Law of Evidence (Malaysia) vs Islamic Law of Evidence

The ordinary meaning of "evidence" in the context of proof of a fact, is any information obtained from documents, objects or witnesses which may or tends to prove the existence of the fact. Re Fong Thin Choo [1992] 1 SLR 120 at page 128 stated that "evidence is not a proof, but the means of proof". 

Issue 1: Overview – Origin

Law of Evidence (Malaysia) is based on common law principles. The law governs matter of evidence is Evidence Act 1950 (Act 56) while Islamic Law of Evidence is found in the Qur'an. Subsequently the principles enunciated in the Qur'an had, through the evolution of time and for precision's sake, been codified, inter alia, as the Kelantan Evidence Enactment No 2 of 1991. The codified Act has many similarities as compared to the Evidence Act 1950 but with regard to admission (iqrar) and oath (yamin), there are many differences. 

Res Judicata: “the thing has been decided.”

Issue 1 : what is Res Judicata?

Res Judicata is a Latin term used in the legal community, meaning “the thing has been decided.” It is used to refer to cases which cannot be appealed or retried (http://www.wisegeek.com/what-is-res-judicata.htm). Res Judicata in the strict sense arises where a matter has been litigated between parties and litigated for a final decision. That decision cannot be questioned and the matters decided cannot be reopened. For example, if Amer sues Ayka for damages in Shah Alam and damages are awarded by the court, the case cannot be repeated in Petaling Jaya. Res judicata is designed to ensure that cases are not tried repeatedly for the same subject matter, burdening the legal system and potentially cost a lot of money.

Leong Cheong Kweng Mines Ltd v Kok Hong [1962] MLJ 224

Principle based on the jurisprudential maxim that no one should be troubled twice for the same cause.

Issue 2 : The distinction between res judicata and estoppel or issue estoppel.

The are some judicial dicta to the effect that by a plea of res judicata, the other party is estopped from raising the earlier cause of action on which judgement was given. Res judicata cannot be treated simply as a branch of the law of estoppel (RK Nathan on A Practical Approach to Evidence in Malaysia & Singapore at page 257).

i. Civil Proceedings

Previous judgement against a person is conclusive evidence against all persons of the state of things which it actually affects. It is not evidence of the findings on which it is based however. Therefore if there is a judgement against a party Q that he was in breach of contract with Z and Z was awarded RM5,000, the judgement is proof of the award of damages but it is not conclusive proof that Q was in breach of that contract.

A party to civil proceedings or his privies may be estopped from re litigating findings mad by the court in the civil proceedings between himself or his privies, and another party or his privies. This is known as estoppel by record or per rem judicata. This must be pleaded to take effect however. Thus, in the case of Conquer v Boot (1928) P sued a builder D for damages for breach. Due to defective workmanship, P was therefore estopped from bringing further actions for the consequences of the defective workmanship as P had failed to particulars them in the original action.

A cause of action in estoppel or an issue estoppel may arise only if certain requirements are satisfied. Firstly the parties must be the same or privies of those that were in the original proceedings. Secondly, the parties in the latter proceedings must be litigating in the same capacity as they were in the same proceedings. Thirdly, the cause of action that is been litigated in the latter proceedings must have been litigated in the original proceedings, and finally the court which determined the relevant issue in the original proceedings must have been a court of competent jurisdiction, and must have given a final judgement upon the merits.

ii. Criminal proceedings.

A person who has been convicted of a criminal offence may plead autrefois convict in order to bar any subsequent proceedings for the same offence against him. A person that has been acquitted of a previous offence can plead autrefois acquit. However the prosecution may still be able to overcome autrefois acquit if it can show that proceedings concern an offence of which the acquitted could not have been previously convicted in previous proceedings and the proceedings do not contain substantially the same facts as the earlier proceedings.

The two pleadings also act as a bar to proceedings against a person in respect of lesser offences of which he would have been convicted in earlier proceedings when charged with a more serious offence. Evidence of previous convictions is considered to be too prejudicial to a Defendant to be allowed, as a jury will assume that because the Defendant has done it before, he/she will have done it again, and be guilty of the events in issue.
Finally, in the case of R v Humphreys (1972) it was held that issue estoppel does not apply to criminal cases, so a person can testify again even if the y have testified in previous proceedings. (Reference - http://www.law-essays-uk.com/resources/sample essays/evidence/judicata.php#ixzz2FBLKbnvE)

Asia Life Assurance Society Ltd v Kong Leong Aik @ Simon Kong [1992] 4 CLJ 2053

The doctrine of res judicata comes into play when a party can show the existence of a former writ involving the same parties upon the same subject matter or action and points of dispute upon which the court had made a final decision.

CONFESSIONS: with reference to decided case-law.

Issue: What amounts to a Confession?

The law of confessions in Malaysia is based on common law principle. A confession cannot be adduced unless it is made “voluntarily”.  The prosecution must prove this requirement beyond reasonable doubt. By virtue of section 17 (2) of the Evidence Act 1950, confession is defined as an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.

Anandagoda v The Queen [1962] MLJ 289 PC

The appellant was charged with murder by running over the deceased with a motor car, his statements considered by themselves, contained no admission that he was driving the car in question or that if he was driving it he ran over the deceased deliberately.

The appropriate test in deciding whether a particular statement is confession is as follows:-

a) whether the words of admission in the context expressly or substantially admit guilt

or

b) do they taken together in the context inferentially admit guilt

Lemanit v PP [1965] 2 MLJ 26

In this case, the appellant was arrested on 1 June 1964 when he called at the immigration depot and he subsequently made a statement on 5 June 1964 to a Magistrate, Mr Tay Soo Tee.

The Magistrate stated that: “I inform the accused that I am in no position to help him with respect to his desire to stay in Singapore.”

Q. Knowing that I (the magistrate) can’t help you to stay in Singapore do you still wish to make your statement voluntarily.

A. Yes.

Q. Is that all you wish to say?

A. Yes.

Mr Karpal Singh submitted on behalf of the appellant that the magistrate was not satisfied that the statement was voluntary, that it was not a confession and that it should not have been recorded. He further submitted that the inducement had been offered to the appellant which rendered it irrelevant because the magistrate told him that he could not help him to stay in Singapore when the appellant expressed a desire that he should do so as otherwise he would be shot on his return to Indonesia.

The learned trial judge admitted this statement as a confession after hearing evidence on an objection raised by the appellant that it was not voluntarily made. During the recording of his confession, which the magistrate stated he had reason to believe was voluntary made, the appellant asked him to allow him to stay in Singapore. The magistrate very properly told him he could not help him in the matter at all. The courts therefore, of the opinion that the complaint directed against the admission of the statement as a confession has no validity.

For international cases especially cases from United Kingdom, reference can be made through this link, http://www.hse.gov.uk/enforce/enforcementguide/investigation/witness-admissibility.htm.