Computer Evidence

The term 'computer' in the Evidence Act 1950 was recently amended by the Evidence (Amendment) (No 2) Act 2012 in favour of the definition in the Computer Crimes Act 1997 thereby bringing consistency to the two statutes. 'Computer' is now defined as: An electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices, but does not include (a) an automated typewriter or typesetter; (b) a portable hand held calculator; (c) a device similar to those referred to in para (a) and (b) which is non-programmable or which does not contain any data storage facility.

Section 90A is the principal section and with seven subsections, sets the requirements for admissibility and proof of computer generated documents. Section 90B deals with the probative value to be attached to the evidence, section 90C stipulates that the provisions of sections 90A and 90B shall prevail over any other provision in any other statute.

Section 90A(1) provides as follows:

In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement. 

The subsection makes it a condition precedent that the document should have been produced by the computer in the course of its 'ordinary use'. Although what is 'ordinary use' has not been defined, subsection (2) states how it may be proved.

Section 90A(2) provides as follows:

For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used. 

This provision has caused a great deal of argument on whether a certificate is required in every case where 'computer generated documents' is sought to be adduced. The Court of Appeal went to great lengths to examine and clarify the provisions in the case of Gnanasegaran a/l Pararajasingam v Public Prosecutor. Shaik Daud Ismail JCA clarified that under section 90A(1), there were two ways of proving 'in the course of its ordinary use' in order to admit computer generated documents into evidence:

(i) it may be proved by the production of the certificate as required by sub-s (2). — This is permissive and not mandatory. This can also be seen in sub-s (4) which begins with the words 'Where' a certificate is given under sub-s (2) ... or 

(ii) by calling the maker of the document which is the usual method to admit and prove any form of documentary evidence. Therefore a certificate is not required to be produced in every case. 

Once the prosecution adduces evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-section (2) as sub-section (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. 

As for the certificate, it shall be sufficient under section 90A(3) for a matter to be stated to the best of the knowledge and belief of the person stating it. It shall then be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate.

Once the certificate is produced, there is a presumption under section 90A(4) that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced. By the provisions of section 90A(5), a document is deemed to have been produced by a computer, directly or indirectly, whether or not there was any direct or indirect human intervention. Section 90A(6) provides a further presumption in relation to a document, whether produced by a computer or not:

A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. 

It will be observed that subsections 90A(1) and (6) appear to be prima facie incompatible and inconsistent with each other. The 'deeming' provision in subsection (6) was seen as a way of circumventing the requirement for the certificate as stipulated in section 90A(2) until the Federal Court in Ahmad Najib bin Aris v Public Prosecutor, clarified the distinction between subsections (1) and (6). The Federal Court after analysing the provisions at length, concurred with the findings of the Court of Appeal in Gnanasegaran and Public Prosecutor v Hanafi Mat Hassan. It confirmed that under section 90A(1), computer generated evidence could be admitted in either one of two ways. A certificate could be tendered as specified by sections 90A(2) and (3). Once this was done, the presumption under section 90A(4) as to the proper working of the computer at the material time would be activated. Alternatively, oral evidence could be called to prove that the document produced by the computer was produced 'in the course of its ordinary use'. This also requires further oral evidence to support the presumption in section 90(4) that the computer was in proper working order at the material time. As for section 90A(6), the Federal Court confirmed that the 'deeming' provisions herein were not an alternative to circumvent the provisions of section 90A(1). Instead, it provided for the admissibility of documents that were not produced by a computer in the ordinary course of its use. This could arise for instance where a letter is produced by a computer which has no bearing on the ordinary use of the computer. Yet it is still a document produced by a computer and could be admitted under section 90A(6).

Section 90A(7) precludes an accused in any criminal proceeding from using self-corroborating evidence generated by a computer under his own management or supervision.

Section 62 provides that a document produced by a computer is primary evidence. Thus computer-generated evidence may be admitted in court without difficulty and such evidence is primary evidence, even though it is not possible to distinguish between 'original' and 'copy'. The provisions in section 90A ostensibly provide the necessary safeguards.

Section 90B deals with the weight or probative value to be attached to a document or statement contained in a document, admitted by virtue of section 90A. In estimating its weight, the court may draw any reasonable inference from circumstances relating to the document or the statement, including the manner and purpose of its creation, or its accuracy or otherwise. It shall have regard to: 

(a) the interval of time between the occurrence or existence of the facts stated in the document or statement, and the supply of the relevant information or matter into the computer; and 

(b) whether or not the person who supplies, or any person concerned with the supply of, such information or the custody of the document, or the document containing the statement, had any incentive to conceal or misrepresent all or any of the facts stated in the document or statement.

by Heng Eng Gee (A132629)

The Rules Against Hearsay Based on the Case of Subramaniam v PP, Tan Gong Wai v PP and Chandrasekaran & Ors. v. PP

No where in the Evidence Act 1950 (the Act), is the rule against the admissibility of hearsay evidence expressly mentioned. However s. 60 of the Act states that oral evidence shall in all cases whatever  be direct whilst section 32 is commonly believed to embody exceptions to the rule against the admissibility of hearsay evidence. These two sections at least give weight to the unassailable view that one can audaciously give judicial notice that the hearsay rule has a firm place in the Malaysian law of evidence.

Based on the quotation by Lord Normand in Teper v. R, the rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.

Lord Wilberforce had also said in Ratten v. R that: ‘ A question of hearsay only arises when the words spoken are relied on ‘testimonially’, that is, as establishing some fact narrated by the words.’

Local judicial cases of the highest authority attest to this. In fact it is in the local case which went up to the Privy Council that we find a judicial definition of hearsay. It is this case which has been cited more than often in most of the common law jurisdictions. This is Subramaniam v. PP.  It was evident from the judgment of Privy Council in this case that: ‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.’

Therefore if the purpose of adducing the out of Court statement is to prove the truth of what was said, then it is caught by the prohibition of the hearsay rule, because:

(a) it is not the best evidence

(b) it is not given on oath

(c) the veracity and accuracy of the out-of-Court maker of the statement made to the witness cannot be tested by cross-examination

(d) the Court is not able to see the demeanour of the witness

(e) it may be concocted, fabricated and tailored to suit the witness’ testimony. Because of these dangers the hearsay rule excludes evidence given for such a purpose.

However, the hearsay rule does not apply where the purpose of adducing the evidence is to show not the truth of what was said, but that the statement was in fact made. In this context what the witness is stating is what he himself has perceived by one or more of his senses. He will be giving direct evidence under section 60 of the Act.

A good example is in Subramaniam’s case itself, the accused was charged with unlawful possession of ammunition. His defence was that he had been captured by terrorists and was acting under duress. The trial Judge held that the evidence of his conversation with the terrorists was inadmissible under what he believed to be the hearsay rule unless the terrorists themselves testified. The Privy Council, allowing his appeal opined that the hearsay rule was not infringed because his evidence about what the terrorists had said to him was not adduced in order to show that the terrorists had said was true, but in order to show that threats had in fact been made. The statements of the terrorists comprised threats against Subramaniam’s family and the important thing was that Subramaniam believed the terrorists. He wanted to prove the words that had been spoken to him in order to establish his reaction to their threats, which would have entitled him to the defence of duress. The further questions whether the words were true did not arise; the issue was whether the words were threats of such a nature as to constitute duress and whether he believed them. For this purpose he was entitled to rely on the terms of the threats as original evidence.

Nevertheless, general proposition laid down by the Privy Council in Subramaniam must be read subject to this condition, viz. that the statement must be directly relevant in considering the state of mind of the witness to whom it had been made". In other words, the proposition could only apply when the mental state of the witness evidenced by the statement was itself directly in issue at the trial. What a witness said or heard said might well be the best and most direct evidence of that witness’ state of mind.

The fact that the statement was made, quite apart from its truth is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which whether true or not, if they had been delivered by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.

In the leading case of Chandrasekaran & Ors. v. PP, the repetition of an out of Court statement made to a witness in Court did not breach the rule against hearsay, because according to the formula laid down in Subramaniam v. PP the statement was made not to prove the truth of it but merely to show that it was made as explaining the relevant conduct which was relevant under s. 8 and the witness’ state of mind under s. 14 of the Act.

The appellants were charged with and convicted of abetment of the offence of defrauding the government.

Raja Azlan Shah J (as he then was), said regarding the evidence of this witness PW55 that: "So far as the evidence of PW55 is concerned it fully incriminated appellant No. 1" His evidence consisted of the conversation that took place between himself and this appellant, the part he played in pursuance of the conspiracy and what Leong Chye Kee had told him. The learned President admitted hearsay evidence by PW55 regarding what Leong had told him - Leong had since disappeared - but, be it noted, merely as explaining the relevant conduct of PW55 and not to prove the truth of the statements. As authority for doing so the Privy Council case of Subramaniam v. PP was cited by him. That in my view is the correct approach. Leong was untraced. He was not a witness in the case. Whatever statements he had made to PW55 were admitted, not for the purpose of establishing the truth of the facts alleged, but to show the state of mind and conduct of Leong and PW55 and to draw inferences therefrom.

Another local case of high authority is Tan Gong Wai v. PP, where the Federal Court readily received leading decisions from other common law jurisdictions. The relevant facts were that the two accused were jointly charged, tried, convicted and sentenced to death for trafficking in heroin. The evidence against them included testimony from a senior custom officer, Liew, concerning statements made by two informers (who were not summoned as witnesses) to him and his superior officer about the nature of the transaction.

Thus the first statement contained an out-of-Court assertion by an informer (non-witness) of a relevant fact that there would be a drug transaction. The second statement asserted one of the places where the alleged transaction was to take place as well as the identity of one of the accused. The phone call contained yet another assertion about the place of the alleged offence. The statement at the junction was clearly tendered to prove the fact that the offence was about to take place.

The Federal Court held that the facts of the instant case were clearly distinguishable from Subramaniam, where the state of mind of the accused was in issue as he was relying on the defence of duress. However in the present case, the state of mind of Liew, the investigating officer, was not in issue. Using the evidence for the purpose of explaining his reaction was, in other words, legally irrelevant as his state of mind was irrelevant. Since the mental state of both the appellants was not in issue at the trial, this condition had not been satisfied. For this reason they were to be treated as hearsay evidence and therefore inadmissible in law.

The Federal Court held that the statements were clearly hearsay. They were made out of Court tendered to prove the truth of the facts, stated or implied therein, that is, the nature and circumstances of the transaction of drug trafficking.

by

LIEW PEI PEI

A132417

The Trial Within A Trial Of Confession Statement Caused By Inducement, Threat Or Promise

In section 17(2) of Evidence Act, ‘A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.’

The wording of Section 24 is produced as such: ‘A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.’

            The confession must have been obtained by reason of any inducement, threat, or promise proceeding from a person in authority. In the case of Deokinanan v R [1968] 2 ALL ER 346, it is stated in Privy Council that: ‘then it may be that there is a similar risk that in some circumstances the confession may not be true if induced by a promise held out by a person not in authority’

            The need for trial within a trial arises whenever the admissibility of a confession is challenged. This is based on the case of Federal Court in the case of Sabli bin Adin & Ors v PP [1978] 1 MLJ 210.

            The procedure in trial within a trial, according to the case of Abdul Mahmud v PP [1980] 2 MLJ 50, is that ‘the accused is entitled to cross-examination and thereafter to give evidence in support of his objection. Similarly the prosecution is also entitled to cross-examine the accused and his witnesses, if any. At the close of the case, the court has to make a decision whether the statement was made voluntarily or otherwise.’

            The confession must also appear to the court to have been caused by any ITP. In the case of PP v Aris Bin Yunus [1989] 1 CLJ 239, Shankar J held that:  ‘the word is not ‘proved’ but ‘appears’..whenever any sort of doubt creeps into the mind of the court or when the question of voluntariness is raised by the accused, the better and sounder opinion certainly is that it is for the prosecution to show affirmatively to the complete satisfaction of the court the voluntary nature of the confession.’

            The case of Panya Martmontree v PP [1995] 3 SLR 341 held that the wording of ‘if the making of the confession appears to the court’ imposes a higher than normal burden on the prosecution, such that the slightest doubt is sufficient to exclude the statement. This view express by Singapre Court of Appeal merits serious consideration. That particular use of the word ‘appears’ in the section has given rise to the impression that the slightest suspicion of impropriety is sufficient to rule out a confession. The use of word ‘appears’ in the section entitles an accused person to merely raise the issue of inducement with the result that the burden of proof of voluntariness shifts to prosecution. The case of Md Desa bin Hashim v PP[1995] 3 MLJ 350 in Federal Court also ruled that there must be a ‘well-grounded suspicion’ to render a confession involuntary. In the case of Hemraj v State in the Indian Supreme Court :‘it is for the prosecution to show affirmatively to the satisfaction of the court that the confession was voluntary. If there is the slightest doubt or suspicion about its voluntary nature, the scale will be turned in favour of the accused., burden is on prosecution.’

            Based on the Federal Court of Francis Antonysamy v. PP [2005] 2 CLJ 481 , the manner of proving voluntariness is that: ‘While it has been correctly recognised by the learned judge that the prosecution must prove beyond reasonable doubt that a cautioned statement was given voluntarily it is an error of law to say that the defence must prove an allegation of assault on a balance of probabilities.

The burden of proof on the prosecution, according to the Supreme Court in the case of Hasibullah bin Mohd Ghazali v PP[1993] 3 MLJ 321, it is held that ‘the onus is not on the accused to show involuntariness but on the prosecution to prove beyond any reasonable doubt that the confession was voluntary. The word ‘appears’ also entitles an accused person to merely raise the issue of inducement with the result that the burden of proof of voluntariness shifts to the prosecution.

To sum it up, the burden is very heavy to discharge on the part of DPP because the ‘confession’ is not admissible if it ‘appears’ to the court that it was not voluntarily made. 

In the case of DPP v Ping Lin [1976] AC 574, the test of voluntariness is applied in a manner which is partly objective and partly subjective. The objective limb is satisfied if there is a ITP, and the subjective limb when the ITP operates on the mind of the particular accused through hope of escape or fear of punishment connected with the charge.

            There is also a waiver in this trial within a trial. The requirement of a trial within a trial may be waived. This would arise when the defence does not challenge the voluntariness of the statement when it is sought to be introduced by the prosecution. This is stated in the case of PP v Arokiasamy a/l Alphonso [2008] 3 MLJ 251.

            No particular form of words are required to waive a trial within a trial. All that is required is that the accused must waive the requirements of a trial within a trial and admit the statement is voluntary and admissible. In the case of Park v The Queen [1981] 122 DLR(3d) of Canadian Supreme Court it was held that ‘All that is necessary is that the trial judge be satisfied that counsel understands the matter and has made an informed decision to waive the voir dire. It is sufficient for counsel to indicate that no objection is taken to admission of the statement without a voir dire,..’

            With regard to evidentiary value of a confession, according to Mc Gilligan J in the case of Tinit & Ors v PP (No.2) [1964] MLJ 389, it is stated that: ‘A confession, once it has been accepted as voluntary is to my mind the strongest evidence,..’

            According to the case of Osman & Anor v PP [1967] 2 MLJ 137, Viscount Dilhorne in the Privy Council held that ‘..an accused can be convicted on his own confession, even when it is retracted, if the court is satisfied of its truth.’

            The last point would be the court’s discretion to exclude evidence of an admissible confession. According to the case of R v Sang [1979] 2 ALL ER 1222, Lord Diplock in the House of Lords held that a trial judge in a criminal trial has always a discretion to refuse to admit evidence if in opinion its prejudicial effect outweighs its probative value.

            The case of PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401 in the Federal Court has stated that the party that is seeking to have evidence excluded in the exercise of the discretion of the court has the onus of showing, on the balance of probabilities, that the discretion should be exercised in its favour.

by

LIEW PEI PEI

A132417

Section 126 to section 129

Sections 126 to 129 of the Evidence Act deal with legal professional privilege. Section 126 provides that no advocate shall be permitted to disclose any communication made to him by or on behalf of his client for the purpose of his employment UNLESS  the clients give express consent. 

To all my dearest groupmates, kindly explain these sections, state the general rule and the exception. Support ur answer with case authorities.

Shin yi

Similar Fact Evidence under Common Law

For similar fact evidence, we shall refer to the landmark case Makin v. Attorney General for New South Wales [1894] AC 57. The brief fact of this case is A husband and wife were charged with murdering a child they were fostering and burying it in their backyard. During their trial evidence of twelve other babies found buried in the backyards of their previous residences was offered as evidence. The appeal was based on whether this evidence was admissible or whether it was unfairly prejudicial to their defence. 

Lord Herschell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances.'It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by 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 shew the commission of other crimes does not render it inadmissible if it be 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 accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other'. 

In short, evidence of similar fact only could be admitted when it is not merely relevant and probative, In R v Smith, 1915, (11 Cr App R, 229), the ‘brides in the bath’ case, the defendant was accused of one murder but evidence was offered of two more. The admission of this evidence followed similarly from the improbability that three different women with whom he had gone through a form of marriage, and who had made financial arrangements from which he would benefit, had all drowned in the bath by accident shortly afterwards.

Although the leading cases in which the similar fact principle was established concerned the crime of murder and the admission of similar facts which were not disputed, from the beginning of the twentieth century onwards there was growing pressure on the judiciary to lower the threshold for the admission of such evidence in order to obtain convictions in sexual cases. This pressure was particularly strong in relation to cases involving allegations of homosexuality. Later in the case of In the case of R v Sims, (1946, 31 Cr App R 158) the Court considered an appeal which turned on whether allegations of buggery made by three different men against the accused could be admitted within the same trial in support of one another. However, In the judgment drafted by Denning J, the Court ruled that the principle applied to strikingly similar facts in such cases as Makin and Smith should be extended and applied to similar allegations. The judgment failed to present any sound rationale for changing the law in this manner.

Some how later,  in the case of DPP v Boardman (1975), which concerned allegations made by three adolescent boys against their male teacher, the House of Lords lent its own authority to the judgment in Sims, while rejecting its view of homosexuality. At the same time that it did this, however, it drew attention to the grave dangers which might follow from this change in the law. Lord Cross pointed out that that there was a marked difference between cases which involved allegations and the cases (such as Makin and Smith) which involved counts of murder and undisputed evidence of previous deaths. In the original cases there was, said Lord Cross, ‘no question of any witness for the prosecution telling lies’. ( the witness for case In AG v Makin is a deceased and the case of R v Smith the deceased is the wife, so deceased in fact unable to tell lies). Lord Wilberforce underlined this view and warned against the danger that, as a result of the extension of the similar fact principle, innocent defendants might find themselves facing a series of grave allegations, all of which were false.

The general test prescribed by DPP V Boardman was a cautious one. In deciding the question of admissibility, the judge should weigh the probative value of the evidence against its prejudicial effect. If the similar fact evidence was so weak, so unreliable or so contaminated that its probative value was outweighed by its capacity to prejudice a jury, then it should be excluded. In their judgment their Lordships reinforced the caution embodied in this test by placing particular stress on the need for there to be ‘striking similarities’ between allegations before the possibility of their being admissible could even be considered.

Later about year 1990 onwards, the principle of  DPP v Boardman seems have been replaced by few cases. In the case of DPP v P, Lord Mackay went on to reject the requirement that allegations, in order to be admissible, should be ‘strikingly similar’. In doing so he wrongly claimed that this requirement applied only to cases where identification was at issue. Bear in mind that , the judgment will let the defendant or accused suffered more from false allegations. 1995, in R v H, the second safeguard which had been put in place by Boardman was also removed. Lord Mackay, who once again gave judgment, made explicit what had already been implicit in his earlier judgment and held that, in ruling on the admissibility of a series of similar allegations, the judge should generally assume that the allegations in question were true. ( My own opinion= this clearly not practicable because the judge in the end has to access whether the probative value is higher than prejudicial effect, if the judge has to assume the allegations in questions were true then all the evidence sure admissible.)

In short, the principle of innocence until proven guilty or the presumption of innocence of the accused has been seriously affected. Because these decisions have permitted, and indeed encouraged, the admission of evidence which is both highly unreliable and massively prejudicial, innocent defendants have again and again found themselves facing large numbers of allegations, all of which are false.

by

LIEW PEI PEI

A132417

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