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Evidence Act 1950 [Act 56]

Part II

PROOF

Chapter III

FACTS WHICH NEED NOT BE PROVED

56 Fact judicially noticeable need not be proved

No fact of which the court will take judicial notice need be proved.

57 Facts of which court must take judicial notice

(1) The court shall take judicial notice of the following facts:

(a) all laws or regulations having the force of law now or heretofore in force or hereafter to be in force in Malaysia or any part thereof;

(b) all public Acts passed or hereafter to be passed by the Parliament of the United Kingdom, and all local and personal Acts directed by it to be judicially noticed;

(c) articles of war for the armed forces or any visiting force lawfully present in Malaysia;

(d) the course of proceedings in Parliament, in the federal legislatures that existed in Malaysia before Parliament was constituted, in the legislature of any State in Malaysia and in the Parliament of the United Kingdom;

(e) the accession of the Yang di-Pertuan Agong and the accession of the Ruler of any State in Malaysia and the appointment of a Yang di-Pertua Negeri;

(f) the accession and the sign manual of the Sovereign for the time being of the United Kingdom;

(g) the seals of all the courts of Malaysia, all seals which any person is authorized to use by any law in force for the time being in Malaysia or any part thereof, all seals of which English courts take judicial notice, and the seals of Courts of Admiralty and maritime jurisdiction and of notaries public;

(h) the accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any part of Malaysia, if the fact of their appointment to such office is notified in the Gazette or in any State Gazette;

(i) the existence, title and national flag of every State or Sovereign recognized by the Yang di-Pertuan Agong;

(j) the ordinary course of nature, natural and artificial divisions of time, the geographical divisions of the world, the meaning of Malay and English words, and public festivals, fasts and holidays notified in the Gazette or in any State Gazette;

(k) the Commonwealth countries;

(l) the commencement, continuance and termination of hostilities between Malaysia or any other part of the Commonwealth and any other country or body of persons;

(m) the names of the members and officers of the court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates and other persons authorized by law to appear or act before it;

(n) the rule of the road on the land, sea regulations and the rules of the air;

(o) all other matters which it is directed by any written law to notice.


Explanation-The words "Parliament of the United Kingdom" in paragraphs (b) and (d) mean-

(i) the Parliament of the United Kingdom of Great Britain and Northern Ireland;

(ii) the Parliament of the United Kingdom of Great Britain and Ireland;

(iii) the Parliament of Northern Ireland;

(iv) the Parliament of Great Britain;

(v) the Parliament of England;

(vi) the Parliament of Scotland;

(vii) the Parliament of Ireland prior to 1 January 1801.



(2) In all these cases, and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.

(3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until the person produces any such book or document as it considers necessary to enable it to do so.

58 Facts admitted need not be proved

(1) No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

(2) This section has no application to criminal proceedings.

Chapter IV

ORAL EVIDENCE

59 Proof of facts by oral evidence

All facts, except the contents of documents, may be proved by oral evidence.

60 Oral evidence must be direct

(1) Oral evidence shall in all cases whatever be direct, that is to say-

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

(c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.


(2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of the treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.

(3) If oral evidence refers to the existence or condition of any material thing including a document, the court may, if it thinks fit, require the production of that material thing or the document for its inspection.

Chapter V

DOCUMENTARY EVIDENCE

61 Proof of contents of documents

The contents of documents may be proved either by primary or by secondary evidence.

62 Primary evidence

Primary evidence means the document itself produced for the inspection of the court.

Explanation 1-Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2-Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original they are not primary evidence of the contents of the original.

Explanation 3-A document produced by a computer is primary evidence.

ILLUSTRATION

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

63 Secondary evidence

Secondary evidence includes-

(a) certified copies given under the provisions hereinafter contained;

(b) copies made from the original by mechanical processes, which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(c) copies made from or compared with the original;

(d) counterparts of documents as against the parties who did not execute them;

(e) oral accounts of the contents of a document given by some person who has himself seen or heard it or perceived it by whatever means.


ILLUSTRATIONS

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy but afterwards compared with the original is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original nor an oral account of a photograph or machine copy of the original is secondary evidence of the original.

64 Proof of documents by primary evidence

Documents must be proved by primary evidence except in the cases hereinafter mentioned.

65 Cases in which secondary evidence relating to documents may be given

(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

(a) when the original is shown or appears to be in the possession or power-

(i) of the person against whom the document is sought to be proved;

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it,

and when after the notice mentioned in section 66 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Malaysia to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.


(2)

(a) In the cases referred to in paragraphs (1)(a), (c) and (d) any secondary evidence of the contents of the document is admissible.

(b) In the case referred to in paragraph (1)(b) the written admission is admissible.

(c) In the case referred to in paragraph (1)(e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible.

(d) In the case referred to in paragraph (1)(g) evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents.



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