GIVING EVIDENCE

Witnesses who turn up in court are allowed to give evidence in the language in which they are most familiar with.

WE all know that Bahasa Malaysia is the national language. However, if a person is called to court as a witness, must he give evidence using Bahasa Malaysia or can he choose to give evidence in any other language?

This issue bothers many people who are called up as witnesses to give evidence in a court of law. Sometimes the fear of having to use an unfamiliar language makes the witness reluctant to testify.

However, it ought to be noted that what the national language of the country is, and the issue of giving evidence in court, are two entirely different matters. So, too, is the issue of the conduct of proceedings in court. Such proceedings do not consist of giving evidence alone. Giving evidence is only part of the proceedings. In civil cases, it starts with cause papers such as a summons or writ of summons being filed.

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.

PRIMA FACIE

Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face" or "at first appearance", from the feminine form of primus ("first") and facies ("face"), both in the ablative case. It is used in modern legal English to signify that on first examination, a matter appears to be self-evident from the facts. In common law jurisdictions, prima facie denotes evidence that – unless rebutted – would be sufficient to prove a particular proposition or fact. The term is used similarly in academic philosophy. Most legal proceedings require a prima facie case to exist, following which proceedings may then commence to test it, and create a ruling.

Legal burden of proof

In most legal proceedings, one party has a burden of proof, which requires it to present prima facie evidence for all of the essential facts in its case. If they cannot, its claim may be dismissed without any need for a response by other parties. A prima facie case might not stand or fall on its own; if an opposing party introduces other evidence or asserts an affirmative defense it can only be reconciled with a full trial. Sometimes the introduction of prima facie evidence is informally called making a case or building a case.

For example, in a trial under criminal law the prosecution has the burden of presenting prima facie evidence of each element of the crime charged against the defendant. In a murder case, this would include evidence that the victim was in fact dead, that the defendant's act caused the death, and evidence that the defendant acted with malice aforethought. If no party introduces new evidence the case stands or falls just by the prima facie evidence or lack thereof.

Prima facie evidence need not be conclusive or irrefutable: At this stage, evidence rebutting the case is not considered, only whether any party's case has enough merit to take it to a full trial.

In some jurisdictions such as the United Kingdom, the prosecution in a criminal trial must disclose all evidence to the defense. This includes the prima facie evidence.

An aim of the doctrine of prima facie is to prevent litigants from bringing spurious charges which simply waste all other parties' time.

LET HIM HAVE IT

Let Him Have It is a 1991 British film, which was based on the true story of the case against Derek Bentley, who was hanged for murder under controversial circumstances on 28 January 1953.

Derek William Bentley (30 June 1933 – 28 January 1953) was a British teenager hanged for the murder of a police officer, committed in the course of a burglary attempt. The murder of the police officer was committed by a friend and accomplice of Bentley's, Christopher Craig, then aged 16. Bentley was convicted as a party to the murder, by the English law principle of common criminal purpose "joint enterprise". The judge in court sentenced Bentley to death based on an interpretation of the phrase "Let him have it" (Bentley's alleged instruction to Craig), describing Bentley as "mentally aiding the murder of Police Constable Sidney Miles".

Another Hearsay Exceptions Song, to the tune of Miley Cyrus's "Party in the USA"

*lyrics written by Amanda Bakale (xoxoxo!)

**and of course, to the tune of Miley Cyrus's "Party in the USA"