LLB40103 – EVIDENCE I Best Evidence Rule

BEST EVIDENCE RULE - THE PRINCIPLES

Best evidence must be given in all cases.

Documentary evidence must be given as far as possible.

If documentary, it must be primary, as opposed to secondary.

If oral, it must be original, as opposed to hearsay

BEST EVIDENCE RULE
Definition: court only admits the best evidence available.

Only the best evidence available, and nothing else?

Under Common Law, it was earlier held that only best evidence would be
admitted, and nothing else, as decided the case of R v Quinn & Bloom [1962]
QB 245.
R V QUINN & BLOOM

In this case, the appellants carried on business as club proprietors,

charged for conducting striptease performance at the premises.

One of the exhibits tendered by the prosecution was a film which was
a reconstruction of the striptease performance taken three months
after the complained event.
R V QUINN & BLOOM
•The court said:-
• The film was in essence a reconstruction of the alleged crime and
quite apart from the interval of three months, we think the
evidence of this type is inadmissible…
• it is obvious that to allow such a reconstruction would be most
unsatisfactory for the reason that it would be most impossible to
analyse motion by motion those slight differences which may in
totality result in a scene quite different character from that
performed on the night in question.
R V QUINN & BLOOM

•Indeed, it was admitted that some of the movements

in the film (like the snake movements) could not be
said with any certainty to be the same movements as
were made at the material time.
•In our judgment, this objection goes not only to
weight, as was argued, but to admissibility, it is not
the best evidence.
 HOWEVER, THE TREND CHANGED.
•In Garton v. Hunter [1969] 1 All ER 451, Lord Denning MR said that:

That old rule has gone by the board long ago. The only remaining instance of it
that I know is that if an original document is available in one’s hand, one must
produce it. One cannot give secondary evidence by producing a copy.
Nowadays we cannot confine ourselves to the best evidence. We admit all
relevant evidence. The goodness or badness of it goes only to weight, and not to
admissibility. It changes the best evidence rule. It brings out a scenario that if one
have the original copy of evidence, one must produce it but not a photocopy of
it. However, if one only have the photocopy of the evidence, the court still render
it as admissible but the weight of the evidence will be decided by the court.
BEST EVIDENCE RULE - CL

•However, the trend changed.

•In the case of Kajala v Noble [1982] 75 Cr App Rep 149, the
appellant was charged with behaving in a threatening manner.

•Only copy of a video cassette recording was adduced as

evidence in the trial and it was admitted.

•The original copy was in the possession of BBC who as a matter

of policy did not allow the original to leave their premises.
 KAJALA V NOBLE

As regard to best evidence rule, the court stated:

 …the old rule that a party must produced the best evidence that the nature of the case would

allow no longer applied except where the original document was available in the party’s

hand.

 The court was not confined to the best evidence but could admit all relevant evidence.
 The goodness or the badness of it goes to weight and not admissibility.

 The old rule was confined to written documents in the strict sense of the term and had
no relevance to tapes or film.

 Accordingly the prosecution was entitled to rely upon the copy, which copy the justices
were satisfied was an authentic copy of the original.
BEST EVIDENCE RULE – M’SIA

•Chow Siew Woh v PP [1967] 1 MLJ 228

•This was an appeal against the conviction of the appellant for

murder.

•The deceased made a dying statement which was recorded by

the police but this was not produced in evidence.

•It was also alleged on appeal that the trial judge had
misdirected the jury on an alleged suicide attempt by the
appellant, when the evidence did not support the allegation.
CHOW SIEW WOH V PP

Held:

Because of the misdirection or non-direction as to the alleged suicide

attempt and the non-production of the best available evidence, to wit,
the dying statement, the verdict of the lower court cannot stand and
the conviction must be quashed.
BEST EVIDENCE RULE – M’SIA

•PP v Lim Kuan Hock [1976] 2 MLJ 114

•The respondent was charged with another with the offence of armed
robbery contrary to ss 392 and 397 of the Penal Code.

•The learned president while accepting the identification by witness of

the accused at an identification parade, and noting in his record that
he had no doubt that the “accused took part in the robbery” held that
the defence had cast a reasonable doubt on the prosecution story.”

•The defence case was an alibi.

PP V LIM KUAN HOCK
•Held:

•although the onus was on the prosecution throughout to prove the guilt or
innocence of the accused, in this case as it was on record that upon
identification the learned president had said he had no doubt the accused
took part in the robbery, therefore, it would require very solid grounds to hold
that the defence had cast a reasonable doubt on the prosecution story;

•on the evidence the accused–respondent ought to have been convicted as the
best evidence of the alibi was not produced and tested.
BEST EVIDENCE VS. ADMISSIBILITY

By virtue of section 136 Evidence Act 1950, condition for admissibility

is relevancy, not as to whether the evidence is the best or not.

It was decided in the case of KPM Khidmat v Tey Kim Suie [1994] 2
MLJ 627, SC.
KPM KHIDMAT V TEY KIM SUIE

The respondent brought an action against the appellant for the

recovery of a sum of RM1,581,870.90 together with interest and
costs, which the respondent claimed was the sum due to him for works
done under certain agreements.

The respondent testified that after completing the works under the
agreements, he submitted his claims by way of summary of accounts
prepared by Ah Lian, a clerk.
KPM KHIDMAT V TEY KIM SUIE

•Apparently, the summary of accounts were taken from the respondent’s own
record book in which was recorded the actual work completed by him.

•He was however, unable to produce the book in court.

•Based on the above evidence of the respondent, there being no other

supporting evidence except the summary of accounts, the judicial commissioner
found on a balance of probability that the respondent had discharged the
burden of proof of his loss and accordingly, entered judgment for the sum of
RM1,581,870.90 with interest and costs.
KPM KHIDMAT V TEY KIM SUIE

•In allowing the appeal, the court held:

•(1) The judicial commissioner was wrong in law in relying on the

summary of accounts prepared by Ah Lian, who was not called as a
witness nor made available to the defendant.

•Moreover, the record book of the respondent, which was the source
document upon which the summary of accounts was prepared, was
never produced and the respondent had not been called to explain
the facts and the basis of the calculation of the amount claimed.
KPM KHIDMAT V TEY KIM SUIE

(2) When documentary evidence is tendered,

primary evidence of the said document must be
adduced except if it can be shown that the original
record had been lost or destroyed. The burden of
proving that the record book had been lost or
destroyed lies on the party seeking to adduce
secondary evidence of the contents of the record
book. This the respondent had not done.
(3) Here, although the appellant did not challenge
the truth of the summary of accounts, the appellant
never agreed to dispense with formal proof of the
debt.
KPM KHIDMAT V TEY KIM SUIE

(4) Since the summary of accounts were inadmissible, the

respondent could not rely on any documentary evidence to
substantiate his claim. His claim therefore failed.
BEST EVIDENCE RULE – M’SIA

For computer-produced documents, see the case of Gnanasegaran

Pararajasingam v PP [1997] 3 MLJ CA
BEST EVIDENCE RULE – M’SIA

•Pendakwa Raya lwn Cheah Soo Tatt [2018] MLJU 1164

• Now the best evidence rule as seen as common law is not the law anymore. In
Malaysia for example, under section 5 of the Evidence Act 1950, all evidence is
relevant and admissible if it connected to facts in issue or relevant facts in any of the
way mentioned from sections 6 to 55. Even though the tendering of best evidence is
not necessarily required as long as relevant evidence is available, sometimes the non
tendering of best evidence could be fatal to a case. For example, drug in trafficking
cases is the best evidence and the subject matter of facts in issue and non- tendering
of the drug is fatal to the case. In fact, an acquittal is definitely undoubted if the
drug is not tendered.
BEST EVIDENCE RULE – M’SIA

PP v. Tan Hock Beng [2002] 3 CLJ 177

 The photographs of the motorcycle concerned were not acceptable as sufficient

evidence.

 The best evidence rule must apply and the motorcycle should have been produced.

 Photographs are no substitute for substantive evidence; at most they are

corroborative evidence.
 BEST EVIDENCE RULE – M’SIA
Ang Game Hong & Anor v Tee Kim Tiam & Ors [2018] 4 MLJ 432
 It was contended on behalf of the second and third defendants that the plaintiff’s title in the land is
defeasible on two grounds:
 (a) there was fraud on the part of the plaintiff

 Held: the best evidence rule requiring proof not by the ‘best evidence’ but by the ‘best evidence
available’ (see Juta Damai Sdn Bhd v Permodalan Negeri Selangor Bhd [2014] 5 MLJ 676).
BEST EVIDENCE RULE – M’SIA

• Ang Game Hong & Anor v Tee Kim Tiam & Ors [2018] 4 MLJ 432

 We therefore agreed with the plaintiff that the failure on the part of the second and third defendants to

make use of the best evidence available to prove their case should bar them from disputing on the matters

coinciding with the plaintiff’s knowledge of their interest before this court.

 What is the best available evidence in this case?

 (Failure to cross-examine). Failure to cross-examine will amount to an acceptance of the witness’s testimony
 BEST EVIDENCE RULE – M’SIA
• Nasraf Bin Juan v Pendakwa Raya [2017] MLJU 97 (COA

• charged under s.302 PC, deceased was said using hp (P40A).

• PW4 said that the appellant admitted to him that he had killed the deceased

• The appellant also informed him that the hand-phone, P40A which he had given

to PW4 was the deceased’s hand-phone.

• PW1, PW2, PW3 and the appellant’s nephew merely identified the hand-

phone, P40A from the photograph, exhibit P24. They were never recalled to

identify the actual hand-phone.

• The best evidence rule was not adhered to.

BEST EVIDENCE RULE – M’SIA

Further cases –
 Sampo Materials (M) Sdn Bhd v. Tenaga Nasional Bhd [2015] 9 CLJ 902

 UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785