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LAW OF EVIDENCE I

TUTORIAL 2

1. Explain the scope of s.2 Evidence Act 1950.


S2. 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.

2. Explain the legal impact of the following decisions:

JAYASENA V R [1970]1 AER 219 PC


Lord Devlin said: Their Lordships do not understand what is meant by the phrase
evidential burden of proof. They understand, of course, that in trial by jury a party may
be required to adduce some evidence in support of his case, whether on the general issue
or on a particular issue, before that issue is left to the jury. How much evidence has to be
adduced depends upon the nature of the requirement. It may be such evidence as, if
believed and left uncontradicted and unexplained, could be accepted by the jury as proof.
It is doubtless permissible to describe the requirement as a burden, and it may be
convenient to call it an evidential burden. But it is confusing to call it a burden of proof.
Further, it is misleading to call it a burden of proof, whether described as legal or
evidential or by any other adjective, when it can be discharged by the production of
evidence that falls short of proof. The essence of the appellants case is that he has not got
to provide any sort of proof that he was acting in private defence. So it is a misnomer to
call whatever it is that he has to provide a burden of proof . . (online)

Lecture notes: Act is superior to Common Law

PP V YUVARAJ [1969]2 MLJ 89 PC


Diplock L said: Corruption in the public service is a grave social event which is difficult
to detect, for those who take part in it will be at pains to cover their tracks. and In
criminal proceedings, by an exception to the general rule founded upon considerations of
public policy. If the consequence of a finding that a particular fact is proved will be the
conviction of the defendant the degree of probability must be so high as to exclude any
reasonable doubt that that fact exists. Generally speaking, no onus lies upon a defendant
in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if
any of the facts which, if they existed, would constitute the offence with which he is
charged, are not proved. But exceptionally, as in the present case, an enactment creating
an offence expressly provides that if other facts are proved, a particular fact, the existence
of which is a necessary factual ingredient of the offence, shall be presumed or deemed to
exist. . . unless the contrary is proved. In such a case the consequence of finding that
that particular fact is disproved will be an acquittal, whereas the absence of such a
finding will have the consequence of a conviction. (online)

Lecture notes: Act is clear and unambiguous, no reference can be made to common law
PP V. DATO' SERI ANWAR IBRAHIM (NO 3) (1999)

Case was about the corruption of the officers but they keep trying to show evidence on
alleged sodomy. Ct held that it is not an affecting issue so no evidence on allegation of
sodomy is admissible because S5 of evidence act dont allow it.

3. Explain the meaning of the following:

a. fact in issue
S3 "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
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

b. fact relevant to fact in issue


S3 "relevant": 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 (S5 to S55) *(S6-S16)
Sir Ruper Cross: Facts not itself in issue but from which the existence or non existence of
the fact in issue may be inferred

c. direct evidence
Direct evidence supports the truth of an assertion (in criminal law, an assertion of guilt or
of innocence) directly, i.e., without an intervening inference.
d. circumstantial evidence
Circumstantial evidence, by contrast, consists of a fact or set of facts which, if proven,
will support the creation of an inference that the matter asserted is true

e. oral evidence
S3 "evidence" includes--
(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;
S 59. All facts, except the contents of documents, may be proved by oral evidence.
f. documentary evidence
S3 (b) all documents produced for the inspection of the court: such documents are called
documentary evidence;
S61. The contents of documents may be proved either by primary or by secondary
evidence.

4. Explain the operation of the law of evidence to affidavits.


S32, S73A, S91, S92 Evidence Act, O41, O38, O38r2 ROC
A. Paul- Affidavit cannot be admitted if the deponent is not called as a witness

5. The sole purpose of the law of evidence is to ascertain the truth.


Discuss.

6. the film was in essence a reconstruction of the alleged crime and quite apart from
the interval of three months , we think that evidence of this type is inadmissible..
Discuss
R v Quinn & Bloom
- owners of nightclubs were charged with allowing strip tease to be performed without
permission.
- For the sake of evidence PP brought in reconstruction where he hired girls to do it for it
to be used as evidence
- Court rejected the evidence, evidence of this type is inadmissible, allowing this kind of
evidence is not favorable, it is not the best evidence
- Best evidence affects admissibility

Different view Kajala v Noble


- Best evidence affect weight
- Copy was allowed to be used in the court even though it is not the best evidence
- Exception documentary evidence

Malaysia case law


- Chow Siew Wah v PP- dying declaration to uncle and brother is admissible as evidence
- KPM Khidmat Sdn Bhd v Tey Kim Suie- for documentary evidence second best cannot
be admissible

7. Jen has been charged with the murder of Angie alleged to have been committed on the
1.4.2007 at Angies house at about 8.00pm.

Identify the type of evidence and advise as to the relevancy of the following :

a. PW1 (Angies neighbour) testimony that he saw Jen stab Angie (direct);
b. PW2 testimony that Jen bought a knife from him on the 31.3.2007.This knife is
alleged to be the murder weapon (circumstantial);
c. PW2 is crossed examined on his previous convictions for assault (circumstantial);
d. PW3( lives opposite Angies house ) testimony that she saw Jen leave Angies
house on the 1.4.2007 about 8.30pm (circumstantial);
e. PW4 testimony that Jens boyfriend had left her for Angie (circumstantial);
f. PW4 is crossed examined on his previous relationship with Jen (circumstantial);
g. PW5 testimony that a knife was found in Jens bedroom wrapped in a newspaper.
This knife is alleged to be the murder weapon. (direct)
8. Identify the procedure to adduce the following evidence in court:

a. Documentary evidence
Need to affirm authenticity, contents and real evidence(rare)
Both parties need to agree to documents as to whether they are authentic
Contents would not be agreed unless expressly agreed to by parties
The documents do not become evidence until referred to by the parties, when that
happens they will be known as exhibits
ROC O34 r 2
Part1/A- Both authenticity and contents are agreed
Part2/B- Only authenticity is agreed, contents are disputed and can be challenged
Part3/C- Both authenticity and content are disputed

b. Oral evidence
Make an oral evidence under an oath/ affirmation (known as sworn evidence);
exceptions: child witnesses and accused can make an unsworn statement in the
kandang
S60- only facts perceived nd matters witness has personal knowledge of
O38&O41- use of affidavits
O38r2 & O39- Use of witness statements
S112 CPC& S402 CPC

c. Real evidence
- Real evidence must be adduced by a witness and marked and identified as
exhibit before it will be admitted as evidence. Marked as ID before it is
admitted in evidence
- Chain of evidence must be established

9. Explain the distinction between legal burden and evidential burden.


Legal burden of proof
- S101 (burden to establish the facts)
- Obligation to satisfy court of existence of a fact according to standard of proof set by
law
- Duty not only to adduce evidence but to adduce enough evidence to reach the standard
of proof required by the law
- R v Jayasena- Apply S3 to S105, burden of proof in evidence act refers to the legal
burden of proof and not evidential burden
-
Evidential Burden
- S102 (burden to introduce the evidence)
- Duty to adduce some evidence but not necessary to satisfy any standard of proof
- Casting a doubt
- Example: Defence of Alibi