Chapter 1 - Concept in Evidence Flashcards
CONCEPT IN EVIDENCE
Overview
1) Relevancy
2) Admissibility
3) Facts in issue
4) Role of the judge
5) Legal & evidential burden
6) Weight of evidence
7) Direct & circumstantial evidence
RELEVANCY
Logical relevancy
DPP v Kilbourne:
1) Meaning - PROBATIVE / DISPROBATIVE: relevant if it is logically probative or disprobative;
2) How determined - REASONING: relevancy is determined by process of reasoning.
3) What it is based on - LOGIC & COMMON SENSE: it is based on logic, common sense & general experiences.
4) Conclusion - RELEVANT IF LOGIC: a piece of evidence is said to be relevant if, as a matter of logic, it makes the matter to be proved more or less probable.
RELEVANCY
Legal relevancy
1) Meaning of legal relevancy - S.3 EA:
- one fact is said to be relevant to another when 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.
2) Relevancy of an evidence - S.5 EA:
- 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.
3) Explanation on section 5:
PP v DSAI (No. 3):
- evidence sought to be introduced is relevant under S.5 OR one of the sections that provides for relevancy under the Act.
- only if it is relevant under the Act it is admissible.
Thavanathan a/l Balasubramaniam v PP:
- subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible.
4) Legal relevancy vs logical relevancy - PP v Haji Kassim: - Admissibility is to be determined based on whether it is provided under EA;
- Even if a fact is logically probative, it is not necessarily admissible unless it is provided so under EA.
5) For matters not provided under EA - PP v Yuvaraj:
- Cannot depart from well-established principles of law.
ADMISSIBILITY
Admissibility & legal relevancy
1) The concept of relevancy & admissibility: Thavanathan a/l Balasubramaniam v PP:
- Subjected to exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible.
2) How legal relevancy & admissibility relates - PP v Haji Kassim:
- Admissibility is to be determined based on whether it is provided under EA;
- Even if a fact is logically probative, it is not necessarily admissible unless it is relevant, i.e. it is provided so under EA.
3) Power of judge - S.136(1):
- judge may allow only relevant evidence to be admitted.
- judge may ask party in what way the evidence is relevant.
4) Scope of power of judge - PP v DSAI (No. 3):
- Question of admissibility = question of law = to be determined by the judge;
- If the facts are proved to be relevant (i.e. provided under EA), the judge may decide on its admissibility.
FACTS IN ISSUE
In civil case
How Paik Thoo v Mohideen:
- all facts that parties must prove as stated in their pleadings;
- in order to succeed in their claims respectively.
FACTS IN ISSUE
In criminal case
R v Sims:
- Ingredients of the offence & identity of the accused that must be proved by the prosecution to obtain a conviction;
- Defence that must be proved by the accused to obtain an acquittal.
ROLE OF THE JUDGE
Overview
1) Putting questions & ordering documents
2) Deciding on admissibility
3) Discretion to exclude evidence
ROLE OF THE JUDGE
Putting questions & ordering documents
THE LAW: S.256 CPC
- In criminal proceedings.
1) Exercise of power - Dato’ Seri Anwar v PP: - To be exercised carefully & cautiously;
- So as to not descend into the arena of dispute.
2) Meaning of descending into the arena of dispute - Yuill v. Yuill:
- When the judge himself conduct the examination of witnesses.
3) When can judge ask question - Gan Kok Liong v PP:
- in the interests of truth & justice.
- i.e. interests of truth & justice would suffer if he did not do that.
4) Effect of descending into the arena of dispute - Teng Boon How v PP:
- SC held that the trial judge had erred when he descended into the arena of dispute and allowed his judgment of facts to be clouded by the results of his own cross-examination.
ROLE OF THE JUDGE
Deciding on admissibility
1) The law - S.136(1):
- judge may allow only relevant evidence to be admitted.
- judge may ask party in what way the evidence is relevant.
2) Scope - PP v DSAI (No. 3):
- By virtue of S.136, judge is empowered to determine the admissibility of evidence;
- Power can be exercised even before a person gives evidence & when the parties apply to summon a witness.
3) Subsequent exclusion / reversal after admitting - DSAI v PP & Anor appeal (FC, 2015):
- FC held that a trial judge may review any previous ruling he made on admissibility of an exhibit;
- If need be, he also may reverse the earlier ruling.
- OTF, DNA specimen.
Other examples:
- PP v Ng Lai Huat - hearsay
- R v Watson - confession
ROLE OF THE JUDGE
Discretion to exclude evidence
1) general rule - Kuruma v R:
- Court does not concern with how evidence is obtained;
- As long as it is relevant, it is admissible.
2) exception - unfair evidence - Goi Ching Ang v PP:
- court has discretion to exclude evidence that operates unfairly against the accused.
- OTF, judge held that the accused must be reasonably protected from the danger of extraction of unreliable statements & any evidence obtained by improper means.
3) exception - involuntariness that is extraordinary - Francis Antonysamy v PP:
- illegally obtained evidence may be excluded on the ground that it was obtained through involuntariness that was extraordinary.
4) exception - evidence taken in breach of statutory provision - Aizuddin Syah v PP (CA, 2019):
- procedures under Act must be strictly followed if it is provided for;
- failure to follow would amount to breach of rule of law;
- OTF, procedure under S.31A DDA was not followed;
- it was thus a fit & proper case for the urine sample to be excluded.
LEGAL & EVIDENTIAL BURDEN
Distinction between both
1) International Times & Ors v Leong Hu Yen:
- Burden of proof in S.101 - burden to establish the case, rests on one party throughout the case, i.e. legal burden.
- Burden of proof in S.102 - burden to adduce evidence, i.e. evidential burden.
2) Letchumanan Chettiar Alagappan v Secure Plantations Sdn Bhd:
- S.101: burden of proof as a matter of law & pleadings, legal burden. rests on one party & does not shift.
- S.102: burden of proof as a matter of adducing evidence, evidential burden. shifts from one side to another according to the weight of evidence.
NOTE:
1) What
2) on whom it rests
LEGAL & EVIDENTIAL BURDEN
Discharging evidential burden
Jayasena v R:
- Evidential burden is strictly not a burden of proof;
- It may be discharged by evidence that falls short of proof.
WEIGHT OF EVIDENCE
Overview
1) Meaning & rule in assessing weight
2) How to determine weight
3) Factors to be taken into account
4) Relevant provisions
WEIGHT OF EVIDENCE
Meaning, scope & rule in assessing weight
1) Meaning:
- probative or evidential value of each piece of evidence;
2) Scope:
- the issue of weight of evidence will only arise if the evidence is admissible;
- if the evidence is irrelevant or is excluded by one of the exclusionary rules of evidence (for e.g. the rule against hearsay), then the issue of weight does not arise as the evidence is inadmissible in the first place.
3) General rule in assessing weight:
- No hard and fast rule that regulates the assessment of weight of evidence.
- Each case has to be determined on its own facts and circumstances having regards to the settled rules of evidence and common sense.
WEIGHT OF EVIDENCE
How to determine weight
- The process of determining the weight to be attached to a piece of evidence is a QUALITATIVE ASSESSMENT carried out by the court.
