To distinguish between relevancy and admissibility, I would like to explain the meaning of relevancy and admissibility before we proceed to the difference between these two concepts.

According to Janab’s Key to Evidence, relevancy refers to the degree of connection and probative value between a fact that is given in evidence and the issue to be proved. Relevancy of facts had been provided from Section 5 to 55 of Evidence Act 1950. By referring to the illustration (a) provided in Section 5 where A is tried for the murder of B by beating him with a club with the intention of causing his death. There are three facts in issue to be proved - A’s beating B with the club; A’s causing B’s death by the beating; and A’s intention to cause B’s death.

A fact is relevant when it is so related to the fact in issue, that they render the fact in issue probable or improbable. For example, to prove the third facts in issue in the example just now, the facts that A and B was having quarrel before the murder happens is relevant to prove the third facts in issue which is A’s intention to cause B’s death.

Admissibility involves the process whereby the court determines whether the Law of Evidence permits that relevant evidence to be received by the court. The concept of admissibility is often distinguished from relevancy. Relevancy is determined by logic and common sense, practical or human experience, and knowledge of affairs. On the other hand, The admissibility of evidence, depends first on the concept of relevancy of a sufficiently high degree of probative value, and secondly, on the fact that the evidence tendered does not infringe any of the exclusionary rules that may be applicable to it. Relevancy is not primarily dependant on rules of law but admissibility is founded on law. Thus, relevancy usually known as logical relevancy while admissibility is known as legal relevancy. Relevancy is a question of fact which is the duty of lawyers to decide whether to tender such evidence in the court. On the other hand, admissibility is the duty of the court to decide whether an evidence should be received by the court according to Augustine Paul JC in the case of Public Prosecutor v. Dato Seri Anwar bin Ibrahim.

In general, a relevant fact given in evidence under Section 5 to 55 is admissible in the court. However, a relevant fact under Section 5 to 55 may not be admissible if the other sections of the Act do not permit it to be received by the court. These are the main exclusionary rules in the Act which excluded the admissibility of a relevant fact. Hearsay statement, confessions, evidence of the defendant character, exclusion of evidentiary facts by estoppel and exclusion of privileged communication.

For example, hearsay evidence is generally excluded even though relevant. For example, Siti saw that Ahmad had killed Vinnie with a knife. Then Siti told what he saw to Amirul. Here, Amirul cannot become a witness as he did not see the incident himself. The fact that Amirul heard from Siti that Ahmad had murdered Vinnie with a knife is relevant as it is based on logic and common sense. However, such evidence generally is not admissible in the court as it is forbidden by the Law of Evidence. Section 60 stated that oral evidence must be direct. The witness who testifies in court must be the person who perceived the facts with his own sense.

For instance, a confession obtained by any inducement, threats or promise is not admissible under Section 24. A confession to the police officer below the rank in Inspector is not admissible under Section 25. Confession by accused while in custody of police is also not admissible under Section 26 even though it is logically relevant. For example, this is what I noticed in the accused’s statement in police report while I was doing my internship in Attorney General's Chambers. In a case where the thief had already admitted to the police officer that he had stolen the hand phone. However, such confession cannot be tendered as an evidence in the court. The accused then founded not guilty by the court because the Deputy Public Prosecutor failed to prove the case beyond reasonable doubt. Here, the fact that the thief had already confessed to the police officer is relevant, however, it is not admissible in the court as it had been forbidden by Section 26 of Evidence Act 1950. In the case of Eng Sin v. Public Prosecutor, Gill J held that the admission by the accused to a doctor that he had killed a man is not admissible as he is still under the custody of a police officer.

An irrelevant fact is not admissible in the court. However, in certain cases, evidence, which is not relevant under Section 5 to 55 may nonetheless be admissible. Examples include:

Statement of relevant fact by person who is dead or cannot be found: Section 32. Impeaching credit of witness: Section 155. Former statements of witness may be proved to corroborate later testimony as to same fact: Section 157.

As conclusion, relevancy is a test for admissibility. The question of admissibility is one of law and is determined by the Court. In Section 136 of Evidence Act 1950, a distinction is made between relevancy and admissibility, if it can be shown that the evidence would be relevant if proved, the court shall admit evidence of it.

Prepared By: kelzmanien