Relevancy

Evidence Law

Section 136(1) of EA provides that “When either party proposes to give evidence of any fact, the
court may ask the party proposing to give the evidence in what manner the alleged fact, if
proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if
proved, would be relevant, and not otherwise.”
Under this provision, the court has the discretion to admit facts provided that it is relevant.
Therefore, the party proposing to admit such facts must prove that the fact is relevant. Failing
would result the court in rejecting the evidence on grounds of irrelevancy.
In PP v DSAI No.3, the court rejected the admissibility of evidence based on irrelevancy. The
court held that “The truth or falsity of the allegations of sexual misconduct and sodomy is not a
fact in issue. No evidence can thus be led to establish that the allegations are true or false, as
such evidence is irrelevant and not admissible.
Besides, the failure to object the admissibility of an inadmissible evidence does not waive the
requirement of relevancy as held in Alcontara v PP “Although no objection had been raised to
the admission of one of the statement made by ASP Abdul Wahab which was clearly based on
hearsay and therefore inadmissible, the judge was nevertheless under an automatic duty to stop it
from being adduced, for inadmissible evidence does not become admissible by reason of failure
to object”

Relevant evidences illegally obtained

 USA
The principle is that “The Fruits of the poisonous tree is not admissible”
Generally, evidence tainted by illegality is not admissible.
 England & Wales
Fruits of a poisonous tree can be admitted provided it is relevant and not excluded by any
exclusionary rules of evidence.
Illegally obtained evidence can be admitted provided it is relevant and not excluded by any rules.
However, it is subject to the judicial discretion to exclude such evidence on grounds of
unfairness in criminal cases.
 Malaysia
Follows that of position in England & Wales.
This position is set out in the case of Kuruma v R where the defendant appealed against his
conviction for unlawful possession of ammunition, saying that the evidence had been obtained
by unlawful means, and should not have been admitted against him. It was held that the test to be
applied in considering whether evidence is admissible is whether it is relevant to the matters in
issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.
However, the court retains a wide discretion to exclude evidence. (applies to both civil and
criminal)
The exercise of the court’s discretion to allow or reject the evidence is provided in Noor
Mohamed v R, where it provides that “...... in all such cases the judge ought to consider whether
the evidence which it is proposed to adduce is sufficiently substantial, having regard to the
purpose to which it is professedly directed to make it desirable in the interest of justice that it
should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case
have only trifling weight, the judge will be right to exclude it.
However, the discretion is limited when it comes to admission and confession. This can be seen
in the case of PP v Hj Kassim. The short answer is that such a statement is not admissible if it is
excluded by any of sections 24, 25 and 26 of our Evidence Ordinance. It is to be observed that in
Kuruma v. The Queen their Lordships' enunciation of principle is qualified in these terms:–
"It is right, however, that it should be stated that the rule with regard to the admission of
confessions, whether it be regarded as an exception to the general rule or not, is a rule of law
which their Lordships are not qualifying in any degree whatsoever. The rule is that a confession
can only be admitted if it is voluntary, and therefore one obtained by threats or promises held out
by a person in authority is not to be admitted."

The rule in R v Sang has narrowed the rule in Kuruma, holding: “The rule allowing the
exclusion of evidence was described by Lord Diplock as ‘a discretion to exclude evidence which,
though technically admissible, would probably have a prejudicial influence on the minds of the
jury, which would be out of proportion to its true evidential value.”
*Therefore, the balance between the prejudicial value and probative value for admitting the
evidence will be considered by the court.

In Goi Ching Ang v PP, it was ruled that such evidence should be excluded if it operates
unfairly against the accused. This is because fairness requires fair trial. Fair process requires that
the legitimate interests of both the prosecution and the defence are adequately provided for.
However, in the Federal Court case of Francis Antonysamy v PP, it was held that the exclusion
of illegally obtained evidence is discretionary and the exercise of the discretion depends on the
facts of each case. In situation dealing with the admissibility of a statement leading to the
discovery of a fact, it was held that such statement or evidence should be excluded only if it was
obtained in circumstance of involuntariness that was extraordinary.
Blood Samples
Hanafi Mat Hassan v PP
Held: It is the general rule that evidence relating to the blood sample taken from the accused is
admissible as it is relevant even if it was taken without his consent The illegality obtained
evidence is admissible if it is relevant. However, it is still subject to the discretion of court to
exlude o unfairness.

DNA samples
DSAI v PP
Facts: The appellant had declined for his blood sample to be taken for the purpose of DNA
profiling. The defendant argued that this was illegally obtained by means or trickery and should
be excluded.
Held: Even if those exhibits recovered form the lock up were indeed illegally obtained, in law
they remain admissible if found to be relevant to the case.

Relevancy sections
 Section 6
Facts which, though not in issue, are so connected with a fact in issue as to form part of the same
transaction are relevant, whether they occurred at the same time and place or at different times
and places.
“So connected it becomes part of the same transaction” (Q of facts)
A.Paul: To exclude this fact will render the fact in issue unintelligible.
Sir James Stephen: "as a group of facts so connected together as to be referred to by a single
name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue."
Example: Snatch thief, victim shouts for help “stop thief” would be in the same transaction on
the fact in issue (snatch thief)
Chin Choy v PP has set out the test for the application of s.6. It was held that there is no
universal test where it depends on the circumstances of the cases. However, there should be a
guideline.
i. Proximity of time
ii. Proximity of place
iii. Continuity of action
iv. Community of purpose or design
 (either one)
However, it must be noted that the determination of “same transaction” still depends on the facts
of each cases.
Thavanathan v PP
Held: In each case, the Judge has to decide according to the circumstances, drawing the line
between the facts which are so connected with the fact in issue as to be part of the same
transaction and facts which are beyond that limit. No precise limits can be prescribed. In some
cases the transactions lie within narrow limits of time; in other cases they may be spread over a
long period. In some cases, two facts occurring at the same time and place may have no
connection between them; but in other cases two facts separated by a vast distance of time and
place may be parts of the same transaction. As stated earlier, it all depends on the circumstances
of each case. Where the transaction consists of different acts, in order that the chain of such acts
may constitute the same transaction, they must be connected by such factors as the proximity of
time, proximity or unity of place, continuity of action, and community of purpose or design.
In this case the court accepted facts occurred from September to November as forming part of
the same transaction.

Illustrative cases
(proximity in time)
Tan Geok Kwang
Facts: On information that the accused possessed firearm, the police raided the accused’s house
where he ran out. When he was ordered to stop, he hid into a bush and throw a hand grenade out
of the bush on the surrounding police where he was subsequently charged.
Held: The evidence that he threw a hand grenade out is relevant and admissible under s.6 as part
of res gestae. The hand grenade was so connected it was part of the same transaction.

Kok Ho Leng v PP
Facts: A telephone message received on the premises during a raid under the Betting Enactment
is under certain circumstances admissible in evidence under sections 6 and 7 of the Evidence
Enactment.
Held: It is admissible under two sections: 6 which is the section which deals with what are
known as "res gestae–i n England. I think that a telephone message has some analogy to the
shouting of the by-standers; further in view of the subsequent cutting of the wire I think that the
telephone message may be relevant under section 7.
Jaafar bin Hussain v PP
Facts: The accused when arrest was found in possession of a shotgun and hand grenade. He was
initially charged for the possession of a shotgun and a hand grenade but the charge on shotgun
was stayed. On the charge of hand grenade, the evidence that the accused had shotgun was
admitted. On appeal, the accused argued that the evidence should not be admitted as the charge
concerns on hand grenade.
Held: As in this case, one of the charges is stayed and the other charge is proceeded with, the
evidence touching the charge which has been stayed is admissible, as the facts are so connected
with the facts on which the other charge is born as to form part of the same transaction

PP v Sam Hong Choy

Facts: The prosecution's key witness, gave evidence that having heard the sound of gun-fire and
someone shouting "Tolong! Kejar perompak!" he saw two men running past him, one of whom
was later identified as the accused.
Held: In any event those words were in the nature of an exclamation and was a relevant fact
which would be admissible by virtue of s. 6 of the Evidence Act 1950. In the circumstances the
words heard by PW9 after the sound of gun-fire was admissible and did not infringe the rule
against the inadmissibility of hearsay evidence.

(continuity in action)
Hamsa Kunju v R
Facts: The accused was charged with assault at 9.45 pm. The issue in this case is whether the
evidence that earlier that morning on the same day the accused had an argument with the victim
at the work place is relevant.
Held: The whole of that evidence was part of the res gestae and was material and relevant. The
incident and his threat to report the matter to the union supplied a motive for the attack on him
by the appellant a few hours later. It was on an entirely different footing to use evidence tending
to show the previous bad character of the appellant or to use evidence of similar acts tending to
show that the appellant was likely to have committed the offence for which he was tried.
Although there were no proximity in time, there is a continuity of action/community of
purpose/design.
Aziz bin Muhammad Din v PP
Facts: The victim was raped on 31/1. That night, she spent the night with accused and only went
home on 3/2. Later, the father threatened and ask her where she went where she only told her
father that she had been raped. The issue here is whether the victim’s statement to her father is
relevant as it was made 3 days after the rape.
Held: The court noted the differences between complaint and statement.
Complaint = made spontaneously and voluntarily
Statement = not spontaneously and voluntarily
Since the victim’s statement was not made voluntarily as she had been threatened by her father,
it is no admissible. (statement)

 Section 7
Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in
issue, or which constitute the state of things under which they happened or which afforded an
opportunity of their occurrence or transaction, are relevant.
Facts which are not connected as res gestae but still connected to the fact in issue could fall
under this section.

(occassion)
Jainnad v R
Facts: The deceased and the accused had a quarrel on money. The deceased continued visiting
the accused to demand his money back where the accused promised to return on a particular
date. On that date, the deceased was killed.
Held: The fact that the accused had taken the money from the deceased and that the deceased
visited the accused on the murder day has constituted facts showing occasion, cause or effect of
the fact in issue.

Kok Ho Leng v PP
Held: A telephone message received on the premises during a raid under the Betting Enactment
is under certain circumstances admissible in evidence under sections 6 and 7 of the Evidence
Enactment.
PP v Toh Kee Huat
Facts: A car has been stolen but was found the next day. Fingerprints were found on the inner
surface of the glass on the driver’s door and was proved to be the respondent’s.
Held: The position of the mark alone makes it self-evident that it was not made by a casual
passerby. The fingerprint thereby are relevant to under s.7 to show the causation, cause of effect
of the car-theft.

(cause)
Saw Thein Teck v R
Held: The evidence that the driver was drunk could be admitted as evidence to show the cause of
dangerous driving which caused the accused to be charged of murder.

(effect)
Kow Liang Tiang v PP
Facts: The appellant was charged with the murder of his wife with multiple stabs with a scissors.
Held: When the accused was arrested, his palm was injured due to the fact that the scissor’s
handle was broken and that the blade was bent. Besides, the recovery of shirt and pants with
blood stains are both admissible to show the effect of the murder.

(constitutes the things happened)

Sidik Sumar v Emperor
Facts: The accused struck the deceased with a sharp hatchet. The prosecution relied on the
evidence of footprints on the crime scene. However, the accused raised the defence of alibi.
Held: Evidence of footprints at or near the scene of the offence was relevant under s.7 to show
the facts constituting the effects of facts in issue.
(opportunity)
Aziz bin Mohd Din v PP
Facts: The accused is alleged to rape the complainant at the witness’s house. From the evidence
adduced, it is clear that witness allowed the accused to spend a night in his house where the
witness saw the complainant there on that night and following morning.
Held: Although it constitutes evidence of opportunity, but it is settled law that mere opportunity
is insufficient. Such opportunity must be exclusive to be relevant. The evidence of opportunity
should be supplemented by proof of circumstances of such a nature to leader o the inference that
it was probable that advantage would be taken of the opportunity.

Pathmanabhan Nalliannen v PP
Held: There was opportunity for the accused persons to commit the murder. The farm is the
property of the accused, Before going to the farm, the victim had given notice to the accused of
her intention to meet up with him which necessitated going to the farm. When the victim and the
others entered the farm, an opportunity was afforded to the accused to murder.

 Section 8
(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue
or relevant fact. (motive or preparation)
(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference
to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the subject of any proceeding, is relevant if
the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto. (conduct before or after)

(1)(motive)
It must be noted that mere evidence of motive does not equal to guilt as held in Dila Ram v
Emperor that “In any case, mere motive cannot be constituted as sufficient evidence of
commission of a crime by a particular person.
The absence of motive either does not equal to innocence. As held in Rajinder Kumar v State,
“The absence of such is also relevant for assessing the evidence. However, the absence of such
are however not weakened the guilt of the accused at all.”
PP v Oh Laye Koh
Held: The element of MR is rarely if ever proved by direct evidence but is inferred by
surrounding circumstances. The existence of motive may bolster the inference of intention.
Boota Singh v PP
Held: The evidence that 9 months before the death of victim had made a police report against the
accused is relevant under s.8 which shows the bad relations between the two. (motive)

Wong Foh Hin v PP

Facts: The appellant was convicted of the murder of his daughter. Evidence was admitted at the
trial of an incident three months before the daughter’s death where the wife had complained to
the village headman that the appellant had ‘interfered’ with his daughter.
Held: The evidence of the incidents was admissible. It was not rendered inadmissible merely
because it tended to show bad character or the commission of another offence.

Lim Kong v PP
Facts: The appellant was convicted of writing certain letters threatening to kill one Teng Wah
Fook unless RM14,000 ransom money was paid over On appeal, it was argued inter alia: (a)
evidence introduced by the prosecution to show that the accused was in a state of financial
embarrassment was purely evidence of bad character and therefore inadmissible under s 54 of the
Evidence Ordinance.
Held: The fact that a person is unable for the moment to satisfy his was admissible.

(1)(preparation)
Illu (c) & (d).
There are 4 stages of crimes:
i. Intention
ii. Preparation
iii. Attempt
iv. Criminal act
Pathmanabhan Nalliannen v PP
Facts: The evidence shows that on 29.8.2010, the day before the murder, the maid saw a lorry
entering the farm and deliver a number of logs.
Held: There was preparation prior to the murders where logs were brought into the farm with the
intention of lighting them up later. This preparatory act falls squarely under s.8 of EA.

(2)(conduct)
Illu (e), (f), (h), (i), (j)
Chanderasekaran v PP
Facts: The accused was charged on corruption act for defrauding the government with forged
vouchers. One of the grounds of appeal concerned the admissibility of the appellant’s subsequent
conduct. The appellant had volunteered several statements to his colleague that he won 5000 at
races and bought diamond rings for his wife.
Held: Where the accused volunteered a statement presenting facts in a light favourable to
himself, such conduct is relevant and can be held incriminatory only where it is open to no other
reasonable explanation but of guilt. Such evidence is admissible where it lends support to show
that the accused is guilty. (show what he did after defrauding the government)

Parlan Dadeh v PP
Held: The reaction of the appellant in looking stunned or shocked upon being approached by the
police is clearly admissible under s.8 since it has a direct bearing on the fact in issue as the drugs
found were tucked away in the front of the jeans worn by him.

Whether statement amounts to conduct?

Boota Singh- the act of making a police report amounted to ‘conduct’ within the meaning of the
section as it was a statement accompanied by acts.
Aziz bin Muhmad Din- Differences between complaint and statement.

 Section 9
Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut
an inference suggested by a fact in issue or relevant fact, or which establish the identity of any
thing or person whose identity is relevant, or fix the time or place at which any fact in issue or
relevant fact happened or which show the relation of parties by whom any such fact was
transacted, are relevant so far as they are necessary for that purpose.
5 types of facts: explain or introduce, support or rebut and inference, establish identity, fix time
and place.
(facts sought to explain or introduce)
Illu (a) & (f)
Krishnaraj v PP
Held: FIR is relevant under s.9 to introduce the case.

(support or rebut and inference)

Illu (c)
Choo Chang Teik v PP
Facts: The appellants had ben charged with trafficking in heroin. The heroin was found in a
house in which the appellants were also found together with another person, since deceased.
Evidence was given that the travelling bag in which the drugs were found belonged to that other
person.
Held: It is probable that both the appellants had no knowledge of the offending drugs in the
travelling bag recovered from the toilet of the master bedroom. The evidence showed that the
other person was alone in the room when he was arrested.

Omar Bin Daud v PP: He

was kept in police
custody and treated very
badly so he
ran away. He caught him
and charged him. His act
of running away was
tendered to
court as his conduct to
show guilty mind.
However, it was
explained that he ran
away
because he was beaten
up and tortured –
accepted by the court.
In this case, his
explanation is relevant
under S9.
Omar Bin Daud v PP: He
was kept in police
custody and treated very
badly so he
ran away. He caught him
and charged him. His act
of running away was
tendered to
court as his conduct to
show guilty mind.
However, it was
explained that he ran
away
because he was beaten
up and tortured –
accepted by the court.
In this case, his
explanation is relevant
under S9.
Omar Bin Daud v PP: He
was kept in police
custody and treated very
badly so he
ran away. He caught him
and charged him. His act
of running away was
tendered to
court as his conduct to
show guilty mind.
However, it was
explained that he ran
away
because he was beaten
up and tortured –
accepted by the court.
In this case, his
explanation is relevant
under S9.
Omar Bin Daud v PP: He
was kept in police
custody and treated very
badly so he
ran away. He caught him
and charged him. His act
of running away was
tendered to
court as his conduct to
show guilty mind.
However, it was
explained that he ran
away
because he was beaten
up and tortured –
accepted by the court.
In this case, his
explanation is relevant
under S9.
Omar Bin Daud v PP: He
was kept in police
custody and treated very
badly so he
ran away. He caught him
and charged him. His act
of running away was
tendered to
court as his conduct to
show guilty mind.
However, it was
explained that he ran
away
because he was beaten
up and tortured –
accepted by the court.
In this case, his
explanation is relevant
under S9.
Omar Bin Daud v PP: He
was kept in police
custody and treated very
badly so he
ran away. He caught him
and charged him. His act
of running away was
tendered to
court as his conduct to
show guilty mind.
However, it was
explained that he ran
away
because he was beaten
up and tortured –
accepted by the court.
In this case, his
explanation is relevant
under S9.
Omar bin Daud v PP
Facts: Accused kept in police custody who was treated badly. The accused ran away and was
later caught. This evidence was tendered to show the guilty mind of the accused. However, the
accused explained the act of running away because he was beaten.
Held: Accepted such explanation as relevant until s.9

(establish identity)
Thing- Pathmanabhan Nalliannen v PP, the physical items owned by the deceased disposed at
various locations established the identities of the persons.

Person- 5 ways to identify:

a. fingerprint
PP v Toh Kee Huat
Held: When the accused’s fingerprints were found on the inside of the car’s window, it was
regarded as conclusive that he had tempered with the lock and gain entry into the car. The
position of the fingerprint is enough to show that it was not casual passerby’s fingerprint.

b. voice
Teng Kum Seng v PP
Held: On an extortion cse, all the 3 victims separately identified the voice of the accused as the
voice they heard on the phone.

c. photo
R v Cook
Held: The photo of the suspect during the commission of the crime is admissible. The photo fit
based on the description of the witness may be also be relevant to establish identity.

Taylor v Chief Constable of Cheshire

Held: The evidence of identity from a video tape recording o the crime in progress is relevant
and admissible (CCTV/Dashcam)

Lai Ah Kam v R
Held: Photographs have to be shown before an arrest and if photographs are shown after the
arrest, it may be a ground of quashing the conviction.

However, the photos shown must not show that the accused was of bad character- Girdali Lall v
PP.

d. visual identification
What was observed by eye witness
Dato Mokhtar Hashim v PP- recognition is more reliable than mere identification.
Recognition: person known to you, Identification: unknown person.
Issue on Dock ID
This happens when the witness is only asked to identify the accused as the person he saw for the
first time in court without any ID parade or previous identification. This practice is worthless
unless the witness knows the accused.
Arumugam Muthusamy v PP
Held: Identification of an accused for the first time in court at the trial is undesirable and it
would be a good practice to hold an identification parade. However, to hold that an identification
parade must, in all circumstances, be conducted in order to sustain a conviction would be too
stringent.
 e. ID parade
Jaafar Ali v PP
Held: Evidence of identification by way of ID parade is relevant under s.9.

However, such practice is not mandatory if the accused is a person known to the witness.
PP v Sarjeet
Held: The necessity of holding an identification parade can only arise where the accused persons
are not previously known to the. Therefore, that where the accused persons are already known to
the witnesses, the question of identification parade does not arise. Here, there was no evidence
that the taxi driver knew the trio prior to the robbery. Therefore, the police should have
conducted an identification parade and the failure to organize one gives rise to the lurking
suspicion that if conducted, the taxi driver could not identify the trio. Non-holding of the test
identification parade, though it may not be a ground to vitiate the trial, is undoubtedly a very
important feature in considering the credibility of the witnesses on the point of identification

Arumugam Muthusamy v PP
Held: It would be a good practice to hold an identification parade. There may well be situations
where an identification parade cannot or need not be held, for example, where the attendance of
the witness at the parade is physically impossible or impracticable or there are exceptional
circumstances.

(Procedure for ID Parade)

In Malaysia, the procedure for a proper ID Parade is not provided.
Ong Lai Kim v PP
Facts: The three appellants were tried and convicted of rape and robbery. During their trial, they
objected to the procedure of their identification as the parade was conducted with the victim
standing behind a one-way mirror.
Held: There was no specific provision in the Criminal Procedure Code or the Evidence Act 1950
regarding the procedure for identification parades. In the absence of such a provision, the English
procedure was applicable and this allowed for the use of a one-way mirror. Therefore the use of a
one-way mirror to identify the three appellants was proper.

However, there are several guidelines that can be referred.

GOOD PRACTICE (MALLAL ON CRIMINAL PROCEDURE)
i. Earliest opportunity
ii. Witness should not be allowed to see the A before the ID parade (no confrontation)
iii. 9-10 persons
iv. Around the same age/size etc (broad common sense approach)

PP v Joachin Selvanathan
(1) All persons at the identification parade should be of the same ethnic group and same
station in life as the suspect. The disparity of ages between them should not be large. The
persons in the line-up nee not be of exactly the same description;
(2) The identification parade must be held at the earliest opportunity and all available
witnesses should be required to attend at the very first parade. Separate identification
parades must be held where there are two or more suspects;
(3) The witnesses must not be allowed to see the suspect until the moment when everything
is ready and they walk in to identify him. The witnesses must not be given prior
assistance via photographs or verbal or written description.
(4) The suspect should be placed among a number of persons in a row- not less than nine or
ten. The suspect should be invited to stand where he pleases in the row. He may change
his position after each witness has been called in. He should be asked if he has any
objection to any of the persons present or to the mode of arrangement;
(5) The witnesses should be brought in on by on. Each witness who has completed the
identification parade process should be kept apart from the witnesses who are yet to
come;
(6) The office in charges must ensure that the identification parade is property and fairly
conducted. He must record every circumstance connected with the identification, the
names of the witnesses and their decisions as fully and fairly and carefully.
The failure to follow good practice on identification parade is not fatal to the case.
Ong Poh Cheng v PP
Held: Generally speaking, an identification at an identification parade, held usually a short time
after the incident, would tend to strengthen the prosecution's case but it does not follow that the
lack of it would be fatal, or would destroy a court or dock identification. It must necessarily
depend on the facts and circumstances of each particular case.
Chan Sin v PP
Facts: The facts were that on information received that a Chinese had a sten gun, a police party
raided a kampong where a police constable saw an old man, who was a Chinese, carrying a sten
gun. Subsequently the appellant was arrested. An identification parade was held consisting of
eight persons — one Sikh, three Malays, a Chinese woman, two other Chinese and the appellant.
Both the detective and the police constable picked out the appellant. One of the grounds of
appeal was that the identification of the appellant was unsatisfactory.
Held: The police conducted identification parade was highly irregular, improper and definitely
unfair to the appellant, and therefore, the evidence of identification being satisfactory, the
conviction must be quashed.

Turnbull direction
R v Turnbull
i. Evidence against is wholly or substantially based on identification.
ii. Defence allege it was mistaken identity
iii. Judge warn himself of the need for caution before convicting on identification evidence
(mistaken witness can still be very convincing)
iv. Court must ask it self if the quality of the identification is good or poor.
v. If quality of identification is poor there must be supporting evidence for a conviction to be
sustained .
v. How to determine if quality of ID is good or poor??
a. How long did the witness observe
b. What distance
c. In what light
d. Was the observation impeded
e. Has he seen the person before
f. How often
g. Any special reason to remember
h. Time lapse between original observation and ID parade
i. Any discrepancy between description to police and person identified
Jaafar Ali v PP
Facts: According to the facts, the victim met the accused on 5 May 1997 where the accused to
strangle her. As a result, she was hospitalised for 25 days. On 12 July 1997, she went to the
police station where the police officer showed her two persons in a room. She identified one of
them (the accused) as the person who had allegedly strangled her. On 14 July 1997, she attended
an identification parade conducted by Inspector Arikrishnan at the police headquarters. She
identified the accused. She also identified the accused in court.
The accused appealed and the issues for consideration were in relation to the (a) identification
evidence.
Held: In this case the quality of the identification by victum could not be said to good as
described in Turnbull. This was because she had seen the accused for only about five to ten
minutes and the fact that there were bruises around her eyes showed that she could not have
observed the accused well at that time. Her evidence therefore was required to be supported. The
warning administered was general and not effective enough to reflect the requirements of the
Turnbull guidelines. It referred to only one aspect - the need for caution before convicting.

(Note : DNA evidence)

Ahmad Najib bin Aris v PP
Facts: The accused’s jeans was found with blood stains and DNA tests confirmed that they were
the deceased’s. The vaginal swab taken from the deceased also confirmed the presence of semen
belonging to the accused. Besides, the blood stains at various parts of the car and strands of hair
found in the car were confirmed to belong to the deceased.

Hanafi Mat Hassan v PP

Facts: The chemist, who carried out DNA tests on blood samples taken from the accused,
prepared the summary of the DNA profiling results thereof and confirmed that the semen found
in the vagina of the deceased belonged to the accused for rape and murder.
Held: The accused was convicted.

 Section 10
Where there is reasonable ground to believe that two or more persons have conspired together to
commit an offence or an actionable wrong, anything said, done or written by any one of those
persons, in reference to their common intention after the time when the intention was first
entertained by any one of them, is a relevant fact as against each of the persons believed to be so
conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose
of showing that any such person was a party to it.
Elements:
1. Two or more persons have conspired together to commit an offence
2. Anything said, done or written by any one of those person,
3. In reference to their common intention after the time when the intention was first
entertained by any one of them, is relevant
However, this section only applies to what was said/done during the conspiracy. It was held in
Liew Kaling v PP that “The words of section 10 of the Evidence Ordinance are not capable of
being widely construed so as to include a statement made by one conspirator, in the absence of
the other, with reference to past acts done in the actual course of carrying out the conspiracy,
after it has been completed.”

 Section 11
Facts not otherwise relevant are relevant -
(a) if they are inconsistent with any fact in issue or relevant fact;
(b) if by themselves or in connection with other facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable or improbable.
ILLUSTRATIONS
(a) The question is whether A. committed a crime at Kuala Lumpur on a certain day.
The fact that on that day A. was at Taiping is relevant.
The fact that near the time when the crime was committed A. was at a distance from the place
where it was committed, which would render it highly improbable, though not impossible, that
he committed it is relevant.

 Section 14
Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant when the existence of any such state
of mind or body or bodily feeling is in issue or relevant.