Evidence of a hearsay statement is not made inadmissible by section 117 if it consists of testimony given by the declarant as a witness in an action or in a deposition taken according to law for use in an action, and when the testimony was given or the deposition was taken the declarant was examined by a party with interests and motives identical with, or similar to, the party against whom the evidence is offered in the present action.
Evidence of a hearsay statement is not made inadmissible by section 117 if
(a) the statement is contained in a writing and constitutes a record of what was perceived by a witness who is present and subject to cross-examination; and
(b) the statement would have been admissible if made by the witness while testifying; and
(c) at a time when the matter recorded was recently perceived and clear in the memory of the witness, the witness recognised the written statement as an accurate record of what the witness had perceived or the witness stated what the witness perceived and the written statement, by whomever or however made, correctly sets forth what the witness stated.
Evidence of a hearsay statement is not made inadmissible by section 117 if the statement states the declarant’s existing state of mind, emotion or physical sensation, and is not a statement of the declarant’s memory or belief of a fact offered to prove the truth of the fact remembered or believed.
Evidence of a hearsay statement is not made inadmissible by section 117 if the statement was made
(a) while the declarant was perceiving the event or condition which the statement narrates or describes or explains or immediately after the event or condition; or
(b) while the declarant was under the stress caused by the perception of the declarant of the event or condition which the statement narrates or describes or explains.
(1) Evidence of a hearsay statement contained in a writing made as a record of an act, event, condition, opinion or diagnosis is not made inadmissible by section 117 if
(a) the writing was made in the regular course of a business;
(b) the writing was made at or near the time the act or event occurred, the condition existed, the opinion was formed, or the diagnosis was made; and
(c) the sources of the information and the method and time of preparation indicate that the statement contained in the writing is reasonably trustworthy.
(2) Evidence of the absence from records of a business of a record of an alleged act, event or condition is not made inadmissible by section 117 when offered to prove the non-occurrence of the act or event, or the non-existence of the condition, if
(a) it was the regular course of that business to make records of those acts, events or conditions at or near the time the act or event occurred or the condition existed and to preserve those records; and
(b) the sources of information and method and time of preparation of the records of that business show that the absence of a record is a reasonably trustworthy indication that the act or event did not occur or that the condition did not exist.
(3) For the purpose of this section, “business” includes a type of regularly conducted activity, business, profession occupation, governmental activity, or operation of an institution whether carried on for profit or not.
(4) A hearsay statement admissible in evidence under this section is not made inadmissible by the fact that it is not based on the personal knowledge of the declarant.
(1) Evidence of a hearsay statement contained in writing made as a record of an act, event or condition is not made inadmissible by section 117 if
(a) the writing was made by and within the scope of duty of a public officer;
(b) the writing was made at or near the time the act or event occurred or the condition existed; and
(c) the sources of information and method and time of preparation indicate that the statement contained in the writing is reasonably trustworthy.
(2) Evidence of a hearsay statement contained in a writing made by the public officer who is the official custodian of the records in a public office reciting diligent search and failure to find a record, is not made inadmissible by section 117.
(3) A hearsay statement admissible in evidence under this section is not made inadmissible by the fact that it is not based on the personal knowledge of the declarant.
(1) Evidence of a final judgment in a criminal action of a Court adjudging a person guilty of a crime is not made inadmissible by section 117 when offered to prove a fact essential to the judgment.
(2) Evidence of a final judgment of a Court is not made inadmissible by section 117 when offered by a judgment debtor to prove a fact which was essential to the judgment in an action in which the judgment debtor seeks
(a) to recover partial or total indemnity or exoneration for money paid or liability incurred because of the judgment; or
(b) to enforce a warranty to protect the judgment debtor against the liability determined by the judgment; or
(c) to recover damages for breach of a warranty substantially the same as the warranty determined by the judgment to have been breached.
(3) Where the liability, obligation or duty of a person other than a party is in issue in an action, evidence of a final judgment of a Court against that person is not made inadmissible by section 117 when offered to prove that liability obligation or duty.
(4) A judgment offered in evidence and admissible under this section is not made inadmissible by the fact that the judgment is an opinion or is not based on personal knowledge.
(1) Evidence of a hearsay statement by a declarant concerning the birth, marriage, divorce, relationship by blood, marriage or adoption, ancestry or any other similar fact of the family history of the declarant is not made inadmissible by section 117, and will not be made inadmissible by the fact that the declarant did not have any means of acquiring personal knowledge of the matter declared if the statement was made before the controversy arose over the fact of family history.
(2) Evidence of a hearsay statement concerning the birth, death, marriage, divorce, relationship by blood, marriage or adoption, ancestry or any other similar fact of the family history of a person other than the declarant is not made inadmissible by section 117 if the statement was made before the controversy arose concerning the fact of family history and
(a) the declarant was related to the other person by blood, marriage or adoption; or
(b) the declarant was otherwise so intimately associated with the other person’s family as to be likely to have had accurate information concerning the matter declared.
(3) Evidence of entries in a family bible or other family book, family portrait, and inscriptions on a building, a tombstone and the like is not made inadmissible by section 117 when offered to prove the birth, death, marriage, divorce, relationship by blood, marriage or adoption, ancestry or any other similar fact of family history of a member of the family by blood, marriage or adoption.
(4) Evidence of reputation among members of a family is not made inadmissible by section 117 when offered to prove the truth of the matter reputed if the reputation concerns the birth, death, marriage, divorce, relationship by blood, marrige or divorce, ancestry or any other similar fact of the family history of a member of the family by blood, marriage or adoption.
Evidence of reputation in a community given by a person with personal knowledge of the reputation is not made inadmissible by section 177 if
(a) the reputation concerns boundaries of, or customs affecting, land in the community and the reputation arose before the controversy concerning the boundary or custom; or
(b) the reputation concerns an event of the general history of the community and the event was of importance to the community.
ADWUBENG v DOMFEH [1997-98] 1 GLR 282, Holding 4 @ 296, Per Acquah J.S.C., SC.
(1) Evidence of a hearsay statement contained in a deed of conveyance or a will or any other writing purporting to affect an interest in movable or immovable property is not made inadmissible by section 117 if
(a) the matter stated was relevant to the purpose of the writing;
(b) the matter stated would be relevant to an issue as to an interest in the property; and
(c) the dealings with the property since the statement was made have not been inconsistent with the truth of the statement.
(2) Evidence of a hearsay statement is not made inadmissible by section 117 if the statement is contained in a writing more than twenty years old and the statement has since been acted upon as true by persons having an interest in the matter.
Evidence of a person’s general reputation with reference to the character or a trait of the character of that person at a relevant time in a group with which that person regularly associated is not made inadmissible by section 117 when offered to prove the truth of the matter reputed.
(1) A published treatise, periodical or pamphlet on a subject of history, literature science or art is not made inadmissible by section 117 when offered to prove the truth of a matter stated in that document if the Court takes judicial notice, or a witness expert in the subject testifies, that the author of the statement in the writing is recognised in that field as an expert in the subject.
(2) Evidence of a hearsay statement, other than an opinion, contained in a tabulation, list, directory, register or any other published data compilation is not made inadmissible by section 117 if the compilation is generally used and relied upon as accurate in the regular course of a business as defined in section 125 (3).
Where hearsay evidence is admitted,
(a) evidence of a statement or other conduct by the declarant that is inconsistent with the declarant’s hearsay statement is not inadmissible for the purpose of attacking the credibility of the declarant though the declarant did not have an opportunity to explain or deny the inconsistency because the declarant was not called as a witness, and
(b) any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness in the action.
(1) The declarant of a hearsay statement admitted in evidence may be called and examined, as if under cross-examination concerning the statement, by a party adverse to the party who introduced the statement.
(2) Subsection (1) does not apply if the declarant is
(a) a witness who has testified in the action concerning the subject matter of the statement; or
(b) a party; or
(c) a person whose relationship to a party makes the interest of that person substantially the same as that of a party.
(3) Subsection (1) does not apply if the statement is hearsay evidence admissible only under section 119, 120, 121, or 127.
(4) Hearsay evidence that is otherwise admissible is not made inadmissible by this section because the declarant who made the statement is unavailable for examination under this section.
In a criminal action tried by a jury, the Court may exclude evidence admissible only under sections 121, 123, 124, 128 and 130 if the circumstances in which the statement was made indicate that it is not reasonably trustworthy and the declarant is available as a witness.
Authentication and Identification
(1) Where the relevancy of evidence depends upon its authenticity or identity, and the authentication or identification is required as a condition precedent to admission, that requirement is satisfied by evidence or any other showing which is sufficient to support a finding that the matter in question is what its proponent claims.
(2) Permissible means of authentication or identification include, but are not limited to, those provided in sections 137 to 161.
Authentication may be by evidence that the party against whom it is offered has at any time admitted its authenticity or identify or acted upon it as authentic.
Authentication or identification may be by any of the means provided by an enactment or the Rules of Court.
Authentication or identification may be by testimony that a matter is what its proponent claims.
To authenticate or identify handwriting, a witness who is not an expert on handwriting may state an opinion whether the handwriting is that of the alleged writer if the Court is satisfied that the witness has personal knowledge of the handwriting of the alleged writer.
Authentication or identification of a signature, handwriting, seal or finger impression may be by a comparison made by a witness or by the Court with a specimen which has been proved to the satisfaction of the Court to be genuine.
To identify a voice, whether heard directly or through mechanical or electronic transmission or recording, a witness who is not an expert on voice identification may state an opinion whether the voice is that of the alleged speaker if the Court is satisfied that the witness has at any time heard the voice in circumstances connecting it with the alleged speaker.
A person may be identified by evidence that a telephone call was made to a number reputed to be that of the person in question, if
(a) the call was to a place of business and the conversation related to business reasonably transacted with that person over the telephone, or
(b) circumstances, including self-identification, show the person answering to be the one called.
Authentication or identification may be by evidence of distinctive characteristics, appearance, contents, substance or internal patterns.
Authentication or identification of a communication, whether written or otherwise, may be by evidence that the communication was received in response to a communication sent to the alleged author of the communication in question.
Authentication or identification of a writing may be by evidence that the writing
(a) is in a condition which does not create a suspicion concerning its authenticity;
(b) was in a place where, if authentic, it might be expected to be; and
(c) is at least twenty years old at the time it is offered.
Authentication or identification may be by evidence describing a process or system used to produce a result and showing that the result is accurate.
Authentication or identification of a writing may be by evidence that
(a) the writing is a public record, report, statement or data compilation and is from an office of a public entity in Ghana; or
(b) the writing is one authorised by law to be recorded or filed and has in fact been recorded or filed in an office of a public entity in Ghana and is from an office of a public entity in Ghana where items of that nature are regularly kept.
(1) Authentication or identification of writings made or kept in the regular course of a business may be by the testimony of a representative of the business who is responsible for keeping the records or familiar with them even though the representative did not make the writing or see it made.
(2) For the purpose of subsection (1), “business” includes every type of regularly conducted activity, business, profession, occupation, governmental activity, or operation of an institution, whether carried on for profit or not.
(1) An attested writing that is not required by law to be attested may be authenticated in the same manner as any other writing, and the testimony of an attesting witness is not required.
(2) An attested writing, other than a will or testamentary writing, that is required by law to be attested may be authenticated in the same manner in which it might be authenticated if an attesting witness is not alive.
Books, pamphlets, gazettes or other publications purporting to be printed or published by a public entity are presumed to be authentic.
Printed and published books of statutes or reports of the decisions of the Courts of a country, and books proved to be commonly admitted in those Courts as evidence of the law of that country are presumed to be authentic.
The maps or charts made under the authority of a public entity, and not made for the purpose of a litigated question, are presumed to be authentic and correct.
The Proclamations, acts of State, whether legislative or executive, nominations, appointments, and other official communications appearing in the Gazette are prima facie evidence of a fact of a public nature which they are intended to notify.
A reference book, text or treatise which is produced for inspection by the Court if in the condition which does not create a suspicion concerning its authenticity is presumed to be written and published at the time and place it purports to have been.
Printed materials purporting to be newspapers or periodicals are presumed to be authentic.
Inscriptions, signs, tags or labels purporting to have been affixed in the course of business and indicating ownership, control or origin are presumed to be authentic.
Writings accompanied by a certificate of acknowledgment bearing the signature and seal of a notary public in Ghana or other officer in Ghana authorised by law to take acknowledgments are presumed to be authentic.
A seal is presumed to be genuine and its use authorised if it purports to be the seal of
(a) Ghana, or of a Ministry, Department, officer or agency of Ghana;
(b) a public entity in Ghana or a Department, officer or agency of a public entity;
(c) a State recognised by Ghana or a Ministry, Department officer or agency of that State;
(d) a public entity in a State recognised by Ghana or a Department, officer or agency of that public entity;
(e) a Court in Ghana or a Court in a State recognised by Ghana;
(f) an international public entity or a department, officer or agency of that public entity;
(g) a notary public or a commissioner for oaths in Ghana.
A signature is presumed to be genuine and authorised if it purports to be the signature, affixed in the official capacity, of
(a) a public officer of Ghana;
(b) a public officer of a public entity in Ghana;
(c) a notary public or a commissioner for oaths in Ghana.
(1) A signature is presumed to be genuine and authorised if it purports to be the signature, affixed in an official capacity, of an official of an international public entity or a State or a public entity in a State recognised by Ghana and the writing to which the signature is affixed is accompanied by a certification of the genuineness of the signature and official position of the person who executed the writing.
(2) The certification must be signed and sealed by a diplomatic agent of Ghana or of a Commonwealth country who is assigned or accredited to that country.
(3) If reasonable opportunity is given to the parties to investigate the authenticity of a foreign official signature, the Court may, for good cause shown, order that it be treated as presumptively authentic without a certification.
A copy of a writing is presumed to be genuine if it purports to be a copy of a writing which is authorised by law to be recorded or filed, and has in fact been recorded or filed in an office of a public entity or which is a public record, report statement or data compilation if
(a) an original or an original record is in an office of a public entity where items of that nature are regularly kept, and
(b) the copy is certified to be correct by the custodian or other person authorised to make the certification where the certification must be authenticated.
(1) An original of a writing is the writing itself or a copy intended to have the same effect by the person executing or issuing it.
(2) An original of a writing which is a photograph includes the photographic film, a positive, negative or photographic plate of the film or a print made from the photographic film.
(3) Where information contained in a writing is stored in a manner not readable by sight, as in a computer or a magnetic tape, a transcription readable by sight and proved to the satisfaction of the Court to accurately reflect the stored information is an original of that writing.
OWUSU v. THE REPUBLIC  2 GLR 262, Holding 1 @ 272, Per Anterkyi J., HC;
AMOAH v. ARTHUR [1987-88] 2 GLR 87, Holding 4 @ 100, Per Abban J.S.C., CA.
A duplicate of a writing is
(a) a copy produced by a technique which ensures an accurate reproduction of the original;
(b) a copy produced by the same impression, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording or by chemical reproduction, but does not include a copy reproduced after the original by manual handwriting or typing.
Except as otherwise provided by this Act or any other enactment evidence other than an original writing is not admissible to prove the content of a writing.
A duplicate of a writing is admissible to the same extent as an original of that writing, unless
(a) a genuine question is raised as to the authenticity of the original or the duplicate, or
(b) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
Evidence other than an original writing is admissible to the same extent as an original to prove the content of a writing if the originals are lost or have been destroyed, unless the loss or destruction resulted from the fraudulent act of the proponent of the evidence.
Evidence other than an original writing is admissible to the same extent as an original to prove the content of a writing, if the original cannot be obtained by an available judicial procedure, or if the persons having control of an original after receiving judicial process compelling production do not produce it.
(a) Evidence other than an original writing is admissible to the same extent as an original to prove the content of a writing, if at a time when an original was under the control of the opponent of the evidence, the opponent was given express or implied notice by the pleadings or otherwise, that the content of the writing would be a subject of proof at the hearing, and on request at the hearing the opponent does not produce it.
(b) Though a writing requested by one party is produced by another and is inspected by the party calling for it, the party calling for the writing is not obliged to introduce it as evidence in the action.
Evidence other than an original writing is admissible to the same extent as an original to prove the content of a writing if the content of the writing is not closely related to a controlling issue in the action.
(1) Evidence other than an original writing is admissible to the same extent as an original to prove the content of a writing if the originals consist of numerous accounts of other writings which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole.
(2) The Court may require that the accounts or other writings be produced in Court or be produced for inspection or copying by an adverse party.
Evidence other than an original writing is admissible to the same extent as an original to prove the content of a writing if the original is of a nature that it cannot be easily moved.
Evidence other than an original of a writing is admissible to the same extent as an original to prove the content of a writing if the contents of the writing have been admitted by the opponent of the evidence in writing or by testimony in the action.
A copy of a writing is admissible to the same extent as an original to prove the content of a writing if an original and the copy have been produced at or before the hearing and made available for inspection and comparison by the Court and the adverse parties.
(1) A copy of a writing which is authorised by law to be filed or recorded and has in fact been filed or recorded in an office of a public entity or which is a public record, report, statement or data compilation is admissible to the same extent as an original to prove the content of the writing if
(a) an original or an original record is in an office of a public entity where items of that nature are regularly kept; and
(b) the copy is certified to be correct by the custodian or other person authorised to make the certification, and that certificate is authenticated or the copy is testified to be a correct copy by a witness who has compared it with an original.
(2) Where a copy which complies with subsection (1) cannot be obtained by the exercise of reasonable diligence, other evidence of the content of the writing is admissible to the same extent as an original.
(1) A copy of a record made in the ordinary course of business by a bank is admissible to the same extent as an original to prove the content of the writing if the copy is testified to be a correct copy by a witness who has compared it with an original.
(2) Evidence that the record was made in the regular course of business or that the copy is a correct copy may be given by oral testimony or affidavit by a representative of the bank.
(3) A representative of a bank in an action to which the bank is not a party shall not be compelled to produce the original records of the bank or to appear as a witness concerning them unless the Court finds that fairness requires that compulsion.
(4) The Court may, on application, order a bank to allow a party to inspect or copy any records of the bank which concern the action, provided that reasonable advance notice is given to the bank.
(5) For the purposes of this section, a bank is a business registered in Ghana as a bank.
(1) Except as otherwise provided by the rules of equity, terms set forth in a writing intended by the party or parties to the writing as a final expression of intention or agreement with respect to those terms may not be contradicted by evidence of a prior declaration of intention, of a prior agreement or of a contemporaneous oral agreement or declaration of intention, but may be explained or supplemented,
(a) by evidence of consistent additional terms unless the Court finds the writing to have been intended also as a complete and exclusive statement of the terms of the intention or agreement, but a will and a registered writing conveying immovable property shall be deemed to be a complete and exclusive statement of the terms of the intention of agreement; and
(b) by a course of dealing or usage of trade or by course of performance.
(2) Subsection (1) does not preclude the admission of evidence relevant to the interpretation of terms in a writing.
(3) For the purposes of subsection (1),
(a) “a course of dealing” means a sequence of previous conduct between parties to a particular transaction which can fairly be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct;
(b) “a usage of trade” means a practice or method of dealing in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question;
(c) “course of performance” means, in respect only of a contract which involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, a manner of performance accepted or acquiesced in without objection.
(1) This Act applies in an action, whether civil or criminal, and to privileges as provided in section 87.
(2) In applying this Act, and in particular in determining whether and to what extent to exercise its power under section 8, the Court shall have special regard to the fair application of this Act in respect of a party not represented by a lawyer.
(3) A rule of law which provides that acts in derogation of the common law shall be narrowly construed does not apply to this Act.
(4) This Act shall be interpreted and applied so as to achieve a consistent law of evidence and the most just, expeditious and least costly administration of the law.
(1) In this Act, unless the context otherwise requires,
“action” includes a suit, proceeding or any other matter conducted before a Court;
“an incompetent” is a person under a disability imposed by law;
“burden of persuasion” has the meaning assigned to it in section 10 (1);
“burden of producing evidence” has the meaning assigned to it in section 11 (1);
“character” means a person’s generalised disposition made up of the aggregate of the traits, including traits of honesty, peacefulness, temperance, skill or care of that person and their opposites;
“committee” means a person, committee or other representative authorised by law to protect the person or property or both of an incompetent, and to act for the incompetent in matters affecting the person or property or both of the incompetent;
“conduct” includes active and passive behaviour, both verbal and non-verbal;
“Court” includes the Superior Court of Judicature and the other court which constitute the Judiciary;
“crime” has the meaning assigned to it in section 1 of the Criminal Code, 1960 (Act 29);
“enactment” means an enactment including this Act;
“essential facts” are facts which must be established to make out a cause of action or defence as determined by substantive law;
“evidence” means testimony, writings, material objects, or any other things presented to the senses that are offered to prove the existence or non-existence of a fact:
“Justice” includes a Justice of a superior court of record, a chairman of a Regional Tribunal, a member or members of a Court conducting a trial and a Magistrate;
“law” includes constitutional, statutory, decisional law and the common law within the meaning of article 11 of the Constitution;
“perceive” means to acquire knowledge through one’s own senses;
“proof” means the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court;
“public entity” includes a State, a political sub-division of a State, an organisation or association of States and a public authority or an agency of the public authority;
“public officer” means an officer, agent, employee or other representative of a public entity acting in the course of duty as officer, agent, employee or representative of the public entity;
“relevant evidence” means evidence including evidence relevant to the credibility of a witness or hearsay declarant, which makes the existence of a fact which is of consequence to the determination of the action more or less probable than it would be without the evidence;
“routing practice” means a regular response to a repeated specific situation;
“tribunal of fact” includes a trier of fact and
(a) the jury, and
(b) the Court when the Court is trying an issue of fact other than one relating to the admissibility of evidence;
“writing” includes handwriting, typewriting, printing, photostating, photographing, mechanical or electronic recording, and any other means of recording upon a tangible thing, a form of communication or representation, including letters, words, pictures, sounds or symbols, or combinations of those things.
(2) In this Act, unless the context otherwise requires,
“cross-examination” means the examination of a witness other than by the party who called the witness;
“examination by leave of the Court” means a further examination which the Court allows;
“examination-in-chief” means the first examination of a witness by the party who called the witness;
“re-examination” means the examination of a witness by the party who called the witness after the witness has been cross-examined.
ENGLISH STATUTES CEASING TO APPLY
[Section 180 (1)]
Witnesses Act, 1806 (46 Geo. 3, c. 37);
Evidence Act, 1851 (14 and 15 Vict., c. 99);
Evidence Amendment Act, 1853 (16 and 17 Vict., c. 83);
Common Law Procedure Act, 1854 (17 and 18 Vict., c. 125);
Evidence Further Amendment Act, 1869 (32 and 33 Vict., c. 68).
- The Evidence Act has been prepared as part of the programme of law reform, and follows the detailed recommendations of the Law Reform Commission. The law of evidence is at present in a highly unsatisfactory state, being derived in large measure from old English common law which is excessively complex, difficult to ascertain, sometimes based on uncertain principles, and often unsuitable for application in Ghanaian circumstances. Furthermore, the recent improvements made by Statute law in the English rules of evidence have never applied in Ghana. It has therefore become a matter of urgent necessity for the rules of evidence applied in Ghana to be rationalised, simplified and presented in a coherent, accessible form. The Act replaces the common law and most of the Statute law relating to evidence, and provides a comprehensive set of rules which will greatly assist in the administration of justice. This Memorandum summarises in general terms some of the important reforms made by the Act, and the Law Reform Commission intends to publish a detailed analysis and explanation of the provisions of the Act in due course. In accordance with section 19 of the Interpretation Act, 1960, such a commentary, when published, may be used as an aid to the construction of the Act.
- The Act first states a number of general rules of evidence, including those relating to questions of law and fact and preliminary facts. Section 5 provides that where evidence has been omitted or excluded in error, the decision of the trial court will not generally be upset unless the error has resulted in a substantial miscarriage of justice. This is to eliminate frivolous appeals and relieve against retrials for inconsequential errors. Section 6 provides that objections to the admissibility of evidence must be made at the time the evidence is offered and that the court must record and rule on such objections. This is designed to reduce subsequent doubts and disputes and to provide a complete record of objections. Sections 5 and 6 make clear that inadmissible evidence must usually be objected to at the trial. Otherwise objection will not be tolerated on appeal.
- Section 7 defines corroboration, and further states that evidence may in proper circumstances be corroborated by other independent evidence that requires corroboration. This settles the question concerning the use of suspect evidence.
- Section 8 codifies the Court’s discretionary power to exclude evidence in certain circumstances. Section 9 deals with the scope and limitations of judicial notice.
- Part Two of the Act refers to what has commonly been called the “burden of proof” although this ambiguous expression is avoided as a technical expression in the Act. Instead, sections 10 and 11 provide convenient terminology for distinguishing between the risk of non-production of evidence and the risk of non-persuasion.
- The provisions relating to presumptions (Part Three) are designed to simplify a rather confused area of the law. The Act distinguishes presumptions (defined as a mandatory connection between basic and assumed facts) from mere inferences (permissible but not mandatory connections between basic and assumed facts). Other devices which in the past have been called presumptions are treated separately. For instance, section 15 deals with various rules allocating the burden of persuasion which have sometimes been spoken of as presumptions on the pleadings. These rules, however, are no longer called presumptions.
- Section 21 (dealing with procedure in applying rebuttable presumptions in a trial requiring proof by a preponderance of probabilities) appears complicated at first glance. The tests of sufficiency and certainty of belief follow those laid down in sections 10 to 12. It is also helpful to bear in mind that the subdivisions of (b) and (c) into (i), (ii) and (iii) separate situations in which in a jury trial, the Court would be entitled to direct a jury to find a fact (i) and (ii) from those in which the Court must leave the find of fact to the jury (iii). In other words, (iii) deals with the case where there is a genuine dispute as to the existence of the basic facts or the presumed facts.
- Section 21 (b) deals with the situation where no evidence is introduced contrary to the existence of the presumption and the only controversy is as to the existence of the basic facts that give rise to the presumption. In this situation, if the basic facts are found to exist, the presumed fact must be found.
- Section 21 (c) deals with the situation where the basic facts are established and the only controversy is as to whether the evidence introduced by the opponent to rebut the presumption is sufficient to do so.
- Section 21 (d) deals with the doubly indeterminate case where there is a genuine issue both as to whether the presumption applies (are the basic facts made out?) and if so, whether the presumption has been rebutted (is the non-existence of the presumed fact more probable than not?).
- The provisions relating to relevancy (Part Four) limit its meaning to the existence of a logical connection, based on human understanding and experience between the evidence offered and the fact to be proved – section 51 (1) Matters of remoteness, redundancy prejudice, confusion, surprise, waste of time and other matters of policy are dealt with separately as matters which at times indicate that evidence, even though relevant, ought to be excluded.
- One such relevant matter which is often excluded for policy reasons is character evidence. To simplify analysis, the Act separates the issue of the use of disposition may be proved.
- Part Five of the Act deals with witness. Section 58 abolishes all pre-existing common law disqualifications for witnesses and provides that, subject to the exceptions provided in the Act, every person is competent to be a witness and no person is disqualified from testifying to any matter. Section 59 identifies the circumstances in which a person is not qualified to be witness. The remaining provisions of that Part deal with requirements for testifying the examination of witnesses, the exclusion of witnesses, credibility and related matters.
- Part Six reforms the law relating to privileges. Section 87 applies the provisions of the Act relating to privileges to all “proceedings” defined in the section to cover a wide range of activities (including administrative, executive and legislative activities) before a government body. Thus these provisions are not restricted to proceedings before a Court.
- Section 88 abolishes all existing common law privileges. The only privileges which will now be recognised are those specified in the Act or in any other enactment. The Act accordingly re-enacts in statutory language many of the pre-existing privileges, but some (such as the privilege to refuse to produce documents of title) are not retained. A person will now be both a competent and a compellable witness for or against his spouse (although confidential marital communications are privileged from disclosure by section 110 of the Act). Several new privileges are also created (see, for example, section 103 relating to mental treatment, section 104 relating to religious advice and section 105 relating to compromise).
- Section 92 allows a Court to require disclosure in matters relating to State secrets, informants and trade secrets for the purpose of evaluating a claim of privilege in respect of any such matters.
- Section 102 clarifies the law on the subject of privilege for information obtained or work done by a lawyer in the course of rendering legal services for his client, particularly in cases where the information or work is not communicated to the client or derived from private, confidential communications.
- Section 103 creates a new patient-physician privilege in relation to mental treatment. It is limited to communications made for the purpose of diagnosis or treatment of a mental or emotional condition.
- Section 117 makes clear that parties can agree to the admission of otherwise inadmissible hearsay evidence.
- Section 118 involves a radical reform of the law of hearsay evidence, which has previously been one of the most complex and confused areas of the law of evidence. First hand hearsay evidence is now made admissible subject to the conditions set out in the section.
- Section 178 contains a number of general provisions relating to the application of the Act. Subsection (2) directs the Court to have special regard to the fair application of the Act in respect of a party not represented by lawyer. Subsection (3) ensures that the common law doctrines replaced by the Act do not restrict its interpretation. Subsection (4) directs the Court to construe the Act as a consistent body of law, taking from it as a whole the policy which is to guide the construction of any one section. Where there is no overall policy guidance to be found in the Act as a whole the Courts are directed to resolve doubts not by reference to the old common law or to foreign law but so as to achieve a consistent law of evidence and the most just, expeditious and least costly administration of the law.
- Section 181 provides that the Act will not come into force until 1st January, 1976. This is intended to give the Courts and the legal profession a reasonable time to become acquainted with the provisions of the Act, and also to enable any comments and suggested modifications of its provisions to be considered before it comes into operation.