PENGISYTIHARAN KEMATIAN

PENGISYTIHARAN KEMATIAN merupakan pengecualian kepada peraturan dengar cakap. Ianya merupakan kenyataan dari orang-orang yang tidak boleh dipanggil sebagai saksi, tetapi masih relevan dan boleh diterima. Peruntukannya terdapat di bawah seksen 32;

i. Dari orang yang telah mati.

ii. Dari orang yang tidak boleh dijumpai.

iii. Dari orang yang menjadi tidak berupaya memberi keterangan.

iv. Dari orang kehadirannya tidak boleh dibuat tanpa kelengahan atau belanja dari biasa.

who said evidence is not fun ;)

what EVIDENCE is all about ;)

Most legal disputes which get to court involve a dispute about the facts. Some involve a dispute about both law and the facts; a fairly small minority are about the law and nothing else. The facts that are disputed are determined by the substantive law (Contract, Tort, Crime, Company Law, Insolvency Law  etc) and the reactions of the parties to allegations. For instance, on a charge of murder the prosecution must prove that the victim was killed by the defendant who at the time had that mental state specified by the Criminal Law for murder. The facts in issue will be the actions and the mental state of the defendant. If the defendant raises a defence of provocation, then the facts in issue will include the actions of the victim.   The court reconstructs events from the evidence presented by the parties to the court. 

In most trials the chief form of evidence is the sworn testimony of witnesses. But it may include documents, physical property, such as a weapon and scientific evidence.   The court makes its findings of fact from the evidence given directly to the court and the inferences which can be drawn from such evidence.   The rules of evidence restrict the evidence which may be presented  to the court and determine how that evidence is handled.

FUN TRIVIA 2 on evidence

1ST  STORY

1.      Ms. X, a popular actress has just been called a " mean money-grabbing, miserly b***h" by Mr.Y, a press reporter, in his article on movie stars. Like any other person with a reputation to protect, she sues the newspaper for severe damages. Mr. Y and the newspaper take the defence that they are only publishing the truth. So on whom does the burden of proof lie to show that Mr.Y has or has not caused the defamation?

-          Ms.X. According to the law of evidence, he or she who claims a right, must prove that such a right exists and that damage has been caused as a result of the violation of such a right. So, Ms.X has to show that Mr.Y's statement was defamatory, in that, the burden lies on her to show that Mr.Y's statement caused right thinking members of society to have a lower impression of her.

FUN TRIVIA 1 on evidence

1.      Oh no! Poor Mr.A was murdered by Mr.B. But hang on. Ms.C says she saw B kill A. Mr.D says he heard Mr.A screaming for his life and begging Mr.B not to kill him, and Mrs.E says, Ms.C came and told her that she saw Mr.A being killed by B. Now tell me, whose evidence is considered as relevant evidence in a trial?

-          All of these testimonies (Ms. C, Mr. D, Mrs. E). Of course, the testimonies of all the people are relevant as they speak of facts which relate to the murder of Mr.A.

2.      Apart from deciding relevancy of the evidence, we have to decide, which of these people's testimonies is actually admissible in a Court of law. As prosecutor, you will now have to decide which ones will you actually use in your case. Ms. C: I saw Mr. B killing Mr. A when I was passing by Mr.A's house Mr.D: I was on my morning walk when I heard Mr.A shouting and begging Mr.B not to kill Mrs.E: I had just finished breakfast when Ms. C came in all flustered and scared and told me she saw Mr.B killing Mr.A.

-          Ms.C and Mr.D. So what if a piece of evidence is relevant, it need not be admissible. Mrs. E's testimony in this case is inadmissible because it is hearsay, which means that she does not actually know if something or did not, but she only heard it so. Hearsay is inadmissible because there is no way the other side can disprove a fact only based on hearsay. But what about Mr.D? Even he only heard Mr.A screaming for his life. However, there are exceptions to the rule of hearsay, one of which is res gestae, or things said and done in the course of the transaction. Since, Mr.D heard the words while the murder was happening, his testimony is covered under the res gestae exception.

What is admissible evidence?

Admissible evidence is evidence which can be brought forward in a court of law to support or undermine a legal case. In order to be considered admissible, evidence must meet certain standards, with the standards being especially high in criminal cases. Disputes over the admissibility of evidence often play a role in major trials, with lawyers from both sides attempting to suppress evidence which does not favor their case, with the goal of weakening the position of the other side.

Evidence can take a number of forms. In all cases, evidence is considered admissible when it has a bearing on the case, and it can be used to support or disprove facts which are related to the case. For example, in a murder trial, the identity of the murder weapon is relevant and important to the case, but the suspect's history of running out on lease agreements may not be deemed admissible because it is not relevant to the murder.

In the case of evidence presented by a witness, admissible evidence includes evidence from an expert witness discussing the situation and providing information which is accepted and established in the field. For example, a forensic anthropologist could testify about examining a set of human remains, discussing the facts he or she uncovered in the process and presenting his or her credentials to support the facts provided. By contrast, someone who claims to have collected facts using methods which are deemed suspect in the field of forensic anthropology would not be able to testify. Evidence can also be collected from witnesses who saw the crime or were involved in the investigation, such as testimony from a police officer who responded to the scene of a crime, a forensic technician who processed evidence, or a bystander who watched the crime take place.

Physical evidence is deemed admissible when it pertains to the case and a clear chain of custody can be established, with people demonstrating that the evidence is authentic and that it has been protected to ensure that the integrity is retained. Evidence which is mishandled or obtained by illegal means is not admissible evidence, which can be become a big problem in a legal case; there may be a situation in which evidence is very relevant and important, but it cannot be discussed in court due to the fact that it was not handled correctly.

Judges may also consider the issue of “undue prejudice” when evaluating evidence to determine whether or not it is admissible. If the presentation of evidence would create an unreasonable bias, the people presenting the evidence may be obliged to withdraw or adjust it. For instance, in a violent crime, a graphic description or images of the scene might not be permitted due to concerns about undue prejudice.

Concerns about admissible evidence are very important to the people who investigate crimes. They want to make sure that the evidence they handle is carefully documented and secured so that it can be used in court. They are especially careful when they suspect that they may be creating a precedent. When DNA evidence was first used in court, for example, it was accompanied with ample expert testimony, meticulous documentation, and a clear discussion of the techniques used to collect and analyze DNA samples, demonstrating that the evidence was admissible and laying the groundwork for the future use of DNA as admissible evidence in legal cases.

http://www.wisegeek.com/what-is-admissible-evidence.htm

<3 FADHLIN SAKINA <3

SECTION 114A

    Recently, the Evidence Act 1950 had been amended where section 114A has been inserted.  This section is about presumption of fact in publication. Since this new section had been approved, there are a lot of bad comments and disagreement towards this new section. All of them want that this new section being revised and repealed as for them this section can bring harm to people as nowadays, people express their thoughts and opinion through the internet such as Facebook, twitter, blogs and etc. 

This section is to prevent any harmful or illicit contents on the internet. It is to bring in the people who make such a bad comment to the justice and to also to give justice to the person that being defame or being harm. The defamatory or libellous comments on the internet can bring harm to them in many ways as through the internet, people from all over the world can actually has access to those comments. For example, a product that is actually “halal” is banned by the Muslim all over the world just because of the defamatory comments made by anonymous. Another example is when anonymous make defamatory comments on the politicians and those comments can be harmful to their reputation as a politician and people will not believe in them anymore. 

However, this section to most of the people is unfair and illogical. This is because, with the internet it is hard to recognize and identify the true identity of the person who actually wrote the defamatory comments as with the internet, people can actually hack other person to escape. The person who wrote those harmful comments can be detected through Wi-Fi network or any electronic device but even though the person can be detected, is he the person who actually wrote those harmful comments? It is really hard to prove as people can misuse the internet to harm other people.

It really concerns the people out there who use the internet as the medium to connect with other people. It worries the internet’s users that they may be arrested for something that they did not do because the internet can also be misused by irresponsible people. Despite the disagreement, this section will be executed until further action being considered. Whether the Malaysian likes it or not, they have to accept the fact that from the day this section comes into force, they have to be extra careful on what they will publish on the internet and also they need to control the internet usage especially those who use Wi-Fi network.

In a nutshell, no matter what we do, we must think first. We need to make sure the information that we are going to publish especially on the internet is the trusted information and to make sure the information does not consist of defamatory and libellous words.

http://paultan.org/2012/08/14/stop-section-114a-of-the-evidence-act-2012/  

<3 FADHLIN SAKINA <3