|LAW OF EVIDENCE||
General rule is that a witness is generally permitted to give evidence of fact which he has perceived which is embodied in Section 60 of the Evidence Act 1950.
There are certain fields of knowledge which may be pertinent to a case and yet are beyond the proficiency of laymen. Here, the court requires the assistance of person who are particularly familiar with or skill in respect of matters under consideration.
Section 45(1) Evidence Act 1950 illustrates on opinions of experts. Where it states that when the court has to form an opinion upon a foreign law or of science or arts, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions are relevant facts and such persons are called experts.
When the court has to form an opinion upon certain matters which is likely to be outside the experience and knowledge of the judge. When the fields involve is beyond the range of common experience or common knowledge, or when special study of a subject or special training or special experience is necessary then in such cases, the help of expert is required to enable the court to come to a proper decision. This principle is elucidated in Syed Abu Bakar v PP. The principle laid down in Syed Abu Bakar bin Ahmad v PP is that it was wrong for a judge to form a conclusion on the matter which can properly concluded only with the aid of expert evidence. The court felt that the judge without the assistance of expert evidence should not made a finding or fact that the handwriting is not of a certain witness. It is a settled principle that while a judge sits alone, its entitle to weigh all the evidence to put his magnifying glass to determine the probabilities and form his own opinion or judgment. It would be erroneous for him to form a conclusion on a matter which could be properly concluded with the aid of expert evidence.
In the case of Syed Abu Bakar V PP, sergeant Pau that the sign only on a blank form and he did not write the words tiga ratus sahaja but the defence contended otherwise. Therefore a dispute to the handwriting and so it was necessary for the learned judge to make a finding as to the author to those words. Since the document was not examined by any person who has acquired a special skill or expert in a particular subject that is handwriting the question is therefore is the learned judge right in making the finding of fact that he did in the absence and without the aid of expert evidence. It was not proper for the judge to conclude that it was not Sargeant Pau’s handwriting without going further since Sargeant Pau did say that he only affixed his signature but for the learned judge to proceed further and held as he did he was evidently indulging in a determination of a question which was beyond range of common knowledge. The same would apply to the conclusion made by the judge when he stated that they appeared to come from the same pen.
However in cases involving complicated, technical issues such as in medical negligence cases, a person well versed in the field must be called to give his opinion. The witness who gives such evidence is too referred as an expert. There are various fields in which experts may be required to tender evidence namely, foreign law, handwriting and science of art. In our movie we feel that the most relevant field would be science. The field of science is capable of a wide interpretation. For instance science of biology, physics, chemistry, medicine, aerospace, marine biology, oceanography, forensic, tyre marks and etc. In the case of Chandrasekaran & Ors V PP, the Court was concerned with whether a document had been typed on a certain typewriter. Expert evidence on this issue was allowed on the basis that expert opinion on typewriting is as much a matter of science study as handwriting and fingerprint evidence.
The principle underline in the case of Junaidi is that, the answer in regards to question of expert evidence depends on the fact of each particular case. The speciality of skill required of an expert under Section 45, would depend on the scientific nature and the complexity of the evidence sought to be proved.
Qualification of an expert
Test to be applied to determine whether a person is an expert is as stated in the case of Junaidi Abdullah v PP. The most scientific and complex a subject matter, the more deeper and extensive the court will be required to acquire into the ascertainment of his qualification or experience in the particular field of profession. But in the final analysis, in a non jury trial, it is for the trial judge himself as both judge of fact and law to determine the weight to be attach to such evidence not withstanding the outstanding qualification or experience or lack of it by the expert. Among the relevant question in regards to this is that, does the nature of the evidence require special skill? And if so, has the witness acquired the necessary skill whether by academic qualification or experience so that he has adequate knowledge to express an opinion on the matter under inquiry? All in all, it seems that there is no hard and fast rule as to the competency of an expert witness.
The lack of qualification or experience on the part of the expert, must necessarily affect the weight of evidence rather than the admissibility. But where the evidence is of complex and scientific nature, the absence of good qualification or experience can certainly affect admissibility.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056
Principle of corroboration was applied in the case of Public Prosecutor/People v William Gambini & Stanley Rotheinsten. Prior to the explanation on the principle of corroboration evidence in depth it is advisable for us to explain first what is the court’s general stand in considering the evidence pertaining to the principle of corroboration.
Basically, the court’s general stand in considering the evidence by the witness can be seen accordingly under Section 134 of the Evidence Act 1950, which provides that, “No particular number of witnesses shall in any case be required for the proof of any fact”. So, the courts may act on the testimony of a single witness even though uncorroborated or upon one duly proved documentary evidence. What is pertinent is that the evidence must be credible and derived from reliable sources. However, there are particular situations which the law has recognised as requiring particular care on the part of the judge before it relies on a witness testimony. In such instances, it may be prudent or obligatory for the trier of fact to caution itself as to the evidence before such testimony can be relied upon. This requirement for caution or additional evidence is the subject matter of corroboration.
According to Lord Reading CJ in R v Baskervill  2 KB 658, “corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicated him, that is, which confirm in some material particular not only the evidence that a crime has been committed, but also that the prisoner committed it”. Within a few years of this decision, the Court of Appeal in the Straits Settlements, applied these principles in the case of R v Lim Yong Hong  14 SSLR 152 where a conviction for retaining stolen property was quashed, one of the reasons being that they was no independent evidence to corroborate the testimony of an accomplice. This principle has been developed mainly by the common law to avoid convictions based on insufficient or unreliable evidence.
According to that statement and the cited cases, corroborative evidence can also be illustrated as evidence which shows or tend to show that the story of witness that the accused committed the crime is true, not merely that the crime has been committed but it was committed by the accused. Besides that, corroboration can be defined also as an additional supporting evidence to strengthen the previous fact or evidence adduced before the court.
However, not all previous fact, testimony by witness or evidence adduced before the court requires corroboration. This requirement only applies to child witness, accomplice, sexual offences, and an interested witness and for identification of the accused. Last but not least, the major role is played by the judges or court in looking into all the evidence and its corroboration, later the court will decide the case in favour to the party that give the strength and weight relating to the evidence pertaining to the allegation.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056
Evidence adduced by a person other than the one who had actually perceived the facts of which evidence is given, is hearsay evidence. The Hearsay Rule is among the most debated and highly controversial rule of the law of evidence. The rule is not being directly laid under the Evidence Act 1950 but can be inferentially derived from the purport of certain of its provisions. Hearsay evidence is also described as out of court statement, for it is stated to be made outside the court to a person who in turn adduces it in the court.
Reasons advanced as to rejection of hearsay evidence are due to perceived dangers which results from nexus between witnesses’ testimony and the evidence the court is invited to accept. Such dangers arise from the probabilities of impaired perceptions, bad memory, ambiguity, and insincerity on the part of substitute witness. Reasons for inadmissibility of hearsay evidence coupled with diminished effectiveness of the conventional safeguards are:
1. The taking of oath by the witness before deposition.
2. The opportunity of cross-examination to probe the evidence.
3. The opportunity for the court to observe the demeanour of the witness while deposing in the court.
In addition hearsay evidence is not considered as the best evidence since it is feared that,
a) There are opportunities opened up for fraud through hearsay evidence.
b) That it results in the wastage of the courts’ time in listening to what may be gossip or rumours and
c) That there are chances of depreciation of truth in the process of repetition.
Many exceptions have also been made to the hearsay rule to mitigate its harshness and some of the exceptions are recognized by statute. In the Evidence Act 1950, the exceptions are contained under various provisions. Section 13 admits proof of a right or a custom in an indirect form on grounds of relevancy. Under Section 18-21, indirect admission by agents or by interested persons or by persons expressly referred to by the parties, are made relevant. Under Section 32, the statements of relevant facts, although hearsay, are admitted through substitute witnesses, if the original witness is dead or has been incapable of giving evidence, or cannot be found, or his attendance in the court cannot be procured without an amount of unreasonably expense or delay.
Section 33 shows that evidence adduced in earlier proceedings has been made admissible in subsequent proceedings without the need to call the witness in the court. Entries in the books of account in the course of business and the entries in the public records are made relevant under Section 34 and 35 respectively. The statements under maps, charts and plans are made relevant under Section 36. Under Section 37, the official records of public nature are made relevant. The difficulties in invoking these exceptions are resolved by applying the test of reasonability and common knowledge. Courts also found that the statutory exceptions are insufficient in certain situations to administer justice. In mitigating the rigour of the Hearsay Rule, in cases not covered under the statutory exceptions, the courts invoke their creative acumen and evolve what may be termed as judicial innovations in the form of exceptions.
Therefore, it can be concluded that the word hearsay is not a magic wand which can ensure non-admission of only unreliable and irrelevant evidence. Justice may be miscarried if relevant and reliable evidence is left out for being hearsay. Reliance shall have to be placed on the credibility or reliability in evaluating the evidence even when it is indirect.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056
Relevancy is a concept that runs through the Evidence Act 1950. Section 5 declares what is relevant evidence, i.e. only evidence that is declared relevant by the Act and ‘of no others’. The significance of this section is apparent. Whatever is not provided for in the Act is irrelevant and therefore inadmissible. Consequently, only evidence declared relevant by the Act can be considered as judicial evidence.
Section 136: Court to decide as to admissibility of evidence.
Section 165: Judge has power to put questions about any fact relevant or irrelevant, but the judgement must be based upon facts declared by the Evidence Act to be relevant and duly proved.
PP v Dato’ Seri Anwar Ibrahim (No: 3)  2 MLJ 1
Fact in issue must be relevant to fact in issue
PP v. Haji Kassim  2 MLJ 115 (Federal Court)
Whatever is logically probative is not necessarily admissible in evidence unless it is declared so under the Act.
Section 5 is the backbone of the Evidence Act. It gives evidence of facts in issue and facts that are relevant to the facts in issue as herein after declared section 6 – 55 and of no others. It can be read together with section 136 where the judge can ask in what way is the evidence relevant to the facts in issue – as exercised by Augustine Paul J in the Dato’ Seri Anwar Ibrahim’s case. If the judge asked the lawyer about relevancy under section 136, you should direct the judge’s mind to section 5.
Section 5 declares what is relevant evidence, i.e. only evidence that is declared relevant by the Act and “of no others”. The significance of this section is apparent. Whatever is not provided for in the Act is irrelevant and therefore inadmissible. Consequently, only evidence declared by the Evidence Act, 1950 could be considered as judicial evidence in Malaysia. Section 5 must be read with section 136(1) of the Act.
Augustine Paul J in PP v. Dato’ Seri Anwar bin Ibrahim(No3)  2 MLJ 1, 170 (HC) held:
“Questions of admissibility of evidence are questions of law and are determinable by the judge. If it is the duty of the judge to admit all relevant evidence, it is no less his duty to exclude all irrelevant evidence. Section 5 of the Evidence Act, 1950 declares that evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as declared to be relevant under the provisions of the Evidence Act, 1950. The judge is empowered to allow only such evidence to be given as is, in his opinion, relevant and admissible and in order to ascertain the relevancy of the evidence which a party proposes to give, the judge may also ask the party proposing to give evidence, in what manner the alleged facts, if proved, would be relevant, and he may then decide as to its admissibility.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056
Section 114A basically presumes that a person who is depicted in a publication as owner or administrator is presumed to have published the contents. This effectively means that those named in publications are presumed guilty of any offending content that may be posted, including those on the Internet where there is no licensing and it is easy to use some other person’s name, photograph and details as the originator. It makes that person liable for any action taken under our current defamation and sedition laws.
Nobody can be charged under this action provides a new presumption of fact. A person can still be charged under other existing laws covering sedition, defamation and so on. It can be construed that the applications of law of sedition and defamation have been extended to the internet as well. The amendment is basically about what can be adduced as evidence and shifts the burden to the accused in either civil or criminal case. If a person posts something that is defamatory or seditious, that particular person is open to a legal action. The circle of liability is widened with the new amendments. It shows a need for being more responsible and accountability on the internet. Even though, it’s a platform to voice out but must always remember that with great powers comes great responsibility.
Besides that, there is a strange reversal of law and principle of “An accused person is presumed innocent unless proven guilty” when accused is required to proof his innocence, instead of the prosecution having to prove his guilt. It reverses the burden to proof and also goes against a fundamental principle of law that a person is considered innocent until proven guilty as provided for under Article 11(1) of the UDHR. It also violates the human rights principles of freedom of expression as enshrined in Article 19 of both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Section 114A have been heavily criticised by Internet users and civil society groups that resulted in a day long protest campaign called Stop 114A organised by Centre for Independent Journalism on August 14.
PREPARED BY : KIRUBINI A/P G.SUBRAMANIAM A130056