Yet another decision recently from the Federal Court on documentary proof and explaining Part C documents – below.
Now, is it really that difficult to comprehend the three parts, or have we lawyers made it difficult ourselves with creative arguments to come out of sticky situations? Let’s see:
1. Primary evidence rule. Documents must be proven by producing the original and calling the maker – best evidence – then it becomes exhibit (evidence) – a ‘P’ or ‘D’.
2. Secondary evidence. When the original or the maker is not available, an available copy may be tendered through a witness, under the relevant exceptions to primary evidence with explanation. If the court is satisfied, it becomes an exhibit (evidence) – ‘P’ or ‘D’.
3. Caution.Being an exhibit (evidence) does not mean it is accepted as true or proven as true – that is a separate matter, to be decided by the Court at the end of the trial. Admissibility does not equal ‘truth’.
4. This archaic evidentiary process was ‘short-circuited’ and modernised by the introduction of ‘Common Agreed Bundle of Documents’ consisting of Part A,B and C, or Part I, II and III. How?
5. Part A documents – Agreed and Admitted or ‘Dipersetujui dan Diakui’. The document is accepted as existing (meaning, genuine, not forged) and it’s contents true, they will not be disputed at trial. So, original need not be produced, maker need not be called.
Whether Part A document becomes evidence automatically? No. It must still be referred by the witness. Why? Utility. Otherwise how do we know where that document fits in the overall facts?
6. Part B documents – Agreed but Not Admitted (Dipersetujui Tetapi Tidak Diakui). This document is agreed as existing but it’s contents disputed. The contents will be challenged at the trial, but not the existence of the document. The original need not be produced, the maker need not be called. The contents may be proven by calling any witness familiar with the document and it’s contents. The document must be referred by a witness and marked as exhibit, P or D. Again, admitted as evidence does not mean it is proven to be true.
7. Part C documents – Not Agreed and Not Admitted (Tidak Dipersetujui dan Tidak Diakui). This document is disputed as to its existence and contents. The archaic rule applies – produce the original, call the maker. Otherwise it will not become evidence.
8. In short, being an ‘evidence’ P or D, only makes the document as qualified to be considered by the Court. In that process the Court will decide on the balance of probabilities (51%) whether that ‘evidence’ is true or otherwise.
Meaning, there can be ‘evidence’ that is true or untrue. Admissibility as evidence does not equate to truth!
R. Jayabalan
MESSRS R. JAYABALAN
