Tutorial 3

5. Sources of law of evidence

The evidence act and common law.
Refer to common law when there is a lacuna in the evidence act.
6. Terms of relevancy, admissibility and weight of evidence.

Aspect Relevancy Admissibility Weight of evidence

Definition Connection to facts to Accepted evidence where Strength or value of

facts in issue -S. 3 judge finds it useful to evidence or the
Evidence where the prove or disprove a fact. qualitative of relevant
probative value evidence.
outweighs the Same as relevancy once,
prejudicial effect. relevant then will be
admissible

Question of Is a question of law Is a question of law It is a question of fact

law or a -it has to have some based on circumstances.
question of pre-requisite and have
fact? to satisfy which section In DSAI case, the Court
to fit look at the surrounding
Example: Once the circumstances to
evidence is relevant determine whether he is
under section 6 to a credible witness or
section 55, the court has not.In this case, he made
no discretion to reject police report late and
it. falls under the issue of
Can appeal on question weight as credibility is
of law, an issue of fact.

When will
assessment of
relevancy and
admissibility
will start?

7. Facts proved, disproved not proved. (can be 10 marks question)

In respect of criminal prosecution.
Definition of facts proved, disproved and not proved in Section 3
At the prosecution stage, the legal burden of proof is on the prosecutor.
9. Must all circumstantial evidence be direct? No
Direct evidence must be looked at section 5 and section 60
Section 5 - can show the FII, the charge, the actus reus and mens rea
Section 60 - oral evidence and individual testifying in the court
FII Ali - murder- Mona
Daud saw Ali who stab Mona - satisfies Section 5 & section 60
Knife sent to Dr - Section 5 + call Dr. K directly prove the FII as the blood and fingerprints on the
knife belongs to Ali. Therefore, his expert opinion includes section 60 which proves the FII
Zack’s evidence- did not see Ali stab Mona therefore it's circumstantial evidence.

10. Hearsay evidence not generally acceptable. Documentary and oral evidence can be hearsay
because the witness did not perceive what happened prior to the incident.
When can document evidence become hearsay?
- When the document is produced as evidence in the court but the content is not verified by the
maker of that particular document.

11. Best evidence rule

Tendering the best evidence which is primary original evidence, tendering the knife, the
eyewitness.

12. The issue is whether the court made an error of law when Julie made reference the english law.
Sources of law. If julie submit dah ada dalam evidence act, then not allowed. Only kalau ada gap
ada lacuna baru boleh refer.

13. The facts in issue is whether Dave outraged the modesty of Maria. The issue is whether the
medical report made by Dr Elizabeth can be tendered in court and whether it is relevant and
admissible or not. Law refers to section 3 which is a documentary evidence and tendered as original
document under section 6. However, medical reports are hearsay and must be called the doctor to
verify the contents.
Tutorial 4

14. Primary evidence and secondary evidence in the context of best evidence rule
PE: The evidence that can provide you with greater certainty of facts. Section 62 provides the
example of primary evidence such as the documentary evidence, eyewitness, knife, CCTV
capturing the murder, body of the victim.

SE: The evidence that may be relevant but not directly related to the FII. Example is eyewitness
of someone who saw a fight scene which, evidence that relates to the motive to kill, fingerprints
at the scene of the crime but not at the murder weapon, footsteps at the scene of the crime, etc.
*Relate to best evidence rule - Define best evidence rule. Whereby PE is one of the best evidence
as it can prove the FII and SE is the second best evidence may not be the best evidence, but shows
circumstantial evidence.

16/17/24/25 Scope of section 5- Relevancy

Question on judicial discretion (power of the court)
What is relevancy?
Who determine relevance
How to determine relevance?
Judges power to ask questions - Section 136, 165 need to be invoked to determine relevancy.

Determination of relevancy-
DSAI No.3-
R v Kuruma- The ratio
R v Sang- The judge
Tang Boon How- judicial intervention, where we cannot exercise discretion because we practice
adversarial system.
Goi Ching An - However, we can exercise discretion and ask questions based on this case.
20. Distinction between relevancy and weight of evidence

Aspects Relevancy Weight of evidence

Definition Connection to facts to facts in issue - Strength or value of evidence or the

S. 3 qualitative of relevant evidence.
Evidence where the probative value
outweighs the prejudicial effect.

QOL/QOF QOL QOF

- can be challenged
- the court has no discretion to reject
if the evidence fits into provision
section 6 to section 55 of the
evidence act.
- issue on credibility
- based on the circumstances of
each case.

How to The probative value outweighs the How the court determine that the
determine? prejudicial effect then the evidence witness is credible?
would be relevant. By looking at the consistency of his
statement, the demeanor of the
person. Case sabaruddin bin non

When do you Upon tendering the evidence in the Once the evidence is relevant and
determine? court. admissible, then weight factor
comes in. It is not a determinant
factor in relevancy.

21. The FII is whether John can be liable for the unlawful possession of drugs.
The issue is whether the drugs which was obtained by illegal way.
The search warrant was for beer therefore the drugs were illegally obtained.
Section 5 + R v Kuruma, R v Sang, DSAI- The court is not concerned with how you obtain the
evidence even though the procedure is not correct, it can be relevant and admissible.
On the facts, there were no element of excessive involuntariness of procedural as in Goi Ching
Ang that may resulted in the evidence being improperly obtained.

23. Define c/stantial evidence

Sunny Ang- Burden of proof
Standard is irresistible conclusion = beyond reasonable doubt.
31. 2 answers
- Concept which is the weight
- How will the court use their judicial discretion in determining the weight of evidence.
- Sabarudding b non
- Cgu Insurance

Tutorial 5
1. Res gestae principle
Both direct and hearsay.

Direct evidence Hearsay

Same transaction as they are connected Accepted as part of law of evidence because
together, it relates to FII as it shows the of spontaneous, contemporaneous and
beginning to the end. domination of the mind eliminate possibility
of fabrication.

2. Distinction between res gestae hearsay and dying declaration.

Aspects Res gestae hearsay Dying declaration

Who made the Bystander Victim who later died

statement? Victim
Accused person

Elements that needs to Spontaneous, contampernous, Statements must lead to the cause
be fulfilled without deliberation and your of death and the circumstances or
mind is dominated by the event. transaction leading to his death

When? Free from fabrication due to the Does not require expectation of
elements above. The dying death
person will not die.

*Res gestae has no limitation of offence & dying declaration can only be for murder or
manslaughter.
3. Scope of section 6
Liberal or strict approach under res gestae hearsay.
-Accused person(strict approach)- there is a time lapse and would have more time to add or change
his statement, may fabricate his statement to his advantage- opposite of Zahari b Embong.
-Bystander(liberal approach)- They are not pressured by the event and the degree of the element
of domination is lower than the victim.
R v Tapper
Which approach should you take and give justification why?

*Must consider the factor who is the maker and whether you actually see the maker making the
statement or not.

4. Scope of section 7
Explain 3 parts evidence relevant in
-occasion/cause/effect
-state of things
-opportunity

5. Scope of section 8 (must be direct evidence only)

-evidence of motive
-preparation (define + facts - whether it is preparation or not)
-evidence that show conduct

Motive and preparation has to be specific to that particular person for that offence.
Tutorial 6
6.
The FII is whether Samy kill Susie?
The issue is whether the police report made by Susie is relevant and admissible to be tendered in
court? Suzy made the police report 6 months before her death.
Section 9
-First in information
-Explain + introduce
Section 9 is applied not because her police report was made 6 months ago but it was her death that
initiated the police report.
However, the content of the police report is hearsay and it may contain things to show that she was
afraid of Samy as he gave threatening calls towards her.
Or Section 8(2) illustration (j) & (k) which is the conduct of Susie making the police report
Application: On the facts, Susie’s evidence of the police report will be relevant as her conduct
under section 8(2) to illustration (j) & (k) whereby the police report when tendered will be
reflective of her feelings of fear with regards to Samy making the threatening call.

7. The FII is whether Ian hawke can be found guilty of reckless driving against Theadore under
section 41(1) RTA.
Sub issue 1: Whether the evidence of Simon is relevant and admissible or not?
Facts: Simon would tell the court when he saw the car was driven too fast when it hit Theadore.
Law: Direct evidence - s.60
Relevancy-s.7 (state of things & cause/effect)
Section 9- time and place(must relate with something else)
Application: On the facts, the issue here is whether Simon’s evidence is relevant and admissible
or not? It was stated that Simon who was standing at the scene saw the impact where the car was
driven too fast and hit Theadore. Evidence of Simon is a direct evidence under section 60 when he
perceived that and it will be relevant under section 7 to show state of things as to how the evidence
occurred according to case of R v Ratten. On the facts, the impact of the accident when the car
knock theodore is the circumstances to events took place in which he perceived. Therefore simons
evidence is relevant to show state of things of the impact of the evidence.
*alternative argument
On the facts, while theodore was standing he saw the car from far being driven too fast until the
impact where it hit the victim, theodore. Therefore, there is a same transaction which is the
beginning when the car was driven until it stopped.

Sub issue 2: statement made by Ian Hawke immediately after the accident where he said…
Facts:
Law: Section 6 res gestae hearsay
R v Baddingfeiled
R v Andrew
Application: On the facts, Simon is repeating the statement made by Ian and this hearsay evidence
and as a general rule Simon’s evidence is not relevant and admissible. However, Simon’s evidence
repeating what Ian was saying may be relevant and admissible if it satisfies the res gestae principle
as illustrated in those cases, whereby the elements of spontaneous, contemporaneous, without
deliberation and dominating the mind needs to be proven to the court and there is no possibility of
fabrication. On the facts, Ian was a driver. Therefore the offender in this case. He made the
statement immediately after the accident where the statement can be regarded as spontaneous…
and the impact of the accident was dominating his mind and heard by simon and this satisfies
strict/liberal approach. *Justify the approach that you chose.

Tutorial 8
9. (a)
Issue: Whether Tuti’s evidence is relevant and admissible or not?
Facts: On the facts, Tuti informed the Court that she saw her sister Sali went into the bus at 2pm
and she was alone in the bus.

Law: Section 7 (state of things + opportunity)

Or section 9- Tuti’s evidence is relevant to rebut Teja’s statement, therefore where he said that the
victim did not take a trip back home in his bus therefore proves that Teja was actually lying and
this falls under conduct of section 8(2).
Application: Tuti saw her sister went on the bus at 2 pm and was alone and that evidence was
reflecting there is an opportunity for Sali being hurt/being attacked by Teja considering she was
alone. (s.7)

b)
Issue: Whether Atok’s evidence is relevant and admissible?
Fact: Atok give evidence where he saw Teja returning home looking nervous and disarray and he
asked him to lie and if someone looked for him said “tell them I was with you”
Law: section 7 state of things where he looked nervous
Section 8(2) where he was lying something caused him to lie and it must be because he was trying
to cover the murder of Sali.
Application: when Atok tell the court the fact that he saw Teja come home looking disarray and
nervous and this seems suspicious and relevant under section 7.
Where he asked atok to cover for him and tell that he was with him shows the conduct of lie and
satisfy section 8(2).

c)
Issue: whether Mak Jah’s visual identification is relevant and admissible or not?
Procedural issue - identifying in the cell
Quality issue- saw Teja rushed past her while she was resting.
Dorai Pandian case - quality is always an issue when you have issue on identification.

Sub issue 1: whether Mak Jah’s identification of teja during and identification parade is relevant
and admissible or not.
Facts: Mak Jah saw Teja in the cell and she identified him because of the shirt that he wore.
Law: Sarjit Singh- on the facts, ID parade need to be conducted because MJ did not know Teja.
Procedure : only relevant in the question.
- line up of 10 individuals, there must not be identification that is prejudicial.
Application: On the facts, MJ identify Teja in the cell and at that time he was alone. In addition to
that, MJ identify Teja not by recognizing his face but by virtue of the clothes he wore and this is
highly prejudicial and contrary to the accepted procedure mentioned above.
Conclusion: Therefore, MJ’s identification of Teja at the ID parade is not relevant and admissible.

Sub issue 2: Whether MJ identification of teja in the court is relevant and admissible or not?
Facts: MJ saw Teja running past her when she was resting and Teja came from an abandoned
house which was located 200 meters away.
Law: Dorai Pandian- MJ must give visual identification at the court
The evidence can be accepted by the court if it is of good quality following the procedure in R v
Turnbull affirmed in Jaafar bin Ali.
Section 9
Choose either one of the qualities.

Poor quality Good quality

MJ is not vigilant, oblivious to her
surroundings.
Collecting woods therefore she was tired
So she would look for shady trees dark
environment to rest after her hard work of
collecting the woods.
She was resting and therefore observant
towards her surrounding.
Teja was right in front of her face and she
could see his full feature
Then apply Turnbull.

In conclusion, MJ’s ID likely suffers from poor quality and MJ’s ID is not relevant and admissible.

Tutorial 9
Continue from previous question.
d) Whether Meen’s evidence would be relevant and admissible or not.
Facts: Testimony
Law: section 6 of res gestae hearsay.
General rule not relevant & admissible
Not in the same transaction because not spontaneously done, contemporaneous.
For example 3 days before she died.
Section 7 SOT
Application: Meen is repeating what Sali was saying therefore it is hearsay evidence. Not
admissible under general rule.
e) Whether the testimony of Weena when she received a call from Sali.
Facts: Her statement when Sali “please help me, Teja is trying to hurt me”
Law:
Res gestae hearsay section 6
Direct evidence + S. 7 SOT + R v Ratten
Weena giving two kinds of evidence:
*discuss this first
Received a call from Sali at 2:45 and heard that Sali sounds hysterical and afraid of her life. (direct
evidence) R v Ratten
On the facts, she also give hearsay evidence. Not relevant and admissible. However, exceptions
can be applied. It fulfilled the characteristics of res gestae hearsay.

Alternatively,
Can the statement made by Sali repeated by Wena be relevant and admissible under dying
declaration under section 32(1)(a)?
The requirement under this provision is that it must relate to the cause of death/ relate to the
circumstances of transaction leading to her death.

15. The FII is whether Stubbing commit arson of his restaurant?

a) Miss Bunpo:
The evidence that she will tell the court Stubbin told her the best way to start the fire- hearsay
however it is s.21 admission.
I saw the new staff and my employer start to stockpile the gasoline- s.8(2)/ s.8/s/7
She basically increased account receivables by RM 500k so Stubbin could get the loan as the
company was struggling financially -s.8 motive
Law: Hearsay- admission- s.21 is relevant and admissible?
s.8(2)- conduct/ s.8 preparation/s.7 state of things
Discuss only 2.
b) Chee Chee: she saw orange Mazda- s.9 identity of things
She identified Stubbinsas one of the persons in the car- s.9 identity of person
Quality issue of visual identification in trial
R v Turnbull
Jaafar b Ali
Application: he was in the car at night and therefore the surroundings was dark(poor quality)
I was passing by his car therefore I could clearly see his face(good quality)

c) Inspector Mugg
Fire started by
Relevancy- s.7 cause of fire supported with s.45(expert opinion)

Tutorial 11
Classic SFE question
Q5 (Yoyo, Xen, Meris)
FII: whether Yoyo killed Meris?
Issue: whether the c/stances of death of Rosie, Johnny and Johan will be relevant and admissible
to prove that Yoyo killed Meris?

Law: can you bring the death of other people to the facts in issue?
General rule- s.5 evidence of the death of Meris, as general rule you cannot bring in the death of
Rosie, Johnny and Johan as it is during a different time.
G. rule in Makin v AG of new south wale case.
However, death of Rosie…can be relevant if you can establish the link between the death of Maris
with them.
How to establish the link?
-Because they all come from the same orphanage
-Same category of children,3-5 yrs old
-All died in a boating incident, claimed to have died by drowning
-All the death happened on eve of new years-indicate that it is isolated case-there could be SFE

Section 14,15
Then choose any one of these tests.
Striking similarity test
On the facts, the death of rosie… can be taken to prove Yoyo killed Meris by applying the striking
similarity test introduced in R v Sims. According to R v Novak, there must be repetition of unique
features.
Application: there is repetition and it is unique as there are aspects of selected dates, selected ages
same orphanage.. therefore, based on this test, the death of Meris is strikingly similar with the
deaths of the other children. The c/stances of death of other children can be relevant and admissible
to show the death of Meris.
Special categorization test/ special purpose test as introduced in Makin
The death of Meris is within the same purpose/design/system with the death of Rosie..
Probative value test as introduced in Boardman v PP
Where the death of rosie.. has high probative value to show that it is indeed a repetition as
compared to prejudicial effect.
Case Azahan

MSIAN SFE
Q6(wolfie,mantha)
FII: whether the wolfie & skari nursing home (defendant) is liable in assault inflicted on Mantha
(plaintiff)?

a)Witness: Casper
testify in court that he saw other nursing assistants assault other resident in the nursing home and
skari nursing home did not take any action.
law: s.15
series of similar occurrences- saw the other nurses but no action taken, the repetition ada assault
but no action taken. The modus operandi of this company, skari nursing home upon issues of
assault did not take any action and this can be seen as series of similar occurrences.
R v sims

b) Can Mantha give evidence on Wolfie’s previous criminal conviction be brought to the court?
s.14 explanation II
previous conviction can be tendered as evidence.

c) Whether the letter of Skari nursing home that contains “without prejudice” can be tendered by
Mentha?
s.23
Skari nursing home have put the word “without prejudice” is an express condition saying that I
want it to be privilege. As general rule, the letter would not be relevant and adm.
In order for you to rely on the express conditions, it depends on whether the content of the letter
actually reflect negotiation for settlement or not. The letter can only be a privilege if the
communication is negotiation for settlement
Application: the content of the letter provided an offer to pay RM 5k, indirectly admitting guilt. Is
it a negotiation for settlement or not? Discuss this.
Dusun Desaru
Day Annika

d) Testimony of Jimmy
-implemented a new and fired wolfie and do background check on the staff
s. 8(2) subsequent conduct-direct evidence
the conduct made by company where there is a change of policy, fired wolfie…as a result of FII.
or
s.18(2)
evidence of Jimmy is admission by the agent which implicate the employer
admission-person in authority
Tutorial 12

a)FII: Plaintiff(Lifomax)
Defendant(Mammoth)
1.Whether Mammoth was in breach of contract of the non payment of the price of the goods
delivered by Lifomax.
2. Supplying not according to specification made by Mammoth empire.

b) whether the letter dated… received by Mammoth written by Lifomax is relevant and
admissible?
s.23
in the form of without prejudice
whether there is any communication on negotiation for settlement?
MBB v Foo see moi
Daya Anika

Letter of apology- is it a negotiation?

The suggestion they make in the letter is it a negotiation?
+reasons and justifications

c) other evidences
Alex detected odd shapes steel bars as evidence when it was delivered by plaintiff.
s.7 SOT- perceive using senses

Edward confirmed that Amsteel Mills did not issue any certificate to steel bars
s.19- not party but creates liability and can be used to rebut
party not related to any of them but he’s making an admission and the admission creates liability
that is breach of contract on the part of the plaintiff. This admission can be used to rebut s.9 that
you failed to comply with our description.

documentary evidences- s. 61, s.3

relevancy of these documents?- s. 9 – to show that they are purchaser and buyers
contract, 3 purchase orders, invoices, certificate
s.7- terms of contract