Malaysia legislation
Section 19
Section 19
An iqrar made by a person in a state of marad-al-maut in relation to his liability or obligation to another person shall be admissible.
Statements by Persons who cannot be called as Witnesses
Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is qarinah 20.—
Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves qarinah in the following cases:
(a)
when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question; such a statement is qarinah whether the person who made it was or was not at the time when it was made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;
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(b)
when the statement was made by any such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;
(c)
when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;
(d)
when the statement gives the opinion of any such person as to the existence of any public right or ‘urf or matter of public or general interest, of the existence of which if it existed he would have been likely to be aware, and when the statement was made before any controversy as to the right, ‘urf or matter had arisen;
(e)
when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;
(f)
when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and, is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when the statement was made before the question in dispute was raised;
(g)
when the statement is contained in any document which relates to any transaction as is mentioned in section 13(a);
(h)
when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question.
(a)
The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that on a given day he attended A’s mother and delivered her of a son, is qarinah.
(b)
The question is whether A was in Kuching on a given day.
A statement in the diary of a deceased advocate regularly kept in the course of business that on a given day the advocate attended A at a place mentioned in Kuching for the purpose of conferring with him upon specified business is qarinah.
(c)
The question is whether A and B were legally married.
The statement of a deceased Kadi that he married them under circumstances that the celebration would be invalid is qarinah.
(d)
The question is whether A, a person who cannot be found, wrote a letter on a certain day.
The fact that a letter written by him is dated on that day is qarinah.
(e)
The question is whether A, who is dead, was the father of B.
A statement by A that B was his son is qarinah.
(f)
The question is what was the date of the birth of A?
A letter from A’s deceased father to a friend, announcing the birth of A, on a given day, is qarinah.
(g)
The question is whether and when A and B were married.
An entry in a memorandum-book by C, the deceased father of
B, of his daughter’s marriage with A on a given date, is qarinah.
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(2)
The evidence of such statement shall be given by at least two male witnesses or one male and two female witnesses.
(3)
The evidence relating to such statement shall not be admissible under the following circumstances:
(a)
when the person who made the statement forbids the statement to be given as evidence;
(b)
when the person who made the statement ceases to be competent to give evidence;
(c)
when the person who made the statement refuses to give evidence on the ground that he has no evidence relevant to the dispute or that he did not make the statement or that he made a mistake in relation to the said statement.
Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated 21.
Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is qarinah for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the Court considers unreasonable:
Provided that—
(a)
the proceeding was between the same parties or their representatives in interest;
(b)
the adverse party in the first proceeding had the right and opportunity to cross-examine;
(c)
the questions in issue were substantially the same in the first as in the second proceeding.
Explanation — A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Statements made under Special Circumstances
When entries in books of account are qarinah 22.
Entries in books of accounts regularly kept in the course of business are qarinah whenever they refer to a matter into which the
Court has to inquire, but the entries shall not alone be sufficient evidence to charge any person with liability.
When entry in public record made in performance of duty is qarinah 23.
An entry in any register, record or any public or other official book, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in the performance of a duty specially enjoined by the law of the country in which the register, record or book is kept, is itself qarinah.
Statements in maps, charts and plans are qarinah 24.
Statements of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Government of Malaysia or of any States as to matters usually represented or stated in such maps, charts or plans, are themselves qarinah.
Statement as to fact of public nature contained in certain legislation or notifications are qarinah 25.
When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it made in a recital contained in an Act, Ordinance, Enactment, or in a Federal
Government or any State Government notification published in a
Federal or State Gazette, is qarinah.
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Statement as to any law contained in law books are qarinah 26.
When the Court has to form an opinion as to a law of any country, any statement of that law contained in a book purporting to be printed or published under the authority of the Government of that country, and to contain any such law, and any report of a ruling of the courts of that country contained in a book purporting to be a report of such rulings, is qarinah.
How much of a Statement to be proved
What evidence to be given when statement forms part of a conversation, document, book or series of letters or papers 27.
When any statement of which evidence is given forms part of a longer statement or of a conversation, or part of an isolated document or is contained in a document which forms part of a book or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement and of the circumstances under which it was made.
When Judgments of Courts are Qarinah
Previous judgments relevant to bar a second suit or trial 28.
The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial is qarinah when the question is whether the Court ought to take cognizance of the suit or to hold the trial.
When certain judgments in probate, etc., are qarinah 29.—
A final judgment, order or decree of a Court, in the exercise of probate or matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is qarinah when the existence of any such legal character or the title of any such person to any such thing is qarinah.
(2)
Such judgment, order or decree is conclusive proof—
(a)
that any legal character which it confers upon any person accrued at the time when the judgment, order or decree came into operation;
(b)
that any legal character to which it declares any such person to be entitled accrued to that person at the time when the judgment, order or decree declares it to have accrued to that person;
(c)
that any legal character which it takes away from any such person ceased at the time from which the judgment, order or decree declared that it had ceased or should cease; and
(d)
that anything to which it declares any person to be so entitled was the property of that person at the time from which the judgment, order or decree declares that it had been or should be his property.
When judgments, orders or decrees are qarinah 30.
Judgments, orders or decrees, other than those mentioned in section 29, are qarinah if they relate to matters of a public nature relevant to the inquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
When judgments, etc., are not qarinah 31.
Judgments, orders or decrees, other than those mentioned in sections 28, 29 and 30, are not qarinah unless the existence of such judgments, orders or decrees is a fact in issue or is qarinah under any other provision of this Ordinance.
Fraud or collusion in obtaining judgment or incompetency of
Court may be proved 32.
Any party to a suit or other proceeding may show that any judgment, order or decree which is qarinah under section 28, 29 or 30, and which has been proved by the adverse party, was delivered by a
Court not competent to deliver it or was obtained by fraud or collusion.
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When Opinion of Third Persons is Qarinah
Opinion of experts 33.—
When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions or relating to determination of nasab, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions or relating to determination of nasab, are qarinah.
(2)
Such persons are called experts.
(3)
Two or more experts shall be called to give evidence where possible but if two experts are not available, the evidence of one expert is sufficient. If two experts give different opinions a third expert shall be called to give evidence.
The question is whether a certain document was written by A.
Another document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by different persons are qarinah.
Facts bearing upon opinions of experts 34.
Facts not otherwise qarinah are qarinah if they support or are inconsistent with the opinions of experts when such opinions are qarinah.
When opinion as to handwriting is qarinah 35.
When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it was supposed to have been written or signed, that it was or was not written or signed by that person, is qarinah.
Explanation — A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
The question is whether a given letter is from A to his wife.
The evidence is given by B who is the secretary of A and her duty is to examine and file A’s correspondence.
The opinion of B on the question whether the letter is in the handwriting of A is qarinah, though B never saw A write.
When opinion as to existence of right or ‘urf is qarinah 36.
When the Court has to form an opinion as to the existence of any right or ‘urf, the opinions as to the existence of such right or
‘urf of persons who would be likely to know of its existence, if it existed, is qarinah.
Explanation — The expression “right or ‘urf” includes right or
‘urf common to any considerable class of persons.
When opinion as to usages, tenets, etc., is qarinah 37.
When the Court has to form an opinion as to—
(a)
the usages and tenets of any body of men or family;
(b)
the constitution and government of any religious or charitable foundation; or
(c)
the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon are qarinah.
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When opinion as to relationship is qarinah 38.
When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who as a member of the family or otherwise has special means of knowledge on the subject is qarinah.
(a)
The question is whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife is qarinah.
(b)
The question is whether A was a legitimate son of B.
The fact that A was always treated as such by members of the family is qarinah.
When ground of opinion are qarinah 39.
Whenever the opinion of any living person is qarinah, the grounds on which his opinion is based are also qarinah.
An expert may give an account of experiments performed by him for the purpose of forming his opinion.
When Character is Qarinah
In civil cases character to prove conduct imputed is not qarinah 40.
In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is not qarinah except so far as his character appears from facts which are qarinah.
In criminal proceedings, previous good character is qarinah 41.
In criminal proceedings, the fact that the accused person is of a good character is qarinah.
Previous bad character not qarinah except in reply 42.
In criminal proceedings, the fact that the accused person has a bad character is not qarinah unless evidence has been given that he has a good character, in which case it becomes qarinah.
Explanation 1 — This section does not apply to cases in which the bad character of any person is itself a fact in issue.
Explanation 2 — A previous conviction is relevant as evidence of bad character.