November 2017

Question 1:
(a) -
● Legal Burden and Evidential Burden.

(b) -
● S.4 describes presumptions - S.114A seems to be presumption of law
●
Question 2:

● Documentary evidence - S.3.

● Contents of documents may be tendered as evidence either as primary or secondary
evidence - S.61.
● S.64 - should be tendered as primary evidence unless situations under S.65 applies.

Email:
● Relevant - S.5.
● Subramaniam v PP - out of court statement tendered for the truth of the contents -
hearsay. Can arise in documents - Myers v PP.
○ However, this is not tendered for the truth of the matter stated - hence, no
hearsay.
● Mode of proof - documentary evidence - S.3. Need to show under S.91 illustration (a) - it
is an agreement.
● S.90A - prove ordinary use by certificate and good working order.
● Gnanasegaran v PP - ordinary use may be proven by calling witnesses or certificate.
● Where ordinary use cannot be proven, admit the document under common law Maqsud
Ali & Mohd Kharyry - only need to prove good working order.

Maha’s Letter:
● Relevant under S.7.
● Mode of proof - documentary evidence - S.3.
● Maha should be called as a witness to give oral evidence under S.60(1). Where courts
want to examine letter - S.60(3). S61, S.62.
● Unless S.64 & S.65 applies.
● Signature needs to be proved - S.67 & 68 - done via S.45, 47 or 73.

Rosie’s Letter:
● Relevant under S.7.
● Mode of proof - documentary evidence.
● Hearsay - Subramaniam, Myers v DPP.
● Exceptions - S.32(1)(b) - Rosie only in Sabah (not “unavailable”) and no personal
knowledge.
● Apply S.73 instead - if supplier of information does not have personal knowledge, cannot
apply.
● Discuss S.17 - admission - also an exception to hearsay.
 ● Tender original document - unless S.64 & S.65 applies.

Initially on the facts, there was no contractual relationship between BDSB and JSB. However,
the parties then decided to contract directly with each other. Thus, in order to obtain payment
that is owed to JSB, they will need to bring a claim for breach of contract. Therefore, they will
need to prove that a contract has been formed between themselves and BDSB. In order to do
so, they will want to adduce the following evidence.
Email between BDSB and JSB and Maha’s letter
Essentially, the email and letter form the contract and therefore will be relevant under s.5
EA 1950 as it is a fact in issue. Both the email and the letter will need to be proved according to
s.91 EA 1950 as they form the agreement. This is seen in illustration (a) to s.91. Hence, both the
email and the letter must be tendered as evidence as proof of the contract and the terms
thereof. However, the email must also be proved according to s.90A EA 1950 as it is a
computer-generated document. Here, JSB may either tender it according to s.90A(2) by
tendering a certificate signed by a person who either before or after the production of the
document is responsible for the management of the operation for which that computer was
used where the presumption in s.90A(3) will apply or by oral evidence by the same person who
can sign the certificate as permitted by Gnanasegaran but oral evidence must also be given on
the matters stated in s.90(3) as the presumption does not apply. If s.90A cannot be satisfied, JSB
may rely on the decision of Mohd Khary which requires JSB to prove the accuracy of the
document by showing that it was not tampered with. As for Maha’s letter, she must be called as
a witness to adduce the evidence.
Rosie’s letter
This is relevant under s.9 EA 1950 as it supports the inference that the contract does exist.
However, it may be hearsay as Rosie would not be able to attend. It is also being tendered for
the truth of the matter stated and thus amounting to hearsay under Subramaniam. This is
because the letter will prove that JSB is entitled to payment and that it was promised that it will
be made within 14 days.
Therefore, exceptions must apply for it to be admissible. S.32(1)(b) EA 1950 permits hearsay
evidence when the statement was made in the ordinary course of business. Here, the it must be
said that the maker’s attendance cannot be procured without an amount of delay or expense
which is unreasonable. On the facts, Rosie is only in Sabah, making it difficult to satisfy the
requirement. Moreover, in Tempil Perkakas v Foo Sex Hong, the court held that the maker must
have had personal knowledge of the ordinary course of business at the time the statement was
made. It will be highly unlikely that Rose had such personal knowledge as she was merely an
accounts clerk. Thus, this exception may not apply.
Regardless, s.73A EA 1950 allows hearsay evidence in some circumstances and the court can
dispense with attendance even where witness is available. It also permits second hand hearsay
as there is no need for personal knowledge as long as it is part of a continuous record where the
maker made the statement in the performance of a duty to record information supplied to him
by a person who had or might reasonably have had personal knowledge of those matters. Thus,
only supplier of the information given to Rosie must have personal knowledge. Here, it is likely
to apply on the facts.

Question 3:
(a) -
● S.45 requirements - needs to be one of the natures provided for (foreign law,
science or art, handwriting) & witness has to acquire the special skill.
● Lee Lian Chen - special skill is acquired either by education or experience.
● Junaidi - in the event there is a lack in the means the special skill is acquired -
goes to the weight of the evidence.
● DMH - no requirement that there is a need to have testified in court before.

● Genius - waste disposal - science - Chandrasekaran - liberal interpretation.

○ OTF, is held that he is an expert - assume that he has acquired special
skills. Apply Junaidi.

● Rookie - environmentalist - science.

○ OTF, is held that he is a freelancer - need to establish if has acquired
special skills. Apply Lee Lian Chen and Junaidi.

(b) Sooka will be a competent witness under S.118 EA. In the case of Ghouse bin Haji
Khadir - all competent witnesses are compellable witnesses unless privilege applies.

OTF, husband and wife - marital communication privilege under S.122. Requirements:
must be or have been married, and communication must have been made at the time
they were married. OTF, communication was made to the wife - during the course of
marriage - covered under privilege. Privilege information can only be waived by privilege
holder (Genius), where it is a suit between the husband and wife, or one is persecuted
for a crime against the other. OTF, latter 2 do not apply. Only if Genius waives will the
information be disclosed.

Therefore, DPP can call Sooka as PW, but will not be allowed to tender any
communications made between them unless waived by Genius.

Question 4:
 (a) Judge will make a finding on credibility in a number of ways. First, demeanor - but this is
not everything, as held in Wong Muk Ping v PP. Judge will also determine credibility
during witness’ cross examination - S.146 (a),(b),(c). Judge can also do so by comparing
all other evidence with the evidence of the witness.

(b) Trial judge has the benefit of seeing the demeanor of the witness and the appellate
courts are slow to interfere. (Furthermore, inconsistencies from the witness’ evidence
should be obvious from the notes of evidence, etc). Discuss points under (a).

Question 5:

(a) Based on R v Sharp - hearsay evidence is an out of court statement tendered in court is
generally inadmissible. This was reflected in Malaysia in the case of Subramaniam v
PP, where an out of court statement is tendered for the truth of the matter stated, it will
be inadmissible unless any of the hearsay exceptions under common law or the EA
apply. This is mainly because it does not reflect the best evidence rule. In the UK case of
Teper v R, it was held that hearsay evidence did not reflect the best evidence rule as it
was not a statement given under oath. This means that the truthfulness and accuracy of
the statement cannot be assessed as the maker is not subject to examination. In
Malaysia, the best evidence rule is reflected in S.60 EA and it was also highlighted in
Recaliva Design Steel v Vista Access that the best evidence is when it is perceived by
the own senses of the witness.

(b) Both statements are relevant under S.9 to identify the perpetrator, and S,7 to infer any
FII or RF. Based on OTF, they were statements made out of court, hence hearsay.
Subramaniam v PP - truth of the matter stated, apply exceptions. Relevant exception is
S.32(1)(a) - requirements:
a. The maker is dead;
b. The death of the maker is in question - OTF, only charged with illegal abortion -
however, it is arguable that the act of illegal abortion has caused the death of the
maker.
c. The statement must surround the facts that caused the death - Pakala Swami v
KE - statements can be exculpatory of the accused. Any statement which shows
where she was going and etc was relevant.
d. Exact words of the accused should be tendered - Ong Her Hock v PP.
e. Proviso - no need for the deceased to be at the expectation of death when
statements were made.

Question 6 - see revision PYQ.