
7
22
any
situations
not
provided for or dealt
with by the other
sections in the Evidence
Act, 1950. From the
wordings of section 11,
it may seem that
anything at all may be
adduced
under
the
section.
Raja Azlan Shah J (as he was then) held
that section 11 could not be so widely read
as to include collateral matters that have no
bearing at all on the fact in issue or relevant
facts. There must be some proximate
connection between the collateral maters
and the issues before these matters can be
adduced under section 11.
Section 11 is also limited in its operation
by section 54 Evidence Act 1950.
PP v. Dato Seri Anwar
Ibrahim(No.3) [1999] 2 MLJ 1,
174-175
R v Parbhudas Ambaram (1874) 11 Bom
HCR 90
Alibi
Section 11, illustration (a).
Section 402 CPC to give notice within 10 days.
Absence of motive under s 8. Absence of
opportunity under s 7.
S 103: Burden of proof as to particular
fact + illustrations.
Dato Mokhtar Hashim [1985] 2 MLJ 335
If the accused relies on the defence of alibi,
he should create a doubt. He has the legal
burden to prove his defence.
WEEK
8
23
therewith. Generally such
evidence is inadmissible. When
a person is charged with an
offence, the fact that he has a
disposition to commit an act,
means that he has committed
the similar act.
relevant fact;
by themselves or in
connection with other
facts they make the
existence
or
nonexistence of any fact in
issue or relevant fact
highly
probable
or
improbable.
(It is highly probable that he did it or
improbable that he did not do it.)
if
Cases:
1. Abu Bakar bin Ismail v. R [1954] MLJ
67 (High Court, Singapore)
(a).
Similar fact evidence is
admissible to prove knowledge.
(b).
Propensity evidence is not
admissible under section 11(b).
Ismail v. Hasnul; Abdul Ghafar v.
Hasnul [1968] 1 MLJ 108 (Federal Court)
Section 11 does not admit
collateral facts which are neither
conclusive nor connected with the
fact in issue.
Poon Soh Har & Ors. v. PP [1977] 2
MLJ 126 (Criminal Court of Appeal,
Singapore)
The evidence of past criminal
activities is inadmissible if it is
merely intended to show that the
accused has been guilty of other
criminal acts.
See also:
4.
88
Rangapula & Ors. v. PP [1982] 1 MLJ
91
Hussain bin Sillit v. PP [1988] 2 MLJ
232
14. Facts showing existence of
state of mind or of body or
bodily feeling.
Facts showing the existence of
24
any state of mind, such as
intention, knowledge, good
faith, negligence, rashness, illwill or good-will towards any
particular person, or showing
the existence of any state of
body or bodily feeling, are
relevant when the existence of
any such state of mind or body
or bodily feeling is in issue or
relevant.
Section 15 to rebut similar
fact. Facts bearing on
question whether act was
accidental or intentional.
When there is a question whether
an act was accidental or intentional
or done with a particular
knowledge or intention, the fact
that the act formed part of a series
of similar occurrences, in each of
which the person doing the act was
concerned, is relevant.
Cases:
1. Maidin Pitchay & Ors. v. PP [1968] 1
MLJ 82 (High Court, Malaya)
(a).
Section 15 of the Evidence
Act was designed to enable
the prosecution to offer
evidence in advance to
rebut a defence which
would otherwise be open
to the accused.
(b).
The mere fact that the
evidence adduced tends to
show the commission of
other offences, does not
render it inadmissible if it
be relevant to an issue
before the jury.
2. Datuk Haji Harun bin Haji Idris v. PP
[1977] 2 MLJ 155 (Federal Court)
Evidence of system may be
adduced to rebut a defence which
is open to the accused.
25
confined to misconduct on other occasions.
Cases:
1. Yong Sang v. PP [1955] MLJ 131
(High Court, Malaya)
Evidence showing that the accused
is the sort of person who is likely
to have committed the offence for
which
he
is
charged
is
inadmissible.
2. Chew Ming v. PP [1960] MLJ 11
(High Court, Malaya)
Propensity
evidence
is
inadmissible for the purpose of proving
identity.
3. Kan Sik Fong v. PP [1961] MLJ 163
(High Court, Malaya)
Similar or non-similar fact
evidence is not admissible if its
prejudicial effect outweighs its
probative force.
4.
Nahar Singh v. Phang Hon Chun
[1986] 2 MLJ 141 (High Court, Malaya)
Evidence of similar frauds on the
part of the defendant is admissible
to rebut a defence raised.
(c).
to rebut a defence which would
otherwise be opened to the accused.
26
The Makins approach was applied 1.
X v. PP [1951] MLJ 10 (Court of
in the Malaysian cases below:
Appeal, federation of Malaya)
Evidence which is indicative of the
state of mind is admissible under
sections 11(b) and 14.
2. R. v. Raju & Ors. [1953] MLJ 21 (High
Court, Malaya)
(a).
Similar fact evidence
should only be admitted if
it has a real material
bearing to the issues as it
would be unjust to admit
highly prejudicial evidence
merely because it is
technically admissible.
(b).
27
evidence was procured legally, if the
prejudicial effect outweighed its probative
value, the judge can exercise his
exclusionary discretion to omit that
evidence.
The decision of Noor Mohamad influences
the thinking of the common law judges and
this in turn influences the outcome of
Boardman, whether the evidence is of
probative value, to shut out prejudicial
effect that would create injustice to admit
that evidence of previous act. The principle
of Boardman was that the similar fact
evidence of other offences must be
strikingly similar with that evidence given
in. Because of high probative value you can
get it admitted. If this similar fact evidence
was not allowed, it would be an insult to
common sense.
In the House of Lords Lord Hailsham
admitted similar fact evidence provided the
way the offence was committed was
strikingly similar, bound to have high
probative value despites its inevitable
prejudice. If there is no strong evidence
aliunde, cannot admit similar fact evidence.
Malaysian cases adopting Boardmans
principle
1.
PP v Veeran Kutty [1990] 3 MLJ
498.
2.
Junaidi bin Abdullah v PP [1993]
3 MLJ 217.
The approach in DPP v P
In DPP v P [1991] 3 WLR 161, the
accused committed incest with his 2
daughters. The mother made a police
report and the accused was charged
with statutory rape. In this case the
similarity was not striking but the
system was there. The trial court
admitted the similar fact evidence.
ON appeal it was held that according
to Boardman for similar fact evidence
to be admissible, it must be strikingly
similar. In this case the evidence were
28
not strikingly similar.
Recommended Readings:
1.
Jeffrey Pinsler. 1989. Similar Fact
Evidence: The Principles of
Admissibility.
Malayan
Law
Journal. 2. lxxxi.
2.
3.
4.
29
5.
6.
Stone, 1932. The Rule of Similar
Fact Evidence. Havard Law Review. 46.
954
WEEK
9, 10
7.
8.
SECTIONS 17 TO 31: ADMISSION & S 17(1) reads with 18 & 21. S 17(1) gives
CONFESSION
partial definition of admission. It is
completed by s 18. Under s 17(1) an
Provisions for Admission: Sections admission is a statement, oral or
17(1), 18-21, 31.
documentary stating or suggest a fact in
Provisions for Confession: Sections issue or relevant fact made by people under
17(2), 24,25,26,27,28,29 &30.
the circumstances found in s 18:
1. by parties to a proceeding
Admission is informal admission
2. by authorized agents
under sections 17 to 31. It is extra3. by representation
judicial admission or admission made
4. persons who have any proprietary
out of court. Formal admission in s 58
or pecuniary interest
only applicable in civil cases.
5. persons from whom the parties to
Although the Malaysian Evidence Act
the suit have derived their interest
owes its inspiration from India, it is
in the subject matter of the suit.
slightly different. India does not have
s 17(2). Ours is similar in Sri Lanka,
1.
Datuk Seri Anwar Ibrahim
Singapore & Brunei.
(No 3) Paul J.
Proceedings include criminal
Section 17:
proceeding.
An admission is a statement, oral or
documentary, which suggests any
2. Mary Clyde v Wong Ah
inference as to any fact in issue or
Mei (1970) 2 MLJ 163
relevant fact, and which is made by
any of the persons and under the
circumstances
hereinafter
mentioned.
Cases:
MEANING AND PRINCIPLES OF CONFESSION
1.
Seyadu v King [1951] 53 NLR
251.
According to Stephen, confession is
an admission made at any time, by a Direct admission of stabbing.
30
person charged with a crime, stating Read all the statements together. Does this
or suggesting an inference that he give rise to inference that he actually did
committed the crime.
the offence. Use the objective test. Section
17(2) is much broader than the Indian law.
17(2): A confession is an admission
made at any time by a person 2.
Pakala Narayana Swami v R
accused of an offence, stating or [1939] MLJ 48.
suggesting the inference that he Sir John: An admission of an incriminating
committed that offence. It has no fact is not a confession. To amount to
application in Sarawak.
admission, it must be plenary in nature.
This definition of confession has 2
parts.
1. Where
he
makes
an
admission stating the fact in
issue. A direct admission is
relevant.
2. Suggesting the inference.
In the police station he told everything.
3. Anandagoda v R [1962] 1 These are pieces of cumulative evidence.
WLR 817. The objective No-where in the statement suggests he had
test.
run over her with the car. Only read at the
totality of the evidence. At the trial court
these statements were admitted and he was
convicted. His appeal was rejected.
At the Privy Council the major plead of
defence was that the court had erred in law
(s 25 & 26). Crown counsel argued that
what the learned brother had said is true. If
the statement is a confession, it should not
be admitted.
BUT
Was that a confession? Look at the
definition of confession. S 17(2) stating or
suggesting was there a direct admission?
Can you draw an inference? It is not a
confession but still admissible as an
admission under s 17(1), 18 & 21. His
appeal was dismissed.
Lord Guest:
Whether a statement
amounts to a confession or
not must be decided
objectively, taking the
statement as a whole and
without
reference
to
31
extrinsic facts.
Confession to be an admission
1. Must be a confession s 17(2).
2. Made voluntarily s 24.
The objective test in Anandagoda
the inferential admission of guilt by
the accused charged took at the
statement in totality. This was applied
in Lemanit v PP [1965] 2 MLJ 26. A
confession is a statement, taken as a
whole without reference to extrinsic
facts, which states or suggests the
inference that the maker committed
the offence. If the inferential
statement was a confession made
involuntary, it is inadmissible. Once a
statement a confession by applying
the Anandagoda objective test, the 2nd
stage must be covered to be
admissible it must be relevant and
voluntary. (s 24).
A confession in a cautioned statement
tendered by the prosecution, the
defence must straight away object, it
is not voluntary. If the counsel did not
object, the cautioned statement is
presumed to be voluntary. How much
evidence must be tendered to say that
32
the evidence is involuntary It is not
necessary to have a lot of evidence to
activate voir dire. Mere bald
statement will not suffice. The
defence must submit a well reason
premise, probable that the statement
was made involuntarily. Need not be
evidence under section 3. Here the
prosecution has to prove statement
was voluntary beyond reasonable
doubt.
Section 24 If a confession is a result
of inducement, threat, promise
held out by a person in
authority (someone who can
influence the outcome of the
trial), which give rise to a
believe in the mind of the
accused and which in the
opinion of the court he will get
an advantage or suffer an evil
of a temporal nature, that
confession is not voluntary.
1.
2.
3.
33
Recommended readings.
1. Windslow. 1977. The Admissibility of
Testimony at a Trial Within a Trial
: Not The Whole Truth. Malaya
Law Review. 19. 312
2.
1.
5.
2.
3.
4.
6.
34
cannot depart at his own free will
suffice to constitute custody.
1.
They are not identical. There are 2
clear and definite rules.
S 25 prohibits a confession made to a
police officer whether the confessor is
in police custody of police or not.
S 26 goes further. Confession made to
any person, eg fellow prisoner, friend
2.
or doctor while he is in police custody
is inadmissible unless made in the
presence of Session Court judge or
magistrate.
35
8.
9.
10.
11.
190
Muka bin Musa v. PP [1964] 30
MLJ 275
Wai Chan Leong v. PP [1989] 3
MLJ 356
Abdul Ghani v. PP [1981] 1 MLJ
25
PP v. Norzilan bin Yaakob & Anor
[1989] 1 MLJ 442
Recommended Reading:
Chin. 1988. Statements by Accused
Persons in Custody. Malayan Law Journal.
3. clii.
1.
Pulukuri Kotayya & Ors v E AIR
1947 PC 67
2.
Chandrasekaran & Ors v PP
[1971] 1 MLJ 153 (HC)
Raja Azlan Shah:
Section 27 appears to be a
concession
to
the
prosecution. If the accused
was in the custody of the
police
and
gives
information to the police
that leads to the discovery
of he fact, so much of that
information that distinctly
relates to the discovery of
the fact, can give evidence
of that information. It is an
exception to s 24, 25 &
26.
1.
Yee Ya Mang v PP [1972] 1 MLJ
120 )HC)
2 ideas:
36
1. Somebody derives knowledge.
Derivation of knowledge from the
accused to a person in authority.
2. Imparting of knowledge.
2.
Wai Chan Leong v PP [1989] 3
MLJ 356, 358.
It must also be observed
that the legislature had
sued
the
expression
information in s 27 and
therefore did not intend it
to have the same meaning
as a statement. Although
that expression is not
defined in the Act, unlike a
statement,
it
includes
knowledge derived by the
person informed by the
accused as well as the
means taken to impart that
knowledge. Per Gunn
Chit Tuan SCJ
PP v Liew Sam Seong [1982] 1 MLJ 223
Meaning of discovery
S 27 cannot be used to turn an ordinary
Connotes the idea of concealment. recovery into a discovery of fact.
With the assistance of the accused it
is discovered. If the police already
know of the facts it is not discovery.
It is recovery.
A discovery statement being taken
must
be
recorded
contemporaneously (matter of fact
very difficult)
37
that accused person gave
information that led to the
discovery of a relevant fact
is not related in any special
way to the making of a
confession. It qualifies for
admission
any
such
statement or information
that might otherwise be
suspected on the ground of
a general objection to the
reliability of evidence of
that type.
Raja Azlan Shah in Chandrasekearan
(HC)
S 27 is a concession to the prosecution. It is
the express intention of the legislature that
even though such a statement is otherwise
hit by section 24-26, any portion thereof is
nevertheless admissible in evidence if it
leads to the discovery of a relevant fact.
The reason is that, since the discovery itself
provides the acid test, the truth of the
statement that led to the discovery is
thereby guaranteed. Admissibility of
evidence under s 27 is in no way related to
the making of the confession; rather, such
evidence is admitted on clear grounds of
relevancy or directly connecting the
accused with the object recovered.
Mohamed Desa Hashim v PP [1995] 3
MLJ 350 (FC)
Sri Ram wore the legislature robe legal
fiction. S 27 is subject to s 24. (none of the
cases say). It must be voluntary. It should
be the policy of the law when such
discovery statement must be voluntary.
in a number of Indian
cases it has been held that
the
rule
permitting
admissibility in s 27 is
an exception (to section
25 &26), but it does not
qualify the all pervading
qualification enacted in s
24. (Vijay Kumar [1978]
Crim LJ 1619.) in order
for a confession or other
statement or information to
38
qualify for admission
under section 27, it must
have
been
made
voluntarily.
In Goi Ching Ang v PP (supra) a different
panel of the FC reinstated s 27 as an
independent provision. Chong Siew Fai CJ
at 524,
we are in complete
agreement, as a matter of
policy, with the view
expressed in the judgement
of this court in Md Desa,
of the desirability as to the
voluntariness of s 27
information. However, due
to the lack of language
nexus between s 27 and s
24 . Any departure from
the entrenched judicial
interpretation laid down
would be a policy issue
be
left
to
the
legislature.
The Federal Court say that by looking at
authority RAS in Chandrasekaran on s 27
being a concession to the prosecution and
an exception to s 24-26, it has been decided
by local cases that the statement is not
subject to s 24. No nexus between 24 and
27. S 27 not subject to s 24. The FC did not
want to disagree with Sri Ram who
contemplated that the statement be
volunteered. We have s 3 & s 5 of the Civil
Law Act:
. There is a vested
discretion in the trial judge
to exclude evidence which
is prejudicial to an accused
even though the said
evidence
may
be
technically admissible.
Juraimi Husin v PP [1998] 1 MLJ 537
(CA)
In PP v Krishna Rao a/l Gurumurthi &
Ors [2000] 1 MLJ 274 Kang J said while
the FC was minded to leave it to the
39
discretion of the trial judge whether to
exclude any evidence that may have been
obtained improperly from the accused, no
yardstick was prescribed to enable the
judge to decide when such evidence should
be excluded. It ids therefore clear that the
test of admissibility of evidence under s 27
when voluntariness is in issue is whether
the prejudicial effect of its admission
would outweigh its probative value.
1.
2.
3.
4.
PP. v. Liew Sam Seong [1982] 1
MLJ 223 (High Court, Malaya)
Section 27 cannot be used to turn
an ordinary recovery into a discovery of
fact.
5.
Krishnan v. PP [1987] 1 MLJ 292
(Supreme Court)
A statement is not admissible
under section 27 if it shows more
than information which distinctly
relates to the facts discovered.
6.
40
For section 27 to apply, the
information must be such as has
caused discovery of fact.
See also:
7. Queen v. Murugan Ramasamy [1965]
A. C. 1
8.
Sum Kum Seng v. PP [1981] 1
MLJ 244
9.
Packiam & Anor v. PP [1972] 1
MLJ 247
10.
Tan Hung Sung v. R. [1951] 17
MLJ 181
11.
Hashim & Anor v. PP [1956] MLJ
233
12.
PP v. Jamali b. Adnan [1985] 2
MLJ 392
13.
Chong Soon Koy v. PP [1977] 2
MLJ 78
14.
PP. v. Norzilan Yaakob & Anor
[1989] 1 MLJ 442
15.
Satish Chandra Seal & Ors. v.
Emperor [1945] AIR Cal. 137
16.
PP v. Tan Keo Hock [1982] 2 MLJ
190
17.
Lan Kee Ho v. PP [1984] 1 MLJ
110
18.
Lum Kum Seng v. PP [1981] 1
MLJ 244 Choo Yoke Choy v. PP
[1992] 2 MLJ 632
19.
PP. v. Sharif Saad [1992] 2 MLJ
770
20.
PP. v. Basri Salihin [1993] 1 CLJ
420
21.
Pang Chee Meng v. PP [1992] 1
MLJ 137
Recommended Readings:
1.
2.
WEEK
11
Case law:
Per Buhagiar J in Noor
Mohamed v Palanivelu &
41
When a person is charged with
reckless driving and he makes an
admission and he was found guilty, he
is convicted by his admission. If
occurs a major injury and the plaintiff
brings a civil suit for an action on
negligence, the plaintiff wants to
admit the plea of guilty as evidence.
The plea is in a different court. The
conviction is not relevant. If the plea
is based on the admission, it is
relevant on fact in issue or relevant
fact under s 17(1), 18, 5 & 21.
42
is actual litigation contemplated
between the parties, conduct to
negotiate a settlement. During
negotiations parties made a lot of
damaging admission with a view to
settle out of court. If that negotiation
fails and then go to court, if want to
admit damaging statements made
during negotiation, these statements
are protected by section 23, without
prejudice
statements.
Without
prejudice to the rights of the parties
concurred. The court is not aware of
these statements at the time.
Section 23: Admission in civil cases
when relevant
In civil cases no admission is relevant
if it is made either upon an express
condition that evidence of it is not to
be given, or under circumstances
from which the court can infer that
the parties agreed together that
evidence of it should not be given.
Explanation Nothing in this section
shall be taken to exempt any advocate
from giving evidence of any matter of
which he may be compelled to give
evidence under section 126.
43
Section 30. Confession against coaccused
Confession by one person is taken
into consideration
against
another if:
both are tried jointly,
they are tried for the same
offence,
confession is legally proved, and
confession of the guilt affects the
maker and the others.
The current position:
As against an accused person, the
confession of a co-accused could play
a supportive role and can form a basis
of a conviction. It was held that the
natural interpretation of section 30 sis
that it allows the conviction of an
accused to be sustained solely on the
basis of a confession by his coaccused, provided the evidence
emanating from the confession
satisfies the court beyond reasonable
doubt of the accuseds guilt. In
section 3 of the Evidence Act 1950
which uses the word includes makes
the definition of evidence an
extensive one. In contrast to the
situation in India, in Malaysia
confessions by co-accused persons
may be included in the whole body of
what is understood to be evidence
within the perimeters set by our
Evidence Act. ( PP v Dato Seri
Anwar Ibrahim & Anor [2001] 3 CLJ
313, 377-385.)
44
Section
31:
Admissions
not
conclusive proof but may estop.
Admissions are not conclusive proof
of the matters admitted, but they may
operate as estoppels under the
provisions hereinafter contained.
3.
H. Singh. 1974. Anamolies in the
Law on Confession. Malayan Law Journal.
2. xlv
Admissions are not conclusive, but can
rebut. Parties relied on that admission,
change his position, may estop that person
from denying the contrary. You are
estopped from denying that fact if other
party suffer a detriment.
Under section 31, admissions are not
conclusive proof of the matter admitted but
may operate as estoppels under sections
115 and 117 of the Evidence Act 1950.
WEEK
12
45
evidence. However, the rule is subject hearsay. They ruled:
to a number of exceptions.
Evidence of a statement made to a
witness by a person who is not himself
The Evidence Act 1950 does not
called as a witness may or may not be
define hearsay although Stephen
hearsay. It is hearsay and inadmissible
clearly intended to exclude such
when the object of the evidence is to
evidence. Instead, the Act stipulates
establish the truth of what is contained
the circumstances where out-of-court
in the statement. It is not hearsay and
statements are admissible, that is, it
admissible when it is proposed to
declares relevant certain types of
established by the evidence, not the truth
out-of-court statements such as
of the statement, but the fact that it was
admissions,
confessions,
dying
made.
declarations and business records.
Since only relevant facts are It is admissible provided that it is
admissible, it follows that an out-of- relevant.
court statement that does not fall into
any of those categories is irrelevant Cases:
and inadmissible. (See also section 60 1.
Re Soo Leot [1956] MLJ 54 (High
of the Evidence Act 1950.)
Court, Malaya)
2.
Leong Hong Khie v. PP; Tan Gong
Wai v. PP [1986] 2 MLJ 206
(Federal Court)
See also:
3.
4.
5.
6.
7.
Recommended Readings:
1.
2.
3.
4.
5.
6.
46
Exceptions:
Section 32. Statements of Persons
Who Cannot Be Called as
Witnesses.
Before we can admit hearsay Other relevant case: Satish Chandra Seal v
evidence under section 32, must lay a Emperor (1944) 2 Cal 76.
foundation.
4 reasons to admit hearsay evidence.
1. Maker who has since died.
(To prove death to bring the
death certificate, or the
witness has seen him die, or
under s 108, if the person had
not been heard of in not less
than 7 years by the people
whom he would have
communicated, the court can
draw a presumption).
2. Maker cannot be found after
diligent search.
3. He has been incapable of
giving evidence because of
his illness of body and mind.
4. He is out of jurisdiction and
to call him would cause
unduly delay and expense.
Statements made by such persons are
relevant in the cases outlined in paras
(a) to (h) of the Act. Before a
statement can be adduced under any
of the said paras (a) to (h), one the
four preconditions, mentioned above,
must first be satisfied. If this is not
satisfied, then the out-of-court
statement cannot be adduced.
1.
Yeo Hock Cheng v R [1939]
Section 32(a) Dying declaration
MLJ 91
2.
Pakala Narayana Swami v
The concept under the code is wide
King Emperor. [1939] MLJ
than in common law. It includes
59
statements made by the deceased as to
cause of death or circumstances of
transaction relating to his death. It Per Abdul Malik Ishak J in Yong Kong Tai
also applies to civil and criminal v Salim bin Jalal & Anor [1997] 2 MLJ
380, 388-389, a common sentiment was
cases.
47
48
1.
2.
Chandrasekera
alias
Alisandiri [1939] AC 220
R v Abdullah 1887 All
A dying declaration to be in
writing, the actual words of the Where a dying declaration is made in
deceased must be recorded.
answer to questions then the questions
should be recorded. If the statement is
taken down in writing by person such as
the police or a nurse, as far as possible
should be in Q & A form (ipsissima verba)
because or not the writer is bound to
introduce his own opinion, which is
hearsay.
Per Briggs Ag J in Naranjan Singh v PP
[1949] MLJ 122, 123:
We desire to stress once
more that it is desirable
that, where a deposition is
made in answer to
questions,
the
record
should show the questions
asked and the answers
given. If this is not done,
the value of the deposition
may fairly be questioned,
although a detailed record
might show the criticism to
be unjustified.
1.
49
deceased must be given.
1.
2.
1.
2.
50
3.
1.
Boota Singh v. PP [1933]
MLJ 195 (High Court, Malaya)
The out-of-court assertion must
have proximity to the cause of the
makers death, or to any of the
circumstances that resulted in his
death.
2.
Mary Shim v. PP [1962]
MLJ 132 (High Court, Malaya)
The history of her illness as related
by the deceased to the doctor
before she died is admissible under
section 32.
3.
Ong Her Hock v. PP
[1987] 2 MLJ 45 (Court of
Criminal Appeal, Singapore)
The recollection of the last words
of a dying man by a witness who
heard the actual words at the
scene may properly be received in
evidence.
4.
Chan Phuat Khoon v. PP
[1962] 28 MLJ 132 (High Court,
Malaya)
For a statement to be admissible
under section 32, the maker, if
alive, should be a credible witness.
5.
Toh Lai Heng v. R (1961)
27 MLJ 104 (Court of Criminal
Appeal, Singapore)
If a dying declaration is reduced to
writing, then the actual words of
the deceased must be recorded.
See also:
6. Chandrasekaran v. R [1937] AC 220
7. Kusa & Ors. v. State of Orissa (1980)
AIR SC 559
8. Abdul Sattar v. State of Mysore (1956)
AIR SC 168
51
Recommended Reading:
Jeffrey Pinsler. 1988. The Problem of
Recollection Concerning Statements of
Deceased Persons. Malaya Law Review.
30. 178.
Cases:
Section 32(b): Statements made in
ordinary course of business, and
1. Sim Tiew Bee v. PP [1973] 2 MLJ 200
consisting, of the following:
(Federal Court)
An out-of-court statement made in
a)
Entry in books which are kept
the course of business is
in ordinary course of business
admissible if it is proved that the
or in
discharge of
maker of it is dead, or cannot be
professional duty;
found, or has become incapable,
or whose attendance cannot be
b)
Acknowledgement of receipt
procured.
of money, goods, securities or
property of any kind written 2. Syarikat Jengka v. Abdul Rashid
[1981] 1 MLJ 201 (Federal Court)
or signed by him.
Before a statement can be
admissible under section 32(b), it
c)
Documents used in commerce
must be proven to have been made
usually dated, written or
in the ordinary course of business.
signed by him.
See also:
For example, see illustrations
3. PR v. Lin Ah Hoi [1992] CLJ 1375
(b) , (c) , (d) , (g) and (j).
4.
Ng Yiu Kwok & Ors. v. PP [1989]
3MLJ 166
Section 32 (c) - Statements against Cases:
the interest of the maker.
1.
2.
Self-interest induces a man to be
cautious and he is not likely to make a
3.
statement to his own detriment ,
unless it is true.
4.
Interest against which declarations are
5.
made:
(a) Pecuniary interested;
(b) Proprietary interest;
(c) Interest in escaping criminal
prosecution , e.g., confession of
accused who is dead implicating
himself and an accomplice in a
52
crime;
(d) Interest in escaping suit for
damages.
For example, see illustrations (e)
and (f).
Section 32(d):
opinion as to:
Statements giving
53
by the common law
restrictions.
(b).
The illustration given in
the statute does not in fact illustrate the
section.
2. In Re Estate of Chan Chin Hee [1948]
SCR 6 (Supreme Court, Borneo)
The entry of a sons name on a
tombstone of the deceased is
admissible evidence of pedigree
relationship.
3. Lee Kim Luang v. Lee Shiah Yee
[1988] 1 MLJ 193 (High Court,
Malaya)
The inscription in Chinese
characters on the tombstone of the
deceased was admissible as it
showed a father-son relationship
of two deceased persons within the
meaning of section 32(f) of the
Evidence Act 1950.
Section 32 (g): Statements contained
in any document relating to a
transaction mentioned in section
13(a).
See also:
Section 32 (h): Statement by several
persons, expressing feeling.
For example, see. Illustration (n).
1.
PP v. Forster [1988] 2 MLJ 594
2.
Lim Kim Luang v. Fee Shiah Yee
[1988] 1 MLJ 193
3.
Mohamed Abu Bakar v. Syed Abu
Tahir [1990] 1 MLJ 26
4.
PP v. Abdul Rahim [1990] 3 MLJ
188
5.
Shanmugan v. Pappa [1994] 2 CLJ
265
6.
PP v. Robert Boon Teck Chua
[1995] 1 CLJ 102
7.
Michael Anayo Akaboyk [1995] 3
MLJ 42
8.
Nembard v. R - [1982] 1 All ER.
183
9.
Tucker v Oldbury KDC [1912] 2
KB 317
10.
Ward v. Pitt [1913] 2 KB 130
11.
Du Bost v. Benesford [1810] 2
Camp 511
12.
PP v. Mohd Fairus b. Omar [1997]
54
5 MLJ 57
See also:
Are relevant in a:
3.
Duncan v. P.P [1980] 2 MLJ 195
(a) subsequent judicial proceeding: 4.
Dato` Yap Peng v. P.P. [1993] 1
or
MLJ 337
(b) later stage of the same 5.
Union Alloy (M) Sdn. Bhd. v.
proceeding.
Sykt. Pembenaan Yeoh Tiong
Conditions of relevancy of such
evidence are:
(a) if the proceeding was between
the
same
parties
or
representatives;
(b) if the adverse party in the first
proceeding had right and
opportunity to cross examine;
and
(c) if the question in issue were the
same in the first and
subsequent proceedings.
6.
7.
26
8.
131
Recommended Reading:
55
WEEK
13
OPINION EVIDENCE
Relevant provisions: sections 45-51.
General principle
When a witness is called to give
evidence, he must give evidence of
fact of what he has perceived. The
witness cannot give opinion of the
facts. Only the court or the judge can
give an inference of the facts. In
many matters such as scientific or
medical matters, the court cannot give
proper judgment. The court can call
persons to give opinion to assist the Leading cases:
1.
Junaidi v PP [1993] 3 MLJ
court in informing the judge.
217
2.
PP v Muhamed bin Sulaiman
Major section, section 45:
1. When the court has to form
[1982] 2 MLJ 320
an opinion upon a point of
3.
PP v Virammal AIR 1923 Mad
foreign law or of science or
178.
art, or as to identity or
4.
Khoo Hi Chiang v PP [1994]
genuineness of handwriting
1 MLJ 265, 270or finger impressions, the
opinions 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.
2. Such persons are called
experts.
Question of identity, relevant under
section 9.
Section 45: Opinion of experts is
relevant upon a point of:
Foreign law;
Science;
Art;
Identity of handwriting; or
Finger impressions.
56
the experience and knowledge of a judge.
1.
Syed Abu Bakar v PP
[1984] 2 MLJ 19, 23
An opinion of an expert must be supported.
2.
UAB
v
Tai
Soon
Construction Sdn Bhd [1993] 1
MLJ 182, 187-188
When the witness gives evidence of the
fact, the court will draw an inference
whether the fact is proven or not. It is not
admissible for a witness to give an opinion
because opinion evidence is less probative
and not relevant. Secondly if the witness is
allowed to give opinion evidence it will
usurp the function of the court. Giving
opinion is only the role of the judge.
There are 2 exceptions.
1. When the witness observes the
facts, sometimes there is a total
mix-up between opinion and facts.
Facts and opinion becomes
intertwined. Law in its wisdom will
allow opinion evidence. For
example when the witness is to
give an opinion on the speed of a
vehicle, the witness shall perceive
that it is fast or not. In this instance
the opinion of a layperson can be
received. Other examples would be
the state of the weather, or state of
drunkenness. In these situations
facts and opinion intertwined. Not
fair to cogent justice to preclude
such opinion evidence of a
layperson. In these circumstances
the court can receive non-expert
evidence. The question will be on
how much weigh does such
evidence have and it will depend
on circumstances.
2. Opinion of an expert. Section 47 is
an example of a non-expert
opinion. It deals with handwriting
opinion.
57
The judge has to enquire the Whether he had acquired the expertise by a
persons qualification as an expert systematic academic study, or has an
in that particular field.
exception in that field. He court can
determine by his knowledge and how he
acquired it. The rationale is that when the
court does not have the expectation on the
subject matter of that enquiry, and the court
cannot form an opinion without an expert,
the court can ask an expert to assist the
court.
Case law
Folkes v Chadd 99 ER 589
An expert may base his opinion on a
description given to him.
Case law:
R v Mason (1911) 7 Cr App R 67.
58
59
foreign law.
9. U.
Viswalingam v. Viswalingam
[1980] 1 MLJ 10.
English court had to have expert
evidence given on certain questions
regarding Muslim family law in
Malaysia.
10. Teng Kum Seng v. PP [1960] MLJ 225
(High Court, Malaya)
The evidence of an expert on handwriting,
especially Chinese characters must be
treated with caution.
Section 46 Facts bearing upon For example see, illustrations (a) and (b).
opinions of expert
Facts not otherwise relevant are
Collector of Land Revenue v. Allapa
relevant if they support or are Chettiar [1971] 1 MLJ 43
inconsistent with the opinions of
Singapore Finance Ltd. V. Lim Kah
experts when such opinions are Ngam [1984] 2 MLJ 202
relevant.
Syarikat Perkapalan Timor v. UMBC
[1982] 2 MLJ 193
Facts not otherwise relevant, are
relevant:
if they support opinions of
experts, or
if they are inconsistent with
opinions of experts.
This is by opinion of an expert against
an expert.
OPINION OF HANDWRITING
EXPERT
60
found that the documents were forged. On
appeal of the major ground was the judge
had erred in law because he had relied on
the opinion of a handwriting expert. It is
not conclusive and must be corroborated.
MUST THE OPINION OF A HANDWRITING
61
may be familiar with his handwriting, and
she can be called to give opinion on the
handwriting. However, in this respect I
dont agree that the secretary gives an
opinion of a non-expert. If the person is
already familiar with her bosss
handwriting, she is an expert and to
determine whether she is an expert, is a
preliminary question. It is the question for
the judge to decide whether she is peritus.
(an expert). How much weight to give on
such evidence depends of the standing of
the witness.
Section
73:
Comparison
of Other mode:
signature, writing or seal with If the handwriting is in issue, can ask the
others admitted or proved.
writer to write a specimen and the court
will compare. In this situation, still use
section 45 for expert opinion. It is quite
imprudent not to use section 45. It is useful
to require an expert. Is the judge clever
enough to compare the specimen? (see
Fakhruddin v State of Madhya Pradesh)
Opinion of person as to handwriting is
relevant if he is acquainted with the
handwriting. A person is acquainted with
the handwriting if:
a. he has seen the person writes;
b. he has received documents in answer;
c. documents are habitually submitted to
him in the ordinary course of
business.
1.
R. v. Lim Chin Shang [1957] MLJ
125 (High Court, Singapore)
Experience may be a basis for
accepting a witness as an expert.
2.
Lim Ting Hong v. PP [1966] 2
MLJ 119
In matters relating to secret
societies, the courts are prepared to
accept a witnesss personal
experience as the basis of his
expert knowledge.
Ultimate issue rule
When a witness comes to court he
gives evidence of fact relevant to fact
in issue. Witness cannot give opinion
For example:
A commits murder and claims that he has
non compos mentes, he did not know the
nature of the act. The judge cannot form an
62
of ultimate issue. For example when
the prosecution wants to prove a
negligent act, the prosecution only
gives evidence to prove these issues.
Section 5 and 136 makes only
relevant fact or relevant fact in issue
and of no other. The court is to form
an opinion or to draw an inference as
to the ultimate issue. This is the role
of the court. Only the court decides.
Opinion evidence never decides the
ultimate issue.
63
and not relevant. Secondly if the witness is
allowed to give opinion evidence it will
usurp the function of the court. Giving
opinion is only the role of the judge.
See also:
16. Syed Abu Bakar bin Ahmad [1984] 2
MLJ 19
17. PP v. Mohamed Kassim Yatim [1977]
1 MLJ 64
18. Chandrasekaran & Ors. v. PP [1971] 1
MLJ 153
19. Teng Kun Seng v. PP [1960] 26 MLJ
225
20. R. v. Lim Chin Sheng [1957] 23 MLJ
125
21. PP v. Lee Ee Teong [1953] 19 MLJ
244
22. Chin Sen Wah v. PP [1958] 24 MLJ
154
Wong Swee Chin v. PP [1981] 1 MLJ 212
(a).
The role of the expert witness.
Ong Chan Tow v. R [1963] MLJ 160
(High Court, Singapore)
Experts should not be asked to give
conclusion on matters which are
eminently matters for the court to
decide.
Chin Sen Wah v. PP [1958] MLJ 154
(High Court, Malaya)
The ultimate decision on any issue
is with the court.
Wong Swee Chin v. PP [1981] 1 MLJ
212 (Federal Court)
It is the tribunal of fact that decides
on the ultimate issue and the
value of any evidence, including
the experts.
Wong Chop Saow v. PP [1965] MLJ
247 (High Court, Malaya)
Stipulates the procedure to be
followed when an expert gives
evidence.
See also:
PP v. Chong Wei Khan [1990] 3 MLJ
165
PP v. Lin Lian Chen [1991] 1 MLJ 316
64
(b).
Conflicting opinion evidence.
1. Collector of Land Revenue v.
Alagappa Chettiar [1971] 1 MLJ
43 (Privy Council)
Where there is a conflict between
the opinions given by more then
one expert, the judge has a right to
prefer one opinion to the others.
2. Singapore Finance Ltd v. Lim Kah
Ngam (Spore) Pte Ltd & Eugene
HL Chan Associates [1984] 2 MLJ
202 (High Court, Singapore)
In evaluating the conflicting expert
evidence, the court may examine
the scientific grounds and bases on
which they rely.
3. Pavone v. PP (No.2) [1986] 1 MLJ 423
(High Court, Malaya)
When there is a difference in the
evidence between two witnesses on
scientific matters, such as drugs,
then it is incumbent on the party
concerned to have expert testimony
to explain the difference.
4. Dato Mokhtar Hashim & Anor v. PP
[1983] 2 MLJ 232.
The court preferred the evidence of
one expert to that of another on
questions regarding the alleged
murder weapon.
Recommended Readings:
1.
2.
Some
Reflections
From
Malaysia. Journal of Malaysian
Comparative Law. 243.
65
4.
Doyle QC.
Admissibility of
Opinion Evidence. Australian Law Journal.
61. 687
5.
Jackson. 1984. The Ultimate Issue
Rule. Criminal Law Review. 75.
6.
Peter Gillies. 1986. Opinion
Evidence. Australian Law Journal. 60. 597.
7.
Zafrullah. 1990. Expert Testimony.
Journal of Malaysian Comparative Law.
243
8.
Eddy Q.C. 1955. The Infallibility
of Fingerprints. Criminal Law Review. 34
9. Wilson. 1958. Detection of Fingerprint
on Documents. Criminal Law
Review. 591
66
Misra and Ors (1959) AIR SC 914.
See also:
3. Lai Yong Koon v. PP [1962] MLJ 327
WEEK
14
3.
67
4. Wong Foh Hin v. PP [1964] MLJ 149
(Federal Court)
Section 54 does not make
inadmissible any character
evidence which is otherwise
admissible under some other
sections of the Act.
5.
See also:
6.
R v. Butterwasser [1948] 1 KB 4
7.
R v. Winfield [1939] 4 All ER 164
8.
Jones v. DPP [1962] A.C. 635
9.
Maxwell v. DPP [1935] A.C. 309
10.
Murdoch v. Taylor [1965] A.C.
574
11.
Selvey v. DPP [1970] AC 304
12.
Loke Soo Har v. PP (1954) MLJ
149
13.
Girdari Lall v. PP [1946] MLJ 87
14.
PP v. VeeranKutty [1990] 3 MLJ
498
15.
PP v. Choo Chuan Wang [1992] 2
CLJ 1242
Judicial Notice and Formal
Admissions
See sections 56, 57 and 58.
General Rule: All facts in issue and
relevant facts must be proved.
Exceptions: Sections 56 and 57.
Cases:
1.
Ramah v. Laton [1931] 6 FMSLR
128 (SC, FMS)
Islamic Law is not foreign but
local law and therefore, the courts
must take judicial notice.
2.
68
expediency. It expedites hearing of
many cases and produces uniformity
of decision on matters of fact.
5.
6.
69
1. Development of forensic
technology
Forensic
science
and
techniques
2. Forensic Evidence a class of
Real Evidence
a. Fingerprint
b. Blood samples, blood
alcohol
levels,
grouping of blood
stains.
c. Bodily samples
d. DNA profiling
e. Footprint
f. Ballistic test
g. Investigation of arson
h. Visual images of
suspects fotofit,
subject to Turnbull
warning.
3. Legally and illegally obtained
forensic evidence
a. Consent to take nonintimate samples
b. Consent
to
take
intimate samples
c. Police procedures in
taking samples.
4. Fingerprint
a. Breach of safeguard
b. Refusal of consent/
without consent
c. Destruction
of
samples
d. Expert evidence
e. Identification
f. Standard for match
g. Availability
of
database
of
fingerprint samples.
5. DNA profiling
DNA profiling technique
Restriction
Fragment Length
Polymorphison (RFLP)
70
LBC Information Services 1999.
Development of Forensic
DNA profiling
CASE LAW:
Application of DNA profiling
PP v Ahmad Najib Aris 2004 CLJ 21
to the law
(The Canny Ongs Case)
Limitation of DNA profiling.
a. Expert evidence
PP v Hanif Basree Abdul Rahman
b. Guideline to deal
2004 3 CLJ 34
with DNA evidence
(The Noritta Case)
c. Identification
of
DNA
PP v Mohd Abbas Bin Danus Baksan
d. Collection of samples [2004] MLJ 160
e. Likelihood of stains
being left at the crime
scene
f. Matches
g. The challenge of
presentation of DNA
evidence.
h. Prosecution fallacy
i. Random occurrence
ratio
j. Statistical evidence
k. Weight of evidence
l. The future of the
admissibility of DNA
profiling evidence
6. Blood samples
a. Inferences to be
drawn for refusal to
consent
b. Intimate samples
c. Production
of
evidence
d. Blood tests- expert
evidence
e. Blood and other
scientific test of
paternity
7. Bodily Samples
a. Blood and body
tissues
b. Dental Impression
c. Hair
d. Intimate samples
e. Order for taking of
samples
f. Samples taken at
police station
71
g. Destruction
samples
of
8. Drugs
2
methods
of
identifying
cannabis, ganja, heroin exhibit
Fingernails chipping exhibit
Essential Readings
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Recommended
Books 1.
For Further Readings:
2.
3.
4.
72
Australia: Butterworths.
Statutes:
1.
2.
3.
Proposed Start
Date (Semester)
Semester 1, 2006/2007
Prepared by:
Prof. Dr. Hj. Mohd. Akram Shair Mohamad
Mr. Mohd Shahrizad Mohd Diah