08/09/2020

EVIDENCE
QUICK REVISION SLIDE
CHAPTER 1 INTRODUCTION

SOURCES OF THE LAW OF EVIDENCE

• The Evidence Act 1950 is a code and the main source of the law of evidence
• Some rules of evidence are contained in other statutes – Criminal Procedure Code,
Dangerous Drugs Act 1952 & Anti-Corruption Act 1997.
• If the Act is clear and unambiguous, then reference should not be made to the
common law – Jayasena v R (1970).
• If the Act is silent or fails to be explicit on any matter, then it may be open to the
court to seek the guidance of the common law provided the common law is not
inconsistent with the Act – PP v Yuvaraj (1969).
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LOGICAL RELEVANCY

• LOGICAL RELEVANCY is determined by logic and common sense, practical

or human experience and knowledge of affairs. The basis of logical relevancy
is that if facts are so closely related to each other according to common sense
or logic, it is possible to infer the existence of the fact in issue from proof of a
certain fact, which is logically related to that fact in issue.

• What is logically relevant may not be legally relevant and thus admissible as
admissibility is founded on law and not just logic. For example a confession to
a constable may be logically relevant but is not considered legally relevant
under section 25.

LEGAL RELEVANCY
• LEGAL RELEVANCY is founded on law. Sections 6 to 55 provide for what facts are
legally relevant. Even if a fact is legally relevant, it has to be proved in the proper
way indicated in Part II of the Act in order to be admitted. Thus secondary evidence
of a document may be relevant but may not be admissible if none of the situations in
section 65(1) have been established.
• Sometimes, a fact, which is legally relevant may be excluded and not be admissible.
Examples include where the evidence is excluded as a result of privilege section 121
– 130, estoppels sections 115 to 117 and the exclusion of oral by documentary
evidence see sections 91 to 99.
• Sometimes a fact which is not logically or legally relevant may be admissible. Examples
include facts affecting the credibility of witnesses – see section 146, 155 and 157 and
preliminary facts necessary to be established for the admissibility of other evidence
– preconditions regarding the unavailability of the maker under section 32.
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FACTS IN ISSUE AND RELEVANT FACTS

• Section 5 provides that evidence may be given of facts in issue and relevant
facts.
FACTS IN ISSUE
• ‘Fact in issue’ is defined in s.3.
• Sir Rupert Cross’s – facts in issue – all those facts that the plaintiff in a civil
action or the prosecutor in a criminal proceeding must prove in order to
succeed together with any facts the defendant or accused must prove in order
to establish a defence.
• Evidence of facts in issue is direct evidence.

RELEVANT FACTS
• Under the Evidence Act, relevant facts may be said to be facts, which are not
themselves in issue but from which the facts in issue or other relevant facts may
be inferred.
• Sections 6 to 55 are the sections, which declare the ways in which one fact
maybe related to another so as to become relevant.
• Evidence of relevant facts is termed circumstantial evidence

• COLLATERAL FACTS are facts affecting the credibility of witnesses (e.g. s

146(c)) and facts affecting the admissibility of certain items of evidence (e.g.
see s.32 & s.65(1).
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SCHEME OF THE EVIDENCE ACT

• the Act is being divided into 3 parts.
• Part I Relevancy- contains two Chapters i.e. I and II
Chapter I that is titled ‘Preliminary’ consists of sections 1 to 4 and deals with certain preliminary
matters. Chapter II is titled ‘Relevancy of Facts’ and consists of sections 5 to 55. Chapter Two provides for what
facts may be proved before a court.
• Part II - contains five chapters - i.e. III, IV, V, VA and VI.
Part II is titled ‘Proof’ and consists of sections 56 to 100. Part II Chapter III provides that some facts need not
be proved, for example, where the court takes judicial notice of the fact or where the facts are formally
admitted by the parties. Generally however facts have to be proved and Part II determines what sort of
evidence may be given of a fact that is to be proved, whether it is to be oral or documentary.
• Primary and secondary evidence - ss. 61 to 66
• Proof of signature, handwriting and execution and attestation of documents - ss. 67 to 73
• public or private documents - ss. 74 to 78
• Presumptions as to documents - ss. 79 to 90
• Documents Produced by Computer - ss. 90A, 90B and 90C.
• Exclusion or oral by documentary evidence - ss. 91–100.

• Part III - contains five Chapters - viz, VII, VIII, IX, X and XI.
Part III is titled the ‘Production and Effect of Evidence’. Having provided for the relevancy of
facts and the modes of proof in Part I and Part II respectively, the Act in Part III determines by
whom and in what manner the evidence must be produced by which any fact is to be proved.
• This Part that governs the mechanics by which facts are established includes the rules on the
burden of proof, presumptions, estoppel, competency, examination and cross-examination,
impeachment of the credit of witnesses, refreshing memory, corroboration and privilege.

Illustrations
Illustrations are valuable aids in understanding the scope and application of the section to which
they are appended – Mohamed Syedol Ariffin
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THE EA 1950

EXTENT
• S.2 provides that the Act shall apply to all judicial proceedings in or before
any court, but not to affidavits, nor to proceedings before an arbitrator.

• S.3 is the interpretation section in the EA.

TYPES OF EVIDENCE

Oral evidence
• s3 – all statements which the court permits or requires to be made before it by witnesses in relation to the matters of fact under
inquiry
• s59 – all facts except the contents of documents may be proved by oral evidence
• s60 – oral evidence must be direct.

Documentary Evidence
• s3- all documents produced for the inspection of the court.
• Includes expressions, marks, images, modern forms of documentary evidence like visual/audio recording.
• Rules contained in s61 - s66

Real Evidence
• Not expressly defined in EA 1950
• Refers to material objects, s60(3) provides that if oral evidence refers to the existence or condition of any material thing
including a document, the court may require the production of that material for its inspection
• Real evidence also where the court draws an inference from its own observation of material objects, witnesses demeanour…
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ADMISSIBILITY AND WEIGHT

• ADMISSIBILITY is a question of law and refers to whether evidence can be tendered to prove a fact in issue, a relevant fact or
a collateral fact.

• As far as evidence relevant to the issue concerned, section 5 provides that evidence may be given of facts in issue and relevant
facts. Also note section 136(1).

Evidence may also be:

• Admissible on credit which has hearing on the weight to be given on the issues. For example see sections 146(c), 155 and 157,
158, 54(2)(c).

• Admissible on preliminary facts, which are necessary to be established for the admissibility of other evidence. For example
see sections 32, 33 and 65(1).

• WEIGHT is generally a question of fact and refers to the value or weight that is given to the evidence by the trier of fact
(judge). Examples of weight – section 157, 90B, rules on the standard of proof, section 158, section 146(c) and section 73A(6)

ILLEGALLY OBTAINED EVIDENCE

• The general rule in civil and criminal cases is that if the evidence is relevant, it is admissible and the court
is not concerned with how the evidence was obtained. In other words, if it is relevant, it is admissible even if
it was obtained by improper and unfair means –Kuruma, Sang, PP v Gan Ah Bee, PP v Dato Seri Anwar bin
Ibrahim (No3)
• However the court has discretion to exclude the evidence where it would operate unfairly against the
accused – Kuruma.
• Section 136(1) makes it clear that if the fact is relevant, the court shall admit evidence of it.

• In problem questions, you want to see if the evidence is relevant and admissible. If it is, the fact that it is
illegally obtained will not affect its admissibility unless it is a situation where the court will exercise its
discretion to exclude.
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FAILURE TO OBJECT TO THE ADMISSIBILITY OF IRRELEVANT EVIDENCE

• Tan Kok Ann –The failure to object to the admissibility of irrelevant evidence will not make it
admissible. It is the duty of the court to disallow such evidence despite the failure of the opposing
counsel to object - Dol bin Dollah.
• It is well established that inadmissible evidence does not become admissible by reason of a failure to
object - Karpal Singh.
• Can the court reverse its ruling on admissibility of a piece of evidence which has been
admitted/marked earlier during the trial?
• Cheong Heng Loong Goldsmiths : “Failure to object at the time the document was marked does not
affect the admissibility of the content.
• Contradictory judgment: YB Dato’ Hj Husam bin Hj Musa : Once it is marked as exhibit, the court in
deliberating the fact can give low probative value, but cannot exclude.

FAILURE TO OBJECT TO EVIDENCE THAT IS

INADMISSIBLE ON THE MODE OF PROOF
Criminal Cases
• Noliana Sulaiman – in criminal cases, the failure to object, even on the mode of proof is not a
waiver as section 58(2)provides that section 58(1) does not apply in criminal proceedings. Now
see s.73AA.
• Lee Kok Nam, on appeal, it was held that even in spite of the failure of the defence to object to
the admissibility of the Photostats, they should not have been admitted. The failure to object did
not amount to a waiver and the objection can even be taken at the appellate stage.

Civil Cases?
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BEST EVIDENCE RULE

• Omychund v Barker – it has been laid down that there is but one general rule of evidence, the best that
the nature of the case will admit.
• Although the decisions in Omychund v Barker and R v Quinn & Bloom suggest the best evidence rule
effects the admissibility of evidence, Chow Siew Woh and Lim Kuan Hock make it clear that the best
evidence rule has no effect on admissibility as admissibility depends on specific rules of law in the
Evidence Act and not in accordance with any general theory that the best evidence must be accepted
whatever its form.
• Dato’ Haji Azman bin Mahalan v PP – the primary duty of the court is to ascertain the truth from the
best evidence available at the trial to determine the guilt or innocence of the accused.
• The application of the best evidence rule with regard to documents is considered in Tey Kim
Suie where the court refused to tender secondary evidence as the Plaintiff had not proven any of the
circumstances in s.65(1).
• Gnanasegaran v PP – s.90A is an updating of the best evidence rule.
• As far as weight is concerned, it is desirable that the best evidence be produced and the absence of
better evidence be accounted for. Otherwise adverse comment may be made – see Chow Siew Woh and
Lim Kuan Hock.

EXPLAIN THE DIFFERENCE BETWEEN FACT IN ISSUE AND RELEVANT FACT.

• Section 5 provides that evidence may only be given of facts in issue and relevant facts.

• In PP v Haji Kassim:“If any fact is sought to be introduced in evidence it must be relevant and admissible under section 5 or one of the sections following …”

Fact in Issue

• “Fact in issue” is defined in section 3 of the Evidence Act 1950.

• Sir Rupert Cross defined facts in issue as all those facts that the plaintiff in a civil action or the prosecutor in a criminal proceeding must prove in order to succeed
together with any further facts the defendant or accused must prove in order to establish a defence.

Relevant fact

• Under the Evidence Act, relevant facts may be said to be facts, which are not themselves in issue but from which the facts in issue or other relevant facts may be
inferred.

• Section 3 states that one fact is ‘relevant’ to another when it is connected to the other in any one of the ways referred to in the relevancy provision of the Act. The
relevancy provisions are in Chapter Two of Part I which is titled “Relevancy of Facts”.

• Section s6 to 55 provide for what facts are relevant under the Evidence Act 1950.

• If the fact that is sought to be proved is connected to the facts in issue in any of the ways referred to in sections 6 to 55, then it is relevant and will be admissible
provided the mode of proof is satisfied.

• Evidence of relevant facts is termed circumstantial evidence.

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Explain the difference between direct evidence and circumstantial evidence

Direct evidence

• Evidence of facts in issue is direct evidence. In the case of direct evidence all that the trier of fact has to do is to decide whether to accept the evidence or not. If
the trier of fact (the judge) accepts the evidence, it goes directly to show that the fact in issue exists. The trier of fact does not have to make any inferences from
the evidence given by the witness. For example, the evidence of an eyewitness who saw the accused stab the deceased, would be direct evidence of the actus
reus in a murder case.

Circumstantial evidence

• Evidence of relevant facts is circumstantial evidence. Here the trier of fact (the judge) must decide not only whether to accept the evidence. If the evidence is
accepted the trier of fact must decide what inferences, if any will they draw from it. For example, the evidence of an eyewitness who saw the accused flee the
scene of the crime with a blood stained knife. The evidence is relevant under section 8(2) as evidence of subsequent conduct as well as under section 9 as it
supports the inference that the accused committed the offence. However here it is not sufficient for the trier of fact to merely accept the witness’s testimony that
the accused fled the scene of the crime with a blood stained knife in his hand. The trier of fact must decide what inference she wishes to draw from the evidence
i.e. as to whether the accused committed the actus reus or not.

• In all cases there is a danger that the witness could be lying or mistaken, although giving evidence under oath or affirmation. However in the case of
circumstantial evidence there is an additional danger i.e. that the trier of fact may make the wrong inferences. However it must be remembered that
circumstantial evidence is of great value in the proving of the guilt of the accused. In Sunny Ang [1966] 2 MLJ 195 for example, the accused was charged with
murder, the accused was convicted purely based on circumstantial evidence adduced by the prosecution, even though the corpse of the victim was never found.

With reference to statutory provisions and decided cases, discuss concepts

of logical relevancy and legal relevancy of evidence
Logical relevancy
• Logical relevancy is determined by logic and common sense, practical or human experience and knowledge of affairs. The basis of logical relevancy is
that if the facts are so closely related to each other according to common sense or logic, it is possible to infer the existence of the fact in issue from
proof of a certain fact which is logically related to that fact in issue. The stronger the relationship between the two facts, the higher the degree of
relevancy. Evidence is relevant if it is logically probative or disprobative of some matter which requires proof – Lord Simon in DPP v Kilbourne.
Legal relevancy
• Legal relevancy is founded on law. Generally all legally relevant facts are logically relevant.
• Section 5 provides that evidence may be given of facts in issue and relevant facts and no others.
• Section 3 provides that one fact is ‘relevant’ to another when it is connected to that other in any of the ways referred to in the relevancy provisions of
the Evidence Act. Sections 6 to 55 are the relevancy provisions in the Act, which state what facts are relevant according to the law.
• [However, just because a fact is logically relevant does not mean that evidence of that fact is admissible as admissibility is founded on law and not
just logic. Whatever is logically probative is not necessarily admissible in evidence, unless it is so under the Evidence Act – PP v Haji
Kassim (1971).
• Evidence can only be given off facts declared to be relevant by the Evidence Act, in essence sections 6 to 55, those facts which are legally relevant.
A fact which is logically relevant may not be admissible as being too remotely connected or because it might be prejudicial to the accused.
• Hence for example while evidence of disposition may be probative in determining the probability of a person committing an act, it is generally
excluded on the ground that it is too prejudicial to the accused. Also a confession to a police officer may be logically relevant, but it is not legally
relevant as it is restricted by S. 25.]
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Discuss admissibility of evidence and its relationship with logical and legal concepts of
relevancy of evidence
Admissibility of evidence

• Admissibility is a question of law and refers to whether evidence may be tendered on a fact in issue or a relevant fact. As far as
evidence relevant to the issue is concerned, section 5 provides that evidence may be given of the existence or non-existence of facts in
issue and also of relevant facts as set out in sections 6 to 55 and of no others. It should be noted that these are the only facts, which have
any direct bearing on the issues in the case. It is the duty of the judge to admit all relevant evidence and to exclude all irrelevant
evidence – Alcontara Ambross Anthony v PP.

Relationship between logical relevancy and the admissibility of evidence

• Just because a fact is logically relevant does not mean that evidence of that fact is admissible as admissibility is founded on law and not
just logic. Whatever is logically probative is not necessarily admissible in evidence, unless it is so under the Evidence Act - PP v Haji
Kassim.

• A fact which is logically relevant may not be admissible as being too remotely connected or because it might be prejudicial to the
accused. Hence for example while evidence of disposition may be probative in determining the probability of a person committing an
act, it is generally excluded on the ground that it is too prejudicial to the accused. Also a confession to a police officer may be logically
relevant, but it is not legally relevant as it is restricted by s.25.

Relationship between legal relevancy and the admissibility of evidence.

• Sections 6 to 55 of the Evidence Act provide for what facts are legally relevant. If the fact is ‘relevant’, it is legally
admissible in court. Relevancy is the test for admissibility. Section 136 provides that the judge may ask in what manner a
fact which it is proposed to prove would be relevant and he shall admit the evidence only if the thinks the alleged fact
would be relevant if proved. Section 136 makes a distinction between relevancy and admissibility – if it can be shown
that the evidence would be relevant if proved, the court shall admit evidence of it. In Datuk Seri Anwar Ibrahim the High
Court held that the court has the power under section 136(1) and is duty bound to inquire into the relevancy of the
proposed witness before he gives evidence.

• However, even if a fact is ‘relevant’, it has to be proved in the proper way as indicated in Part II of the Act in order that it
may be admitted. Thus secondary evidence of a document may be relevant but it may not be admissible if none of the
situations in section 65(1) have been established or the terms of the contract may be relevant, but if they have been
reduced to the form of a document, no other evidence is admissible under section 91 except the document itself.
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However, in certain cases evidence, which is declared relevant under sections 5 to 55 may be excluded and hence not be
admissible owing to some rule of law. Examples include:

• Exclusion of oral by documentary evidence – ss.91-99

• Exclusion of evidentiary facts by estoppel – ss.115-117

• Exclusion of privileged communications - ss121-130 for example marital communications, legal professional privilege,
unpublished official records relating to affairs of state

In certain cases evidence, which is not relevant under sections 5 to 55 and which therefore have no direct or logical
bearing on the issue may nonetheless be admissible. Examples include:

• facts affecting the credibility of witnesses – for example sections 146(c), 155, 157.

• fact affecting the credit of the maker of any statement admitted under section 32 or 33.

• preliminary facts which are necessary to be established for the admissibility of other evidence.

Discuss weight to be attached by the Court to evidence and its

relationship with admissibility of such evidence
Weight

 Weight is generally a question of fact and refers to the value or weight that is given to the evidence of facts in issue and
relevant facts by the trier of fact (judge).

Some examples on weight include:

o The rules on corroboration have to do with weight rather than the admissibility of evidence. Section 157 provides for the
admissibility of former statements in order to corroborate the testimony of a witness.

o The rules on the standard of proof deal with the weight given to the evidence.

The relationship between admissibility and weight

• Admissibility is a question of law and refers to whether evidence may be tendered on a fact in issue or a relevant fact.
Weight is generally a question of fact and refers to the value or weight that is given to the evidence by the trier of fact
(judge). Generally weight refers to the value given to evidence which is tendered or admitted on both the facts in issue
or relevant facts.
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Some examples of the relationship of weight and admissibility

o Section 90B deals with the weight to be given to documents produced by computer that are admitted under section 90A.

o Section 158 provides for the weight to be given to statements admitted under section 32 and 33.

o Section 73A(6) provides for the weight to be given to documents admitted under s73A.

• Appellate courts are more likely to intervene if there is an error on admissibility as it is a question of law. Appellate courts are reluctant to
intervene where the issue is whether the trial judge has correctly weighed the evidence as it is the trial judge who observes first-hand the
demeanour of the witnesses and the manner in which the evidence is given.

• [Evidence which is relevant on collateral matters, are not relevant under sections 5 to 55 and have no direct bearing on the issue. However,
such evidence may be relevant to credit and the weight to be given to evidence on the issue. In other words evidence is sometimes
admissible purely because of the effect it has on the weight of the evidence adduced on facts in issue and relevant facts.

Examples of facts which, may be relevant to credit or credibility are:

o Facts affecting the credibility of witnesses – for example sections 146(c), 155 and 157.

o Facts affecting the credibility of the maker of any statement admitted under section 32 or 33.

o Cross-examination of the defendant on previous convictions or bad character under section 54(2)(b) and 54(2)(c)

What is ‘real evidence’?

• Real evidence is not expressly included in the Act’s definition of “evidence” but it would seem that
the Act allows for real evidence to be taken into account as the definition which uses the word
‘includes’ is enumerative and not exhaustive.
• Real evidence refers to when the court draws an inference from its own observations for example of
material objects, of the appearance of persons, the demeanour of witnesses and even the intonation
of voices.

• The production of real evidence calls upon the court to reach conclusions based on its own
perceptions and not on that of witnesses.

• With regard to material objects, Section 60(3) provides that if oral evidence refers to the existence or
condition of any material thing including a document, the court may, if it thinks fit, require the
production of that material thing for its inspection.
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Discuss the scheme of the Evidence Act 1950

• the Act is divided into 3 parts.
Part I – contains two Chapters i.e. I and II.
1. Chapter I is titled ‘Preliminary’ and consists of Sections 1 to 4 and deals with certain preliminary matters.
2. Chapter II is titled ‘Relevancy of Facts’ and consists of sections 5 to 55. Chapter Two provides for what facts may be
proved before a court. Once it has been determined that a fact may be proved, the means by which such a fact is to
be proved can be found in Part II.

Chapter II
• General provisions governing relevancy ss.6-11, 12 and 14
• Specific provisions governing relevancy
• Similar fact evidence – ss.11, 14-16
• Admissions and confessions – ss.17 to 31
• Statements by persons who cannot be called as winesses, ss.32 to 33 (Hearsay)
• Statements under special circumstances – ss.34 to 39 (Hearsay)
• Judgments in other cases – ss.45 to 51
• Opinion evidence – ss.45 to 51
• Character of parties – ss.52 to 55

Part II – contains five chapters – i.e. III, IV, V, VA and VI. Part II is titled ‘Proof’ and consists of sections 56 to 100. Part II provides that some
facts need not be proved, for example, where the court takes judicial notice of the fact or where the facts are formally admitted by the
parties. Generally however facts have to be proved and Part II determines what sort of evidence may be given of a fact that is to be proved,
whether it is to be oral or documentary.

• Chapter III (ss.56 to 58) deals with certain facts that need not be proved (judicial notice and formal admissions).

• Chapter IV (ss.59 to 60) deals with oral evidence (also note s.60(3)).

• Chapter V (ss.61 to 90) deals with documentary evidence.

• Chapter VI (ss.91 to 100) lays down the rules regarding the exclusion of oral by documentary evidence.

The areas in Part II are:

• Primary and secondary evidence – ss.61 to 66

• Proof of signature, handwriting and execution and attestation of documents – ss.67 to 73.

• Public or private documents – ss.74 to 78.

• Presumptions as to documents – ss.79 to 90.

• Documents produced by computer – ss.90A, 90B and 90C.

• Exclusion or oral by documentary evidence – ss.91–100.

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Part III - contains five Chapters - viz, VII, VIII, IX, X and XI.

Part III is titled the ‘Production and Effect of Evidence’. Having provided for the relevancy of facts and the modes of proof in
Part I and Part II respectively, the Act in Part III determines by whom and in what manner the evidence must be produced
by which any fact is to be proved. This Part that governs the mechanics by which facts are established includes the rules on
the burden of proof, presumptions, estoppel, competency, examination and cross-examination, impeachment of the credit
of witnesses, refreshing memory, corroboration and privilege.

• Chapter VII (ss.101 to 114) deals with the burden of proof and presumptions.

• Chapter VIII (ss.115 to 117) deals with the subject of estoppels.

• Chapter IX (ss.118 to 134) deals with witnesses – competency and compellability (SS.118-120), privilege (ss.121-132)
and corroboration (ss.133-134).

• Chapter X (ss.135 to 166) deals with the examination of witnesses.

• Chapter XI deals with the effect of improper admission or rejection of evidence in s.167.

The police received information that a warehouse owned by Ah Meng (“Warehouse”) stored stolen
machinery and the stolen machinery would soon be transported to another [Link] view of the urgency
of the matter, Inspector Alias decided to raid the Warehouse without a search warrant issued by the
Magistrate’s Court pursuant to the Criminal Procedure Code.

When Inspector Alias and his police officers arrived at the Warehouse, they found the Warehouse [Link]
preserve the element of surprise, Inspector Alias ordered his officers to break down the front door of the
Warehouse and to enter and search the Warehouse [Link] breaking down the front door of the
Warehouse and upon entry, Inspector Alias and his raiding party discovered that the Warehouse did not
store any stolen [Link], Inspector Alias and his officers discovered that the Warehouse was used
to store dangerous drugs (“Dangerous Drugs”).

Ah Meng is now charged with an offence under the Dangerous Drugs Act 1952.

Advise Ah Meng with reference to relevant statutory provisions and decided cases whether Ah Meng may
object to the admissibility of the Dangerous Drugs on the ground of unlawful entry, search and seizure of
the Dangerous Drugs by Inspector Alias and his raiding party.
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• What offence has the accused been charged for?

• See if the evidence in the question is relevant. Note that if it is not relevant, it will not be admissible

• If it is relevant, does the manner in which it has been obtained affect its admissibility?

• The general rule in criminal cases is that if the evidence is relevant, it is admissible and the court is not concerned
with how the evidence was obtained. In other words, if it is relevant, it is admissible even if it was obtained by
improper and unfair means - Kuruma, Sang, PP v Gan AhBee, PP v Dato Seri Anwar Ibrahim (no.3)

• Section 136(1) Evidence Act 1950 makes it clear that if the fact it relevant, the court shall admit evidence of it.

• However the court has a discretion to exclude the evidence where it would operate unfairly against the accused–
Kuruma. Sang – save with regard to admissions and confessions, generally with regard to evidence obtained from the
accused after the commission of the offence, the judge has no discretion to refuse to admit relevant admissible
evidence on the ground that it was obtained by improper or unfair means.

• Discuss Balamurugan Nagaraju [CA] 2010- Upon the party asserting to prove that the evidence was illegally
obtained on a balance of probabilities.

• State your conclusion

Is the Best Evidence Rule still relevant in (a) civil cases and (b)
criminal cases?
• The classic statement of the best evidence rule was made in Omychund v Barker (1745): “The judges and sages of the law have laid it down that there is but one
general rule of evidence, the best that the nature of the case will admit.”

• This statement contains an inclusionary aspect – if the best evidence is not available, the next best evidence is admitted and it becomes a question of weight.

Admissibility of evidence

• Although there are English cases which suggest the best evidence rule affects the admissibility of evidence: Omychund v Barker and R v Quinn & Bloom, the best
evidence rule no longer has any effect on the admissibility of evidence.

• In Garton v Hunter, the court said that the only remaining instance of the best evidence rule is confined to documents, namely that if a party had the original
document, he had to produce it and in Kajala v Noble , the court held that the best evidence rule was only limited to written documents and had no application to
modern forms of recordings.

• The following cases illustrate the position in Malaysia. In Chow Siew Who, the victim had made dying declarations to the Investigating Officers (the best evidence)
and to her uncle and brother (the next best evidence). The court admitted the dying declaration made to the victim’s uncle and brother (the next best evidence)
even though the best evidence (the dying declaration made to the Investigating Officer) was not tendered.

• In PP v Norfaizal bin Mat (No.2), the court refused to admit the evidence under section 32(1)(i) as the prosecution had not satisfied the pre-condition to
admissibility by showing the efforts taken to locate the witness.

• These cases show that the best evidence rule has no effect on the admissibility of evidence in Malaysia. Evidence is held to be admissible by reference to specific
rules of law in the Evidence Act and not in accordance with any general theory that the best evidence must be accepted whatever its form and the position is the
same in civil and criminal cases.
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Weight of evidence
• While the best evidence rule does not affect the admissibility of evidence in criminal and civil cases, the rule is seen to
apply to the weight to be given to evidence.

• It is desirable in all cases that the best evidence available be produced and the absence of more satisfactory evidence be
accounted for.

• Furthermore, the absence of the best evidence may always be the subject of adverse comment by the Judge.

• This can be seen in Lim Kuan Hock where the accused’s failure to tender the best evidence of alibi resulted in his
conviction as the court accepted the prosecution’s evidence.

• Also in Chow Siew Woh where the failure to tender the best evidence (the dying declaration made to the police officer)
resulted in the accused being acquitted.

Documentary Evidence

• The best evidence rule seems to apply to documents. The application of the best evidence rule to documents has been
provided for in Part II of the Evidence Act 1950.

• Section 64 provides that the general rule is that proof of the contents of documents must be primary evidence unless the
party seeking to tender the secondary evidence can satisfy one of the situations in Section 65(1) of the Evidence Act 1950.

• In KPM Khidmat v Tey Kim Suie [1994], the Supreme Court held that it is a well- established rule of evidence that when
documentary evidence is tendered, primary evidence of the said document must be adduced except in the cases under
section 65 the Evidence Act 1950. Therefore the best evidence rule has a role in the mode of proof.

(Note however that the failure to object on the mode of proof will amount to a waiver in civil cases owing to section 58(1) and
in criminal cases as a result of section 73AA.)
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Hearsay and the Best Evidence

• One of the rationales given for the exclusion of hearsay evidence by Lord Normand is that it is not the best evidence. Hearsay
exceptions such as sections 32 and 33 are based on the principle of necessity in the sense that the hearsay evidence may be the
best evidence available where the maker is unavailable and it is better in the interest of justice to admit the hearsay evidence
than to have no evidence at all. Sections 32 and 33 provide for the admissibility of statements of relevant facts where the maker is
unavailable to be tendered for the truth of its contents in certain situations or circumstances.

• Section 73A deal with documentary hearsay in civil cases only. Section 73A admits hearsay statements in documents but requires
the maker of the document to appear as a witness though the proviso to section 73A(1)says the maker does not need to appear as
a witness where he is unavailable. If the maker is unavailable the document becomes the best evidence. The section also requires
that the original document be produced. All these show how the law requires the best evidence available be produced. However
section 73A(2) provides that the court may in its discretion admit the statement even if the maker is available and not called or
admit a certified true copy if undue delay or expense would … - Tan Ah Tong v Parveen Kaur. Hence section 73A provides for
the admissibility of evidence on the mode of proof which may not be the best evidence even where better evidence may be
available if there is undue delay or expense.

• A further erosion of the best evidence rule can be seen in Gnanasegaran v PP (1997) where Justice Shankar said that Section
90A(1) is an updating of the ‘best evidence rule’ with the realities of the electronic age, and it is no longer necessary to call the
actual teller or bank clerk who keyed in the data provided he did so in the ordinary course of the use of the computer.

Conclusion
• In conclusion the best evidence rule has no application to the admissibility of
evidence in civil and criminal cases in Malaysia. Evidence is held to be
admissible by reference to specific rules of law in the Evidence Act and not in
accordance with any general theory that the best evidence must be accepted
whatever its form and the position is the same in civil and criminal cases. The
rule against hearsay and some of the hearsay exceptions in the Evidence Act
clearly take into account the need for the best evidence available to be tendered.
However the best evidence rule appears to have bearing on the mode of proof
and weight to be given to evidence.
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… Evidence concerning the telephone conversation between Kawan and Rumput was
adduced by the prosecution through PC Jadi who was present when Kawan telephoned
Rumput. Rumput’s counsel did not object to the admission of P.C. Jadi’s evidence as to the
telephone conversation.
After hearing Rumput’s defence, the court convicted and sentenced Rumput to death.
Rumput intends to appeal that The telephone conversation was inadmissible although not
objected to by Rumput’s counsel

• This question was set based on the facts in Tan Kok Ann. In Tan Kok Ann the court said that the
failure to object to the admissibility of irrelevant evidence will not make it admissible. It is the
duty of the court to disallow such evidence despite the failure of the opposing counsel to object.

Is the Court in a position to reverse its ruling on admissibility of a piece of evidence which
has been admitted earlier during the trial?
• It is well established that inadmissible evidence does not become admissible by reason of a failure to object to its admissibility and that it is the duty of the court to
exclude all irrelevant or inadmissible evidence even if no objection is taken to its admissibility by the parties.- Karpal Singh

• As such, even where the court has admitted and marked evidence, “The mere fact that the documents were marked as exhibits did not make them admissible until
their contents had been properly proven.” Sampo Materials (M) Sdn Bhd

• In Dato Seri Anwar Ibrahim, the Federal Court held that on the question of admissibility of an exhibit, a trial judge may review any previous ruling he made and if
need be, reverse the earlier ruling. The same can be found in R v Watson where the English Court of Appeal gave the same view.

• This is also seen in Cheong Heng Loong Goldsmiths where the court held that “Failure to object at the time the document was marked does not affect the
admissibility of the content. As the Supreme Court has said it in Malaysia Rubber Development corporation, even though objection should have been taken to the
evidence of D.W.I (in that case), hearsay evidence which ought to have been rejected does not become admissible merely because no objection was taken earlier.
Admissibility is a question of law.”

• In Ng Yin Kwok, the Supreme Court held that it can reverse its ruling on admissibility of a piece of evidence which has been admitted earlier during the trial. The
same was done in PP v Ng Lai Huat.

• However, a contradictory judgment is seen in YB Dato’ Hj Husam bin Hj Musa v Mohd Faisal bin Rohban Ahmad: Once it is marked as exhibit, the court in
deliberating the fact can give low probative value, but cannot exclude. However, the CA drew a distinction between civil and criminal cases. The position explained
is applicable in civil cases. However, in criminal cases, in the event the court changes its mind as to be admissibility of evidence, the court may exclude it on the
grounds of fairness (R v Sang)
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What is the effect of failure to object to the admissibility of evidence during a

trial?
• It is well established that inadmissible evidence does not become admissible by reason of a failure to object -
Karpal Singh

• In Tan Kok Ann the court said that the failure to object to the admissibility of irrelevant evidence will not make it
admissible. It is the duty of the court to disallow such evidence despite the failure of the opposing counsel to
object.

• Popular Industries Limited,held that inadmissible evidence does not become admissible simply by reason of
failure to object to its admission and that it is the duty of the court to exclude all irrelevant or inadmissible
evidence even if no objection is taken to its admissibility by the parties.

• Cheong Heng Loong Goldsmiths :“Failure to object at the time the document was marked does not affect the
admissibility of the content.

• As the Supreme Court has said it in Malaysia Rubber Development corporation, even though objection should
have been taken to the evidence of D.W.I (in that case), hearsay evidence which ought to have been rejected does
not become admissible merely because no objection was taken earlier. Admissibility is a question of law.”

Jenny tendered in evidence a photostat copy of the mileage claim form submitted by Arun. The defence did not object to
the admissibility of the photostat copy of the mileage claim form when it was tendered and it was duly marked as an
[Link] the close of the case for the prosecution, Arun was called to enter his defence. Arun gave evidence and closed
his case without calling any other witnesses. Arun was convicted and sentenced.

Arun appealed to the High Court against the conviction and sentence.

At the hearing of the appeal, Arun’s counsel submitted that the Photostat copy of the mileage claim form ought not to have
been admitted as evidence as it was not the original.

In reply, the prosecution argued that the failure by the defence to object to the admissibility of the photostat copy of the
mileage claim form when it was marked as an exhibit meant that it was now too late to raise any objection and in support
of the submission referred to the case of Suppiah v Ponnampalam which stated it was not open to the appellant to raise the
point for the first time on appeal. The point was thus dealt with by the Privy Council in the case of Gopal Das in a passage
which was quoted by their Lordships in the later case of Popattal : Where the objection to be taken is not that the document is in
itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be
taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case
comes before a Court of Appeal and then complain for the first time of the mode of proof.

With reference to relevant statutory provisions and decided cases, discuss:

• whether the defence could succeed in its submission

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• Issue – whether the defence counsel can succeed in its submission in the criminal trial that the Photostat copy of the mileage claim
form ought not to have been admitted as evidence as it is not the original.

• The original mileage claim form would be primary evidence within section 62. The photostat copy of the mileage form would
be secondary evidence within section 63(b) as can be seen in Lee Kok Nam. Section 64 provides that the prosecution should
tender primary evidence unless they can satisfy one of the situations in section 65(1). Jenny tendered in evidence a photocopy
and the defence did not object to the admissibility of the photostat copy of the form when it was tendered. There is nothing to
suggest that any of the situations in section 65(1) is satisfied.

• Discuss Lee Kok Nam – the failure to object to inadmissible evidence does not make the evidence admissible and the
objection can even be taken on appeal.

• Discuss Noliana bin Sulaiman – In criminal cases, the failure to object even on the mode of proof is not a waiver. This is
because section 58(2) provides that section 58(1) shall not apply to criminal proceedings.

• The earlier decisions in Lee Kok Nam and Noliana bin Suliaman suggest that the defence could succeed in their submission
in the criminal trial. However these cases must now be looked at in light of section 73AA a recent amendment.

• Section 73AA applies to criminal cases and is similarly worded to section 58(1). Section 73AA would suggest that the failure to
object in criminal cases on the mode of proof would now amount to a waiver and the defence counsel will not succeed in their
submission.

whether your answer would be different if such a submission had been made
in similar circumstances in a civil proceeding.

Noliana bin Sulaiman – In civil cases, if the failure to object relates to the mode
of proof, it operates as a waiver as section 58(1) applies to civil cases. Hence the
defence will not succeed. The answer would have been different prior to the
section 73AA amendment but it will now be the same as the failure to object on
the mode of proof will now be a waiver in civil and criminal trials.
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What would be the proper time to raise an objection as to the method of proof
of a piece of evidence?

• In Lee Kok Nam the court held that the objection on mode of proof/method of proof should be made before the
evidence is tendered in court. Failure to do so may act as a waiver to such an objection, and is allowed under section
58 for civil cases and section 73AA for criminal cases.

• Cheong Heng Loong Goldsmiths held that the proper time to object on method of proof/mode of proof is before the
document is marked as an exhibit.

• Gopal Das :“Where the objection to be taken is not that the document is in itself inadmissible but that the mode of
proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the
document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a
Court of Appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might
not have been forthcoming had it been insisted on at the trial.”

• A failure to object ‘before the document is marked as an exhibit and admitted to the record’:“amounts to a waiver
of the objection to the admissibility of the document (see Popatlal).It amounts to an implied admission of the
objection waived.” ( Noliana bte Sulaiman)

Explain the significance of the following types of evidence in terms of its

probative force:
Introduction

The Probative force of evidence very simply means the ability or function of the evidence. The term probative force is also
closely related to the term relevancy. As explained in DPP v Kilbourne, “Evidence is relevant if it is logically probative or
disprobative of some matter which requires proof”.

(a) Direct evidence;

• Evidence of facts in issue is direct evidence. It is the evidence of a witness who has perceived the fact in issue, which has
to be proved, for example an eyewitness to a murder can give direct evidence of the actus reus. The probative force of
direct evidence is that, once direct evidence is presented, the sole question is whether the judge believes the witness. In
the event the judge does believe the witness, the witnesses’ testimony, i.e. the direct evidence will directly go towards
proving the material fact in issue. The court need not make any inferences from the evidence.
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(b) Hearsay evidence;

• Hearsay evidence is an out of court statement is a statement other than one made while giving oral evidence in the
current proceedings. The mere fact that an out of court statement is being tendered in court does not make it hearsay. It
depends on the purpose for which the statement is tendered. It is only when the statement is tendered as evidence of the
truth of its contents that it is hearsay and inadmissible. - Subramaniam

• Hearsay statements are generally inadmissible. They become admissible if it falls within one of the hearsay exceptions
within the Evidence Act 1950. The probative force of hearsay evidence is great, as sometimes, the maker of a material
statement, oral, documentary or even a gesture is for some reason unable to attend court and testify directly to the court.
However, the statement is not lost forever; it may be tendered in court by someone else. Subject always to the condition
that if it is tendered for the truth of the matter stated (hence being hearsay), it falls within one of the hearsay exceptions.

Circumstantial evidence;

• Circumstantial evidence is evidence of a fact (i.e. a relevant fact) from which the Judge will have to decide whether or not to infer the existence or non-existence
of the facts in issue. It does not go directly to the facts in issue, it is indirect evidence of the facts in issue via the relevant fact.

• In a murder case where the deceased was stabbed, the fact that the accused fled the scene of the crime with a blood stained knife in his hand is a “relevant fact”
from which the fact in issue i.e. the actus reus could be inferred (see Section 8(2) – subsequent conduct of the accused) and Section 9 (facts which support the
inference of the fact in issue). The evidence of an eyewitness who has perceived this fact is circumstantial evidence of the actus reus.

Circumstantial evidence can have great probative force. In Sunny Ang, the accused was convicted for murder on a case built entirely upon circumstantial
evidence, in fact, there wasn’t even a corpse found of the deceased (corpus delicit).

Real evidence;

• Real evidence is not expressly included in the Act’s definition of “evidence” but it would seem that the Act allows for real evidence to be taken into account. Real
evidence refers to when the court draws an inference from its own observations for example of material objects, of the appearance of persons, the demeanour of
witnesses and even the intonation of voices. The production of real evidence calls upon the court to reach conclusions based on its own perceptions and not on
that of witnesses. With regard to material objects, Section 60(3) provides that if oral evidence refers to the existence or condition of any material thing including
a document, the court may, if it thinks fit, require the production of that material thing for its inspection.

• The probative force of real evidence becomes apparent when the court must decide whether to believe the testimony of a certain witness. Here his demeanour
and intonation will become relevant. Besides that, when an item is described, the item as described should be brought before the court for the court to observe
and decide whether it is as described. Here, real evidence’s probative force is apparent.
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Primary evidence;

• Section 62 defines primary evidence. It provides that primary evidence means the document itself is produced for the inspection of the court. As a general rule,
when dealing with documentary evidence, the best evidence rule requires primary evidence to be tendered. (There are certain circumstances where secondary
evidence is permitted- s65)

• The probative force of primary evidence is to ensure the authenticity of the document.

Secondary evidence;

• Section 63 defines secondary evidence. It includes (hence it is not exhaustive):

• certified copies.

• copies made from the original by mechanical processes,; In Lee Kok Nam the court held that photocopies would come under S.63(b).

• copies made from or compared with the original; In Tey Kim Swie,the summary of accounts was made by one Ah Lian from the main accounts books was held to
be secondary evidence under s63(c).

• counter parts of documents as against parties who did not execute them;

• oral accounts of the contents of a document given by some person who has himself seen or heard it or perceived it by whatever means. In Wong Choon Mei, the
doctors gave oral evidence of the contents of certain X-rays which were lost. The witness giving oral accounts of the contents of the document should have seen
(meaning read) the original document and not a copy. See illustrations to Section 63.

• The probative force of secondary evidence is seen Section 61 where it is stated that the contents of documents may be proved either by primary or by secondary
evidence.

• However, Section 64 provides that documents must be proved by primary evidence unless the party can satisfy one of the conditions for the admissibility of
secondary evidenced as laid down in Section 65(1). Therefore there may be situations where a relevant document has been destroyed. By the use of secondary
evidence, the content or the use of the document in court is not lost forever as its content may be proved using secondary evidence, gives that section 65 applies.

Conclusive evidence;
• Conclusive evidence is evidence which decisively proves an issue in the case.

• Black’s Law Dictionary defines ‘conclusive evidence’ as evidence so strong to overbear any other evidence to the
contrary.

• Section 31 for example states that admissions are not conclusive proof of the matters admitted, but they may
operate as estoppels under the provisions hereinafter contained. Hence, evidence may be offered to contradict
such admission.

• Conclusive evidence is also connected with irrebuttable presumptions of law. Section 4 of the EA 1950 defines the
three types of presumptions available under the EA 1950. Section 4(3) states that “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.”

• The probative force of conclusive evidence is seen in the working of such presumptions. This means that on proof
of the basic facts, the court must take the presumed fact to exist and the party against whom the presumption
operates, cannot adduce evidence in rebuttal. In other words, the presumption cannot be rebutted. Examples of
these presumptions can be found in Sections 41(2), 112 and 113 of the Evidence Act. Note however that Section 112
appears to provide for one form of rebuttal is that the mother of the child whose legitimacy is in question and her
husband had no access to each other at the time when the child was conceived.
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Similar fact evidence;

• The general rule is that evidence of any act or conduct not covered by the charge for which the accused is being tried is inadmissible. SFE is an
exception to this general rule. SFE is arises where the accused is being charged for an offence and evidence of other misconduct is sought to be
admitted, for example, previous convictions or commission of similar offences or even evidence of factual background and circumstances, etc.

The probative force of SFE is seen in the grounds for its admissibility.

• Section 14 admits SFE for the relevancy of facts showing the existence of a person’s state of mind in reference to the particular matter in question.

• Under section 15, SFE is admissible when there is a question whether an act was accidental or intentional or done with a particular knowledge or
intention, the fact that the act formed part of a series of similar occurrences, in each of which the person doing the act was concerned.

• Under Section 11(b), SFE is admissible on the grounds that facts not otherwise relevant are relevant when they make the existence of facts in issue
or relevant facts ‘highly probable’ or ‘improbable’. Section 11 admits evidence based on probativeness.

• As explained by the SC in Junaidi bin Abdullah and Veeran Kutty, there is a fourth ground of admitting SFE found in common law. It is based on the
test in Boardman, namely that the probative value outweighs the prejudicial effect.

• As held in Raju, SFE can only be used to prove mens rea and not actus reus.

• The probative force of SFE thus is that it admits evidence which is generally inadmissible, and even argued to be irrelevant. However, only to prove
mens rea, and there must be the requisite degree of similarities to warrant its probative force.

Documentary evidence;
• There are essentially two modes of proof in the Evidence Act – oral evidence and documentary evidence. Section 3
defines Documentary evidence as all documents produced for the inspection of the court.

• The probative force of documentary evidence is concerned when the document is tendered for its content, and not its
physical form.

• Where the document is tendered for its physical form, such as the type of paper, or some blood stains on the paper and
not its data, it becomes real evidence. Real evidence is not expressly included in the Act’s definition of “evidence” but
it would seem that the Act allows for real evidence to be taken into account. Section 60(3) provides that if oral evidence
refers to the existence or condition of any material thing including a document, the court may, if it thinks fit, require the
production of that material thing for its inspection.
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Character evidence.

Carter says that Evidence of a party’s character is generally inadmissible on grounds that it is often irrelevant. Its admission would frequently be prejudicial
and to permit its reception would facilitate resort to unfair surprise and give rise ‘to prolonged consideration of side issues’.

• The general rule is that evidence of character is inadmissible. One of the main reasons is that the court should try the case and not the man and that a
man’s guilt should be established by proof of facts and not by proof of his character. In Kiew Foo Mui, the court held that inadmissible evidence of bad
character does not become admissible simply by reason of failure to object.

• However to a certain extent the Evidence Act allows evidence of character to be tendered.

• The probative force of character evidence goes to two major issues.

i. Character relevant to issue

• For example:

o cross-examination under Section 54(2)(a) has bearing on guilt.

o a defendant with a good character may be less likely than one with bad character to have committed the offence charged.

ii. Character relevant to credit

• for example the cross-examination of the defendant under Section 54(2)(b) and (c) are to attack his credit. Here the only relevance is on the reliability of
the witness. For example, someone with bad character may be less worthy of belief than someone with good character.

Sections 52 and 55 are concerned with the evidence of character of parties in civil cases, whereas, Section 53 and 54 are concerned with criminal trials.

• Character of Witnesses

The character of a witness is always material as affecting his credit. Evidence of a witness character is material, so that the court can decide how much
weight it should give to any particular witness’s testimony. See sections 154 and 155.

The Evidence Act 1950 is one of the most important pieces of legislation that will apply to all trials conducted in the civil courts in this
country. The decision of every civil or criminal case tried is derived from the application of the law of evidence. Discuss.

• All laws may be divided into two main categories – substantive law or adjective law. Rules of substantive law are those laws, which determine the rights, obligations,
duties and liabilities of persons to each other and to the state. Examples would include the law of contract, the law of tort and criminal law.

• Adjective laws are the laws by which the substantive law is set and kept in motion. In essence they concern the rules governing procedure and evidence. Examples
are the law of evidence, criminal procedure and civil procedure.

• Evidence may be said to be the means by which facts are proved and is that which is supposed to make evident to the Court what the facts are in a case. It can take
various forms i.e. witnesses giving oral evidence, documents and material things.

• The law of evidence applies in both civil and criminal cases and regulates the proving of facts in judicial proceedings. The assertion of substantive rights can only be
established by evidence.

• The parties to a dispute, whether in a criminal or civil case come to court to tell the Judge their version of the facts of the case. The rules of evidence regulate this
story telling process. Whether it is the prosecutor or the accused in a criminal case, or the plaintiff or the defendant in a civil case, the law of evidence comes in play in
determining how the parties are to demonstrate to the court, the truth of their assertions and challenge the facts asserted by the opposing party.

• Sir James Stephen stated that the law of evidence decides:

 What facts may or may not be proved

 What type of evidence may be given as to a fact which may be proved

 By whom and in what manner the evidence must be given by which any fact is to be proved
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• It is also to ensure justice by providing for a set of rules so that like cases are treated alike where the rules of evidence are concerned.

• It limits the evidence to material facts and not to waste time discussing issues which are too remote.

• Absence of rules of evidence will lead to prolonged litigation at the expense of suitors and to the detriment of the public.

• It ensures the tendering of the best evidence possible and provides for rules to cope with the fear of manufactured and unreliable evidence.

• And perhaps most importantly, it protects the accused as well as the public and to ensure a fair trial.

• The Evidence Act 1950 is the main source of the law of evidence in Malaysia. The Act is based on the Indian Evidence Act of 1872 drafted by Sir James Stephen.

• Certain rules of evidence, are contained in other statutes, for example the Criminal Procedure Code and the Rules Court.

• If the Act is clear and unambiguous, then reference should not be made to the common law.

• If the Act is silent or fails to be explicit on any matter, then it may be open to the court to seek the guidance of the common law provided that the common law is not
inconsistent with the Act.

• EA 1950 stipulates what evidence may be used in court, i.e. relevancy and admissibility.

• It stipulates how facts are to be proven, i.e. mode of proof. It also states who bears the burden of proving the case and what matters need not be proven.

• EA 1950 also explains the order of witnesses and the types of questions which may and may not be asked of witnesses.

• Everything surrounding proving a case is governed by the EA 1950.