Refreshing a witness’s memory under Sections 159 and 160 of the Evidence Act 1950
- Gavin Jayapal
- Jul 23
- 7 min read
Refreshing a witness’s memory under Sections 159 and 160 of the Evidence Act 1950
Memories fade. This is a fact. The Courts are cognisant of this and as a result, witnesses are entitled to refresh their memory when giving evidence.
The legal basis
Sections 159 and 160 of the Evidence Act 1950 deal with the process in which a witness is entitled to refresh his/her memory. It is not necessary for a witness’s memory to be faded before recourse may be had to the section. The discretion as to whether to allow (or disallow) a witness from refreshing their memory is that (discretion) of the HCJ.
As put by the FC in Adiswaran v PP [2014] 3 MLJ 228:
[67] Looking at the cases mentioned earlier we are of the view that there can be no general rule that a witness is to be allowed to refresh his memory only when his memory has faded. It is within the trial court's discretion to allow a witness to refresh his memory. Cases show that witnesses were allowed to be shown their statements even before the trial. It is the duty of the trial judge to see that the court will not be deprived of the full testimony and information which it should have in order to do justice.
The production of additional documents mid-stream trial
In civil proceedings, parties are given pre-trial case management directions (PTCM Directions). They are directed to file the Common Bundle of Documents and are further given directions as to timelines.
In most cases, a good proportion of the documents may be before the Court. However, as the trial unfolds, the parties may discover that there is an evidential gap and/or aspect of analysis that has not been considered.
In such a situation, a further bundle of documents may be produced mid-stream trial.
Whilst there is nothing egregious about this process (it being relatively commonplace), it may disrupt the trial process. One may also (wrongly, I posit) construe this as thumbing one’s nose at the PTCM directions.
The manner in which Judges deal with this issue is very fact and Judge-specific. Some Judges outright refuse any additional documents no matter how crucial, whereas others adopt a hands-on approach wherein relevant documents ought to be adduced and threshed-out in the crucible of trial.
Refreshing a witness’s memory from inadmissible documents
Where a Bundle of Documents adduced mid-stream trial is expunged, a question may then arise as to whether a witness is allowed to peruse said document to refresh his memory.
In Kong Kin Lay v Kong Kin Siong [2023] MLJU 1858, just such a situation arose. John Lee J had refused an application to adduce a fresh Bundle of Documents:
[18] The backdrop of the issue was in relation with SD5. In the course of the trial, the Defendants subpoenaed SD5, a former court interpreter assigned to the Sessions Court in Kuala Lumpur. The Defendants’ counsel, Mr. Mohd Faizal Bin Mohd Aris asked for leave for SD5 to refer to an affidavit in a separate suit that was translated by SD5 to the Deceased when he was alive. The Defendant had earlier tried to put in this document through a separate bundle of documents. In view that this was only done in the middle of the Defendant’s case and at the eleventh hour, I have denied this request for the filing of this additional bundle of document
A question then arose as to whether the witness could refresh his memory despite the Bundle of Documents being rendered admissible. John Lee J held that the witness would be entitled to do so.
His Lordship considered the HC decisions of Chau Kam Hoon v PP [2003] 4 MLJ 686 and Chuah Aik King v Keydonesoft [2019] 8 MLJ 515 and held as follows:
[25] I find that decision relevant to the present case. There is nothing in section 159 that mentions that documents applicable to it (for the purpose to refresh memory) are only documents which are within the bundle of documents. I shall elaborate further below.
[27] Plainly, it can be read that there are two categories of documents which may be used to refresh a witness’ memory:
(i) Any writing made by himself at the time of the transaction concerning which he is questioned; or (ii) Any writing made by any other person and read by the witness within the time aforesaid.
[28] The word “any” is instructive on this point. The section does not prohibit a party from referring a witness to a document that the said witness has personal knowledge of whether it is in the bundle or otherwise. Section 159 does not deal with admission of a document, nor does it compel this Court to admit a document. The referred document is merely a tool for reference to assist the witness in providing accurate and quality oral evidence, where only that oral evidence is admissible and considered. The purpose, as per the term used in S. 159, is to refresh his memory.
[30] Therefore, I find that the Plaintiffs’ position that Chau Kam Hoon (supra) had decided that only admitted documents can be used to refresh SD5’s memory is misplaced. The Defendants correctly applied for leave under section 159 for the affidavit to be used (just to refresh the memory of the witness) even though the said affidavit is not part of the bundle of documents. It need not be in the bundle for this Court, by applying Section 159 of the Evidence Act, had never admitted and would never admit the document. Section 159 only aims to allow the witness to take a glance of the document to recollect the incident/ the content of the document. His testimony is admissible if all the rules on evidence (no hearsay, etc), are complied with. The document, on the other hand, would not be admitted at all.
His Lordship then concluded that the witness would be entitled to refresh his memory:
I find that the Defendants’ counsel is at liberty to invoke section 159 and 160 of the Evidence Act 1950, and thus leave is granted for SD5 to refer to that affidavit to refresh his memory.
Analysing case law will show that the most important requirement to refresh a witness’s memory would be contemporaneity. The document that the witness proposes to utilise must be one which was produced and outlined at that relevant time; to refer to something outside a relevant timeframe would remove the right to refreshing one’s memory.
Critical analysis
From the above, it may be seen that even where a Bundle of Documents is inadmissible, the witness can still have a look at the document to refresh his memory. He may then be cross-examined on the issue.
What is interesting would be Section 161 of the Evidence Act 1950:
Right of adverse party as to writing used to refresh memory
161. Any writing referred to under section 159 or 160 must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.
His Lordship did not consider the same but in Chuah Aik King, Wong Kian Kheong J did:
The court inquired from the plaintiff on whether he would wish to apply for the court’s permission under s 159(1) of the ea (if the written statement is made by the plaintiff) or s 159(2) of the EA (if the written statement is made by a person other than the plaintiff) to refresh his memory based on the written statement. The court informed the plaintiff that if the court grants permission to the plaintiff to do so, according to s 161 of the EA, a copy of the written statement must be given to the defendant and the defendant’s learned counsel has the right to adduce the written statement as evidence in this case and may thereafter cross-examine the plaintiff based on the written statement.
I am of the view that if His Lordship had considered S. 161 EA 1950, the additional bundle of documents (that His Lordship had excluded) would have been given to opposing Counsel for the process of cross. It would then have been admitted into evidence as a matter of course as it would be completely incorrigible for the parties and witness to have the document, but not the Court (NB: It is possible that the Plaintiff’s solicitor maintained that they did not require it).
I am also of the view that the additional bundle of documents which was refused admittance ought to have been allowed. O. 38, r. 10 of the Rules of Court 2012 specifically provides as follows:
Court documents admissible or receivable in evidence (O. 38, r. 10)
10. (1) Office copies of a writ or originating summons, records, pleadings and documents filed in the Registry shall be admissible in evidence in any cause or matter and between all parties to the same extent as the original would be admissible.
The affidavit would have automatically been admissible, notwithstanding any objections by opposing Counsel.
Conclusion
A document need not be before the Court before a witness is entitled to refresh his/her memory on the same.
As a matter of practical common sense, I am of the view that if a witness refreshes his/her memory by a document, it would only make sense to have said document before the Court and admitted into evidence.
If the document is not placed before the Court, no party would be entitled to make any submission on the document, nor challenge what the witness is saying. What the witness gleans from the document (and submissions on the veracity of the witness) would also be lost as the written evidence is removed from the Court’s records.
As a matter of law though, my opinion would be irrelevant; it is clear that a document need not be before the Court before a witness can refresh his memory with the same.
GAVIN JAYAPAL
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