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