BDS Evidence Act
BDS Evidence Act
EVIDENCE
1994-4
Except section 72 and the Third Schedule of this Act came into operation on
1st September, 1994 by Proclamation (S.I. 1994 No. 76).
Amended by:
The following Law Revision Order or Orders authorized the insertion and
removal of pages as the case may be under the Law Revision Act Cap.2 now
repealed:
CHAPTER 121
EVIDENCE
1994-4
Arrangement of Sections
PRELIMINARY
Citation
1. Short title
Interpretation
2. Definitions
3. References to business
6. Unavailability of persons
8. Representations in documents
9. Witnesses
PART I
APPLICATION
PART II
WITNESSES
Division 1
Competence and Compellability of witness
13. Competence and Compellability
Division 2
Sworn and Unsworn Evidence
21. Evidence of witnesses to be on oath or affirmation
Division 3
Manner of giving evidence
General
25. Parties may question witness
28. Interpreters
Cross-examination
37. Witness called in error
PART III
PART IV
Division 1
Hearsay Evidence
The hearsay rule
48. Exclusion of hearsay evidence
“First-hand” hearsay
49. Restriction to “first-hand” hearsay
Division 2
Opinion Evidence
64. Exclusion of opinion evidence
Division 3
Admissions or Confessions
68. Interpretation: sound recording
Division 4
Evidence of Judgments and Convictions
78. Exclusion of evidence of judgments and convictions
79. Exceptions
80. Savings
Division 5
Evidence of Conduct and Character relevant to issues
Preliminary
81. Application
Tendency Evidence
83. Exclusion: of tendency evidence
Conduct Evidence
84. Exception: Conduct to proven tendency
Character Evidence
88. Exception: character of accused
Division 6
Credibility
91. Exclusion of evidence relevant to credibility
Division 7
Identification Evidence
99. Application of Division
100. Visual identification evidence excluded unless certain conditions are met
Division 8
Privileges
Client legal privilege
103. Interpretation
General
111. Court to inform of rights, etc.
Division 9
Discretion to exclude evidence
114. General discretion to exclude
PART V
Division 1
Judicial Notice
117. Matters of law
Division 2
Documents
120. Interpretation
Division 3
Facilitation of proof
124. Evidence produced by machines, processes, etc.
Division 3A
Retention of evidence in criminal proceedings
132A.Definition
Division 4
Standard of proof
133. Civil proceedings: standard of proof
Division 5
Corroboration
136. Corroboration requirements abolished
Division 6
Warnings
137. Unreliable evidence
PART VI
MISCELLANEOUS
138. Inferences
157. Interpretation
163. Costs
THE LAWS OF BARBADOS
Printed by the Government Printer, Bay Street, St. Michael
by the authority of the Government of Barbados
16 EVIDENCE
165. In actions for debt account or lands in Barbados, matters may be proved
by declaration in any part of Commonwealth
169. Regulations
172. Transitional
FIRST SCHEDULE
Enactments
SECOND SCHEDULE
Oaths by witnesses
THIRD SCHEDULE
Form of Explanation under section 72(2)(v)
FOURTH SCHEDULE
FIFTH SCHEDULE
CERTIFICATE OF SAMPLING OF SEIZED SUBSTANCE
BARBADOS
EVIDENCE
1994-4
PRELIMINARY
Citation
Short title
1. This Act may be cited as the Evidence Act.
Interpretation
Definitions
2. In this Act,
“admission” or “confession” means a previous representation made by a person
who is or becomes a party to proceedings, being a representation that is
adverse to the person’s interest in the outcome of the proceedings;
References to business
3.(1) A reference in this Act to a business includes a reference to
(a) a profession, calling, occupation, trade or undertaking;
(b) an activity engaged in or carried on by
(i) the Crown; or
(ii) the government of a foreign country;
(c) an activity engaged in or carried on by a person or body holding office
or exercising power under or by virtue of the Constitution or of a law,
whether of Barbados or of a foreign country, being an activity engaged
in or carried on in the performance of the duties of the office or in the
exercise of the power; and
(d) the proceedings of
(i) the House of Assembly or Senate; or
(ii) the legislature of a foreign country.
(2) For the purposes of subsection (1), it does not matter whether or not
(a) the business is engaged in or carried on for profit; or
(b) the business is engaged in or carried on outside Barbados.
Unavailability of persons
6.(1) For the purposes of this Act, a person shall be taken not to be available
to give evidence about a fact if
(a) the person is dead;
(b) the person is not competent to give the evidence about the fact;
(c) it would not be lawful for the person to give evidence about the fact;
(d) the evidence, under a provision of this Act, may not be given;
(e) all reasonable steps have been taken to find the person or to secure his
attendance, but without success; or
(f) all reasonable steps have been taken to compel the person to give the
evidence, but without success.
(2) In all cases other than those set out in subsection (1), the person shall be
taken to be available to give evidence about the fact.
Representations in documents
8. For the purposes of this Act, where a representation is contained in a
document that
(a) was written, made, dictated or otherwise produced by a person; or
(b) was recognised by a person as his or her representation by signing,
initialling or otherwise marking the document,
the representation shall be taken to have been made by the person.
Witnesses
9. Unless the contrary intention appears,
(a) a reference in this Act to a witness includes a reference to a party giving
evidence; and
(b) a reference in this Act to a witness who has been called by a party to
give evidence includes a reference to the party giving evidence.
PART I
APPLICATION
Parliamentary privilege
11. Parts II and III do not affect the law relating to the privileges of
Parliament.
PART II
WITNESSES
Division 1
Competence and Compellability of witness
Evidence of children
15.(1) Where a child 7 years of age and under 14 years of age is presented
as a witness in a proceeding, the court shall conduct an inquiry to determine if,
in its opinion, the child is possessed of sufficient intelligence to justify the
reception of his evidence, and to determine if he is competent to know the nature
and consequences of giving false evidence and to know that it is wrong; and if
the court so finds, it shall permit the child to give evidence upon taking the
affirmation or oath.
(2) Where a child who is
(a) under 7 years of age; or
(b) 7 years of age and under 14 years of age, and who does not qualify as
a witness under subsection (1),
(4) A witness who is the spouse, the de facto spouse, a parent or a child of an
accused may object to being required to give evidence of a communication made
between the witness and that accused.
(5) Where it appears to the court that a witness may have a right to make an
objection under subsection (2) or (4), the court shall inform the witness of his
right to make the objection.
(6) If there is a jury, the court shall hear and determine the objection made
pursuant to subsection (2) or (4) in the absence of the jury.
(7) Where, on an objection under subsection (2) or (4), the court finds that
(a) the likelihood of the harm that would or might be caused, whether
directly or indirectly, by the witness giving evidence or giving evidence
of the communication, as the case may be, to
(i) the person who made the objection; or
(ii) the relationship between that person and the defendant concerned;
and
(b) the nature and extent of any such harm,
outweigh the desirability of having the evidence given, the person shall not be
required to give the evidence.
(8) For the purposes of subsection (7), the matters that the court shall take into
account include
(a) the nature and gravity of the offence for which the accused is being
prosecuted;
(b) the substance and importance of any evidence that the person might
give and the weight that is likely to be attached to it;
(c) whether any other evidence concerning the matters to which the
evidence of the witness would relate is reasonably available to the
prosecutor;
(d) the nature of the relationship between the accused and the person; and
(e) whether, in giving the evidence, the witness would have to disclose
matter that was received by the witness in confidence from the accused.
(9) Where, the objection has been determined, the prosecutor may not
comment on the objection, on the decision of the court in relation to the objection
or on the failure of the person to give evidence.
(10) In this section
(a) a reference to a child is a reference to a child of any age and includes
a reference to an adopted child;
(b) a reference to a parent, in relation to a person, includes a reference to
an adoptive parent of that person and, also includes a reference to the
natural father of that person; and
Division 2
Sworn and Unsworn Evidence
(2) An accused who gives unsworn evidence may not also give sworn evidence
unless there are special circumstances and the court gives leave.
(3) In giving unsworn evidence, the accused may read from a statement in
writing and may use notes.
(4) After unsworn evidence has been given, the attorney-at-law may, with the
leave of the court, direct the accused’s attention to matters as to which the accused
has not given unsworn evidence or as to which the accused might wish to give
further unsworn evidence.
(5) An accused who has given unsworn evidence shall not be cross-
examined.
(6) Unsworn evidence given by an accused may not be used for or against any
other accused.
(7) Subsections (5) and (6) do not apply where the accused gives both sworn
and unsworn evidence.
(8) Without affecting any other application
(a) of the Perjury Act, Cap. 142; and
(b) of the offence of perverting the course of justice,
section 3 of that Act and the common law respecting the fabrication of false
evidence apply in relation to unsworn evidence as they apply in relation to sworn
evidence.
(2) The comment referred to in subsection (1) shall not suggest that
(a) the accused did not give sworn evidence, or did not offer himself for
cross-examination, because he believed that he was guilty of the
offence concerned; or
(b) unsworn evidence is, by reason only that it is unsworn evidence or that
it was not subject to cross-examination, necessarily less persuasive
than sworn evidence.
Division 3
Manner of giving evidence
General
Interpreters
28. A witness may give evidence about a fact through an interpreter unless
the witness can understand and speak the English language sufficiently to enable
the witness to understand fully, and to make an adequate reply to questions that
may be put about the fact.
(2) The matters that the court shall take into acount in determining whether to
give leave include
(a) whether the witness will be able to recall the fact adequately without
using the document; and
(b) whether so much of the document as the witness proposes to use is, or
is a copy of, a document that
(i) was written or made by the witness at a time when the events
recorded in it were fresh in his memory, or
(ii) was, at such a time, found by the witness to be accurate.
(3) Where a witness has, while giving evidence, used a document to try to
refresh his memory about a fact, the witness may, with the leave of the court,
read aloud, as part of his evidence, so much of the document as relates to that
fact.
(4) Where the court grants leave pursuant to subsection (1), the court shall, on
the request of a party, give such directions as the court thinks fit to ensure that
so much of the document as relates to the proceedings is produced to that
party.
may reasonably be supposed to have knowledge, the party who called the witness
may, with the leave of the court, question the witness about that matter as though
the party were cross-examining the witness.
(3) A party who is questioning a witness referred to in subsection (1) or (2)
may also, with the leave of the court, question the witness about matters relevant
only to the credibility of the witness, and such questioning shall be taken to be
cross-examination for the purposes of this Act.
(4) Unless the court otherwise directs, questioning as mentioned in this section
shall take place before the other parties cross-examine the witness.
(5) The court may direct the order in which the parties may question the
witness.
(6) The matters that the court shall take into account in determining whether
to give leave, or give a direction, under this section include
(a) whether the party gave notice at the earliest opportunity of his intention
to seek leave; and
(b) the matters on which, and the extent to which, the witness has been, or
is likely to be, questioned by some other party.
Limits on re-examination
36. On re-examination, a witness may be questioned as to matters arising
out of or related to evidence given by the witness in cross-examination and other
questions may not be put to the witness without the leave of the court.
Cross-examination
Improper questions
38.(1) If a misleading question, or a question that is unduly annoying,
harassing, intimidating, offensive, oppressive or repetitive, is put to a witness in
cross-examination, the court may disallow the question or inform the witness that
he need not answer the question.
(2) For the purposes of subsection (1), the matters that the court shall take into
account include any relevant condition or characteristic of the witness,
including
(a) his age, personality and education; and
(b) any mental, intellectual or physical disability to which the witness is
or appears to be subject.
the document may only be used in the circumstances set out in subsection (4).
(4) The circumstances referred to in subsection (3) are as follows:
(a) that the document may be produced to the witness;
(b) that the witness may be asked whether, having examined the contents
of the document, he adheres to the evidence that he has given; and
(c) that neither the cross-examiner nor the witness shall identify the
document or disclose its contents.
(5) A document used as mentioned in subsection (4) may be marked for
identification.
Production of documents
42.(1) Where a cross-examiner
(a) is cross-examining or has cross-examined a witness about a prior
inconsistent statement alleged to have been made by the witness; or
(b) in cross-examination of a witness, is using or has used a previous
representation alleged to have been made by some other person,
being a statement or representation that is recorded in a document, the cross-
examiner shall, if the court so orders or if some other party so requires, produce
the document, or such evidence of the contents of the document as is available
to the cross-examiner, to the court or to that other party.
(2) Where a document or evidence has been produced in accordance with
subsection (1), the court may
(a) examine it;
(b) give directions as to its use; and
(c) subject to this Act, admit it notwithstanding that it has not been
tendered by a party.
PART III
ADMISSION OF EVIDENCE: RELEVANCE RULE
Relevant evidence
44.(1) The evidence that is relevant in proceedings is evidence that, if it were
accepted, could rationally affect, whether directly or indirectly, the assessment
of the probability of the existence of a fact in issue in the proceedings.
(2) In particular, evidence shall not be taken to be irrelevant by reason only
that it relates to
(a) the credibility of a party or a witness;
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
Provisional relevance
46.(1) Where the determination of the question whether evidence adduced
by a party is relevant depends on the court’s making some other finding including
a finding that the evidence is what the party claims it to be, the court may find
that the evidence is relevant
(a) if it is reasonably open to make that finding; or
(b) subject to further evidence being admitted such that, at some later stage
of the proceedings, it will be reasonably open to make that finding.
(2) Without limiting subsection (1), where the relevance of evidence of an act
done by a person depends on the court making a finding that the person and one
or more other persons had a common purpose to effect an unlawful conspiracy,
the court may use the evidence itself in determining whether such a common
purpose existed.
Inferences as to relevance
47.(1) Where a question arises as to the relevance of a document or thing,
the court may examine the document or thing and may draw any reasonable
inference from it, including an inference as to its authenticity or identity.
(2) Subsection (1) does not limit the matters from which inferences may
properly be drawn.
PART IV
ADMISSION AND USE OF EVIDENCE: EXCLUSIONARY RULES
Division 1
Hearsay Evidence
“First-hand” hearsay
if, at the time when the representation was made, the occurrence of the asserted
fact was fresh in the memory of the person who made the representation.
(4) Where subsection (3) applies in relation to a representation, a document
containing the representation shall not, unless the court gives leave, be tendered
before the conclusion of the examination-in-chief of the person who made the
representation.
(4) If a representation
(a) tends to damage the reputation of the person who made it;
(b) tends to show that that person has committed an offence; or
(c) tends to show that that person is liable in an action for damages,
then, for the purposes of subsection (2)(d), the representation shall be taken to
be against the interests of the person who made it.
(5) The hearsay rule does not prevent the admission or use of evidence of a
previous representation adduced by a defendant, being evidence that is given by
a witness who saw, heard or otherwise perceived the making of the
representation.
(6) Where evidence of a previous representation about a matter has been
adduced by a defendant and has been admitted, the hearsay rule does not apply
in relation to evidence of a previous representation about the matter adduced by
some other party, being evidence given by a witness who saw, heard or otherwise
perceive the making of the second-mentioned representation.
(b) that the person who made the representation has been or is to be called
to give evidence in the proceeding.
(3) Subsections (1) and (2) do not apply in relation to evidence adduced by the
prosecutor of a representation that was made for the purpose of indicating the
evidence that the person who made it would be able to give in legal or
administrative proceedings.
(4) Where subsections (1) and (2) apply in relation to a representation, a
document containing the representation shall not, unless the court gives leave,
be tendered before the conclusion of the examination in chief of the person who
made the representation.
Notice to be given
54.(1) Subject to this section, sections 50, 51(2) and 52(2) and (5) do not
apply in relation to evidence adduced by a party unless that party has given notice
in writing, in accordance with the regulations, to each other party of the intention
to adduce the evidence.
(2) Where a notice required by subsection (1) has not been given, the court
may, on the application of a party and subject to conditions, direct that one or
more of those provisions is to apply
(a) notwithstanding the failure of the party to give such notice; or
(b) in relation to specified evidence with such modifications as the court
specifies.
(3) In civil proceedings, where the writing by which notice is given discloses
that it is not intended to call the person who made the previous representaiton
concerned on a ground referred to in section 51(2), a party may, not later than
7 days after notice has been given, by notice in writing given to each other party,
object to the tender of the evidence, or of a specified part of the evidence.
(4) The notice shall set out the grounds on which the objection is based.
(5) The court may determine the objection on the application of a party made
at or before the hearing.
(6) If the objection is unreasonable, the court may order that the party objecting
shall, in any event, bear the costs, ascertained on an attorney-at-law and client
basis, incurred by another party
(a) in relation to the objection; and
(b) in calling the person who made the representation to give evidence.
Application of section 55
56.(1) Section 55(1) applies whether the information contained in the
document was supplied directly, or, subject to subsection (2), indirectly.
(2) Where information referred to in subsection (1) was supplied indirectly,
section 55(1) only applies if each person through whom the information was
supplied was acting under a duty.
(3) Information referred to in subsection (1) also applies where the person
compiling the record is himself the person by whom the information was
supplied.
(4) Where a document referred to in subsection (1) contains evidence that a
person, if called as a witness, could be expected to give has been prepared for the
purpose of any pending or contemplated proceedings, a statement contained in
the document shall not be given in evidence without leave of the court.
(5) The court shall not give leave to admit a statement referred to in
subsection (4) unless the court is of the opinion that the statement ought to be
admitted in the interest of justice having regard to
(a) the circumstances in which leave is sought and, in particular, to the
contacts of the statement; and
(b) the likelihood that the accused will be prejudiced by the admission of
the statement in the absence of the person who supplied the information
on which the statement is based.
(6) Where in any proceedings a statement based on information supplied by
any person is given in evidence by virtue of section 55
(a) any evidence which, if the person had been called as a witness, would
have been admissible as relevant to his credibility as a witness is
admissible for that purpose in those proceedings;
(b) evidence may, with the leave of the court, be given of any matter which
if the person had been called as a witness, would have put to him in
cross-examination as relevant to his credibility as a witness but of
which evidence could not have been adduced by the cross-examination
party; and
(c) evidence tending to prove that the person, whether before or after
supplying the information, made a statement, whether oral or not, that
is inconsistent with the information is admissible for the purpose of
showing that the person has contradicted himself.
(7) A statement that is admissible by virtue of section 55 is not capable of
corroborating evidence given by the person who supplied the information on
which the statement is based.
(8) In deciding for the purposes of section 55(2)(a)(i) whether a person is unfit
to attend as a witness the court may act on a certificate purporting to be signed
by a registered medical practitioner.
(9) Any reference in section 55 or this Part to a person acting under a duty
includes a reference to a person acting in the course of any trade, business,
profession or other occupation in which he is engaged or employed or for the
purposes of any paid or unpaid office held by him.
(10) In estimating the weight, if any, to be attached to a statement admissible
in evidence by virtue of section 55 regard shall be had to all the circumstances
Identification of document
57.(1) In any proceedings where it is desired to give a statement in evidence
in accordance with section 125, a certificate
(a) identifying the document containing the statement and describing the
manner in which it was produced;
(b) giving such particulars of any device involved in the production of that
document as may be appropriate for the purpose of showing that the
document was produced by a machine;
(c) dealing with any of the matters mentioned in subsection (1) of
section 125; and
(d) purporting to be signed by a person occupying a responsible position
in relation to the operation of the device or process
shall be evidence of anything stated in it; and for the purposes of this section it
shall be sufficient for a matter to be stated to the best of the knowledge and belief
of the person stating it.
(2) Notwithstanding subsection (1), a court may require oral evidence to be
given of anything of which evidence could be given by a certificate under that
subsection.
(3) Any person who in a certificate tendered under subsection (1) in a court,
makes a statement which he knows to be false or does not believe to be true is
guilty of an offence and liable
(a) on conviction on indictment to imprisonment for a term not exceeding
2 years or to a fine or to both;
(b) on summary conviction to imprisonment for a term not exceeding
6 months or to a fine.
(4) In estimating the weight, if any, to be attached to a statement regard shall
be had to all the circumstances from which any inference can reasonably be drawn
as to the accuracy or otherwise of the statement and, in particular
(a) to the question whether or not the information which the information
contained in the statement reproduces or is derived from was supplied
to the relevant device or process, or recorded for the purpose of being
supplied to it, contemporaneously with the occurrence or existence of
the facts dealt with in that information; and
(b) to the question whether or not any person concerned with the supply
of information to that device or process, or with the operation of that
device or process or any equipment by means of which the document
containing the statement was produced by it, had any incentive to
conceal or misrepresent the facts.
(5) For the purposes of subsection (4) information shall be taken to be supplied
to a device or process whether it is supplied directly or (with or without human
intervention) by means of any appropriate equipment.
result in unfairness to the accused or, if there is more than one accused
to any of them; and
(d) to any other circumstances that appear to the court to be relevant.
(4) An expert report, when admitted, shall be evidence of any fact or opinion
of which the person making the report could have given oral evidence.
(5) In this Act “expert report” means a written report by a person dealing
wholly or mainly with matters on which he is (or would if living) be qualified to
give expert evidence.
Exception: telecommunications
61.(1) Where a document has been
(a) produced by a telecommunications apparatus; or
(b) received from a carrier providing an international telecommunications
service,
being a document that records a message that has been transmitted by means of
a telecommunications service, the hearsay rule does not prevent the admission
or use of a representation in the document as to the matters specified in
subsection (2).
(2) The matters referred to in subsection (1) are
(a) the identity of the person from whom or on whose behalf the message
was sent;
(b) the date on which, the time at which or the place from which the
message was sent;
THE LAWS OF BARBADOS
Printed by the Government Printer, Bay Street, St. Michael
by the authority of the Government of Barbados
EVIDENCE 57
(c) the identity of the person to whom the message was addressed.
[2007-44]
Division 2
Opinion Evidence
Division 3
Admissions or Confessions
of that kind, or by any promise made to the person who made the admission to
any other person.
(3) Where a confession or admission has been made in accordance with the
requirements of subsection (2), the investigating official shall, without charge,
(a) if the recording is an audio recording only or a video recording only,
make the recording or a copy of it available to the person questioned
or his legal representative within 7 days after the making of the
recording;
[2007-44]
(b) if both an audio recording and a video recording were made, make the
audio recording or a copy of it available to the person questioned or
his legal representative within 7 days after the making of the recording,
and notify the person or his or her legal representative that an
(4) A court may admit evidence to which this section applies even if the
requirements of this section have not been complied with, or there is insufficient
evidence of compliance with those requirements, if, having regard to the nature
of and the reasons for the non-compliance or insufficiency of evidence and any
other relevant matters, the court is satisfied that, in the special circumstances of
the case, admission of the evidence would not be contrary to the interests of
justice.
(5) A court may admit evidence to which this section applies even if a
provision of subsection (2) has not been complied with if, having regard to the
reasons for the non-compliance and any other relevant matters, the court is
satisfied that it was not practicable to comply with that provision.
(6) If a Judge permits evidence to be given before a jury under subsection (4)
or (5), the Judge shall inform the jury of the non-compliance with the
requirements of this section, or of the absence of sufficient evidence of
compliance with those requirements, and give the jury such warning about the
evidence as the Judge thinks appropriate in the circumstances.
[This section is not in force. S.I. 1994/76.]
[2007-44]
(2) For the purposes of the application of subsection (1), the hearsay rule does
not prevent the admission or use of a previous representation made by a person
that tends to prove
(a) that the person
(i) was an employee of a party; or
(ii) had authority to act for a party,
(b) the scope of the person’s employment or authority; or
(c) the existence at any time of a common purpose.
Evidence of silence
76.(1) An inference unfavourable to a party shall not be drawn from evidence
that the party or another person failed or refused to answer a question, or to
respond to a representation, put or made to the party or other person in the course
of official questioning.
(2) Subject to subsection (3), if evidence referred to in subsection (1) can only
be used to draw an inference unfavourable to a party, the evidence is not
admissible.
(3) Subsection (1) does not prevent the use of the evidence to prove that the
person failed or refused to answer a question or to respond to a representation if
the failure or refusal is a fact in issue in the proceedings.
(4) In this section, “inference” includes
(a) an inference of consciousness of guilt; or
Division 4
Evidence of Judgments and Convictions
Exceptions
79.(1) Section 78 (1) does not prevent the admission or use of evidence of
the grant of probate, letters of administration or like order of a court to prove
(a) the death or date of death of the person concerned; or
(b) the due execution of the testamentary document concerned.
(2) In civil proceedings, section 78(1) does not prevent the admission or use
of evidence that a party, or a person through or under whom a party claims, has
been convicted of an offence, not being a conviction
(a) in respect of which a review or appeal, however described, has been
instituted but not finally determined;
(b) that has been quashed or set aside; or
(c) in respect of which a pardon has been given.
(3) Where by virtue of subsection (1) or (2) section 78(1) does not prevent the
admission or use of evidence, the hearsay rule and the opinion rule do not prevent
the admission or use of that evidence.
Savings
80. Sections 78 and 79 do not affect the operation of
(a) a law that relates to the admissibility or effect of evidence of a
conviction tendered in proceedings, including criminal proceedings for
defamation;
(b) a judgment in rem; or
(c) the law relating to res judicata or issue estoppel.
Division 5
Evidence of Conduct and Character relevant to issues
Preliminary
Application
81.(1) This Division does not apply in relation to evidence that relates only
to the credibility of a witness.
(2) This Division does not apply so far as proceedings relate to bail.
(3) This Division does not apply in relation to evidence of the character,
reputation or conduct of a person, or in relation to evidence of a tendency that a
person has or had, if that character, reputation, conduct or tendency, respectively,
is a fact in issue.
Tendency Evidence
Conduct Evidence
(c) in the case of evidence of a state of mind, the extent to which the state
of mind is unusual or occurs infrequently; and
(d) in the case of evidence of an act,
(i) the likelihood that the defendant would have repeated the act;
(ii) the number of times on which similar acts have been done; and
(iii) the period that has elapsed between the time when the act was
done and the time when the defendant is alleged to have done the
act that the evidence is adduced to prove.
Notice to be given
87.(1) Subject to subsection (2),
(a) section 84 does not apply in relation to evidence adduced by a party;
and
(b) evidence adduced by a party to which section 86 applies is not
admissible, unless that party has given notice in writing in accordance
with the regulations to each other party of the intention to adduce the
evidence.
(2) The court may, on the application of a party and subject to conditions,
direct that section 84 or 85, or both, is or are to apply
(a) notwithstanding the failure of the party to give such notice; or
(b) in relation to specified evidence, with such modifications as the court
specifies.
Character Evidence
(2) The hearsay rule, the opinion rule and the tendency rule do not prevent the
admission or use of evidence adduced by an accused that tends to prove that the
accused is, either generally or in a particular respect, a person of good
character.
[2007-44]
(3) Where evidence that tends to prove that the accused is generally a person
of good character and the tendency rule do not prevent the admission or use of
evidence that tends to prove that the accused is not generally a person of good
character.
(4) Where evidence that tends to prove that the accused is a person of good
character in a particular respect has been admitted, the hearsay rule, the opinion
rule and the tendency rule do not prevent the admission or use of evidence that
tends to prove that the accused is not a person of good character in the respect.
Division 6
Credibility
(4) Leave shall not be given for cross-examination by the prosecutor as to any
other matter that is relevant only to the credibility of the accused unless
(a) evidence has been adduced by the accused that tends to prove that the
accused is, either generally or in a particular respect, a person of good
character; or
(b) evidence has been admitted that
(i) was given by the accused,
(ii) tends to prove that a witness called by the prosecutor has a
tendency to be untruthful, and
(iii) was adduced solely or mainly to impugn the credibility of that
witness.
(5) A reference in subsection (4) to evidence does not include a reference to
evidence of conduct
(a) in the events in relation to which; or
(b) in relation to the investigation of the offence for which,
the accused is being prosecuted.
(6) Leave shall not be given for cross-examination by some other accused
unless the evidence that the accused to be cross-examined has given include
evidence adverse to the first-mentioned accused and that evidence has been
admitted.
Division 7
Identification Evidence
Application of Division
99. This Division applies only in criminal proceedings.
(ii) in any case, to whether the identification was made at or about the
time of the commission of the offence; and
(d) the appropriateness of holding an identification parade, having regard,
among other things, to the relationship, if any, between the accused
and the person who made the identification.
(3) It shall be presumed that it would not have been reasonable to hold an
identification parade if it would have been unfair to the accused for such a parade
to be held.
(4) If
(a) the accused refused to take part in an identification parade unless an
attorney-at-law acting for the accused or unless another person chosen
by the accused was present while it was being held; and
(b) there were, at the time when the parade was to be held, reasonable
grounds to believe that it was not reasonably practicable for such an
attorney-at-law or other person to be present,
it shall be presumed that it would not have been reasonable to hold an
identification parade at that time.
(5) In determining whether it was reasonable to hold an identification parade,
the court shall not take into account the availability of pictures or photographs
that could be used in making identifications.
(6) In this section,
“picture identification evidence” means identification evidence relating to an
identification made wholly or partly by the person who made the
identification examining pictures kept for the use of police officers;
“visual identification evidence” means identification evidence relating to an
identification based wholly or partly on what a person saw, but does not
include picture identification evidence.
[2007-44]
Directions to jury
102.(1) Where identification evidence has been admitted, the Judge shall
inform the jury that there is a special need for caution before accepting
identification evidence and of the reasons for the need for caution, both generally
and in the circumstances of the case.
(2) In particular, the Judge shall warn the jury that it should not find, on the
basis of the identification evidence, that the accused was a person by whom the
relevant offence was committed unless
(a) there are, in relation to the identification, special circumstances that
tend to support the identification; or
(b) there is substantial evidence, not being identification evidence that
tends to prove the guilt of the accused and the jury accepts that
evidence.
(3) Special circumstances include
(a) the accused being known to the person who made the identification;
and
(b) the identification having been made on the basis of a characteristic that
is unusual.
(4) Where
(a) it is not reasonably open to find the accused guilty except on the basis
of identification evidence;
Division 8
Privileges
Interpretation
103. In this Division,
“attorney-at-law” includes an employee or agent of an attorney-at-law;
“client” includes
(a) an employee or agent of a client;
(b) if the client is a person in respect of whose person, estate or property
a manager or committee or other person, however described, is for the
time being acting under a law that relates to persons of unsound mind,
a person so acting; and
(c) if the client has died, a personal representative of the client, and, in
relation to a confidential communication made by a client in respect of
property in which the client had an interest, also includes a successor
in title to that interest;
“party” includes
(a) an employee or agent of a party;
(b) the contents of a document, whether delivered or not, that was prepared
by the client or his attorney-at-law,
that was made or prepared for the dominant purpose of providing or receiving
professional legal services in relation to a legal or administrative proceeding, or
an anticipated or pending administrative or legal proceeding, in which the client
is or may be a party, the court shall direct that the evidence not be adduced.
[2007-44]
(4) In criminal proceedings, section 104 does not prevent an accused from
adducing evidence other than evidence of
(a) a confidential communication between a person who is being
prosecuted for a related offence and an attorney-at-law acting for that
person in connection with that prosecution; or
(b) the contents of a document prepared by a person who is being
prosecuted for a related offence or by an attorney-at-law acting for that
person in connection with that prosecution.
(5) Section 104 does not prevent the adducing of evidence of the making of a
communication or document that affects aright of a person.
(6) Where a client or party has voluntarily disclosed the substance or evidence,
not being a disclosure made
(a) in the course of the making of the confidential communication or the
preparation of the confidential document;
(b) as a result of duress or deception; or
(c) under compulsion of law,
section 104 does not prevent the adducing of the evidence.
(7) Where the communication or document was disclosed by a person who
was, at the time, an employee or agent of a client or an attorney-at-law
subsection (6) does not apply unless the employee or agent was authorised to
make the disclosure.
(8) Where a confidential communication is contained in a document and a
witness has used the document as mentioned in section 30(1), section 104 does
not prevent the adducing of evidence of the document.
(9) Where the substance of evidence has been disclosed with the express or
implied consent of the client or party, section 105 does not prevent the adducing
of the evidence.
(5) Evidence in respect of which a certificate under this section has been given
is not admissible against the person to whom the certificate was given in any legal
or administrative proceedings, not being criminal proceedings in respect of the
falsity of the evidence.
(6) In criminal proceedings, the preceding provisions of this section do not
apply in relation to evidence that an accused
(a) did an act the doing of which is a fact in issue; or
(b) had a state of mind the existence of which is a fact in issue.
(4) Subsections (1), (2) and (3) do not apply in proceedings that are
(a) a prosecution for one or more of the following offences:
(i) attempting to pervert the course of justice, perverting the course
of justice;
(ii) embracery; or
(iii) an offence connected with an offence mentioned in
subparagraph (i) or (ii), including an offence of conspiring to
commit such an offence;
(b) in respect of a contempt of a court; or
(c) by way of appeal from a judgment, decree, order or sentence of a court.
[2007-44]
General
Division 9
Discretion to exclude evidence
(3) For the purposes of subsection (1), the court shall take into account inter
alia the following matters:
(a) the probative value of the evidence;
(b) the importance of the evidence in the proceeding;
(c) the nature of the relevant offence, cause of action or defence and the
nature of the subject-matter of the proceeding;
(d) the gravity of the impropriety or contravention;
(e) whether the impropriety or contravention was deliberate or reckless;
(f) whether any other proceeding, whether or not in a court, has been or is
likely to be taken in relation to the impropriety or contravention;
[2007-44]
PART V
OTHER ASPECTS OF PROOF
Division 1
Judicial Notice
Matters of law
117.(1) Proof shall not be required about matters of law, including the
provisions and coming into operation, in whole or in part, of
(a) an Act;
Division 2
Documents
Interpretation
120.(1) A reference in this Division to a document in question is a reference
to a document in to the contents of which it is sought to adduce evidence.
(2) For the purposes of this Division, where a document is not an exact copy
of the document in question but is identical to the document in question in all
relevant respects, it may be taken to be a copy of the document in question.
Division 3
Facilitation of proof
(4) Subsection (3) does not apply in relation to the contents of a document that
was produced for the purposes of, or for purposes that included the purposes of,
legal or administrative proceedings.
Attestation of documents
125. It is not necessary to adduce the evidence of an attesting witness to a
document, not being a testamentary document, to prove that the document was
signed or attested as it purports to have been signed or attested.
Bankers books
126.(1) Subject to this section, a copy of any entry in any book or record kept
in any financial institution shall in legal proceedings be admitted in evidence as
proof, in the absence of evidence to the contrary, of the entry and of the matters,
transactions and accounts therein recorded.
(2) A copy of an entry in the book or record described in subsection (1) shall
not be admitted in evidence under this section unless it is first proved that the
book or record was, at the time of the making of the entry,
(a) one of the ordinary books or records of the financial institution;
(b) that the entry was made in the usual and ordinary course of business;
(c) that the book or record is in the custody or control of the financial
institution; and
(d) that the copy is a true copy thereof.
(3) The proof referred to in subsection (2) may be given by the manager or
accountant of the financial institution and may be given orally or by affidavit
sworn before the Registrar of the Supreme Court or any officer of the Registration
Office of or above the rank of legal assistant.
(4) Where a cheque has been drawn on any financial institution or branch
thereof by any person, an affidavit given by the manager or accountant of the
financial institution or branch, stating his position with the financial institution
or branch
(a) that he has made a careful examination and search of the books and
records for the purpose of ascertaining whether or not that person has
an account with the financial institution or branch; and
(b) that he has been unable to find such an account, shall be admitted in
evidence as proof, in the absence of evidence to the contrary, that that
person has no account in the financial institution or branch.
(5) Where evidence is offered by affidavit pursuant to this section, it is not
necessary to prove the signature or official character of the person making the
affidavit if the official character of that person is set out in the body of the
affidavit.
(6) A financial institution or officer of a financial institution is not in any legal
proceedings to which the financial institution is not a party compellable to
produce any book or record, the contents of which can be proved under this
section, or to appear as a witness to prove the matters, transactions and accounts
therein recorded unless by order of the court made for special cause.
(7) On the application of any party to legal proceedings, the court may order
that that party be at liberty to inspect and take copies of any entries in the books
or records of a financial institution for the purposes of the legal proceedings.
(8) The person whose account is to be inspected pursuant to subsection (7)
shall be notified of the application at least 2 clear days before the hearing thereof,
and if it is shown to the satisfaction of the court that he cannot be notified
personally, the notice may be given by addressing it to the financial institution.
(9) Nothing in this section shall be construed as prohibiting any search of the
premises of a financial institution under the authority of a warrant.
(10) In this section,
“financial institution” has the meaning assigned to it by section 2 of the Financial
Institutions Act, Cap. 324A;
Gazettes, etc.
127.(1) It shall be presumed, unless the contrary is proved, that a document
purporting
(a) to be the Gazette; or
(b) to have been printed by authority of the government of a foreign
country,
is what it purports to be, and was published on the day on which it purports to
have been published.
(2) Where there is produced to a court
(a) a copy of the Gazette; or
(b) a document that purports to have been printed by authority of the
government of a foreign country,
being a copy or document in which the doing of an act by the Governor-General,
or by a person authorised or empowered by law to do the act, is notified or
published, it shall be presumed, unless the contrary is proved, that the act was
duly done and, if the date on which the act was done appears in the copy or
document, that it was done on that date.
[2007-44]
Public documents
129. A document that purports to be a copy of, or a faithful extract from,
or a summary of, a public document and to have been
(a) sealed with the seal of a person who, or body that, might reasonably
be supposed to have the custody of the public document; or
(b) certified as such a copy, faithful extract or summary by a person who
might reasonably be supposed to have the custody of the public
document
shall be presumed, unless the contrary is proved, to be a copy of the public
document, or a faithful extract from or a summary of the public document, as the
case may be.
[2007-44]
Labels, etc.
131. Where
(a) a document has been attached to an object, or writing has been placed
on a document or object; or
(b) the document or writing so attached or placed may reasonably be
supposed to have been so attached or placed in the course of a business,
it shall be presumed, unless the contrary is proved, that the ownership or the origin
of the object or document is as stated in the document or writing.
(4) In this section, “postal article” has the meaning assigned to it by section 2
of the Post Office Act, Cap. 27A.
[2007-44]
Division 3A
Retention of evidence in criminal proceedings
Definition
132A. For the purposes of this Division, “agent” means a person authorised
in writing by the accused to act on his behalf.
[1997-1]
(5) Where goods or moveable property have been seized by the Police for the
purposes of a criminal investigation, they shall not be retained for use as evidence
once photographs have been taken and no objection has been made.
(6) With regard to goods or moveable property referred to in subsection (5),
the Commissioner of Police shall
(a) cause such number of photographs as appears necessary to be taken;
and
(b) where it appears that the goods or property are owned by any person
other than the accused, return them to the owner on the written
undertaking that he presents them at trial if so required.
[2007-44]
(7) Where a photograph was taken in the absence of the accused, his attorney-
at-law or his agent or a copy of the photograph was not signed by the accused,
his attorney-at-law or his agent, then, the person who took the photograph shall
make a statement certifying that the photograph was taken in the absence of the
accused, his attorney-at-law or his agent, or that a copy of the photograph was
not signed by the accused, his attorney-at-law or his agent and the reason
therefor.
[1997-1]
(2) A police officer shall, in the presence of the accused and a Justice of the
Peace,
(a) take the sample from the bulk of the controlled drug or other substance
of which it is a part and weigh the sample and the substance from which
the sample was taken;
(b) secure the sample in a container that is wrapped and sealed; and
(c) sign and initial the container;
and the Justice of the Peace shall also sign and initial the container.
(3) Where subsection (2) has been complied with in relation to a sample, the
police officer who took the sample shall sign and date a certificate in the form
set out in the Fifth Schedule (which certificate shall be countersigned and dated
by the Justice of the Peace), and shall render the certificate, along with the sample,
to the Commissioner of Police.
(4) The Commissioner of Police shall refer the sample to an authorised analyst
for analysis; and in this section and sections 132D and 132E“authorised
analyst” means a person authorised by the Minister responsible for Health by
notice in the Gazette to analyse any substance for the purposes of this section.
(5) Where an authorised analyst has made an analysis of a sample referred to
him under subsection (4), he shall make and sign a report to the Commissioner
of Police
(a) stating that the sample was referred to him by the Commissioner;
(b) specifying the nature and the amount of the sample; and
(c) setting forth the result of his analysis.
[2001-23]
the certificate and the report on the accused or his attorney-at-law or his agent
either in person or by registered post.
[2007-44]
[2001-23]
Division 4
Standard of proof
Division 5
Corroboration
Division 6
Warnings
Unreliable evidence
137.(1) This section applies in relation to the following kinds of evidence:
(a) evidence in relation to which Division 1 or 3 of Part IV applies;
(b) identification evidence;
(c) evidence the reliability of which may be affected by age, ill health,
whether physical or mental, injury or the like;
(d) in criminal proceedings,
(i) evidence given by a witness called by the prosecutor, being a
person who might reasonably be supposed to have been concerned
in the events giving rise to the proceeding; or
(ii) oral evidence of official questioning of a defendant, where the
questioning is recorded in writing that has not been signed or
otherwise acknowledged in writing by the defendant;
(e) in the case of a prosecution for an offence of a sexual nature, evidence
given by a victim of the alleged offence;
[2007-44]
(2) Where there is a jury and a party so requests, the Judge shall, unless there
are good reasons for not doing so,
(a) warn the jury that the evidence may be unreliable;
(b) inform the jury of matters that may cause it to be unreliable; and
(c) warn the jury of the need for caution in determining whether to accept
the evidence and the weight to be given to it.
[2007-44]
(3) It is not necessary that a particular form of words be used in giving the
warning or information.
(4) This section does not affect any other power of the Judge to give a warning
to, or to inform, the jury.
PART VI
MISCELLANEOUS
Inferences
138. Where a question arises as to the application of a provision of this Act
in relation to a document or thing, the court may
(a) examine it; and
(b) draw any reasonable inference from it as well as from other matters
from which inferences may properly be drawn.
(g) whether compliance with the request would involve undue expense or
delay or would not be reasonably practicable; and
(h) the nature of the proceeding.
Views, etc.
141.(1) The Judge may, on application, order that a demonstration, experiment
or inspection be held.
(2) A Judge shall not make an order under subsection (1) unless he is satisfied
that
(a) the parties will be given a reasonable opportunity to be present; and
(b) the Judge and, if there is a jury, the jury will be present.
(3) In determining whether to make an order under subsection (1), the matters
that the Judge shall take into account include, whether the parties will be present,
the matter referred to in section 114 and
(a) in the case of a demonstration, the extent to which the demonstration
will properly reproduce the conduct or event to be demonstrated; and
(b) in the case of an inspection, the extent to which the place or thing to
be inspected has materially altered.
(4) The court, including, if there is a jury, the jury, may not itself conduct an
experiment in the course of its deliberations.
(5) The preceding provisions of this section do not apply in relation to the
inspection of an exhibit by the court or by the jury.
about evidence that a witness gave in that hearing unless that evidence is
inconsistent with evidence otherwise given by the witness in the proceeding.
(8) Notwithstanding section 22 (2), a defendant who gives sworn evidence in
a hearing to determine a preliminary question is not thereby precluded from
giving unsworn evidence otherwise in the proceeding.
(b) the nature of the cause of action or defence and the nature of the subject-
matter of the proceeding;
(c) the probative value of the evidence; and
(d) the powers of the court, if any, to adjourn the hearing, to make some
other order or to give a direction in relation to the evidence.
Additional powers
146.(1) The powers of a court in relation to the discovery or inspection of
documents extend to enabling the court to make such orders as the court thinks
fit, including orders as to methods of inspection, adjournments and costs, to
ensure that the parties to a proceeding can adequately, and in an appropriate
manner, inspect documents of the kind referred to in paragraph (c) of the
definition of “document” in section 2.
(2) The power of a person or body to make rules of court in relation to the
High Court, or Magistrate’s Court extends to making rules for or with respect to
the discovery of reports of persons intended to be called by a party to give
evidence in a proceeding to which this Act applies.
(3) Without limiting subsection (2), rules made under that subsection may
provide for the exclusion of evidence if the rules are not complied with, or for its
admission on specified terms.
and proved before the High Court and letters of administration and of
guardianship had been here granted thereon.
(2) The Perjury Act, Cap. 142 has effect as if this section were contained in
that Act.
Interpretation
157. In this Part,
“evidence in support of an alibi” means evidence tending to show that by reason
of the presence of the accused at a particular place or in a particular area at
a particular time he was not, or was unlikely to have been, at the place where
the offence is alleged to have been committed at the time of its alleged
commission;
“prescribed period” means the period of 7 days from the end of the proceedings
before the examining magistrate.
Notice of alibi
158.(1) On a trial on indictment the accused shall not without leave of the
court
(a) adduce evidence in support of an alibi unless, before the end of the
prescribed period, he gives notice of particulars of the alibi; or
(b) call any person to give such evidence at the trial unless
(i) the notice under paragraph (a) includes the name and address of
the witness or, if the name and address is not known to the accused
(6) A notice required by this section to be given to the prosecutor may be given
by delivering it to him, or by leaving it at his office, or by sending it in a registered
letter addressed to him at his office.
(3) Every person whose attendance is so required shall be entitled to the like
conduct-money and payment for expenses and loss of time as upon attendance
at a trial.
(4) No person shall be compelled to produce under any such order any writing
or other document that he would not be compelled to produce at a trial of the
cause.
Costs
163. The costs of every order made for the examination of witnesses under
any commission or otherwise by virtue of this Act and of the proceedings
thereupon shall be costs in the cause, unless otherwise directed by the High Court.
(4) Every declaration so made, certified and transmitted shall in all such
actions and suits be allowed to be of the same force and effect as if the person
making the same had appeared and sworn or affirmed the matters contained in
such declaration viva voce in open court or upon a commission issued for the
examination of witnesses or of any party in such action or suit and all courts shall
take judicial notice of the seal and signature, as the case may be, of any such
Justice of the Peace, Notary Public or other officer attached and subscribed to
such declaration.
Regulations
169. The Attorney-General may make regulations prescribing matters
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed,
for carrying out or giving effect to this Act.
Codes of practice
170. The Attorney-General may make codes of practice respecting
(a) the exercise by police officers of statutory powers
(i) to search a person without first arresting him; or
(ii) to search a vehicle without making an arrest;
(b) the detention, treatment, questioning and identification of persons by
police officers;
(c) searches of premises by police officers; and
(d) the seizure opf property found by police officers on persons or
premises.
Transitional
172. This Act does not apply to or in relation to a proceeding in a court the
hearing of which commenced before the 1st September, 1994, and any such
proceeding may be continued or completed as if this Act had not been passed.
FIRST SCHEDULE
(Section 19(11))
Enactments
SECOND SCHEDULE
(Section 21(1))
Oaths by witnesses
I swear by Almighty God (or the person to be sworn may name a god
recognized by his religion) that the evidence I shall give will be the truth, the
whole truth and nothing but the truth.
Oaths by interpreters
I swear by Almighty God (or the person to be sworn may name a god
recognized by his religion) that I will and truly interpret the evidence that will be
given and do all other matters and things that are required of me in this case to
the best of my ability.
Affirmations by witnesses
I solemnly and sincerely declare and affirm that the evidence I shall give will
be the truth, the whole truth and nothing but the truth.
Affirmations by interpreters
I solemnly and sincerely declare and affirm that I will well and truly interpret
the evidence that will be given and do all other matters and things that are required
of me in this case to the best of my ability.
THIRD SCHEDULE
(Section 72)
Form of Explanation under section 72(2)(v)
[This Schedule is not in force. S.I. 1994/76]
FOURTH SCHEDULE
(Section 165)
I, A.B., do solemnly and sincerely declare that ; and I
make this solemn declaration conscientiously believing the same to be true and
by virtue of the provisions of the Evidence Act.
(Signed)
Taken this day of , before me
(Justice of the Peace, Notary Public, Officer authorised by law to administer
oaths, as the case may be).
FIFTH SCHEDULE
(Section 132C(3))
CERTIFICATE OF SAMPLING OF SEIZED SUBSTANCE
Date
The above sampling was done, and this Certificate was signed, before me:
Name
Signature
Justice of the Peace
Date
[2001-23]