-

1. @aliah.mran (2020)
Law of Evidence
Key Point Elaboration
Nature of the law of evidence
Stephen: The law of evidence governs the proof
of the facts on which the applicability of the rules
depend.
Sources of the law of evidence
a) Written law: Evidence Act 1950
b) Common law: Applies where the written law is
silent or ambiguous.
• Mahomed Syedol Ariffin v Yeoh Ooi Gark:
The principle derived from English law is
not permissible if thereby the true and
actual meaning of statute under
constructive be varied or denied effect.
• Jayasena v The Queen: Privy Council
refused to follow the common law where
it differed from the code, declaring that
‘the common law is malleable to an extent
that a code is not.’
• Helps to interpret the Act.
Applicability of Evidence Act
a) Applies to judicial proceedings but not to
affidavits or arbitral proceedings.
b) Not binding on tribunals. The Industrial
Relations Act specifically provides that the
Industrial Arbitration Court is not bound by
the Evidence Act.
Rules on Evidence May Be
Found in Other Statutes
e.g
a) Criminal Procedure Code
b) Dangerous Drugs Act
Approach in Evidence Act
i) Whether a fact is admissible or not?
ii) Once a fact is determined to be ‘relevant’,
whether it is to be oral or documentary in
form or whether it belongs to the category of
facts which need not be proved because they
are the subject of ‘judicial notice’?
iii) Having determined the relevancy and means
of proof the mechanics of adducing the
evidence, ie estoppel, the burden of proof,
the calling of witnesses, the order of trial and
the cogency of evidence.

2. @aliah.mran (2020)
Classification of Evidence
1) Facts in issue and relevant facts
a) Facts in issue
i) Facts which the existence, non-
existence, nature or extent of any right,
liability or disability asserted or denied
in any suit or proceeding necessarily
follows.
ii) Reference must be made to the
substantive law applicable to that case
in order to determine the facts
necessary to the assertion or denial of
any right or liability in a case.
b) Relevant facts
i) Facts which form the basis for inferring
facts in issue.
2) Oral, documentary and real evidence
a) Oral evidence
i) Statements which the court permits or
requires to be made before it by
witnesses in relation to matters of fact
under inquiry.
ii) Testimony given in court by witnesses,
including hearsay and opinion which is
not documentary in nature.
b) Documentary evidence
i) All documents produced for the
inspection of the court.
ii) Documents: Any matter expressed or
described upon any substance by
means of letters, figures or marks or by
more than one of those means
intended to be used or which may be
used for the purpose of recording that
matter.
iii) Cover electronic: Record such as tape-
recordings, data recorded in computer
cards, discs and tapes so long as the
information contained in them may be
retrieved, authenticated and made
intelligible in court.
iv) Primary evidence: The document itself
produced for the inspection of the

3. @aliah.mran (2020)
court (preferred over secondary
evidence).
v) Secondary evidence: Certified copies,
mechanically reproduced copies,
conterparts, oral accounts of
documents (only used when primary
evidence is unavailable).
vi) Public documentsL Documents
forming the acts or records of the acts
of the sovereign authority, official
bodies and tribunals and public officer.
c) Real evidence
i) Material objects or things produced for
the courts’ inspection and which are
not documents.
ii) It is necessary to lead evidence to show
the full history of the exhibits from the
time they first came into police custody
until they are produced in court (Lee It
Leo v R).
3) Direct evidence, hearsay and circumstantial
evidence
a) Direct evidence
i) Facts perceived by a witness with his
own senses.
b) Hearsay
i) Facts perceived by another and
reported to him.
c) Circumstantial evidence
i) Facts from which the tribunal may infer
the existence of facts in issue.
Sections
1) Confessions (s 17 – 30)
a) A type of admission
2) Character of accused ( s 55, 56 and 122)
a) Good character of accused is relevant
b) Bad disposition or other misconduct is
also relevant
3) Burden of proof on the accused (s 107)
a) Accused subjected to legal burden to
defend
4) Accused and his spouse as witnesses (s 122
and 134)

4. @aliah.mran (2020)
a) Special rules govern their rights to refuse
to answer questions
b) Special rules on cross-examination of
accused and his spouse as witness
Relevancy and admissibility
1) Relevancy
a) Stephen’s Digest: Any two facts so related
to each other that according to the
common course of events one either taken
by itself or in connection with other facts
proves or renders probable the past,
present or future existence or non-
existence of the other.
b) James v R: Evidence of ‘numerous
instances of parallel extortions’ was given
to prove the state of mind of the accused
for charges of extortion. This was said to
be relevant by s 14.
c) Abubakar bin Ismail v R: Accused was
charge with making a false declaration to
obtain a driving license. Evidence that he
made similar false declarations on eight
previous occasions was held to be relevant
and admissible under s 11(b).
d) Jaafar bin Hussain v PP: The fact that the
accused had a shotgun (trial for
handgrenade) was rightly admitted under
s 6 because the facts were inseparably
connected that the proof of one
necessarily and inescapably involves
proving the other.
e) Saw Thean Teik v R: Evidence of
intoxication is admissible upon a charge of
dangerous driving, notwithstanding its
prejudicial nature, if it is relevant to an
issue before the Court and it may well be
so relevant under s 7, 8(2) or 14.
2) Admissibility
a) Depends first on the concept of relevancy
of a sufficiently high degree, and secondly,
on the fact that the evidence tendered
does not infringe any of the exclusionary
rules that may be applicable to it.

5. @aliah.mran (2020)
b) S 138(1) – Contains basic rule of
admissibility.
i) Court shall admit evidence of facts if it
thinks that it is relevant.