Chapter 3 - Presumptions Flashcards

Question

PRE-REQUISITES Duty of court

Answer 1

1) Consider the circumstances of case - Mohamed Ali v. Public Prosecutor: - The court must consider the circumstances in each particular case before drawing an adverse inference. - Presumptions of fact must not be drawn automatically, or without first considering whether in the circumstances of each particular case there were adequate grounds to justify any presumption being raised. 2) Consider the demand of evidence - Suriyati Takril v. Mohan Govindasamy & Anor: - Further, an adverse inference ought not to be invoked if the production of a particular evidence was not demanded. 3) Consider whether the withholding is deliberate - Adel Muhd El Dabbah: - Court must ensure that the withholding of evidence is deliberate; - A.I shall not be invoked unless it is shown that the prosecution has an oblique motive.

Answer 2

1) The principle - Munusamy Vengadasalam v PP: - Before A.I is invoked, it is important to ensure that the evidence withheld is material to the case; - A.I can only be invoked if there is withholding of evidence; - not merely on account of failure to obtain evidence. 2) Duty of prosecution - R v Seneviratne: - The prosecution must call witnesses essential to the unfolding of the narrative on which the prosecution is based. 3) Example - PP v DSAI (No. 3): - Prosecution failed to called several witnesses which the defence contended as material; - The contention was rejected & the judge held that the witnesses were neither material nor relevant to the case. 4) Recent example - Jamaluddin Md Kassim v PP (FC, 2010): - The non-calling of a witness who was not essential to the unfolding of the prosecution's case did not result in procedural unfairness to the accused.

Answer 3

PP v Chia Leong Foo: - When it appeared that a witness is material at the end of the trial, and the prosecution failed to produce the witness during its case, A.I will be invoked. - Evidence in rebuttal cannot be called when the the materiality of the evidence had been known from the beginning when the defence put its case during PP's case.

Answer 4

1) General - Murugan v Lew Cheong: - A.I is not drawn since the absence of the person had been explained. 2) Failure to discharge burden despite explanation - PP v Kalaiselvan: - failure to produce witness may result in prosecution's failure to discharge burden; - in such a case, despite explanation is given, A.I may still be invoked against the prosecution. - a case cannot be said to have been proved simply by explaining away the absence of the witness. 3) Failure to explain or offer alternative evidence - PP v Chia Leong Foo: - Prosecution contended that Yee cannot be found; - Judge is of the opinion that although so, prosecution should tender the evidence of the police statement by Yee. - Failure to do so result in A.I being drawn against prosecution.

Answer 5

1) CCI Technology v Celcom Mobile: - The judge held that Mr. Azizi was a critical witness for the plaintiff as he was the person who was in charge in every sense of the word insofar as the contract with the defendant is concerned. - Azizi's absence and the failure to take even more positive steps to ensure his presence in court to assist in the case has a negative effect on the plaintiff's case. - His absence must also have been due to the fact that he has evidence which would be detrimental to the plaintiff's case had he testified. - The judge invoke the A.I & held that it is a suitable case for the invocation of the adverse presumption under section 114(g) of the Evidence Act 1950. 2) Petronas Carigali Sdn Bhd v Acetimur Drilling Sdn Bhd (HC, 2020): - The judge refused to invoke A.I and held that there is no suppression of material evidence or a material witness & Defendants themselves did not demand that the witness be called or subpoenaed as a witness.

Answer 6

1) General rule - Selvaduray v Chinniah: - A.I should not be drawn against D since he does not bear the burden of proof; - OTF, court held that failure of D to call material witness is not fatal on D's case since he does not bear the burden of proof. 2) When D offers no evidence at all - Thong Foo Ching v Shigenori: - CA refused to draw A.I against D because there was no procedural requirement in the ROC that a defendant must lead evidence at the end of the plaintiff's case. - D needs only to adduce evidence when he considers that the evidence led by the plaintiff has established the P's claim on a balance of probability. - In this case, since D had taken the stand that the P had not proved his claims, they were entitled to consider that no rebuttal thereof was necessary. 3) When material facts are within the knowledge of D - Datuk Abdullah Hishan v Sharma Kumari (No. 3): - A.I is invoked against the defendant because the material facts alleged against her were personal to and within her knowledge. - Court held that when she refused to take the witness stand without any plausible reason, an adverse inference must be drawn against her.

Answer 7

1) Prosecutorial discretion 2) Duty to discharge burden of proof 3) Sufficiency of evidence 4) Offer of evidence 5) Statutory protection of a witness

Answer 8

1) The law - Adel Muhammad el Dabbah v AG of Palestine: - The prosecution has a complete discretion as to the choice of witnesses to be called at trial. 2) Application - Mohd Shamsir bin Md Rashid v PP: - the fact that D decided not to call the co-travellers did not warrant the making of A.I; - P has the discretion to call whomever he thinks is material; - This discretion is not the subject of the court's interference.

Answer 9

1) Duty as guidance - Abdullah Zawawi v PP: - Prosecution's discretion to call or not to call a witness must be guided by his duty to discharge onus of proof; - where PP's evidence falls short of proving PF case, the right to call or not to call will be of no avail. 2) Failure to discharge burden - PP v Kalaiselvan: - failure to produce witness may result in prosecution's failure to discharge burden; - in such a case, despite explanation of absence is given, A.I may still be invoked against the prosecution. - A case cannot be said to have been proved simply by explaining away the absence of the witness.

Answer 10

1) General - Namisiyiam v PP: - The mere fact that the prosecution has failed to produce an informer was insufficient to draw an A.I; - This is in light of the fact that PP's evidence is already overwhelmingly sufficient. 2) Application - PP v DSAI (No. 3): - Held that PP's evidence was already sufficient in establishing prima facie case; - This has precluded an A.I being drawn when P has failed to produce certain witnesses.

Answer 11

1) General practice - Ti Chuee Hiang v PP: - It was an obligation of P to call & examine each of their witness; - Alternatively, P may offer them for cross-examination by the witness; - This practice will prevent the defence from commenting upon the honesty of the prosecution. 2) Cannot be used to close gaps in PP's case - Abdullah Zawawi v PP: - PP cannot offer material witness to the defence w/o calling them to testify & close gaps in its own case.

Answer 12

1) The law - M Chandra Segar Muniandy v PP (CA, 2014): - Mere informers: protected under S.40(1) DDA. PP was not requires to call them as witnesses or offer them to the defence. Failure will not attract A.I. - Agent provocateurs: evidence admissible by virtue of S.40A(1) DDA. Should be produced if he is material. Otherwise A.I may be invoked against him. 2) Distinction between informer & AP - PP v Chong Chee Kin: - the difference is in the degree of the participation. - Informer: gives info, i.e. provides the info to the police with regard to the commission of the offence. - AP: a person who does more than merely providing information to the police, i.e. introducing to the police with a view to induce the commission of the offence. 3) Application - Ti Chuee Hiang v PP: - Court held that "informer" in this case is not an informer but an AP; - Without his intervention & active participation, the accused will never get arrested; - He has lost his protection under S.40(1) DDA & failure to call him, explain his omission or offer him to the defence result in A.I being invoked.

Answer 13

1) General rule 2) Where the accused has legal burden prove statutory defence 3) Where the accused has to rebut the presumption

Answer 14

Goh Ah Yew v PP: - The accused merely has to discharge evidential burden; - No A.I can be drawn against him. - An accused is at the liberty to offer evidence or not as he thinks proper.

Answer 15

1) The principle - Goh Ah Yew v PP: - When the accused is relying on the defence of insanity, there is an onus on the defence to prove that the accused was insane. 2) Application - Baharom v PP: - The accused who relied in the defence of insanity could have called the medical officer who was familiar with his condition; - Failure to call or produce evidence related to the defence he was relying to entitled the jury to draw A.I against him.

Answer 16

Choo Chang Teik v PP: - Accused failed to produce evidence to rebut presumption of knowledge; - He claimed that he attempted to escape because of his experience being beaten by the thugs but failed to call evidence to testify regarding this incident; - His failure to call evidence that he was beaten by the thugs led to A.I being invoked against him.

Answer 17

1) The law: - S.114A 2) Scope - Tong Seak Kan & Anor v Loke Ah Kin & Anor: - s. 114A(2) is to presume that the registered owner of the blog is the publisher of the publication; - the presumption is rebuttable by proof to the contrary. - e.g. If a blog or website owner succeeds in proving that he is not the person who published the offending material then the presumption dissipates and s. 114A(2) of the Act loses its bite.

Answer 18

Yusof Holmes Abdullah v PP (HC, 2020): - Section 114A(2) provides that a person who is registered with a network service provider as a subscriber of a network service on which any publication originates from, is presumed to be the person who published the publication. - The e-mails, which were also classified as documents under s. 3 & had also fulfilled the requirements of documents produced by a computer in accordance with s. 90A , also fell under the ambit of s. 114A of the EA. - OTF, the presumption under s. 114A(2) arose against the appellant and the appellant had failed to rebut the presumption on a balance of probabilities that he was the owner of the e-mails. - The unrebutted presumption showed that the relevant emails were genuine.

Answer 19

Husam Musa v Faisal Rohban (CA, 2015): - in a defamation suit relating to libel, once the plaintiff has established by direct and/or circumstantial evidence through documents that the act complained of is defamatory, and was published and it refers to the plaintiff, and the defendant was the author of the misconduct, liability is attached. - The defendant’s defence cannot survive on mere denial, and when it relates to cyber crime, s. 114A of the Act will assist the plaintiff to force the defendant to exonerate himself from liability.

Answer 20

Peguam Negara Malaysia v Mkini Dot Com Sdn Bhd (FC, 2020): - by virtue of s. 114A of the Evidence Act 1950 the respondents are presumed to have published the impugned comments. - The presumption is a rebuttable one. - OTF, the court finds a prima facie case has been made out for the following reasons: -- (i) The words read out above are contemptuous as agreed by both parties; -- (ii) Prima facie there has been publication by Malaysiakini as the statements appeared on their news portal.

Answer 21

1) Operation of rebuttable presumptions of law 2) Presumption of law relating to documents - S.79 - 83 & S.89 3) Presumption of death - S.107 & 108 4) Presumption of legitimacy - S.112

Answer 22

1) The law: - S.4(2) 2) Operation of presumption under S.4(2) - PP v Chia Leong Foo: - a presumption is mandatory; i.e. the word "shall presume". - the presumed fact must be found to exist upon proof of basic facts. - upon presumption being invoked, it is still rebuttable.

Answer 23

1) The law | 2) Applicability on gazettes

Answer 24

- S.79 - 83 | - S.89

Answer 25

Arunamari Plantations Sdn Bhd v Lembaga Minyak Sawit: - pursuant to S.81, court shall presume the genuiness of every document purporting to be the Gazette.

Answer 26

1) The law 2) Scope of presumption 3) Meaning of "person who would naturally have heard of him"

Answer 27

- S.107: | - S.108:

Answer 28

Re Osman Balchit: - Presumption of death is to determine whether a person dead or alive; - NOT to ascertain or determine the exact date of death of the deceased.

Answer 29

R Muthu Thambi v K Janagi: - Presumption of death would only qualify for the person who would have heard of him; - OTF, since the wife does not fall within the category, the presumption cannot be invoked; - It is more reasonable to presume that the person has been concealing himself.

Answer 30

1) presumption of possession - S.37(d) 2) presumption of trafficking - S.37(da) 3) double presumption - S.37A

Answer 31

1) The law - S.37(d) 2) Applicability of presumption - PP v Chia Leong Foo: - Finding of possession may still be made without invoking presumption under S.37(d); - Presumption is only a special mode of proving facts which otherwise must be proved by evidence; - When there is such other evidence, presumption under S.37(d) cease to apply. - Fairness to the accused demands that presumption may only be used when there is no evidence of the facts to be presumed; - Arbitrary use of presumptions when there is direct evidence available may be a violation of Art. 8 of FC.

Answer 32

1) The law: - S.37(da) 2) Applicability of presumption - Muhammed Hassan v PP: - "found" under S.37(da) indicates that there must be express affirmative finding of possession based on sufficient & admissible evidence; - the express finding must be capable of forming one of the ingredients thereby giving rise to presumption of trafficking. - it would be harsh & oppressive to invoke presumption upon presumption on the accused.

Answer 33

1) The law: - S.37A 2) Whether it is constitutional - Alma Nudo Atenza v PP & Anor Appeal: - despite insertion of S.37A, plain reading of S.37(da) does not permit the concurrent application of both presumption in a drug trafficking case. - S.37A violates the presumption of innocence because it allows an accused to be convicted while reasonable doubt may exist; - S.37A is struck down on the basis that it is violating Art. 5 & 8 of FC. 3) Recent application - Tan Kok Leong v PP & Anor Appeal (CA, 2020): - The use of double presumption under S.37(d) & S.37(da), whether at the end of prosecution or defence case is ultra vires of FC. - Even so, the use of double prosecution does not automatically entitle the accused to an acquittal. - Such an error & misdirection warrant an appellate intervention, and the court still needs to scrutinise all evidence to determine whether the conviction is safe. - OTF, even though this error did not automatically entitle the appellants to an acquittal, the misdirection by the trial judge had prejudiced the appellants and the conviction against them was not safe.

Answer 34

1) Operation of irrebuttable presumption of law 2) Presumption of sexual incapacity - S.113 3) Presumption of legal character conferred by judgment - S.41(2)

Answer 35

1) The law: S.4(3) 2) Operation of presumption under S.4(3): - the word conclusive proof means that upon invocation of the presumption after the prove of basic facts, it is irrebuttable; - i.e. no evidence shall be admissible & allowed for the purpose of disallowing it.

Answer 36

1) The law: - S.113 2) Argument - Glanville Williams in Textbook of Criminal Law: - puberty may be attained before age of 14; - rape only requires penetration & ability to have an erection as opposed to ability to erect semen.

Answer 37

1) The law: - S.41(2) 2) Argument - Marriete Peters in Law of Evidence in Malaysia: - under S.44, a party may prove that such judgment was delivered by incompetent court or it was obtained by fraud or collusion; - S.44 shows that presumption under S.41(2) is rebuttable.

Chapter 3 - Presumptions Flashcards

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