Chapter 1 - Concept in Evidence

Question 1

CONCEPT IN EVIDENCE

Overview

Answer 1

1) Relevancy
2) Admissibility
3) Facts in issue
4) Role of the judge
5) Legal & evidential burden
6) Weight of evidence
7) Direct & circumstantial evidence

Question 2

RELEVANCY

Logical relevancy

Answer 2

DPP v Kilbourne:

1) Meaning - PROBATIVE / DISPROBATIVE: relevant if it is logically probative or disprobative;
2) How determined - REASONING: relevancy is determined by process of reasoning.
3) What it is based on - LOGIC & COMMON SENSE: it is based on logic, common sense & general experiences.
4) Conclusion - RELEVANT IF LOGIC: a piece of evidence is said to be relevant if, as a matter of logic, it makes the matter to be proved more or less probable.

Question 3

RELEVANCY

Legal relevancy

Answer 3

1) Meaning of legal relevancy - S.3 EA:
- one fact is said to be relevant to another when 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.
2) Relevancy of an evidence - S.5 EA:
- 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.
3) Explanation on section 5:

PP v DSAI (No. 3):

• evidence sought to be introduced is relevant under S.5 OR one of the sections that provides for relevancy under the Act.
• only if it is relevant under the Act it is admissible.

Thavanathan a/l Balasubramaniam v PP:

• subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible.
  4) Legal relevancy vs logical relevancy - PP v Haji Kassim:
• Admissibility is to be determined based on whether it is provided under EA;
• Even if a fact is logically probative, it is not necessarily admissible unless it is provided so under EA.

5) For matters not provided under EA - PP v Yuvaraj:
- Cannot depart from well-established principles of law.

Question 4

ADMISSIBILITY

Admissibility & legal relevancy

Answer 4

1) The concept of relevancy & admissibility: Thavanathan a/l Balasubramaniam v PP:
- Subjected to exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible.
2) How legal relevancy & admissibility relates - PP v Haji Kassim:

• Admissibility is to be determined based on whether it is provided under EA;
• Even if a fact is logically probative, it is not necessarily admissible unless it is relevant, i.e. it is provided so under EA.

3) Power of judge - S.136(1):

• judge may allow only relevant evidence to be admitted.
• judge may ask party in what way the evidence is relevant.

4) Scope of power of judge - PP v DSAI (No. 3):

• Question of admissibility = question of law = to be determined by the judge;
• If the facts are proved to be relevant (i.e. provided under EA), the judge may decide on its admissibility.

Question 5

FACTS IN ISSUE

In civil case

Answer 5

How Paik Thoo v Mohideen:

• all facts that parties must prove as stated in their pleadings;
• in order to succeed in their claims respectively.

Question 6

FACTS IN ISSUE

In criminal case

Answer 6

R v Sims:

• Ingredients of the offence & identity of the accused that must be proved by the prosecution to obtain a conviction;
• Defence that must be proved by the accused to obtain an acquittal.

Question 7

ROLE OF THE JUDGE

Overview

Answer 7

1) Putting questions & ordering documents
2) Deciding on admissibility
3) Discretion to exclude evidence

Question 8

ROLE OF THE JUDGE

Putting questions & ordering documents

Answer 8

THE LAW: S.256 CPC

• In criminal proceedings.
  1) Exercise of power - Dato’ Seri Anwar v PP:
• To be exercised carefully & cautiously;
• So as to not descend into the arena of dispute.

2) Meaning of descending into the arena of dispute - Yuill v. Yuill:
- When the judge himself conduct the examination of witnesses.
3) When can judge ask question - Gan Kok Liong v PP:

• in the interests of truth & justice.
• i.e. interests of truth & justice would suffer if he did not do that.

4) Effect of descending into the arena of dispute - Teng Boon How v PP:
- SC held that the trial judge had erred when he descended into the arena of dispute and allowed his judgment of facts to be clouded by the results of his own cross-examination.

Question 9

ROLE OF THE JUDGE

Deciding on admissibility

Answer 9

1) The law - S.136(1):

• judge may allow only relevant evidence to be admitted.
• judge may ask party in what way the evidence is relevant.

2) Scope - PP v DSAI (No. 3):

• By virtue of S.136, judge is empowered to determine the admissibility of evidence;
• Power can be exercised even before a person gives evidence & when the parties apply to summon a witness.

3) Subsequent exclusion / reversal after admitting - DSAI v PP & Anor appeal (FC, 2015):

• FC held that a trial judge may review any previous ruling he made on admissibility of an exhibit;
• If need be, he also may reverse the earlier ruling.
• OTF, DNA specimen.

Other examples:

• PP v Ng Lai Huat - hearsay
• R v Watson - confession

Question 10

ROLE OF THE JUDGE

Discretion to exclude evidence

Answer 10

1) general rule - Kuruma v R:

• Court does not concern with how evidence is obtained;
• As long as it is relevant, it is admissible.

2) exception - unfair evidence - Goi Ching Ang v PP:

• court has discretion to exclude evidence that operates unfairly against the accused.
• OTF, judge held that the accused must be reasonably protected from the danger of extraction of unreliable statements & any evidence obtained by improper means.

3) exception - involuntariness that is extraordinary - Francis Antonysamy v PP:
- illegally obtained evidence may be excluded on the ground that it was obtained through involuntariness that was extraordinary.
4) exception - evidence taken in breach of statutory provision - Aizuddin Syah v PP (CA, 2019):

• procedures under Act must be strictly followed if it is provided for;
• failure to follow would amount to breach of rule of law;
• OTF, procedure under S.31A DDA was not followed;
• it was thus a fit & proper case for the urine sample to be excluded.

Question 11

LEGAL & EVIDENTIAL BURDEN

Distinction between both

Answer 11

1) International Times & Ors v Leong Hu Yen:
- Burden of proof in S.101 - burden to establish the case, rests on one party throughout the case, i.e. legal burden.
- Burden of proof in S.102 - burden to adduce evidence, i.e. evidential burden.
2) Letchumanan Chettiar Alagappan v Secure Plantations Sdn Bhd:
- S.101: burden of proof as a matter of law & pleadings, legal burden. rests on one party & does not shift.
- S.102: burden of proof as a matter of adducing evidence, evidential burden. shifts from one side to another according to the weight of evidence.

NOTE:

1) What
2) on whom it rests

Question 12

LEGAL & EVIDENTIAL BURDEN

Discharging evidential burden

Answer 12

Jayasena v R:

• Evidential burden is strictly not a burden of proof;
• It may be discharged by evidence that falls short of proof.

Question 13

WEIGHT OF EVIDENCE

Overview

Answer 13

1) Meaning & rule in assessing weight
2) How to determine weight
3) Factors to be taken into account
4) Relevant provisions

Question 14

WEIGHT OF EVIDENCE

Meaning, scope & rule in assessing weight

Answer 14

1) Meaning:
- probative or evidential value of each piece of evidence;
2) Scope:

• the issue of weight of evidence will only arise if the evidence is admissible;
• if the evidence is irrelevant or is excluded by one of the exclusionary rules of evidence (for e.g. the rule against hearsay), then the issue of weight does not arise as the evidence is inadmissible in the first place.

3) General rule in assessing weight:

• No hard and fast rule that regulates the assessment of weight of evidence.
• Each case has to be determined on its own facts and circumstances having regards to the settled rules of evidence and common sense.

Question 15

WEIGHT OF EVIDENCE

How to determine weight

Answer 15

• The process of determining the weight to be attached to a piece of evidence is a QUALITATIVE ASSESSMENT carried out by the court.

Question 16

WEIGHT OF EVIDENCE

Factors to be taken into account

Answer 16

1) the nature of the evidence – whether it is direct or circumstantial; oral or documentary; primary of secondary;
2) the credibility of the evidence – whether the witness is an interested witness (for e.g. accomplice, close relative and etc.); the manner in which the evidence was obtained;
3) the consistency of the evidence itself and whether it is consistent with and corroborated by other evidence.

Question 17

WEIGHT OF EVIDENCE

Relevant provision

Answer 17

1) S.73A(6):
- the weight to be attached to documentary evidence admissible under s. 73A(1) and (2);
2) S.90B:
- the weight to be attached to documents produce by computer admissible under S.90A;
3) S. 158:
- the weight to be attached to evidence admissible under ss. 32 and 33 as exceptions to the rule against hearsay.

Question 18

DIRECT & CIRCUMSTANTIAL EVIDENCE

Distinction between the two

Answer 18

1) Direct evidence:

General meaning:

• Evidence which is attested directly by witness, things or documents;
• Include what they saw, heard or anything observed by the senses.

2) Circumstantial evidence:

General meaning:

• All other forms of evidence;
• A witness cannot tell directly about the fact that is intended to be proved;
• Instead, the witness presents evidence of other facts that based on a reasonable inference would conclude the fact finder to believe the intended fact to be proved.

Meaning:

• Idris v PP
• Sunny Ang v PP

Conviction based on circumstantial evidence:

• PP v Azilah Hadri & Anor

Question 19

DIRECT & CIRCUMSTANTIAL EVIDENCE

Issue 1 - whether there is a distinction between direct & circumstantial evidence

Answer 19

PP v Azilah Hadri & Anor

• The law makes no distinction between circumstantial evidence & direct evidence;
• Both may be used to provide for conviction;
• However, if CE is used to provide for conviction, it must be inconsistent with any other hypothesis than that of the guilt of the accused.

Question 20

DIRECT & CIRCUMSTANTIAL EVIDENCE

Issue 2 - whether standard of proof of circumstantial evidence is higher than direct evidence

Answer 20

1) Kartar Singh v R

• when there is direct evidence, jury is entitled to accept it & the case shall be left to them to decide;
• however, when there is circumstantial evidence, the evidence, if believed, there must be no reasonable alternative to the guilt of the accused;
• if it is anything less than this, then it is no case at all.

2) Jayarahman & Ors v PP

• Irresistible conclusion test was synonymous with SOP BRD;
• The use of expression is just merely play of words.

3) Juraimi bin Hussin v PP
- Followed Jayarahman v PP