What happens if a party does not call an important witness? (Adverse inference)

Every party has to decide which witnesses to call. Sometimes the person everyone expects to hear from never appears: the doctor who performed the procedure, the manager who signed the contract, the officer who seized the evidence. The other side will often ask the court to draw an adverse inference. This article explains what that means.

What is an adverse inference?

Section 114 of the Evidence Act 1950 lets the court presume facts it thinks likely, having regard to the common course of events and human conduct. Illustration (g) says the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.

In simple terms: if you have a witness or a document that could clear up a key point, and you keep it back without good reason, the court may infer that it would not have helped you.

Is the inference automatic?

No. Section 114 says the court may presume. Whether an inference is drawn depends on the facts. Courts generally look at questions such as:

• Was the witness or document material to a real issue?
• Was it available to the party, or could they reasonably have obtained it?
• Was it withheld, or was there a good explanation, for example the witness had died, could not be traced or was abroad?
• Was the point already proved by other evidence, so that calling the witness would add nothing?

Courts have also stressed that a party is not required to call every possible witness. The inference is aimed at evidence that is suppressed or held back, not at sensible choices to avoid repetition.

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How does it work in civil cases?

In a civil trial, each party proves its own case. If, for example, a hospital does not call the doctor whose conduct is challenged, or a company does not call the employee who dealt with the customer, the other side may argue that an adverse inference should be drawn. The court considers the explanation offered and the evidence as a whole.

The same idea applies to documents. Discovery obligations under the Rules of Court 2012 require relevant documents to be disclosed; a party who fails to produce a document within its control may face this argument too. See our article on originals, copies and the agreed bundle.

How does it work in criminal cases?

In a criminal trial, the prosecution must prove its case beyond reasonable doubt. If the prosecution does not call a material witness, the defence may argue that s.114(g) applies and that the gap creates doubt. Courts have considered, among other things, whether the witness was offered to the defence, and whether the evidence was essential to the prosecution case. The accused is not under the same duty to call witnesses, and the presumption of innocence remains.

How should a party plan its witnesses?

1. List every person who has direct knowledge of each disputed fact.
2. Decide with your lawyer who should be called, and why others are not needed.
3. Keep a record if a witness cannot be found, refuses or is unwell, so the reason can be explained.
4. Consider a subpoena for an important witness who will not attend voluntarily.
5. Disclose documents properly; do not hold back unfavourable ones.

Witness choice is about presenting the true picture. It must never involve persuading a witness to stay away or shaping what they will say.

Common mistakes

• Leaving out the key witness because their evidence is not entirely favourable.
• Assuming the other side cannot comment on a missing witness.
• Not explaining why a witness is absent.
• Calling many witnesses on peripheral points while omitting the central one.
• Pressuring a witness not to attend. That can be contempt; see our article on contempt of court.

When to speak to a lawyer

Speak to a lawyer when preparing for trial, if a key witness is reluctant or unavailable, or if the other side has not called someone you expected. Chris & Partners, led by Dr Chee Hui Bing, handles civil and criminal litigation. Contact us; every case depends on its facts.

Frequently asked questions

Do I have to call every witness who knows about the case?

No. You call the witnesses needed to prove your case. Leaving out a material witness without explanation carries a risk.

What if my witness has moved overseas?

Explain this to the court, and ask your lawyer whether evidence by video link is possible. See our article on giving evidence by video link.

Can I call the other side's employee as my witness?

Sometimes, for example by subpoena, but there are practical risks. Discuss with your lawyer first.

Does an adverse inference mean I lose?

No. It is one factor the court weighs with all the other evidence.

Can the court draw an inference if I do not give evidence myself?

In civil cases, a party who does not give evidence on matters within their own knowledge may face this argument. In criminal cases, the accused's rights are different; take advice.

Sources & fact check

Legal points in this article were checked against the primary sources below. The law can change; this is general information, not legal advice.

1. Evidence Act 1950 (Act 56), including section 114A, AGC Laws of Malaysia
2. Criminal Procedure Code (Act 593), Attorney General's Chambers Laws of Malaysia
3. Rules of Court 2012 (P.U.(A) 205/2012), text published by the Malaysian Bar, including Orders 12, 13, 18, 19 and 93

Fact-checked on 17 Oct 2026