Significance of Relevancy and Admissibility in Evidence Law

Introduction

The law of evidence according to Sir James Fitzjames Stephen is that part of law of procedure which, with a view to ascertain individual rights and liabilities in individual cases, decides:
(a) What facts may, and may not be, proved in such cases;
(b) What sort of evidence must be given as to a fact which maybe proved; and
(c) By whom and in what manner the evidence must be given by which any fact is to be proved.

This concludes the importance of this topic to be in light. It will be further discussed at below of the significance of relevancy and admissibility in Evidence Law.

1. Relevant, Relevant Facts and Relevancy

          Generally the term "Relevant" in the context of facts means that any two facts when applied together are so related to each other. In any ordinary course of events, one fact either taken by itself or in connection with other facts, proves or renders possible the past, present or future existence or non-existence of the other. in other words, relevant is having some reasonable connection with, and in regard to evidence in trial, having some value or tendency to prove a matter of fact significant to the case. Section 3 of the Evidence Act 1950 defines relevant as,

"one fact is said to be relevant to other 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."

          "Relevant facts' are facts so connected with each other as to prove or disprove the facts in issue. They are not themselves issues before court but they are useful inference regarding the facts in issue. Section 3 defines facts as:-

"(a) any thing, state of things or relation of things capable of being perceived by the senses;
(b) any mental condition of which any person is conscious."

According to this definition, fact is not limited to the existing, it also includes any mental condition of which any person is conscious, for instances, behaviour, character and opinion. Facts can be seen in two categories, physical facts and psychological facts. For example, a man that 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.

However, it is important to distinguish "facts in issue" and "relevant facts". The distinction between the two is that facts in issue are facts that are in dispute and which form the subjects of decision in a case. Relevant facts are connected facts, because of their connection with the principal fact, they lead to an inference as to the existence or non-existence of the facts in issue. What are relevant facts are set out from Section 5 to Section 55 of the Act and are exhaustive. They will not be treated as relevant facts unless it falls into one of the sections mentioned above.

          "Relevancy" refers to the degree of connection between a fact that is given in evidence and the issue to be proved. it is the tendency of a fact offered as evidence in a lawsuit to prove or disprove the truth of a point in issue. 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.

2. Admissible and Admissibility        

           Where a fact is relevant it need not necessary means that the fact will be admissible. Whether a relevant is or not admissible is subject to other provisions if the Act. Evidence must be relevant before it is admissible. However, not all relevant evidence will be admissible under the Act. When one evidence is admitted, it need not necessarily means that the court must totally be convinced, it only carries a persuasive value depending on the cogency of the evidence.

Before any fact is made admissible, it must pass the test of relevancy. In the case of Thavanathan a/l Balasubramanian v. PP (1997) 2 MLJ 401, Chong Siew Fai CJ opined that the cardinal rule relating to relevancy is that, subject to the exclusionary rules, all evidence, which is sufficiently relevant to the facts in issue is admissible.

3. Rule of Relevancy and Admissibility

           Part I Chapter II deals with relevancy of facts which consists of Sections 5 to 55 and deals to a large extent with the facts which are declared as relevant and which can be proved. This part of the Act deals with a lot of concepts such as res gestae, hearsay evidence, character evidence, similar fact, confession and etc. In the case of PP v Dato' Seri Anwar bin Ibrahim (No. 3) (1999) 2 MLJ, it is stated that the court has powers to exclude evidence which it considers to be irrelevant pursuant to Section 136 of the Act.

The general rule is that evidence must be confined to matters in issue. However, Section 6 to 11 appear to set out the exception to the general rule.

Written by Koh Suet Yen

Relationship between Intention and Motive

In every criminal case, the question on motive and/or intention of the accused always arose. Sometimes, it remains as an unsolved mystery why the accused committed the crime.

Section 8 of Evidence Act provides that:

8. Motive, preparation and previous or subsequent conduct

(1)   Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

(2)   The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Even though intention and motive are, most of the times, related to each other, but they are two different things. According to R v Steane, “…the motive of a man’s act and his intention in doing the act are in law difference”. Furthermore, in Lower Perak Co-Operative Housing Society Bhd v Ketua Pengarah Hasil Dalam Negeri, Edgar Joseph JR SCJ in his judgment, held that:

“We need hardly add that there is a fundamental difference between intention and motive; intention means seeking to do something and is connected to purpose or object whereas motive is concerned with the reason for doing something.”

However, one still can be charged and convicted to a crime he committed even without motive. As in the case of Public Prosecutor v Oh Laye Koh, held that:

“The element of 'intention' is rarely, if ever, proved by direct evidence; it is inevitably to be inferred from the surrounding circumstances. In this respect, 'intention' is to be distinguished from 'motive', even though the presence of a motive may bolster the inference that an intention to commit the offence was existent. The absence of motive, however, need not necessarily mean that no intention was present.”

Next, in Public Prosecutor v Azilah Bin Hadri & Ors, the accused were charged for the murder of a Mongolian woman, Altantuya Shaariibuu. The court held that the first and second accused were convicted of murder and sentenced to death while the third accused was acquitting and discharging.

“The way the deceased came about her death is very tragic indeed. There can be no doubt that whoever perpetrated this despicable and unthinkable act of blasting on the deceased must have intended to completely vanish the related evidence into the thin air. Whatever his motive was, it is a matter of law that the 'motive', although relevant has never been the essential to constitute murder. The question for which I am to determine at this stage is who could have possibly connected with the death of the deceased.”

. . .

“Even if the third accused can be inferred as having had any 'motive' in the light of all the blackmailing letters of the deceased it cannot be made a basis for conviction of him without any direct or circumstantial evidence of his participation in any manner in the commission of offence.” 

Later, the first and second accused appeal to Court of Appeal against this decision and the appeal was allowed.

As conclusion, the most important elements in criminal case are actus reus and mens rea (intention). Therefore even the element of motive was absent, it is not necessary that the prosecution case will collapse, however if the intention absent definitely might destroyed prosecution case. It also depends on circumstantial evidence and fact of the each case.

Written by NurSyahirah

Oral Evidence and Real Evidence

Oral Evidence is defined under section 3 of Evidence Act where it defined as all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry.  It is used to prove facts of the case including fact in issue or relevant fact.

There 2 important rules in tendering oral evidence.

1^st it can be used to prove all facts of a particular case except the contents of documents (s59 of Evidence Act). Even thought restriction laid down in s59, there is still a provision to allow oral evidence to prove contents of documents under s61 of the said act which subjects to circumstances under s65 of the same act.

2^nd it must be direct, that is to say, it refers to evidence of what the witness has:

                                                             a.       Seen

                                                             b.      Heard

                                                             c.       Perceived

                                                             d.      By other sense

                                                             e.       Opined by his own senses and inferences

In other word, the word ‘direct’ means original as the evidence of one who has personal knowledge as opposed to second hand information or hearsay evidence. The testimony must be of the person who perceived the fact through the medium of his own senses.

Why must be direct? Because to preserve best evidence rule. Hence oral evidence opposed to 2^nd hand information which is hearsay evidence.

To test the credibility of oral evidence given by a witness, there is a test introduced in case of PP v Dato Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1, to determine the credibility of oral evidence, certain criteria must be taken into consideration:

                    .      How consistent the story is with itself

                    .      How it stands the test of cross examination.

                    .       How far it fits in with the rest of the evidence and the circumstances of the case.

Besides, the veracity of oral evidence may be also tested by reference to the contemporary documentary evidence of that particular case. If a witness demonstrably tells lies on one or two points then it is clear that he is not reliable witness and as a matter of prudence the rest of his evidence must be scrutinized with great case and indeed with suspicion. (Khoon Chye Hin v PP [1961] MLJ 105).

Real Evidence, although it is not defined under Evidence Act, it is still allowed under Evidence Act for its admissibility. Reference may be made to s60(3) of Evidence Act which provides that if oral evidence refers to the existence or condition of any material thing including a document, the court may require the production of that material thing or document for its inspection.

It refers to any material object that play some actual role in the matter that gave rise to the litigation, introduced in a trial, intended to prove a fact in issue based on its demonstrable physical characteristics.

Hence, based on s60(3), it covers material objects or things produced for the court’s inspection and which are not documents. It is a tangible object, as opposed to oral testimony or documentary evidence which records information that is offered as evidence. Nevertheless, it may be document when the particular document is the existence or nature of the document itself which is in dispute. For example, dispute as to ownership of a document or the existence of a will.

Examples of real evidence are material objects like knife, gun etc, demeanour of witness. For instance, in a murder trial, if knife involved in the case, it will be the real evidence, biological evidence such as DNA left by the attacker on the victim’s body,  casts of footprints found at the scene of the crime. 

Written by Lee Kah Sheng

Direct Evidence VS Circumstantial Evidence

Direct evidence refers to evidence attested by a witness, thing or documents. Circumstantial evidence basically refers to all other evidence. Prima facie, the nature of such evidence is weak as it can lead to several inferences. However it can still lead to convictions. We will be talking mainly on murder convictions here.

Lord Cairns in the case of Bel Haven & Stenton Peerage provides us with a colourful description on how circumstantial evidence can secure a conviction as follows:

“My Lords, in dealing with circumstantial evidence we have to consider the weight which is to be given to the united form of all the circumstances put together. You may have a ray light so feeble and that by itself will do little to elucidate a dark corner. But on the other hand you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and when united, producing a body of illumination which will clear away the darkness which you are endeavoring to dispel.”

The classic Malaysian case is Public Prosecutor v Sunny Ang. Here the accused when missing in sea and was last seen with the accused, her boyfriend. Circumstantial evidence such as the fact she was last seen with him, she was a novice diver, her flippers were cut, it was in dangerous waters, the accused renewed her insurance policy that day, the accused mother was the beneficiary, the accused never attempted to find her and he claimed the insurance on that very day, put together, secured the conviction.

To the contrary, circumstantial evidence failed to secure a conviction in Public Prosecutor v Hanif Basree. In that case, the accused was last seen with the deceased in her apartment before she died. However, conflicting testimonies by witnesses and a unidentified persons DNA in the crime scene led to the possibility that there could have been someone else.

Both cases above point to one principle, it must lead to the irresistible inference and conclusion that accused committed the crime. This test is no different than the general burden of proof, which is beyond reasonable doubt. This was affirmed by Gopal Sri Ram J in Juraimi Hussin v Public Prosecutor. The only difference is that it would be much harder on part of the prosecution. To put it simply, it is the same destination, but two different roads. With direct evidence, it is a straightforward road, with circumstantial evidence, it would be a maze in which the prosecution must help the court solve.

There are a few who might disagree that circumstantial evidence should not secure convictions, but as of now, it can.

Written By Surenda Ananth