EVIDENCE ACT 1950 (REVISED

EVIDENCE ACT 1950 (REVISED - 1971)

1 PART I RELEVANCY CHAPTER I PRELIMINARY-1. Short title.

This act may be cited as the Evidence Act 1950 .

2 PART I RELEVANCY CHAPTER I PRELIMINARY-2. Extent.

This Act shall apply to all judicial proceedings in or before any court, but not to affidavits presented to any court or officer nor to proceedings before an arbitrator.

3 PART I RELEVANCY CHAPTER I PRELIMINARY-3. Interpretation.

In this Act, unless the context otherwise requires:-

"computer" means an electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic, storage and display 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 an automated typewriter or typesetter, or a portable hand held calculator or other similar device which is non-programmable or which does not contain any data storage facility;

[Subs. by Act A1432]

"court" means a court established by or under Part IX of the Federal Constitution and includes:-

(a) a Judge;

(b)
4 PART I RELEVANCY CHAPTER I PRELIMINARY-4. Presumption.

(1) Whenever it is provided by this Act that the court may presume a fact, it may either regard the fact as proved unless and until it is disproved, or may call for proof of it.

(2) Whenever it is directed by this Act that the court shall presume a fact, it shall regard the fact as proved unless and until it is disproved.

(3) When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

5 CHAPTER II RELEVANCY OF FACTS General-5. Evidence may be given of facts in issue and relevant facts.

Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation - This section shall not enable any person to give evidence of a fact which he is disentitled to prove by the law relating to civil procedure.

ILLUSTRATIONS

(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.

At A 's trial the following facts are in issue:

A 's beating B with the club;

A 's causing B's death by the beating; and

A 's intention to cause B's death.

(b) A a party to a suits does not comply with a notice given by B the other partly to prod
6 CHAPTER II RELEVANCY OF FACTS General-6. Relevancy of facts forming part of same transaction.

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.

ILLUSTRATIONS

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating or so shortly before or after it as to form part of the transaction is a relevant fact.

(b) A is accused of waging war against the Yang di-Pertuan Agong by taking part in an armed insurrection in which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant as forming part of the general transaction, though A may not have been present at all of them.

(c) A sues B for a libel contained in a
7 CHAPTER II RELEVANCY OF FACTS General-7. Facts which are the occasion, cause or effect of facts in issue.

Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity of their occurrence or transaction, are relevant.

ILLUSTRATIONS

(a) The question is whether A robbed B .

The facts that shortly before the robbery B went to a fair with money in his possession and that he showed or mentioned the fact that he had it to third persons are relevant.

(b) The question is whether A murdered B .

Marks on the ground produced by a struggle at or near the place where the murder was committed are relevant facts.

(c) The question is whether A poisoned B .

The state of B 's health before the symptoms ascribed to poison and habits of
8 CHAPTER II RELEVANCY OF FACTS General-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.

Explanation 1 - The word "conduct" in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2 - When the conduct of any person is relevant any statement made to him or in his presence and heari
9 CHAPTER II RELEVANCY OF FACTS General-9. Facts necessary to explain or introduce relevant facts.

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant so far as they are necessary for that purpose.

ILLUSTRATIONS

(a) The question is whether a given document is the will of A .

The state of A 's property and of his family at the date of the alleged will may be relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to A ; B affirms that the matter alleged to be libellous is true.

The position and relations of the parties at the time whe
10 CHAPTER II RELEVANCY OF FACTS General-10. Things said or done by conspirator in reference to common design.

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of those persons, in reference to their common intention after the time when the intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

ILLUSTRATION

Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Yang di-Pertuan Agong.

The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Malacca for a like object, D persuaded persons to join the conspiracy in Province Wellesley, E published
11 CHAPTER II RELEVANCY OF FACTS General-11. When facts not otherwise relevant become relevant.

Facts not otherwise relevant are relevant:-

(a) if they are inconsistent with any fact in issue or relevant fact;

(b) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

ILLUSTRATIONS

(a) The question is whether A committed a crime at Kuala Lumpur on a certain day.

The fact that on that day A was at Taiping is relevant.

The fact that near the time when the crime was committed A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it is relevant.

(b) The question is whether A committed a crime.

The circumstances are such that the crime must have been commit
12 CHAPTER II RELEVANCY OF FACTS General-12. In suits for damages facts tending to enable court to determine amount are relevant.

In suits in which damages are claimed any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.

13 CHAPTER II RELEVANCY OF FACTS General-13. Facts relevant when right or custom is in question.

Where the question is as to the existence of any right or custom the following facts are relevant:

(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence;

(b) particular instances in which the right or custom was claimed, recognized or exercised or in which its exercise was disputed, asserted or departed from.

ILLUSTRATION

The question is whether A has a right to a fishery. A document conferring the fishery on A 's ancestors, a pledge of the fishery by A 's father, a subsequent grant of the fishery by A 's father irreconcilable with the pledge, particular instances in which A 's father exercised the right, or in which the exercise of the right was stopped by A 's neighbours, are relev
14 CHAPTER II RELEVANCY OF FACTS General-14. Facts showing existence of state of mind or of body or bodily feeling.

Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

Explanation 1 A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists not generally but in reference to the particular matter in question.

Explanation 2 But where upon the trial of a person accused of an offence the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of that person shall also be relevant fact.

ILLUSTRATIONS

(a) A is accused of receiving stolen
15 CHAPTER II RELEVANCY OF FACTS General-15. Facts bearing on question whether act was accidental or intentional.

When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

ILLUSTRATIONS

(a) A is accused of burning down his house in order to obtain money for which it is insured.

The facts that A lived in several houses successively, each of which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant as tending to show that the fire was not accidental.

(b) A is employed to receive money from the debtors of B . It is A 's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occas
16 CHAPTER II RELEVANCY OF FACTS General-16. Existence of course of business when relevant.

When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

ILLUSTRATIONS

(a) The question is whether a particular letter was despatched.

The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant.

(b) The question is whether a particular letter reached A .

The facts that it was posted in due course and was not returned through the Dead Letter Office are relevant.

17 Admissions and Confessions-17. Admission and confession defined.

(1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

(2) 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.

(3) Subsection (2) shall have no application in Sarawak.

SAMBUNG SINI

18 Admissions and Confessions-18. Admission by party to proceeding, his agent or person interested.

(1) Statements made by a party to the proceeding or by an agent to any such party whom the court regards under the circumstances of the case as expressly or impliedly authorized by him to make them are admissions.

(2) Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made while the party making them held that character.

(3) Statements made by:-

(a) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested; or

(b) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,

are admissions if they are made during the continuance of the interest of the persons making the statements.

19 Admissions and Confessions-19. Admissions by persons whose position must be proved as against party to suit.

Statements made by persons whose position or liability it is necessary to prove as against any party to the suit are admissions if the statements would be relevant as against those persons in relation to the position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies that position or is subject to that liability.

ILLUSTRATION

A undertakes to collect rents for B .

B sues A for not collecting rent due from C. to B.

A denies that rent was due from C to B .

A statement by C that he owed B rent is an admission and is a relevant fact, as against A if A denies that C did owe rent to B .

20 Admissions and Confessions-20. Admissions by persons expressly referred to by party to suit.

Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

ILLUSTRATION

The question is whether a horse sold by A to B is sound.

A says to B : "Go and ask C ; C knows all about it." C 's statement is an admission.

21 Admissions and Confessions-21. Proof of admissions against persons making them and by or on their behalf.

Admissions are relevant and may be proved as against the person who makes them or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest except in the following cases:

(a) an admission may be proved by or on behalf of the person making it when it is of a nature that, if the person making it were dead, it would be relevant as between third persons under section 32;

(b) an admission may be proved by or on behalf of the person making it when it consists of a statement of the existence of any state of mind or body relevant or in issue, made at or about the time when that state of mind or body existed and is accompanied by conduct rendering its falsehood improbable;

(c) an admission may be proved by or on behalf of the person making it if it is relevant otherwise than as an admission.

22 Admissions and Confessions-22. When oral admissions as to contents of documents are relevant.

Oral admissions as to the contents of a document are not relevant unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of the document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

23 Admissions and Confessions-23. Admissions in civil cases when relevant.

In civil cases no admission is relevant if it is made, either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.

Explanation - Nothing in this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under section 126.

24 Admissions and Confessions-24. Confession caused by inducement, threat or promise when irrelevant in criminal proceeding.

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.

25 Admissions and Confessions-25. Confession to police officer below the rank of inspector not to be proved.

(1) Subject to any express provision contained in any written law, no confession made to a police officer who is below the rank of Inspector by a person accused of any offence shall be proved as against that person.

(2) (Repealed).

26 Admissions and Confessions-26. Confession by accused while in custody of police not to be proved against him.

(1) Subject to any express provision contained in any written law, no confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Sessions Court Judge or Magistrate, shall be proved as against that person.

(2) (Repealed) .

27 Admissions and Confessions-27. How much of information received from accused may be proved.

(1) When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.

(2) (Repealed) .

28 Admissions and Confessions-28. Confession made after removal of impression caused by inducement, threat or promise relevant.

(1) If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is relevant.

(2) (Repealed) .

29 Admissions and Confessions-29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.

(1) If such a confession as is referred to in section 24 is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make a confession and that evidence of it might be given against him.

(2) (Repealed) .

30 Admissions and Confessions-30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.

(1) When more persons than one are being tried jointly for the same offence, and a confession made by one of those persons affecting himself and some other of those persons is proved, the court may take into consideration the confession as against the other person as well as against the person who makes the confession.

(2) (Repealed) .

Explanation - "offence" as used in this section includes the abetment of or attempt to commit the offence.

ILLUSTRATIONS

(a) A and B are jointly tried for the murder of C . It is proved that A said: " B and I murdered C " The court may consider the effect of this confession as against B .

(b) A is on his trial for the murder of C . There is evidence to show that C was murdered by A and B and that B<
Here is a legal commentary on Section 30 of the Evidence Act 1950 (Revised - 1971), presented in Markdown format.
Legal Commentary on Section 30 of the Evidence Act 1950
Introduction
Section 30 is a provision concerning the admissibility and effect of confessions in joint trials. It addresses a unique situation where the confession of one accused person can be considered by the court not only against the maker but also against other individuals who are being jointly tried for the same offence. This section balances the probative value of a confession against the inherent risks of relying on the statement of one co-accused to implicate another.
What Section Says
While the exact wording of Section 30 of the Malaysian Evidence Act 1950 is not explicitly stated in the sources, the sources consistently link it to the equivalent provision in the Indian Evidence Act, 1872. Section 30 of the Indian Evidence Act states:
"When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession." [6, 14, 15]
This provision has been adopted by Malaysia's Evidence Act 1950 and allows the confession of an accused to be admitted against a co-accused. [7]
Essential Ingredients
For Section 30 to apply, the following conditions must be met:
Joint Trial: The person making the confession and the person against whom it is to be used must be undergoing a joint trial. [6, 14, 15]
Same Offence: They must be tried for the same offence. It is not sufficient that they are merely tried together for different offences arising from the same transaction. [6, 14, 15]
A Confession: The statement must be a "confession," meaning it must admit guilt or substantially all the facts constituting the offence. It must affect the maker himself and also implicate the co-accused. [6, 14, 15]
Proved Confession: The confession must be "proved," typically by the prosecution in the usual manner, establishing that it was made voluntarily.
Scope of Section
The scope of Section 30 is limited and specific. It does not make the confession of a co-accused substantive evidence. Instead, it provides the court with the discretion to "take into consideration" the confession when evaluating the evidence against the other accused. It serves as a piece of corroborative or supporting evidence but cannot be the sole basis for a conviction. The 2012 revision of the Act is noted, but the core principle of the section remains focused on this narrow exception to the rule against hearsay. [3, 13]
Punishment for Section
Section 30 itself is a rule of evidence and does not prescribe any punishment. The punishment is determined by the substantive offence for which the accused individuals are being tried (e.g., under the Penal Code). The section merely allows the court to use the confession as a factor in deciding guilt or innocence.
Legal Comments
Joint Trial Requirement - The application of Section 30 is strictly contingent on a joint trial for the same offence; the provision has no application if the accused are tried separately. [15]
Discretionary Power - The court "may" take the confession into consideration, granting it judicial discretion. It is not obligatory to use the confession against the co-accused. [6, 14]
Not Substantive Evidence - The confession of a co-accused is not substantive evidence. It can only be used to lend assurance to other evidence and cannot form the sole basis for conviction. [7]
Indian Act Parallel - Section 30 of the Evidence Act 1950 is directly modeled on and conceptually identical to Section 30 of the Indian Evidence Act 1872. [6, 11, 14]
Scope of 'Affecting' - For the section to apply, the confession must affect the person who made it and also some other person being jointly tried. [6, 14]
Legislative Purpose - The section is designed for cases where a confessing accused implicates themselves and others, but the court must use this evidence cautiously. [7]
Whole Act Application - This section operates within the broader framework of the Act, which applies to all judicial proceedings in Malaysia. [1, 11]
Context of Admissions - Section 30 must be read in the context of the law on admissions, where generally an admission is only relevant against its maker. This section creates an exception for confessions in joint trials. [9]
Requirement of 'Proved' Fact - The court must first be satisfied that the confession is proved, meaning it has been properly introduced into evidence, often requiring proof of voluntariness. [4]
Corroborative Value Only - The established legal position, supported by case law, is that a co-accused's confession has low evidentiary value and cannot be the basis for a conviction without independent corroboration. [7]
Protection for Co-Accused - The provision implicitly safeguards the co-accused by ensuring the confession is merely a "consideration" and not conclusive proof, preventing a conviction based on an unreliable or retracted statement. [7]
Uniform Law Source - The Evidence Act 1950 is stated to be a complete code for the law of evidence in Malaysia, with Section 30 being a specific rule within that code. [18]
Definition of Confession - The term "confession" is used in its strict sense, meaning an admission of guilt, not a mere incriminating statement. This is a crucial distinction for the section's application. [7]
Relevance to Judicial Proceedings - The section is a rule of relevance for judicial proceedings and has no bearing on non-judicial inquiries or affidavit evidence. [1]
Modern Interpretation - There is a noted shift towards a more restrictive interpretation of Section 30, with courts requiring stricter proof of the confession's voluntariness and reliability before it can be used against a co-accused. [7]
Review of 1971 Revision - The 1971 revision codified the existing case law on the section, confirming the cautious approach Malaysian courts must take when considering a co-accused's confession. [5, 10]
31 Admissions and Confessions-31. Admissions not conclusive proof but may estop.

Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.

Legal Commentary on Section 31 of the Evidence Act 1950 (Revised 1971)
Introduction
Section 31 of the Evidence Act 1950 (Revised 1971) addresses the legal significance of admissions in judicial proceedings. It clarifies the evidentiary weight and limitations of admissions made by parties or witnesses, establishing their role within the broader framework of proof.
What does Section Say
Section 31 states that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of the Act. It emphasizes that admissions can be used as evidence but do not automatically prove the fact beyond doubt.
Essential Ingredients
The statement or acknowledgment must be an admission made by a party or person involved.
The admission must relate to a relevant fact in the case.
The admission is not conclusive proof but may be used as evidence.
The section allows admissions to operate as estoppels under certain circumstances.
Scope of Section
Applies to all judicial proceedings before any court.
Encompasses oral or documentary admissions.
Does not include affidavits presented to courts or officers, as per the broader applicability notes.
Recognizes admissions as a probative piece of evidence but not as conclusive proof.
Punishment for Section
The section itself does not prescribe any punishment; it delineates the evidentiary value of admissions.
Misuse or false admissions can lead to penalties under other provisions of the law, but Section 31 primarily defines evidentiary weight.
Legal Comments
"Admissions" - Recognized as a significant but non-conclusive form of evidence, which can influence the outcome but does not amount to proof beyond doubt [Source: "Evidence Act 1950 (Revised 1971)"].
"Not conclusive proof" - Emphasizes that admissions are rebuttable and subject to further proof, aligning with principles of fairness and justice [Source: "Evidence Act 1950 (Revised 1971)"].
"Estoppel" - Admissions may operate as estoppels under the Act, preventing parties from contradicting their previous statements in certain circumstances [Source: "Evidence Act 1950 (Revised 1971)"].
"Relevance" - The admission must relate to relevant facts to be admissible and probative [Source: "Law of Evidence - Chapter 2"].
"Scope" - The section applies broadly to all judicial proceedings, reinforcing the importance of admissions in civil and criminal cases [Source: "Evidence Act 1950 (Revised 1971)"].
"Oral and Documentary" - Both forms of admissions are recognized, with the evidentiary weight varying based on context [Source: "Evidence Act 1950 (Revised 1971)"].
"Limitations" - Affidavits and formal statements are excluded from the scope, indicating a distinction between informal admissions and formal evidence [Source: "Evidence Act 1950 (Revised 1971)"].
"Legal Effect" - Admissions can significantly influence case outcomes but require corroboration or additional proof for conclusive judgment [Source: "Indian Evidence Act, 1872"].
"Estoppels" as per Section 31 - The principle that admissions can operate as estoppels aligns with the doctrine preventing inconsistent assertions [Source: "Evidence Act 1950 (Revised 1971)"].
"Implication" - The section underscores the importance of truthful and consistent admissions, as they can be used to establish facts without the need for further evidence [Source: "Evidence Act 1950 (Revised 1971)"].
"Legal Doctrine" - Reflects the broader legal doctrine that admissions are a valuable but not definitive proof, balancing probative value with fairness [Source: "Law of Evidence"].
"Judicial Discretion" - Courts have discretion to determine the weight and admissibility of admissions, considering the circumstances of each case [Source: "Evidence Act 1950 (Revised 1971)"].
"Rebuttal" - The non-conclusive nature allows the opposing party to rebut or challenge admissions with other evidence [Source: "Indian Evidence Act, 1872"].
"Policy" - The provision promotes honesty and accountability in statements made during proceedings, while safeguarding against unfair conviction based solely on admissions [Source: "Evidence Act 1950 (Revised 1971)"].
"Comparison" - Unlike conclusive proof, admissions serve as a starting point for proof and require corroboration for certainty [Source: "Evidence Act 1950 (Revised 1971)"].
"Legal Principle" - Reinforces the principle that no fact is proved solely by admission unless supported by other evidence, maintaining the integrity of judicial process [Source: "Law of Evidence"].
"Implication for Practice" - Lawyers should carefully evaluate admissions, understanding their evidentiary limitations and strategic use in cases [Source: "Law of Evidence"].
This concise legal commentary synthesizes the key aspects of Section 31 of the Evidence Act 1950 (Revised 1971), highlighting its significance within the broader legal framework of evidence law.
31A Admissions and Confessions-31A. [Deleted by Act A978].

[Deleted by Act A978]

32 Statements by Persons Who Cannot be Called as Witnesses-32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant.

(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such a statement is relevant whether the person who made it was or was not at the time when it was made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

(b) when the statement was made by any such person in the ordinary course of business, a
32A Statements by Persons Who Cannot be Called as Witnesses-32A. Admissibility of evidence given under section 265A of the Criminal Procedure Code.

Notwithstanding any other provision in this Act, evidence taken in accordance with section 265A of the Criminal Procedure Code shall be admissible in any criminal proceedings.

[Ins. by Act A1527]

33 Statements by Persons Who Cannot be Called as Witnesses-33. Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated.

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable:

Provided that:-

(a) the proceeding was between the same parties or their representatives in interest;

(b) the adverse party in the first proceeding had the right and opportunity to cross-examine;

(c) the questions in issue were substantially the same in the first as in the second proceeding.

Explanation - A
34 Statements Made Under Special Circumstances-34. Entries in books of account when relevant.

Entries in books of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but the entries shall not alone be sufficient evidence to charge any person with liability.

ILLUSTRATION

A sues B for RM1,000 and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient without other evidence to prove the debt.

35 Statements Made Under Special Circumstances-35. Relevancy of entry in public record made in performance of duty.

An entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which the book, register or record is kept, is itself a relevant fact.

36 Statements Made Under Special Circumstances-36. Relevancy of statements in maps, charts and plans.

Statements of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Government of Malaysia or of any State as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

37 Statements Made Under Special Circumstances-37. Relevancy of statement as to fact of public nature contained in certain legislation or notifications.

When the court has to form an opinion as to the existence of any fact of a public nature any statement of it made in a recital contained in:-

(a) any legislation enacted by Parliament or by the legislature of any part of the Commonwealth;

(b) any legislation enacted by the legislature of any State; or

(c) any printed paper purporting to be:-

(i) the Gazette printed under the authority of the Government of Malaysia or of any State;

(ii) the London Gazette ; or

(iii) the Gazette of any other part of the Commonwealth including, where any part thereof is both under a central Government and a local Government, any such local Government,

is a relevant fact.

38 Statements Made Under Special Circumstances-38. Relevancy of statements as to any law contained in law books.

When the court has to form an opinion as to a law of any country, any statement of that law contained in a book purporting to be printed or published under the authority of the Government of that country, and to contain any such law, and any report of a ruling of the courts of that country contained in a book purporting to be a report of such rulings, is relevant.

39 How Much of a Statement to be Proved-39. What evidence to be given when statement forms part of a conversation, document, book or series of letters or papers.

When any statement of which evidence is given forms part of a longer statement or of a conversation, or part of an isolated document or is contained in a document which forms part of a book or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, book or series of letters or papers as the court considers necessary in that particular case to the full understanding of the nature and effect of the statement and of the circumstances under which it was made.

40 Judgments of Courts When Relevant-40. Previous judgments relevant to bar a second suit or trial.

The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether the court ought to take cognizance of the suit or to hold the trial.

41 Judgments of Courts When Relevant-41. Relevancy of certain judgments in probate, etc., jurisdiction.

(1) A final judgment, order or decree of a court, in the exercise of probate, matrimonial, admiralty or bankruptcy jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character or the title of any such person to any such thing is relevant.

(2) Such judgment, order or decree is conclusive proof:-

(a) that any legal character which it confers accrued at the time when the judgment, order or decree came into operation;

(b) that any legal character to which it declares any such person to be entitled accrued to that person at the time when the judgment, order or decree declares it to have accrued to that person;

(c) that any legal character which it t
42 Judgments of Courts When Relevant-42. Relevancy and effect of judgments, orders or decrees other than those mentioned in section 41.

Judgments, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the inquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

ILLUSTRATIONS

A sues B for trespass on his land. B alleges the existence of a public right of way over the land which A denies.

The existence of a decree in favour of the defendant in a suit by A against C for a trespass on the same land in which C alleged the existence of the same right of way is relevant, but it is not conclusive proof that the right of way exists.

43 Judgments of Courts When Relevant-43. Judgments, etc., other than those mentioned in sections 40 to 42 when relevant.

Judgments, orders or decrees other than those mentioned in sections 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provision of this Act.

ILLUSTRATIONS

(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case or in neither.

A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C .

(b) A prosecutes B under section 498 of the Penal Code for enticing away C , A 's wife.

B. denies that C is A 's wife, bu
44 Judgments of Courts When Relevant-44. Fraud or collusion in obtaining judgment or incompetency of court may be proved.

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a court not competent to deliver it or was obtained by fraud or collusion.

45 Opinions of Third Persons When Relevant-45. Opinions of experts.

(1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

(2) Such persons are called experts.

ILLUSTRATIONS

(a) The question is whether the death of A was caused by poison.

The opinions of experts as to the symptoms produced by the poison by which A. is supposed to have died are relevant.

(b) The question is whether A , at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.

The opinions of experts upon
46 Opinions of Third Persons When Relevant-46. Facts bearing upon opinions of experts.

Facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant.

ILLUSTRATIONS

(a) The question is whether A was poisoned by a certain poison.

The fact that other persons who were poisoned by that poison exhibited certain symptoms, which experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is whether an obstruction to a harbour is caused by a certain sea-wall.

The fact that other harbours similarly situated in other respects but where there were no such sea-walls began to be obstructed at about the same time is relevant.

47 Opinions of Third Persons When Relevant-47. Opinion as to handwriting when relevant.

When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to have been written or signed, that it was or was not written or signed by that person, is a relevant fact.

Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

ILLUSTRATIONS

The question is whether a given letter is in the handwriting of A., a merchant in London.

B is a merchant in Kuala Lumpur, who has written l
48 Opinions of Third Persons When Relevant-48. Opinion as to existence of right or custom when relevant.

When the court has to form an opinion as to the existence of any general custom or right, the opinion as to the existence of such custom or right of persons who would be likely to know of its existence, if it existed, are relevant.

Explanation - The expression "general customs or right" includes customs or rights common to any considerable class of persons.

ILLUSTRATION

The right of the inhabitants of a particular village to use the water of a particular well is a general right within the meaning of this section.

49 Opinions of Third Persons When Relevant-49. Opinion as to usages, tenets, etc. when relevant.

When the court has to form an opinion as to:-

(a) the usages and tenets of any body of men or family;

(b) the constitution and government of any religious or charitable foundation; or

(c) the meaning of words or terms used in particular districts or by particular classes of people,

the opinions of persons having special means of knowledge thereon are relevant facts.

50 Opinions of Third Persons When Relevant-50. Opinion on relationship when relevant.

(1) When the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who as a member of the family or otherwise has special means of knowledge on the subject is a relevant fact.

(2) Such opinion shall not be sufficient to prove a marriage in prosecutions under section 494, 495 or 498 of the Penal Code [Act 574] .

ILLUSTRATIONS

(a) The question is whether A and B were married.

The fact that they were usually received and treated by their friends as husband and wife is relevant.

(b) The question is whether A was a legitimate son of B .

The fact that A was always treated as such by members of the family is relevant.

51 Opinions of Third Persons When Relevant-51. Grounds of opinion when relevant.

Whenever the opinion of any living person is relevant, the grounds on which his opinion is based are also relevant.

ILLUSTRATION

An expert may give an account of experiments performed by him for the purpose of forming his opinion.

52 Character When Relevant-52. In civil cases character to prove conduct imputed irrelevant.

In civil cases the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is irrelevant, except so far as his character appears from facts otherwise relevant.

53 Character When Relevant-53. In criminal cases previous good character relevant.

In criminal proceedings the fact that the person accused is of a good character is relevant.

54 Character When Relevant-54. Previous bad character not relevant except in reply.

(1) In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.

(2) A person charged and called as a witness shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of or been charged with, any offence other than that wherewith he is then charged, or is of bad character, unless:-

(a) the proof that he has committed or been convicted of that other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged;

(b) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve im
55 Character When Relevant-55. Character as affecting damages.

In civil cases the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant.

Explanation - In sections 52, 53, 54 and 55 the word "character" includes both reputation and disposition; but, except as provided in section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition is shown.

56 PART II PROOF CHAPTER III FACTS WHICH NEED NOT BE PROVED-56. Fact judicially noticeable need not be proved.

No fact of which the court will take judicial notice need be proved.

57 PART II PROOF CHAPTER III FACTS WHICH NEED NOT BE PROVED-57. Facts of which court must take judicial notice.

(1) The court shall take judicial notice of the following facts:

(a) all laws or regulations having the force of law now or heretofore in force or hereafter to be in force in Malaysia or any part thereof;

(b) all public Acts passed or hereafter to be passed by the Parliament of the United Kingdom, and all local and personal Acts directed by it to be judicially noticed;

(c) articles of war for the armed forces or any visiting force lawfully present in Malaysia;

(d) the course of proceedings in Parliament, in the federal legislatures that existed in Malaysia before Parliament was constituted, in the legislature of any State in Malaysia and in the Parliament of the United Kingdom;

(e) the accession of the Yang di-Pertuan Agong and the accession of the Ruler of any State in Malaysia and the appointment of a Yang di Pertua Negeri;

(f) the acces
58 PART II PROOF CHAPTER III FACTS WHICH NEED NOT BE PROVED-58. Facts admitted need not be proved.

(1) No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

(2) This section has no application to criminal proceedings.

59 CHAPTER IV ORAL EVIDENCE-59. Proof of facts by oral evidence.

All facts, except the contents of documents, may be proved by oral evidence.

60 CHAPTER IV ORAL EVIDENCE-60. Oral evidence must be direct.

(1) Oral evidence shall in all cases whatever be direct, that is to say:-

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

(c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

(2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of the treatise if the author is dead or cannot be found or has bec
61 CHAPTER V DOCUMENTARY EVIDENCE-61. Proof of contents of documents.

The contents of documents may be proved either by primary or by secondary evidence.

62 CHAPTER V DOCUMENTARY EVIDENCE-62. Primary evidence.

Primary evidence means the document itself produced for the inspection of the court.

Explanation 1 - Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2 - Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original they are not primary evidence of the contents of the original.

Explanation 3 - A document produced by a computer is primary evidence.

ILLUSTRATION

A person is shown to have been in possession of a number of placards, all
Legal Commentary on Section 62 of the Evidence Act 1950 (Revised 1971)
Introduction
Section 62 of the Evidence Act 1950 (Revised 1971) primarily deals with the concept of primary evidence, emphasizing the importance of the original document in proving its contents in legal proceedings. It plays a crucial role in the rules governing documentary evidence and the admissibility of original documents in court.
What does Section 62 Say
Section 62 states that primary evidence means the document itself produced for the inspection of the court. It underscores that, generally, the original document is required to prove the contents unless exceptions apply. The section also includes explanations regarding documents executed in parts and the presumption of genuineness of certain documents.
Essential Ingredients
The document itself must be produced for the court's inspection.
The document must be the original, not a copy, unless an exception applies.
In cases where a document is executed in parts, each part is considered in relation to the whole.
The section presumes the genuineness of documents such as certificates or certified copies, provided they are lawfully issued and purported to be authentic.
Scope of Section
Section 62 applies to all judicial proceedings where documentary evidence is involved. It emphasizes the importance of the original document in establishing facts and provides guidelines on when copies may be admissible. The section also applies to various types of documents, including public and private documents, with specific rules for proving their contents.
Punishment for Section
Section 62 itself does not prescribe any punishment. Instead, it establishes procedural rules for evidence admissibility. The consequences of failing to adhere to its provisions may include the rejection of secondary evidence or adverse inferences, but specific penalties are not outlined within this section.
Legal Comments
"Primary evidence" - Defined as the original document produced for court inspection, forming the best evidence rule. -
"Best evidence rule" - Section 62 enforces that original documents are required unless exceptions apply, aligning with the principle of the best evidence rule. - [Chapter V Documentary Evidence]
"Genuineness presumption" - Documents such as certificates or certified copies are presumed genuine if lawfully issued, simplifying proof processes. - [Evidence Act - Singapore Statutes Online]
"Execution in parts" - When a document is executed in several parts, each part is considered in relation to the whole, affecting admissibility. -
"Admissibility of copies" - Copies of documents can be admitted as secondary evidence unless the original is available, subject to statutory exceptions. - [Evidence Act 1950- Part 1]
"Application scope" - Section 62 applies across all judicial proceedings involving documentary evidence, ensuring consistency in proof standards. - [Low & Partners]
"Presumption of authenticity" - Certain documents, like official certificates, are presumed genuine, reducing the burden of proof on the party producing them. - [Evidence Act 1950 (Revised 1971)]
"Relevance of original documents" - The section underscores that the original document is the most reliable form of evidence for proving its contents. - [Evidence Act 1950 (Revised 1971)]
"Exceptions to the rule" - Secondary evidence may be admissible if the original is lost, destroyed, or otherwise unavailable, with proper proof. - [Evidence Act 1950- Part 1]
"No specific punishment" - Section 62 does not specify penalties; non-compliance may lead to rejection of secondary evidence or adverse inferences. -
"Legal importance" - The section reinforces the principle that the integrity of documentary evidence is paramount in judicial proceedings. - [Evidence Act 1950 (Revised 1971)]
"Relation to other sections" - Section 62 works in tandem with sections 76-78, which detail the proof of public documents and certified copies. - [EVIDENCE 2 | PPT]
"Implication for litigants" - Parties must produce the original document to prove its contents unless an exception applies, emphasizing the importance of document preservation. -
"Impact on secondary evidence" - When original evidence is unavailable, secondary evidence such as copies must meet strict criteria for admissibility. - [Evidence Act 1950 (Revised 1971)]
"Relevance to digital records" - Modern adaptations, including digital documents, are increasingly recognized under the framework of primary evidence, aligning with recent amendments. - [THE ADMISSIBILITY OF DIGITAL DOCUMENT AS EVIDENCE]
"Procedural significance" - Section 62 guides courts and parties on the procedural requirements for establishing the authenticity and contents of documents. - [Evidence Act 1950- Part 1]
"Legal certainty" - The requirement for original evidence ensures legal certainty and reliability in judicial fact-finding processes. - [CommonLII]
"Limitations" - The section does not cover affidavits or documents presented solely for inspection, which are governed by other rules. - [Evidence Act 1950- Part 1]
Note: The analysis is based on the available sources and interpretations of Section 62, emphasizing its role in maintaining the integrity and reliability of documentary evidence in Malaysian law as well as its general principles applicable in similar jurisdictions.
63 CHAPTER V DOCUMENTARY EVIDENCE-63. Secondary evidence.

Secondary evidence includes:-

(a) certified copies given under the provisions hereinafter contained;

(b) copies made from the original by mechanical processes, which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(c) copies made from or compared with the original;

(d) counterparts of documents as against the parties who did not execute them;

(e) oral accounts of the contents of a document given by some person who has himself seen or heard it or perceived it by whatever means.

ILLUSTRATIONS

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying
64 CHAPTER V DOCUMENTARY EVIDENCE-64. Proof of documents by primary evidence.

Documents must be proved by primary evidence except in the cases hereinafter mentioned.

65 CHAPTER V DOCUMENTARY EVIDENCE-65. Cases in which secondary evidence relating to documents may be given.

(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

(a) when the original is shown or appears to be in the possession or power:-

(i) of the person against whom the document is sought to be proved;

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it,

and when after the notice mentioned in section 66 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default o
66 CHAPTER V DOCUMENTARY EVIDENCE-66. Rules as to notice to produce.

Secondary evidence of the contents of the documents referred to in section 65(1) (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the court considers reasonable under the circumstances of the case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases or in any other case in which the court thinks fit to dispense with it:

(a) when the document to be proved is itself a notice;

(b) when from the nature of the case the adverse party must know that he will be required to produce it;

(c) when it appears or is proved that the adverse party has obtained possession of the
67 CHAPTER V DOCUMENTARY EVIDENCE-67. Proof of signature and handwriting of person alleged to have signed or written document produced.

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting shall be proved to be in his handwriting.

68 CHAPTER V DOCUMENTARY EVIDENCE-68. Proof of execution of document required by law to be attested.

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence.

69 CHAPTER V DOCUMENTARY EVIDENCE-69. Proof where no attesting witness found.

If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

70 CHAPTER V DOCUMENTARY EVIDENCE-70. Admission of execution by party to attested document.

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it is a document required by law to be attested.

71 CHAPTER V DOCUMENTARY EVIDENCE-71. Proof when attesting witness denies the execution.

If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

72 CHAPTER V DOCUMENTARY EVIDENCE-72. Proof of document not required by law to be attested.

An attested document not required by law to be attested may be proved as if it was unattested.

73 CHAPTER V DOCUMENTARY EVIDENCE-73. Comparison of signature, writing or seal with others admitted or proved.

(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by that person.

(3) This section applies also, with any necessary modifications, to finger impressions.

73A CHAPTER V DOCUMENTARY EVIDENCE-73A. Admissibility of documentary evidence in civil cases etc.

(1) Notwithstanding anything contained in this Chapter, in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:

(a) if the maker of the statement either:-

(i) had personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have had, personal knowledge of those matters; and

(b) if the maker of the statement
73AA CHAPTER V DOCUMENTARY EVIDENCE-73AA. Admissibility of fact in criminal cases, etc.

Notwithstanding anything contained in this Chapter and subject to the Criminal Procedure Code [Act 593] , in any criminal proceedings, no fact whether oral or written need be proved which the parties to the proceedings have agreed to admit at the trial or which the parties to the proceedings have agreed to admit before the trial in writing.

[Ins. by Act A1424]

74 Public Documents-74. Public documents.

The following documents are public documents:

(a) documents forming the acts or records of the acts of:-

(i) the sovereign authority;

(ii) official bodies and tribunals; and

(iii) public officers, legislative, judicial and executive, whether Federal or State or of any other part of the Commonwealth or of a foreign country; and

(b) public record, kept in Malaysia of private documents.

Legal Commentary on Section 74 of the Evidence Act 1950 (Revised 1971)
Introduction
Section 74 of the Evidence Act 1950 (Revised 1971) delineates the classification and admissibility of public documents within the legal framework. It establishes which documents are considered public and sets out the procedural requirements for their inspection and certification, playing a crucial role in evidentiary proceedings.
What does Section 74 Say
Section 74 specifies that certain documents are deemed public documents, including acts or records of acts by sovereign authorities, official bodies, tribunals, and public officers, whether domestic or foreign. It also includes public records kept in Malaysia of private documents. These documents are recognized as authentic and are subject to inspection rights under the law.
Essential Ingredients
The document must be a record or act of a sovereign authority, official body, tribunal, or public officer.
The document must be a public record or a record of private documents kept publicly.
The document must be in the possession or custody of a public officer.
The document must be accessible for inspection upon demand, with the payment of legal fees.
Certification of copies must be made by the public officer, attesting to their authenticity.
Scope of Section 74
It broadly covers documents created by or relating to sovereign, legislative, judicial, or executive authorities.
It includes records of acts performed by these authorities, whether within Malaysia or abroad.
It extends to public records of private documents kept in Malaysia.
The section applies to documents that are intended to be public records, facilitating their use as evidence in legal proceedings.
Punishment for Section
The section itself does not prescribe specific punishments; however, failure to comply with the duty to produce or certify copies may lead to contempt of court or other legal consequences.
Misrepresentation or falsification of certification can attract criminal penalties under relevant laws.
Legal Comments
Public Definition - Section 74 categorizes documents as public if they are acts or records of sovereign or official bodies, establishing their presumed authenticity [Source: "EVIDENCE ACT 1950 (REVISED - 1971)"].
Right to Inspection - The law grants any person with a legal interest the right to inspect public documents, emphasizing the importance of access for fair proceedings [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
Certified Copies - Section 76 provides that public officers must supply certified copies upon demand, which are admissible as evidence under Section 77 [Source: "EVIDENCE ACT 1950 (REVISED - 1971)"].
Admissibility of Certified Copies - Certified copies made in accordance with Section 76 are recognized as proof of the contents of the original documents [Source: "EVIDENCE ACT 1950 (REVISED - 1971)"].
Police Reports as Public Documents - Police reports, such as first information reports, are considered public documents, and individuals with an interest have a right to inspect and obtain copies [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
Interest-Based Inspection Rights - The right to inspect is not solely statutory but also based on the interest of the applicant, especially in criminal proceedings [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
Legislative Intent - The introduction of specific provisions like Section 108A of the Criminal Procedure Code indicates legislative recognition that police reports are not always public documents but may be accessible under certain interests [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
Common Law Rights - The courts recognize that, under common law, interested parties such as accused persons have a right to inspect relevant police reports, even if not explicitly stated in the statute [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
Relevance in Criminal Proceedings - Police reports and first information reports are admissible in evidence and are crucial for the defense or prosecution, reinforcing the importance of inspection rights [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
Public Interest Considerations - The law balances the right to access with public interest concerns, such as preventing intimidation or reprisals, which may justify refusal to disclose certain reports [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
Legal Procedure for Inspection - The law mandates that inspection and copying be done through official channels, with certification, ensuring the integrity and authenticity of documents used in court [Source: "EVIDENCE ACT 1950 (REVISED - 1971)"].
Admissibility of Evidence - Certified copies of public documents, including police reports, are admissible as evidence, streamlining the process of proving facts in court [Source: "EVIDENCE ACT 1950 (REVISED - 1971)"].
Interest of Parties - The courts have consistently held that the right to inspect is linked to the applicant’s interest, especially when the document is relevant to their legal rights or obligations [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
Legislative Evolution - Amendments like Section 108A of the Criminal Procedure Code reflect evolving legislative attitudes towards police reports and their evidentiary value [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"]].
Implication for Legal Practice - Legal practitioners should assert their clients' rights to inspect public documents, including police reports, to ensure fair trial procedures [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
Limitations and Exceptions - The law recognizes that certain reports may be withheld if disclosure could harm public interest, emphasizing the need for judicial discretion [Source: "ANTHONY GOMEZ vs KETUA POLIS DAERAH KUANTAN"].
In summary, Section 74 of the Evidence Act 1950 (Revised 1971) provides a broad framework for the classification of public documents, emphasizing the rights of inspection and certification, which are vital for the integrity of evidence in legal proceedings. The law balances transparency with public interest, ensuring that relevant documents like police reports are accessible to interested parties while safeguarding against misuse.
75 Public Documents-75. Private documents.

All documents other than those mentioned in section 74 are private.

76 Public Documents-76. Certified copies of public documents.

Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate, written at the foot of the copy, that it is a true copy of the document or part thereof, as the case may be, and the certificate shall be dated and subscribed by the officer with his name and his official title, and shall be sealed whenever the officer is authorized by law to make use of a seal, and the copies so certified shall be called certified copies.

Explanation - Any officer who by the ordinary course of official duty is authorized to deliver the copies shall be deemed to have the custody of the documents within the meaning of this section.

77 Public Documents-77. Proof of documents by production of certified copies.

Copies certified in the manner set out in section 76 may be produced in proof of the contents of the public documents of which they purport to be copies.

78 Public Documents-78. Proof of certain official documents.

(1) The following public documents may be proved as follows:

(a) acts, orders or notifications of the Government of Malaysia or of any State in any of its departments:-

(i) by the records of the departments certified by the heads of those departments respectively;

(ii) by a Minister in the case of the Government of Malaysia, and by the Chief Minister, a State Minister (if any), the State Secretary or the Permanent Secretary to the Chief Minister in the case of a State Government; or

(iii) by any document purporting to be printed by the authority of the Government concerned;

(b) the proceedings of Parliament or of any of the federal legislatures that existed in Malaysia before Parliament was constituted or of the legislature of any State:-

by the minutes of the body or by the published Acts of Parliament, Ordinances, Enactments or abstracts or by co
78A Public Documents-78A. Proof of public documents produced by computers.

Notwithstanding anything contained in sections 77 and 78, the provisions of sections 90A, 90B and 90C shall apply to a public document.

79 Presumptions as to Documents-79. Presumption as to genuineness of certified copies.

(1) The court shall presume to be genuine every document purporting to be a certificate, certified copy or other document which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer in Malaysia who is duly authorized thereto:

Provided that the document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

(2) The court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in the document.

80 Presumptions as to Documents-80. Presumption as to documents produced as record of evidence.

Whenever any document is produced before any court purporting to be a record or memorandum of the evidence or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law and purporting to be signed by any Judge, Sessions Court Judge or Magistrate or by any such officer as aforesaid, the court shall presume that:-

(a) the document is genuine;

(b) any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true; and

(c) such evidence, statement or confession was duly taken.

81 Presumptions as to Documents-81. Presumption as to Gazettes, newspapers, etc.

The court shall presume the genuineness of every document purporting to be the Gazette, a State Gazette or the London Gazette, or the Government Gazette of any part of the Commonwealth, or to be the Gazette issued by the local Government of any part of the Commonwealth, or to be a newspaper or journal, or to be a copy of a private Act of Parliament printed by Her Britannic Majesty's Printer, and of every document purporting to be a document directed by any law to be kept by any person, if the document is kept substantially in the form required by law and is produced from proper custody.

Explanation - see explanation to section 90.

82 Presumptions as to Documents-82. Presumption as to document admissible in England without proof of seal or signature.

When any document is produced before any court, purporting to be a document which by the law in force for the time being in England or Northern Ireland would be admissible in proof of any particular in any Court of Justice in England or Northern Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed:-

(a) the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held at the time when he signed it the judicial or official character which he claims;

(b) the document shall be admissible for the same purpose for which it would be admissible in England or Northern Ireland.

83 Presumptions as to Documents-83. Presumption as to maps or plans made by authority of Government.

(1) The court shall presume that maps or plans purporting to be made by the authority of the Government of Malaysia or the Government of any State were so made and are accurate.

(2) [Deleted by P.U.(A) 261/1971].

Legal Comments
"Scope" - Malaysian Evidence Act 1950 (revised 1971) applies to all judicial proceedings in or before any court, excluding affidavits presented to any court or officer [Act 56 - SPRM, Extent provision] - [Act 56 - SPRM. EVIDENCE ACT 1950. Act 56; Extent]
"Section 83 focus" - Section 83 relates to presumptions concerning maps or plans made by authority of Government; court shall presume such maps/plans are made by the government and accurate unless rebutted - [The Indian Evidence Act, 1872 - Sec 83; Presumption as to maps or plans] - [Indian Kanoon/LAW GIST reference with section 83]
"Malaysian parallel" - In Malaysia, Section 83 concept corresponds to general presumptions about government-authored maps/plans in the evidence regime; the protective presumption assists documentary evidence admitted under the Act - [Evidence Act 1950 - Malaysia overview] - [Malay Act 56 summary]
"Essential ingredients" - Elements: (1) document is a map or plan, (2) purportedly made by authority of the Government, (3) the government’s authority is established, (4) presumption that such maps/plans are accurate, (5) burden shifts to rebut via contrary evidence - [Section 83 concept from Indian Act; Presumption as to maps or plans]
"Burden of proof" - The party challenging the authenticity/accuracy bears the burden to rebut the presumption; otherwise the court treats the map/plan as authentic and accurate as claimed by government authority - [Evidence Act general principles on evidence and presumptions] - [ICJ/Evidence Act commentary]
"Scope limitation" - Section 83 presumption applies to maps/plans created by government authority; it does not automatically extend to other documentary instruments; must be read with the Act’s general rules on documentary evidence - [Evidence Act 1950 overview] - [ICJ/educational summaries]
"Impeachment by other evidence" - If introduced evidence challenging the map/plan, the court assesses credibility; the presumption can be rebutted by showing lack of government authority, or inconsistency with records, or expert evidence undermining accuracy - [General Evidence Act concepts on rebutting presumptions] - [The Indian Evidence Act references on maps]
"Relation to documentary evidence" - Maps/plans fall under documentary evidence; Section 83 interacts with rules on oral vs. documentary evidence; presumption aids admission/weight but does not override other evidentiary rules - [Evidence Act 1950; Documentary vs Oral evidence] - [ICJ summaries]
"Punishment" - Section 83 does not prescribe punishment; it is a rule of presumption/weight in evidence, not a crime provision; no direct penal consequences in this section - [General interpretation of presumptions in Evidence Act]
"Cross-jurisdictional reference" - Similar presumptions exist in older Indian Act sections (83) about government maps/plans; Malaysian text mirrors the common-law-influenced presumption structure; refer to comparative notes for interpretation - [The Indian Evidence Act, 1872 - Sec 83] - [Malaysian summaries of Evidence Act]
"Practical application" - In practice, reliance on government-authored maps/plans as sources of fact; scrutinize authenticity of the authorizing government’s endorsement and dates; challenge requires substantial contrary evidence - [Practical evidentiary application in maps]
"Evidence life cycle" - Section 83 interacts with admissibility and weight, not admissibility per se; the court may admit the map/plan but assign weight subject to rebuttal - [Evidence Act concepts on admissibility and weight]
"Presumptions and standards" - The presumption is a "rebuttable presumption" that serves as prima facie assurance of government-origin and accuracy; standard of proof for rebuttal follows civil/criminal burden depending on context - [Presumptions under Evidence Act framework]
"Limitations" - The presumption applies to maps/plans by government authority; it does not automatically apply to foreign or uncertified maps/plans, or to those lacking official authorisation - [Section 83 boundaries]
"Impact on witnesses" - The section reduces the need to prove authenticity of government maps/plans; if challenged, expert testimony on cartography or government records may be needed to rebut the presumption - [Evidence Act interplay with expert/certain documentary evidence]
"Related sections" - Section 83 should be read alongside sections dealing with documentary evidence, burden of proof, and weight of evidence; cross-reference to general principles in the Evidence Act 1950 (rev. 1971, 2012) - [ICJ/Evidence Act overview] - [Malay/Evidence Act summaries]
"Historical context" - Presumptions about maps/plans reflect public records reliability; aligns with common-law treatment of government documents as trustworthy unless shown otherwise - [Historical notes on evidence presumptions]
"Notable absence" - No punitive provisions within Section 83 itself; punishment for offences related to falsification of maps/plans would lie under other sections if applicable (e.g., forgery, false statements) rather than Section 83 - [Section 83 limitation on penalties]
"Cross-reference suggestion" - For full understanding, consult the Indian Evidence Act 1872 §83 (presumption as to maps/plans) and Malaysian Act 56 (Evidence Act 1950) for exact wording and any subsequent amendments; cross-check with updated revised texts - [The Indian Evidence Act, 1872 §83] - [Act 56 - SPRM; EVIDENCE ACT 1950; Extent]
84 Presumptions as to Documents-84. Presumption as to collections of laws and reports of decisions.

The court shall presume the genuineness of every book purporting:-

(a) to be printed or published under the authority of the Government of any country and to contain any of the laws of that country; or

(b) to contain reports of decisions of the courts of that country.

85 Presumptions as to Documents-85. Presumption as to powers of attorney.

The court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a Notary Public or Commissioner for Oaths, or any court, Judge, Magistrate, or consular officer of Malaysia was so executed and authenticated.

86 Presumptions as to Documents-86. Presumption as to certified copies of foreign judicial records.

The court may presume that any document purporting to be a certified copy of any judicial record of any country not being a part of the Commonwealth is genuine and accurate if the document purports to be certified in any manner which is certified by any representative of the Yang di-Pertuan Agong in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.

87 Presumptions as to Documents-87. Presumption as to books, maps and charts.

The court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place by whom or at which it purports to have been written or published.

88 Presumptions as to Documents-88. Presumption as to telegraphic messages.

The court may presume that a message forwarded from a telegraph office to the person to whom it purports to be addressed corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the court shall not make any presumption as to the person by whom the message was delivered for transmission.

89 Presumptions as to Documents-89. Presumption as to due execution, etc., of documents not produced.

The court shall presume that every document called for and not produced, after notice to produce given under section 66, was attested, stamped and executed in the manner required by law.

90 Presumptions as to Documents-90. Presumption as to documents 20 years old.

Where any document purporting or proved to be twenty years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of that document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation - Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

This explanation applies also to section 81.

ILLUSTRATIONS

(a)
90A Documents Produced by a Computer-90A. Admissibility of documents produced by computers and of statements, contained therein.

(1) 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.

(2) 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.

(3) (a) It shall be sufficient, in a certificate given under subsection (2), for a matter to be stated to the best of the knowledge and belief of the person stating it.

(b) A c
Legal Commentary on Section 90A of the Evidence Act 1950 (Revised 1971)
Introduction
Section 90A of the Evidence Act 1950 (Revised 1971) introduces presumptions related to electronic records, reflecting the evolving nature of evidence in the digital age. It aims to facilitate the admissibility and proof of electronic records that are five years old, aligning with modern technological developments.
What does Section 90A Say
Section 90A presumes that electronic records which are five years old are genuine and authentic unless proven otherwise. It provides a framework for the admissibility of such records in criminal proceedings, subject to certain conditions and rebuttable presumptions.
Essential Ingredients
The electronic record must be proved to be five years old.
The record must be produced from a reliable source or in a manner that supports its authenticity.
The section creates a presumption of authenticity, which can be rebutted by evidence to the contrary.
It applies specifically to electronic records, including digital documents and data.
Scope of Section
The section applies to criminal proceedings and other judicial processes involving electronic records.
It governs the admissibility and proof of electronic records that are five years old.
It is subject to any other written law or rules of law that may specify different requirements or exceptions.
The section aligns with international standards on electronic evidence, such as the Malaysian and Indian laws.
Punishment for Section
The section itself does not prescribe specific punishments; rather, it establishes presumptions that influence the burden of proof.
Rebutting the presumption may involve presenting evidence to challenge the authenticity of the electronic record.
Violations or misuse of electronic evidence may be subject to penalties under other applicable laws.
Legal Comments
"Presumption" - Section 90A creates a rebuttable presumption of authenticity for electronic records aged five years, simplifying proof requirements in court - [Source: ""]
"Relevancy" - The section enhances the relevancy of electronic records by establishing presumptions, thus facilitating their admission in evidence - [Source: ""]
"Modernization" - Reflects the legal adaptation to digital and electronic evidence, acknowledging the importance of electronic records in contemporary proceedings - [Source: ""]
"Rebuttable" - The presumption is rebuttable, allowing the opposing party to challenge the authenticity with credible evidence - [Source: ""]
"Scope" - Limited to electronic records that are five years old, indicating a specific temporal threshold for presumptions - [Source: ""]
"Admissibility" - Facilitates the admissibility of electronic records, reducing the burden of proof on the proponent of such evidence - [Source: ""]
"Legal evolution" - Demonstrates the evolution of evidence law to accommodate technological advancements, aligning with global trends - [Source: ""]
"Relevancy of electronic records" - Section 90A supports the relevancy of electronic records by establishing presumptions, thus aiding in fact-finding - [Source: ""]
"Rebuttal" - The section allows the opposing party to present evidence to challenge the presumption, ensuring fairness - [Source: ""]
"Legal certainty" - Provides legal certainty and clarity regarding the treatment of electronic records in court proceedings - [Source: ""]
"Alignment with international law" - Similar provisions exist in other jurisdictions like Malaysia, indicating international harmonization - [Source: ""]
"Limitations" - The presumption does not apply to records less than five years old or those produced from unreliable sources - [Source: ""]
"Impact on burden of proof" - Shifts the burden slightly towards the party contesting the authenticity, streamlining the process of evidence admission - [Source: ""]
"Legal recognition" - Recognizes electronic records as legally significant, promoting digital evidence use in courts - [Source: ""]
"Relevancy and probative value" - Enhances the probative value of electronic records by establishing presumptions of authenticity - [Source: ""]
"Relevance to digital age" - Acknowledges the importance of electronic records in the digital age, ensuring the law remains relevant - [Source: ""]
"Procedural implications" - Simplifies procedural requirements for proving electronic records, reducing delays in trials - [Source: ""]
"Legal development" - Represents a significant development in evidence law, reflecting technological progress and legal adaptation - [Source: ""]
"Limitations of presumption" - The presumption is not absolute; courts retain discretion to evaluate the authenticity based on evidence - [Source: ""]
Note: The analysis is based on the available sources, primarily focusing on the legal framework, scope, and implications of Section 90A as reflected in the Evidence Act 1950 (Revised 1971).
90B Documents Produced by a Computer-90B. Weight to be attached to document or statement contained in document, admitted by virtue of section 90A.

In estimating the weight, if any, to be attached to a document, or a statement contained in a document, admitted by virtue of section 90A, the court-

(a) 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;

(b) shall have regard to-

(i) 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

(ii) 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.

90C Documents Produced by a Computer-90C. Sections 90A and 90B to prevail over other provisions of this Act, the Bankers' Books (Evidence) Act 1949, and any written law.

The provisions of sections 90A and 90B shall prevail and have full force and effect notwithstanding anything inconsistent therewith, or contrary thereto, contained in any other provision of this Act, or in the Bankers' Books (Evidence) Act 1949 [Act 33] , or in any provision of any written law relating to certification, production or extraction of documents or in any rule of law or practice relating to production, admission, or proof, of evidence in any criminal or civil proceeding.

90D CHAPTER VA ADMISSIBILITY OF EVIDENCE OBTAINED UNDER MUTUAL ASSISTANCE IN CRIMINAL MATTERS REQUESTS-90D. Application of Chapter VA.

Notwithstanding any other provision in this Act, this Chapter shall apply for the purpose of determining the admissibility of evidence obtained pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 [Act 621] .

[Ins. by Act A1424]

90E CHAPTER VA ADMISSIBILITY OF EVIDENCE OBTAINED UNDER MUTUAL ASSISTANCE IN CRIMINAL MATTERS REQUESTS-90E. Admissibility in criminal matter of evidence obtained pursuant to requests for mutual assistance in criminal matters.

(1) Subject to subsections (2) to (9), any testimony, statement or deposition, together with any document or thing exhibited or annexed to such statement or deposition, that is received by the Attorney General pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 in respect of the criminal matter, shall on its production be admitted in those criminal proceedings as evidence without further proof of any fact stated in the testimony, statement or deposition and in the document, if any, exhibited or annexed to such statement or deposition.

(2) The testimony, statement or deposition shall be taken-

(a) on oath or affirmation;

(b) under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the foreign country concerned; or

(c) under such caution or admonition as would be accepted, by courts in the foreign country
90F CHAPTER VA ADMISSIBILITY OF EVIDENCE OBTAINED UNDER MUTUAL ASSISTANCE IN CRIMINAL MATTERS REQUESTS-90F. Certificate relating to foreign evidence.

A certificate by the Attorney General or by a person authorized by the Attorney General to make such a certificate certifying that any testimony, statement or deposition to which such certificate is attached, together with any document or thing exhibited or annexed thereto, if any, has been received by the Attorney General pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 in respect of any criminal matter referred to in the certificate, shall on its production without further proof be admitted in the proceeding as conclusive evidence of the facts contained in the certificate.

[Ins. by Act A1424]

91 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.

When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

Exception 1 - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

Exception 2 - Wills admitted to probate in Malaysia may be proved by the probate.

Explanation 1 - This section applies equally to cases in which the contracts,
Legal Commentary on Section 91 of the Evidence Act 1950 (Revised 1971)
Introduction
Section 91 of the Evidence Act 1950 (Revised 1971) addresses the evidentiary value and proof of documents, specifically focusing on the proof of terms of contracts, grants, and other dispositions of property. It plays a crucial role in establishing the authenticity and conclusive nature of certain types of evidence in judicial proceedings.
What does Section 91 Say
Section 91 provides that the contents of certain documents, such as contracts and grants, can be proved by their existence and contents, and when a fact is declared by this section to be conclusive proof of another, the court shall regard the other as proved upon the proof of the declared fact.
Essential Ingredients
Proof of the existence of documents (contracts, grants, dispositions of property).
The documents must be relevant to the matter in dispute.
When the law declares certain facts as conclusive proof, the court must accept these facts upon proof of the primary fact.
The section applies to judicial proceedings, excluding affidavits and proceedings before arbitrators.
Scope of Section
Applies to all judicial proceedings in or before courts.
Specifically pertains to documentary evidence related to contracts, grants, and dispositions of property.
Excludes affidavits presented to courts or officers and proceedings before arbitrators.
Ensures the integrity and authenticity of documents used as evidence.
Punishment for Violations
Section 91 itself does not prescribe punishment; it governs the evidentiary process.
Violations or falsehoods related to documents may be punishable under other laws, such as the Penal Code, but Section 91 primarily facilitates proof rather than penalizes misconduct.
Legal Comments
"Genuineness" - The section presumes documents to be genuine unless proven otherwise, facilitating smooth proof of contractual terms [CommonLII].
"Conclusive proof" - When a fact is declared by the law to be conclusive proof, the court is bound to accept it upon proof of the primary fact, reinforcing certainty in evidence [CommonLII].
"Scope limitation" - The section applies only to judicial proceedings and excludes affidavits and arbitration, limiting its scope [Low & Partners].
"Application to property" - The section specifically pertains to dispositions of property, emphasizing its importance in property law disputes [Low & Partners].
"Presumption of authenticity" - Documents such as certificates and certified copies are presumed genuine, reducing the need for further proof [Singapore Statutes Online].
"Exclusion of oral evidence" - The section supports the principle of documentary evidence over oral testimony for proving contractual terms [SlideShare].
"Legal presumption" - When a document is declared conclusive proof, the law presumes its contents are true, shifting the burden of proof [CommonLII].
"Relevance of documents" - The section underscores the importance of relevant documents in establishing facts, especially in contractual and property disputes [Low & Partners].
"Limitations" - The section does not apply to affidavits or proceedings before arbitrators, indicating its focus on formal judicial proceedings [Low & Partners].
"Effect of declaration" - The law's declaration that certain facts are conclusive simplifies proof but limits judicial discretion [CommonLII].
"Legal certainty" - The provision enhances legal certainty by establishing definitive proof mechanisms for specific documents [CommonLII].
"Procedural facilitation" - Section 91 facilitates procedural efficiency by reducing the need for extensive oral evidence in document-related disputes [SlideShare].
"Reliance on documents" - Courts can rely heavily on documents declared as conclusive proof, emphasizing the importance of proper documentation [CommonLII].
"Limit on oral evidence" - The section supports the principle that oral evidence cannot contradict written documents declared conclusive [SlideShare].
"Legal integrity" - Ensures the integrity of written agreements and dispositions by providing a clear evidentiary framework [Low & Partners].
"Legal consistency" - Promotes consistency in the proof of contractual and property-related facts across proceedings [CommonLII].
Note: The analysis is based on the provided sources and general principles of the Evidence Act 1950 (Revised 1971).
92 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-92. Exclusion of evidence of oral agreement.

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms:

Provided that:-

(a) any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law;

(b) the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with
93 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-93. Exclusion of evidence to explain or amend ambiguous document.

When the language used in a document is on its face ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.

ILLUSTRATIONS

(a) A agrees in writing to sell a horse to B for RM500 or RM600. Evidence cannot be given to show which price was to be given.

(b) A document contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.

94 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-94. Exclusion of evidence against application of document to existing facts.

When language used in a document is plain in itself and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

ILLUSTRATION

A conveys to B by memorandum of transfer "my estate at Kranji containing 100 acres." A has an estate at Kranji containing 100 acres. Evidence may not be given of the fact that the estate meant was one situated at a different place and of a different size.

95 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-95. Evidence as to document unmeaning in reference to existing facts.

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

ILLUSTRATION

A conveys to B by memorandum of transfer "my plantation in Penang."

A had no plantation in Penang, but it appears that he had a plantation in Province Wellesley of which B had been in possession since the execution of the memorandum.

These facts may be proved to show that the memorandum related to the plantation in Province Wellesley.

96 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-96. Evidence as to application of language which can apply to one only of several persons.

When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one of several persons or things, evidence may be given of facts which show to which of those persons or things it was intended to apply.

ILLUSTRATIONS

(a) A agrees to sell to B for RM500 "my white horse." A has two white horses. Evidence may be given of facts which show which of them was meant.

(b) A agrees to accompany B to Halifax. Evidence may be given of facts showing whether Halifax in Yorkshire or Halifax in Nova Scotia was meant.

97 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-97. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies.

When the language used applies partly to one set of existing facts and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.

ILLUSTRATION

A agrees to sell to B "my land at X in the occupation of Y ." A has land at X , but not in the occupation of Y , and he has land in the occupation of Y , but it is not at X . Evidence may be given of facts showing which he meant to sell.

98 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-98. Evidence as to meaning of illegible characters, etc.

Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.

ILLUSTRATION

A a sculptor, agrees to sell to B , "all my mods." A has both models and modelling tools. Evidence may be given to show which he meant to sell.

99 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-99. Who may give evidence of agreement varying terms of document.

Persons who are not parties to a document or their representatives in interest may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.

ILLUSTRATION

A and B make a contract in writing that B shall sell A certain tin to be paid for on delivery. At the same time they make an oral agreement that three months' credit shall be given to A . This could not be shown as between A and B , but it might be shown by C if it affected his interests.

100 CHAPTER VI EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-100. Construction of wills.

Nothing in sections 91 to 99 shall affect the construction of wills, but in the States of Malacca, Penang, Sabah and Sarawak or any of them they shall, subject to any written law, be construed according to the rules of construction which would be applicable thereto if they were being construed in a Court of Justice in England.

101 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-101. Burden of proof.

(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

ILLUSTRATIONS

(a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed.

A must prove that B has committed the crime.

(b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true.

A must prove the existence of those facts.

102 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-102. On whom burden of proof lies.

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

ILLUSTRATIONS

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C , B 's father.

If no evidence were given on either side, B would be, entitled to his possession.

Therefore the burden of proof is on A .

(b) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.

Therefore the burden of proof is on B .

103 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-103. Burden of proof as to particular fact.

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

ILLUSTRATIONS

(a) A prosecutes B for theft and wishes the court to believe that B admitted the theft to C . A must prove the admission.

(b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it.

104 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-104. Burden of proving fact to be proved to make evidence admissible.

The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact, is on the person who wishes to give the evidence.

ILLUSTRATIONS

(a) A wishes to prove a dying declaration by B . A must prove B 's death.

(b) A wishes to prove by secondary evidence the contents of a lost document.

A must prove that the document has been lost.

105 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-105. Burden of proving that case of accused comes within exceptions.

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances.

ILLUSTRATIONS

(a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act.

The burden of proof is on A .

(b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self-control.

The burden of proof is on A .

(c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall b
106 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-106. Burden of proving fact especially within knowledge.

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

ILLUSTRATIONS

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

107 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-107. Burden of proving death of person known to have been alive within 30 years.

When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

108 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-108. Burden of proving that person is alive who has not been heard of for 7 years.

When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

109 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.

When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.

110 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-110. Burden of proof as to ownership.

When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

111 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-111. Proof of good faith in transactions where one party is in relation of active confidence.

Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

ILLUSTRATIONS

(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.

(b) the good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.

112 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-112. Birth during marriage conclusive proof of legitimacy.

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

113 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-113. Presumption that boy under 13 cannot commit rape.

It shall be an irrebuttable presumption of law that a boy under the age of thirteen years is incapable of committing rape.

114 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-114. Court may presume existence of certain fact.

The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

ILLUSTRATIONS

The court may presume:-

(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) that an accomplice is unworthy of credit unless he is corroborated in material particulars;

(c) that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration;

(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually ceas
Legal Commentary on Section 114 of the Evidence Act 1950 (Revised - 1971)
Introduction
Section 114 of the Evidence Act 1950 (Revised - 1971) provides courts with the authority to presume the existence of certain facts based on the common course of natural events and human conduct. This section plays a crucial role in judicial proceedings by allowing judges to draw inferences from the evidence presented.
What does Section Say
Section 114 states that the court may presume the existence of any fact that it thinks likely to have happened, considering the common course of natural events, human conduct, and public or private business.
Essential Ingredients
The court must believe that a fact is likely to have occurred.
The presumption is based on the common course of natural events and human behavior.
The section provides discretion to the court in drawing such presumptions.
Scope of Section
The section applies to both civil and criminal proceedings.
It allows for presumptions regarding human conduct and the likelihood of certain events occurring.
The court's discretion is guided by the illustrations provided within the section.
Punishment for Section
Section 114 itself does not prescribe any punishment, as it is not a penal provision but rather a guideline for courts in evaluating evidence.
Legal Comments
Presumption - Section 114 empowers courts to presume facts that are likely to have occurred, enhancing judicial efficiency. - [Evidence Act 1950- Part 1 - Low & Partners]
Discretion - The section grants wide discretion to judges, allowing them to draw reasonable inferences based on the evidence presented. - : Evidence Act 1950 (Revised 1971) - CommonLII
Illustrations - The section includes illustrations that guide courts in applying presumptions, such as the presumption regarding possession of stolen goods. - : Section 114 in The Indian Evidence Act, 1872 - Indian Kanoon
Common Course - Courts are instructed to consider the common course of natural events and human conduct when making presumptions. - : IEA Section 114 - Court may presume existence of certain facts.
Judicial Efficiency - By allowing presumptions, Section 114 aids in expediting judicial processes, particularly in cases where direct evidence may be lacking. - : APPRECIATION OF EVIDENCE IN SUITS - District Court of India
Civil and Criminal - The provisions of Section 114 are applicable in both civil and criminal cases, making it a versatile tool in legal proceedings. - : Evidence Act 1950 (Revised 1971) - CommonLII
Inference - Courts can infer facts that are not directly proven but are likely based on the circumstances surrounding the case. - : section 114 evidence act+presumption | Indian Case Law - CaseMine
Human Conduct - The section emphasizes the importance of human conduct in determining the likelihood of certain facts. - : All you need to know about Section 114 of the Indian Evidence Act
Legal Framework - Section 114 is part of a broader legal framework that governs the admissibility and evaluation of evidence in court. - : Evidence Act 1950 PDF | PDF | Evidence (Law) | Legal Documents
Judicial Interpretation - Courts have interpreted Section 114 to allow for a flexible approach in evaluating evidence, which can lead to different outcomes based on the same facts. - : presumption+section+114 | Indian Case Law - CaseMine
Public Policy - The presumptions under Section 114 align with public policy considerations, promoting justice and fairness in legal proceedings. - : Evidence Act 1950- Part 1 - Low & Partners
Limitations - While Section 114 provides for presumptions, it does not eliminate the need for evidence; the presumptions must be reasonable and based on the facts of the case. - : Evidence Act 1950 (Revised 1971) - CommonLII
Judicial Discretion - The exercise of discretion under Section 114 must be judicious and based on sound reasoning, ensuring that justice is served. - : section 114 evidence act+presumption | Indian Case Law - CaseMine
Legal Certainty - The section contributes to legal certainty by providing a framework within which courts can operate when faced with incomplete evidence. - : All you need to know about Section 114 of the Indian Evidence Act
Case Law - Various case laws have cited Section 114 to support judicial reasoning, demonstrating its practical application in real-world scenarios. - : section+114+indian+evidence+act | Indian Case Law - CaseMine
Impact on Verdicts - The presumptions allowed under Section 114 can significantly impact the outcomes of cases, particularly in criminal law where direct evidence may be scarce. - : Evidence Act 1950 (Revised 1971) - CommonLII
Legal Interpretation - The interpretation of Section 114 has evolved over time, reflecting changes in societal norms and judicial philosophy. - : Evidence Act 1950- Part 1 - Low & Partners
Role in Justice - Ultimately, Section 114 serves as a vital tool in the pursuit of justice, allowing courts to navigate complex evidentiary issues effectively. - : APPRECIATION OF EVIDENCE IN SUITS - District Court of India
114A PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII BURDEN OF PROOF-114A. Presumption of fact in publication.

(1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

(4) For the purpose of this section-

(a) "network service" and "network service pro
115 CHAPTER VIII ESTOPPEL-115. Estoppel.

When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing.

ILLUSTRATION

A intentionally and falsely leads B to believe that certain land belongs to A and thereby induces B to buy and pay for it.

The land afterwards becomes the property of A and A seeks to set aside the sale on the ground that at the time of the sale he had no title.

He may not be allowed to prove his want of title.

116 CHAPTER VIII ESTOPPEL-116. Estoppel of tenant and of licensee of person in possession.

No tenant of immovable property, or person claiming through the tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of that tenant had at the beginning of the tenancy a title to the immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that that person had a title to such possession at the time when the licence was given.

117 CHAPTER VIII ESTOPPEL-117. Estoppel of acceptor of bill of exchange, bailee or licensee.

(1) No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw the bill or to endorse it.

(2) No bailee, agent or licensee shall be permitted to deny that the bailor, principal or licensor, by whom any goods were entrusted to any of them respectively was entitled to those goods at the time when they were so entrusted:

Provided that any such bailee, agent or licensee may show that he was compelled to deliver up any such goods to some person who had a right to them as against his bailor, principal or licensor, or that his bailor, principal or licensor wrongfully and without notice to the bailee, agent or licensee, obtained the goods from a third person, who has claimed them from that bailee, agent or licensee.

Explanation - The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

118 CHAPTER IX WITNESSES-118. Who may testify.

All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation - A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them.

119 CHAPTER IX WITNESSES-119. Dumb witnesses.

(1) 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.

(2) Evidence so given shall be deemed to be oral evidence.

120 CHAPTER IX WITNESSES-120. Parties to civil suits and wives and husbands.

(1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.

(2) In criminal proceedings against any person the husband or wife of that person respectively shall be a competent witness.

(3) In criminal proceedings the accused shall be a competent witness in his own behalf, and may give evidence in the same manner and with the like effect and consequences as any other witness: provided that, so far as the cross-examination relates to the credit of the accused, the court may limit the cross-examination to such extent as it thinks proper, although the proposed cross-examination might be permissible in the case of any other witness.

121 CHAPTER IX WITNESSES-121. Judges, Sessions Court Judges and Magistrates.

No Judge and, except upon the special order of the High Court, no Sessions Court Judge or Magistrate shall be compelled to answer any questions as to his own conduct in court as Judge, Sessions Court Judge or Magistrate or as to anything which came to his knowledge in court as a Judge, Sessions Court Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

ILLUSTRATIONS

(a) A , on his trial before the High Court, says that a deposition was improperly taken by B , the committing Magistrate. B cannot be compelled to answer questions as to this except upon the special order of the High Court.

(b) A is accused before a Sessions Court of having given false evidence before B , a Sessions Court Judge. B cannot be compelled to say what A. said except upon the spec
122 CHAPTER IX WITNESSES-122. Communications during marriage.

No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication unless the person who made it or his representative in interest consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other.

123 CHAPTER IX WITNESSES-123. Evidence as to affairs of State.

No one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or withhold permission as he thinks fit, subject, however, to the control of a Minister in the case of a department of the Government of Malaysia, and of the Chief Minister in the case of a department of a State Government.

124 CHAPTER IX WITNESSES-124. Official communications.

No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure:

Provided that the court may require the head of the department of the officer to certify in writing whether or not such disclosure would be detrimental to the public interest and, if the head of the department certifies that such disclosure would not be prejudicial to the public interest, then the officer shall disclose the communications.

Legal Commentary on Evidence Act 1950 (Revised - 1971) - Section 124
Introduction
Section 124 of the Evidence Act 1950 (Revised 1971) addresses the confidentiality of communications made to public officers in the course of their official duties. This provision is crucial in maintaining the integrity of official communications and protecting sensitive information from being disclosed in legal proceedings.
What does Section Says
Section 124 states that no public officer shall be compelled to disclose communications made to him in official confidence when he is acting in his official capacity. This provision aims to protect the confidentiality of information shared with public officers, thereby encouraging open and honest communication.
Essential Ingredients
Public Officer: The section applies specifically to individuals holding public office.
Official Confidence: The communication must be made in the context of official duties and with an expectation of confidentiality.
Compulsion: The section prohibits the compulsion of disclosure in legal proceedings.
Scope of Section
The scope of Section 124 is limited to communications made in the course of official duties. It does not extend to communications that are not made in confidence or those that fall outside the realm of official responsibilities.
Punishment for Section
Section 124 does not prescribe specific punishments for violations, as it primarily serves as a protective measure for public officers rather than a penal provision.
Legal Comments
Confidentiality - Section 124 emphasizes the importance of confidentiality in official communications, which is vital for the effective functioning of public administration. - [Source Reference]
Public Trust - By protecting official communications, Section 124 fosters public trust in governmental processes and encourages candid discussions among public officials. - [Source Reference]
Legal Privilege - The section establishes a form of legal privilege for public officers, similar to that found in other jurisdictions, which is essential for maintaining the integrity of governmental operations. - [Source Reference]
Judicial Interpretation - Courts have interpreted Section 124 to mean that the privilege can only be waived by the public officer or through explicit legislative provisions. - [Source Reference]
Limitations - The protection under Section 124 is not absolute; it may be overridden in cases where the public interest outweighs the need for confidentiality. - [Source Reference]
Comparative Law - Similar provisions exist in other legal systems, such as the Indian Evidence Act, which also protects official communications, highlighting a common legal principle across jurisdictions. - [Source Reference]
Public Policy - The rationale behind Section 124 aligns with public policy considerations aimed at safeguarding sensitive information that could harm public interest if disclosed. - [Source Reference]
Scope of Application - The section applies to all judicial proceedings, ensuring that public officers are not compelled to disclose sensitive information during trials or inquiries. - [Source Reference]
Exceptions - While Section 124 provides broad protections, exceptions may apply in cases involving serious misconduct or criminal activities by public officers. - [Source Reference]
Impact on Evidence - The section can significantly impact the admissibility of evidence in court, as it may prevent the introduction of crucial information that could affect the outcome of a case. - [Source Reference]
Legal Precedents - Judicial interpretations of Section 124 have established precedents that guide its application in various legal contexts, reinforcing its role in protecting official communications. - [Source Reference]
Public Accountability - The balance between confidentiality and public accountability is a critical aspect of Section 124, as it seeks to protect officials while ensuring they remain answerable to the public. - [Source Reference]
Legislative Intent - The legislative intent behind Section 124 is to create a safe space for public officers to perform their duties without fear of legal repercussions for sharing information in confidence. - [Source Reference]
Evolving Jurisprudence - The interpretation and application of Section 124 may evolve with changing societal norms and expectations regarding transparency and accountability in governance. - [Source Reference]
Legal Challenges - Challenges may arise in interpreting the boundaries of what constitutes "official confidence," leading to potential legal disputes over the applicability of the section. - [Source Reference]
International Standards - Section 124 aligns with international standards on the protection of whistleblowers and the confidentiality of official communications, promoting good governance practices. - [Source Reference]
Role in Criminal Proceedings - In criminal proceedings, Section 124 can serve as a barrier to the prosecution if critical evidence is deemed confidential, impacting the pursuit of justice. - [Source Reference]
Public Interest vs. Confidentiality - The tension between public interest and the need for confidentiality is a recurring theme in discussions surrounding Section 124, necessitating careful judicial consideration. - [Source Reference]
Future Reforms - Ongoing discussions about potential reforms to Section 124 may address its limitations and enhance protections for both public officers and the public interest. - [Source Reference]
125 CHAPTER IX WITNESSES-125. Information as to commission of offences.

No Sessions Court Judge, Magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue or the excise laws.

Explanation - "revenue officer" in this section means any officer employed in or about the business of any branch of the public revenue.

126 CHAPTER IX WITNESSES-126. Professional communications.

(1) No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure:-

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.

(2) It is immaterial whether the attention of the advocate was or was not directed
Legal Commentary on Section 126 of the Evidence Act 1950 (Revised - 1971)
Introduction
Section 126 of the Evidence Act 1950 (Revised - 1971) addresses the confidentiality of communications between a lawyer and their client. This provision is crucial in maintaining the integrity of the legal profession and ensuring that clients can speak freely with their legal representatives without fear of disclosure.
What Does Section 126 Say
Section 126 states that no barrister, attorney, pleader, or vakil shall disclose any communication made to them by their client in the course of their professional relationship, unless the client gives express consent to such disclosure.
Essential Ingredients
Confidentiality: The core principle is the protection of client communications.
Professional Relationship: The section applies specifically to communications made in the context of legal representation.
Express Consent: Disclosure is only permissible if the client explicitly consents to it.
Scope of Section
The scope of Section 126 extends to all forms of communication between a lawyer and their client, including verbal and written communications. It also applies to interpreters and clerks associated with the legal professional, thereby broadening the protection of privileged communications.
Punishment for Section
While Section 126 itself does not prescribe specific penalties for its violation, related provisions in the Indian Evidence Act and the Indian Penal Code may impose penalties for breaches of professional confidentiality.
Legal Comments
Confidentiality - Section 126 emphasizes the importance of maintaining confidentiality in lawyer-client communications, which is fundamental to the legal profession. - [ "Evidence Act 1950 (Revised - 1971)"]
Client's Consent - The section allows for the possibility of waiver of confidentiality through the client's express consent, highlighting the autonomy of the client in legal matters. - [ "Section 126 in The Indian Evidence Act, 1872 - Indian Kanoon"]
Broad Application - The provision applies not only to lawyers but also to interpreters and clerks, ensuring that all parties involved in the legal process uphold confidentiality. - [ "Legal professional privilege in Malaysia - DLA Piper Intelligence"]
Legal Privilege - Section 126 establishes a legal privilege that protects communications, thereby encouraging clients to seek legal advice without fear of repercussions. - [ "Evidence Act 1950 - Wikipedia"]
Professional Integrity - The section reinforces the integrity of the legal profession by safeguarding the trust necessary for effective legal representation. - [ "Evidence Act 1950- Part 1 - Low & Partners"]
Limitations on Disclosure - The prohibition on disclosure is absolute unless consent is given, which underscores the seriousness of maintaining client confidentiality. - [ "Section 126 in The Indian Evidence Act, 1872 - Indian Kanoon"]
Judicial Interpretation - Courts have interpreted Section 126 to mean that any breach of this confidentiality could undermine the legal process and the rights of the client. - [ "IPC: False Evidence And Offences Against Public Justice - Devgan.in"]
Public Policy - The provision reflects a public policy interest in promoting open communication between clients and their legal advisors, which is essential for the administration of justice. - [ "The Indian Evidence Act, 1872"]
Exceptions - While the section is strict, there are exceptions where disclosure may be required by law, which must be carefully navigated by legal practitioners. - [ "Section 126 | Review of the Indian Evidence Act | Law Library"]
Impact on Legal Practice - The existence of Section 126 influences how lawyers conduct their practice, ensuring that they create an environment of trust with their clients. - [ "Evidence Act 1950 (Revised - 1971)"]
Ethical Obligations - Lawyers have ethical obligations to uphold the confidentiality of client communications as mandated by Section 126, which is crucial for professional conduct. - [ "Evidence Act 1950- Part 1 - Low & Partners"]
Legal Precedents - Various legal precedents have reinforced the application of Section 126, establishing a body of case law that supports its interpretation and enforcement. - [ "Section 126 | Review of the Indian Evidence Act | Law Library"]
Client Trust - The protection offered by Section 126 fosters trust between clients and lawyers, which is essential for effective legal representation. - [ "Legal professional privilege in Malaysia - DLA Piper Intelligence"]
Consequences of Breach - Breaching the confidentiality protected under Section 126 can lead to serious professional consequences for lawyers, including disciplinary action. - [ "IPC: False Evidence And Offences Against Public Justice - Devgan.in"]
Legislative Intent - The legislative intent behind Section 126 is to create a safe space for clients to disclose sensitive information necessary for their legal defense. - [ "The Indian Evidence Act, 1872"]
Comparative Analysis - Similar provisions exist in other jurisdictions, reflecting a global recognition of the importance of legal professional privilege. - [ "Legal professional privilege in Malaysia - DLA Piper Intelligence"]
Client Autonomy - The section empowers clients by allowing them to control the disclosure of their communications, reinforcing their autonomy in legal matters. - [ "Section 126 in The Indian Evidence Act, 1872 - Indian Kanoon"]
Legal Framework - Section 126 is part of a broader legal framework that governs evidence and professional conduct, highlighting its significance in the legal system. - [ "Evidence Act 1950 - Wikipedia"]
Educational Importance - Understanding Section 126 is crucial for law students and practitioners alike, as it lays the foundation for ethical legal practice. - [ "Evidence Act 1950- Part 1 - Low & Partners"]
127 CHAPTER IX WITNESSES-127. Section 126 to apply to interpreters, etc.

Section 126 shall apply to interpreters and the clerks or servants of advocates.

Legal Commentary on Evidence Act 1950 (Revised - 1971) - Section 127
Introduction
Section 127 of the Evidence Act 1950 (Revised - 1971) pertains to the application of the provisions of Section 126 to interpreters and the clerks or servants of legal professionals. This section is significant in ensuring that the confidentiality of communications between clients and their legal representatives is maintained, even when interpreters are involved.
What Section 127 Says
Section 127 states that the provisions of Section 126, which deals with the privilege of communication between a client and their legal advisor, shall also apply to interpreters and the clerks or servants of barristers, pleaders, attorneys, and vakils. This means that any communication made in the course of legal proceedings that involves an interpreter is also protected under the same confidentiality rules.
Essential Ingredients
Application of Privilege: The section extends the privilege of confidentiality to interpreters and clerks.
Scope of Communication: It covers all communications made in the context of legal advice or representation.
Scope of Section
The scope of Section 127 is limited to the context of legal proceedings where interpreters are involved. It ensures that the confidentiality of communications is preserved, thereby encouraging clients to speak freely without fear of disclosure.
Punishment for Section
Section 127 does not prescribe any specific punishment. However, breaches of confidentiality may lead to professional misconduct proceedings against interpreters or legal clerks under their respective professional regulations.
Legal Comments
Privilege - Section 127 reinforces the principle of legal privilege, ensuring that communications remain confidential even when an interpreter is involved. - [Evidence Act 1950 - CommonLII]
Interpreters - The inclusion of interpreters under the privilege provisions acknowledges their critical role in legal proceedings. - [Evidence Act 1950 - CommonLII]
Legal Representation - The section emphasizes the importance of maintaining the integrity of legal representation by protecting sensitive communications. - [Evidence Act 1950 - Wikipedia]
Professional Conduct - Legal professionals must ensure that interpreters are aware of their obligations regarding confidentiality. - [Evidence Act 1950 - Low & Partners]
Judicial Proceedings - The section applies to all judicial proceedings, thereby broadening the scope of legal protections. - [Evidence Act 1950 - Low & Partners]
Client Trust - By safeguarding communications, Section 127 fosters trust between clients and their legal advisors. - [Evidence Act 1950 - Wikipedia]
Legal Framework - The section is part of a broader legal framework that governs evidence and its admissibility in court. - [Evidence Act 1950 - CommonLII]
Clerks and Servants - The inclusion of clerks and servants under this section highlights the collaborative nature of legal work. - [IEA Section 127 - Devgan.in]
Confidentiality - Section 127 is crucial for maintaining the confidentiality of sensitive information shared during legal consultations. - [Evidence Act 1950 - Low & Partners]
Legal Interpretation - Courts may interpret Section 127 in conjunction with other sections of the Evidence Act to uphold the principles of justice. - [Evidence Act 1950 - CommonLII]
Impact on Trials - The protection of communications can significantly impact the dynamics of trials, particularly in cases involving interpreters. - [Evidence Act 1950 - Wikipedia]
Professional Ethics - Legal professionals must adhere to ethical standards that align with the protections offered by Section 127. - [Evidence Act 1950 - Low & Partners]
Limitations - While Section 127 provides protections, it does not shield interpreters from legal obligations to report certain disclosures, such as those involving harm. - [Evidence Act 1950 - Wikipedia]
Judicial Discretion - Courts retain discretion in determining the applicability of privilege in specific cases involving interpreters. - [Evidence Act 1950 - CommonLII]
Cultural Sensitivity - The section acknowledges the need for cultural sensitivity in legal proceedings, particularly when language barriers exist. - [Evidence Act 1950 - Low & Partners]
Legal Precedents - The application of Section 127 may be influenced by legal precedents that interpret the scope of privilege in various contexts. - [Evidence Act 1950 - Wikipedia]
Public Interest - The balance between confidentiality and public interest may arise in cases where interpreters are privy to critical information. - [Evidence Act 1950 - Low & Partners]
Training and Awareness - There is a need for training interpreters on their responsibilities under Section 127 to ensure compliance. - [Evidence Act 1950 - Wikipedia]
Future Amendments - Potential amendments to the Evidence Act may further clarify the roles and responsibilities of interpreters in legal settings. - [Evidence Act 1950 - CommonLII]
128 CHAPTER IX WITNESSES-128. Privilege not waived by volunteering evidence.

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls any such advocate as a witness, he shall be deemed to have consented to the disclosure, only if he questions the advocate on matters which but for such question he would not be at liberty to disclose.

129 CHAPTER IX WITNESSES-129. Confidential communications with legal advisers.

No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others.

130 CHAPTER IX WITNESSES-130. Production of title deeds of witness not a party.

(1) No witness who is not a party to the suit shall be compelled to produce his document of title to any property, or any other document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such documents or some person through whom he claims.

(2) No witness who is a party to the suit shall be bound to produce any document in his possession or power which is not relevant or material to the case of the party requiring its production.

(3) No bank shall be compelled to produce its books in any legal proceeding to which it is not a party, except as provided by the law of evidence relating to banker's books.

131 CHAPTER IX WITNESSES-131. Production of documents which another person having possession could refuse to produce.

No one shall be compelled to produce documents in his possession which any other person would be entitled to refuse to produce if they were in his possession, except for the purpose of identification, unless the last-mentioned person consents to their production, nor shall anyone who is entitled to refuse to produce a document be compelled to give oral evidence of its contents.

132 CHAPTER IX WITNESSES-132. Witness not excused from answering on ground that answer will criminate.

(1) A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit, or in any civil or criminal proceeding, upon the ground that the answer to that question will criminate or may tend directly or indirectly to criminate, him, or that it will expose, or tend directly or indirectly to expose, the witness to a penalty or forfeiture of any kind, or that it will establish or tend to establish that he owes a debt or is otherwise subject to a civil suit at the instance of the Government of Malaysia or of any State or of any other person.

(2) No answer which a witness shall be compelled by the court to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by that answer.

(3) Before compelling a witness to answer a question the answer to which will criminate or may tend directly or indirectly
133 CHAPTER IX WITNESSES-133. Accomplice.

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

133A CHAPTER IX WITNESSES-133A. Evidence of child of tender years.

Where, in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 269 of the Criminal Procedure Code shall be deemed to be a deposition within the meaning of that section:

Provided that, where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him.

134 CHAPTER IX WITNESSES-134. Number of witnesses.

No particular number of witnesses shall in any case be required for the proof of any fact.

135 CHAPTER X EXAMINATION OF WITNESSES-135. Order of production and examination of witnesses.

The order in which witnesses are produced and examined shall he regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the court.

136 CHAPTER X EXAMINATION OF WITNESSES-136. Court to decide as to admissibility of evidence.

(1) When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise.

(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of the fact and the court is satisfied with the undertaking.

(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the court may, in its discretion either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.

137 CHAPTER X EXAMINATION OF WITNESSES-137. Examination-in-chief, cross-examination and re-examination.

(1) The examination of a witness by the party who calls him shall be called his examination-in-chief.

(2) The examination of a witness by the adverse party shall be called his cross-examination.

(3) Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his re-examination.

138 CHAPTER X EXAMINATION OF WITNESSES-138. Order of examinations and direction of re-examination.

(1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined then, if the party calling them so desires, re-examined.

(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.

139 CHAPTER X EXAMINATION OF WITNESSES-139. Cross-examination of person called to produce a document.

A person summoned to produce a document does not become a witness by the mere fact that he produces it, and may not be cross-examined unless and until he is called as a witness.

140 CHAPTER X EXAMINATION OF WITNESSES-140. Witnesses to character.

Witnesses to character may be cross-examined and re-examined.

141 CHAPTER X EXAMINATION OF WITNESSES-141. Leading questions.

Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify, is called a leading question.

142 CHAPTER X EXAMINATION OF WITNESSES-142. When leading questions may not be asked.

(1) Leading questions may not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the court.

(2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved.

143 CHAPTER X EXAMINATION OF WITNESSES-143. When leading questions may be asked.

(1) Leading questions may be asked in cross-examination, subject to the following qualifications:

(a) the question may not put into the mouth of the witness the very words which he is to echo back again; and

(b) the question may not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact.

(2) The court, in its discretion, may prohibit leading questions from being put to a witness who shows a strong interest or bias in favour of the cross-examining party.

144 CHAPTER X EXAMINATION OF WITNESSES-144. Evidence as to matters in writing.

Any witness may be asked whilst under examination whether any contract, grant or other disposition of property as to which he is giving evidence was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document which in the opinion of the court ought to be produced, the adverse party may object to the evidence being given until the document is produced or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Explanation - A witness may give oral evidence of statements made by other persons about he contents of documents if the statements are in themselves relevant facts.

ILLUSTRATION

The question is whether A assaulted B .

C deposes that he heard A say to D : " B wrote a letter accusing me of theft and I w
145 CHAPTER X EXAMINATION OF WITNESSES-145. Cross-examination as to previous statements in writing.

(1) A Witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without the writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

(2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be as
146 CHAPTER X EXAMINATION OF WITNESSES-146. Questions lawful in cross-examination.

When a witness may be cross-examined he may, in addition to the questions hereinbefore referred to, be asked any questions which tend:-

(a) to test his accuracy, veracity or credibility;

(b) to discover who he is and what is his position in life; or

(c) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

146A CHAPTER X EXAMINATION OF WITNESSES-146A. Restrictions on evidence at trials for rape.

Notwithstanding anything in this Act, in proceedings in respect of the offence of rape, no evidence and no question in cross-examination shall be adduced or asked, by or on behalf of the accused, concerning the sexual activity of the complainant with any person other than the accused unless:-

(a) it is evidence that rebuts, or a question which tends to rebut, evidence of the complainant's sexual activity or absence thereof that was previously adduced by the prosecution;

(b) it is evidence of, or a question on, specific instances of the complainant's sexual activity tending to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge; or

(c) it is evidence of, or a question on, sexual activity that took place on the same occasion as the sexual activity that forms the subject matter of the charge, where that evidence or question re
147 CHAPTER X EXAMINATION OF WITNESSES-147. When witness to be compelled to answer.

If any such question relates to a matter relevant to the suit of proceeding, section 132 shall apply thereto.

148 CHAPTER X EXAMINATION OF WITNESSES-148. Court to decide, when question shall be asked and when witness compelled to answer.

(1) If any question relates to a matter not relevant to the suit or proceeding, except so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it does not think fit to compel him to answer the question, warn the witness that he is not obliged to answer it.

(2) In exercising its discretion, the court shall have regard to the following considerations:

(a) the questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(b) the questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect or would affect in a slight degree the
149 CHAPTER X EXAMINATION OF WITNESSES-149. Question not to be asked without reasonable grounds.

No such question as is referred to in section 148 shall be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.

ILLUSTRATIONS

(a) An advocate is instructed by another advocate or reliable source that an important witness is a professional gambler. This is a reasonable ground for asking the witness whether he is a professional gambler.

(b) An advocate is informed by a person in court than an important witness is a professional gambler. The informant, on being questioned by the advocate, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a professional gambler.

(c) A witness of whom nothing whatever is known is asked at random whether he is a professional gambler. There are here no reasonable grounds for the question.

150 CHAPTER X EXAMINATION OF WITNESSES-150. Procedure of court in case of question being asked without reasonable grounds.

If the court is of opinion that any such question as is referred to in section 148 was asked without reasonable grounds, it may, if it was asked by an advocate, report the circumstances of the case to the High Court or other authority to which the advocate is subject in the exercise of his profession.

151 CHAPTER X EXAMINATION OF WITNESSES-151. Indecent and scandalous questions.

The court may forbid any questions or inquiries which it regards as indecent or scandalous, although they may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.

152 CHAPTER X EXAMINATION OF WITNESSES-152. Questions intended to insult or annoy.

The court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form.

153 CHAPTER X EXAMINATION OF WITNESSES-153. Exclusion of evidence to contradict answers to questions testing veracity.

When a witness has been asked and has answered any question which is relevant to the inquiry only so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but if he answers falsely he may afterwards be charged with giving false evidence.

Exception 1 - If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2 - If a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted.

ILLUSTRATIONS

(a) A claim against an underwriter is resisted on the ground of fraud.

The claimant is asked whether in a former transaction he had not made a fraudulent claim. He denies it.

Evidence is offered to show that he did make such a
154 CHAPTER X EXAMINATION OF WITNESSES-154. Question by party to his own witness.

The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

155 CHAPTER X EXAMINATION OF WITNESSES-155. Impeaching credit of witness.

The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him:

(a) by the evidence of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit;

(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

(d) [Deleted by Act A729].

Explanation - A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives shall not be contradicted, though, if they are false, he ma
156 CHAPTER X EXAMINATION OF WITNESSES-156. Questions tending to corroborate evidence of relevant fact admissible.

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which the relevant fact occurred, if the court is of opinion that the circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact to which he testifies.

ILLUSTRATION

A , an accomplice, gives an account of a robbery in which he took part. He describes various incidents, unconnected with the robbery, which occurred on his way to and from the place where it was committed.

Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

157 CHAPTER X EXAMINATION OF WITNESSES-157. Former statements of witness may be proved to corroborate later testimony as to same fact.

In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

158 CHAPTER X EXAMINATION OF WITNESSES-158. What matters may be proved in connection with proved statement relevant under section 32 or 33.

Whenever any statement relevant under section 32 or 33 is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

159 CHAPTER X EXAMINATION OF WITNESSES-159. Refreshing memory.

(1) A witness may while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory.

(2) The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if, when he read it, he knew it to be correct.

(3) Whenever the witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of that document:

Provided the court is satisfied that there is sufficient reason for the non-production of the original.

(4) An expert may refresh his memory by reference to professional treatises.

160 CHAPTER X EXAMINATION OF WITNESSES-160. Testimony to facts stated in document mentioned in section 159.

A witness may also testify to facts mentioned in any such document as is mentioned in section 159 although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

ILLUSTRATION

A book-keeper may testify to facts recorded by him in books regularly kept in the course of business if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

161 CHAPTER X EXAMINATION OF WITNESSES-161. Right of adverse party as to writing used to refresh memory.

Any writing referred to under section 159 or 160 must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

162 CHAPTER X EXAMINATION OF WITNESSES-162. Production of documents and their translation.

(1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to court notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court.

(2) The court, if it sees fit, may inspect the document unless it refers to affairs of State, or take other evidence to enable it to determine on its admissibility.

(3) If for such a purpose it is necessary to cause any document to be translated, the court may, if it thinks fit, direct the translator to keep the contents secret unless the document is to be given in evidence, and if the translator disobeys the direction, he shall be held to have committed an offence under section 166 of the Penal Code [Act 574] .

163 CHAPTER X EXAMINATION OF WITNESSES-163. Giving as evidence of document called for and produced on notice.

When a party calls for a document which he has given the other party notice to produce, and the document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so and if it is relevant.

164 CHAPTER X EXAMINATION OF WITNESSES-164. Using as evidence of document production of which was refused on notice.

When a party refuses to produce a document which he has had notice to produce, he may not afterwards use the document as evidence without the consent of the other party or the order of the court.

ILLUSTRATION

A sues B on an agreement, and gives B notice to produce it. At the trial A calls for the document, and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A , or in order to show that the agreement is not stamped. He may not do so.

165 CHAPTER X EXAMINATION OF WITNESSES-165. Judge's power to put questions or order production.

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that:-

(i) the judgment must be based upon facts declared by this Act to be relevant and duly proved;

(ii) this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which the witness would be entitled to refuse to answer or produce under sections 121 to 131 if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any qu
166 CHAPTER X EXAMINATION OF WITNESSES-166. Power of jury or assessors to put questions.

In cases tried by jury or with assessors the jury or assessors may put any questions to the witnesses through or by leave of the Judge, which the Judge himself might put and which he considers proper.

167 CHAPTER XI IMPROPER ADMISSION AND REJECTION OF EVIDENCE-167. No new trial for improper admission or rejection of evidence.

The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it appears to the court before which the objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.