Law of Evidence – written notes – Emily Law

Topic 1: Introduction

 Law of Evidence can be divided into 2 branches:

a) Substantive law – law which determine rights & liabilities; it depends on the fact
of a case
b) Adjective law – law which determine how facts established in court & how the
law applies to the facts; procedural in nature

 Evidence regulates the fact finding process of the court in the following manner:
a) It determines the relevancy of the facts
b) It determines the manner in which a fact may be proved
o Eg: hearsay is not admissible in court as it is not the original speech and
the person does not have personal knowledge about it.
c) It determines how much proof will be required to establish a fact
o Criminal case: beyond reasonable doubt
o Civil case: balance of probabilities

 Purpose of the law of evidence:

a) To regulate proving of facts in judicial proceedings
b) To ensure like cases are treated alike
c) To limit evidence only to that which is relevant
d) To provide safeguards against manufactured & unreliable evidence
e) To achieve justice & fairness

 Adversarial vs inquisitorial system of trials

a) Adversarial – the judge acts as an impartial referee between two sides of the case;
judge does not question the witness but only listen to the arguments from both
side; judge have no power to make their own inquiries; many common law legal
systems are described as ‘adversarial’ (eg: Malaysia, UK, US, Australia)
b) Inquisitorial – the judges play an active part in the trial; judges conduct public
investigation of a crime; judges can question witnesses, interrogate suspects,
declare the verdict and decide on penalty; many civil law legal systems are
described as ‘inquisitorial’ (eg: Scotland, South Africa)