Evidence Act 1905

PART II

WITNESSES

Compelling attendance of witness by subpoena

4 In every cause or matter in the Supreme Court, and in every case of an examination held under a commission to examine witnesses, it shall be lawful for any party to compel the appearance of any person as a witness by means of a subpoena in the prescribed form which shall be served in the prescribed manner upon the person whose attendance is required.

5 [repealed by 1979:17]

Bringing up prisoner as witness

6 The Supreme Court or a judge, if satisfied that any prisoner, or inmate of a training school established under the Young Offenders Act 1950 [title 10 item 33], is required as a witness in any cause or matter, may order him to be brought before the Supreme Court, and in any such case he shall be brought under the same care and custody, and be dealt with in like manner, as a prisoner brought up for the like purpose by a writ of habeas corpus.

Expenses of witnesses in civil cases

7 Any person subpoenaed to attend as a witness in a civil cause or matter may at the time of attendance apply to the Supreme Court for his expenses, and the Court shall direct the same to an amount not exceed ing such amount as may be prescribed under the Court Fees and Ex penses Act 1971 [title 8 item 7] to be paid by the party at whose instance the subpoena issued.

Preparation of voucher for payment of witnesses in criminal causes

8 (1) As soon as practicable after the conclusion of any criminal cause heard in the Supreme Court, the Registrar shall prepare, and cer tify as correct, a voucher containing the names of all the witnesses who have attended in such cause, and specifying the number of days atten dance of, and the amount payable to, each witness.

Provided that�

(a) any witness who has attended as such in more than one cause on the same day shall receive payment only in re spect of one day's attendance; and

(b) a person attending as a juror who is called as a witness shall not be entitled to receive any payment for any day in respect of which he is entitled to payment as a juror.

(2) In this section "witness" means a person who is subpoe naed, or is bound by a recognizance, to attend the Supreme Court as a witness in any criminal cause.

Rates of payment in criminal cases

9 (1) Without prejudice to the succeeding provisions of this Act, a witness shall be entitled to receive out of the Consolidated Fund upon the certificate of the Registrar, such sum as may be prescribed under the Court Fees and Expenses Act 1971 [title 8 item 7], for each day's atten dance in the Supreme Court.

(2) In this section "witness" means a person who is subpoe naed, or is bound by a recognizance, to attend the Supreme Court as a witness in any criminal cause.

Fees payable to medical and other professional witness

10 Where professional evidence is given by any medical practitioner or other specially qualified person before any court or commission of in quiry, or any examination or analysis in respect of any person or thing is carried out in connection with any such evidence or is made in compli ance with any order or request duly given or made by any public author ity, then in any such case the medical practitioner or other specially qualified person shall be entitled to receive fees at the rates prescribed under the Court Fees and Expenses Act 1971 [title 8 item 7].

Power of Supreme Court to restrict payment of witnesses in certain cases

11 (1) The Supreme Court may in any of the following cases order that the name of any witness is to be omitted from the voucher herein before provided for, and that he is to receive no payment in respect of his attendance as a witness �

(a) if it appears to the Court that the witness has by collu sion with the party at whose instance he was subpoe naed, or bound by recognizance to appear, or otherwise, procured himself to be subpoenaed or bound over with the object of obtaining payment as such witness; or

(b) if the witness, when called to give evidence, does not ap-
pear; or

(c) if the witness, without lawful excuse, neglects or refuses to give evidence, or to answer any question which he is required by the Court to answer; or

(d) if the witness otherwise so misconducts himself as to render it desirable, in the opinion of the Court, that no payment should be made to him.

(2) In this section "witness" means a person who is subpoe naed, or is bound by a recognizance, to attend the Supreme Court as a witness in any criminal cause.

Interpreters

When person may be summoned as interpreter on a criminal charge

12 (1) Whenever on any criminal charge before a court it is found necessary for the purposes of justice to obtain the services of an inter preter, the court may issue a summons to any person to attend at a time and place to be specified in the summons and then and there to act as an interpreter.

Every person so summoned shall obey such summons and shall act as interpreter to the best of his ability until allowed by the court to depart.

Every person so summoned who, without sufficient lawful excuse to be allowed by the court, fails to obey such summons or to interpret to the best of his ability commits an offence.

Punishment on con viction by the court or before any court of sum mary jurisdiction, on an information being laid by the Registrar: $144 besides costs of pros ecution.

(2) In this section�

(a) "court" means any court in or before which any criminal trial is held, and includes �

(i) a magistrate hearing any criminal charge; and

(ii) a Coroner holding an inquest on the body of a deceased person; and

(iii) any public authority holding an inquiry, under lawful authority, into the death of any person on board any British ship, or into any assault al leged to have been committed on board a British ship;

(b) "criminal charge" includes �

(i) any proceedings or trial in respect of any of fence; and

(ii) any inquest or other inquiry in respect of any death from vi olence or accident.

Payment of interpreters

13 (1) Every person attending as an interpreter, and acting as such according to his ability, in any case provided for in section 12, shall be entitled to receive out of the Consolidated Fund for each day's attendance as an interpreter, until discharged by the court, such sum as may be prescribed under the Court Fees and Expenses Act 1971 [title 8 item 7], such payments to be made on the production of a certificate from the court of the number of days on which the interpreter has at tended:

Provided that the court may disallow the payment in whole or in part for any misconduct on the part of the interpreter.

(2) In this section "court" means any court in or before which any criminal trial is held, and includes �

(a) a magistrate hearing any criminal charge; and

(b) a Coroner holding an inquest on the body of a deceased person; and

(c) any public authority holding an inquiry, under lawful au thority, into the death of any person on board any British ship, or into any assault alleged to have been committed on board a British ship.

Non-exclusion of witnesses for interest or crime

14 No person offered as a witness shall be excluded by reason of interest or crime from giving evidence before any court of justice in Bermuda or person having, by law or consent of parties, authority to hear, receive and examine evidence, but any such witness shall, subject to this Act, be competent and compellable to give evidence:

Provided that �

(a) the parties to any action for breach of promise of mar-
riage shall be competent to give evidence in any such action, but no plaintiff in an such action shall succeed in the action, unless his or her testimony is corroborated by some other material evidence in support of such promise;

(b) the parties to any proceeding instituted in consequence of adultery shall be competent to give evidence in such proceeding, but no witness in any proceeding, whether a party to the suit or not, shall be li able 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;

(c) nothing herein contained shall, except as is expressly pro vided, affect any provision of the Wills Act 1988 [title 26 item 2];

(d) no husband shall be compellable to disclose any communi cation made to him by his wife during the mar riage and no wife shall be compellable to disclose any communication made to her by her husband during the marriage; and

(e) nothing herein contained shall, save as is hereinafter ex pressly excepted, render any person compellable to an swer any question tending to criminate himself.

Evidence of marital access

15 The evidence of a husband or wife shall be admissible in any proceedings to prove that marital intercourse did or did not take place between them during any period:

Provided that a husband or wife shall not be compellable in any proceedings to give evidence of the matters aforesaid.

Competency of persons charged with offences and their hus bands or wives: conditions under which their evidence may be given

16 (1) Every person charged with an offence, and the wife or hus band, as the case may be, of the person so charged, shall be a com petent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person, subject to the following conditions �

(a) a person so charged shall not be called as a witness ex cept upon his own application;

(b) the failure of any person charged with an offence, or of the wife or husband, as the case may be, to give evi dence shall not be made the subject of any comment by the prosecution;

(c) the wife or husband of the person charged shall not, ex cept as expressly provided in this or any other Act, be called as a witness ex cept upon the application of the person so charged;

(d) a person charged and called as a witness may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged;

(e) a person charged and called as a witness shall not be asked, and if asked shall not be required to answer, any question tend ing to show that he has committed or been convicted of or been charged with any offence other than that with which he is then charged, or is of bad charac ter, unless �

(i) the proof that he has committed or been con victed of such other offence is admissible evi dence to show that he is guilty of the of fence with which he is then charged; or

(ii) he has personally or by his counsel questioned any witness 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 im putations on the character of the infor mant in the proceedings or any witness for the prosecu tion; or

(iii) he has given evidence against any other person charged with the same offence, or with any other offence tried at the same time as the offence with which he is charged.

(2) Every person called as a witness or, as the case may be, giving evidence on his own behalf, in pursuance of subsection (1) shall, unless otherwise ordered by the court, give his evidence from the

make it; but before such 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.

Cross-examination as to previous statements in writing

21 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 cause or matter without such writing being shown to him; but if it is intended to contradict such witness by the writing his atten tion must, before such contradictory proof may be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:

Provided that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection and the court may thereupon make such use of it for the purposes of the trial as the court may think fit.

Power to question witness as to previous conviction

22 A witness may be questioned as to whether he has previ ously been convicted of any offence, and upon being so questioned, if he either denies or does not admit the fact or refuses to answer, it shall be lawful for the cross-examining party to prove such conviction.

Duty to substantiate with evidence suggestion that witness has given false evidence etc

22A (1) If on cross-examination it is suggested to a witness that he has given evidence which he knows to be false or that his conduct in re lation to an accused person or another party was unlawful or improper or that the witness is a person who should not be believed because of his general character then, without prejudice to section 15(1)(e), there shall be a duty on the party making the allegation to call evidence to substan tiate it.

(2) If an accused person only gives evidence to substantiate an allegation referred to in subsection (1) then he shall only be cross-exam ined on that evidence and his right to remain silent shall not be affected by the giving of such evidence.

(3) If a party fails to substantiate with evidence an allegation referred to in subsection (1) the court shall ignore the allegation and if there is a jury the judge shall instruct the jury to ignore it.

Method of administering and taking oaths

23 (1) Any oath may be administered and taken in the manner and form following, that is to say, the person taking the oath shall hold the New Testa ment, or, in the case of a Jew, the Old Testament, in his uplifted hand, and shall say, or repeat after the officer administering the oath, the words "I swear by Almighty God that . . . . . . . . . . . . . . . . . . . ." followed by the words of the prescribed or usual oath.

(2) The officer administering an oath shall, unless the person about to take the oath voluntarily objects thereto, or is physically inca pable of so taking the oath, administer the oath in manner and form aforesaid without question:

Provided that, in the case of a person who is neither a Christian nor a Jew, the oath shall be administered in any lawful manner.

Validity of oath not affected by absence of religious belief

24 Where an oath has been duly administered and taken the fact that the person to whom the oath was administered had, at the time of taking such oath, no religious belief, shall not for any purpose affect the validity of such oath.

Solemn affirmation permitted instead of oath in certain cases

25 Every person objecting to be sworn, and stating, as the ground of such objection, either that he has no religious belief or that the taking of an oath is contrary to his religious belief shall be permitted to make his solemn affirmation, instead of taking an oath, in all courts and places, and before all officers and persons authorized to administer oaths, and for all purposes where an oath is or shall be required by law, which af firmation shall be of the same force and effect as if such person had taken the oath; and if any person making such affirmation wilfully, falsely, and corruptly affirms any matter or thing which, if deposed upon oath, would have constituted the offence of perjury, he, or, as the case may be, any other person, may be proceeded against as if he had com mitted the offence of perjury.

Form of administration of solemn affirmation

26 Every solemn affirmation shall be administered in the fol lowing form �

You (naming the person affirming) do solemnly, sincerely and truly affirm and declare that (proceeding with the words of the oath pre scribed by law and omitting any words of imprecation or calling to wit ness).

Form of solemn affirmation in writing

27 (1) Every solemn affirmation in writing shall commence as fol lows �

I (name of person affirming) of (place of residence) (occupation or profession) do solemnly, sincerely and truly affirm and declare . . . . . . . . . . . . . . . .

(2) The form in lieu of jurat shall be as follows�

Affirmed at (place) this (day of month) day of (month) 19 .

Before me etc.

PART IIA

HEARSAY EVIDENCE IN CIVIL PROCEEDINGS

Hearsay evidence to be admissible only by virtue of this Act and other statutory provisions, or by agreement

27A In any civil proceedings a statement other than one made by a person while giving oral evidence in those proceedings shall be ad missible as evidence of any fact stated therein to the extent that it is so admissible by virtue of any provision of this or any other Act or by agreement of the parties, but not otherwise.

Admissibility of out-of-court statements as evidence of facts stated

27B (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 the rules of court, be admissible as evidence of any fact stated therein of which di rect oral evidence by him would be admissible.

(2) Where in any civil proceedings a party desiring to give a statement, other than a statement by an expert, 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 evi dence by virtue of this section on behalf of that party before the conclu sion of the examination-in-chief of the person by whom it was made, ex cept�

(i) where before that person is called the court al lows 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 state ment was made to narrate it in the course of his examination-in-chief on the ground that to prevent him from doing so would ad versely 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:

Provided 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 authorized by the court.

Witness's previous statement, if proved, to be evidence of facts stated

27C (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 19, 20 or 21; or

(b) a previous statement made by a person called as afore said is proved for the purpose of rebutting a suggestion that his evidence has been fabricated,

that statement shall by virtue of this subsection be ad missible as evi dence of any fact or matter stated therein of which direct oral evidence by him would be admissible.

(2) Nothing in this Act shall affect any of the rules of law relat ing to the circumstances in which, where a person called as a witness in any civil proceedings is cross-examined on a document used by him to refresh his memory, that document may be made evidence in those pro ceedings; and where a document or any part of a document is received in evidence in any such proceedings by virtue of any such rule of law, any statement made in that document or part by the person using the
docu ment to refresh his memory shall by virtue of this subsection be admis sible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.

Admissibility of certain records as evidence of facts stated

27D (1) Without prejudice to section 27E, in any civil proceed ings a statement contained in a document shall, subject to this section and to rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if the document is, or forms part of, a record compiled by a person acting under a duty from information which was supplied by a person, whether acting under a duty or not, who had, or may reasonably be supposed to have had, per sonal knowledge of the matters dealt with in that information and which, if not supplied by that person to the compiler of the record directly, was supplied by him to the compiler of the record indirectly through one or more intermediaries each acting under a duty.

(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 who originally supplied the information from which the record containing the statement was compiled, 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 without the leave of the court be given in evidence by virtue of this section on behalf of that party before the conclusion of the examination-in-chief of the per son who originally supplied the said information.

(3) Any reference in this section 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 em ployed or for the purposes of any paid or unpaid office held by him.

Admissibility of statements produced by computers

27E (1) In any civil proceedings a statement contained in a doc ument produced by a computer shall, subject to the rules of court, be admissible as evidence of any fact stated therein of which direct oral evi dence would be admissible, if it is shown that the conditions mentioned in subsection (2) are satisfied in relation to the statement and computer in question.

(2) The conditions referred to in subsection (1) are �

(a) that the document containing the statement was pro duced by the computer during a period over which the computer was used reg ularly to store or process infor mation for the purposes of any activities regularly car ried on over that period, whether for profit or not, by any body, whether corporate or not, or by any individual;

(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities in formation of the kind contained in the statement or of the kind from which the informa tion so contained is de rived;

(c) that throughout the material part of that period the com puter was operating properly or, if not, that any respect in which it was not operating properly or was out of op eration during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) that the information contained in the statement repro duces or is derived from information supplied to the computer in the ordinary course of those activities.

(3) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in subsection (2)(a) was regularly performed by computers, whether �

(a) by a combination of computers operating over that pe riod; or

(b) by different computers operating in succession over that pe riod; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more com puters and one or more combinations of computers,

all the computers used for that pur pose during that period shall be treated for the purposes of this Part as constituting a single computer;
and references in this Part to a computer shall be construed accordingly.

(4) In any civil proceedings where it is desired to give a state ment in evidence by virtue of this section, a certificate doing any of the following things �

(a) identifying the document containing the statement and de scribing the manner in which it was produced;

(b) giving such particulars of any device involved in the pro duction of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

and purporting to be signed by a per son occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, whichever is appropriate, shall be evidence of any matter stated in the 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.

(5) For the purposes of this section �

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or, with or without human intervention by means of any appro priate equipment;

(b) where, in the course of activities carried on by any individ ual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly sup plied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or, with or without hu man intervention, by means of any appro priate equipment.

(6) Subject to subsection (3), in this section "computer" means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived therefrom by calculation, comparison or any other process.

Provisions supplementary to ss.27B to 27E

27F (1) Where in any civil proceedings a statement contained in a document is proposed to be given in evidence by virtue of section 27B, 27C or 27E it may, subject to the rules of court, be proved by the pro duction of that document or whether or not that document is still in ex istence by the production of a copy of that document, or of the material part thereof, authenticated in such manner as the court may approve.

(2) For the purpose of deciding whether or not a statement is admissible in evidence by virtue of section 27B, 27C or 27E, the court may draw any reasonable inference from the circumstances in which the statement was made or otherwise came into being or from any other cir cumstances, including, in the case of a statement contained in a docu ment, the form and contents of that document.

(3) In estimating the weight, if any, to be attached to a state ment admissible in evidence by virtue of section 27B, 27C, 27D or 27E, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the state ment and, in particular �

(a) in the case of a statement falling within section 27B(1) or 27C(1) or (2) to the question whether or not the state ment was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any in centive to conceal or misrepresent the facts;

(b) in the case of a statement falling within section 27D(1), to the question whether or not the person who originally supplied the in formation from which the record con taining the statement was compiled did so contempora neously with the occurrence or existence of the facts dealt with in that information, and to the question whether or not that person, or any person concerned with compiling or keeping the record containing the statement, had any incentive to conceal or misrepresent the facts; and

(c) in the case of a statement falling within section 27E(1),
to the question whether or not the information which the information con tained in the statement reproduces or is derived from was supplied to the relevant computer, or recorded for the purpose of being supplied thereto, con temporaneously with the occurrence or existence of the facts dealt with in that information, and 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 by it, had any incen tive to conceal or misrepresent the facts.

(4) For the purpose of any enactment or rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated �

(a) a statement which is admissible in evidence by virtue of section 27B or 27C shall not be capable of corroborating evidence given by the maker of the statement; and

(b) a statement which is admissible in evidence by virtue of section 27D shall not be capable of corroborating evi dence given by the person who originally supplied the information from which the record containing the state ment was compiled.

(5) If any person in a certificate tendered in evidence in civil proceedings by virtue of section 27E(4) wilfully makes a statement mate rial in those proceedings which he knows to be false or does not believe to be true, he commits an offence.

Punishment on conviction on indictment: imprisonment for 2 years or a fine of $5,000 or both such imprisonment and fine.

Admissibility of evidence as to credibility of maker etc. of statement admitted under s.27B or 27D

27G (1) Subject to rules of court, where in any civil proceedings a statement made by a person who is not called as a witness in those pro ceedings is given in evidence by virtue of section 27B�

(a) any evidence which, if that person had been so called, would be admissible for the purpose of destroying or supporting his credibility as a witness shall be admissi ble for that purpose in those pro ceedings; and

(b) evidence tending to prove that, whether before or after he made that statement, that person made, whether orally or in a document or otherwise, another statement inconsistent therewith shall be admissi ble for the pur pose of showing that that person has contradicted him self:

Provided that nothing in this subsection shall enable evidence to be given of any matter of which, if the person in question had been called as a witness and had denied that matter in cross-examination, evidence could not have been adduced by the cross-examining party.

(2) Subsection (1) shall apply in relation to a statement given in evidence by virtue of section 27D as it applies in relation to a statement given in evidence by virtue of section 27B, except that references to the person who made the statement and to his making the statement shall be construed respectively as references to the person who originally sup plied the information from which the record containing the statement was compiled and to his supplying that information.

(3) Whenever a person is not called as a witness and evidence is tendered under subsection (1)(b) tending to prove that he has contra dicted himself then section 27C(1) shall apply to such evidence which shall be admissible as evidence of any fact stated therein.

Admissibility of certain hearsay evidence admissible at common law

27H (1) In any civil proceedings a statement which, if this Act had not been passed would by virtue of any rule of law mentioned in subsec tion (2) have been admissible as evidence of any fact stated therein shall be admissible as evidence of that fact by virtue of this sub section.

(2) The rules of law referred to in subsection (1) are any rules of law�

(a) whereby in any civil proceedings an admission adverse to a party to the proceedings whether made by that party or by another per son, may be given in evidence against that party for the purpose of proving any fact stated in the admission;

(b) whereby in any civil proceedings evidence of a person's rep utation is admissible for the purpose of establishing his good or bad character;

(c) whereby in any civil proceedings involving a question of
pedigree or in which the existence of a marriage is in is sue evidence of reputation or family tradition is admissi ble for the purpose of proving or disproving pedigree or the existence of the marriage, as the case may be; or

(d) whereby in any civil proceedings evidence of reputation or family tradition is admissible for the purpose of prov ing or disproving the existence of any public or general right or of identifying any person or thing.

In this subsection "admission" includes any representation of facts, whether made in words or otherwise.

(3) In so far as any statement is admissible in any civil pro ceedings by virtue of this section it may be given in evidence in those proceedings notwithstanding anything in sections 27B to 27G or in any rules of court and that admissions and statements are only admissible by virtue of this section is so far as they are not capable of being ren dered admissible by section 27B or 27D.

(4) The words in which any rule of law mentioned in subsection (2) is there described are intended only to identify the rule in question and shall not be construed as altering it in any way.

Rules of court

27I (1) Provision shall be made by rules of court as to the pro cedure which, subject to any exceptions provided for in the rules, must be followed and the other conditions which, subject as aforesaid, must be fulfilled before a statement can be given in evidence in civil proceed ings by virtue of section 27B, 27D or 27E.

(2) Rules of court made in pursuance of subsection (1) shall in particular, subject to such exceptions (if any) as may be provided for in the rules�

(a) require a party to any civil proceedings who desires to give in evidence any such statement as is mentioned in that subsection to give to every other party to the pro ceedings such notice of his desire to do so and such particulars of or relating to the statement as may be specified in the rules, including particulars of such one or more of the persons connected with the making or recording of the statement or, in the case of a statement falling within section 27E(1), such one or more of the persons concerned as mentioned in section 27F(3)(c) as the rules may in any case require; and

(b) enable any party who receives such notice as aforesaid by counter-notice to require any person of whom partic ulars were given with the notice to be called as a witness in the proceedings unless that person is dead, or beyond the seas, or unfit by reason of his bodily or mental con dition 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 was connected or concerned as aforesaid and to all the circumstances) to have any recollection of mat ters relevant to the accuracy or otherwise of the statement.

(3) Rules of court made in pursuance of subsection (1) �

(a) may confer on the court in any civil proceedings a dis cretion to allow a statement falling within section 27B(1), 27D(1) or 27E(1) to be given in evidence notwithstanding that any requirement of the rules af fecting the admissi bility of that statement has not been complied with, but except in pursuance of paragraph (b) shall not confer on the court a discretion to exclude such a statement where the requirements of the rules affecting its admissibility have been complied with;

(b) may confer on the court power, where a party to any civil proceedings has given notice that he desires to give in evidence�

(i) a statement falling within section 27B(1) which was made by a person, whether orally or in a document, in the course of giving evi dence in some other legal proceedings (whether civil or criminal); or

(ii) a statement falling within section 27D(1) which is contained in a record of any direct oral evi dence given in some other legal proceed ings (whether civil or criminal),

to give directions on the application of any party to the proceed ings as to whether, and if so on what conditions, the party desiring to give the statement in evidence will be permitted to do so and (where ap plicable) as to the manner in which that statement and any other evi dence
given in those other proceedings is to be proved; and

(c) may make different provision for different circum stances, and in particular may make different provision with respect to state ments falling within section 27B(1), 27D(1) or 27E(1) respectively, and any discretion con ferred on the court by rules of court made as aforesaid may be either a general discretion or a discretion exer cisable only in such circumstances as may be specified in the rules.

(4) Rules of court may make provision for preventing a party to any civil proceedings (subject to any exceptions provided for in the rules) from adducing in relation to a person who is not called as a wit ness in those proceedings any evidence which could otherwise be ad duced by him by virtue of section 27G unless that party has in pur suance of the rules given in respect of that person such a counter-notice as is men tioned in subsection (2)(b).

(5) In deciding for the purposes of any rules of court made in pursuance of this section whether or not a person is fit to attend as a witness, a court may act on a certificate purporting to be a certificate of a registered medical practitioner.

(6) Nothing in this section shall prejudice the generality of sec tion 62 of the Supreme Court Act 1905 [title 8 item 1] or any other Act conferring power to make rules of court.

Interpretation of ss.27A to 27I

27J (1) In this Part, unless the context otherwise requires �

"computer" has the meaning assigned by section 27E;

"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 em bodied 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 aforesaid) of being reproduced therefrom;

"film" includes a microfilm;

"statement" includes any representation of fact, whether made in words or otherwise.

(2) In this Part, any reference to a copy of a document in cludes�

(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 re production of the image or images embodied therein, whether enlarged or not;

(c) in the case of a document falling within both those para graphs, such a transcript together with such a still re production; and

(d) in the case of a document not falling within the said para graph (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.

PART IIB

EVIDENCE OF OPINION AND EXPERT EVIDENCE

Application to statements of opinion

27K (1) Subject to the provisions of this section, Part IIA except section 27E, shall apply in relation to statements of opinion as they ap ply in relation to statements of fact, subject to the necessary modifica tions and in particular the modification that any reference to a fact stated in a statement shall be construed as a reference to a matter dealt with therein.

(2) Section 27D as applied by subsection (1), shall not render admissible in any civil proceedings a statement of opinion contained in a record unless that statement would be admissible in those proceedings if made in the course of giving oral evidence by the person who
originally supplied the information from which the record was compiled; but where a statement of opinion contained in a record deals with a matter on which the person who originally supplied the information from which the record was compiled is (or would if living be) qualified to give oral expert evidence, section 27D, as applied by subsection (1), shall have effect in relation to that statement as if so much of subsection (1) of that section as requires personal knowledge on the part of that person were omitted.

Admissibility of expert opinion and certain expressions of non-ex pert opinion

27L (1) Subject to any rules of court made in pursuance of Part IIA or this Part, where a person is called as a witness in any civil pro ceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

(2) Where a person is called as a witness in any civil proceed ings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying rel evant facts personally perceived by him, is admissible as evidence of what he perceived.

(3) In this section "relevant matter" includes an issue in the pro ceedings in question.

Evidence of foreign law

27M (1) A person who is suitably qualified to do so on account of his knowledge or experience is competent to give, in civil proceedings, expert evidence as to the law of any country or territory outside Bermuda, irre spective of whether he has acted or is entitled to act as a legal practi tioner there.

(2) Where any question as to the law of any country or territory outside Bermuda, with respect to any matter has been determined (whether before or after 4 January 1988) in any such proceedings as are mentioned in subsection (4), then in any civil proceedings (not being pro ceedings before a court which can take judicial notice of the law of that country, territory or part with respect to that matter)�

(a) any finding made or decision given on that question in the first-mentioned proceedings shall, if reported or recorded in citable form, be admissible in evidence for the purpose of proving the law of that country, territory or part with respect to that matter; and

(b) if that finding or decision, as so reported or recorded, is ad duced for that purpose, the law of that country, terri tory or part with re spect to that matter shall be taken to be in accordance with that finding or decision unless the contrary is proved:

Provided that paragraph (b) shall not apply in the case of a find ing or decision which conflicts with another finding or decision on the same question adduced by virtue of this subsection in the same pro ceedings.

(3) Except with the leave of the court, a party to any civil pro ceedings shall not be permitted to adduce any such finding or decision as is mentioned in subsection (2) by virtue of that subsection unless he has in accordance with rules of court given to every other party to the proceedings notice that he intends to do so.

(4) The proceedings referred to in subsection (2) are the fol lowing, whether civil or criminal, namely�

(a) proceedings at first instance in the Supreme Court;

(b) appeals arising out of any such proceedings as are men tioned in paragraph (a);

(c) proceedings before the Judicial Committee of the Privy Coun cil on appeal (whether to Her Majesty in Council or to the Judicial Com mittee as such) from any decision of any court outside Bermuda.

(5) For the purposes of this section a finding or decision on any such question as is mentioned in subsection (2) shall be taken to be re ported or recorded in citable form, if, but only if, it is reported or recorded in writing in a report, transcript or other document which, if that question had been a question as to the law of Bermuda, could be cited as an authority in legal proceedings in Bermuda.

Rules of court with respect to expert reports and oral expert evi dence

27N (1) If and so far as rules of court so provide, section 27B(2) shall not apply to statements (whether of fact or opinion) contained in expert reports.

(2) In so far as they relate to statements (whether of fact or opinion) contained in expert reports, rules of court made in pursuance of section 27I(1) as to the procedure to be followed and the other conditions to be fulfilled before a statement can be given in evidence in
civil pro ceedings by virtue of section 27B shall not be subject to the require ments of section 27I(2).

(3) Notwithstanding any enactment or rule of law by virtue of which documents prepared for the purpose of pending or contemplated civil proceedings or in connection with the obtaining or giving of legal ad vice are in certain circumstances privileged from disclosure, provision may be made by rules of court�

(a) for enabling the court in any civil proceedings to direct, with respect to medical matters or matters of any other class which may be specified in the direction, that the parties or some of them shall each by such date as may be so specified (or such later date as may be permitted or agreed in accordance with the rules) disclose to the other or others in the form of one or more expert reports the expert evidence on matters of that class which he proposes to adduce as part of his case at the trial; and

(b) for prohibiting a party who fails to comply with a direc tion given in any such proceedings under rules of court made by virtue of paragraph (a) from adducing in evi dence by virtue of section 27B, except with the leave of the court, any statement (whether of fact or opinion) contained in any expert report whatsoever in so far as that statement deals with matters of any class specified in the direction.

(4) Provision may be made by rules of court as to the condi tions subject to which oral expert evidence may be given in civil pro ceedings.

(5) Without prejudice to the generality of subsection (4), rules of court made in pursuance of that subsection may make provision for prohibiting a party who fails to comply with a direction given as men tioned in subsection (3)(b) from adducing, except with the leave of the court, any oral expert evidence whatsoever with respect to matters of any class specified in the direction.

(6) Any rules of court made in pursuance of this section may make different provision for different classes of cases, for expert reports dealing with matters of different classes, and for other different circum stances.

(7) References in this section to an expert report are references to 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.

Interpretation and application to arbitration proceedings etc. and savings

27O (1) In this Part, unless the context otherwise requires, "civil proceedings" includes, in addition to civil proceedings in any of the ordi nary courts of law�

(a) civil proceedings before any other tribunal, being pro ceedings in relation to which the strict rules of evidence apply; and

(b) an arbitration or reference whether under an enactment or not,

but does not include civil proceedings in relation to which the strict rules of evidence do not apply.

(2) In this Part, unless the context otherwise requires �

"court" in relation to an arbitration or reference, means the ar bitrator or umpire and, in relation to proceedings before a tri bunal (not being one of the ordinary courts of law), means the tribunal;

"legal proceedings" includes an arbitration or reference, whether under an enactment or not.

(3) Any reference in this Part to any other enactment is a refer ence thereto as amended, and includes a reference thereto as applied, by or under any other enactment.

(4) Nothing in this Part shall prejudice the operation of any en actment which provides (in whatever words) that any answer or evidence given by a person in specified circumstances shall not be admissible in evidence against him or some other person in any proceedings or class of proceedings (however described).

In this subsection the reference to giving evidence is a reference to giving evidence in any manner, whether by furnishing information making dis covery, producing documents or otherwise.

(5) Nothing in this Part shall prejudice�

(a) any power of a court, in any civil proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion; or

(b) the operation of any agreement (whenever made) be tween the parties to any civil proceedings as to the evi-
dence which is to be ad missible (whether generally or for any particular purpose) in those pro ceedings.

(6) Where, by reason of any defect of speech or hearing from which he is suffering, a person called as a witness in any civil proceed ings gives his evidence in writing or by signs, that evidence is to be treated for the purposes of this Act as being given orally.

PART IIC

THE TAKING OF EVIDENCE REQUIRED FOR PROCEEDINGS IN OTHER JURISDICTIONS

Application to Supreme Court for assistance in obtaining ev idence for civil proceedings in other court

27P Where an application is made to the Supreme Court (in this Part referred to as "the Court") for an order for evidence to be obtained in Bermuda, and the Court is satisfied�

(a) that the application is made in pursuance of a request is sued by or on behalf of a court or tribunal (hereinafter referred to as the "requesting court") exercising jurisdic tion similar to that of the Supreme Court in a country or territory outside Bermuda; and

(b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which have been instituted before the requesting court,

the Court shall on being further satisfied that there is an inten tion that the proceedings should continue to trial, have the powers con ferred on it by the following provisions of this Part.

Power of Court to give effect to appli cation for assistance

27Q (1) Subject to this section, the Court shall have power, on any such application as is mentioned in section 27P, by order to make such provision for obtaining evidence in Bermuda as may appear to the Court to be appropriate for the purpose of giving effect to the request in pur suance of which the application is made; and any such order may re quire a person specified therein to take such steps as the Court may consider appropriate for that purpose.

(2) Without prejudice to the generality of subsection (1) but subject to this section, an order under this section may in particular, make provision �

(a) for the examination of witnesses, either orally or in writing;

(b) for the production of documents;

(c) for the inspection, photographing, preservation, custody or detention of any property including any land, chattel or other corporeal property of any description;

(d) for the taking of samples of any such property and the car rying out of any experiments on or with any such property;

(e) for the medical examination of any person;

(f) without prejudice to paragraph (e), for the taking and test ing of samples of blood from any person.

(3) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the Court (whether or not the proceedings are of the same description as those to which the application for the order relates); but this subsec tion shall not preclude the making of an order requiring a person to give testimony, either orally or in writing, otherwise than on oath where this is asked for by the requesting court.

(4) An order under this section shall not require a person�

(a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in this pos session, custody or power; or

(b) to produce any documents other than particular docu ments specified in the order as being documents ap pearing to the Court to be, or to be likely to be, in his possession, custody or power.

(5) A person who, by virtue of an order under this section, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time as on attendance as a witness in civil proceedings before the Court.

Privilege of witnesses

27R (1) A person shall not be compelled by virtue of an order under section 27Q to give any evidence which he could not be compelled to give�

(a) in civil proceedings in Bermuda; or

(b) subject to subsection (2), in civil proceedings in the country or territory in which the requesting court exer cises jurisdiction.

(2) Subsection (1)(b) shall not apply unless the claim of the person in question to be exempt from giving the evidence is either �

(a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are ful filled); or

(b) conceded by the applicant for the order,

and where such a claim made by any person is not supported or con ceded as aforesaid he may, subject to the other provisions of this section, be required to give the evidence to which the claim relates but that evi dence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.

(3) Without prejudice to subsection (1), a person shall not be compelled by virtue of an order under section 27Q to give any evidence if his doing so would be prejudicial to the security or national interests of Bermuda or any country in the Commonwealth; and a certificate signed by or on behalf of the Governor to the effect that it would be so prejudi cial for that person to do so shall be conclusive evidence of that fact.

(4) In this section references to giving evidence include refer ences to answering any question and to producing any document and the re

Bermuda Consolidated Legislation

Evidence Act 1905