W TOPICS CHAPTER

1 Briefing Overview
2 Introduction General
UUUK 4073 3 Introduction Jurisdiction of Evidence Act – Section 2
UNDANG-UNDANG KETERANGAN 1 Interpretation Clauses – Section 3
4 Relevancy of Section 5 – of What Facts Evidence May be Given
Facts Section 6 – Facts Forming Part of Same Transaction
Section 7 – Facts Which are the Occasion, Cause
or Effect of Facts in Issue
MOHAMAD FARHAN BIN KAMARUDIN 5 Relevancy of Section 8 - Motive, Preparation and Previous or
A149226 | 0182788160 | frhnkmrdn@live.com Facts Subsequent Conduct
Section 9 - Facts Necessary to Explain or Introduce
Relevant Facts
PENSYARAH 6 Relevancy of Section 10 - Things Said or Done by Conspirators in
DR. RAMALINGGAM RAJAMANICKAM (PENYELARAS) Facts Reference to Common Design
Section 11 - Facts Not Otherwise Relevant
rama@ukm.edu.my
Becomes Relevant
Section 12 - Facts Enabling the Court to Assess
PROF. MADYA DR. ANISAH CHE NGAH
Damages
anisah@ukm.edu.my Section 13 - Facts Relevant When Right or Custom
in Question
PROF. MADYA DR. RIZAL RAHMAN 7 Relevancy of Section 14 and 15 - Similar Fact Evidence
noryn@ukm.edu.my Facts Section 16 – Existence of Course of Business When
Relevant
PENILAIAN KURSUS & PENGAGIHAN MARKAH 8 Test/Quiz/Viva Section 5 - Section 16
9 Relevancy of Admissions and Confessions - Section 17 - 31
Facts
Pembentangan 20% 10 Relevancy of Admissions and Confessions - Section 17 - 31
Facts
Projek berkumpulan 20% 11 Relevancy of Hearsay rule
Facts
12 Relevancy of Opinion Evidence
Ujian/Viva/Kuiz 20% Facts
13 Relevancy of Character Evidence
Peperiksaan Akhir 40% Facts
14 Revision Topics Weeks 2 - 13
 W2 Introduction | General (b) Law of Evidence

(a) Kinds of Laws - Substantive Law and Adjective Law i. Definition

 The ordinary meaning of evidence ‘any information obtained
Substantive law from witnesses, documents, objects which may prove the
Rules which establish the rights and liabilities of parties with respect existence of certain facts’
to either lives, liberty, reputation or property
 Fact gathering process (adducing evidence in court)
Adjective or procedural law
- Rules which govern the conduct of parties in carrying duties or  S.3 Evidence Act – (a)(b) + s.60(3)
powers accorded by law
- Rules which govern the conduct of parties in the formal dispute-  Consists of an array of rules which govern the whole fact
resolution gathering process (evidence) in court.

Examples of matters covered by adjective or procedural law:  To ensure that the evidence once accepted by the courts
 Forms are reliable/trustworthy/credible.
 Pleadings
 Pre-trial discovery  Examples:
 Jurisdiction of the courts  What facts may be proved (what facts are admissible)? - S.3-
 Investigation 57
 Prosecution  How may they be proved? – are they to be proved by oral,
 Mode of trials documentary or real evidence? - S.58- 102
 Evidence  What are the rules which govern these modes of proving
 Sentencing facts?
 Verdicts
 Manners of proving the facts on which the applicability of the
legal rules depend

 How the parties are to convince the court of the existence of

that state of facts which, according to the provisions of
substantive law, would establish the existence of the right or
liability which they allege to exists

 The law of evidence provides for the relevancy and proof of

facts
  After 7th April – persuasive authority only.
ii. Objects
To ensure that justice is done and seen to be done according to the P.P. v. Yuvaraj (1969) 2 MLJ 89
due process of law / natural justice. In Malaysia, as in India, the law of evidence has been embodied in
a statutory code: The Evidence Ordinance.
iii. Principles In so far as any part of the law relating to evidence is expressly dealt
Expressed principles are as stated in statutes while implied principles with by that Ordinance the courts in Malaysia must give effect to the
are those taken and digested from the Common Law. relevant provisions of the Ordinance whether or not they differ from
the common law rule of evidence as applied by the English courts.
iv. Major Functions But no enactment can be fully comprehensive. It takes its place as
Regulate the proof of facts in judicial proceedings. part of the general corpus of the law. It is intended to be construed
by lawyers, and upon matters about which it is silent or fails to be
iv. Structure and Arrangement of Evidence Act 1950 explicit it is to be presumed that it was not the intention of the
Three major parts: legislature to depart from well-established principles of law.
a. RELEVANCY
b. PROOF (d) Principles of Interpretation
c. PRODUCTION & EFFECT OF EVIDENCE
i. Take note of the role of the Common Law

(c) Role of the Common Law
i. The Act must not be construed against the background of
the common law
Mahomed Syedol Ariffin v. Yeo Ooi Gark [1916] 2 A.C. 575
...the view of their Lordships is that the rule and principle of the
Colony must be accepted as it is found in its own Evidence
Ordinance, and that the acceptance of a a rule or principle
adopted in or derived from English law is not permissible if thereby
the true and actual meaning of the statute under construction be
varied or denied effect.
ii. Where the Act is silent on a certain matter well established
principles of law may be resorted to:
 The common law. (Civil law Act 1957)- 7th April 1956
 Binding precedent
Mahomed Syedol Ariffin v. Yeo Ooi Gark [1916] 2 A.C. 575
...the view of their Lordships is that the rule and principle of the
Colony must be accepted as it is found in its own Evidence
Ordinance, and that the acceptance of a a rule or principle
adopted in or derived from English law is not permissible if thereby
the true and actual meaning of the statute under construction be
varied or denied effect.
iii. Aids to the interpretation of the Act
English decisions
Saminathan and Ors v PP (1955) MLJ 121, 124
This Ordinance is in the main in accordance with English law though
it does in several respects materially diverge from that law. English
decisions serve as valuable guides and indeed are binding
authorities where the English law has been followed in the Evidence
Ordinance, but such decisions upon the meaning of particular words
are of little or no assistance when those words have been specially WordNet
defined in the Ordinance. - All the means by which any alleged matter of fact whose truth is
investigated at judicial trial is established or disproved
Indian decisions - Information presented in testimony or in documents that is used to
Meelamchan and Anor v PP (1962) MLJ 213, 215 persuade the court to decide the case for one side or the other.
A decision of the Supreme Court of India is, of course, not in any way
binding on this court. When, however, it relates to the interpretation Webster
of a statutory provision which is the same in India and in this country That which is legally submitted to competent tribunal, as a means of
such a judgement is entitled to the very highest degree of respect. ascertaining the truth of any alleged matter of fact under
investigation before it; means of making proof; -- the latter, strictly
Privy Council decisions (before 1978, 1985) speaking, not being synonymous with evidence, but rather the
Khalid Panjang & Ors v PP (No 2) (1964) MLJ 108, 111 (FC) effect of it.
All we have to say is that the Privy Council were not discussing the
law of England. They were discussing a section in an Indian statute (f) Types of Evidence
which is word for word the same as the corresponding section of a a) Oral
local statute. In then circumstances a decision of their Lordships is b) Documentary
binding on this Court and a fortiori it is binding on every High Court in c) Real
Malaysia and no Judge is at liberty, whatever his private opinion d) Direct
may be, to disregard it. e) Circumstantial
f) Hearsay
Decisions of other jurisdictions
e.g. Commonwealth countries (a) Oral evidence
Ghouse bin Hj Kader Mustan v R (1946) MLJ 36
those cases (East African decisions) are of course not binding on this Section 3
court but they are entitled to great respect "evidence" includes--
Lim Seng Chuan v PP 91977) 1 MLJ 171
referred to decisions in Papua New Guinea. (a) all statements which the court permits or requires to be made
before it by witnesses in relation to matters of fact under inquiry: such
(e) Meaning of Evidence statements are called oral evidence;

Oxford (b) Documentary evidence

That which tends to prove the existence or nonexistence of some Section 3
fact. "evidence" includes--

(b) all documents produced for the inspection of the court: such
documents are called documentary evidence;
Document
Section 3
"document" means any matter expressed, described, or howsoever
represented, upon any substance, material, thing or article,
including any matter embodied in a disc, tape, film, sound track or
other device whatsoever, by means of--
(a) letters, figures, marks, symbols, signals, signs, or other forms of
expression, description, or representation whatsoever;
(b) any visual recording (whether of still or moving images);
(c) any sound recording, or any electronic, magnetic, mechanical
or other recording whatsoever and howsoever made, or any sounds,
electronic impulses, or other data whatsoever;
(d) a recording, or transmission, over a distance of any matter by
any, or any combination, of the means mentioned in paragraph (a),
(b) or (c),or by more than one of the means mentioned in
paragraphs (a), (b), (c) and (d), intended to be used or which may
be used for the purpose of expressing, describing, or howsoever
representing, that matter;
Document
Section 3
ILLUSTRATIONS
A writing is a document.
Words printed, lithographed or photographed are documents.
A map, plan, graph or sketch is a document.
An inscription on wood, metal, stone or any other substance,
material or thing is a document.
A drawing, painting, picture or caricature is a document.
ILLUSTRATIONS (cont'd)
A photograph or a negative is a document.
A tape recording of a telephonic communication, including a
recording of such communication transmitted over distance, is a
document.
A photographic or other visual recording, including a recording of a
photographic or other visual transmission over a distance, is a
document.
A matter recorded, stored, processed, retrieved or produced by a
computer is a document;
(c) Real evidence
(not stated in section 3, but reference can be made to section 60 (3)
• covers material objects or things produced for the court’s
inspection and which are not documents
• views out of court
• A document may constitute real evidence when it is the
existence or nature of the document itself which is in dispute-
eg. Dispute as to Ownership of a document./ the existence of
a will/ age of manuscript.
• Demeanour of a witness.
(d) Direct evidence
Facts perceived by a a witness with his own senses
Section 60
Witnesses testifying as to what they directly perceived of the subject
matter. –direct evidence - five senses

Eye-witness - Evidence of A actually stabbing the victim (direct
evidence of A committing the offence).- A is the killer.
Probative value : Evidence known to be very strongly associated
with the crime- very high probative value.
(e) Circumstantial evidence
evidence of facts from which the court may infer the existence of
facts in issue
• E.g. Evidence of a person running away from the scene of a
crime with a blood-stained knife in his hand (circumstantial
evidence of his involvement in an offence)
• Inference : he might be the murderer/ he might be an
innocent party.
• Probative value : lesser degree
(f) Hearsay
Facts perceived by another person and reported to the witness
• A witness who gives oral evidence in court which were
perceived by other persons and recounted to him.
• Eg. X saw the accident. X went overseas. Before he left X
recounted the accident to his friend B. B is now the witness in
court. What B says in court is only evidence which were given
by X.
• Court generally rejected this kind of evidence because it is
not reliable.
Distinction between weight and admissibility
Admissibility
admissibility of evidence depends on:
the concept of relevancy of a sufficiently high degree
the fact that the evidence tendered does not infringe any of the
exclusionary rules that may be applicable to it
Weight:
weight of evidence refers to the actual probative value of it as
perceived by the judge
In the old jury-trials, admissibility was to be decided by judge, while
weight were to be tackled by juries
(g) Best Evidence Rule
The rule provides that when the subject of inquiry is the contents of a
document, only the original document itself shall be admissible as
evidence except when the original has been lost or destroyed, or
when the original is in the hands of the party against whom the
evidence is offered.
In simple words, an original document is considered better evidence
than a copy.
Chow Siew Weh v. P.P. [1967] 1 MLJ 228
• This was an appeal against the conviction of the appellant for
murder. The deceased made a dying statement which was
recorded by the police but this was not produced in
evidence.
• Instead the dying statement made to the uncle & brother was
admitted stating CSW as the killer…..
• Appeal allowed
• Best evidence – police statement which is independent- high
probative value.
• Brother & uncle’s testimonies- low probative value- interest in
the matter.
...there is the question whether the best evidence had been
produced by the prosecution - as it should have been done - of the
deceased’s identification of the appellants as her assailant. It is true
the investigating officer, probationary inspector Nika Gurudial Singh
did say, in answer to the jury, that he took statements from the
deceased at about 4.45 pm on 9 May and that he had testified to
arresting the appellant at his house at 5.00 pm the same day, and
the latter was charged the following day with an offence under
section 326 of the Penal Code. Production of the statement by the
deceased, however, was the best evidence of its contents and yet it
was not produced and nothing on the record shows why it had been
held back.
Public Prosecutor v Sarjit Kaur a/p Najar Singh [1998] 1 MLJ 184
.. . It should also be pointed out that circumstantial evidence does
not depend on hypothesis, or theories, or even speculations. They
must give rise to strong inferences so as to become the best
evidence."
(Referred to by the court in Public Prosecutor v Haniff Basree bin
Abdul Rahim [2004] 3 mlj 271)
W3 Introduction | Introduction (Section 2 & 3)
Jurisdiction of Evidence Act – Section 2
(i) Non applicability of rule of evidence to affidavits and arbitration:
Section 2.
Extent
This Act shall apply to all judicial proceedings in or before any court,
but not to affidavits presented to any court or officer nor to
proceedings before an arbitrator.
An affidavit is a formal sworn statement of fact, written down,
signed, and witnessed (as to the veracity of the signature) by a taker
of oaths, such as a Commissioner for Oaths. The name is Medieval
Latin for he has declared upon oath.
Contains only facts which the deponent is able of his own
knowledge to prove.
One use of affidavits is to allow evidence to be gathered from
witnesses or participants that may not be available to testify in
person before the court.
STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
32. Cases in which statement of relevant fact by person who is dead
or cannot be found, etc., is relevant
(1) Statements, written or verbal, of relevant facts made by a person
who is dead or who cannot be found, or who has become
incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which under the
circumstances of the case appears to the court unreasonable, are
themselves relevant facts in the following cases:
a) – j)
In simple words, we use the provisions of the Act to govern
affirmation of affidavits.
Affidavits from persons who are dead or otherwise incapacitated, or
who cannot be located or made to appear may be accepted by
the court, but usually only in the presence of corroborating
evidence.
A formerly written affidavit, which reflected a better grasp of the
facts closer in time to the actual events, may be used to refresh a
witness' recollection. Materials used to refresh recollection are
admissible as evidence.
(ii) Non applicability of rule of evidence to affidavits:
Affidavits cannot be used to run foul of what is provided by sec. 91 /
92
(iii) Specific provisions in other laws governing admissibility of
affidavit evidence in Criminal and Civil Cases.

ACT 593
CRIMINAL PROCEDURE CODE (REVISED - 1999)
PART IX - SUPPLEMENTARY PROVISIONS
CHAPTER XLIV - MISCELLANEOUS
Section 424. Affidavits before whom sworn.
(1) Subject to any rules of Court, any affidavit may be used in a
criminal Court if it is sworn -
(a) in Malaysia before any Magistrate or Registrar;
(b) in the Republic of Singapore before any Judge, District Judge,
Assistant District Judge, Registrar, Deputy Registrar, Police Magistrate
or before any person authorized to take affidavits by any written law
in force in the Republic of Singapore;
(c) in England, Scotland, Ireland or the Channel Islands or in any
Colony, island or place (other than the above) under the dominion
or jurisdiction or protection of Her Britannic Majesty, before any
Judge, Court, Notary Public or other person lawfully authorized to
administer oaths;
(d) in any other place before any officer exercising consular
functions on behalf of Malaysia.
(2) The Court shall take judicial notice of the seal or signature, as the
case may be, of any Judge, Court, Notary Public, Consul, Vice-
Consul or other person appended or subscribed to any affidavit.
(iv) Non applicability of rule of evidence to proceedings before an
arbitrator
• Arbitration: Held in an attempt to avoid a court trial and
conducted by a person or a panel of people who are not
judges.
• The arbitration may be agreed to by the parties, may be
required by a provision in a contract for settling disputes, or
may be provided for under statute.
• S.3 of the EA expressly excludes an arbitrator from the
definition of the word ‘court’.
• Thus an arbitrator is not bound by the strict rules of evidence,
and it is not a valid objection to the proceedings if he has
departed from some technical rule of the EA.
• Governed by Arbitration Act 2005
• Order 69 Rules of Court 2012
Interpretation Clauses – Section 3
(a) Evidence - Oral and Documentary
"evidence" includes--
(a) all statements which the court permits or requires to be made
before it by witnesses in relation to matters of fact under inquiry: such
statements are called oral evidence;
(b) all documents produced for the inspection of the court: such
documents are called documentary evidence;
PP v Sanassi [1970] 2 MLJ 198
It was urged upon me by the learned deputy public prosecutor that
because the words "permits or requires" appears in the definition of
evidence in the Evidence Ordinance, anything which the court
permits the witness to say constitutes evidence. I am of the view that
that construction on those words is not only very wide but
unwarranted.
The words "permits or requires" in my view are used in section 3 in the
context of being authorized by law, or required by law and this to
me seems all the more so because of the provisions contained in
section 165 of the Evidence Ordinance which empower a judge to
ask any question he pleases in any form at any time of any witness or
party about any fact relevant or irrelevant.
Considering the definition of evidence as embodied in section 3 of
the Evidence Ordinance, I am of the view that evidence signifies
only the instruments by means of which relevant facts are brought
before the court by witnesses and documents. Evidence properly
admitted is thus admissible for all purposes. There are, however,
matters which are not strictly speaking evidence but which may be
considered by a court and which may be treated as evidence.
In order to constitute "evidence" as defined in section 3 of the
Evidence Ordinance an oral statement made to the court has to be
by a "witness". A witness can only give evidence from the witness box
and not from the dock or elsewhere.
... In the result I hold that the statement of an accused from the dock
is not evidence.
Kurup v PP [1934] 1 MLJ 17
The definition of "Evidence" and "Court" in Section 3 of the Evidence
Ordinance shows that evidence is the testimony of witnesses in a
Court or before a person legally authorized to take evidence.
(b) Facts – Physical (External) and Psychological (Internal)
"fact" means and includes--
Physical (external):
(a) any thing, state of things or relation of things capable of being
perceived by the senses;
Psychological (internal):
(b) any mental condition of which any person is conscious;
ILLUSTRATIONS
(a) That there are certain objects arranged in a certain order in a
certain place is a fact.
(b) That a man heard or saw something is a fact.
(c) That a man said certain words is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts
in good faith or fraudulently, or uses a particular word in a particular
sense, or is or was at a specified time conscious of a particular
sensation, is a fact.
(e) That a man has a certain reputation is a fact;
(c) Facts in Issue-
"fact in issue" means 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 proceeding necessarily follows;
Concerns the liability or non-liability /right of a party.
In Criminal Case:
• Elements of a crime/The charge
• Defences relied by the accused
In Civil Case:
• The issues made by the Court from a consideration of
pleadings. They are facts which the party making the
allegation must prove in order to succeed.
The F/I are determined by reference to the substantive law.
ILLUSTRATIONS
A is accused of the murder of B.
At his trial the following facts may be in issue:
that A caused B's death; ELEMENT
that A intended to cause B's death; ELEMENT
DEFENCE
that A had received grave and sudden provocation from B;
that A at the time of doing the act which caused B's death was by
reason of unsoundness of mind incapable of knowing its nature;
DEFENCE
PUBLIC PROSECUTOR V MOHD AMIN BIN MOHD RAZALI & ORS [2002] 5
MLJ 406
That all of you from the month of June 2000 until 6 July 2000 at
various places in the state of Perak Darul Ridzuan namely,
(a) Post 2, KM 19, Kuala Rhui, Jalanraya Timur Barat, Grik, Hulu
Perak.
(b) Batalion 304, Infantri (AW), Kem Grik, Grik, Hulu Perak; and
(c) Bukit Jenalik, Kemajuan Tanah Ngor Sauk, Mukim Cagar Galah,
Daerah Kuala Kangsar,
waged war against the Yang di-Pertuan Agong and thereby
committed an offence punishable under s 121 of the Penal Code.
Civil case:
Pleadings are statements in writing drawn up by each party to an
action stating what his contentions will be at the trial and giving all
such details as his opponent need to know in order to prepare his
case in answer.
eg. statement of claim/ statement of defence/ reply/ counterclaim/
defence to counterclaim
The pleadings indicate the facts on which the parties rely which, if
disputed will be in issue.
Eg. D is sued by P for negligence. The following facts may be in issue:
That D owed P a duty of care- element
That D breached this duty-element
That P sustained damage in consequence of the breach.-element.
That P contributed to the breach (contributory negligence)-
defence/counter-claim
(d) Relevant facts
"relevant": one fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in the
provisions of this Act relating to the relevancy of facts.
s 5 - 38
Civil case : F/Issue & Relevant Facts
• P claims against D for breach of contract. P is require to plead
, the existence of a contract which is a material fact.- F/ I in
the statement of claim.
• P is not required to plead that he went over to D’s office and
they had a discussion which led to the formation of the
contract.
• These are incidental facts which prove the existence of a
contract .(relevant facts)
• Eg. S.6 Illustration (c ) (d).
Criminal case : Robbery
The charge : Facts in issue : Whether A robbed B
That u (A), on or about the ….day of …at…..committed robbery,
and thereby committed and offence punishable under Section 390
of the Penal Code.
Intention – committed
Conduct- robbery
Relevant facts : S.7 – illustration
The facts that shortly before the robbery B went to a fair with money
in his possession and that he showed or mentioned the fact that he
had it to third persons are relevant.
 (d) Relevancy and Admissibility (f) Proved, Disproved and Not Proved

Relevancy (Stephen’s digest)
Any two facts to which it applied are so related to each other that,
according to the common course of events one, ether taken by
itself or in conjunction with other facts, proves or renders probable
the past, present or future existence, or non-existence of the other.
- eg. Res gestae.
Evidence is not about truth, it’s about proof
"proved":
a fact is said to be "proved" when, after considering the matters
before it, the court either believes it to exist

Admissibility or considers its existence so probable that a prudent man ought,

Admissibility signifies that the particular thing is relevant and under the circumstances of the particular case, to act upon the
something more- that it has satisfied the auxiliary tests and extrinsic supposition that it exists;
policies.
Eg. Hearsay evidence is relevant because it is logical, however due "disproved":
to it’s prejudicial effect it is excluded – against public
policy/miscarriage of justice. a fact is said to be "disproved" when, after considering the matters
before it, the court either believes that it does not exist
General rule :
Evidence : fact /Issue (material facts) & relevant facts must be or considers its non-existence so probable that a prudent man
relevant and admissible before they are admitted in court. ought, under the circumstances of the particular case, to act upon
the supposition that it does not exist;
Evidence : two requirements
Relevant and admissible.= Judicial evidence "not proved":
Logical evidence is not evidence in law.
Eg. Hearsay evidence a fact is said to be "not proved" when it is neither proved nor
disproved;
JUDICIAL EVIDENCE
Evidence must be relevant : s5-55 Section 73AA. Admissibility of fact in criminal cases, etc.
Admissibility test (some egs.)
Rules against hearsay : S. 60 Notwithstanding anything contained in this Chapter and subject to
Competency test- S.118 the Criminal Procedure Code [Act 593], in any criminal proceedings,
Documentary Evidence : S.61 onwards no fact whether oral or written need be proved which the parties to
Child witness : 133A the proceedings have agreed to admit at the trial or which the
Confession must be voluntary: s.24 parties to the proceedings have agreed to admit before the trial in
writing.
[Ins. Act A1424 of the year 2012]
(g) Some Differences in Evidence - Civil and Criminal Cases
Parties
Civil : The state v people (Pf v Def)
Criminal : State v people (DPP v Ind)
Burden of proof
Civil : on the balance of probabilities
Criminal : Beyond reasonable doubt.
Judgement/sentencing
Civil : Compensation – damages/monetary benefits
Criminal : Penal sentencing- imprisonment/death penalty/caning
Criminal
Fir/ investigation-remand / charge/ amend charge/ trial/ verdict/
sentencing
Trial in open court
Civil
Pleading- statement of claim/defence
Bundle of document/ pf’s bundle/ d’s bundle
Agreed bundle- contract agreements, yearly reports/ accounts,
police reports-accident
Affidavits/written submissions - In chambers/ Registrar.
Open court.
W4 Introduction | Relevancy of Facts (Section 5, 6 & 7)
Section 5 – of What Facts Evidence May be Given
Section 6 – Facts Forming Part of Same Transaction
Section 7 – Facts Which are the Occasion, Cause or Effect of Facts in
Issue
Section 5 - Evidence may be given of facts in issue and relevant
facts
Evidence may be given in any suit or proceeding of the existence or
non-existence of every fact in issue and of such other facts as are
hereinafter declared to be relevant, and of no others.
Explanation--This section shall not enable any person to give
evidence of a fact which he is disentitled to prove by the law
relating to civil procedure.
ILLUSTRATIONS
(a) A is tried for the murder of B by beating him with a club with the
intention of causing his death.
At A's trial the following facts are in issue:
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.
ILLUSTRATIONS
(b) A a party to a suit does not comply with a notice given by B the
other party to produce for B's inspection a document referred to in
A's pleadings. This section does not enable A to put the document in
evidence on his behalf in that suit, otherwise than in accordance
with the conditions prescribed by the law relating to civil procedure.
Other Facts As Are Hereinafter Declared to Be Relevant
s.6 - Facts forming part of same transaction
s.7 - Facts which are the occasion, cause or effect of facts in issue
s.8 - Motive, preparation and previous or subsequent conduct
s.9 - Facts necessary to explain or introduce relevant facts
s.10 - Things said or done by conspirator in reference to common
design
s.11 - When facts not otherwise relevant become relevant
s.12 - In suits for damages facts tending to enable court to determine
amount
s.13 - Facts which are relevant when right or custom is in question
s.14 - Facts showing existence of state of mind or of body or bodily
feeling
s.15 - Facts bearing on question whether act was accidental or
intentional
s.16 - Existence of course of business
s. 17-23, 31 - Admissions
s. 24-30 - Confessions
s. 32, 33, 73A - Statements By Persons Who Cannot Be Called As
Witnesses
s. 34-38 - Statements Made Under Special Circumstances
s. 39 - How Much Of A Statement To Be Proved
s. 40-44 - Judgments Of Courts When Relevant
s. 45-51 - Opinions Of Third Persons When Relevant
s. 52-55 - Character When Relevant
Section 5 To Be Read With Section 136
Section 136
When either party proposes to give evidence of any fact, the court
may ask the party proposing to give the evidence in what manner
the alleged fact, if proved, would be relevant; and the court shall
admit the evidence if it thinks that the fact, if proved, would be
relevant, and not otherwise
(Section 136 gives to the court the power to ask a party tendering
evidence of a particular fact to show how the fact if proved would
be relevant, and the evidence can be admitted only if the court is
satisfied that it is relevant)
PUBLIC PROSECUTOR V DATO' SERI ANWAR BIN IBRAHIM (NO 3) 1999-
2 MLJ 1
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 proceeding of the existence or
non-existence of every fact in issue and of such other facts as
declared to be relevant and of no others. It follows from this that a
party to a suit or proceeding is entitled to give evidence of only facts
which are declared 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 ask the party proposing to give evidence, in
what manner the alleged fact, if proved, would be relevant, and he
may then decide as to its admissibility
It is therefore manifestly patent that the court has been endowed
with the power to exclude evidence which it considers to be
irrelevant. A matter of critical importance is whether this power can
be exercised by the court before a proposed witness begins to give
evidence. In my opinion, the language employed in the subsection
clearly contemplates the exercise of the power at that stage as it
empowers the court to inquire from a party '. . . in what manner the
alleged fact, if proved, would be relevant . . .' when a party '. . .
proposes to give evidence of any fact . . .' and to admit the
evidence only if it finds it to be relevant. The word 'proposes' means
the court can exercise the power given by the subsection when a
party wishes to call a witness, that is to say, before a proposed
witness begins to give evidence.
MUTHUSAMY V PUBLIC PROSECUTOR
[1948] 1 MLJ 57
It is the duty of the advocate to prepare his case with due regard to
the real issues and with special care for the law of evidence. If he
cannot show tersely that a proposed question is relevant he cannot
complain if the Magistrate promptly excludes it under section 5
which provides that evidence may be given of legally relevant facts
"and of no others". These words are mandatory.
RELEVANCY V ADMISSIBILITY
1. All relevant evidence are prima facie admissible, except
for hearsay and opinion
R V TURNER
[1975] 1 ALL ER 70
Relevance, however, does not result in evidence being admissible: it
is a condition precedent to admissibility. Our law excludes evidence
of many matters which in life outside the courts sensible people take
into consideration when making decisions. Two broad heads of
exclusion are hearsay and opinion.
MAKIN V ATTORNEY GENERAL FOR NEW SOUTH WALES [1894] AC 57
It is undoubtedly not competent for the prosecution to adduce
evidence tending to show that the accused had been guilty of
criminal acts other than those covered in the indictment, for the
purpose of leading to the conclusion that the accused is a person
likely from his criminal conduct or character to have committed the
offence for which he is being tried. On the other hand, the mere fact
that the evidence adduced tends to show the commission of other
crimes does not render it inadmissible if it is relevant to an issue
before the jury, and it may be so relevant if it bears upon the
question whether the acts alleged to constitute the crime charged
in the indictment were designed or accident, or to rebut a defence
which would otherwise be open to the accused.
R V KILBOURNE [1973] AC 729
That what was declared to be inadmissible in the first sentence of
this passage is nevertheless relevant (i e logically probative) can be
seen from numerous studies of offences in which recidivists are
matched against first offenders, and by considering that it has never
been doubted that evidence of motive (which can be viewed as
propensity to commit the particular offence charged, in
contradistinction to propensity to commit offences generally of the
type charged) is relevant. All relevant evidence is prima facie
admissible. The reason why the type of evidence referred to by Lord
Herschell LC in the first sentence of the passage is inadmissible is, not
because it is irrelevant, but because its logically probative
significance is considered to be grossly outweighed by its prejudice
to the accused, so that a fair trial is endangered if it is admitted; the
law therefore exceptionally excludes this relevant evidence;
whereas in the circumstances referred to in the second sentence the
logically probative significance of the evidence is markedly greater.
2. Not all admissible evidence is always relevant
R V KILBOURNE
[1973] AC 729
Not all admissible evidence is universally relevant. Admissible
evidence may be relevant to one count of an indictment and not to
another. It may be admissible against one accused (or party) but
not another. It may be admissible to rebut a defence but
inadmissible to reinforce the case for the prosecution.
3. Court must admit relevant evidence
i. Court is not concerned on the manner the evidence is
obtained or the time as long as it is relevant

KURUMA V THE QUEEN

[1955] 2 WLR 223

The test to be applied in considering whether evidence is admissible

is whether it is relevant to the matters in issue. If it is, it is admissible
and the court is not concerned with how the evidence was
obtained.

ii. Court has no discretion to reject relevant evidence on the

basis that is it improperly or unfairly obtained

HOW POH SUN V PUBLIC PROSECUTOR [1991] 3 MLJ 216

iii. Court has discretion to disallow evidence in criminal cases

if strict rules of admissibility would operate unfairly against
the accused