Prima Facie Journey

Therefore, Augustine Paul J (as he was then) in Public Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No3) [1999] 2 MLJ 1, 170 (HC) held that, if it is the duty of the judge to admit all relevant evidence, it is no less his duty to exclude all irrelevant evidence. However, there are some circumstances in which a court can readmit evidence after having rejected it. According to Wort J in Ram Keshan v Ramsohaj AIR 1939, in a situation where the judge having refused to accept the evidence in the first instance, he has no jurisdiction to take them again into consideration unless some solid explanation or reason could be given by the plaintiffs.

However, please remember that, the rules governing the admissibility of evidence are procedural in nature to ensure that an accused receives a fair trial and is therefore available for use in the accused’s  favour, whether he avails of it or not. In a criminal case, inadmissible evidence remains inadmissible even if the accused does not object to it.

The effect of failure to object to the admissibility of evidence depends on whether the evidence erroneously admitted is relevant or not. In other words, the question to be determined is whether it was in the first place admissible per se. For example, hearsay evidence which ought to have been rejected does not become admissible merely because no objection was taken earlier. [per Lee Hun Hoe CJ (Borneo) in Malaysia National Insurance Sdn Bhd v Malaysia Rubber Development Corporation [1986] 2 MLJ 124, 127 ].

Furthermore, in a situation where the evidence is admissible but the mode of proof is irregular, their Lordships in Popatlal v Visandji [1962] AC 715 took a stand that, when such circumstances occurred, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof.

So, when is the most appropriate time to make an objection? Mitter J in Govinda v Makbul Sekh’s infant AIR 1936 held, if the objection relates to the method of proof, that is, if secondary evidence is sought to be put in instead of the original, the objection must be taken at the earliest point of time. If the document is not admissible per se and if the secondary evidence of it is sought to be tendered, the right time to object would be at the time when the document is put in and not either at the appellate stage or at the time of the argument.