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ORAL EVIDENCE

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� The advocate must not only determine whether the facts he seeks to adduce are relevant and therefore admissible; he must also consider how he intends to prove such facts, if proof is necessary.

� In what circumstances proof is not necessary?

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� Proof is not required in three situations:-

�Cases judicial notice; (s.56 & 57 EA)

�cases where the admission of facts by both parties (s.58 EA) or where the accused pleads guilty to a charge; and

�cases involving presumptions such as the common law presumptions that a guilty man is innocent until proven guilty or that a man is sane until proven insane, or to prove fact A, fact B is presumed

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� Ngai Law Shia v Low Chee Neo (1921) 14 SSLR 35 the court took the judicial notice of the polygamous nature of Chinese marriages.

� 'off-road motorcycle sport' in Eldon v PP [2001] 1 SLR 710.

� So, s.59 not exhaustive…

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� The case of Harban Singh v R [1954] MLJ 158 offers a striking example of judicial notice being taken of facts which obviously had to be proved.

� The magistrate, who was trying the accused for driving dangerously, visited the scene of the incident (together with the prosecutor but without the accused or his advocate), and took into account the characteristics of the area upon which he formed certain conclusions.

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� The lay-out of the scene was a central issue in the case because the charge alleged that the accused had not properly negotiated a roundabout.

� This was disputed by the accused who claimed that he passed around the roundabout in a proper manner.

� The High Court ordered a retrial on the basis that the evidence of the characteristics of the area should have been adduced so as to allow the accused the opportunity to put his case.

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� The matter which the Court will take judicial notice must be the subject of common and general knowledge and its existence or operation is accepted by the public without qualification or contention.

� The test is that the facts involved must be so sufficiently notorious that it becomes proper to assume its existence without proof.

� The opponent, however, is not prevented from disputing the matter by adducing evidence if he disputes it, (See Sarkar on Evidence, 13th Ed, paras 606–609)

� Matters which the court may take judicial notice are not exhaustive.◦ the navigation of a port in the context of communication (Lee Lip Ngee v Crown Counsel [1947] MLJ 68 at p 70);

◦ that the streets in London are crowded and dangerous (Dennis v AJ White & Co [1916] 2 KB 1 at p 6);

◦ the world-wide economic depression at one time (Ram Tarak v Selgrant [1944] AC 153);

• fresh elephant droppings and the prevalence of wild boar on the road (Lim Kong v PP [1962] MLJ 195 at p 197);

• the activities and the prevalence of secret societies in Ipoh (Yong Pak Yong v PP [1959] MLJ 176 at p 177);

• that under-capitalized contractors would resort to hire purchase agreements so as to acquire the use of costly vehicles (Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd [1979] 1 MLJ 129 at p 131);

� that Mountbatten Road in Singapore is a major road (PP v Choo Teck Heng [1960] MLJ 218 at p 219);

� that Chinese funeral expenses are normally incurred (Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153 at p 156 (FC);

� that the average earnings of marble grinding contract workers to be RM700 per month (Balakrishnan s/o Kunjamboo Nair v Savastine Anthony s/o Francis [1991] 1 CLJ 503 at p 506)

� LEE CHOW MENG v PP [1976] 1 MLJ 287 -The learned president in passing sentence took judicial notice of the prevalence of the commission of offences involving firearms in Kuala Lumpur

� Held: the court is entitled to take judicial notice of the fact of the prevalence of the commission of offences involving firearms in Kuala Lumpu

� Where a fact has to be proved, the advocate must consider how he is to achieve this task.

� There are a variety of methods by which facts may be proved including oral evidence, documentary evidence and real evidence.

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� In certain instances, a particular process may be invoked for the purpose of proving facts (such as the use of a live video or live television link or explanatory materials including charts, summaries and computer output).

� Even the court has a role in ensuring that facts are proved as it has the power to call for evidence in various instances.

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� Verbal / Oral Evidence

� Documentary Evidence

� Circumstantial Evidence

� Direct Evidence◦ Best Evidence (Topic 6)

◦ Hearsay Evidence (Evidence II)

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� Section 59: Witness must give direct evidence.

� Section 60: Direct evidence is evidence perceived by one or more of 5 senses.

� Malaysia adopts the adversarial system. There is cross-examination to test the credibility of witnesses. It is the engine for the discovery of truth. After cross-examination the other party will conduct a re-examination to repair the damage.

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� It is in the nature of the adversarial process that oral evidence is the basic and most important mode of proof, that is, witnesses testifying as to what they directly perceived on the occasion in question.

� The whole structure of the trial is built around oral evidence which is constituted by the processes of examination-in-chief, cross-examination and re-examination.

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� Section 59- all facts, except the contents of documents, may be proved by oral evidence.

� What is perceived by one or more of the five senses to prove the truth of assertions.

� As opposed to giving hearsay evidence that is repeating a statement in court made outside court. It is not tested by cross-examination for the truthfulness of evidence.

� If the witness is present in court, the court can see him, see his demeanour, how he reacts to questions to appreciate the evidence.

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� Defined in s.3 of EA includes:◦ 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;

� It comprises:◦ Testimony◦ Hearsay◦ Opinion (which is not documentary)

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� SI TOH FOK TIAK TRADING AS CHOP WING LOONG v CHOP SWEE KEE & CO [1954] MLJ 49 - At the rehearing of a case, the President instead of taking the evidence of the witnesses viva voce agreed with the consent of Counsel for the parties, to allow the witnesses to confirm the correctness of the depositions of their evidence at the former trial.

� Viva voce = ‘with living voice’ i.e. orally taken� Held: as the witnesses were available to the Court, the reception of the evidence of their depositions in a former trial ought not to be allowed.

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� S.59 EA - All facts, except the contents of documents, may be proved by oral evidence.

� See s.3 EA� S.119(1) of EA - A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but the writing must be written and the signs made in open court.

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� (a) Oral evidence is sufficient to prove a fact in the absence of documentary evidence

� STU v THE COMPTROLLER OF INCOME TAX [1962] MLJ 220 at 221 - In this case certain explanations given by the appellant to the officers of the Income Tax Department were rejected on the ground that there was no documentary evidence to support them. No doubt documentary evidence can in many cases be very cogent and convincing. The lack of it however, should not invariably be a reason for rejecting an explanation. Not every transaction is accompanied or supported by documentary evidence. Much depends on the facts and circumstances of the case, but if the person who is giving the but if the person who is giving the but if the person who is giving the but if the person who is giving the explanation appears to be worthy of credit explanation appears to be worthy of credit explanation appears to be worthy of credit explanation appears to be worthy of credit does not reveal any inconsistency and there is does not reveal any inconsistency and there is does not reveal any inconsistency and there is does not reveal any inconsistency and there is nothing improbable in the explanation, it can, nothing improbable in the explanation, it can, nothing improbable in the explanation, it can, nothing improbable in the explanation, it can, in my view, be accepted.in my view, be accepted.in my view, be accepted.in my view, be accepted.

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� (b) Manner in assessing credibility of oral evidence

� i) in making a finding on credibility, the demeanor of the witness has to be balanced against the rest of the evidence & the probabilities of the case

� Case: TARA SINGH & ORS v PP [1949] MLJ 88 - In the case above cited the Master of the Rolls observed that Puisne Judges would be the last persons to lay claim to infallibility even in assessing the demeanour of witnesses.

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� TARA SINGH & ORS v PP cont…A similar observation was made by Lord Simon in his opinion in Watt v Thomas (1947) AC 484. Whilst an appellate court will always hesitate to overrule

the decision of a trial judge based upon the demeanor of demeanor of demeanor of demeanor of witnesses whom he has had the opportunity of witnesses whom he has had the opportunity of witnesses whom he has had the opportunity of witnesses whom he has had the opportunity of seeing in the witnessseeing in the witnessseeing in the witnessseeing in the witness----box, we are of opinion box, we are of opinion box, we are of opinion box, we are of opinion that in the circumstances it was unsafe to that in the circumstances it was unsafe to that in the circumstances it was unsafe to that in the circumstances it was unsafe to convict the appellants upon the uncorroborated convict the appellants upon the uncorroborated convict the appellants upon the uncorroborated convict the appellants upon the uncorroborated evidence of this particular witnessevidence of this particular witnessevidence of this particular witnessevidence of this particular witness. The circumstances to which we refer are first the contradiction of Mohan Lal’s evidence by Santok Singh and secondly the inadequate consideration given by the learned judge regarding the lateness of the complainant’s report to the Police in view of the circumstances already mentioned in this judgment.

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� ii) where the evidence of a witness is not inherently improbable, it must be accepted

� PP v Mohamed Ali [1962] MLJ 257 at 258 - When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If he says he saw a cow jumping over the moon his evidence is, of course, not to be accepted, but if he says he saw a cow wandering along one of the main streets of Kuala Lumpur (the sort of thing we all see every day of our lives) there is not the slightest justification for refusing to believe him. Of course if his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of In the absence of In the absence of In the absence of contradiction, however, and in the absence contradiction, however, and in the absence contradiction, however, and in the absence contradiction, however, and in the absence of any element of inherent probability the of any element of inherent probability the of any element of inherent probability the of any element of inherent probability the evidence of any witness, whether a Police evidence of any witness, whether a Police evidence of any witness, whether a Police evidence of any witness, whether a Police witness or not, who gives evidence on witness or not, who gives evidence on witness or not, who gives evidence on witness or not, who gives evidence on affirmation, should normally be accepted.affirmation, should normally be accepted.affirmation, should normally be accepted.affirmation, should normally be accepted.

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� iii) where there are discrepancies and contradictions in the evidence of a witness

� Pie bin Chin v PP [1985] 1 MLJ 234 at 235 -Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth-combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness’s entire evidence incredible. It is only It is only It is only It is only when a witness’s evidence on material when a witness’s evidence on material when a witness’s evidence on material when a witness’s evidence on material and obvious matters in the case is so and obvious matters in the case is so and obvious matters in the case is so and obvious matters in the case is so irreconcilable, ambivalent or irreconcilable, ambivalent or irreconcilable, ambivalent or irreconcilable, ambivalent or negational that his whole evidence is negational that his whole evidence is negational that his whole evidence is negational that his whole evidence is to be disregarded.to be disregarded.to be disregarded.to be disregarded.

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� Pie bin Chin v PP - Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions. Thus the slight dissimilarity between the evidence of the complainant and his wife is explicable.

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� iv) where witness demonstrably tell lies� Khoon Chye Hin v PP [1961] MLJ 105, 107 (CA) -If a witness demonstrably tells lies on one or two points then it is clear that he is not a reliable witness and as a matter of prudence the rest of his evidence must be scrutinised with great care and indeed with suspicion. To say, however, that because a witness has been proved a liar on one or two points then the whole of his evidence “must in law be rejected” is to go too far and is wrong.

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� v) Where a witness makes two statements which differ in material particulars

� Mohamed bin Kasdi v PP [1969] 1 MLJ 135 - The appellant was convicted by the president, sessions court, Batu Pahat, for an offence of cheating under section 420 of the Penal Code and was sentenced to 4 months’ imprisonment.

� The prosecution’s case briefly was that the appellant had obtained a sum of $200 from the complainant, Hamzah bin Haji Mohamed Som, P.W.3, on a false representation that the money was required for an interview to be held for the purpose of selecting candidates to fill the vacancies of religious teachers. The complainant was one of the candidates.

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� No hard and fast rule can be laid down for determining the credibility or otherwise of a witness, but when a witness gives or makes two statements which differ in material particulars there must necessarily be ground for believing that he is not a truthful witness.

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� In the letter he gave a different figure of $300 and made no secret of the fact that he knew the money was being used as gratification for certain government officials connected with the work of interviewing candidates.

� In his evidence, however, he strenuously maintained that he gave $200 to the appellant and he did so because it was represented to him that the money was required to pay for the cost of interview as though it was some form of official fee or charge which every candidate would have to pay.

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� PP v Lee Eng Kooi [1993] 2 MLJ 322 –difference of statement & Police investigation report. Distinction between first information and non-first information police report —Whether prosecution can refuse to supply report on ground that it was not first information report — Criminal Procedure Code (FMS Cap 6) s 113. Credibility —Discrepancies between police reports and testimony — Whether charge could stand.

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� vi) an interested witness should not be disbelieved as a matter of rule

� Balasingam v PP [1959] MLJ 193, 194

� See Koh Poh Ing

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� vii) the challenge to a witness’s evidence must be based on what is on the record & not by way of mere submission

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� viii) credibility of witness does not depend on the fact that he was unshaken in cross-examination

� Muniandy & Ors v PP [1966] 1 MLJ 257, 258 (FC)

� In Anwar’s case?

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� ix) if the evidence that a witness is not challenged by cross examination then there no reason to disbelieve him

� Wong Swee Chin v PP [1981] 1 MLJ 212 FC at 213

� However, inadmissible evidence remain inadmissible even if it is not challenged by way of cross-examination

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� x) in a case where the oral evidence is unreliable, the safest policy would be to rely on the documentary evidence in the case

� Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 (FC)

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� xi) the credit of a witness can be impeached if his evidence given in court is inconsistent with previous statement made by him

� S.145 & 155

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� xii) a witness may be cross-examined to test his accuracy, veracity or credibility

� Be careful, you may be strengthening the opponent’s case!!!

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� xiii) a witness may be treated hostile by the party who calls him

� S.154

� Impeachment proceeding – is it necessary to be charged for perjury?

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� xiv) in certain cases the oral evidence of a witness must be corroborated before it can be accepted

� s.114(b) and 133

� S.133A – child witness

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