Law of Evidence – Chapter 1

Latin words: evident evideria which means to show clearly, to make clear, to discover
clearly, to make certain
Section 3 of Evidence Act 1950 - 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;
(b) all documents produced for the inspection of the court: such documents are called
documentary evidence;
The law of evidence deals with establishing the facts in issue, ascertained in each
particular case by the pleadings or by the elements of an offence.
The law of evidence determines how parties are to convince the court of the existence
of those facts which, according to the provisions of substantive law, would establish the
existence of the alleged right or liability.
The Evidence Act is divided into 3 main parts namely
1. Relevancy (Preliminary; Relevancy of facts)
2. Proof and Production (Facts which need not to be proved; Oral evidence;
Documentary evidence; Admissibility of evidence obtained under mutual
assistance in criminal matters requests; Exclusion of oral by documentary
evidence)
3. Effect of evidence. (Burden of proof, Estoppel, Witnesses; Examination of
witness; Improper admission and rejection of evidence)
Purpose of Evidence Act
• Determine the admissibility of evidence (relevancy and proof)
• Ensure evidence produced in court is reliable
• Ensure tendering of the best evidence possible
• Ensure evidence is limited to the scope of material and relevant facts
• Provide the mode of production of material evidence in court
• Enable smooth production of material evidence in court
• Provide some degree of certainty in situations of like cases
• Balance the interests of the parties to the litigation

Sources of evidence law in Malaysia

 - Evidence Act 1950
- Common Law
- Indian Decisions
- Decisions of other jurisdictions

Application and extent of Evidence Act 1950

Section 2 of Evidence Act 1950 - 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.
Judicial Proceeding – Section 2 of Criminal Procedure Code – any proceeding in which
evidence may be taken
Court – Section 3 of Evidence Act 1950 - “court” means a court established by or under
Part IX of the Federal Constitution and includes—
(a) a Judge;
(b) a Sessions Court Judge;
(c) a Magistrate; and
(d) except an arbitrator, every person legally authorized to take evidence;
Definition of Evidence – s3
Stephen (1881) – the law of evidence decides; what sort of evidence must be given as to
a fact that may be proved; by whom and in what manner the evidence must be given by
which any fact is to be proved and what facts may and what may not be proved in such
cases.
Ratanlal – evidence include all the legal means, exclusive of mere argument that tend to
prove submitted judicial investigation. He defines evidence to be any matter of fact, the
effect, tendency or design of which is to produce in the mind a persuasion, affirmative or
disaffirmative of the existence of some other matter of fact.
Evidence includes oral evidence which comprises statements which the court permits or
requires to be made before it by witnesses in relation to matters of fact under inquiry
and documentary evidence which refers to all documents produced for the inspection of
the court.
Evidence may also consist of materials things, particularly when oral evidence refers to
such things.
Oral Evidence – s60
 - Statements made by witnesses in court in relation to matters of facts under
inquiry.
- Must be direct –
- Exp : if it refers to a fact which could be seen, it must be the evidence of a
witness who says he saw it; if it refers to a fact which could be heard, it must be
the evidence of a witness who says he heard it; if it refers to a fact which could
be perceived by any other sense or in any other manner, it must be the evidence
of a witness who says he perceived it by that sense or in that manner.
PP v SANASSI – in order to constitute evidence as defined in section 3 of the Evidence
Act 1950, an oral statement made to the court as to be made by a witness. A witness can
only give evidence from the witness box and not from the dock or elsewhere. The court
held that the statement of an accused from the dock is not evidence
Documentary Evidence – s3
“document” means 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;
Proof – s56, s58, s3
General rule: all facts must be proved, unless:
• a) there is presumption as to the existence of that fact
• b) the fact is admitted by the other party, or
• c) the court takes judicial notice of such fact
Bentham (1825) – the establishment of facts by proper legal means until the court is
satisfied with it.
 - Proving a fact supposed to be true is a reason for believing in the existence or
non-existence of some other fact.
- Proof of an existence of a fact in issue makes it more probable that fact exists
Author of Phipson (2000) – the law of evidence lays down the rules to establish facts
that regulate the way evidence is placed before the court to determine its admissibility.
The province of the law of evidence is therefore twofold that is to lay down rules as to
what matter is or is not admissible for the purpose of establishing facts in dispute and as
to the manner in which such matter may be placed before the courts.
Oxford Concise Dictionary of Law defines PROOF as the existence or non-existence of a
fact is established to the satisfaction of the court, including testimony, documentary
evidence, presumption and judicial notice.
Beaton (1982) – proof means proves or establishes the truth of anything, the first act or
process of proving or showing something to be true evidence that convinces the mind
and goes towards determining a problem.
Evidence and proof may/may not synonymous
Evidence is the media to bring about proof while Evidence brings witnesses, proven by
documents.
Evidence leads or generates proof.
Evidence is the cause while proof is the consequence
Proof is something that brings about a persuasion in the mind of the tribunal of fact as
to the existence or non-existence of fact in issue
“proved”: a fact is said to be “proved” when, after considering the matters before it, the
court either believes it to exist or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition that it
exists; “
disproved”: a fact is said to be “disproved” when, after considering the matters before
it, the court either believes that it does not exist or considers its non-existence so
probable that a prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it does not exist;
“not proved”: a fact is said to be “not proved” when it is neither proved nor disproved;
“relevant”: one fact is said to be
ROBINS v NATIONAL TRUST CO – When both parties fail to adduce evidence, the party
who has the burden loses his case. When the party on whom the burden lies proves a
fact, that is to say, when the party has given no evidence or has given evidence, which is
not sufficient to establish the fact, the fact is said to be not proved.