5.6 Malaysian Decided Cases

5.6 CASES

• Citibank Berhad v Titik Juta Sdn Bhd [2008] MLJU 0437

In virtue of Section 2 of the Evidence Act 1950, the court held that the Act is not applicable regarding affidavits brought up in proceedings. The court follows the decision made in Muthukrishnan a/l Suppiah v Menteri Hal Ehwal Dalam Negeri & Anor [1994] 3 AMR 2259, Re Ong Thim Kuang [2000] 5 MLJ 442, Southern Finance Bhd. v Sun City Development Sdn. Bhd. & anor [2006] 6 MLJ 673 and Riedel- De Haen Ag v Liew Keng Pang [1989] 2 MLJ 400.

 

• Hanafi bin Mat Hassan v Public Prosecutor [2006] 4 MLJ 134

The accused was charged in the High Court with rape and murder of the deceased on 7 October 2000. It was alleged that the accused raped and murdered the deceased while she was travelling in the bus driven by the accused. Learned counsel for the accused submitted that the evidence presented by the prosecution was inadmissible,  because (i) the bus ticket produced by a ticket machine in a bus belonging to the bus company of the accused was inadmissible for failure of the prosecution to tender a certificate pursuant to Section 90A(2) of the Evidence Act 1950; and (ii) summary of the DNA profiling result was also inadmissible for non-compliance with Section 90A.

The court dismissed the appeal and found the accused guilty of both charges (murder and rape).

Augustine Paul JCA had dispensed with the need to tender in evidence the certificate required by Section 90A(2) as there was evidence to show that the ticket machine was a computer and that the ticket was produced in the ordinary course of business of the ticket machine. The presumption in Section 90A(6) was sufficient to establish the latter element even in the absence of evidence from the witness to show that the ticket was produced by the machine in the ordinary course.

The learned judge agreed with DPP's arguments that in order to tender bus ticket as evidence, it was sufficient for him to rely on Section 90A(1) read with the definition of 'computer' as found in Section 3 of the Evidence Act. The trial judge found that the bus ticket machine fits in the definition of 'computer'.

The failure of the prosecution to tender a certificate pursuant to Section 90A(2) is irrelevant in this case. The use of the words 'may be proved' in Section 90A(2) indicates that the tendering of a certificate is not a mandatory requirement in all cases but it is permissive.

Furthermore, there were also oral evidence by witnesses that both the bus ticket machine and the DNA analyser is working in their course of ordinary use.

Therefore, even without a certificate to prove the authenticity of the bus ticket, Section 90A(6) of the Evidence Act deems the ticket to be produced by the ticket machine in the course of its ordinary use. He based his decision on the judgment of the Court of Appeal in Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] 3 MLJ 1. Accordingly, the learned judge admitted the ticket and the DNA report in evidence.

 

• Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613 

The appellant was convicted of rape and murder in the High Court. The appellant appealed to the Court of Appeal. The significant issues, inter alia, concerned the admissibility of documents produced by a computer pursuant to Section 90A of the Evidence Act 1950.

The court held that a certificate under Section 90A(2) of the Evidence Act is not the only method to prove that a document was produced by a computer 'in the course of its ordinary use' under Section 90A(1). Section 90A(6) deals with the admissibility of a document which was not produced by a computer in the course of its ordinary use and is only deemed to be so. The fact that a document was produced by a computer in the course of its ordinary use may be proved by the tendering in evidence of a certificate under Section 90A(2) or by way of oral evidence. Such oral evidence must consist not only of a statement that the document was produced by a computer in the course of its ordinary use but also of the matters presumed under Section 90A(4). The presumption contained in Section 90A(6) could be resorted to only when the document was not produced by a computer in the course of its ordinary use, following the decision in Hanafi Mat Hassan v Public Prosecutor [2006] 4 MLJ 134

In this case, no certificate was tendered under Section 90A(2) for proof of the chemist report. Further, no oral evidence was adduced to show that the report was produced by a computer. However, the report could be presumed to be produced in the course of the computer's ordinary use under Section 90A(6). Proof of the matters referred to under Section 90A(4) was also adduced through the evidence of a witness. The chemist report, which directly linked the appellant to the commission of the crimes charged, was thus admissible.

However, although CCTV tapes were documents produced by a computer by virtue of the definition ascribed to the words 'document' and 'computer' under Section 3 of the Act, it did not satisfy the requirements of Section 90A. Therefore, they were inadmissible as evidence.

Zulkefli FCJ, delivering the judgement of the court, dismissed the appeal.

POSTED BY NADHIRAH NA’IEMAH