Prima Facie Journey

What is evidence? People might hear this word but the truth is they don’t know what the exact meaning of evidence is. Evidence is derived from the Latin Word “evident evideria” which means that “to show clearly”, “to make clear”, “to discover clearly”, “to make plainly certain”, “to ascertain” and also “to prove”. In the other words, evidence is a piece of information that supports the conclusion. In Malaysia, the law that governs evidence is Evidence Law 1950.

Evidence can be in any form which as stated below:

a) Direct Evidence

It is evidence which immediately establishes the very fact in issue. Apart from that, direct evidence also establishes a particular fact without the need to make any inference in order to connect the evidence to the fact. For direct evidence, the most commonly known as one of the direct evidence is eyewitness testimony where the witness describe exactly what he saw, heard and experienced. The direct evidence is the most admissible evidence and will be accept by the court.

b) Circumstantial Evidence

It is evidence that may be defined as any fact from the existence of which the judge may infer the existence of a fact in issue. Circumstantial evidence is different with direct evidence where it requires an inference to be made in order to establish a fact and not the evidence direct to the issue. There are few cases which show how the circumstantial evidence being used. In the case of Bakshish Singh v The State of Punjab, the court stated that:

“In a case resting on circumstantial evidence, the circumstances put forward must be satisfactory proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

In this case, it is clearly that the circumstantial evidence that had been brought as evidence should be a strong evidence and consistent in order for it is been accepted by the court. The circumstantial evidence is like a strand of rope. If one of it being cut off, the strength of the rope can be still strong if the weight of the ropes that had been cut off is a minor one. This is how the circumstantial evidence is being illustrated.

c) Real Evidence

It is evidence in material form produced before the court so as to enable the court to draw its own conclusion or inference by using its own senses. In a simple word, real evidence is evidence that is a tangible object and is often used interchangeably with physical evidence to describe objects that are used to prove or disprove arguments in trial or at a hearing. For examples, tapes, photographs and films may form the real evidence.  In the case of Lee It Leo v R, the court stated that where real evidence is adduce by the prosecution as an exhibit it is necessary for it to show the full history of that exhibit from the time it first came into police custody until it is produced in court. Based on this case, it shows that the real evidence is important for the court to know everything about it before make it as admissible evidence.

e) Primary Evidence

It is evidence which under every possible circumstance affords the greater certainty of the facts in question. It is also refers to the best evidence which under any possible circumstances, affords the greatest certainty to the facts in question. Under section 62 of the Evidence Act 1950, primary evidence means the document itself produced for the inspection of the court. For example, the primary evidence is when a document is produced to be inspection of its existence and contents and the prosecution is required to prove the contents of the document. The document will be considered as the primary evidence if it is the first document being served by the prosecution in his case. In common law, the primary evidence is always being relied as the best evidence and that is why in the common law cases, the judge will used the terms of best evidence rather than primary evidence.

In the case of Omychund v Barker, Lord Hardwicked stated the rule of best evidence as follows;

“The Judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of case will admit.”

Apart from that, the rule had been stated too in the case of KPM Khidmat Sdn Bhd v Tey Kim Suie which Mohamed Dzaiddin SCJ stated that:

“It is a well-established rule of evidence that when documentary evidence is tendered, primary evidence of the said document must be adduced except in the cases under section 65 of the Evidence Act 1950. According to Sarkar on Evidence, (14^th Ed, 1993) at page 961, when a given matter has been expressed provision of section 65, the writing, unless by the other side, must be produced if it is desired to prove the matter express it.” In this case, the document will be the primary evidence by the prosecution.

Basically, primary evidence provides direct or firsthand evidence about an event, object, person or work of art and contemporary to the events and people described.

f) Secondary Evidence

It is evidence which is admitted in the absence of primary evidence. For example, if the original document is lost, it is good to have a copy and the copies of the document are known as secondary evidence. The secondary evidence is stated in the section 63 of the Evidence Act 1950. There are five different types of secondary evidence which are:

a) Certified copies

b) copies made by mechanical processes and copies compared with such copies

c) Copies made from or compared with the original

d) Counterparts

e) Oral account of contents of documents.

This five types of form of evidence will be the guideline for the prosecution to tendered it to the court and as mentioned above, it will always be the discretion of the court to accept it or not.

However, the types of the secondary evidences stated above are not exhaustive. In the case of Smt Lachcho v Dwari Mal, the document tendered to the court does not falls within any of the clauses of section 63. In this case, it was held that a draft notice from which a final notice was prepared is admissible ad secondary evidences. The judge in this case noticed that there is none of the types of the secondary evidences suitable with the draft. Hence, in his opinion, the draft is being copied to prepare the fair copies and it is usually the faithful reproduction of the draft which is finally given shaped of the documents. The judge used the clause 3 of the section which the draft notice is being used to compare with the fair ones. Even though there may not be direct evidence of the fact that the counsel had compared the draft with the final notice, yet from the very process by which the final notice was prepared, it must be deemed that it was so done which automatically compared it with the draft notice.

In conclusion, in order to tender the evidence to the court, it is important for the person to categorize first the evidences that he had and after that, adduce it to the court with the correct path. It is an important knowledge for the prosecutor because by tendering the evidences to the court will give the effect to his case whether he win or loss. Think wisely lawyers! Identified the issue first and bring the relevant evident to support your case.

      Thank you!