CHAPTER 7:02
EVIDENCE act
An
Act relating to the law of Evidence.
[14th
September 1905]
[15th June
1855]
[22nd June
1898]
1. This Act
may be cited as the Evidence Act.
PART I
GENERAL
2. Whenever
any question arises in any action, suit, information, or other proceeding in or
before any Court of Justice, or before any person having by law or by consent
of parties authority to hear, receive, and examine evidence touching the
admissibility or the sufficiency of any evidence, or the competency or
obligation of any witness to give evidence, or the swearing of any witness, or
the form of oath or of affirmation to be used by any witness, or the
admissibility of any question put to any witness, or the admissibility or
sufficiency of any document, writing, matter, or thing tendered in evidence,
every such question shall be decided according to the law in force in England
on 30th August 1962.
3. A Court shall
take judicial notice of any statutory instrument made under a written law of
Trinidad and Tobago if the statutory instrument has been published in the Gazette or in the Revised Edition of the Laws of Trinidad and Tobago.
4. The
written laws of the legislature of any Commonwealth territory may be proved by
copies thereof purporting to be printed by the authority of the legislature or
the Government of that country.
5. A party
producing a witness shall not be allowed to impeach his credit by general
evidence of bad character, but he may, in case the witness in the opinion of
the Judge proves adverse, contradict him by other evidence, or by leave of the
Judge, prove that he had made at other times a statement inconsistent with his
present testimony; but before such last-mentioned proof can be given, the
circumstances of the supposed statement, sufficient to designate the particular
occasion, must be mentioned to the witness, and he must be asked whether or not
he has made such statement.
6. If a witness,
upon cross‑examination as to a former statement made by him relative to
the subject matter of the indictment or proceeding and inconsistent with his
present testimony, does not distinctly admit that he did make the statement,
proof may be given that he did in fact make it; but before such proof is given,
the circumstances of the supposed statement, sufficient to designate the
particular occasion, shall be mentioned to the witness, and he shall be asked
whether or not he made the statement.
7. A
witness may be cross‑examined as to previous statements made by him in
writing, or reduced into writing, relative to the subject matter of the
indictment or proceeding without the writing being shown to him; but if it is
intended to contradict the witness by the writing, his attention must, before
such contradictory proof is given, be called to those parts of the writing
which are to be used for the purpose of so contradicting him; but the Judge, at
any time during the trial, may require the production of the writing for his
inspection, and may make such use of it for the purposes of the trial as he
thinks fit.
8. A
witness may be questioned as to whether he has been convicted of any indictable
offence, and upon being so questioned, if he either denies or does not admit
the fact, or refuses to answer, the cross‑examining party may prove the
conviction; and a certificate containing the substance and effect only
(omitting the formal part) of the indictment and conviction for such offence,
purporting to be signed by the Registrar or Clerk of the Court, or other officer
having the custody of the records of the Court where the offender was
convicted, or by the deputy of such Clerk or officer, is, upon proof of the
identity of the person, sufficient evidence of the conviction, without proof of
the signature or official character of the person appearing to have signed the
same.
9. It is
not necessary to prove by the attesting witness any instrument to the validity
of which attestation is not requisite, and the instrument may be proved as if
there had been no attesting witness.
10. Comparison
of a disputed writing with any writing proved to the satisfaction of the Judge
to be genuine is permitted to be made by witnesses; and such writing, and the
evidence of witnesses respecting it, may be submitted to the Court and jury as
evidence of the genuineness or otherwise of the writing in dispute.
11. This
Part shall apply to all Courts of Justice, criminal as well as all others, and
to all persons having, by law or by consent of parties, authority to hear,
receive, and examine evidence.
12. (Repealed
by Act No. 28 of 1996).
PART II
EVIDENCE IN CRIMINAL
CASES
13. (1) Every person charged is a competent
witness for the defence at every stage of the proceedings, whether the
person so charged is charged solely or jointly with any other person;
but—
(a) a person
so charged shall not be called as a witness in pursuance of this section except
upon his own application;
(b) the
failure of any person charged with an offence, to give evidence shall not be
made the subject of any comment by the prosecution;
(c) (Repealed
by Act No. 28 of 1996).
(2) A person charged and being a witness in
pursuance of this section may be asked any question in cross‑examination,
notwithstanding that it would tend to criminate him, as to the offence charged.
(3) A person charged and called as a witness
in pursuance of this section shall not be asked, and if asked shall not be
required to answer, any question tending to show that he has committed or been
convicted of or been charged with any offence other than that wherewith he is
then charged, or is of bad character, unless—
(a) the proof
that he has committed or been convicted of such other offence is admissible
evidence to show that he is guilty of the offence wherewith he is then charged;
or
(b) he has
personally or by his advocate asked questions of the witnesses for the
prosecution with a view to establish his own good character, or has given evidence
of his good character, or the nature or conduct of the defence is such as to involve
imputations on the character of the prosecutor or the witnesses for the
prosecution or the victim who is deceased or otherwise incapable of giving
evidence of the alleged crime; or
(c) he has
given evidence against any other person charged with the same offence.
(4) A person called as a witness in pursuance
of this section shall, unless otherwise ordered by the Court, give his evidence
from the witness box or other place from which the other witnesses give their
evidence.
(5)
(6)
13A. (1) Subject to this Act and the Children Act,
every person is competent and compellable to give evidence.
(2) A person who is incapable of
understanding that he is under an obligation to give truthful evidence is not
competent to give evidence.
(3) Where in the opinion of the Court a
person is incapable of understanding and of communicating a reply to a question
and where that incapacity cannot be readily overcome for the purposes of the
trial, that person is deemed incompetent to give evidence.
13B. (1) Subject to subsections (2) and (3), where
a person is charged on indictment, he shall not be entitled to make a statement
without being sworn, and accordingly if he gives evidence he shall do so on
oath and be liable to cross-examination.
(2) Nothing in subsection (1) shall—
(a) affect
the right of a person charged, if not represented by an Attorney-at-law, to
address the Court or jury otherwise than on oath on any matter on which, if he
were so represented, such attorney-at-law could address the Court or jury on
his behalf; or
(b) prevent
him from making a statement without being sworn, if—
(i) the statement is one which he is by
law required to make personally; or
(ii) the statement is made by way of
mitigation before the Court passes sentence upon him.
(3) Nothing in this section shall apply to a
trial which began before the commencement of this section.
14. (1) In
this section—
“statement” includes
any representation of fact, whether made in words or otherwise;
“document”
includes any device by means of which information is recorded or stored; and
“business”
includes every kind of business, profession, occupation, calling, operation or
activity, whether carried on for profit or otherwise.
(2) In any criminal proceeding where direct
oral evidence of a fact would be admissible, any statement contained in a
document and tending to establish that fact shall, on production of the
document, be admissible as evidence of that fact if—
(a) the
document is, or forms part of, a record relating to any trade or business and
compiled, in the course of that trade or business, from information supplied
(whether directly or indirectly) by persons who have, or may reasonably be
supposed to have, personal knowledge of the matters dealt with in the
information they supply; and
(b) the
person who supplied the information recorded in the statement in question is
dead, or beyond the seas, or unfit by reason of his bodily or mental condition
to attend as a witness, or cannot with reasonable diligence be identified or
found, or cannot reasonably be expected (having regard to the time which has
elapsed since he supplied the information and to all the circumstances) to have
any recollection of the matters dealt with in the information he supplied.
(3) For the purpose of deciding whether or
not a statement is admissible as evidence by virtue of this section, the Court
may draw any reasonable inference from the form or content of the document in
which the statement is contained, and may, in deciding whether or not a person
is fit to attend as a witness, act on a certificate purporting to be a
certificate of a registered medical practitioner.
(4) In determining the weight, if any, to be
attached to a statement admissible as evidence by virtue of this section 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,
to the question whether or not the person who supplied the information recorded
in the statement did so contemporaneously with the occurrence or existence of
the facts stated, and to the question whether or not that person, or any person
concerned with making or keeping the record containing the statement, had any
incentive to conceal or misrepresent the facts.
(5) Nothing in this section affects the
admissibility of any evidence that would be admissible apart from this section,
or makes admissible any statement or document that is privileged.
14A. (1) Subject to subsection (2), in any
criminal proceedings a photograph of any object may be admitted in evidence as prima
facie proof of the identity of that object, provided that the
photograph is supported by a certificate signed by the photographer before a
Justice of the Peace authenticating the photograph as being a true image of the
object aforesaid.
(2) The photographer shall be required to
give evidence of the procedure adopted by him to produce the photograph.
14B. (1) In any criminal proceedings, a statement
contained in a document produced by a computer shall be admissible as evidence
of any fact stated therein if it is shown that—
(a) there are
no reasonable grounds for believing that the statement is inaccurate because of
improper use of the computer;
(b) at all
material times the computer was operating properly, or if not, that any respect
in which it was not operating properly or was out of operation was not such as
to affect the production of the document or the accuracy of its contents; and
(c) any
relevant conditions specified in Rules of Court are satisfied.
(2) Provision may be made by Rules of Court
requiring that in any proceedings where it is desired to give a statement in
evidence by virtue of this section, such information concerning the statement
as may be required by the Rules shall be provided in such form and at such
times as may be so required.
(3)
In any proceedings where it is desired to give a statement in evidence in
accordance with subsection (1), 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 computer;
(c) dealing
with any of the matters mentioned in subsection (1); and
(d) signed by
a person occupying a responsible position in relation to the operation of the
computer,
shall be evidence of
anything stated in such certificate, and for the purposes of this subsection it
shall be sufficient for a matter to be stated to the best of the knowledge and
belief of the person stating it.
(4) Notwithstanding subsection (3), a Court
may require oral evidence to be given of anything of which evidence could be
given by a certificate under that subsection.
(5) Any person who in a certificate tendered
under subsection (3), 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
summary conviction to a fine of three thousand dollars and to imprisonment for
six months;
(b) on conviction
on indictment to a fine of ten thousand dollars and to imprisonment for two
years.
(6) In estimating the weight, if any, to be
attached to a statement admitted pursuant to this section 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 reproduced in or derived from the
statement was supplied to the relevant computer, 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 computer, or with the operation of that computer or any equipment by means
of which the document containing the statement was produced, had any incentive
to conceal or misrepresent the facts.
(7) For the purposes of subsection (6),
information shall be taken to be supplied to a computer whether it is supplied
directly or, with or without human intervention, by means of any appropriate
equipment.
(8) For the purpose of deciding whether or
not a document is admissible in evidence by virtue of subsection (1) the Court
may draw any reasonable inference—
(a) from the
circumstances in which the statement was made or otherwise came into being; or
(b) from any
other circumstance, including the form and contents of the document in which
the statement is contained.
14C. Where
a statement contained in a document is admissible in criminal proceedings, it
may be proved—
(a) by
the production of that document; or
(b) by the
production of a copy of that document, or of the material part of it, whether
or not that document is still in existence,
and authenticated in
such manner as the Court may approve; and it is immaterial for the purposes of
this section the extent to which the original or a copy thereof may have been
reproduced.
14D. (1) In any criminal proceeding or inquest,
any record kept by a Government expert relating to anything submitted to him
for examination, analysis or report shall be prima facie evidence
of the particulars recorded therein.
(2) For the purposes of subsection (1)
“Government expert” has the same meaning as that expression bears
in section 19(4).
14E. The
Rules Committee established by the Supreme Court of Judicature Act, may,
subject to negative resolution of Parliament, make Rules necessary for the
purposes of this Part.
15. (1) Where the only witness to the facts of
the case called by the defence is the person charged, he shall be called as a
witness immediately after the close of the evidence for the prosecution.
(2) In cases where the right of reply depends
upon the question whether evidence has been called for the defence, the
fact that the person charged has been called as a witness shall not of itself
confer on the prosecution the right of reply.
15A. (1) Any requirement at common law whereby at
a trial on indictment it is obligatory for the Court to give the jury a warning
about convicting the accused on the uncorroborated evidence of a person because
that person is—
(a) an
alleged accomplice of the accused; or
(b) a person
in respect of whom it is alleged that a sexual offence under the Sexual
Offences Act, has been committed,
is abrogated.
(2) Any requirement that is applicable at the
summary trial of a person for an offence and corresponds to the requirement
mentioned in subsection (1) is abrogated.
(3) Nothing in this section shall prevent a
Judge from exercising his discretion to advise a jury of the need for
corroboration.
(4) Nothing in this section applies to any
trial on indictment or to any proceedings before a Magistrate’s Court
which began before the commencement of this section.
PART III
EVIDENCE IN
PARTICULAR CASES
16. The
parties to any action for breach of promise of marriage are competent to give
evidence in such action; but no plaintiff in any action for breach of promise
of marriage may recover a verdict unless his or her testimony is
corroborated by some other material evidence in support of such promise.
17. The
parties to any proceeding instituted in consequence of adultery, and their
husbands and wives are competent to give evidence in such proceeding, but no
witness in any proceeding, whether a party to the suit or not, shall be liable
to be asked or bound to answer any question tending to show that he or she has
been guilty of adultery, unless such witness has already given evidence in the
same proceeding in disproof of his or her alleged adultery.
18. The
parties to any information or proceeding in the High Court for the recovery of
any penalty for the breach of any law relating to the revenue are competent to
give evidence in any such information or proceeding.
19. (1) A document purporting to have affixed,
impressed, or subscribed thereon or thereto the seal and signature of any
diplomatic agent of Trinidad and Tobago in any foreign country, or any consular
officer of Trinidad and Tobago in any foreign place, in testimony of any oath,
affidavit, or act administered, taken, or done by or before any such person
shall be admitted in evidence in any Court of Trinidad and Tobago without proof
of his seal or signature or of his official character.
(1A) Where a document is attested
to in a foreign country and purports to have affixed, impressed, or subscribed
thereon the seal and signature of a notary public, a commissioner for oaths or
where there is no such office any other person duly authorised by statute to
administer oaths or to take statutory declarations in that country, such
document shall be admitted in any Court in Trinidad and Tobago without proof of
the seal or signature or due authorisation and such document shall be as
effectual as if administered, taken or done by or before any lawful authority
in Trinidad and Tobago.
(2) In any criminal proceeding any document
purporting to be a certificate or report under the hand of a Government expert
on any matter or thing which has been submitted to him for examination,
analysis or report is admissible as evidence of the facts stated in it without
proof of the signature or appointment of the Government expert, unless the
Court, acting ex proprio motu or at the
request of a party to the proceeding requires the expert to be called as a
witness. The Court is not bound to require the attendance of the expert as a
witness if the Court is of opinion that the request for such attendance is made
for the purpose of vexation, delay or defeating the ends of justice.
(2A) Where medical evidence is contained in a
report signed by—
(a) a
District Medical Officer, and the evidence—
(i) relates to a fatality; and
(ii) is being led in criminal
proceedings or in an inquest; or
(b) a
registered medical practitioner and the evidence does not relate to a fatality,
the report shall be
admitted as if it were the report of a Government expert within the meaning of
this section.
(3) In any inquest held by a Coroner any such
certificate or report is likewise admissible as evidence of the facts stated in
it unless the Coroner requires the expert to be called as a witness.
(4) In this section—
“Government
expert” means the following public officers:
(a) Senior
Pathologist;
(b) Pathologist;
(c) Government
Chemist;
(d) Armourer;
*(e) Forensic
Document Examiner;
(f) Forensic
Biologist;
(g) Scientific
Examiner (Motor Vehicle);
(h) the
holder of any other office or any other suitably qualified and experienced
person declared by the President by Notification published in the Gazette to be an officer or person to which
this section applies;
“report” includes
a post mortem report.
PART IV
EVIDENCE RELATING TO
BIRTHS, DEATHS
AND MARRIAGES
20. (1) A certified copy of an entry in any register
of births, deaths, or marriages purporting to bear the signature of the person
having legal custody of such register, or of some person legally authorised to
sign such copy at the time of its issue, and authenticated as provided below
is, in the case of any register kept at any place in Commonwealth countries
subject to all just exceptions, prima facie evidence for all
purposes of the fact of the birth or death or the legal solemnisation of the
marriage thereby certified.
(2) A certified copy shall bear the signature
of a person describing himself as holding some office, benefice, or position
entitling him to the custody of the register, or to sign such copy at the time
of so certifying, and the authentication of such signature shall be under the
hand and seal of a Notary Public, or under the hand of the Registrar General,
or Superintendent Registrar of Births and Deaths, or Registrar of Marriages of
the Commonwealth country within which such certificate purports to have
been issued, or under the hand of a member of the High Court or Supreme Court
of such Commonwealth country, or under the seal of a Court of civil
jurisdiction in the district in which the certified copy was issued.
(3) At the preliminary examination in respect
of or at any trial for any indictable offence, where it becomes necessary
either for the prosecution or the defence to establish the fact of any birth,
death, or marriage in any Commonwealth country, the person charged, or the
wife or husband of the person charged, may give evidence of the identity of any
person with any person named in the certificate; but nothing contained in this
Act shall be construed to make it compulsory on any person accused, or on his
or her wife or husband, to give any such evidence if he or she is unwilling to
do so.
(4) A birth, death, or marriage in the United
Kingdom and the Republic of Ireland or in Trinidad and Tobago shall, saving all
just exceptions, be proved in the manner provided in this section, any written
law to the contrary notwithstanding.
PART V
DOCUMENTARY EVIDENCE
IN CERTAIN CASES
21. In this
Part—
“Government
Printer” means and includes any printer purporting to be the printer
authorised to print the Acts and other documents of the Government;
“document” means
and includes proclamations, orders, bye‑laws, rules, regulations,
warrants, circulars, lists, assessment rolls, minutes, certificates, notices,
requisitions, letters, decrees, and all other records and writings whatsoever
of a public character pertaining to the several departments of the Government
in the first column of the Second Schedule;
“bankers’
books” means and includes ledgers, day books, cash books, account books,
and all other books used in the ordinary business of a bank;
“legal proceeding”
means any civil or criminal proceeding or enquiry in which evidence is or may
be given before any Court of Justice, Judge, Magistrate or Justice, Arbitrator,
Commissioner or person or persons authorised by the Supreme Court to take
evidence;
“Judge” means a
Judge of the Supreme Court, or of a Petty Civil Court;
“bank” and
“banker” means and includes—
(a) any
person or persons, partnership or company, carrying on the business of
bankers in Trinidad and Tobago, or the manager;
(b) any
person or persons, partnership or company, who may hereafter carry on the
business of bankers in Trinidad and Tobago and who hereafter, under the
authority of any Act may establish a banking association in Trinidad and
Tobago, or the manager;
(c) the Post
Office Savings Bank established under the Post Office Savings Bank Act. In the
case of the said Savings Bank, “banker” means the Postmaster
General.
22. (1)
Every document issued—
(a) by
the President;
(b) under the
authority of the President;
(c) by or
under the authority of any department of the Government or officer mentioned in
the first column of the Second Schedule; or
(d) being a
record in any such department of the Government,
may be received in
evidence in all Courts of Justice, and in all legal proceedings whatsoever, in
every case in which the original document would be admissible in evidence in
all or any of the following modes:
(i) by production of a copy of the Gazette purporting to contain the document;
(ii) by production of a copy of the
document purporting to be printed by the Government Printer;
(iii) by production (in the case of any
document issued by the President or under the authority of the President) of a
copy or extract purporting to be certified by the Minister, Secretary to the
Cabinet or any Permanent Secretary; and
(iv) by production (in the case of any
document issued by or under the authority of any of the departments or officer,
or being a record in any such department of the Government) of a copy or
extract purporting to be certified to be true by the person or persons
specified in the second column of the said Second Schedule in connection with
such department or officer.
Any copy or extract made in
pursuance of this Part may be in print or in writing, or partly in print and
partly in writing.
No proof shall be required of
the handwriting or official position of any person certifying in pursuance of
this Part to the truth of any copy of or extract from any document.
(2) In this section “Minister”
means the Minister responsible for the subject matter in respect of which the
document was issued and “Permanent Secretary” means the Permanent
Secretary to the Minister.
23. No
officer of any of the several public departments specified in the first column
of the Second Schedule is, in any legal proceedings to which the State or he is
not a party, compellable to produce any document the contents of which can be
proved under this Act or to appear as a witness to prove the matters, transactions,
and things recorded in it unless by order of a Judge made for special cause.
24. Any
person who prints any enactment or document which falsely purports to have been
printed by the Government Printer, or by the authority of the legislation or
the Government of any Commonwealth territory or tenders in evidence any
document which falsely purports to have been so printed knowing that the same
was not so printed is liable to imprisonment for five years.
25. Section
22 shall be deemed to be in addition to and not in derogation of any powers of
proving documents given by any Act or law for the time being in force in
Trinidad and Tobago.
26. Subject
to this Act, a copy of any entry in a banker’s book shall, in all legal
proceedings be received as prima facie evidence of such entry,
and of the matters, transactions, and accounts therein recorded.
27. (1) A copy of an entry in a banker’s book
shall not be received in evidence under this Act unless it is first proved that
the book was, at the time of the making of the entry, one of the ordinary books
of the bank, and that the entry was made in the usual and ordinary course of
business, and that the book is in the custody or control of the bank.
(2) Such proof may be given by the manager or
accountant of the bank, and in the case of the Post Office Savings Bank by the
Postmaster General or any person authorised by him.
(3) Such proof may be given orally, or by
affidavit sworn, or statutory declaration made, before any Commissioner or
person authorised to take affidavits or statutory declarations.
28. A copy
of an entry in a banker’s book shall not be received in evidence under
this Act unless it be further proved that the copy has been examined with the
original entry and is correct; such proof shall be given by some person who has
examined the copy with the original entry, and may be given either orally, or
by an affidavit sworn, or statutory declaration made, before any Commissioner
or person authorised to take affidavits or statutory declarations.
29. The
manager or accountant of a bank, and in the case of the Post Office Savings
Bank the Postmaster General and any person employed in connection with the Post
Office Savings Bank, are not, in any legal proceeding to which the bank is not
a party, compellable to produce any banker’s book, the contents of which
can be proved under this Act or to appear as a witness to prove the matters,
transactions, and accounts recorded in it, unless by order of a Judge made for
special cause.
30. On the
application of any party to a legal proceeding, a Court or Judge may order that
the party be at liberty to inspect and take copies of any entries in a
banker’s book for any of the purposes of the proceedings. An order under
this section may be made either with or without summoning the bank or any other
party, and shall be served on the bank three clear days, exclusive of Sundays
and public holidays, before it is to be obeyed, unless the Court or Judge
otherwise directs.
31. (1) There shall be paid to and taken by the
officers of the departments in the Second Schedule mentioned, except the
Registrar General’s department, the following fees, that is to say:
For
every copy of any document, for every 90
words…
… … … … … … … …
For
a certificate of correctness of such copy …
All fees under this Act shall be paid to
the Comptroller of Accounts.
(2) There shall be paid to the Commissioner
of Police for information relating to a road traffic accident a fee of fifty
dollars.
(3) The fees specified in the Third Schedule
shall be paid by private clients in respect of services provided by the
Trinidad and Tobago Forensic Science Centre.
(4) The Minister may by Order amend the Third
Schedule.
32. (1) In
any proceeding, whether civil or criminal, an instrument as to the validity of
which attestation is requisite may, instead of being proved by an attesting
witness be proved in the manner in which it might be proved if no attesting
witness were alive.
(2) In this section “proceedings”
includes an arbitration or reference whether under any written law or not.
(3) Nothing in this section shall apply to
the proof of Wills or other testamentary documents.
33. In any
proceedings, whether civil or criminal, there shall, in the case of documents
proved, or purporting, to be not less than twenty years old be made any
presumption which immediately before 1st September 1938 would have been made in
the case of a document of like character proved, or purporting, to be not less
than thirty years old.
34. Nothing
in section 32 or 33 shall prejudice the admissibility of any evidence which
would, apart from the provisions of those sections, be admissible.
PART VI
EVIDENCE IN CIVIL
PROCEEDINGS
35. (1) In this Part—
“civil proceedings” includes, in addition to
civil proceedings in any of the ordinary Courts of Law—
(a) civil
proceedings before any other tribunal, being proceedings in relation to which
the strict rules of evidence apply; and
(b) an
arbitration or reference, whether under a written law or not,
but does not include civil proceedings
in relation to which the strict rules of evidence do not apply;
“computer” has the meaning assigned by
section 40;
“Court” does not include a Court‑martial,
and, in relation to an arbitration or reference, means the arbitrator or umpire
and, in relation to proceedings before a tribunal (not being one of the
ordinary Courts of law), means the tribunal;
“document” includes, in addition to a
document in writing—
(a) any map,
plan, graph or drawing;
(b) any
photograph;
(c) any disc,
tape, sound track or other device in which sounds or other data, not being
visual images are embodied so as to be capable (with or without the aid of some
other equipment) of being reproduced therefrom; and
(d) any film,
negative, tape or other device in which one or more visual images are embodied
so as to be capable (as mentioned above) of being reproduced therefrom;
“film” includes a microfilm;
“legal proceedings” includes an arbitration
or reference, whether under a written law or not;
“statement” includes any representation of
fact, whether made in words or otherwise.
(2) In this Part any reference to a copy of a
document includes—
(a) in the
case of a document falling within paragraph (c) but not (d) of the definition of “document” in subsection (1), a
transcript of the sounds or other data embodied therein;
(b) in the
case of a document falling within paragraph (d) but not (c) of that definition, a reproduction or still reproduction of the image
or images embodied therein, whether enlarged or not;
(c) in the
case of a document falling within both those paragraphs, such a transcript
together with such a still reproduction; and
(d) in the
case of a document not falling within the said paragraph (d) of which a visual image is embodied in a document
falling within that paragraph, a reproduction of that image, whether enlarged
or not,
and any reference to
a copy of the material part of a document shall be construed accordingly.
(3) For the purposes of the application of
this Part in relation to any such civil proceedings as are mentioned in
subsection (1), any Rules of Court made for the purposes of this Act under
sections 77 and 78 of the Supreme Court of Judicature Act, shall (except in so
far as their operation is excluded by agreement) apply, subject to such
modifications as may be appropriate, in like manner as they apply in relation
to civil proceedings in the High Court of Justice.
(4) If any question arises as to what are,
for the purposes of any such civil proceedings as are mentioned in subsection
(1), the appropriate modifications of any such rule of Court as is mentioned in
subsection (3), that question shall, in default of agreement, be determined by
the tribunal or the arbitrator or umpire, as the case may be.
(5) Any reference in this Part to any other
written law includes a reference thereto as applied, by or under any other
written law.
(6) Nothing in this Part prejudices the
operation of any written law which provides (in whatever words) that any answer
or evidence given by a person in specified circumstances is not admissible in
evidence against him or some other person in any proceedings or class of
proceedings (however described).
(7) In subsection (6) the reference to giving
evidence is a reference to giving evidence in any manner, whether by furnishing
information, making discovery, producing documents or otherwise.
(8) Nothing in this Part prejudices—
(a) any power
of a Court, in any legal proceeding, to exclude evidence (whether by preventing
questions from being put or otherwise) at its discretion; or
(b) the
operation of any agreement (whenever made) between the parties to any legal
proceedings as to the evidence which is to be admissible (whether generally or
for any particular purpose) in those proceedings.
(9) Where, by reason of any defect of speech
or hearing from which he is suffering, a person called as a witness in any
legal proceeding gives his evidence in writing or by signs, that evidence is to
be treated for the purposes of this Part as being given orally.
36. (1) In any civil proceedings a statement other than
one made by a person while giving oral evidence in those proceedings is
admissible as evidence of any fact stated therein to the extent that it is so
admissible by virtue of any provision of this Part or by virtue of any other
statutory provision or by agreement of the parties, but not otherwise.
(2) In this section “statutory
provision” means any provision contained in, or in an instrument made
under, this or any other Act including any Act passed after the commencement of
the Evidence (Amendment) Act 1973 (that is, 15th November 1973).
37. (1) In any civil proceedings a statement
made, whether orally or in a document or otherwise, by any person, whether
called as a witness in those proceedings or not, shall, subject to this section
and to Rules of Court, be admissible as evidence of any fact stated therein of
which direct oral evidence by him would be admissible.
(2) Where in any civil proceedings a party
desiring to give a statement in evidence by virtue of this section has called
or intends to call as a witness in the proceedings the person by whom the
statement was made, the statement—
(a) shall not
be given in evidence by virtue of this section on behalf of that party without
the leave of the Court; and
(b) without
prejudice to paragraph (a), shall
not be given in evidence by virtue of this section on behalf of that party
before the conclusion of the examination‑in-chief of the person by whom
it was made, except—
(i) where before that person is called
the Court allows evidence of the making of the statement to be given on behalf
of that party by some other person; or
(ii) in so far as the Court allows the
person by whom the statement was made to narrate it in the course of his
examination‑in‑chief on the ground that to prevent him from doing
so would adversely affect the intelligibility of his evidence.
(3) Where in any civil proceedings a
statement which was made otherwise than in a document is admissible by virtue
of this section, no evidence other than direct oral evidence by the person who
made the statement or any person who heard or otherwise perceived it being made
shall be admissible for the purpose of proving it, but so however, that if the
statement in question was made by a person while giving oral evidence in some
other legal proceedings (whether civil or criminal), it may be proved in any
manner authorised by the Court.
38. (1) Where in any civil proceedings—
(a) a
previous inconsistent or contradictory statement made by a person called as a
witness in those proceedings is proved by virtue of section 5, 6 or 7;
(b) a
previous statement made by a person called as aforesaid is proved for the
purpose of rebutting a suggestion that his evidence has been fabricated,
that statement shall
by virtue of this subsectio
