Dealing With Evidence

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  • 1. Dealing with EvidenceBy LEE SWEE SENG Advocate & Solicitor Certified Mediator Notary PublicPatent AgentTrademark Agentwww.leesweeseng.com sweeseng@tmnet.net.my

2. Determine the nature of evidence Assessing the clients evidence Effectively structuring evidence inchief to fit your case theory Handling documentary evidence Presenting the evidence in court Improper admission and rejectionof evidence 3. Main legislationgoverning the law ofevidence in Malaysia Evidence Act 1950 4. Common lawAs an aid to interpretationWhen the Evidence Act is silent PP v Yuvaraj [1969] 2 MLJ 89 Per Lord Diplock, In Malaysia the law of evidence has been embodied in a statutory code, the Evidence Ordinance. In so far, as any part of the law relating to evidence is expressly dealt with by that Ordinance, the courts in Malaysia must give effect to the relevant provisions of the Ordinance whether or not they differ from the common law rule of evidence as applied by the English Court. But no enactment can be fully comprehensive. It takes its place as part of the general corpus of law. It is intended to be construed by lawyers and upon matters about which it is silent or fails to be explicit, it is presumed that it was not the intention of the legislation to depart from the well established principle of law. 5. Determining thenature of evidence 6. S.3 of the Evidence Act 1950 provides the definition of evidence as: (a) all statements which the court permits orrequires to be made before it by witnesses inrelation to matters of fact under inquiry: suchstatements are called oral evidence ; (b) all documents produced for the inspection of thecourt: such documents are called documentaryevidence ; 7. Oral Evidence S. 59 of the EA 1950, provides that,All facts, except the contents ofdocuments, may be proved by oralevidence . oral evidence means all statementwhich the Court permits or requires to bemade before it by witnesses in relation tomatters of facts under inquiry.(S. Augustine Paul. Evidence Practice and Procedure 1994 pg. 389) 8. Oral Evidence s.60of EA 1950 Oral evidence must be direct. (1) Oral evidence shall in all cases whatever be direct, that is to say - (a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; 9. Oral Evidence (c) if it refers to a fact which could beperceived by any other sense or in any othermanner, it must be the evidence of awitness who says he perceived it by thatsense or in that manner; (d) if it refers to an opinion or to the groundson which that opinion is held, it must be theevidence of the person who holds thatopinion on those grounds. 10. Oral Evidence (2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of the treatise if the author is dead or cannot be found or has become incapable of giving evidence , or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable. 11. Oral Evidence (3) 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 or the document for its inspection. 12. Evidential value of oral evidence The weight and value of oral evidencedepends on its credibility as found by theCourt in each case. The court must givereasons for its findings on credibility. Balasingham v PP [1959] MLJ 193 (HC) 13. Documentary evidence s.3 of EA1950 Interpretation document means any matter expressed,described or howsoever represented, upon anysubstance, material, thing or article, including anymatter embodied in a disc, tape, film, sound track orother device whatsoever, by means of- (a) letters, figures, marks, symbols, signals, signs, orother forms of expression, description, orrepresentation whatsoever; (b) any visual recording (whether of still or movingimages); 14. Documentary evidence (c) any sound recording, or any electronic magnetic,mechanical or other recording whatsoever and howsoevermade, or any sounds, electronic impulses, or other datawhatsoever; (d) a recording, or transmission, over a distance of anymatter by any, or any combination, of the meansmentioned in paragraph (a), (b), or (c), or by more than one of the means mentioned inparagraphs (a), (b), (c) and (d), intended to be usedor which may be used for the purpose of expressing,describing, or howsoever representing, that matter; 15. Documentary evidence s. 61 of the EA 1950 provides thatThe content of documents may be proved either by primary or secondary evidence. 16. Document produced bycomputer s. 90A. 90B and 90C of EA 1950 relatesto documents produced by computers. This section is an exception to the hearsayrule and provides that a documentproduced by a computer or a statementcontained in such document shall beadmissible as evidence of any fact statedtherein whether or not the persontendering the same is the maker of suchdocument or statement. 17. Document produced bycomputerA document shall be deemed to havebeen produced by a computer whether itwas produced by it directly or by means ofany appropriate equipment and whether ornot there was any direct or indirect humanintervention. It applies to civil and criminal proceedings. 18. Assessing the clientsevidence 19. Facts in issue any fact from which either by itself or in connection with other facts the existence, non- existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceedings necessarily follows. s. 3 EA 1950 Proving facts in issue by direct evidence Ideally a fact in issue should be proved by direct evidence (that is evidence of a person who himself perceived the fact), if this is available. E.g. eye-witness testimony 20. Relevant Facts More often than not, direct evidence of the facts in issue is not available in the facts in issue. These are facts from which the facts in issue may be inferred. (Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler) 21. Thegeneral categories of relevant facts are covered by section 6 to 11 EA 1950 which are worded widely so that ..the general ground on which facts are relevant might be stated in as many and as popular forms as possible so that if a fact is relevant, its relevancy may be easily ascertained. 22. Evidence given by witness withoutpersonal knowledge/not available Hearsay Rule The assertions of persons made out ofcourt whether orally or in documentaryform or in the form of conduct tenderedto prove the facts which they refer to (ie.facts in issue and relevant facts) areinadmissible unless they fall within thescope of the established exceptions. (Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler) 23. The rational for such principle is that the witness cannot verify the truth of facts of which he has no personal knowledge. As the person does not have personal knowledge of the facts is not in court, the accuracy of his perception and his veracity cannot be assessed and tested in cross-examination.(Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler) 24. Exceptions to the hearsay rule Statement of persons who cannot be called aswitness under s.32 s.33 of the EA 1950 S.32 of the EA provides for various categoriesof circumstances in which oral and writtenstatements may be admitted as long as themaker is unavailable for one of the prescribedreasons. 25. Under the circumstances where:- 1. he is dead; 2. he cannot be found; 3. he has become incapable of giving evidence;or 4. his attendance cannot be procured withoutan amount of delay and expense which underthe circumstances of the case appears to thecourt unreasonable. 26. Weight to be given to statement undersection 32 and 33 of EA 1950. s.158 of EA 1950 provides that Whenever any statement relevant under s.32 or 33 is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested. 27. s. 73A(1)(a) of EA 1950 provides thatin any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied: 28. a)If the maker of the statement either i. Had personal knowledge of the matters dealtwith by the statement; or ii.Where the document in question is or forms partof a record purporting to be a continuousrecord, made the statement in the performanceof a duty to record information supplied to himby a person who had, or might reasonably besupposed to have had, personal knowledge ofthose matters; and 29. b) If the maker of the statement is called as a witness in the proceedings. Provides that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable effort to find him have been made without success 30. Weight s.73A(6) of EA 1950 Court may consider whether the statementwas made contemporaneously with theoccurrence or existence of the facts statedand to the question whether or not themaker of the statement had any incentiveto conceal or misrepresent facts. 31. JohoreState Economic Development Corp v Queen Bee Sdn Bhd [1995] 4 MLJ 371 HC Adocument which

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