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Documentary Evidence
DOCUMENTARY
EVIDENCE
Start by looking at section 3 of EA 1950
& definition of evidence given under this section. It provides, and will
notice it includes
i.
Oral evidence given by witness in court
ii.
Document tendered in court for court’s
inspection = documentary evidence
See there that it has the word ‘includes’
& documentary. It has a wide definition. Therefore it means there can be
other forms evidence. This section does not only give you definition of what is
evidence but also gives on definition of what it meant by ‘document’ = any
matter expressed or described…Not necessary to memorize it, just take note of
the section that provides it. It is given the widest possible definition
interpretation given. It is given so as to allow incorporation of evolving concept
of document and advances in technology. Can Include:
i.
Audio recordings
ii.
Video recordings
iii.
CCTV
TAPE
RECORDINGS
1.
R v Maqsud Ali [1965]
-
“we see no difference in principle between
a tape recording and a photograph… it oes appear to the court wrong to deny to
the law of evidence advantages to be gained by new techniques and new devices…tape
recording is admissible in evidence.”
-
What happened was, (English case) accused
and co-a charged with murder and there was a secret recording of the
conversation they had which was in the office secretly recorded by the police
and what these 2 accused had done confessed to the crime on what they going do
etc, the prosecution wants to tender in the evidence
-
One issue of the court is whether they can
accept it as evidence in court. No reason to avail itself of advancement of
technology and should take note to the advancement, consider it similar to
photograph = can be admitted as evidence.
-
Here it was that the dialect spoken in it
was regional dialects so had to transcribed etc.
-
Must be transcribed in official language
In addition to the general requirements,
there are others to satisfy when dealing with tape recording, audio recording
etc.
2.
Mohd Ali bin Jaafar
a.
Tape must be run through and found to be
clean
b.
Recording machine must be in proper
working order
c.
Tape not tampered or altered, chain of
evidence must be established
d.
Witness must have played over the tape and
heard voices which they can identify
e.
Transcript prepared and tape played over
and checked with transcript
You do not use it unless question involves tape recording issue.
3.
PP v DSAI
-
Here there was recording between umi.. and
a datuk, ran to 7 tapes, but the evidence tendered in court was only 4 tapes,
has to be rejected because original was 7 tapes and now 4 meaning tampered and
unreliable = rejected .
*take note CCTV falls within documentary
evidence because now falls under computer generated documents in Ahmad Najib
Aris, under section 90A.
Take note of Section 66. Also, take note of section 58
Now going to look at each of these sections
one by one.
SECTION 58
-
Applies to civil cases only
-
General rule is a fact has been admitted
to there is no need to prove said fact
-
Exception court has discretion and call
for strict prove
-
3 types of admissions
-
Anything admitted need not be proved but
even admitted the court can at its discretion ask party to prove.
i.
At the hearing
ii.
In hearing before the hearing
iii.
Pleadings “in writing before the hearing”
1.
Jaafar shaari v Tan Lip Eng [1997]
-
3 things here (check again)
§
Note that section 23 is without prejudice
communications (oral/writing)
§
Can be either express or implied from
facts
§
To encourage negotiations and settlement
§
Use this section to prevent someone to use
what you have admitted
SECTION 61
-
Quite straight forward and provides that
the contents of documents can be proved primary or secondary & just go
through the steps
-
When discuss on documentary evidence begin
with section 59 and point out the rule and cross refer to section 61 (where
proven either by primary/secondary) then state these steps
2.
PP v Tan Huang Huang
-
Saying all the provisions 59-66 these
provisions apply to both civil as well as criminal when it comes to documentary
evidence.
SECTION 62
-
Gives you definition of primary evidence
-
Document produced for inspection of court
talking about original document
-
When you are reading this section need to
read with the light of explanation 1, 2 and 3.
Explanation 3: Document produced by
computer = primary evidence. The hard copy printed out from computer straight
away deemed as primary evidence. Deemed as original
Explanation 1: Example the signing
that takes place in the TV and there are 2 papers both are primary. Miss Mages
explanation and example of her waived fee.
Explanation 2: Any documents of
number of documents which have all been created same uniform process all deemed
to be primary. So if you have a document created in the computer, printed 7
copies, all 7 are primary copies created in same uniform copy and difference
with taking the printed out to photocopy, the rest are not primary copies.
Carbon copies technically are primary, so
example bank slip the few copies together carbon copies would be primary. But
not all the carbon copies are primary.
3.
PP v Rengasamy
-
Court came to the conclusion carbon copies
are primary documents
4.
Kok Kee Kwang v PP
-
Court came to the conclusion that carbon
copies are not primary because in some situations not created in same uniform
process.
-
Just because carbon copies does not
necessarily mean it is primary, you have to ask yourself whether it was created
in same uniform process or not
5.
Tsia Development v Awang Dewa
-
Here the judge again had…
-
The judge referred authorities cited from
India and Sarkar case as well, then he asked on typed written carbon copy, top
coy sign first and later bottom copy signed, not created in uniform process. The
court considers when the signature put in the first, or top copy.
-
Meaning not created in same uniform process
= secondary
-
Conclusion typed written carbon copy and
bottom not properly signed or initial cannot fall under explanation 2.
-
So have to look at facts and decide.
6.
Alliedbank v Yau Jiok Hua
-
Court said carbon copy put in the same
process can be primary.
-
So now whether in same uniform process or
done separately, if same uniform process = primary if not secondary. Need oral
evidence to determine so.
7.
Ooi Thean Chuan v Banque de Paris
-
Judge asked this question, how many
original can there be? You may think of 1, but there can be more than 1.
Example when you go and buy an original dvd & cd, there can be millions but
they are all original.
-
But said this is a false argument, there
can be more than 1 original provided created in the same uniform process
-
He was prepared to accept that carbon
copies can be original but created in sae uniform process? That is the issue.
SECTION 63
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Gives you the definition of what is meant
be secondary evidence.
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*highlight the word ‘includes’ in the section
-
Refer to the list found in the statute
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Oral evidence/someone read or heard of the
documents and whatever means of perceiving the documents (what others it
includes, brail for example for the blind)
-
You will see one common thing in this
section ‘copy’ but not defined under this Act
8.
Lee Weng Kin v Menteri Hal Ehwal Dalam Negeri [1991]
-
Look at this case for definition of what
is meant by ‘copy’ under this section where it must be prepared from the original
and accurate reflection of the original = copy
-
If copy different from original is not a
copy
9.
Lee Kok Nam v PP [1999]
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The court made it very clear Photostat copy
under this section paragraph (d) would fall within Photostat copies.
SECTION 64
-
Must bring original unless really couldn’t
retrieve it
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As a general rule document must be proved
by primary evidence within the definition of s.62
-
It enforces the best evidence rule
10.
Popular Industries v Eastern Garment
-
Here reinforces the best evidence rule
11.
KPM Khidmat v Tey Kim Suie
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For documentary, strictly apply the best
evidence rule, bring in strictly original unless can show exception of section
65 applies.
12.
Alliedbank v Yau Jiok Hua
-
Court made it very clear just because you
satisfy requirement of bringing in primary document, does not mean automatically
admissible
-
(i) check relevancy – primary evidence not exempted from
relevancy
-
(ii) Mode of prove (primary/secondary, 61-65) If you want to
bring in secondary must satisfy section 65.- still does not mean everything
admissible, see the last one
-
(iii) see whether tendered to prove truth of content – not admissible unless maker in court
-
So even if you get pass rule no 1 and 2,
get caught under 3rd rule. We are only dealing with mode of prove here.
PROOF OF
EXECUTION
-
This whole thing don’t arise when the
document is in the agreed bundle of document
ORIGINAL
DOCUMENT MUST BE PROPERLY STAMPED
-
Cross refer to section 52 of Stamp Act
1949
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If it is a document requires stamping cannot
tender as evidence unless duly stamped
-
This rule doesn’t apply to criminal cases
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Exception can be found in this section as
well
i.
Can be admitted on payment of duty and
penalty
ii.
Does not apply to criminal cases
iii.
Document executed by/on behalf of
government
-
Purpose of this rule is pure public policy
to ensure everyone pays their stamp duty
-
Not really legal aspect but law helping government
to get $$
1.
Chiew Vui Kiet v Chong Fook Thein
-
Here court took harsh approach and not
followed today because court soon realise purpose of rule
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If original not stamped, cannot tender the
secondary
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Even after penalty paid, cannot tender it because
not starting from original
-
Cannot bring in secondary for there is no
evidence to show original stamped
2.
Malayan Banking v Agencies Service
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We now follow this position
-
As long as you pay the fine and duty can
accept the tendering of the document
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Because recognized as a public policy
factor and not legal rule
Can you raise an objection based on non-payment
of stamp duty? You cannot, it it considered to be bad form to raise such
objection. The Bar Council in UK has the rule that you cannot do so. In
Malaysia, think we are in similar position as UK.
DOCUMENT
MUST FALL WITHIN PARA (a)- (g)
-
The document must fall within one of these
under section 65(1)
3.
Popular Industries v Eastern Government
SECTION
65(1)
PARA (a)
-
Must be read subject to the notice to
produce under s.66
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The original is with other party/other
party out of jurisdiction of court
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Will apply only if notice to produce has
been issued under section s.66 but the person whom the notice is issues is
disobeying or likely to disobey
-
When you read para (a) cannot read in
isolation but together with section 66
SECTION 66
-
“shall not be given…notice to be issued”
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Two situations, one is there is notice,
need to follow, second is court dispensed hence no need to notice
-
What are the situations can be dispensed
by the court?
i.
When document proved itself is a notice
ii.
Nature of document
iii.
Obtained by fraud
iv.
Original in court by adverse party
v.
Possession out of reach of court (check other requirements)
-
It is quite wide so court can dispense the
notice
-
In the event examined on this, must cover
both 65(1)(a) & s.66 together.
SECTION
65(1)
PARA (c) – VERY IMPORTANT
-
If the original lost or destroyed not due
to your own fault of your own and cannot produce it within reasonable time, then
court can allow to submit secondary document
Note: 2 limbs are disjunctive no need for default
or neglect under 1st limb
-
If document is destroyed or there is no
need to show the absence of neglect or default
-
If it is any other reason, then need to
prove not own default or neglect
4.
Kwang Boon Keong
-
This is where court declare two limbs are
disjunctive and not conjunctive
5.
KPM Khidmat v Tey Kim Suie
-
Party wants to rely on it has to establish
para (c)
-
Need to show diligent search has been
undertaken before court accept document lost or destroyed
6.
Kalki Jewellery
-
The issue here was concerning fax here on
thermal paper where the print will disappear
-
He faxes were in thermal paper he usually
will keep Photostat copy of all the faxes unfortunately the original faded
words cannot be seen in court
-
Question before court can he be allowed to
bring in this secondary copy
-
On the facts here original has been lost/destroyed
because of nature of paper
-
So allowed secondary one in
*done with s.65 the rest just take note*
EXCLUSION
OF ORAL EVIDENCE
-
Can you bring in parole evidence rule to
contradict a written document?
-
GR: not allowed to bring in extrinsic oral
evidence to vary the contents of a written document
-
Governed under section 91 -99
Section 91
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Terms of contract have been reduced into
writing/document by parties
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No evidence shall be given in proof of the
terms of the contract
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Except the document itself or secondary
evidence subject to s.65
-
So cannot bring in except the original
cannot be found for oral evidence to come in as secondary
Section 92
-
The rule to bring in secondary is very
limited, the section that clearly excludes parole evidence to contradict is
this section
-
Elements:
-
When any terms of a contract has been
proved according to section 91 (please take note s.92 only kicks in when the
terms of contract has been proven in accordance with s.91 and 91 tells you ,you
give me original or secondary only in situations it is allowed )
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No oral agreement or statement shall be
admitted for the purpose of:
-
i. contradicting
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ii. Varying
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iii. adding or
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iv. Subtracting
Proviso of para (a) – (f) exceptions.
7.
Datuk Tan Leng Teck
-
If 91 doesn’t apply, 92 doesn’t apply as
well
-
So need to see if document has been proven
under 91, if yes cannot bring in oral evidence unless fall under one of the
proviso
8.
Tan Cong v Alan Mcknight
-
In relation to para (b) where the
existence in separate oral agreement ….
-
He is an Australian and he wanted to buy a
car, he also wanted to make sure should he go back to Australia he could bring
this sback and exempted from duty so need to specify specifications in Malaysia
and Australia
-
He claims when spoke with salesman gave
assurance will satisfy both specifications and therefore purchased and put in
the order
-
However later the written contract had a
clear contradiction Tan Chong Motors don’t take any warranty that the
specifications to be suitable to other countries
-
But dangerous if dun allow oral evidence
to come in therefore Federal court here allowed for the oral evidence to come
in under proviso (b)
-
The oral statement clearly contradict the
contract
