 It depends.
According to Section 2 of the Evidence of Child Witness Act 2007, “child witness” means a person under the age of sixteen years who is called or proposed to be called to give evidence in any proceedings but does not include an accused or a child charged with any offence.
A child can be invited to make a sworn or unsworn statement depend on the findings of the court. When a child of tender years is proposed as a witness, preliminary examination by the court is necessary. The court must first determine whether the witness oath can be administered to a child. In preliminary examination, the court must satisfy that the witness knows the means of taking oath and giving evidence in court, the witness understands the consequences of lying, the witness knows the duty to tell the truth under oath, and the witness possesses sufficient intelligence whereby he understands the questions put to him and able to give rational answers to the questions asked. The burden of proof is on the party who produce a child witness. The witness should be cautioned to speak the truth, the whole truth and nothing but the truth. The findings of the court in preliminary examination should be recorded. Failure to conduct a preliminary examination is a fatal omission in the case.
Section 133A of the Evidence Act 1950 provides guidelines in dealing with a child witness. First, the child must be rejected as a witness if the court finds that the child does not understand the nature of an oath and at the same time is not possessed of sufficient intelligence and does not understand the duty of speaking the truth. Second, if the court finds upon preliminary examination that the child understand the nature of an oath, the child could be allowed to take the oath and give evidence. Third, if a child does not understand the nature of an oath, the child may be permitted to give unsworn statement if the court is of the opinion that the child is possessed of sufficient intelligence and understand the duty of speaking the truth. An unsworn evidence is receivable in court provided that it was taken and reduced into writing in accordance with Section 269 of the Criminal Procedure Code.
A child may be testify by having a screen between him and the accused; by live link; by video recording; testify through an intermediary; or accompanied by an adult when testify in the court. These privileges given to a child witness to protect their interest and to make the court atmosphere child friendly.
However, a child's statement should be treated with care and cautions. The credibility of a child witness is subject to further arguments. The general perception has been that young children are not particularly reliable.
Scientific research by Researchers Valerie Reyna, Human Development Professor; and Chuck Brainerd, Human Development and Law School Professor, both from Cornell University in the years of 2008 shows that children's memory may be more reliable than adults' in court cases. http://www.sciencedaily.com/releases/2008/03/080313124445.htm
This was affirmed by another scientific research by Witness Psychologist, Gunilla Fredin at Lund University in Sweden in the years of 2011 which shows that children are more reliable eyewitnesses. Young children who witness crimes are good at recounting the events, even though younger children include fewer details than older children and adults, but what they say is more accurate. Older children and adults have had more experiences and can therefore find it difficult to differentiate between reality and fiction. http://www.sciencedaily.com/releases/2011/09/110909111528.htmPrepared by: TAN SHOO MAY A 130299
 Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face" or "at first appearance", from the feminine form of primus ("first") and facies ("face"). Osborne’s Concise Law Dictionary defines prima facie case as follows:
“ A case in which there is some evidence in support of the charge or allegation made in it, and which will stand unless it is displaced. In a case which is being heard in court, the party starting, that it upon whom the burden of proof rests, must make out a prima facie case, or else the other party will be able to submit that there is no case to answer, and the case will have to be dismissed.”
Based on the definition, prosecution (represent the state) holds the legal burden of proving the facts in issue beyond reasonable doubt as opposed to the accused to raise the doubt. In order to prove the requisite burden of proof in a case, a prosecutor will seek out prima facie evidence that supports conviction and upholds that each required element of a crime did occur. The elements requiring prima facie evidence to support a given criminal case will widely vary based on the nature and type of criminal charge.
Privy Council in Haw Tua Tau (1981) 2 MLJ 49 set out the criteria which need to be satisfied for the finding of a ‘prima facie case’, as observed by Lord Diplock:
“…The prosecution makes out case against the accused by adducing evidence of primary facts. It is to such evidence that the word ‘if unrebutted’ refer. What they mean is that for the purpose of reaching the decision called for by section 188(1) the court must act on the presumptions (a) that all such evidence of primary fact is true, unless it is inherently incredible that no reasonable person would accept it as being true; and (b) that there will be nothing to displace those inferences as to further facts or to the state mind of the accused which would be reasonably be drawn from the primary facts in the absence of any further explanation… At the conclusion of the prosecution’s case what had to be decided remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential element lacking, then, and then only, is he justified in finding ‘that no case against the accused had been made out which if unrebutted would warrant his conviction’, within the meaning of section 188(1)…”
In Malaysia, the relevant statutory provision which sets out in what circumstances defence is to be called after the close of prosecution case, as follows:
i. Evidence Act 1950, Chapter VII sets out the rule in respect of Burden of Proof. Section 103
particularly states;
“ The burden of proof lies on that person who wishes the court to believe in its existence, unless
it is provided by any law that the proof of the fact shall lie on any particular person.”
ii. For Summary Trial before Magistrate, section 173 (f) (h) and (j) of Criminal Procedure Code (CPC);
and
iii. For Trial before a Judge, section 180 CPC.
In practice, any criminal proceeding against a defendant will require sufficient proof to proceed any further past the original arrest on grounds of probable cause. Without sufficient evidence, the prosecutor cannot bring any viable charges against a defendant. Typically, with this information in mind, the courts will dismiss any charges sought by prosecutors without sufficient prima facie evidence. This is under the assumption that without any prima facie evidence to support a case now, the prosecution will not be able to do so during a later trial. Therefore, holding a defendant would also be illegal.
- PETEI ANAK KANAI A127897
 The role of DNA, fibers, cartridge cases is increasingly important in the real world of criminal defense. Lawyers must have an understanding of forensics in order to discredit evidence or to use it to their clients’ advantage. Crime scenes are messy. There are plenty of opportunities for mistakes to be made in the collection, handling and transportation of evidence.
The demise of the Forensic Science Service comes as police forces shift towards a more streamlined approach to the use of forensics in criminal cases. Instead of courts being presented with extensive forensic reports that cover all the evidence recovered in police investigations, only short reports with the initial and key findings will be submitted. Prior to the trial, prosecutors will present the defence with evidence incrementally and order additional forensic tests only when the case requires them. For example, the defence may concede a case when prosecutors present a DNA fingerprint that links the defendant to a crime, negating the need for further tests. At each stage, the defence has an opportunity to dispute the evidence before the case goes to court.
Lab analysis: The results are only as good as the equipment and the technicians Laboratories must be certified to undertake particular types of analysis. Sophisticated equipment must be properly calibrated. Records must be accurate. Technicians must be properly trained. Just as with evidence collection, proper procedures for evaluating the evidence must be followed and standards must be met. Even a slight deviation can lead to evidence contamination.
Analysis and testimony: Challenging the prosecution's experts when the prosecution calls in a technician or an expert in a certain field to testify and introduce evidence, explain its importance and how it was analyzed and offer interpretations and conclusions. It is the criminal defense lawyer's job to challenge any studies, facts or figures offered by the expert witness during cross examination: What are the expert's credentials? Is the supporting information sufficient or reliable enough to draw a certain conclusion? What is the scientific basis for the finding? When pressed, these experts may not be able to justify their findings. At other times, the defense may call a witness of its own to offer conflicting testimony.
Prepared By: THAN CHONG SENG (JOHNSON) A122879
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
A presumption is an interference of a fact drawn from other known or proved facts. It is a jurisprudential rule under which courts are authorized to draw inference from a particular fact, unless and until the truth of such inference is disproved by other evidence.
The English law recognises 3 kinds of presumptions that is,
i. Conclusive presumption of law
ii. Presumption of law
iii. Presumption of fact
Presumptions are drawn from the cause of nature or events like night follows day; where a man with bloodstained clothes comes out of a room where another man has been stabbed to death. The inference is that the man coming out from the room is the murderer.
Section 4 sets out what the court may presume. The presumption is used as device to either alter the normal rules on burden of proof or replace the need for evidence to be called on particular issues
The issue of presumption, inference and the federal constitution was considered in the case of PP v. Chung Tshun Tin & Ors [2008] 1 MLJ 559. Hamid Sultan JC (as he was then) held that,
Apart from the presumptions mentioned in s 107 to s 113, of the EA there is a large number of deductions under this section that the court may draw from the common course of natural events, human conduct, and the experience. The presumption here is at the discretion of the court and it is also rebuttable. The illustrations under the section are self explanatory, however they are not exhaustive. It will appear that there are no hard and fast rules with regard to the circumstances in which any fact or facts may be presumed to exist. Thus, the courts have to use their common sense and experience in judging the effect of particular facts and they are not subject to any particular rules to the subject.
For further observation from the case can view it in Presumption: PP v. Chung Tshun Tin & Ors [2008] 1 MLJ 559 in cases section.
By: SITI NURHAKIMAH A130153
 To distinguish between relevancy and admissibility, I would like to explain the meaning of relevancy and admissibility before we proceed to the difference between these two concepts.
According to Janab’s Key to Evidence, relevancy refers to the degree of connection and probative value between a fact that is given in evidence and the issue to be proved. Relevancy of facts had been provided from Section 5 to 55 of Evidence Act 1950. By referring to the illustration (a) provided in Section 5 where A is tried for the murder of B by beating him with a club with the intention of causing his death. There are three facts in issue to be proved - A’s beating B with the club; A’s causing B’s death by the beating; and A’s intention to cause B’s death.
A fact is relevant when it is so related to the fact in issue, that they render the fact in issue probable or improbable. For example, to prove the third facts in issue in the example just now, the facts that A and B was having quarrel before the murder happens is relevant to prove the third facts in issue which is A’s intention to cause B’s death.
Admissibility involves the process whereby the court determines whether the Law of Evidence permits that relevant evidence to be received by the court. The concept of admissibility is often distinguished from relevancy. Relevancy is determined by logic and common sense, practical or human experience, and knowledge of affairs. On the other hand, The admissibility of evidence, depends first on the concept of relevancy of a sufficiently high degree of probative value, and secondly, on the fact that the evidence tendered does not infringe any of the exclusionary rules that may be applicable to it. Relevancy is not primarily dependant on rules of law but admissibility is founded on law. Thus, relevancy usually known as logical relevancy while admissibility is known as legal relevancy. Relevancy is a question of fact which is the duty of lawyers to decide whether to tender such evidence in the court. On the other hand, admissibility is the duty of the court to decide whether an evidence should be received by the court according to Augustine Paul JC in the case of Public Prosecutor v. Dato Seri Anwar bin Ibrahim.
In general, a relevant fact given in evidence under Section 5 to 55 is admissible in the court. However, a relevant fact under Section 5 to 55 may not be admissible if the other sections of the Act do not permit it to be received by the court. These are the main exclusionary rules in the Act which excluded the admissibility of a relevant fact. Hearsay statement, confessions, evidence of the defendant character, exclusion of evidentiary facts by estoppel and exclusion of privileged communication.
For example, hearsay evidence is generally excluded even though relevant. For example, Siti saw that Ahmad had killed Vinnie with a knife. Then Siti told what he saw to Amirul. Here, Amirul cannot become a witness as he did not see the incident himself. The fact that Amirul heard from Siti that Ahmad had murdered Vinnie with a knife is relevant as it is based on logic and common sense. However, such evidence generally is not admissible in the court as it is forbidden by the Law of Evidence. Section 60 stated that oral evidence must be direct. The witness who testifies in court must be the person who perceived the facts with his own sense.
For instance, a confession obtained by any inducement, threats or promise is not admissible under Section 24. A confession to the police officer below the rank in Inspector is not admissible under Section 25. Confession by accused while in custody of police is also not admissible under Section 26 even though it is logically relevant. For example, this is what I noticed in the accused’s statement in police report while I was doing my internship in Attorney General's Chambers. In a case where the thief had already admitted to the police officer that he had stolen the hand phone. However, such confession cannot be tendered as an evidence in the court. The accused then founded not guilty by the court because the Deputy Public Prosecutor failed to prove the case beyond reasonable doubt. Here, the fact that the thief had already confessed to the police officer is relevant, however, it is not admissible in the court as it had been forbidden by Section 26 of Evidence Act 1950. In the case of Eng Sin v. Public Prosecutor, Gill J held that the admission by the accused to a doctor that he had killed a man is not admissible as he is still under the custody of a police officer.
An irrelevant fact is not admissible in the court. However, in certain cases, evidence, which is not relevant under Section 5 to 55 may nonetheless be admissible. Examples include:
- Statement of relevant fact by person who is dead or cannot be found: Section 32.
- Impeaching credit of witness: Section 155.
- Former statements of witness may be proved to corroborate later testimony as to same fact: Section 157.
As conclusion, relevancy is a test for admissibility. The question of admissibility is one of law and is determined by the Court. In Section 136 of Evidence Act 1950, a distinction is made between relevancy and admissibility, if it can be shown that the evidence would be relevant if proved, the court shall admit evidence of it.
Prepared By: THAN CHONG SENG (JOHNSON) A122879
First of all, both of these matters discuss about res gestae. Res gestae literally means thing done , a transaction or essential circumstances surrounding the subject.
First, the common law position of res gestae is narrower and stricter. It is said so because under the common law, the doctrine only allows evidence if not absolutely contemporaneous with the action or event in issue, it must be closely associated with it in time, place and circumstances as to be part of the thing done. This is because the purpose is to avoid the fabrication of evidence and concoction. Under the common law, the doctrine requires two conditions where the facts must must be contemporaneous and spontaneous, the incident must occur at the same time and same place because it must satisfy two conditions.
Whereas in Section 6, it is more liberal as there is no insistence as regards to close relationship regarding with time and place. Hence, in order that different acts may constitute the same transaction, they must be connected with proximity of time, unity or proximity of place, and continuity of action, purpose and design. The question of whether the connection is sufficient or not must always depend on the circumstances of each case and Section 6 should be read together with Section 7, 8, and 9.
Second, under the common law, the doctrine of res gestae was only recognized when the incident happened before the actual crime. This doctrine differs with Malaysian law because s. 6 of the Evidence Act 1950 provides for the act or thing done before the actual incident and after the actual incident. Therefore, it is more flexible, liberal and wider as governed under s. 6 of the Evidence Act 1950, where it includes the incidents which happened at different times and places.
To conclude, it is suggested that if the nature of the fact before the court is so closely connected to the fact in issue, it would be better contemporaneous and spontaneous due to the fact that it is more reliable and justifiable in establishing justice.
Prepared By : MOHAMAD AZRIFF FIRDAUS (A127453)
|
RSS Feed