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Evidence Law I Notes

Law of Evidence I (Universiti Teknologi MARA)

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Evidence Law

EVIDENCE LAW 1

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Table of content

Topic Page number

Historical Development of
Evidence Act 1950

Sources of Evidence Law in

Malaysia

Concept

Section 5

Section 6

Section 7

Section 8

Section 9

Similar Fact Evidence

Admission

Confession

Hearsay Evidence

Presumption

Tutorial

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Historical Development of Evidence Act 1950

1. Malaysian Evidence Act 1950 is based on Indian Evidence Act
1872, which is a codified version of English law
2. Looi Wooi Saik v PP (1962) MLJ 337 at 339, the court held that
Malaysia is governed by Evidence Ordinance which is based on
Indian Evidence Act. Indian Evidence Act was drafted by Sir
James Stephen, with the intention of codifying English law

Sources of Evidence Law in Malaysia

1. Evidence Act 1950. It should be noted that the Illustrations in
Evidence Act need not be applied strictly. As the Evidence Act is
not a comprehensive Code, the Malaysian law of evidence is
complemented by other sources of law
2. Common Law. Only if the Evidence Act is not clear and vague can
a party refer to common law.
• If the Evidence Act specifically defined and provide a certain
proposition of law, reference to the common law is not allowed.
• Saminanthan v PP [1955] MLJ 121 at 124
English decisions serve as valuable guides and indeed are
binding where the English law has been followed in the Act but
such decisions are of little assistance when those words have
been specifically defined in the Act
• The acceptance of a rule or principle derived from English law is
not permissible if it changes, varies or denies the true and actual
meaning of the statute
• PP v Yuvaraj [1969
Court must give effect to the relevant provisions of the Act,
whether or not they differ from common law
• Mahomed Syedol Ariffin v Yeoh Ooin Gark [1916]
The view of their Lordship was that the rule and principle of
the colony must be accepted as it is found in its own Evidence
Ordinance and the acceptance of a rule or principle, which is

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derived from the English law, is not permissible if it changes,

varies or denies the true and actual meaning of the statute
• Where the Act is silent on a particular matter, principles of
common law may be resorted to provided that the cut off date
under Section 3 and 5 of the Civil Law Act is observed
• Ghouse bin Haji Kader Mustan v R
For matters in which the Act is silent, the Act must be
construed in light of its common law background

3. Indian case decisions

• Khalid Panjang v PP (No 2) 1964
If a court is discussing a provision which is pari material with a
provision in the Indian statute, a decision of the Indian court is
binding
• Meelamcham & Anor v PP [1962] MLJ 213
The court held that a decision of an Indian court is not binding
on a Malaysian court. However, if it relates to the
interpretation of a statutory provision which is the same in
both India and Malaysia, such a judgment is entitled to the very
highest degree of respect. Where the Act is clear, it would be
wrong to look to Indian authorities for the purpose of
supplementing or restricting the natural meaning of the
provisions of the Act
• Chandrasekaran & Ors v PP (1971) 1 MLJ 153
In this case, the court had to decide whether the relevancy and
admissibility of a typewriting as evidence to show that a
specific typewriter had been used to prepare the specific
document could fall within the definition of science or art in
order to allow for opinion evidence on typewriters to be
admissible. The trial court referred to an Indian decision where
it was held that the admissibility of a typewriting as evidence
was not a matter of science or art within the meaning of

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Section 45 of the Evidence Act. This decision was however not

followed when it went to appeal
4. Decisions of other jurisdictions
• Ghouse Bin Hj Kader Mustam v R
Although the decisions of courts of other jurisdictions (eg: East
African decisions) are not binding on Malaysian courts, they
remain persuasive in nature.

Extent of application of the Evidence Act

1. Section 2 of Evidence Act provides that Evidence Act shall be
applied to all judicial proceedings in or before any court but not
to affidavits presented to any court or officer not to proceedings
before any arbitrator

A. The Act does not apply in a preliminary inquiry or inquest

1. Inquiry or inquest is a process performed by magistrate to
determine the cause of death
• PP v Shanmugam
The duty of the magistrate is to inquire when, where how and
after what manner the deceased came by his death and
whether any person was criminally concerned in the cause of
death

B. The Act does not apply in the Syariah courts

1. Initially the court in Ainan v Syed Abu Bakar ruled that the
Evidence Act applies to all inhabitants regardless of race or
religion
2. However it has been established that Syariah matters is a State
matter, the Syariah Evidence Enactment of each State applies
accordingly where the proceeding takes place in Syariah courts
3. Any form of lacuna in the Syariah evidence law will cause
reference to be made to hukum syarak

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C. The Act does not apply to affidavits

• Ridel-de Haen Ali v Liew Keng Pang
The Act does not apply in respect to affidavits presented to any
court or officer
1. However an affidavit may be admissible in evidence as a
statement if it is capable of being regarded as a statement in
writing in compliance with the conditions prescribed by Section
32 of Evidence Act (statement of relevant fact by a dead person)

EVIDENCE
1. It is derived from evident evideria
2. It literally means to show clearly or to prove
3. It is something which tends to prove the existence or non
existence of some fact
4. It includes the use of testimony, exhibits and documentary
evidence
• PP v Sanassi
Evidence signifies only the instruments by means of which
relevant facts are brought before the court by witnesses and
documents

LAW OF EVIDENCE
1. Law of evidence is derived from lex fori . It means evidence
shall be governed by the law of the place where the dispute
arises
2. Law of evidence is a law which governs the process of how
evidence should be obtained, adduced, used and evaluated
3. It comprises of rules governing the presentation of information
concerning facts in dispute and proof in proceedings before a
court.
4. It is rules governing the relevancy and admissibility of evidence
5. It sets out how parties to a dispute are required to convince the
court of the existence of a state of facts

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Concepts
RELEVANCY
1. Relevancy is the degree of connection between a fact that is
given in evidence and the issue to be proved (question of law)
2. Section 5 of Evidence Act provides that only relevant facts can
be produced as evidence.
3. A fact is said to be relevant when it is connected with another
fact so as to make the other more or less probable (section 3)
4. For example, in crime, facts that can prove intention and motive
would make its relevancy more probable
5. Relevancy of evidence can be divided into 2:
• Logical relevance
1. it is evidence that has tendency to make a material fact more or
less probable than it would be without the evidence
2. A fact that has the tendency to make another fact more or less
probable through logical deductions
3. In order to determine the logical relevancy of evidence:
Step 1: Review the substantive law. Look into its pleadings or
allegations depending on whether it is a civil or criminal case
Step 2: Determine whether the evidence tendered bears a
logical relation to any fact as a consequence of the logical
deductions
• Legal relevance
1. Legal evidence is evidence where the probative value (value of
believability) of the evidence outweighs its prejudicial effect
(probative danger; unfairness created by the fact)
2. In order to determine the legal relevancy of evidence:
Step 1: Assess its probative value
Probative value is determined by looking at the time the
offence is committed, how remote it is to the facts in issue and
its connection to the surrounding circumstances
Step 2: Identify its prejudicial effect

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If a fact can produce many inferences, there is prejudicial

effect. If a fact cannot be disputed, there is no prejudicial effect
Step 3: Balance its probative value against its prejudicial effect
Evidence is legally relevant and admissible only when its
probative value substantially outweighs its prejudicial effect
The outcome is dependent on the judge s discretion
The court will only admit evidence that is legally relevant
Legally relevant evidence must be logically relevant but not
vice versa
For example: Hearsay evidence is inadmissible as it is logically
relevant but not legally relevant

ADMISSIBILITY
1. Admissible evidence is evidence that the judges find useful in
helping prove or disprove a fact and admits in court
2. The moment evidence is admissible, it will go through
examination in chief
3. All admissible facts are relevant but not all relevant facts are
admissible
• Relevancy is a precondition to admissibility of evidence
• Evidence must be proven to be relevant first before it can be
admissible
• Thavanathan Balasubramaniam v PP
All evidence, which is sufficiently relevant to the facts in issue,
is admissible
• Once evidence is admitted, it cannot be rendered inadmissible
on another ground
4. Section 136(1) of EA provides that the court may inquire any
party into the relevancy of the evidence tendered and shall
admit it if it is proven to be relevant
5. Section 165 of EA provides that the court may question
witnesses or parties as to the relevancy of evidence

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WEIGHT
1. Weight is the strength, value and believability of evidence
presented on a factual issue by one party as compared to
evidence introduced by the other party (question of fact)
2. It is an assessment of probative value which admissible
evidence has in relation to the facts in issue also known as
sufficiency of proof. It can only be done once evidence has been
rendered relevant and admissible
3. It is a question of fact to be determined based on the
circumstances of each case
4. The court will look into the type of evidence, quality of evidence
and demeanor of witnesses. Evidence which carries more
convincing and probable truth bears more weight upon the case
5. There are 3 types of weight, high value, low value and no value
6. Weight is determined by question of fact. Weight of evidence
must be determined after it is admissible and relevant.
7. Weight of an evidence is determined by a trial judge

RELEVANCY AND WEIGHT OF EVIDENCE ARE DISTINCT MATTER

• RvA
A woman who was living in the same flat with her boyfriend
and the accused, a friend, had allegedly been raped by the
accused along a riverbank. The accused alleged that the
intercourse was consensual as the pair had supposedly been
having an affair. The issue was in regards to the tendering of
two forms of evidence
• Evidence of sexual history with other men. It is irrelevant to the
issue whether the victim consented to sexual intercourse on the
occasion alleged in the indictment or to her credibility thus
bearing no weight on the case
• Evidence of sexual history with the accused. Though it is
logically relevant to the issue, it cannot be proved that the victim
consented to the rape in question. Thus relevancy and
sufficiency of proof are different things. To be relevant the
evidence need merely have some tendency in logic and common

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sense to advance the proposition in issue. Although the evidence

is relevant and admissible, it is not sufficient to prove that the
victim consented to the sexual intercourse merely because of a
supposed sexual history with the accused

DISTINCTION BETWEEN CONCEPTS

1. Relevant evidence are facts that makes the existence or non
existence of another fact more or less probable
2. Admissible evidence is evidence that is legally relevant in
proving or disproving a fact
3. Inadmissible evidence is evidence that cannot be considered
by the court
4. Weight of evidence is the satisfaction of evidence that has been
admitted to a standard determined by the judge

FACT
1. External/Physical facts are any thing, state of things or relation
of things capable of being perceived by the senses
2. Internal/Psychological facts are any mental condition of which
any person is conscious

FACT IN ISSUE
1. Facts in issue are facts which parties are disputing, necessary to
establish claims, liability and defences. It does not exist in
isolation, are preceded by other facts which makes it more or
less probable
2. In criminal cases, it is the ingredient of the offence that must be
proved in the charge
3. In civil cases, facts in issue can only be pointed out by the court
after considering the pleadings filed by the parties
• PP v Yuvaraj
The degree of probability of the existence or non-existence of a
fact, which is required in order for it to be proved or
disproved , depends upon the nature of the proceedings and

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what will be the consequence in those proceedings of a finding

that a fact is proved or disproved . In a civil case, the
determination of the suit in favour of one party on a balance of
probabilities. In a criminal case, the conviction of the accused
beyond reasonable doubt

PROVED
1. Section 3 of EA- A fact is said to be proved when after
considering the matters before it, the court believes it to exist or
its existence is so probable that a prudent man ought, under the
circumstances of the case, to act upon the supposition that it
exists

DISPROVED
1. Section 3 of EA- A fact is said to be disproved when after
considering the matters before it, the court believes that it does
not exist or its non-existence is so probable that a prudent man
ought, under the circumstances of the case, to act upon the
supposition that it does not exist

NOT PROVED
1. Section 3 of EA- A fact is said to be not proved when the court
does not believe that the fact does or doe not exist or a prudent
man does not believe that its existence or non-existence is
probable

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CLASSIFICATION OF EVIDENCE
Oral and Documentary evidence
1. There are two types of evidence, oral statement and
documentary evidence. For oral statement, it must be taken on
oath if not it becomes hearsay.

ORAL EVIDENCE
1. Section 60 of EA, which provides that oral evidence must be
direct, governs oral statement; it must be either seen, heard,
perceived by the witness
2. Oral evidence that is not direct is hearsay evidence and thus
inadmissible
3. Section 59 of EA provides that all facts, except for the contents
of documents, may be proved by oral evidence
4. It is evidence offered by a competent witness under oath, which
is used to establish some fact or set of facts. A witness who has
been subpoenaed must testify, if not he will be guilty for
contempt of court

DOCUMENTARY EVIDENCE
1. The meaning of document can be found in Section 3 of Evidence
Act which provides that it is any matter expressed, described,
represented upon any substance, material, thing or article
including any matter embodied in disc, tape, film, sound track or
other device.
2. Section 61 of EA provides that for documentary evidence it must
be proved whether it is a primary evidence or secondary
evidence.
3. Section 62 of EA provides that primary evidence means the
document itself must be produced for inspection in court.
Primary evidence is the original document itself.
4. According to Section 63 of Evidence Act secondary evidence
includes certified copies, copies made from original by
mechanical process, copies compared with the original,

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counterparts of documents as against the parties who did not

execute them and oral accounts of the contents of documents
given by some person who has himself seen or heard or
perceived it by whatever means.
5. Section 90A of EA provides that document produced by a
computer, shall be admissible if the document was produced by
computer in the course of its ordinary use whether or not the
person tendering the same is the maker of such document or
statement
6. Document also be classified as public document and private
document.
7. Public document as governed under Section 74 of Evidence Act
provides that it includes documents forming the act of the
sovereign authority, official bodies and tribunal and public
officer and public records kept in Malaysia of private document.
8. Private document as governed under Section 75 of Evidence Act
provides that private documents are all documents other than
those mentioned in Section 74.

Direct and circumstantial evidence

DIRECT EVIDENCE
1. Section 60 of Evidence Act provides that oral evidence must be
direct.
2. Direct evidence can be looked at 2 perspectives. 1) Section 5 of
EA which provides that evidence may be given in any suit or
proceeding of the existence or non-existence of every fact in
issue an of such other fact as are hereinafter declared to be
relevant and of no others. 2) Section 60 of EA, which provides
that oral evidence must be direct evidence.

***It should be noted that there are 3 situations where facts need
not be proved. These are facts that are judicially noticeable as per
Section 56 of Evidence act, facts of which court must take judicial
notice as per Section 57 of Evidence Act and facts already admitted
as per Section 58 of Evidence Act.

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CIRCUMSTANTIAL EVIDENCE
1. Circumstantial evidence is used to secure a conviction.
• Sunny Ang (1960) was the first case relating to circumstantial
evidence.
In this case, the accused was a broke and he wanted to take
girlfriend s life insurance. One Sunny Ang brought his girlfriend
to go scuba diving. On that day, Sunny Ang and his girlfriend
was seen at the sea by a fisherman. 1 hour later was seen by
the fishermen to have come back. The next day, Sunny Ang
made the insurance claim. When the body was found, it was
found that the flipper has been cut
All of the circumstantial evidence provided shows motive. The
circumstantial evidence shows that there is an irresistible
conclusion that Sunny had in fact killed his girlfriend
• Sunny Ang v PP- Circumstantial evidence may also be direct. If
direct evidence is not related to facts in issue, it must be
connected to form irresistible conclusion. Circumstantial
evidence can also be direct evidence. Thus it may fall under
Section 60 of EA. Also, circumstantial evidence must be relevant
as per Section 5 of Evidence Act.
• Mokhtar Hashim v PP
The test of beyond reasonable doubt is equivalent to that of the
irresistible conclusion. Where the circumstantial evidence,
when looked at as a whole can only produce one conclusion,
thus the accused has been proven to be guilty beyond
reasonable doubt

Real evidence
• People v OJ Simpson
In this case the real evidence was a pair of gloves found in
wife s mansion. The accused was charged for murdering his ex

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wife. However the gloves adduced, as evidence did not fit his
hands, which lead to his acquittal

Hearsay evidence
1. Hearsay evidence is an out-of-court statement repeated in court
by a witness who is not the maker of the statement as evidence
to prove the truth of the matter asserted.
2. It is inadmissible in court as its prejudicial effect outweighs its
probative value. The statement repeated by the witness in court
could be concocted, fabricated and tailored to suit the witness
testimony.
3. It is hearsay and inadmissible only when the object of the
evidence to establish the truth of what is contained in the
statement
4. It is not hearsay and admissible when it is proposed to establish
that the statement was made and the state of mind of the person
who made the statement.

Best Evidence Rule

• Omychund v Barker
No evidence is admissible unless it is the best proof that the
nature of the case will alow
1. If there exists two ways of proving a matter, the more cogent
method must be adopted. For example, circumstantial evidence
should not be adduced if direct evidence is available
• Garton v Hunter
Secondary evidence is only admissible when the party is
unable to produce primary evidence (best evidence). Thus, if
an original document is available in one s hands, one must
produce it
2. If a party wants to use secondary evidence, the party must prove
absence of primary evidence
3. Primary or original evidence is needed to prove its existence

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4. Originally common law only allowed best evidence to be

tendered.
5. Failure to tender the best evidence could be fatal to the case
• How Chien v PP
The appellant s conviction for smuggling 4 packets of
cigarettes was quashed due to the prosecution s failure to
produce the smuggled objects themselves
• Chow Siew Woh v PP
The appellant s conviction for murder was quashed as the
victim s dying declaration which was the best available
evidence, revealing the murderer s name was not adduced in
court
6. Incorporation of the rule in Section 64 of EA: Documents must
proved by primary evidence
• KPM Khidmat Sdn Bhd v Tey Kim Suie
So long as the original exists and is available, it being the best
evidence, must be produced. If it cannot be had on account of
its loss, destruction, detention by the opponent, or third person
who does not produce it after notice, physical or legal
irremovable or any other cause, secondary evidence is
admissible
7. As under Section 5 of EA, even though the tendering of the best
evidence is not necessarily required as long as relevant evidence
is available, non-tendering of the best evidence would be fatal to
a case
8. Section 114(g) of EA- Failure to apply the best evidence rule may
cause the court to produce an adverse presumption against the
counsel or party

Conclusive evidence
1. Section 113 of Evidence Act provides that it shall be an
irrebuttable presumption of law that a boy under the age of
thirteen is incapable of committing rape

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2. PP v Toh Hee Kuat- If a point cannot be rebutted, it is considered

as conclusive evidence

Opinion Evidence
1. It is divided into two. A) Expert B) Non Expert
2. The general rule is that opinion of 3rd person is irrelevant unless
it is given by an expert
3. Section 45 of Evidence Act 1950 provides that when the court
has to form an opinion upon a point of foreign law, science, art
or as to the identity or genuineness of handwriting or finger
impressions, the opinions upon that point of persons specially
skilled in that areas are relevant fact they are otherwise known
as experts
4. Section 60(1)(d) of EA- Opinion of an expert is direct evidence
and can be accepted by court
• Kong Nen Siew v Lim Siew Hong
The court needed to satisfy itself whether incurable mental
illness is one of the grounds to petition for divorce under the
Foochow customary marriage. The plaintiff called for the
expert in that area to help the court in making its decision for
an order of dissolution of marriage through divorce

Character Evidence
1. Section 54 of EA provides that in criminal proceedings, the fact
that the accused person has a bad character is irrelevant, unless
the evidence has been given that he has a good character, in
which case it becomes relevant
2. Section 55 of EA provides that in civil cases the fact that the
character of any person is such as to affect the amount of
damages which he ought to receive is relevant
Similar Fact Evidence
1. If a person is convicted and convicted previously before,
prosecutor cannot use the same fact unless it has adverse effect
on current proceeding

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Voir dire trial

1. In a voir dire trial, court must determine whether evidence is
admissible or not. A hearing must be suspended in order to
allow voir dire to happen.
• In Anwar Ibrahim v PP, there was voir dire, because AI
challenged the evidence tendered as there was tampering on the
evidence given to court.

Applicable Rule for Evidence Act

1. Literal Rule
2. Purposive Rule
3. Golden Rule. It is used if text when read literally is considered
absurd
4. Mischief Rule. When there is a defect in law. if we apply literal
rule, it would defeat the purpose of the law

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Section 5: General relevancy provision

1. Evidence may be given of
- Facts in issue
- Relevant facts which relate to facts in issue
2. and of no others in Section 5 of EA means that a party cannot
tender evidence that is not relevant to the facts in issue
• PP v Haji Kassim
In order to admit any fact as evidence, it must be receivable
under the Evidence Act or by virtue of a specific provision in
any other Act
3. If the evidence is relevant, it can be admitted regardless of how
it was obtained
4. If an irrelevant evidence is tendered and accepted, it can a point
of law and a party can appeal
5. The court is not concerned as to
- When the evidence was obtained
- Whether the evidence was illegally obtained
6. However the court has discretion to exclude relevant evidence,
especially if the strict rules of admissibility work unfairly
against the opposing party or the accused
• Kuruma v PP
The accused was charged with unlawful possession of
ammunition and the court admitted evidence that was
obtained illegally as a result of a body search done by police
below the permissible rank
• R v Sang
The accused were charged with conspiracy to forge bank notes
and possession of such notes. The evidence obtained by the
police, despite the offence being committed by way of
entrapment (inducement by a police officer) was admissible as
long as it was relevant
7. If the prejudicial effect of illegally obtained evidence outweighs
the probative value, the court can exercise the discretion to not
admit such evidence

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• Haji Kassim s case.

• The court rejected an evidence obtained illegally. In Kedah, Haji
Kassim was the Imam. He had a teenage daughter and daughter
told him that she was becoming a mother. Haji Kassim was
shocked and went to the kitchen and killed her. Someone made
a call and police arrested him and brought him to see a
psychiatrist. The Imam made a confession to the psychiatrist. In
general confession can only be made to a police inspector or
magistrate. The court rejected the evidence made to psychiatrist
because it has high prejudicial effect.
• Gooi Ching Ang case (the court has discretionary power to reject
evidence improperly obtained)
This was a case about possession of free arm ammunition. The
accused was interrogated for long hours. Section 24 of EA
provides that a confession made by accused person is
irrelevant if the making of confession appears to court to have
been caused by inducement, threat, or promise having
reference to the charge against the accused person. The
accused then made a 10 pages confession after being tortured.
The police managed to find the firearm and ammunition based
on the confession made by the accused. But the accused
challenged the confession. There was a voir dire, to see
whether the confession is relevant. The court held in voir dire,
that there was no voluntariness. Therefore, the confession is
not relevant and not admissible. The court held that when the
accused gave confession, he was imposed with excessive
amount of force, which results to an extraordinary
involuntariness.
• Another issue was that the prosecution team wanted to use a
statement in page 3.
According to Section 27 of EA, it provides that when any fact is
deposed to as discovered in consequence of information
from a person accused of any offence in the custody of
police officer so much of that information whether the
information amounts to a confession or not as relates distinctly
to the fact thereby discovered may be proved. The
prosecution team was allowed to use the excerpt.

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Facts declared relevant

1. Section 136(1) of EA- The court has the discretion to question
the relevancy of the evidence tendered and exclude it if it is
found to be irrelevant
• PP v Dato Seri Anwar Ibrahim (No 3)
Where the accused was charged for corrupt practices, the
attempt to call certain witness (Mahathir and Ummi Hafilda) in
order to prove political conspiracy was refused as evidence on
conspiracy as it is irrelevant due to its political nature.
2. If it is the duty of the judge to admit all relevant evidence, it is
not less of his duty to exclude all irrelevant evidence

Burden of proof
1. Section 101 of EA (legal burden of proof) provides that whoever
desires any court to give judgment as to any legal right or
liability, dependent on the existence of facts which he asserts
must prove that those facts exist
2. Section 102 of EA (evidential burden of proof) provides that the
burden of proof in a suit lies on the person who would fail if no
evidence at all were given by either side
• International Times v Leng Ho Yuen
The court made a clear distinction between legal burden and
evidential burden.
The court held that the expression burden of proof referred to
in Section 101 is the burden of establishing a case and this
rests throughout the trial on the party who asserts facts in
issue.
The second expression (always referred to as onus of proof) on
the other hand, relates to the responsibility of adducing
evidence in order to discharge the burden of proof. The onus as
opposed to burden is not stable and constantly shifts during
the trial from one side to the other depending on the scale of
evidence and other preponderates

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3. The burden of proof rests throughout the trial on the party on

whom the burden lies. Where a party on whom the burden of
proof lies has discharged it, then the evidential burden of proof
shifts to the other party. If the party on whom the burden lies
fails to discharge it, the other party need not adduce any
evidence
4. On the other hand, evidential burden can be discharged by cross
examination of witness of the party on whom burden of proof
lies or by calling witnesses or giving any other evidence of the
combination of the different methods

Standard of proof: Quantum of proof required

1. In a criminal case- Beyond reasonable dount
2. In a civil case- On the balance of probabilities

Facts that need not be proved (where a burden of proof is not

imposed)
1. Section 56 & 57: Facts which the courts have given judicial
notice (all public Acts, course of proceedings in Parliament,
accession of YDPA etc)
2. Section 58: Facts which the parties (in a civil suit) have agreed
to admit

Courts power to ask question

• In Teng Boon How case, the magistrate actively asked question
and she even decided based on her own outcome. The action of
the Magistrate amounts to excessive intervention
1. But Section 135, 136 and 165 give powers to court ask question
only to determine the relevancy.

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Relevancy Provisions
• The relevancy provisions provide for facts which are not direct
to the facts in issue but are connected or relevant to the facts in
issue through several ways
Section 6: Direct and hearsay evidence
• Facts which are not in issue but are closely connected with a fact
in issue as to form part of the same transaction
• Whether they occurred at the same time and place or at different
times and places
• The provision, which originates from the doctrine of res gestae
covers, both hearsay and direct evidence
• Section 6 is NOT an authority of hearsay evidence
Doctrine of res gestae
• Res gestae literally means things done
• It is defined as forming part of the same transaction
• It is based on the belief that certain statements are made
naturally, spontaneously, and without deliberation, during the
course of an event thus leaving little room for misunderstanding
or misinterpretation upon someone else hearing it

Lord Wilberforce in Ratten v R indicated three different ways in

which the doctrine of res gestae may apply:
1. When a situation of fact is being consideration, the question
may arise as to when the situation begins and ends (direct
evidence)
• Illustration a to Section 6: A is accused of the murder of B by
beating him. Whatever was said or done by A or B or by the
bystanders at the beating or so shortly before or after it as to
form part of the transaction is a relevant fact
• Illustration b to Section 6: A is accused of waging war against the
Yang-Di Pertuan Agong by taking part in an armed insurrection
in which property is destroyed, troops are attacked and gaols
are broken open. The occurrence of these facts is relevant as

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forming part of the general transaction, though A may not have

been present at all of them
• Direct circumstantial evidence given by a witness who
perceived it with his own senses can be taken under the res
gestae principle to understand what really happened
• The evidence referred to can either be of events happening
before or after the fact in issue occurs
• O Leary v The King: Evidence which forms a continuous
transaction can be accepted as part of res gestae so as to fully
understand the circumstances of the fact
• This is where it is necessary to look at the event as a whole, and
not in isolation in order to understand the full impact of the facts
• The subsidiary events, whether occurring before or after the fact
in issue must be related to the principal event and not merely be
a narrative of past events
2. Evidence of spoken words (Direct evidence)
• Direct evidence given by a witness who perceived it with his
own senses that the statement was in fact made
• The statement would not be used to establish the truth of what
was said
• Eg: A witness appearing in court to account for the statement
that he heard and saw was said by the maker of the statement
(that the statement was made)
• The evidence would be used to establish the state of mind of the
maker of the statement
3. A hearsay statement made either by the victim of an attack or by
a bystander, which indicates directly the identity of the attacker
(An exception to the rule of hearsay)
• The admissibility of hearsay evidence which forms part of the
same transaction that concerns the identification of an attacker
made by a bystander or a victim immediately prior to or during
an attack
• The doctrine of res gestae becomes an exception to the rule of
hearsay in that it allows the admission of hearsay evidence
provided that it was made spontaneously (naturally),

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contemporaneously, without opportunity for deliberation and

thought so as to eliminate any possibility of fabrication
• The rationale is that where the events that occur have
dominated the mind of the maker of the statement, the
statement would be made naturally, contemporaneously, and
without deliberation thus leaving little room for any form of
misunderstanding, misconception and fabrication
• The statement uttered by the maker would be reflective of what
really occurred
• In admitting hearsay evidence under the doctrine of res gestae,
the common law developed two distinct approaches:
o Strict approach:
▪ The test of contemporaneity has to be satisfied as
the basis for admitting statements through hearsay
▪ R v Christie: Contemporaneous under this
approach is defined as at the time the facts in issue
occurred. No lapse of time is allowed for such
hearsay evidence to be admitted
▪ The timing upon which the statement is made is of
great importance. The act or words must not be a
mere narrative of past actions or a report statement.
Once the crime is complete, any subsequent
statement is inadmissible. Only words uttered at the
time of the crime are admissible
▪ R v Bedingfield (statement by the victim): The
accused was alleged to have threatened to kill the
victim by cutting her throat. One night, the accused
and the victim were in the house, when suddenly
she ran out of the house with her throat cut, uttering
See what Harry has done! which was heard by her
assistant. Held: The victim s statement did not form
part of the res gestae principle as it was uttered
after the act of cutting the throat was done and was
thus inadmissible
▪ Teper v R (Statement made by a third party
bystander): The accused was charged for setting fire

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to his own shop with the intention of claiming

against the insurance companies. A police constable
who heard a woman s voice shouting your place is
burning and you re going away from the fire saw a
car moving away but failed to see who or where the
woman was, nor could he see the fire when he heart
the shout. Held: The evidence was inadmissible as it
needed to be so connected so as to form part of res
gestae like the commission of the crime itself.
• If not absolutely contemporaneous with the
event, at least so clearly associated with it, in
time, place and circumstance that they are
part of the thing being done
o Liberal approach:
• Hearsay evidence could be admitted as part of
the res gestae principle as long as the
possibility of fabrication, misconception and
concoction is non-existent
• Although the words or actions must be
spontaneous or natural it need not necessary
be contemporaneous in that there may be a
lapse of time between the event and the
statement made
• There is no fixed time in determining
contemporaneity or spontaneity as it is
dependent on the facts of each case
• Ratten v R: The accused was charged with
murder of his wife using a shotgun. He claims
that it was an accident. However, the operator
received a call of a woman sobbing
hysterically when she asked get me the
police, please. Held: In proving that the
telephone call was in fact made by the victim,
the statement cannot be regarded as a
hearsay. This is because it is proposed to
establish not the truth of the statement, but

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the fact that it was made (direct evidence

under the doctrine of res gestae). In proving
that the victim was in fact attacked by the
accused, the statement is regarded as hearsay.
o However, applying the doctrine of res
gestae as an exception to hearsay rule,
the evidence is admissible as the
statement was closely associated with
the time and place of the shooting that
occurred (proximate to the event), thus
forming part of the res gestae. It was
made spontaneously and uttered under
overwhelming pressure, thus
disregarding the possibility of
concoction and fabrication
• R v Andrews: Shortly after it was attacked and
robbed, the victim named his attackers to the
police. However, the victim died before the
trial took place. Held: The evidence by the
police was rightly admitted as part of res
gestae.
o The event must be so unusual, startling,
or dramatic that it dominates the
thoughts of the victim so as to make the
statement an instinctive reaction which
provides no real opportunity for
reasoned reflection thus excluding any
possibility of concoction and
fabrication

• The liberal approach may be applied when considering hearsay

evidence of a statement made by the victim of the offence
o Where the impact of the event is so grave upon the
victim s mind, this renders the fabrication impossibility
• However, the strict approach is more suitable when considering
hearsay evidence made by a bystander

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o When dealing with a bystander s statement, especially

when the identity of the accused is an issue, there is a
necessity for there to be a certain degree of
contemporaneity between the statement made and the
events that occurred
o The statement must be a spontaneous utterance due to
the unusual nature of events
• Section 6 of EA refers to the surrounding and accompanying
circumstances, which are inseparable from the facts in issue and
are necessary to explain the nature of the fact itself. Similar to
the doctrine of res gestae, the provision allows acts, declarations
and statements which constitute part of the things said or done
to be admissible, even if they are inadmissible under the rule of
hearsay
• Evidence under this provision must form part of the same
transaction:
o Transaction as defined by Sir James Stephen and quoted
by Chong Siew Fai CJ in Thavanathan Balasubramniam v
PP: A group of facts so connected together as to be
referred to by a single name, as a crime, a contract, a
wrong or any other subject of inquiry which may be in
issue
Direct evidence under Section 6
• Illustration a to Section 6: A is accused of the murder of B by
beating him. Whatever was said or done by A or B or by the
bystanders at the beating or so shortly before or after it as to
form part of the transaction is a relevant fact
• Illustration b to Section 6: A is accused of waging war against the
Yang-Di Pertuan Agong by taking part in an armed insurrection
in which property is destroyed, troops are attacked and gaols
are broken open. The occurrence of these facts is relevant as
forming part of the general transaction, though A may not have
been present at all of them
• Illustration c to Section 6: A sues B for a libel contained in a letter
forming part of a correspondence. Letters between the parties
relating to the subject out of which the libel arose and forming

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part of the correspondence in which it is contained are relevant

facts though they do not contain the libel itself
• Illustration d to Section 6: The question is whether certain goods
ordered from B were delivered to A. The goods were delivered
to several intermediate persons successively. Each delivery is a
relevant fact
• Amrita Lal Hazra v R: For direct evidence to form part of the
same transaction, it must satisfy the test of 4 proximities (which
must be considered as a whole)
• Proximity of time
• Unity of proximity of place
• Continuity of action
• Community of purpose
• Chin Choy v PP: The accused was charged for having possession
of a revolver and ammunition under the Emergency Regulation.
The offence was committed over a period of 7 years and in
several unspecified places in Pahang. Held: The offences could
not form part of the same transaction as there exists only a
community of purpose that is aiding the communist terrorist
• For a direct evidence to be part of the same transaction, there
has to be more than a mere general purpose. It has to be
something particular and definite
• A lapse of time is allowed as long the element of continuity exists
• Hamsa Kunju v R: The appellant was convicted for causing
grievous hurt by attacking a fellow worker on a construction site
at night. A witness testified that an argument took place
between the appellant and the victim that morning. Held: The
argument and threat supplied the necessary motive that
contributed towards the continuity of the action, purpose and
design necessary to form part of the same transaction
• The evidence formed part of res gestae
• The lapse of time of several hours did not prevent the evidence
from being relevant
• The events must have been so intricately connected with the
facts in issue as to present a complete picture of the
circumstances in which the offence was committed

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• Where the events assist in the understanding of the whole

situation (when it begins and when it ends) they are thus part of
res gestae

Hearsay evidence under Section 6

• For hearsay evidence to form part of the same transaction, the
act or statement must be made spontaneously (naturally),
contemporaneously, without opportunity for deliberation and
thought
• In construing Section 6 in light of res gestae, regardless of
whether the statement was made at a different time and place
or at the same time and place as the event, the courts must
consider that:
o The statement must be able to explain the incident
o The statement must be spontaneous and
contemporaneous
▪ Not precisely at the same time and place but close to
it
o The statement must be one of fact and not of an opinion
o The statement must be made by a victim or bystander of
the event
• Strict approach to admitting hearsay evidence under the
doctrine of res gestae in Section 6:
o Leong Hong Khie v PP: The appellants were charged for
drug trafficking. The senior Customs Officer, who was
called to testify, introduce evidence of oral statements
made to him by two informers which were not called as
witnesses. The defence objected on the ground that the
statements were hearsay. Held: The evidence did not form
part of res gestae. The statements were inadmissible as
the lapse of several days (between the time of the event
and the time the statements were obtained) caused it to
not form part of the same transaction
▪ A strict application of the doctrine in Section 6 as an
exception to the hearsay rule did not allow for the
statement to be tendered as evidence

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▪ The statements were made by way of a narrative of

detached prior event, which the speaker was so
disengaged from (due to the lapse of time)
o Muhammad Allapitchay v PP: Where the victim was
stabbed while he was asleep, the shout by the victim of the
names of the accused after he was stabbed was not
contemporaneous with the action of stabbing. The words
were uttered after the event while the accused were
running away from the scene. Held: The statements
amounted to a mere narrative of past events, thus not
forming part of res gestae. The statements should be if not
absolutely contemporaneous, so closely connected as to
form part of the same transaction, that they are part of the
thing being done
• Liberal approach to admitting hearsay evidence under the
doctrine of res gestae in Section 6:
o PP v Mohd Zahari Embong: The court accepted hearsay
evidence of the witness repeating the accused s statement
disclosing that his wife had beat all their children, and that
he killed her without intention. The statement was said to
have been made contemporaneously to the fact in issue
and was thus accepted by the court under the liberal
approach

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Section 7
• Section 7 of Evidence Act states that facts which are the
occasion, cause or effect, immediate or otherwise of relevant
facts in issue, or which constitute the state of things under which
they happened or which afforded an opportunity of their
occurrence or transaction are relevant
• Facts which although do not form part of the same transaction,
are connected to the facts in issue as it establishes
- The occasion, cause or effect of a fact
- That opportunity was afforded for the occurrence of a fact
- That the facts constitute a state of things

The scope of section 7

Occasion, cause or effect
• Evidence that is relevant to show occasion, cause or effect may
brought in to show. For example, the actual cause of death of the
victim which eventually can be used to link to the accused
• Illustration (b) to Section 7: The question is whether A
murdered B. Marks on the ground produced by a struggle at or
near the place where the murder was committed are relevant
facts
• Dr Jainand v R: The fact in issue was whether Jainand had
murdered Karan Singh. The evidence which provided that
Jainand had taken money and ornaments from Karan Singh, who
on the day of the murder had met Jainand to demand the money
and ornaments are relevant facts proving occasion, cause or
effect of the fact in issue
• R v Richardson: The fact that the deceased girl was alone in her
cottage at the time she was murdered was held to be relevant as
it constituted the occasion of the murder and footprints at the
location of shoes which had been mended with iron knobs or
nails were held to be one of the effects of the fact in issue
• PP v Toh Kee Huat: Evidence of the accused s fingerprints found
on the inner surface of the glass pane of the stolen car
established an effect of the fact in issue as the marks could only

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have been made during the hours of darkness when the car was
taken or the morning before its discovery
• Ahmad Najib bin Aris v PP: The officer who conducted the post
mortem on the body of the victim found that both of the
deceased s hands were tied with a muslin cloth folded two or
three times and the cause of death was strangulation by the
muslin cloth around the deceased s neck. It was proven that
this muslin cloth was of the same type as the cloth seized from
the accused s office. There was also the possibility that the
deceased died as a result of bleeding in the abdomen caused by
sharp weapon
• Saw Thean Teik v Regina: The evidence of intoxication was
admissible upon a charge of dangerous driving as it was found
to be relevant under sections 7, 8(2) or 14 of the Evidence
Ordinance. Under Section 7, due to being intoxicated, the
accused was driving recklessly as per the charge

State of things
• Evidence of state of things refers to the circumstantial situation
obvious to the witness who perceives it. The witness who
perceives it believes that it provides certain logical meaning
• Illustration (a) to Section 7: The question is whether A robbed
B. The facts that shortly before the robbery B went to a fair with
money in his possession and that he showed or mentioned the
fact that he had it to third persons are relevant
• PP v Muhammad Rasid bin Hashim: One of the issues raised
was whether the sexual intercourse was consensual. The
evidence of consent cannot be elicited from the victim who was
dead. Hence the court looked at the evidence adduced to see
whether there exists circumstantial evidence which could
support or justify a finding on the issue of consent. The court in
this case considered the evidence of a Chief Inspector who
studied the crime scene. The witness here concluded that a
struggle between the deceased and the accused had taken place
in the room. This was evidenced by the fact that the room was in
a mess. The deceased also suffered some injuries of a defensive

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nature and that these injuries had not been self inflicted. The
evidence of another witness, i.e. the friend of the deceased who
found her in the aftermath of the incident prior to her death, that
the deceased was lying on the floor exposed and her face was
bleeding and bloated and she was in a great pain was also
considered by the court. All these circumstantial evidence
perceived by the witnesses negated any semblance of consent
having been given by the deceased to the accused in relation to
sexual intercourse. The evidence of state of things perceived
must be viewed as one whole transaction and the totality of the
evidence had clearly depicted a scenario whereby the accused
had violently assaulted the deceased and totally overwhelmed
her before ravishing her against her will
Opportunity
• It is an opening or a chance for a crime to be committed
• Opportunity can be disproved by the tendering of an alibi which
is a complete defence to exculpate the respondent from the
offence charge
• Illustration (c) to Section 7: The question is whether A
poisoned B. The state of B s health before the symptoms
ascribed to poison and habits of B known to A, which afforded
an opportunity for the administration of poison are relevant
facts
• Ahmad Najib bin Aris v PP: The accused has the opportunity to
commit the crime. By looking at illustration (c) to Section 7, the
evidence of opportunity in this case has been supplemented by
circumstantial proof that the accused had taken advantage of
this opportunity when he was seen together with the deceased
by several prosecution witnesses at various locations
• Aziz bin Muhammad Din v PP: Evidence of the witness who
confirmed that both the accused and the complainant spent the
night in his home merely constitutes evidence of opportunity for
rape and that the evidence of mere opportunity, without the
availability of more evidence, cannot amount to corroboration
that a rape did take place.

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• R v Richardson: Not only was the deceased girl alone in her

cottage at the time she was murdered, evidence from the
accused s colleague stating that the accused was absent for an
hour at work on the same day proved the existence of
opportunity
• R v Donellan: The victim suffered from a certain illness and had
to take a particular medicine every day at a scheduled time.
Knowing this, the accused changed the medicine with poison.
The mother of the victim, not knowing that the medicine had
been changed, administered the poison. The court held that the
accused s knowledge of the victim s illness and intake of
medicine provided him with an opportunity to commit the crime
• PP v Dato Seri Anwar Ibrahim: The presence of the accused
within the vicinity of the crime scene and the proximity of time
to the commission of the crime proved that there was
opportunity for the offence to take place

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Section 8
• Section 8 of Evidence Act: (1) Any fact is relevant which
shows or constitutes a motive or preparation for any fact in
issue or relevant fact

Scope of Section 8
• Other categories of circumstantial evidence are those
provided for under Section 8 of Evidence Act
• Evidence that shows motive, preparation and conduct must
be given directly by a witness who perceives it

Motive
• Wigmore: Motive is the emotion that led to the act which could
be formed by the influence of external facts
• Sarkar: Motive is a factor that moves a person to do a particular
act
• The existence of motive may support the finding of a guilt but a
person will not be charge for any offence simply by having a
motive to do a particular act
• Absence of motive does not mean that the prosecution s case is
lost
• Yap Boon Thai v PP: The failure of the prosecution to establish
motive of the appellant to murder the deceased does not mean
that the entire prosecution case has to be thrown overboard; it
only cast a duty on this court to scrutinize each piece of evidence
very closely in order to ensure that suspicion, emotion or
conjecture do not take place of proof
• Evidence of motive is relevant if all the evidence in the case are
circumstantial in nature
• Dato Mokhtar bin Hashim & Anor v PP: Although motive is not
a necessary ingredient to be established in the offence or
murder, it would if shown tend to support the case against an
accused so charged
• Wong Foh Hin v PP: Any fact is relevant which shows or
constitutes a motive or preparation for any fact in issue or

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relevant fact. Strong and convincing evidence of motive will

probably have a high evidential value in all circumstances, but
that must be especially so in a case like this, where there is only
circumstantial evidence of the murder itself
• Motive as evidence in court has to be proved to exist specifically
in relation to a particular crime. It must not be general in nature
and has to be fully established
• Mohamad bin Deraman v PP: Motive serves as corroboration to
the facts in issue and upon consideration with other evidence, it
would show that the accused had the prerequisite intention to
kill. Here, it was held that the evidence of motive proved malice,
aforethought, and has high evidential value
• Motive must be in the nature of direct evidence
• Karam Singh v PP: The court held that the evidence of motive
given by the deceased s son to the court need to be rejected
when it was only a repetition of what the father said to him prior
to his death
• In re Edulla Venkata Subba: Evidence that constitutes motive in
this case was hearsay and thus inadmissible and that section 8
does not allow facts to be proved by hearsay evidence

Preparation
• Every action that leads to the production of a crime or
facilitating a criminal action such as collecting, purchasing,
procuring, repairing or removing certain obstruction so that a
crime can be committed are preparation
• Thiangiah & Anor v PP: There are 4 stages in every crime. First,
an intention to commit the crime; Second, the preparation for its
commission; Third, the attempt to commit it and finally the
actual commission of the crime. The mere form of intention and
preparation for the commission of a crime are not criminal acts.
Preparation however is relevant evidence contributing towards
the establishment of facts in issue

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• Lakshmi Prasad v Emperor: Preparations in the forms devising

or arranging means necessary for the commission of an offence
are relevant evidence

Conduct ***Only applies to previous or subsequent conduct

• Section 8 (2) of Evidence Act: The conduct of any party, or of any
agent to any party, to any suit or proceeding in reference to that
suit or 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
• Explanation 1-The word conduct in this section does not
include statements unless those statements accompany and
explain acts other than statements; but this explanation is not to
affect the relevancy of statements under any other section of this
Act
• Illustration j: The question is whether A was ravished. The facts
that shortly after the alleged rape she made a complaint relating
to the crime, the circumstances under which and the terms in
which the complaint was made are relevant: as dying
declaration under paragraph 32(1)(a) or as corroborative
evidence under section 157
• Illustration k: The question is whether A was robbed. The fact
that soon after the alleged robbery he made a complaint relating
to the offence, the circumstances under which and the terms in
which the complaint was made are relevant. The fact that he said
he had been robbed without making any complaint is not
relevant as conduct under this section, though it may be
relevant: as dying declaration under paragraph 32(1)(a) or as
corroborative evidence under section 157
• Explanation 2-When the conduct of any person is relevant any
statement made to him or in his presence and hearing which
affects his conduct is relevant

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• Illustration f: The question is whether A robbed B. The facts that

after B was robbed, C said in A s presence: The police are
coming to look for the man who robbed B and that immediately
afterwards A ran away are relevant
• Illustration g: The question is whether A owes B RM10,000. The
facts that after A asked C to lend him money and that D said to C
in A s presence and hearing I advise you not to trust A for he
owes B RM , and that A went away without making any
answer are relevant facts
• Illustration h: The question is whether A committed a crime. The
fact that A absconded after receiving a letter warning him that
inquiry was being made for the criminal and the contents of
letter are relevant
• Nexus between the conduct and the facts in issue must be
established so that the action is not an isolated event, disjointed
from the facts in issue
• Sarkar on Evidence: The conduct of party to a proceeding or his
agent in reference to such proceeding at the time when the facts
occurred out of which the proceeding arises, or in reference to
any fact in issue or relevant fact or the conduct of the
complainant is relevant; but the condition precedent to its
admissibility as conduct is that it must directly influence or be
influenced by a fact in issue or relevant fact and such conduct
does not include action resulting from other causes or
circumstances. It must be the essential complement of the act
done or refused to be done. Conduct includes antecedent or
subsequent conduct involving both actions and statements
• A chain needs to be established to warrant a conviction. In fact,
an accused can still absolve himself from conviction if he can
provide a relevant explanation for his action under section 9 of
the Evidence Act
Previous conduct
• Previous conduct refers to conduct of accused person before the
commission of the facts in issue
• It may overlap with preparation

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• Ravindran a/l Kandasamy v PP: Various subsequent acts of the

accused person that lead the complainant filing a report to the
Anti-Corruption Agency were relevant so as to show previous
conducts of the accused
• Haji Abdul Ghani bin Ishak & Anor v PP: A series of actions of the
accused to secure his interest over 200 acres of state land in
Malacca was held to be relevant, including getting married to the
19 year old applicant of the land in a hurry
Subsequent conduct
• It refers to the action of either an accused person, victim or a
third party after the crime is committed
• Thavanathan a/l Balasubramaniam v PP: The evidence of one of
the prosecution witness seeing the accused counting the money
upon it being handed to him and that of another witness seeing
the accused holding and later dropping the money on the floor
upon being ambushed by the authorities constitute
subsequent conduct which relates to his guilt. I.e. corruptly
soliciting money from a complainant
• Pathmanathan a/l Nalliannen & Ors v PP: The conduct of the first
accused keeping silent in the fact of intense suspicion towards
him showed that he was guilty. The court found that it was quite
strange for a lawyer not to take reasonable steps to clear his
name upon severe allegation that he committed the high profile
murder of Sosilawati and others especially when most of his
workers were arrested by the police in connection to the
murder. In addition, subsequent guilty conduct was also
reflected when all the accused met and discuss together on ways
to evade from being incriminated in the crime
• Mahadzir bin Yusof & Anor v PP: The actions of the accused of
going back to the scene of the crime to confirm that the victim
had died and subsequently evading the law by laying low
reflected subsequent conducts relevant under section 8 of the
Evidence Act

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Distinction between mere statement and complaint when it sought to

be tendered upon Section 8(2)
• A mere statement only confirms the consistency in the making
of such statement where the source of the evidence is only the
victim herself.
• It is mere evidence of knowledge and will not form part of a
conduct
• It amounts to nothing more than a statement and can only be
tendered as corrobative evidence under Section 157
• A statement forms part of a conduct when it accompanies or
explains the actions of a person
• Boota Singh v PP: A police report was made by the deceased
against the accused several months before the murder. Although
the report was considered hearsay and inadmissible under
Section 32 (as it did not fall under the exception), it was
admissible under section 8 as it indicated that the deceased was
on bad terms with the accused proof of the deceased s dealings
with the accused). In this case, the statements in the report
accompanied and explained the deceased s act in making the
report itself, making it relevant and admissible
• For a person s statement to be regarded as conduct under
section 8(2), it must be accepted as a complaint
• Aziz Muhamad Din v PP: A complaint is a conduct because it is
an expression of feeling made with a view to redress or punish
and is made to someone in authority
• Someone in authority is a question of fact:
• PP v Mohammad Tereng Amit: A teacher at the victim s school
• PP v Teo Eng Chan: The doctor by whom the victim was treated
• Aziz Muhammad Din v PP: For a statement to amount to a
complaint, it must be made voluntarily and spontaneously and
not elicited by leading, inducing or intimidating questions
• If the circumstances indicate that, if not for the questioning,
there would probably have not been a voluntary complaint, the
answers are inadmissible
• Aziz Muhamad Din v PP: Where the accused was charged for the
rape of an underage girl, a complaint to the police was made only

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after the girl was repeated questioned by her father. Thus, the
issue was whether her police report could amount to an
evidence of conduct under Section 8(2). The court held that
there cannot be said to have been a complaint under Section
8(2) as the police report was only lodged upon threats imposed
by the victim s father to her, making it involuntarily. Further, the
statement given by the victim to her father, in which she told him
that she had spent the night at her male friend s house was
unrelated to the crime, as well as involuntary as it was made
after she was repeatedly questioned

Evidence of conduct under Section 8 and Section 27

• Evidence of conduct may be relevant and admissible even
though information from the accused leading to the discovery of
facts under Section 27 is rejected upon the court exercising its
discretion to deny the admissibility on the grounds of
extraordinary involuntariness (Francis Antonysamy v PP) or
procedural impropriety (Goi Ching Ang v PP)
• Amathevelli a/p Ramasamy v PP: The conduct of the accused in
showing of the location of the deceased s gold chain discovered
as a result of the information under Section 27 shall be relevant
and admissible as evidence of subsequent conduct of the
accused. In this case, the ruling of the court that the information
under Section 27 was inadmissible does not affect the
admissibility of the evidence of the accused s subsequent
conduct under section 8 of Evidence Act.
• This is because section 27 does not deal with any evidence of
conduct but is instead only concerned with the information
given by the accused leading to the finding of a fact
• Sarkar on Evidence (14th ed): The conduct or act of the accused
are not dealt with in Section 27 and are relevant under Section
8 whether such conduct was or was not the result of inducement
offered by the police

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Relevant evidence of conduct infer the existence of mens rea

• Hamidi bin Mohd Isa & Anor v PP: The accused who was charged
for trafficking drugs ran away when approached by the police.
The action of him running away was used to infer his guilty mind
and since the explanation given by him under Section 9 of
Evidence Act was not credible enough, the conduct was said to
reflect that the accused knew of the existence of the drugs
• It has to be noted that inferring a guilty mind of an accused
through conduct must be done by looking at the totality of the
evidence, especially when the evidence that exists in mostly
circumstantial in nature
The relationship between conduct in Section 8(2) with the evidence
of inference in Section 9 of Evidence Act
• The evidence of conduct if it is tendered must have reference to
the facts in issue. If there is no evidence to show that the conduct
is influenced by any fact in issue or relevant fact as required by
section 8 then it is not admissible. The action becomes equivocal
where the accused can invoke Section 9 to draw some
favourable inference against him
• Parlan bin Dadeh v PP: The issue was whether the appellant
being stunned or shocked when PW4 identified himself to him
as police officer should be taken as an evidence of guilty conduct.
The Federal Court in this case distinguishes between positive
conduct (flight of an accused) and passive actions (looking
stunned, nervous, scared or frighten) and emphasizes the need
to acquire further evidence before passive actions can be
concluded to indicate guilt or otherwise. Once the court consider
the evidence is relevant as conduct of the accused, the accused
bears the onus to explain his conduct as required under
subsection 9 of Evidence Act. Section 9 operates rather
specifically, i.e to explain his action. Once the explanation is
accepted, the inference arising from the conduct which is used
to infer his guilt is rebutted. Indeed, in this case, the stunned and
shocked look of the accused person relates to the facts in issue
since the drugs were found tucked away infront of the jeans
worn by him. Failure of the accused in giving credible

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explanation caused inference of his guilty conduct under Section

8 remains unrebutted
• This can be contrasted from the case of Abdullah Zawawi bin
Yusoff v PP: Here the prosecution argued that the conduct of the
accused in running away upon the discovery of the drugs was
consistent with him having knowledge of the presence of the
drugs before their discovery hence indicating guilt. On appeal,
the Supreme Court accepted this inference to be rebutted by the
fact that the accused only attempted to run away after the police
announced the discovery of the drugs. This was regarded as a
natural response of an innocent man faced with the prospect of
arrest on capital charge. This was strengthened by the fact that
the accused had been cooperative with the police in allowing
them to enter the house and search for things in his presence.
The existence of the drugs may come as a surprise to the accused
and the possibility that it was planted by someone creates
doubts in this case especially when the court considered the
evidence of possible access to the house by others

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Section 9
• Section 9 of Evidence Act: Facts necessary to explain or
introduce a fact in issue or relevant fact or which support or
rebut an inference suggested by a fact in issue or relevant fact or
which establish the identity of any thing or person whose
identity is relevant or fix the time or place at which any fact in
issue or relevant fact happened or which show the relation of
parties by whom any such fact was transacted are relevant so
far as they are necessary for that purpose
• Allows for the admission of circumstantial evidence which is not
part of the transaction
• Concerned with the explanation of relevant facts or facts in issue
• Helps identify the real nature of a transaction when itself is not
part of the transaction

Facts necessary to explain or introduce a fact in issue or a

relevant fact:
• It is not admitted as evidence of truth of the matter but merely
as explanatory to the existence of a fact (hearsay evidence is
admissible)
• Facts necessary to explain:
• Illustration c to Section 9: A is accused of a crime. The fact that
soon after the commission of the crime A absconded from his
house is relevant under Section 8 as conduct subsequent to and
affected by facts in issue. The fact that at the time when he left
home he had sudden and urgent business at the place to which
he went is relevant as tending to explain the fact that he left
home suddenly. The details of the business on which he left are
not relevant except in so far as they are necessary to show that
the business was sudden and urgent
• Illustration d to Section 9: A sues B for inducing C to break a
contract of service made by him with A. C on leaving A s service
says to A: I am leaving you because B has made me a better
offer . This statement is a relevant fact as explanatory of C s
conduct, which is relevant as fact in issue

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• Illustration e to Section 9: A accused of theft is seen to give the

stolen property to B, who is seen to give it to A s wife. B says as
he delivers it A says you are to hide this . B s statement is
relevant as explanatory of a fact which is part of the transaction
• Illustration f to Section 9: A is tried for a riot and is proved to
have marched at the head of the mob. The cries of the mob are
relevant as explanatory of the nature of the transaction
Facts necessary to introduce:
• Illustration a to Section 9: The question is whether a given
document is the will of A. The state of A s property and of his
family at the date of the alleged will may be relevant facts
• Illustration b to Section 9: A sues B for a libel imputing
disgraceful conduct to A; B affirms that the matter alleged to be
libelous is true. The position and relations of parties at the time
when the libel was published may be relevant facts as
introductory to the facts in issue. The particulars of a dispute
between A and B about a matter unconnected with the alleged
libel are irrelevant though the fact that there was a dispute may
be relevant if it affected the relations between A and B
• For example, a police report which may constitute as the first
information report (FIR) under Section 107 of the Criminal
Procedure Code may be produced in the absence of the
complainant as it is used to start the ball rolling i.e the starting
of an investigation
• PP v Krishnaraj a/l Rajendran: Police report especially the first
information report is not an encyclopedia thus it does not have
to be exhaustive. What is needed in the FIR is clear, definite
information about the commission of a seizable offence to set
the investigation machinery in motion. The detailed
circumstances of the commission of the offence, the names of the
offenders, or the witnesses need not be specified in the FIR.
These detail will be filled in by the investigation that is soon be
conducted by the relevant authority. A FIR is only a kind of
corroborative evidence that will help the police and prosecution
in the case

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• Chock Kek Ling v Patt Hup Transport Co Ltd & Ors: The report
does not and will not contain everything under the sun
Facts which support or rebut an inference suggested by a fact in
issue or a relevant fact
• Where evidence of conduct has been tendered under Section
8(2), evidence of such conduct may refer to unequivocal acts
that are capable of multiple interpretations
• Issue: Whether A wrote an anonymous letter to B, threatening
him and requiring him to meet A at a particular place at an
appointed time.
• Fact supporting the inference that A wrote the letter: A went to
the place at the appointed time
• Fact rebutting the inference that A wrote the letter: A had some
other business to attend to at the particular time and place
• Abdullah Zawawi s case: AZ was the owner of the house and
allowed an foster brother to stay in his house. He did not know
that his foster brother was a drug trafficker. When police came,
AZ allowed the police to make inspection. The fact that he ran
away under Sec 8(2) shows guilt but he made an explanation
that he ran away because he was shocked and he was in fear.
(rebut)
• Omar bin Daud case: Omar was brought to police station and
was interrogated but he ran away while he was in police
custody. Police said he ran away because he was guilty. He
counter argued that he ran away because the police beat him.
Court accepted his rebuttal under section 9.

Facts which show the relation of the parties

• Verification on the relationship of parties can be crucial in
certain cases, for example, cases which involve claim of
inheritance and legitimacy of a child
• Sean O Casey Patterson v Chan Hoong Poh & Ors: The issue of
legitimacy and the legality of the adoption of a child were raised
and evidence of DNA was tendered to prove the plaintiff to be
the father of the child. Such evidence which show the

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relationship of parties is taken in under Section 9 of Evidence

Act
Facts which fix the time or place at which any fact in issue or
relevant fact happened:
• Such evidence can be given by a lay witness who found the body
of a murder in particular location, especially when a link can be
established between the accused and victim (Ahmad Najib bin
Aris v PP)
• An expert can also give evidence, upon discovering a
decomposed body. He can help determine the time of death of
the victim. When expert is called, his evidence must be read
together with Section 45 of Evidence Act

Facts which establish the identity of any person (accused, victim,

relevant third party) of things seized:
• Identity here can be identity of things seized or found
• If an accused person is charged for trafficking drug under the
Dangerous Drugs Act 1950, the production of the drug in court
is the real and best evidence. The drugs seized and the chemist
who examines and identifies the type and weight of the drug
need to be produced under Section 9. This evidence has to be
given directly following Section 60 of Evidence Act
• In a murder case, the witness who can establish the knife to be
the murder weapon need to be called and his evidence will be
relevant to show identity of things
• Rudy bin Jupri v PP: The court upheld the finding that the knife
was the weapon used to cause the injuries which led to the death
of both the deceased through DNA and fingerprints evidence
• Sometimes an expert is required to identify the things relevant
to facts in issue
• Dato Mokhtar bin Hashim v PP: When in determining whether
a particular bullet that killed the victim came from the gun that
belonged to the accused person, a chemist was regarded as a
competent expert witness to identify the murder weapon

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• Section 9 is also used to establish the identity of persons

relevant to facts in issue or relevant facts
• In the context of identification of a person, identification
evidence is an assertion by a witness to the effect that a suspect
was or resembles (visually, aurally or otherwise) a person who
was present at or near a place where a crime was committed
• The person identified here can either be the victim, the accused
person or third party that is related to facts in issue
• Identity of a person can be identified through photographs,
CCTV recording, fingerprints, voice, smell, sketch, photo fit and
eyes witness visual identification

IDENTITY OF PERSON
Visual Identification:
Photographs
• Identification through photographs can be made prior to an
arrest, in order to effect the arrest but not after the accused has
been arrested
• The showing of photographs must not be prejudicial to the
accused
• Lai Ah Kam & Anor v Rex: The complainant made a report of
robbery and an investigation was carried out. Before the
accused was arrested, one of the witnesses was shown a series
of photographs and the witness picked out the photograph of the
accused. The court held that the photograph has to be shown
before arrest and if a photograph is shown to a witness after
arrest it may be a ground for quashing a conviction. There is no
prohibition against showing the witness a series of photographs
before the arrest, provided that nothing has been done by the
police to suggest that a particular photograph is that of the
accused and that nothing in the photographs contain any
indication of the accused
• Identification using photographs that is done after the arrest is
inadmissible:

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• PP v Kok Heng: Where the identification of the accused was

carried out by photographs that disclosed the fact that the
accused were already in police custody, the evidence obtained
was inadmissible
• Identification using photographs which create the impression
that the accused is of bad character should not be admitted:
• Girdari Lall & Ors v PP: The photograph of the accused along
with several other photos of Indians bore a police a number and
was a combined profile and profile and full face photo. The
photographs indicate that they were from the police record from
which it could be inferred that the persons including the accused
was of bad character. The court held that the photos were
obviously taken from the police record and putting them in
evidence was tantamount to saying that the accused was of bad
character thus making the evidence inadmissible
Identification parade:
• Alexander v Queen: An identification parade is the most reliable
mechanism available for the identification of the accused
• The parade is held to the test the reliability of the witness on the
question of his capability to identify, from among several
persons made to stand in a queue, the unknown person whom
the witness had seen at the time of the crime
• A parade is especially necessary:
- When the accused person is not known to the witness
• PP v Sarjeet Singh: Where there was no evidence to show that
the witness knew of the accused, failure on the part of the police
to organize a parade gave rise to the assumption that if a parade
was conducted, the witness would not be able to identify the
accused
- To determine whether the identifying witness are lying

Procedural safeguards in conducting an identification parade

• Ong Lai Kim v PP: There is no specific provision on the
procedure for an identification parade

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• Although there is no specific provision on such procedure, there

are several precautions that must be observed
1. The accused must be identified by the witness in a parade of not
less than 10 people (R v Cartwright)
• PP v Chan Chon Keong: Where there are two or more suspects,
a separate parade must be held
2. The parade must be held at the earliest opportunity as a long
delay may result in the identification of the accused to be of no
value (Dwarka v Singh)
• PP v Syed Muhammad Faysal: A delay of 2 years and 4 months
rendered the evidence inadmissible
3. An officer interested in the case (investigating officer) should
not take part in conducting the parade
4. The parade must consist of participants of similar age, statute
and appearance as the accused
• Pasupathy Kanagasamy v PP: Discrepancies in age or height will
cause the evidence to be rejected
• Prabah Sinathamby v PP: The accused was bearded and wearing
shorts while the other participants were not
5. If the case involves more than one witness, each witness should
be called in one by one and should be prohibited from
communicating with the other witnesses
• PP v Ong Poh Cheng: The witnesses were confined to the same
room and had the opportunity of exchanging mutual notes and
recollection of the robbery
6. The witness must not be allowed to see the accused person in
the cell or wearing handcuffs as this will cause the witness to
judge him prematurely
7. The photographs of the suspect should never be shown to the
witness
• Jaafar Ali v PP: Where an earlier identification had been made
prior to the identification parade (where the witness had the
opportunity of seeing the accused before the parade) evidence
obtained from the identification parade has no weight or is of no
value

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8. The interest of the accused person should be protected in that

the presence of the suspect s solicitor or friend should be
allowed
• Ong Lai Kim v PP: An identification parade involving the use of a
one way mirror may only be held in the presence of the suspect s
solicitor, friend or an appropriate adult to observe any
irregularities that may occur
• If the presence of such persons is requested by the suspect, the
request must be fulfilled
• If the suspect declined the request for their presence, there
cannot be said to have been a procedural defect
9. If the procedural flaw or breach in the conduct of identification
parade is such that it caused high prejudicial effect on the
accused, any identification made will be rejected by the court
(Duis Akim v PP)
• Thirumalai Kumar v PP: A breach of the procedural
requirements in holding an identification parade does not lead
to the inadmissibility of evidence obtained. However, evidence
of bad faith or a deliberate flouting (disobeying) of procedural
requirements, rather than mere efficiency will cause the
evidence to not be upheld
Dock identification
• Arumugam Muthusamy v PP: Dock identification by a witness
for the first time is undesirable. The normal practice is to have
an identification parade where the accused person is not
previously known by the witness
• Kanan v State of Kerala: A witness who identifies an accused,
who is not known to him in court for the first time provides
absolutely valueless evidence unless there was a prior
identification parade
• Tan Kim Hoo v PP: Where an identification parade has been
conducted first, evidence obtained from a dock identification is
regarded as substantive evidence. A witness prior identification
in an identification parade corroborates his identification in
court

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• PP v Ong Poh Cheng: Failure by a witness to identify in an

identification parade does not necessitate a rejection of the
evidence obtained through dock identification. Where the court
in this case rejected the evidence from the identification parade
due to procedural defects, such rejection is in no way fatal to the
dock identification of the accused

Turnbull Guidelines: Guidelines established in R v Turnbull which

assists the courts in assessing the quality and probative value of
identification evidence:
1. A judge must warn himself about the dangers of identification
evidence and that there is a special need for caution in admitting
such evidence
2. The need for him to direct himself to examine various specific
matters that affect the strength or cogency of the evidence
before him
3. The question of when a judge may properly be allowed to
convict the accused even in the absence of other evidence
supporting the crucial identification
4. The question of what other evidence may properly be regarded
as capable of supporting identification
• Where it is established that the identification evidence is of good
quality, a judge must assess the value of such evidence in the
conviction of the accused, even in the absence of other evidence
supporting the crucial identification
• Where it is established that the identification is of poor quality,
a judge must withdraw the case, unless there exists other
evidence capable of supporting the identification evidence
• The guidelines were approved in R v Burchielli and the
Malaysian case of Jaafar Ali v PP: Where the primary issue is the
identity of the accused, the principles set out in R v Turnbull
must be followed

Fingerprint identification:
• PP v Toh Kee Huat: The accused s fingerprints found on the
inner surface of the car window were conclusive evidence of the

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fact that he had tampered with the lock of the car in order to gain
entry
• Mohd Zulkifli Abd Ghani v PP: Failure by the prosecution to
produce fingerprints of the accused is not fatal to the case as the
absence of finger impression does not guarantee the absence of
the accused at the scene of the crime
• Introduction of fingerprint evidence must be by an expert
witness according to Section 45
Voice identification
• In order for voice identification to be of good value, the witness
must be familiar with the voice by having heard it before
• PP v Daud Ahmad: Where the witness, who was the daughter of
both, the victim and the accused was the last person to have
heard them quarrelling outside the house, there was no doubt
as to the evidence obtained from her voice identification as she
would have recognized the accused s voice even without seeing
him
• Teng Kum Seng v PP: The appellant was convicted of three
charges of putting persons in fear of injury in order to commit
extortion. The identity of the accused was established by his
three victims who were able to recognize his voice, which was
found to be similar as the voice hear through the telephone
when the victims were put in fear of injury in order to extort
their money
DNA Profiling
• A technique used by forensic scientists to assist in the
identification of individuals by their respective DNA profile
• Introduction of DNA profiling evidence must be by an expert
witness (Section 45)
• PP v Syed Muhamad Faysal: Evidentiary value of DNA profiling
is significant
• Ahmad Najib Aris v PP: The accused was convicted for the rape
and murder of Canny Ong. Blood stains, which DNA tests
confirmed were the deceased s was found on the accused s jeans
and inside the deceased s car that was driven by the accused.

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The vaginal swab taken from the deceased also confirmed the
presence of semen belonging to the accused

Similar Facts Evidence

• The general principle is that evidence of an accused s previous
conduct which are unrelated to the current facts in issue,
tendered to prove the current offence are inadmissible due to its
high prejudicial effect and the presumption that an accused is
presumed innocent until proven guilty
• Thus, similar fact evidence is the exception to the general
principle
o Makin v AG of New South Wales: When the accused were
charged for the murder of a baby, the prosecutor wished
to produce evidence that both of the accused have been
receiving other babies in a similar manner, under the
supposed reason of wishing to adopt the babies. When the
body of the baby (of the current charge) was found buried
in the backyard of the house, there was also evidence of
the remains of a few of other babies found buried in
similar ways in the backyard of houses previously and
currently occupied by them
o The general principle as per Lord Herschell: It is
incompetent for the prosecution to adduce evidence to
show that the accused had been guilty of similar criminal
acts other than that covered by the charged for the
purpose of leading to the conclusion that the accused is
likely from his criminal conduct to have committed the
current offence
o However, exceptions to the general principle was
established in this case: similar fact evidence is admissible
if it is to show that the current misconduct was designed
to rebut the likelihood of it being accidental or to rebut the
defence raised by the accused
o Thus if the evidence is tendered merely for the purpose of
showing that the accused were likely to behave in such a

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way, then it would be inadmissible under the general

principle

The approach taken in Makin s case led to the common law

formulation of two tests:
1. Specific Purpose Test:
• SFE is admissible if it is tendered to show that the crime for
which the accused is currently being charged was designed or
that it was not accidental or to rebut a defence that might be
open to the accused
• Makin s case: Evidence of previous murders of other babies
were tendered to rebut the defence raised by the accused that
they only wished to adopt the baby and that the baby s death
was accidental. Therefore, Privy Council admitted the evidence
as it suggested that the current charge for the murder of the
baby was not accidental
• The purposes of admitting SFE as provided in Makin s case were
further developed into several sub-categories for which SFE is
admissible
o To show design or to prove system
▪ R v Smith v The accused was charged for murdering
his wife, who died in a bathtub after insuring her life
in his favour. The circumstances in which her body
was found were inconsistent with a death that
would occur as a consequence of an epileptic fit,
which the accused used as a defence. The
prosecution adduced evidence that the accused had
previously married two other women, who had also
died in their bathtubs in a manner inconsistent with
epilepsy and that in their cases too, he stood to gain
financially from their deaths. The court admitted
the evidence and the accused was convicted for
murder
o To show identity
▪ R v Straffen: The accused who was charged for the
murder of a young girl by way of strangulation, had

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confessed to previously murdering two young girls

which exhibited similar features in the way he left
the victim. In this case, the accused strangled the
young girl without any attempt at sexual
interference or any attempt to conceal her body.
The evidence of the previous murders were
admitted by the court as it tended to identify the
person who murdered the victim in the current
charge, with the person who confessed in his
statements to have murdered the two girls a year
before, in exactly similar cicumstances
o To rebut the defence of mistake or innocent association
▪ R v Ball: A brother and sister were charged with
incest during various period in 1910. It was proved
that they had occupied the same bedroom at the
material times. The court admitted evidence
showing that the accused had cohabited as man and
wife at an earlier period when they had a child, and
thus they were convicted
• The exceptions proposed by Makin s case were too wide that it
led to the creation of a non-exhaustive list for admitting SFE,
thus causing the general principle to be ineffective

2. Strikingly Similar Test (introduced in R v Sims)

• SFE is admissible if the repetition of the previous misconducts
and the current charge are strikingly similar. The likelihood of
coincidence is lesser when similar allegations are made, and the
more strikingly the similarities, the more unlikely for it be a
coincidence
• The similarity of facts must be more than a mere repetition and
not simply of habit. The various incidents must show a striking
resemblance, unusual features or a unique similarity
• The strikingly similar test introduced in R v Sims was further
refined to include the element of probative value outweighing
the prejudicial effect, thus, leading to the formulation of the
probative value approach

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o DPP v Boardman: The appellant, the headmaster of a

boarding school, was charged for committing buggery
with a pupil and inciting another pupil to commit buggery
with him. The main similarities in the testimonies of both
pupil were in the way the accused had approached them;
he woke them up at night in the form spoke in a certain
tone of voice, invited them to do the act in the sitting room
and indicated that he wished to be the passive partner.
Held: The similarity of the evidence was sufficient to
justify admission as the possibility of prejudice which
might arise if the pupils had been conspiring against the
appellant was unlikely in the case
▪ The essence of the exception to the inadmissibility
of SFE is to allow such evidence if it has a sufficient
degree of probative force so as to override any
prejudicial effect that it might have
▪ The similarity would have to be so unique or
striking that common sense makes it inexplicable
(unexplainable) on the basis of coincidence)
o Probative value is not provided by mere repetition of SFE.
It is dependent upon 3 principle factors (as per Cross on
Evidence)
▪ The cogency (strength) of the evidence showing the
accused s bad character
▪ The extent to which proof of such character
supports the interference sought to be drawn from
it
▪ The degree of relevance of that inference to some
fact in issue in the proceeding
o Harris v DPP: Evidence of other occurences which merely
tend to increase suspicion does not go to prove guilt. Thus,
evidence of similar facts should be excluded unless such
evidence has a material bearing on the facts in issue (it
must relate to something more than isolated instances of
the same offence)

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Position of Similar Fact Evidence in Malaysia

• RV Raju & Ors v R: In Malaysia, evidence of similar acts is often
admissible under Section 15, though certain types of evidence of
similar offences or acts may be admissible under Section 14 and
Section 11(b) EA
• Section 11(b) EA: Facts not otherwise relevant are relevant if by
themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or relevant highly
probable or improbable
• Evidence of similar acts is admissible to make the existence of a
fact in issue highly probable within the meaning of the provision
• Section 14 EA: Facts showing the existence of any state of mind,
such as intention, knowledge, good faith, negligence, rashness,
ill-will 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
• Explanation 1: A fact relevant of as showing the existence of a
relevant state of mind must show that the state of mind exists
not generally but in reference to the particular matter in
question.
• If the charge is for rape, when there had been previous
conviction of sexual assault then the previous conduct of assault
can be taken in as evidence
• This provision embodies the approach taken in Boardman s
case, whereby the probative value of the SFE must outweigh its
prejudicial effect in order for it to be admissible
• Evidence tendered to show the existence of any state of mind,
body or bodily feeling is relevant if it carries probative value
• Eg: To establish the knowledge of a person or an accused
• Illustration b to Section 14: A is accused of fraudulently
delivering to another person a counterfeit coin, which at the
time when he delivered it he knew to be counterfeit. The fact
that at the time of its delivery A was possessed of a number of
other pieces of counterfeit coin is relevant. The fact that A had

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been previously convicted of delivering to another person as

genuine a counterfeit coin, knowing to be counterfeit is relevant
• Illustration c to Section 14: A sues B for damage done by a dog
of B s which B knew to be ferocious. The fact that the dog had
previously bitten X, Y and X and they had made complaints to B
are relevant
• Explanation 2 to Section 14: But where upon the trial of a person
accused of an offence the previous commission by the accused
of an offence is relevant within the meaning of this section, the
previous conviction of that person shall also be relevant fact
• PP v Veeran Kutty & Anor: The prosecution was allowed to
adduce evidence of the commission of an armed robbery
(previous conviction) by the accused prior to them being caught
in possession of firearms and ammunition
• The evidence of the accused being armed with revolvers is
similar in nature to the fact in issue, which is the possession of
firearms
• Thus, the prejudicial effect of the evidence of an armed robbery
has been overridden by its striking similarity making it
admissible
• This provision is also applicable to civil cases where SFE is
adduced
• Illustration c to Section 14: A sues B for damage done by a dog
of B s which B knew to be ferocious. The fact that the dog had
previously bitten X, Y and X and they had made complaints to B
are relevant
• Illustration d to Section 14: The question is whether A, the
acceptor of a bill of exchange, knew that the name of the payee
was fictitious. The fact that A had accepted other bills drawn in
the same manner before they could have been transmitted to
him by the payee, if the payee had been a real person, is relevant
as showing that A knew that the payee was a fictitious person
• Illustration e to Section 14: A is accused of defaming B by
publishing an imputation intended to harm the reputation of B.
the fact of previous publications by A respecting B, showing ill
will on the part of A towards B is relevant as proving A s

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intention to harm B s reputation by the particular publication in

question. The facts that there was no previous quarrel between
A and B and that A repeated the matter complained of as he
heard it, are relevant as showing that A did not intend to harm
the reputation of B
• Illustration f to Section 14: A is sued by B for fraudulently
representing to B that C was solvent, whereby B being induced
to trust C who was insolvent suffered loss. The fact that at the
time when A represented C to be solvent C was supposed to be
solvent by his neighbours and by persons dealing with him is
relevant as showing that A made the representation in good
faith
• Illustration g to Section 14: A is sued for the price of work done
by B upon a house of which A is owner by the order of C, a
contractor. A s defence is that B s contract was with C. The fact
that A paid C for the work in question is relevant as proving that
A did in good faith make over to C the management of work in
question, so that C was in a position to contract with B on C s
own account and not as agent for A
• Illustration k to Section 14: The question is whether A has been
guilty of cruelty towards B, his wife. Expression of their feelings
towards each other shortly before or after the alleged cruelty
are relevant facts
• Illustration m to Section 14: The question is what was the state
of A s health at the time when an assurance on his life was
effected? Statements made by A as to the state of his health at or
near the time question are relevant facts
• Illustration n to Section 14: A sues for B for negligence in
providing him with a carriage for hire not reasonably fit for use
whereby A was injured. The fact that B s attention was drawn on
other occasions to the defect of that particular carriage is
relevant. The fact that B was habitually negligent about the
carriages which he let to hire is relevant
• Section 15 EA: 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 series of similar

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occurrences, in each of which the person doing the act was

concerned, is relevant
• This provision adopts the specific approach in Makin s case
• The accused s act must have formed part of a series of similar
occurrences which can be equated with a system
• Evidence that the accused committed other acts of a similar
nature to the act for which he is charged, will show system thus
negating the possibility of an accident
• Illustration a to Section 15: A is accused of burning down his
house in order to obtain money for which it is insured. The facts
that A lived in several houses successively, each of which he
insured, in each of which a fire occurred, and after each of which
fires A received payment from a different insurance office, are
relevant as tending that the fire was not accidental
• Illustration b to Section 15: A is employed to receive money from
the debtors of B. It is A s duty to make entries in a book showing
the amounts received by him. He makes an entry showing that
on a particular occasion he received less than he really did
receive. The question is whether this false entry was accidental
or intentional. The facts that other entries made by A in the same
book are false, and that the false entry is in each case in favour
of A are relevant
• Illustration c to Section 15: A is accused of fraudulently
delivering to B a counterfeit ringgit. The question is whether the
delivery of the ringgit was accidental. The facts that soon before
or soon after the delivery to B, A delivered counterfeit ringgit to
C, D and E are relevant as showing that the delivery to B was not
accidental
• RV Raju & Ors v R: Evidence of similar facts may be relevant for
the following purposes:
• To negative accident
• To prove identity
• To prove intention (only where mens rea is the gist of the
offence)
• To rebut a defence open to the accused

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• When tendering SFE, the prosecution should tender it for a

specific purpose; and if admitted, it should be made clear for
what purpose it is admitted
• Junaida Abdullah v PP: The accused was charged with being in
possession of a revolver without lawful excuse. A witness
allegedly saw the accused handle a firearm while committing
robbery the night before he was arrested. The evidence was
tendered to rebut the defence of the accused that he was not in
physical possession of the firearm. The court admitted the SFE
based on both, principles in Makin s and Boardman s case.
• Where the purpose of adducing evidence of similar offences is
justifiable on the ground of relevancy and necessity to rebut any
defence open to the accused, it is admissible provided that the
probative value outweighs its prejudicial effect
• The fact that more recent cases showed an inclination towards
the application of Boardman s case is proof that the courts in
Malaysia have accepted the probative value approach
• In Junaida incorporates board man s test probative value
• In Veerankuti incorporates board man s test probative value
• Azahan uses probative value test. This man was charged for
rape of his daughters. The SFE that prosecutor wants to bring is
rape of 1st and 2nd daughter. The police has taken an advantage
that the man is unrepresented. The court in applying the
boardman s test, says that it is highly prejudicial. SFE was
rejected in this case.
• In Sosilawati s case, where she was murdered. The MO was that
the close members received message that they are going
outstation and cannot be contacted. The family members got
curious and made a police report. There had actually been a case
of disappearance of one business man from kedah and india
where the wives received message that they cannot be
contacted. The 2 were meeting, the accused at the same place.
But as the link was very difficult to establish, the court rejected
the SFE and MO.

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• However, in tendering evidence under Section 14 and 15, the

SFE must first be proven to be relevant under the provisions
• Only upon establishing its relevance under the provisions
should the probative value approach in Boardman s case can be
applied
• Azahan Mohd Aminallah v PP: A court when deciding whether
to admit SFE must carry out a balancing exercise by weighing
the probative value of such evidence against its prejudicial effect
as impliedly required by Section 14 and 15.

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Admission
• Section 17(1) EA: An admission is a statement, oral or
documentary which suggests any inference as to any fact in
issue or relevant fact and which is made by any of the persons
and under the circumstances hereinafter mentioned
o The inference could be an inference of guilty, liability, non-
guilt or non-liability of a person
• Section 18(1) EA: A person whose statement may amount to an
admission within the meaning of section 17 and is thus relevant
and admissible is
o A party to a proceeding (Section 18(1)): The person can
be a plaintiff or defendant to the case)
o An authorized agent (Section 18(1)): An agent
representing a principal in a transaction by virtue of the
authority given to him, either expressly or impliedly by
the principal
▪ An admission made by an agent in the course of his
business and within the scope of his authority may
then be admissible as against the principal
▪ Teh Eok Kee v Tan Chiah Hock: Admissions by those
in privity with the party are admissible and includes
predecessors in title, referees and servants or
agents acting within the scope of their authority.
However, an admission of a agent is inadmissible
unless the fact of his agency is proved (the fact that
he had the authority to make the statement)
▪ Whether or not an agent is authorized to make a
statement is a question of fact
▪ Great Western Rail v Wills: A statement made by the
station master (person in charge of the railway
station) to the plaintiffs that the defendant had
forgotten about the cattle which they were
supposed to deliver was not admissible, as he had
no authority as an agent of the defendant to make
the statement

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▪ Kristall Brewery Co v Furness Railway: When the

plaintiff lost a parcel of money, a statement by the
station master to the police which suggested that
one of the company s employees had committed
theft was admissible as informing the police of what
had happened was within the scope of his duty
o Parties in representative capacity (Section 18(2)):
Statements made by trustees or executors are admissible
as long as they were made while in such capacity
o Parties who have proprietary or pecuniary interest
(Section 18(3)): A person who derives an interest in the
case by virtue of the subject matter

• The effect of Section 18 is that any admission made by persons

not listed is inadmissible but the admission of an independent
third party, if relevant can be admitted under Section 19 and
Section 20
o Section 19 EA: Statements made by persons whose
position or liability it is necessary to prove as against any
party to the suit are admissions if the statements would
be relevant as against those persons in relation to the
position or liability in a suit brought by or against them,
and if they are made whilst the person making them
occupies that position or is subject to that liability
▪ An admission made by a person who is not party to
the suit but whose liability is necessary to prove as
against any party to the suit
▪ Illustration to Section 19: A undertakes to collects
rents from B. B sues A for not collecting rent due
from C to B. A denies that rent was due from C to B.
A statement by C that he owed B rent is an
admission and is a relevant fact as against A if A
denies that C did owe rent to B.
o Section 20 EA: Statements made by persons to whom a
party to the suit has expressly referred for information in
reference to a matter in dispute are admissions

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▪ Illustration to Section 20: The question is whether a

horse sold by A to B is sound. A says to B Go ask C;
C knows all about it C s statement is an admission
• Section 21 EA: Admissions are relevant and may be proved as
against the person who makes them or his representative in
interest; but they cannot be proved by or on behalf of the person
who makes them or by his representative in interest except in
the following case:
a) and admission may be proved by or on behalf of the person
making it when it is of a nature that if the person making it were
dead, it would be relevant as between third persons under
section 32
b) an admission may be proved by or on behalf of the person
making it when it consists of a statement of the existence of any
state of mind or body relevant or in issue, made at or about the
time when that state of min d or body existed and is
accompanied by conduct rendering its falsehood improbable
c) an admission may be proved by or on behalf of the person
making it if it is relevant otherwise than as an admission
• The general rule is that an admission is in admissible if it is
found favouring the person who made it. Thus,a person
cannot use his own admission to work in his favour
• However, the provision provides three exceptions in which
an admission can be proved by or on behalf of the person
making it:
o When the person making it is dead
o When the admission consists of a statement of
▪ State of mind
▪ Made at the time the state of mind exists
▪ Accompanied by conduct
o If it is relevant otherwise than as an admission
• Section 22 EA: Oral admissions as to the contents of a document
are not relevant unless and until the party proposing to prove
them shows that he is entitled to give secondary evidence of the
document under the rules hereinafter contained, or unless the
genuineness of a document produced is in question

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• Section 23 EA: 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
o Where the provision deals with settlement negotiations,
any communication leading up to a settlement will be
inadmissible as evidence in court where it has been
labeled with the term without prejudice
▪ Thus, where parties admit to a fault or liability in
order to reach a settlement, such an admission is
protected from disclosure in court if they are made
without prejudice
o Literal approach: Any communication made without
prejudice is inadmissible
▪ Malayan Banking Bhd v Foo See Moi: Letters written
without prejudice are inadmissible as evidence of
the negotiation. This is to help enlarge the scope of
negotiations so that a solution acceptable to both
sides is easily reached
▪ This privilege is only applicable when it concerns
communication referring to the settlement
negotiations
• Wong Nget Thau v Tay Chao Foo: Where there
was no dispute at the time of the letter, the
correspondence could not be said to have
been written in the course of negotiations.
Thus, the privilege did not apply
▪ Dusun Desaru Sdn Bhd v Wong Ah Yu: The privilege
may be waived where both parties consent to the
waiver
▪ Foo See Moi: An exception to the literal approach is
that where the negotiations conducted without
prejudice lead to a settlement, the letters of the
negotiations are admissible as evidence of the terms
of the agreement, provided that the agreement has

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not been reduced to writing (incorporated in

another document)
o Genuine aimed settlement approach: if the negotiations
were genuinely aimed at a settlement, the communication
made without prejudice may be admitted as evidence if
justice to the parties requires the court to do so
▪ Lim Tjoen Kong v A-B Chew Investments Pty Ltd:
The purpose of the rule is to encourage litigants to
settle their differences without fear of negotiations
being admitted as evidence if no settlement is
reached. However, the rule is not absolute and the
court may resort to the without prejudice material
for a variety of reasons when justice of the case
requires it. To not do so may cause the withholding
of evidence which may prove what is true
Confession
• Section 17(2) EA: A confession is an admission made at any time
by a person accused of an offence, stating or suggesting the
inference that he committed that offence
o To determine whether a statement is a confession,
Anandagoda v R: The objective test questions whether to
the mind of the reasonable man reading the statement at
the time, in the circumstances in which it was made, it can
be said to amount to a statement that the accused
committed the offence or which suggested the inference
that he committed the offence
o However, not all relevant confessions are admissible
• Section 113(1) Criminal Procedure Code: A confession made by
an accused person to police officers in the course of an
investigation cannot be used against the accused
o The exceptions to this provision is where the statements
are made under:
▪ The Dangerous Drugs Act
▪ The Malaysian Anti-Corruption Commission Act
▪ The Kidnapping Act

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• However, confessions made by an accused to police officers

outside the scope of a police investigation can be used against
the accused provided that they are admissible under Section
24,25,26
• Section 24 EA: A confession made by an accused person is
irrelevant in a criminal proceeding if the making of the
confession appears to the court to have been caused by any
inducement, threat or promise having reference to the charge
against the accused person, proceeding from a person in
authority and sufficient in the opinion of the court to give the
accused person grounds which would appear to him reasonable
for supposing that by making it he would gain any advantage or
avoid any evil of a temporal nature in reference to the
proceeding against him
o Veera Ibrahim v State of Maharashtra: In order for a
confession to be in admissible, under the provision, it
must be established that:
o The confession was obtained by reason of an inducement,
threat or promise
▪ The confession must have been voluntarily made by
the accused and no obtained through an
inducement, threat or promise
▪ Inducement: A statement or an act that helps bring
about an action or a desired result, or was designed
to encourage behavior done through the influence
of persuasion
• PP v Kamde Raspani: The accused who was
assaulted, confessed to avoid further assault
• Selvadurai v PP: Even a very slight
inducement is sufficient to render the
confession inadmissible
• Md Desa Hashim v PP: The use of brotherly
affection constituted sufficient inducement
where the police told the accused that his
brother who was arrested earlier would be

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released if the accused gave a statement to the

police
▪ Threat: When a person tells another that he will
something to the other, if he does not follow what
is asked of him
• Aziz Muhammad Din v PP: The advice of a
father telling his son to admit to the charge
was held to amount to a threat. The fact that
the words used were advisory in nature do
not weaken their effect as even the gentlest
threat will taint a confession (make it
inadmissible)
▪ Promise: A verbal commitment by one person to
another agreeing to do, or not do, something in the
future, which provides the other with hopeful
feelings about the future
• R v Blackburn: “A promise of pardon
• R v Thompson: Tell me where the things are
and I will be favourable to you

o The inducement, threat or promise was made by a person

in authority
▪ The inducement, threat or promise must have
proceeded from a person in authority. However,
whether or not a person is a person in authority is a
question of fact

▪ R v AB: Person in authority is persons ordinarily

engaged in the arrest, detention, examination or
prosecution of the accused
▪ The accused must have truly believed, at the time he
made the statement, that the person he dealt with
had some degree of power over him
▪ An inducement, threat or promise may also be made
by a person who is not in authority, but in the
presence of a person in authority who does not

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oppose the making of it. In such situations, the

person (not in authority) is considered as the agent
of the person in authority (R v AB)
• Aziz Muhammad Din v PP: Where the
accused s father advised his son to confess
(made a gentle threat) in the presence of
police officers (person in authority) who did
not take steps to oppose what was said to the
accused, the accused s father is said to be an
agent of the persons in authority
o The inducement, threat or promise must have reference
to the charge against the accused
▪ Poh Kay Keong v PP: Reference to the charge is not
limited to matters directly to the charge as it suffices
if the inducement, threat or promise refers to any
matters which could have an effect on the accused
in respect of the charge
▪ Ong Hock & Anor v Rex: An inducement relating to
rewards or retribution in the afterlife, though it may
have led to a confession, does not fall within the
ambit of section 24
o The inducement, threat or promise must be sufficient to
give the accused grounds for supposing that by making
the confession, he would gain an advantage, or avoid any
evil of a temporal nature
▪ The accused must have honestly believed that he
would gain an advantage or avoid a negative
outcome if he voluntarily confesses. This belief must
therefore be examined by looking into the
expression used to induce the making of the
confession, which is thus, a question of fact in each
case

o Where all conditions have been established, it would

prove that the confession was not made voluntarily, thus
rendering it inadmissible under Section 24

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o Dato Mokhtar Hashim v PP: The classic test of the

admissibility of an accused s confession should be applied
in a manner which is part objective, part subjective
▪ The objective limb is satisfied if there is an
inducement, threat or promise
▪ The subjective limb is satisfied when the
inducement, threat or promise operates on the
mind of the accused through hope of escape, or fear
or punishment connected with the charge
• If the accused had already made up his mind
to confess, the subjective limb would not be
satisfied
o Md Desa Hashim v PP in affirming the classic test:
Confession is born of a free mind and will and is not tained
by any pressure or other vitiation elements
o Dato Mokhtar Hashim v PP: A confession must be made
voluntarily in the sense that it was not obtained by fear of
prejudice or hope of advantage created by a person in
authority, or by oppression
▪ This case establishes the inclusion of oppression
under Section 24
o Oppression: A situation where a statement is obtained
from the accused by causing extreme discomfort such as
denial of food, rest or sleep (R v Priestly)
▪ Lim Kit Tat v PP: A statement was taken after
questioning the accused for four nights in a row, and
the accused has not had sufficient sleep
▪ Dato Mokhtar Hashim v PP: The accused was
prevented from praying
▪ Hasibullah Mohd Ghazali: The accused was rudely
awaken in the early hours of the morning by an
ambush of police officers. It was in his state of fear
and confusion that he then confessed to the charge
Trial within a trial (voir dire)

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• If the voluntariness of a confession is in any way challenged, a

trial within a trial voir dire must be held to determine the
involuntariness of the confession made
• Where the burden of proof in a criminal case is on the
prosecution to prove beyond reasonable doubt that the
confession was voluntarily made (Dato Mokhtar Hashim), the
accused merely has to create suspicion in regards to the making
or recording of the confession (Juraimi Husin v PP)
• The prosecution s failure to discharge the burden will allow
a separate trial to be held (voir dire) where evidence may then
be tendered to either, support or rebut, the presence of
inducement, threat, promise or oppression upon the accused in
obtaining the confession
• PP v Law Say Seck: A mere possibility that the confession was
not made voluntarily is insufficient to allow its rejection, but a
probability would suffice to dictate its rejection
• Lim Seng Chuan v PP: The raitionale of a voir dire is to provide
fairness to the accused.
• The failure to hold a trial within a trial in a situation where the
admissibility of the confession is challenged is fatal

• Section 25 EA: Subject to any express provision contained in any

written law, no confession made to a police officer who is below
the rank of Inspector by a person accused of any offence shall be
proved as against that person
• Section 26(1) EA: Subject to any express provision contained in
any written law, no confession made by any person whilst he is
in the custody of a police officer, unless it is made in the
immediate presence of a Sessions Court Judge or Magistrate,
shall be proved as against that person
o Eng Sin v PP: Custody does not necessarily mean formal
arrest, it is sufficient that the accused cannot go as he
wishes

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o Sambu v R: A person is said to be in custody if he is in a

state of being guarded, where his movements are watched
closely to prevent his escape
o PP v Haji Kassim: Following an attempted suicide, the
accused was taken to the hospital by a police officer. He
then confessed to a doctor, but the confession was
inadmissible as he was still considered to be in police
custody
o However, if the confession is made in the immediate
presence of a Sessions court judge or magistrate, it is
admissible despite the accused being in police custody
• Section 27 EA: When any fact is deposed to as discovered in
consequence of information received from a person accused of
any offence in the custody of a police officer, so much of that
information, whether the information amounts to a confession
or not, as relates distinctly to the fact thereby discovered may be
proved
o In order for a statement to fall under the provision:
▪ The information was received from the accused
• Choong Soon Koy v PP: A person charged of an
offence must be the person to have given the
information that led to the discovery of fact
▪ The information was received while the accused
was in police custody
▪ A fact must be discovered in consequence of the
information received
• Wai Chan Leong v PP: In order for the
provision to apply, the fact must be the
consequence, while the information is the
cause of its discovery
• If there is discovery without any evidence of
information, the provision would not apply
• Gurusamy v PP: The accused was brought by
the police to a place and by following
footprints tracks, they came to the spot where
the stolen goods were stacked. The discovery

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was inadmissible as the appellant never made

any statement or give information that led to
the discovery of the stolen items
• The police cannot turn a recovery into a
discovery. Thus, if the police had any prior
knowledge of the existence of the thing
discovered, then the provision would not
apply
• PP v Lie Sam Seong: There was evidence that
the police had prior knowledge of the
ammunition before the alleged discovery
took place after information was given by the
accused, thus causing the provision to not be
applicable
• If the police had prior knowledge of the fact
but had not identified the exact and specific
location, any subsequent information given
by the accused regarding the fact would be
inadmissible
• PP v Basri Salihin: The accused was arrested
at a bus stop and taken in for questioning. He
was then taken to a stall near the bus stop,
where the police recovered an envelope
containing heroin in a wooden bin by the stall.
The envelope was said to be found as a
consequence of information given by the
accused. However, he denied giving any
information and alleged that the police had
already known the existence of the drugs
when they asked him where they were during
the questioning. Held: The accused was then
acquitted
• PP v Kanapathy Kupusamy: During question,
the accused did not answer the questions
asked by the police. Instead, he lead the police
party to a room where the drugs were

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recovered. Held: The information was

inadmissible as there was no evidence of
information being given by the accused that
led to the discovery of drugs
▪ Only the information that leads to the discovery of
the fact is admissible
• Where a statement contains both a confession
and information leading to the discovery of a
fact, only the part of the statement containing
the information is admissible under section
27
• Pulukuri Kottaya v Emperor: The accused
confessed to the police I stabbed Sivayyah
with a spear. I hide the spear in a yard in my
village and I will show the place . The court
found that the first part of the statement
which speaks about the guilt of the accused is
not admissible, whereas the second part
which led to the discovery of the spear is
admissible under Section 27
• PP v Lee Kim Seng: Where the accused had
confessed to unintentionally committing
murder and that he could show the police
where it happened, the police led the accused
to the site and a body was found. Held: Only
the information received that led to the
discovery of the body was admissible under
Section 27
• For such reason, the actual words of the
information must be recorded.
• Sum Kum Seng v PP: Where the accused was
charged for being in control of firearms, the
prosecution relied on evidence that the
appellant had admitted burying the weapons
somewhere and offered to show the place to
the police. The evidence was argued to be

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inadmissible as it was not the actual words

used by the appellant. Held: Although there is
no strict necessity in law, both the decisions
referred to and common sense stress the
desirability that the actual words must be
recorded somewhere
• Hasamuddin Talena v PP: During the
interrogation, the accused made a statement
to the approximate effect (the words were
inexact) that he could lead the police to the
place where certain drugs had been
concealed. At the scene, the accused made a
second statement and pointed to where the
drugs were concealed. Held: Under Section
27, approximations are not permitted. Thus,
the exact words spoken by the accused have
to be proven
• Section 28 EA: If such a confession as is referred to in Section 24
is made after the impression caused by any such inducement,
threat or promise has in the opinion of the court been fully
removed, it is relevant
o The presence of an inducement, threat or promise is said
to exist, until and unless it is removed through lapse of
time or an intervening event. Thus, a confession becomes
relevant once the inducement, threat or promise is
considered as having been fully removed.
o Abdullah Awang Bongkok v PP: The act of the Magistrate
in carefully questioning the accused as to whether his
confession was obtained as a result of a promise made by
a police constable was able to completely remove the
effect of the promise
• Section 29 EA: If such a confession as is referred to in section 24
is otherwise relevant, it does not become irrelevant merely
because it was made under a promise of secrecy, or in
consequence of a deception practiced on the accused person for
the purpose of obtaining it, or when he was drunk or because it

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was made in answer to questions which he need not have

answered, whatever may have been the form of those questions,
or because he was not warned that he was not bound to make a
confession and that evidence of it might be given against him
o This is in line with the rule that evidence, regardless of
how it was obtained, is admissible if it is found to be
relevant and voluntarily made, it will be admissible
o R v Santokh Singh: Where it was alleged that a constable
had made the accused drunk, after which he then made a
statement, the court found the statement to be admissible,
as a statement can only be rendered inadmissible if it is
obtained through hope or fear.
• Section 30(1) EA: When more persons than one are being tried
jointly for the same offence, and a confession made by one of
those persons affecting himself and some other of those person
is proved, the court may take into consideration the confession
as against the other person as well as against the person who
makes the confession
o There are 3 requirements that must be fulfilled in order
for the provision to apply:
▪ Two or more accused must be jointly tried for the
same offence
▪ One of the accused has made the confession
implicating himself and co-accused (not only
blaming others, but also admitting his guilt)
▪ The confession must be admissible against the
maker
o Once the requirements are fulfilled, the court may then
take into consideration the confession against the co-
accused
o Strong evidence against the co-accused is required before
the confession implicating the co-accused can be
considered
o If the accused confesses with the intention to clear his
name at the expense of implicating the other in a joint
trial, the confession will not be taken into consideration
against the co-accused

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o Herchun Singh v PP: In applying Section 30 to a confession

made:
▪ Evidence against the co-accused must be viewed
independently from the accused s confession
▪ If the court is satisfied beyond reasonable doubt
that the co-accused can be convicted based on the
evidence of the accused, the confession would not
be necessary
• Where there is a doubt as to whether the co-
accused could be convicted the confession
implicating the co-accused can be used
o The provision does not apply to situations where an
accused is giving evidence implicating the co-accused
from a witness box
Retracted confession
• Yap Saw Keong v PP: An accused person can be convicted on his
own confession, even when it is retracted, if the court is satisfied
of its truth
• A confession found to be relevant can still be admitted as
evidence, despite it having been retracted, if the court is satisfied
that it was voluntarily made by the accused

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Hearsay Evidence
• Section 60 EA: All oral evidence must be direct in order for it to
be admissible
• A hearsay statement which is an out of court statement made by
someone who cannot be present in court, to repeat it, does not
fall within the ambit of Section 60, thus making it inadmissible
• The general rule in Subramaniam v PP: A statement is hearsay
and inadmissible when the object of the evidence is to establish
the truth of what is contained in the statement

Exceptions to the general rule of hearsay evidence:

• The res gestae principle under Section 6
• Admission and confession under Section 17-30
• Public documents and records
• Exceptions under Section 32

Section 32(1) EA: There are 4 categories of persons to which the

exceptions under the provision apply:
• A person who is dead
o The death of the maker of the statement must be proven
by:
▪ Documentary evidence (certificate of death)
▪ Oral evidence (through the officer who conducted
the post mortem)
▪ A superior confirming the death of his officer
▪ A relative confirming the death of the deceased
• A person who cannot be found
o There must be proof that attempts to search for the
person s whereabouts has been made and it must such
that the court is satisfied that a reasonable search has
been conducted
o PP v Lee Jun Ho & Ors: The court rejected evidence of
recorded statements of 2 important witnesses as no
action was taken to trace the witnesses when the trial

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began in 2006 and efforts to locate them were only made

in 2008
o The seriousness of the case (eg: murder) would demand
greater efforts to ensure that the witnesses were present
• A person who has become incapable of giving evidence
o Incapability need not necessarily be a permanent form of
incapacitation, it may also refer to extreme old age or
mental incapacity (Sarkar on Evidence)
o The witness incapability to give evidence must be proven
strictly, but it is not necessary for a confirmation from a
medical practitioner to be obtained or for a medical
certificate to be produced
• A person whose attendance cannot be procured without
unreasonable delay or expenses
o Enough evidence must be adduced to show that it would
involve such delay and expenses if his presence is
procured
o Allied Bank (Malaysia) Bhd v Yau Jiok Hua: Where the
witness had migrated to Australia and his exact
whereabouts were unknown, the court found that the
plaintiff s argument that it was not cost-effective to bring
the witness to court was unacceptable where the amount
of the claim was over RM1 million
o PP v Lam Peng Hoa: Unless it is proven that due diligence
and reasonable exertion in trying to locate the witness had
been employed, there could be no basis in contending that
the witness attendance could not be procured without an
amount of delay or expenses

Once it has been established that the maker of the statement

falls under any one of the four categories of persons proven to
be absent, the evidence must then be tendered under the
exceptions in Section 32:
• Section 32(1)(a):
• Common Law dying declaration
• Must relate only to the death of the maker of the statement

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• For it to be admissible, it must have been made in the settled

expectation of death
• However, Section 32(1)(a) is much wider in scope as the
statement relates to:
• The cause of the maker s death
• The circumstances of the transaction which led to his death
• The maker of the statement is not required to be in a dying state
when the statement is made

• There are two distinct interpretations of the provision:

• Narrow interpretation:
• Boota Singh v PP: Where the accused was convicted of murder,
a police report made by the deceased against the accused 9
months before the murder could not be regard as a report
concerning any circumstances which resulted in the murder
within the meaning of the provision
• Haji Salleh v PP: A statement made by the deceased a month
before his death stating that he was afraid that the accused
might kill him was inadmissible under the provision
• Broader interpretation:
• Yeo Hock Cheng v R: The deceased in this case made two
statements:
• The first was made to her father 11 days before death denying
that she had slept at the acccused s house out of fear of being
killed by the accused if she were to tell her father the truth
• The second was made to her sister on the evening of her death
informing that she was going out with the accused and that he
had told her to wear man s clothing
• Held: the first statement was inadmissible under the provision
as it was too remote and could not be treated as one of the
circumstances resulting in her death. However, the second
statement when viewed with the evidence of the body led to the
conclusions that the murder was premeditated. The accused
himself arranged for the deceased to wear man s clothing,
presumably to avoid recognition which amounts to the

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circumstances resulting in her death, making the statement

relevant under the provision
• PN Swami v King Emperor: Where the deceased was found to
have been murdered, a statement he made a day before his
death that he was going to the place where the accused lived to
meet the accused s wife was admissible under the provision as
it was clearly a statement as to the circumstances of the
transaction which resulted in his death
• Lord Atkin in this case stated:
• The statement may be made before the cause of death had arisen
of before the deceased had any reason to expect to be killed
• General expressions or fear or suspicion not directly related to
the occasion of death will not be admissible
• The circumstances must have some proximate (close) relation
to the actual occurrence
• Statements made by the deceased that he was proceeding to the
spot where he was then killed or his reasons for proceeding or
that he was going to meet a person or that he had ben invited by
such person to meet him amounts to circumstances of the
transaction, regardless of whether the person was unknown or
not the accused
• Section 32(1)(b): When a statement is made by a person
through an entry or memorandum made in books kept in the
ordinary course of business or in the discharge of professional
duty
• For the statement to be acceptable as an exception, the maker
must have personal knowledge of the matter in the statement to
avoid the possibility of multiple hearsay
• Allied Bank (Malaysia) Bhd v Yau Jiok Hua: Where the witness
tendering the evidence was not the maker of the documents (as
the maker had migrated to Australia) the documents were
inadmissible
• The provision is confined to statements made based on the
person knowledge of the maker, thus not allowing multiple
hearsay

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• Unlike the provision, Section 73A allows for the admissibility of

a statement even when its maker did not have personal
knowledge f its conents, thus allowing multiple hearsay
• Similarly, if a police officer (who cannot then appear in court)
interviewed witnesses and recorded the information in his
diary, the information contained cannot be said to be within his
personal knowledge as he would not have perceived the
circumstances. Thus, the information would amount to multiple
hearsay evidence, falling outside the scope of the provision
• The police officer cannot be said to have perceived first-hand
what the witnesses di
• However, if a police officer (who cannot then appear in court)
conducted a search in a premise and seized items which he then
recorded in an inventory, such information would fall within the
scope of the provision as it would be first-hand hearsay evidence
of the contents of the inventory

• Section 32(1)(c): The statement made must be against the

maker s interest that could be injurious to him, either by
exposing him to criminal prosecution or a civil suit for damages
o Illustration e to Section 32: The question is whether rent
was paid to A for certain land. A letter from A s deceased
agent to B, saying that he had received the rent on A s
account and held it at A s orders, is a relevant fact
o Illustration f to Section 32: The question is whether A and
B were legally married. The statement of a deceased
clergyman that he married them under circumstances that
the celebration would be a crime is relevant
• Section 32(1)(i) and (j):
o The statement was made in the course of for the purposes
of an investigation or inquiry into an offence under or by
virtue of any written law and
o The statement was made by a public officer in the
discharge of his duties
o PP v Michael Anayo Akabogu: Section 32(1)(i) and (j) are
conjoined by the word and between it which shows that

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the intention of the legislature was to bind the two

subsections
▪ In criminal proceedings, any ambiguity in the
language of a provision has to be narrowly
construed. When read conjunctively, the provisions
would mean that the statement must be made by a
police officer, in the discharge of his duty in the
course of an investigation
▪ Both provisions, which must be read conjunctively
is only related to public officers and not witnesses
▪
▪ In this case, four statements made by Thai nationals
sought to be tendered under Section 32(i) were
inadmissible as they were not made by a public
officer as required under Section 32(j) through a
conjunctive reading
o Kobra Taba Seidali v PP: A disjunctive reading of the
provisions would result in it covering a large variety of
statements, which is not within the spirit of Section 32
▪ However, the court in PP v Lam Peng Hoa was of the
view that it should read disjunctively and that the
word and which conjoins the provision was only
the drafter s preference in the writing of the
provisions, as a conjunctive reading would be an
improper construction (PP v Mohamed Fairuz
Omar)
o Despite the distinct approaches, recent cases such as
Kobra Taba Seidali v PP and PP v Sim Kay Chay have
indicated that the more preferable approach of the courts
is a conjunctive reading of the provisions

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Presumption
• Presumption is a fact assumed to be true under the law
• It describes the process whereby, upon the proof of one fact
(basis fact) another fact (presumed fact) is deemed to have been
proven

Burden of proof
• Legal burden: The burden of establishing a case (Section 101
EA)
• Section 101 EA: Whoever desires any court to give judgment as
to any legal right or liability dependent on the existence of facts
which he asserts, must prove that those facts exist
o It remains upon a single party until the end of the
proceeding (does not shift)
o Civil case: The plaintiff has the legal burden of convincing
the judge that he is entitled to the relief sought for
▪ A plaintiff must prove each element of the claim and
cause of action in order to discharge the burden
o Criminal case: The burden of proof rests on the one who
asserts, not the one who denies (Woolmington v DPP)
▪ It is for the prosecution to discharge his legal
burden in proving that the accused is guilty for the
crime charged not for the accused to prove that he
is innocent
▪ Woolmington v DPP: An accused is innocent until
proven guilty
• Evidentiary burden: The burden of producing evidence (Section
102)
• Section 102: The burden of proof in a suit or proceeding lies on
that person who would fail if no evidence at all were given on
the either side
o Evidentiary burden shifts between parties over the course
of the proceeding
o Criminal case: The prosecution bears the evidentiary
burden to produce evidence in order to prove the
elements of the crime until a prima facie case is

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established. Upon establishing a prima facie case, the

evidentiary burden shifts to the accused to produce
evidence in order to cast doubt on the prosecution s case
• Standard of proof:
o Civil case: On the balance of probabilities
▪ The standard is met if there is a chance greater than
50% for the proposition to be true
o Criminal case: Beyond reasonable doubt
▪ The allegation must be proven to an extent that
there is no reasonable doubt in the mind of a
reasonable man that the accused is guilty
• The effect of invoking a presumption is that it reverses the
evidential burden of proving certain facts
o A presumption should only be raised after consideration
of whether there are adequate grounds that would justify
it being raised
▪ However, the court still has the power to exercise its
discretion of whether or not to allow the
presumption to be raised (Section 136(1))
▪ Section 136(1): When either party proposes to
given evidence of any fact, the court may ask the
party proposing to give the evidence in what
manner the alleged fact, if proved, would be
relevant; and the court shall admit the evidence it it
thinks that the fact, if proved would be relevant and
not otherwise
o The existence of a presumption will cause the evidentiary
burden to shift to the other party in order for the
presumption to be rebutted
o In any case, once a presumption is raised, the other party
must rebut the presumption on the balance of
probabilities (PP v Yuvaraj)

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Types of presumption:
Presumption of fact (Section 4(1))
• Section 4(1) EA: Whenever it is provided by the Act that the
court may presume a fact, it may either regard the fact as proved
unless and until it is disproved or may call for proof of it
• A presumption made of the existence of a certain fact
• The court has the discretion to presume the fact or not
o Where the court decides to presume the fact, upon doing
so, the other party must rebut the presumption
o Where the court decides to not presume the fact, it may
direct the party that raised the presumption to prove the
fact
• A presumption of fact is always rebuttable
• The court may make a presumption as to:
o Section 86 EA: The court may presume that any document
purporting to be a certified copy of any judicial record of
any country not being a part of the Commonwealth is
genuine and accurate if the document purports to be
certified in any manner which is certificed by any
representative of the Yang Di-Pertuan Agong in or for such
country to be the manner commonly in use in that country
for the certification of copies of judicial records
o Section 87 EA: The court may presume that any book to
which it may refer for information on matters of public or
general interest and that any published map or charter the
statements of which are relevant facts and which is
produced for its inspection, was written and published by
the person and at the time and place by whom or at which
it purports to have been written or published.
o Section 88 EA: The court may presume that a message
forwarded from a telegraph office to the person to whom
it purports to be addressed corresponds with a message
delivered for transmission at the office from which the
message purports to be sent; but the court shall not make
any presumption as to the person by whom the message
was delivered for transmission

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o Section 90 EA: Where any document purporting or proved

to be 20 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
the 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
o Section 114 EA: The court may presume the existence of
any fact which it thinks likely to have happened, regards
being had to the common course of natural events, human
conduct and public and private business in their relation
to the facts of the particular case
▪ Illustration b to Section 114 EA: That an accomplice
is unworthy of credit unless he is corroborated in
material particulars
• R v Mullins: An accomplice is a person who
has concurred (given his acceptance) in the
commission of an offence
o An accomplice is different from a co-
accused, as an accomplice may be called
in as a witness (without being charged
or after has been charged or convicted),
where a co-accused indicates that the
person has been charged
• The law requires for evidence provided by an
accomplice to be corroborated by other
evidence as it is presumed to be not credible
whereby there is a high possibility of the
accomplice minimizing his role and
maximizing his partner s role in the crime
(shifting the guilt towards his partner)
• The provision should be read together with
Section 133: An accomplice is a competent
witness against an accused, and a conviction

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is not illegal where it is made on the basis of

an uncorroborated testimony of an
accomplice
• Where the presumption that an accomplice is
unworthy of credit is rebuttable, the court
may decide that an accomplice is worthy of
credit and admit his uncorroborated
testimony
• PP v Sarjeet Singh: However, reading the
provisions together, the court is still required
to treat accomplices with suspicion and
reflect on the danger in convicting an accused
based on the uncorroborated testimony of an
accomplice
▪ Section 114(g) EA: Evidence which could be
produced but is not, would be detrimental to the
person withholding it if it was produced
• The court would draw an adverse inference
upon a party who intentionally chooses to
withhold a certain piece of evidence for the
reason that would be detrimental to his case
• Munusamy v PP: An adverse inference can
only be drawn under the provision if there is
a withholding of evidence and not merely a
failure to obtain evidence
• PP v Dato Seri Anwar Ibrahim: No adverse
inference can be imposed on the prosecution
for its failure to call a particular witness or to
produce a particular document, where there
is already sufficient evidence to prove its case
▪ Section 114A: Presumption of fact in publication
• The provision provides for the presumption
of evidence that would facilitate the proving
of a cyber-crime or any other crime to which
the evidence relates
Rebuttable presumption of law (Section 4(2))

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• Section 4(2) EA: Whenever it is directed by this Act that the

court shall presume a fact, it shall regard the fact as proved
unless and until it is disproved
o The court shall presume that a fact is proved, unless and
until it is disproved
o Such presumptions do not provide the court with a
discretion, instead the court is bound to assume that the
fact is proved
▪ Section 107 EA: When the question is whether a
man is alive or dead and it is shown that he was alive
within 30 years, the burden of proving that he is
dead is on the person who affirms it. Burden of
proving that person is alive who has not been heard
of for 7 years
▪ Section 108 EA: When the question is whether a
man is alive or dead, and it is proved that he has not
been heard of for 7 years by those who would
naturally have heard of him if he had been alive, the
burden of proving that he is alive is shifted to the
person who affirms it
▪ Section 112 EA: The fact that any person who was
born during the continuance of a valid marriage
between his mother and any man or within 128
days after its dissolution the mother remaining
unmarried shall be conclusive proof that he is the
legitimate son of that man unless it can be shown
that the parties to the marriage had no access to
each other at any time when he could have been
begotten
o Thus, any party alleging otherwise has the burden of
proving so
Irrebuttable presumption of law (Section 4(3))
• Section 4(3) EA: When one fact is declared by this Act to be
conclusive proof of another, the court shall on proof of the one
fact regard the other as proved and shall not allow evidence to
be given for the purpose of disproving it

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• The court shall not allow any evidence to be tendered in order

to disprove a presumed fact:
o Section 41(2) EA: A fact is presumed (and cannot be
rebutted) as a result of a judgment, order or decree made
in matters concerning probate, matrimonial,admiralty or
bankruptcy.
o Section 113 EA: It shall be an irrebuttable presumption of
law that a boy under the age of thirteen years is incapable
of committing rape. Court may presume existence of
certain fact

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Evidence Law

Evidence Tutorial: 8/6/2017

June 2015
Jai & Tailong were charged for two counts of robbery that took place
at two different goldsmith shops
Ajib

Ibrahim, the owner of Tukang Emas Berkat

Paka Police Station

Yong Seng Tukang Emas

Lee, owner of YSTE

PW 1: Ibrahim
The fact in issue is whether Ajib, Jai and Tailong have committed
robbery at Tukang Emas Berkat and Yong Seng Tukang Emas

The first witness for the prosecution is Ibrahim.

The issue is whether the identification by Ibrahim is admissible and
relevant under Section 9 of Evidence Act
Section 9 of Evidence Act allows for the admission of circumstantial
evidence which is not part of the same transaction. Any facts which
establish the identity of the accused. One of the ways to do so is
through identification parade. According to Alexander v Queen, an
identification parade is the most reliable mechanism available for the
identification of the accused. Parade is necessary where the accused
person is not known to the witness. According to PP v Sarjeet Singh,
where there was no evidence to show that the witness knew the
accused, failure on the part of the police to organize a parade gave
rise to the assumption that…

The issue is whether all the evidences are admissible and relevant
The facts in issue is whether Jai and Tailong commit two robberies at
two different goldsmith shop
The first PW1: Ibrahim

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Evidence Law

. Ibrahim would identify the robbers. Ibrahim s identification

evidence. There is no issue on identification parade. Discuss whether
it is flawed or not and discuss the quality.
Section 9
R v Turnbull; You need to be critical in answering the question. How
do you determine the quality of Ibrahim to testify that it was Jai, Tai
Long and Ajib. You can say that it is short distance etc.

1. The flow of robber

• State of things Section 7
• Evidence of same transaction Section 6

PW2: Lee
1. Identification evidence of Jai, Tai Long and Ajib.
• However it states that he cannot identify because he was
shocked. So if he cannot identify, he can identify at the dock.
Section 9; Dock evidence
• Ong Poh Cheng
2. Assessment of quality
• R v Turnbull: Explain how it is not good quality
3. State of things Section 7
4. Evidence of the same transaction Section 6
5. Confession and admission
• Section 17(2)
• Section 24; Inducement by Inspector Kamal
• Section 26: Confession made in custody
6. Confession by a co-accused
• Section 30
7. Accomplice
• Section 114(b)

Discuss similar facts evidence

• Which can be relevant and admissible to court
• Choose one test

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Evidence Law

• Explain the circumstance and establish the link between both

situations. Where are the similar facts that occurred.
• Section 14 or Section 15

***PART A: Concept questions (definition etc, no need one page for 5 marks.)
PART B: 3-4 issues PER question (25 marks) each (directed question that has a,b,c,d) another one
is an open question, you choose who to advise. (3 ¼ page)
PART C: 1 question 5-6 issues. (30 marks)
You need to produce who and what. You may have one person but two sub issues.

Consultation with Madam let her know. Better come in a group. Have
a discussion.

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