Evidence Act 1950: What Counts as Evidence in Court

A photograph, a WhatsApp message, or the words of a witness do not automatically become “evidence” in court. Whether something counts as evidence — and who has to prove it — is determined by a single statute: the Evidence Act 1950 (Act 56).

The Act came into force in Peninsular Malaysia on 23 May 1950 (Ordinance No. 11 of 1950), was revised in 1971, and was extended to Sabah and Sarawak on 1 November 1971 through P.U.(A) 261/1971. In its official reprinted text (as at 1 December 2012), it contains 167 sections arranged in three Parts. The Attorney-General’s Chambers official portal lists several later amendments, so the current content of any section should be checked against the latest official text.

What does the Evidence Act 1950 cover?

Section 2 sets out the scope: the Act applies to all judicial proceedings “in or before any court”, but does not apply to affidavits presented to any court or officer, and does not apply to proceedings before an arbitrator.

The Act governs three basic questions in any trial:

• What is relevant — which facts may be put before the court at all.
• How it is proved — the methods of presenting oral and documentary evidence.
• Who must prove it — burden and presumptions.

It derives from the Indian Evidence Act model and retains the same structure: definitions, relevancy of facts, admissions and confessions, documentary evidence, burden of proof, estoppel, and witnesses.

When is evidence admissible in court?

The gateway principle lies in section 5: evidence may be given only of facts in issue and of facts declared relevant by the Act, “and of no others”. Information that is true but not legally relevant cannot come in.

Some of the more frequently cited admissibility provisions:

Section	Matter	Brief effect
s5–s16	Relevancy of facts	Facts in issue, facts forming part of the same transaction, motive, preparation, state of mind
s24	Confession caused by inducement	Irrelevant if caused by inducement, threat or promise from a person in authority
s25	Confession to police	A confession to a police officer below the rank of Inspector cannot be proved against the accused
s27	Information leading to discovery	Part of the information from an accused may be proved so far as it leads to the discovery of a fact
s90A	Computer-produced documents	Admissible as evidence of a fact if produced in the ordinary course of use of the computer

Section 90A is important in the digital era: a document produced by a computer is admissible if it was produced “in the course of its ordinary use”, regardless of whether the party tendering it is the maker of that document. Proof is usually made through a certificate under s90A(2) signed by the person responsible for the management of the operation of that computer; where such a certificate is given, the computer is presumed to have been in good working order (s90A(4)). This provision has been the subject of academic and judicial discussion as to its precise interpretation, and differing views exist about the need for its improvement.

Who bears the burden of proof?

The basic rules lie in Chapter VII (s101–s114). Section 101 provides that whoever wants the court to give judgment as to any legal right or liability dependent on facts he asserts must prove that those facts exist.

Section 102 explains where that burden lies in practical terms: the burden of proof lies on the party who “would fail if no evidence at all were given on either side”.

In criminal matters, section 105 shifts a particular burden onto the accused: when a person is accused of an offence and relies on any general exception in the Penal Code (for example unsoundness of mind or grave and sudden provocation), the burden of proving those circumstances lies on him, and the court “shall presume” the absence of those circumstances. Section 106 in turn places the burden of proving a fact especially within a person’s knowledge upon that person.

A distinction must be drawn between the burden (who must prove, as provided by the Act) and the standard of proof required. The definition of “proved” in s3 states that a fact is “proved” when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought to act upon the supposition that it exists. The standards of proof commonly applied — beyond reasonable doubt in criminal cases, and on the balance of probabilities in civil cases — are shaped by judicial interpretation based on this definition.

What is a “presumption” and how does it work?

A presumption is a legal shortcut: the court accepts a fact as existing without full proof. Section 4 distinguishes three levels:

1. The court may presume — the court may either regard the fact as proved unless disproved, or call for proof of it (discretionary).
2. The court shall presume — the court must regard it as proved unless disproved.
3. Conclusive proof — when one fact is declared conclusive proof of another, the court will not allow evidence to be given to disprove it.

Examples of presumptions in the Act include section 112 (birth during marriage as conclusive proof of legitimacy) and section 114, which allows the court to presume the existence of a fact likely to have happened, having regard to the common course of natural events and human conduct — for instance, that a person in possession of stolen goods soon after a theft is either the thief or a receiver unless he can account for his possession, or that evidence which could be produced but is not produced would, if produced, be unfavourable to the party who withholds it.

Section 114A, inserted in 2012, introduced presumptions relating to online publication: among others, a person whose name, photograph or pseudonym appears on a publication as its owner, host or editor is presumed to have published that content unless the contrary is proved. This provision refers to definitions in the Communications and Multimedia Act 1998 [Act 588] and has been the focus of public discussion about its effect on internet users; differing views exist and have been expressed openly.

Which communications are privileged?

Chapter IX protects certain categories of communication from being disclosed in court:

• Advocate and client (s126) — an advocate is not permitted to disclose communications made in the course of his employment, without the client’s express consent. Proviso: this protection does not apply to communications made in furtherance of an unlawful purpose, or to facts showing that a crime or fraud has been committed since the employment began.
• Communications during marriage (s122) — a married person shall not be compelled, and is not permitted, to disclose any communication made to him during marriage, except with consent or in a suit between the spouses themselves.
• Affairs of State and official communications (s123, s124) — unpublished official records relating to affairs of State are protected.
• Information as to offences (s125) and legal advisers (s129) are also protected, while s128 clarifies that privilege is not waived merely because evidence is given voluntarily.

What’s next

The Evidence Act 1950 is a general framework; it is often read together with other statutes such as the Criminal Procedure Code and the relevant substantive law. To understand a provision precisely, refer to the full official text of Act 56 and to the court judgments interpreting it, because many concepts — including the standard of proof and the scope of s90A and s114A — are shaped by case law. This content is general information and not legal advice; for a specific issue, obtain the advice of a qualified lawyer.