Advertisement
Evidence Act 1950 [Act 56]

31 Admissions not conclusive proof but may estop

Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.

31A ............................

Section 31A deleted by Act A978.

Statements by Persons who cannot be called as Witnesses

32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such a statement is relevant whether the person who made it was or was not at the time when it was made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

(b) when the statement was made by any such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;

(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;

(d) when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which if it existed he would have been likely to be aware, and when the statement was made before any controversy as to the right, custom or matter had arisen;

(e) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;

(f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when the statement was made before the question in dispute was raised;

(g) when the statement is contained in any document which relates to any transaction as is mentioned in paragraph 13(a);

(h) when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question;

(i) when the statement was made in the course of, or for the purposes of, an investigation or inquiry into an offence under or by virtue of any written law; and

(j) where the statement was made by a public officer in the discharge of his duties.


ILLUSTRATIONS

(a) The question is whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished.

The question is whether she was ravished by B; or

The question is whether A was killed by B under circumstances that a suit would lie against B by A's widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A's birth.

An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that on a given day he attended A's mother and delivered her of a son, is a relevant fact.

(c) The question is whether A was in Kuala Lumpur on a given day.

A statement in the diary of a deceased advocate regularly kept in the course of business that on a given day the advocate attended A at a place mentioned in Kuala Lumpur for the purpose of conferring with him upon specified business is a relevant fact.

(d) The question is whether a ship sailed from Penang harbour on a given day.

A letter written by a deceased member of a merchant's firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Penang harbour is a relevant fact.

(e) The question is whether rent was paid to A for certain land.

A letter from A's deceased agent to B, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact.

(f) The question is whether A and B were legally married.

The statement of a deceased clergyman that he married them under circumstances that the celebration would be a crime is relevant.

(g) The question is whether A, a person who cannot be found, wrote a letter on a certain day.

The fact that a letter written by him is dated on that day is relevant.

(h) The question is what was the cause of the wreck of a ship?

A protest made by the captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is whether a given road is a public way.

A statement by A, a deceased Penghulu of the Mukim, that the road was public is a relevant fact.

(j) The question is what was the price of shares on a certain day in a particular market.

A statement of the price made by a deceased broker in the ordinary course of his business is a relevant fact.

(k) The question is whether A, who is dead, was the father of B.

A statement by A that B was his son is a relevant fact.

(l) The question is what was the date of the birth of A?

A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is whether and when A and B were married.

An entry in a memorandum book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a printed caricature exposed in a shop window.

The question is as to the similarity of the caricature and its libellous character.

The remarks of a crowd of spectators on these points may be proved.



(2) Paragraphs (1)(i) and (j) shall apply only in relation to a criminal proceeding.

33 Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable:

Provided that-

(a) the proceeding was between the same parties or their representatives in interest;

(b) the adverse party in the first proceeding had the right and opportunity to cross-examine;

(c) the questions in issue were substantially the same in the first as in the second proceeding.


Explanation-A criminal trial or inquiry shall be deemed to be a proceeding
between the prosecutor and the accused within the meaning of this section.

Statements made under Special Circumstances

34 Entries in books of account when relevant

Entries in books of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but the entries shall not alone be sufficient evidence to charge any person with liability.

ILLUSTRATION

A sues B for RM1,000 and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient without other evidence to prove the debt.

35 Relevancy of entry in public record made in performance of duty

An entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which the book, register or record is kept, is itself a relevant fact.

36 Relevancy of statements in maps, charts and plans

Statements of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Government of Malaysia or of any State as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

37 Relevancy of statement as to fact of public nature contained in certain legislation or notifications

When the court has to form an opinion as to the existence of any fact of a public nature any statement of it made in a recital contained in-

(a) any legislation enacted by Parliament or by the legislature of any part of the Commonwealth;

(b) any legislation enacted by the legislature of any State; or

(c) any printed paper purporting to be-

(i) the Gazette printed under the authority of the Government of Malaysia or of any State;

(ii) the London Gazette; or

(iii) the Gazette of any other part of the Commonwealth including, where any part thereof is both under a central Government and a local Government, any such local Government,


is a relevant fact.

38 Relevancy of statements as to any law contained in law books

When the court has to form an opinion as to a law of any country, any statement of that law contained in a book purporting to be printed or published under the authority of the Government of that country, and to contain any such law, and any report of a ruling of the courts of that country contained in a book purporting to be a report of such rulings, is relevant.

How Much of a Statement to be Proved

39 What evidence to be given when statement forms part of a conversation, document, book or series of letters or papers

When any statement of which evidence is given forms part of a longer statement or of a conversation, or part of an isolated document or is contained in a document which forms part of a book or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, book or series of letters or papers as the court considers necessary in that particular case to the full understanding of the nature and effect of the statement and of the circumstances under which it was made.


SEARCH LEGISLATION
Title:


Number:

ADS