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5 [repealed by 1979:17]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 reference in subsection (2) to the transmission of evidence given by a person shall be construed accordingly.

Power of court to assist in obtaining evidence for criminal proceed ings in overseas courts

27S (1) The provisions of sections 27P to 27R shall have effect in relation to the obtaining of evidence for the purposes of criminal pro ceedings as they have effect in relation to the obtaining of evidence for the purposes of civil proceedings except that no order under section 27Q shall make provision otherwise than for the examination of witnesses, either orally or in writing, or for the production of documents.

(2) In its application by virtue of subsection (1) section 27R(1)(a) and (b) shall have effect as if for the words "civil proceedings" there were substituted the criminal proceedings".

(3) Nothing in this section applies in the case of criminal pro ceedings of a political character.

Power of court to assist in obtaining evidence for interna tional pro ceedings

27T (1) The Governor may by order direct that, subject to such ex ceptions, adaptations or modifications as may be specified in the or der, sections 27P to 27R shall have effect in relation to international pro ceedings of any description specified in the order.

(2) An order under this section may direct that the provisions of the law relating to perjury shall have effect in relation to international proceedings to which the order applies as if they were proceedings before the Court.

(3) In this section "international proceedings" means proceed ings before the International Court of Justice or any other court, tri bunal, commission, body or authority, whether consisting of one or more per sons, which in pursuance of any international agreements or any resolu tion of the General Assembly of the United Nations, exercises any juris diction or performs any functions of a judicial nature or by way of arbi tration, conciliation or inquiry or is appointed (whether permanently or temporarily) for the purpose of exercising any jurisdiction or perform ing ally such functions.

Rules of Court

27U The power to make rules of court under section 62 of the Supreme Court Act 1905 [title 8 item 1] shall include power to make rules of court�

(a) as to the manner, which shall include the parties to be heard, in which any such application as is mentioned in section 27P is to be made;

(b) subject to this Act, as to the circumstances in which an or der can be made under section 27Q; and

and any such rules may include such incidental, supplementary and consequential provisions as may be considered necessary or expedient.

False unsworn statement under this Part

27V (1) For the purposes of section 119 of the Criminal Code [title 8 item 31] (which relates to the offence of perjury) any person who gives evidence by virtue of this Part shall be deemed to be giving evidence in a
judicial proceeding.

(2) If any person, in giving any testimony, either orally or in writing, otherwise than on oath, where required to do so by an order un der this Part makes a statement �

(a) which he knows to be false in a material particular; or

(b) which is false in a material particular and which he does not believe to be true,

he commits an offence.

Punishment on conviction on indictment: imprison ment for 2 years or a a fine of $10,000 or both such imprisonment and fine.

Effect of subpoena

27W For the purposes of this Part a reference in a subpoena to atten dance at a trial shall be construed as if it included a reference to atten dance before an examiner or commissioner appointed by the Court or a judge thereof in any cause or matter in that Court.

Transitional

27X [omitted]

This Part not to bind Crown

27Y Nothing in this Part shall be construed as enabling any court to make an order that is binding on the Crown or on any person in his ca pacity as an officer or servant of the Crown.

Interpretation

27Z In this Part, unless the context otherwise requires �

"civil proceedings", in relation to the requesting court, means proceedings in any civil or commercial matter;

"requesting court" has the meaning assigned in section 27P;

"request" includes any commission, order or other process is sued by or on behalf of the requesting court.

PART III

[this Part of the Act, as printed, incorporates the former Part XXVIII of the Criminal Code sections 32 to 39 inclusive]

EVIDENCE IN CRIMINAL CAUSES

Proof of criminal intent

28 A court or jury, in determining whether an accused person has committed an offence, �

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circum stances.

Proof by written statement

29 (1) In any criminal proceedings, other than proceedings un der the Indictable Offences Act 1929 [title 8 item 32], a written statement by any person shall, if such of the conditions mentioned in subsection (2) as are applicable are satisfied, be admissible as evidence to the like ex tent as oral evidence to the like effect by that person.

(2) The conditions are as follows�

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prose cution if he wilfully stated in it anything which he knew to be false or did not believe to be true;

(c) before the hearing at which the statement is tendered in evidence. a copy of the statement is served, by or on be half of the party proposing to tender it, on each of the other parties to the proceedings; and

(d) none of the other parties or their counsel, within seven days from the service of the copy of the statement, serves a notice on the party so proposing objecting to the statement being tendered in evidence under this section:

Provided that the conditions mentioned in paragraph (c) and (d) shall not apply if the parties agree before or during the hearing that the statement shall be so tendered.

(3) The following provisions shall have effect in relation to any written statement tendered in evidence under this section �

(a) if the statement is made by a person under the age of twenty-one, it shall give his age;

(b) if it is made by a person who cannot read it, it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the state ment to the effect that it was so read; and

(c) if it is made by a person who cannot understand the En glish language it shall be made in the language of the person making it and there shall be attached thereto a translation by an interpreter and a declaration by that interpreter that he has well and truly interpreted the statement to the best of his ability; and

(d) if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under sub section (2)(c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to in spect that document or a copy thereof.

(4) Notwithstanding that a written statement made by any per son may be admissible as evidence by virtue of this section�

(a) the party by whom or on whose behalf a copy of the state ment was served may call that person to give evi dence; and

(b) the court may, of its own motion or on the application of any party to the proceedings, require that person to at tend before the court to give evidence.

(5) An application under subsection (4)(b) to the Supreme Court may be made before the hearing and on any such application the powers of the Court shall be exercisable by a judge.

(6) So much of any statement as is admitted in evidence shall, unless the court otherwise directs, be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud.

(7) Any document or object referred to as an exhibit and iden tified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement.

(8) A document required by this section to be served on any person may be served�

(a) by delivering it to him or his counsel; or

(b) by addressing it to him and leaving it at his usual or last known place of abode or place of business or by ad dressing it to his counsel and leaving it at his counsel's office; or

(c) by sending it in a registered letter addressed to him at his usual or last known place of abode or place of busi ness or addressed to his counsel at his counsel's office;

(d) in the case of a body corporate, by delivering it to the sec retary or clerk of the body at its registered or princi pal office or sending it in a registered letter addressed to the secretary or clerk of that body at that office.

Proof by formal admission

30 (1) Subject to this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the pur pose of those proceedings by or on behalf of the prosecutor or the ac cused per son, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.

(2) Any admission under this section�

(a) may be made before or at the proceedings;

(b) if made otherwise than in open court, shall be in writing;

(c) if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a
body corporate, shall purport to be signed by a director or manager, or the secretary or clerk; or some other similar officer of the body corporate;

(d) if made on behalf of an accused person who is an individ ual, shall be made by his counsel;

(e) if made at any stage before the trial by an accused per son who is an individual and who is represented at his trial by counsel, must be approved by his counsel (whether at the time it was made or subse quently) before or at the proceedings in question.

(3) An admission under this section for the purpose of pro ceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).

(4) An admission under this section may, with the leave of the court, be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same mat ter.

Notice of alibi

31 (1) On a trial on indictment the accused person shall not, with out the leave of the court, adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of partic ulars of the alibi.

(2) Without prejudice to subsection (1), on any such trial the accused person shall not, without the leave of the court, call any other person to give evidence in support of an alibi unless�

(a) the notice under that subsection includes the name and address of the witness or, if the name and address is not known to the accused person at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness;

(b) if the name or the address is not included in that notice, the court is satisfied that the accused person, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name and ad dress would be ascertained;

(c) if the name or the address is not included in that notice, but the accused person subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness, he forthwith gives notice of the name, address or other in formation, as the case may be; and

(d) if the accused person is notified by or on behalf of the pros ecutor that the witness has not been traced by the name or at the ad dress given, he forthwith gives notice of any such information which is then in his possession or, on subsequently receiving any such informa tion, forthwith gives notice of it.

(3) The court shall not refuse leave under this section if it ap pears that the accused person was not informed in accordance with sec tion 20 of the Indictable Offences Act 1929 [title 8 item 32], of the re quirements of this section.

(4) Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi.

(5) Any notice purporting to be given under this section on be half of the accused person by his counsel shall, unless the contrary is proved, be deemed to be given with the authority of the accused person.

(6) A notice under subsection (1) shall either be given in court during, or at the end of, the proceedings before a magistrate conducting the examination of witnesses under the Indictable Offences Act 1929 [title 8 item 32], or be given in writing to the prosecutor, and a notice un der subsection (2)(c) or (d) shall be given in writing to the prosecutor.

(7) A notice required by this section to be given to the prose cutor may be given by delivering it to him or by sending it by registered letter to him, or, in the case of a prosecution brought by the Crown, by delivering it to the Attorney-General.

(8) In this section�

"evidence in support of an alibi" means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was un likely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

"the prescribed period" means the period of ten days from the date on which the accused person was committed for trial by the magis trate.

Corroboration of evidence

32 (1) Evidence corroborates other evidence in criminal proceedings if, being admissible in those proceedings, it tends to confirm that other evidence.

(2) Every rule (not being a rule laid down by a statutory provision)�

(a) requiring any evidence in criminal proceedings to be corroborated by other evidence; or

(b) requiring the judge in criminal proceedings to instruct the jury whether any evidence is or is not capable of corroborating, or does or does not in fact corroborate, other evidence; or

(c) requiring the judge in criminal proceedings to warn the jury of the danger of convicting an accused person on uncorroborated evidence,

is abrogated.

(3) Nothing in subsection (2)�

(a) precludes a judge from advising a jury to consider, in their discretion, whether evidence ought to be corroborated by other evidence; or

(b) excuses a judge from otherwise assisting a jury in their consideration of any evidence,

where the interests of justice warrant.

[Section 32 is substituted by 1994:20 effective 1 August 1994]

Evidence of authority for institution of prosecution

33 The averment in an indictment that the prosecution is in stituted by the direction of the Attorney-General, or at the request of the Gov ernment of any State, is sufficient evidence of the fact, until the con trary is shown.

Proof of intention to defraud

34 On the trial of a person charged with any offence of which an intent to injure or deceive or defraud, or an intent to enable another per son to deceive or defraud, is an element, it is not necessary to prove an intent to injure, or to deceive or defraud, any particular person, or an intent to enable any particular person to deceive or defraud any particu lar person.

Evidence on trials for perjury and cognate offences

35 (1) On the trial of a person charged with an offence of which the giving of false testimony by any person at the trial of a person charged with an offence is an element, a certificate setting out the sub stance and effect only, without the formal parts, of the indictment, or information, and the proceedings at the trial, and purporting to be signed by the officer having the custody of the records of the court where the indictment or information was tried, or by his deputy, is sufficient evidence of the trial, without proof of the signature or official character of the person who appears to have signed the certificate.

(2) Such fee as may be prescribed under the Court Fees and Expenses Act 1971 [title 8 item 7], may be demanded by the person fur nishing the certificate.

Evidence on trial for defamation

36 On the trial of a person charged with the unlawful publication of defamatory matter which is contained in any periodical, after evidence sufficient in the opinion of the court has been given of the publication by the accused person of the number or part of the periodical containing the matter complained of, other writings or prints purporting to be other numbers or parts of the same periodical previously or subsequently pub lished, and containing a printed statement that they were published by or for the accused person, are admissible in evidence on either side, without further proof of publication of them.

Evidence on certain charges of stealing

37 (1) On the trial of a person charged with stealing, while em ployed in the public service, money which was the property of Her Majesty, or which came into the possession of such person by virtue of his employment, or charged with stealing, while a clerk or servant, money which was the property of his employer, or which came into his possession on account of his employer, an entry in any book of account kept by the accused person, or kept in, under, or subject to, his charge or supervision, purporting to be an entry of the receipt of any money, is evidence that the money so purporting to have been received was so re ceived by him.

(2) On the trial of a person charged with any such offence, it is not necessary to prove the stealing by the accused person of any specific sum of money, if, on examination of the books of account or entries kept or made by him, or kept or made in, under, or subject to, his charge or supervision, or by any other evidence, there is proof of a general defi ciency, and if the jury are satisfied that the accused person stole the de ficient money or any part of it.

Evidence on charges of receiving

38 (1) On the trial of a person charged with having received goods knowing them to be stolen, evidence may be given at any stage of the proceedings that there was found in his possession other property stolen within the preceding period of twelve months, and such evidence may be taken into consideration for the purpose of proving that he knew the property to be stolen which forms the subject of the proceedings taken against him.

(2) Where, on the trial of a person charged with having received stolen goods knowing them to be stolen, evidence has been given that they were found in his possession, then, if he has, within five years im mediately preceding, been convicted of any offence involving fraud or dishonesty, evidence of his previous conviction may be given at any stage of the proceedings, and may be taken into consideration for the purpose of proving that he knew such goods to be stolen, if not less than seven days' notice in writing has been given to him that proof is intended to be given of such previous conviction; and it shall not be necessary for the purposes of this section to set out in the indictment such previous con viction.

Evidence on charges relating to seals and stamps

39 On the trial of a person charged with any offence relating to any seal or stamp used for the purpose of the public revenue or of the Post Office, in any part of Her Majesty's dominions, or in any foreign state, a despatch from one of Her Majesty's Principal Secretaries of State trans mitting to the Governor any stamp, mark, or impression, of a die, plate or other instrument, provided, made, or used by or under the di rection of the proper authority of the country in question, for the purpose of ex pressing or denoting any stamp duty or postal charge, is admissible as evidence of the facts stated in the despatch; and the stamp, mark, or im pression, so transmitted, may be used by the court and jury and by wit nesses for the purposes of comparison.

Calling of accused person as witness

40 Where the only witness to the facts of the case called by the de fence is the person charged, he shall be called as a witness immedi ately after the close of the evidence for the prosecution.

Determination of right of reply

41 Where the right of reply depends upon the question whether evi dence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.

Reception of unsworn evidence of children in criminal causes

42 (1) Where, in any proceeding for any offence, a child in re spect of whom the offence is charged to have been committed, or any other child of tender years who is tendered as a witness, does not in the opin ion of the court understand the nature of an oath, then if, in the opinion of the court, the child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth, such evidence may be received though not given upon oath; and the evidence of any child, though not given upon oath, but otherwise taken and reduced into writing in accordance with the In dictable Of fences Act 1929 [title 8 item 32], shall be deemed to be a de position within the meaning of that Act:

Provided that a person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of subsection (1) and given on behalf of the prosecution is corroborated.

(2) Any person whose evidence is admitted by virtue of subsec tion (1), and any other person, shall, for the purposes of any proceedings taken against either such person in respect of the giving of false testi mony, be treated as if the evidence had been given on oath.

[Section 42 amended by 1994:20 effective 1 August 1994]

Reception of trade or business records

43 (1) In any proceedings for any offence where direct oral evi dence of a fact would be admissible, any statement contained in a docu ment and tending to establish that fact shall, on production of the doc ument, be admissible as evidence to that fact if�

(a) the document is, or forms part of, a record relating to any trade or business and is compiled, in the course of that trade or busi ness, from information supplied (whether directly or indirectly) by per sons who have, or may reasonably be supposed to have, personal knowl edge of the matters dealt within the information they supply; and

(b) the person who supplied the information recorded in the record in question is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reason able diligence be identi fied or found, or cannot reasonably be expected (having regard to the time which has elapsed since he supplied the in formation and to all the circumstances) to have any recollection of the matters dealt with in the informa tion he supplied.

contemporaneously with the occurrence or ex istence of the facts dealt with in that informa tion; and

(ii) to the question whether or not that person, or any other person concerned with compiling or keeping the record containing the statement, had any incentive to conceal or misrepresent the fact; and

(b) in the case of a statement falling within section 43B �

(i) to the question whether or not the information which the information contained in the state ment reproduces or is derived from was supplied to the relevant computer, or recorded for the purpose of being supplied to it, contemporane ously with the occurrence or existence of the facts dealt with in that information; and

(ii) to the question whether or not any person con cerned with the supply of information to that computer, or with the operation of that com puter or any equipment by means of which the document containing the statements was pro duced by it, had any incentive to conceal or mis represent the facts.

Supplementary

43D (1) In this Part �

"copy" and "statement" have the same meanings as in Part IIA ;

"proceedings" means criminal proceedings.

(2) Nothing in this Part shall prejudice�

(a) the admissibility of any evidence that would be admissi ble apart from this Part; or

(b) any power of any court to exclude evidence (whether by pre venting questions from being put or otherwise) at its discretion.

PART IV

PROOF OF DOCUMENTS

Public and official documents

Proof of proclamations, orders, or other statutory instru ments

44 (1) Evidence, prima facie, of any proclamation, order or other statutory instrument issued before or after the passing of this Act by Her Majesty, or by the Privy Council, also of any proclamation, order, or other statutory instrument issued before or after the passing of this Act by or under the authority of any such Department of the Government of the United Kingdom or officer as is mentioned in the first column of the Third Schedule, may be given in all courts, and in all legal proceed ings whatsoever, in all or any of the following modes �

(a) by the production of the London or Edinburgh Gazette, purporting to contain such proclamation, order, or other statutory in strument; or

(b) by the production of a copy of such proclamation, order, or other statutory instrument purporting to be printed under the authority of the Legislature, or under any offi cial authority in Bermuda; or

(c) by the production, in the case of any proclamation, or der, or other statutory instrument issued by Her Majesty or by the Privy Council, of a copy or extract purporting to be certified to be true by the Clerk of the Privy Council or by any of' the Lords or others of the Privy Council, and in the case of any proclamation, order, or other statutory instrument issued by or under the authority of any of the said Depart ments or officers, by the produc tion of a copy or extract purporting to be certified to be true by the person or persons specified in the second col umn of the Third Schedule in connection with such Department or offi cer.

(2) Any copy or extract made in pursuance of this section may be in print or in writing, or partly in print and partly in writing.

Proof of statutory instrument

44A (1) Evidence, prima facie, of any statutory instrument made
before or after the passing of this Act in Bermuda, by any person, Gov ernment Board or authority, may be given in all courts, and in all legal proceedings whatsoever �

(a) by the production of the Gazette purporting to contain such statutory instrument; or

(b) by the production of a copy of such statutory instrument purporting to be printed under the authority of the Leg islature, or under any official authority in Bermuda.

(2) The method of proving a statutory instrument authorized by this section shall be in addition to any other method of proving such in strument.

Proof of location of the baselines of the territorial waters

44B In any legal proceedings a certificate issued by or under the au thority of the Deputy Governor stating the location of any baseline estab lished by Her Majesty by the Bermuda (Territorial Sea) Order in Council 1988 shall be conclusive evidence of what is stated in the certifi cate.

Punishment of certain offences relating to forgery etc. of statutory instruments

45 Any person�

(a) who prints any copy of any proclamation, order, or other statutory instrument, which falsely purports to be printed under the authority of the Legislature, or under any official authority in Bermuda, or tenders in evidence any copy of any proclamation, order or other statutory instrument which falsely purports to have been printed as aforesaid, knowing that the proclamation, order or other statutory in strument was not so printed; or

(b) who forges or tenders in evidence, knowing the same to have been forged, any certificate under the provisions of section 44A authorized to be annexed to a copy of, or extract from, any procla mation, order, or other statutory instrument, commits an offence against this Act:

Punishment on conviction on indictment: imprisonment for 2 years.

Proof of acts of state etc.

46 Any proclamation, treaty, or other act of state of any part of Her Majesty's dominions or of any Foreign State may be proved in any court or before any person having by law, or consent of parties, authority to hear, receive and examine evidence, either by an examined copy, or by a copy purporting to be sealed with the seal of that part of Her Majesty's dominions or of the Foreign State to which the original document be longs.

Judicial notice of Judge's signatures

47 All courts, and every person having by law or by consent of par ties, authority to hear, receive and examine evidence, shall take judi cial notice of the signature of any of the Judges of the Supreme Court, or of the Supreme Court of Judicature in England, if such signature is at tached or appended to any decree, order, certificate, or other judicial or official document.

Proof of judgments and judicial proceedings in courts out of Bermuda

48 Any judgment, decree, order, or other judicial proceeding of, and any affidavit, pleading or other document filed or deposited in, any court of justice in the United Kingdom or in any part of Her Majesty's domin ions, or in any Foreign State, may be proved in any court or before any person having by law, or by consent of parties, authority to hear, re ceive and examine evidence either by an examined copy or by a copy purport ing to be sealed with the seal of the court to which the original document belongs, or in the event of the court having no seal, to be signed by the judge, or if there is more than one judge, by any one of the judges of the said court, if such judge attaches to his signature a state ment in writing on the said copy that the court whereof he is a judge has no seal.

Proof of wills in causes and matters

49 (1) Subject to the right of any person to invalidate, disprove, or set aside, any will by lawful and equitable causes, any of the following documents shall be allowed and taken prima facie as good proof of such will in all causes and matters �

(a) the probate of a will granted in Bermuda in accordance with law;

(b) the probate of a will in the usual form, or an original will with the probate thereof, or an official copy of such will
and a probate under the seal of the Prerogative Court of Canterbury, or under the seal of any other court or offi cer authorized to grant probate of wills in the United Kingdom or any other part of Her Majesty's dominions;

(c) a will with the probate thereof, or any official copy of a will and probate heretofore granted in the United King dom or in any other part of Her Majesty's dominions un der the seal of the appropriate au thority in the United Kingdom or in that other part of Her Majesty's do minions where such original will has been proved, and is deposited and recorded;

(d) an official copy of a will and probate certified under the seal of any part of Her Majesty's dominions where such will has been proved and recorded;

(e) the probate of a will granted in any Islands of the West Indies (not being any part of Her Majesty's dominions) or in any part of the United States of America under the seal of the court or officer authorized to grant probate of wills in those places respectively, or an original will with the probate thereof under such seal, or any official copy of such will and probate under the seal of any such court or officer as aforesaid.

(2) The documents mentioned in subsection (1) shall be recorded in the Registry and copies thereof attested by the Registrar or by the As sistant Registrar shall be admitted in evidence in as full a manner as the documents themselves so directed to be recorded would have been.

Proof of registers of British ships

50 (1) The register of any vessel kept under any Act of the Par liament of the United Kingdom relating to the registry of British ships may be proved either by the production of the original or by an examined copy thereof, or by a copy thereof purporting to be certified under the hand of the person having the charge of the original; and every such register or copy of a register, and every certificate of registry, granted un der any Act of the Parliament of the United Kingdom relating to the reg istry of British ships, and purporting to be signed as required by law, shall be received in any court in Bermuda or before any person having by law, or by consent of parties, authority to hear, receive and examine evi dence, as proof, prima facie, of all the matters contained or recited in such register, when the register or such copy thereof as aforesaid is pro duced, and of all the matters contained or recited in, or endorsed on, such certificate of registry when such certificate is produced.

(2) Every person having charge of a register of British ships as mentioned subsection (1) shall furnish such certified copy to any person applying at a reasonable time for the same, upon payment of such sum as may be prescribed under the Court Fees and Expenses Act 1971 [title 8 item 7].

Prints from films of Government documents etc.

50A (1) A print, whether enlarged or not, purporting to be made from a film of a document in the possession of the Government or any other person shall be admitted in evidence in any criminal or civil pro ceedings before any court on its production, upon proof that�

(a) while the document was in the custody or control of the Government or the person concerned the film was taken in order to keep a permanent record thereof; and

(b) the document photographed �

(i) was subsequently destroyed, whether deliber ately or other wise;

(ii) was so damaged as to be wholly or partly indeci pherable;

(iii) was lost; or

(iv) had passed out of the custody or control of the Government or the person concerned.

(2) Proof�

(a) that a print is made from a film of a document in the pos session of the Government or any person; and

(b) of compliance with the conditions in subsection (1),

may be given in respect of any document or groups of documents by a public officer, by an employee of the person concerned or by the person concerned himself, orally or by a certificate purporting to be signed by such public officer, employee or person.

(3) A certificate under subsection (2) shall be admitted in evi dence in any criminal or civil proceedings before any court on its pro-

party in court, or as if the same witness were person ally present in court and gave evidence of the due execution thereof.

Proof of deeds executed abroad out of Her Majesty's domin ions

54 Any conveyance, deed, letter of attorney or other power in writing heretofore executed or hereafter to be executed out of Bermuda in any place out of the United Kingdom or Her Majesty's dominions the exe cution of which is proved by the acknowledgment of the party so exe cuting the same or by the affidavit or declaration in writing of one of the attesting witnesses made before any British ambassador, minister or consular officer, or before the chief or senior judge of any court of justice, or before any notary public, and attested by a certificate under the hand of such officer, judge or notary public before whom such acknowledg ment, affidavit or declaration was made and the official seal of such British ambassador, minister or consular officer or the seal of such court, or the notarial seal of such notary public, and endorsed on or an nexed to the document proved, shall be received in any court in Bermuda as sufficiently proved as if the same acknowledgment were made by the party in court or as if the same witness were personally pre sent in court and gave evidence of the due execution thereof.

Admissibility of examined or certified copies of books or doc uments of public character

55 (1) Whenever in the opinion of a court any book or other doc ument is of such a public character as to be admissible in evidence on its mere production from the proper custody, and no Act or Act of the Parliament of the United Kingdom exists which renders its contents provable by means of a copy, any copy thereof, or extract therefrom, shall be admissible in evidence �

(a) if it is proved to be an examined copy or extract; or

(b) if it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.

(2) Without prejudice to anything in the Supreme Court (Records) Act 1955 [title 8 item 2], or in the Registrar General (Recording of Documents) Act 1955 [title 28 item 2], such officer shall furnish such certified copy or extract to any person applying at a reasonable time for the same upon payment of such sum as may be prescribed under the Court Fees and Expenses Act 1971 [title 8 item 7].

Copies of entries in bankers' books receivable in evidence

56 Subject to the provisions hereinafter appearing a copy of any entry in a banker's book shall in all causes, arbitrations or proceed ings in which evidence may be given be received as prima facie evidence of such entry, and of the matters, transactions and accounts therein recorded.

Proof that a book is a banker's book

57 (1) A copy of an entry in a banker's book shall not be re ceived in evidence unless it is first proved that the book was, at the time of making the entry, one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody or control of the bank.

(2) Such proof may be given by the banker or by a partner or officer of the bank, and may be given orally or by an affidavit sworn be fore any commissioner or person authorized to take affidavits in the Supreme Court.

Verification of copy of entry in banker's book

58 (1) A copy of an entry in a banker's book shall not be re ceived in evidence unless it is further proved that the copy has been ex amined with the original entry and is correct.

(2) Such proof shall be given by some person who has exam ined the copy with the original entry, and may be given either orally or by an affidavit sworn before any commissioner or person authorized to take affidavits in the Supreme Court.

Case in which banker not compellable to produce banker's book

59 A banker or officer of a bank shall not, in any cause, arbi tration or proceeding in which evidence may be given, to which the bank is not a party, be compellable to produce any banker's book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of a judge made for special cause.

Power of court or Judge to order inspection; costs, enforce ment, etc.

60 (1) On the application of any party to a cause, arbitration or proceeding in which evidence may be given, a court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such proceedings.

(2) An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days before the order is to be obeyed, unless the court or judge otherwise directs.

(3) The costs of any application to a court or judge and the costs of anything done or to be done under an order of a court or judge, shall be in the discretion of the court or Judge, who may order the costs or any part thereof to be paid to any party by the bank where the costs have been occasioned by any default or delay on the part of the bank.

(4) Any such order against a bank may be enforced as if the bank were a party to the proceeding, or otherwise as the court or Judge may allow or direct.

Powers of magistrates, coroners, etc. with respect to bankers' books

61 Any magistrate or court of summary jurisdiction, coroner or ma rine court of enquiry, may, with respect to any proceeding before such officer or court in or over which such officer or court has lawful jurisdic tion, exercise the powers of a Judge under section 59, and shall, in all such proceedings, receive in evidence any copy of an entry in a banker's book for the purposes mentioned in section 56 on receiving such proof on oath by viva voce testimony, as is required by section 57 and section 58.

Documents receivable without proof of seal, signature etc.

62 In the case of. any document which, under this Act, or any other Act, or any Act of the Parliament of the United Kingdom, is receiv able in evidence if it purports to be sealed or impressed with a stamp, or sealed and signed or signed and having a statement attached thereto, or signed alone, or impressed with a stamp and signed, in the manner di rected in this or any such Act or Act of the Parliament of the United Kingdom, it shall not be necessary to prove such seal or stamp, where a seal or stamp is necessary, or such signature, or the truth of any state ment di rected to be attached thereto, or the official character of the per son ap pearing to have signed the same, but every such document shall be ad mitted in evidence in every case in which the original record would have been admissible.

Comparison of disputed handwriting

63 Comparison of a disputed handwriting with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury (if any) as evidence of the genuineness or otherwise of the writing in dispute.

Proof by other than attesting witnesses

64 (1) It shall not be necessary to prove by the attesting wit ness any document to the validity of which attestation is not requisite, and any such document may be proved as if there had been no attesting wit ness thereto.

(2) In all causes and matters any such document may be proved by admission.

Proof of instrument to validity of which attestation is necessary

65 Subject as hereinafter provided, in any proceedings, whether civil or criminal, an instrument to the validity of which attesta tion is requisite may, instead of being proved by an attesting witness, be proved in the manner in which it might be proved if no attesting witness were alive:

Provided that nothing in this section shall apply to the proof of wills or other testamentary documents.

Certifying false document an offence

66 Any person authorized or required by this Act to furnish any certified copies or extracts who wilfully certifies any document as being a true copy or extract, knowing that the document is not a true copy or extract (as the case may be) commits an offence against this Act:

Punishment on conviction on indictment: imprisonment for 18 months or a fine of $480 or both such imprisonment and fine.

Forging seal, etc. of documents; supplemental powers of court

67 (1) Any person who forges the seal, stamp, or signature of any document mentioned or referred to in the foregoing provisions of this Act, or who tenders in evidence any such document with a false or counterfeit seal, stamp or signature thereto, knowing the seal, stamp or signature to be false or counterfeit, commits an offence against this Act.

Punishment on conviction on indictment: imprisonment for 3 years.

(2) Whenever any such document is as mentioned in subsec tion (1) has been admitted in evidence, the court or the person who ad mitted the document may direct it to be impounded and kept in the custody of some officer of such court, or other proper person, until fur ther order by such court or person or by a Judge.

Provisions of Part IV to be cumulative

68 The provisions of this Part shall be deemed to be in addition to, and not in derogation to any powers of proving documents given by any Act or Act of the Parliament of the United Kingdom, or existing at com mon law.

PART V

MISCELLANEOUS AND SUPPLEMENTAL PROVISIONS

Admissibility of documentary evidence as to facts in issue

69 (1) In any civil proceedings where oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original docu ment, be admissible as evidence of that fact if the following conditions are satisfied �

(a) if the maker of the statement either �

(i) had personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

(b) if the maker of the statement is called as a witness in the proceedings:

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by rea son of his bodily or mental condition to attend as a witness, or if he is absent from Bermuda and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made with out success.

(2) In any civil proceedings the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admis sible as evidence or may, without any such order having been made, ad mit such a statement in evidence �

(a) notwithstanding that the maker of the statement is avail able but is not called as a witness;

(b) notwithstanding that the original document is not pro duced, if in lieu thereof there is produced a copy of the original docu ment or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.

(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.

(4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.

(5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of the foregoing provisions of this sec tion, the court may draw any reasonable inference from the form or con tents of the documents in which the statement is contained, or from any other circumstances and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a medical practitioner; and where the proceedings are with a jury, the court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

(6) In this section �

(a) "document" includes books, plans, drawings and pho tographs;

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

Weight to be attached to evidence

70 (1) In estimating the weight, if any, to be attached to a state ment rendered admissible as evidence by virtue of section 69 regard
shall be had to all the circumstances from which any inference can rea sonably be drawn as to the accuracy or otherwise of the state ment, and in particular to the question whether or not the statement 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 incentive to conceal or misrepresent facts.

(2) For the purpose of any rule of law or practice requiring evi dence to be corroborated or regulating the manner in which uncorrobo rated evidence is to be treated, a statement rendered admissible by virtue of section 69 shall not be treated as corroboration of evidence given by the maker of the statement.

(3) In this section, "statement" has the meaning assigned to it in section 69(6).

Convictions as evidence in civil proceedings

70A (1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in Bermuda shall, subject to subsection (3), be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceed ings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.

(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in Bermuda �

(a) he shall be taken to have committed that offence, unless the contrary is proved; and

(b) without prejudice to the reception of any other admissi ble evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evi dence of the convic tion, and the contents of the information, complaint, in dictment or charge-sheet on which the person in ques tion was con victed, shall be admissible in evidence for that purpose.

(3) Nothing in this section shall prejudice the operation of sec tion 70C or any other enactment whereby a conviction or a finding of fact in any criminal proceedings is for the purposes of any other proceedings made conclusive evidence of any fact.

(4) Where in any civil proceedings the contents of any docu ment are admissible in evidence by virtue of subsection (2), a copy of that document, or of the material part thereof purporting to be certified or otherwise authenticated by or on behalf of the court or authority hav ing custody of that document shall be admissible in evidence and shall be taken to be a true copy of that document or part unless the contrary is shown.

(5) Evidence that a person has been convicted of an offence, although in respect of that offence he has been rehabilitated under the Rehabilitation of Offenders Act 1977 [title 8 item 40], shall not be admis sible under this section unless the court is satisfied that such conviction is relevant to an issue being tried.

Findings of adultery and paternity as evidence in civil pro ceedings

70B (1) In any civil proceedings �

(a) the fact that a person has been found to have committed adultery in any matrimonial proceedings; and

(b) the fact that a person has been adjudged to be the father of a child in any affiliation proceedings before a court in Bermuda,

shall, subject to subsection (3), be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those civil proceed ings, that he committed the adultery to which the finding relates or, as the case may be, the father of that child, whether or not he offered any de fence to the allegation of adultery or paternity and whether or not he is a party to the civil proceedings; but no finding or adjudication other than a subsisting one shall be admissible in evidence by virtue of this section.

(2) In any civil proceedings in which by virtue of this section evidence has been admitted that a person has been found to have com mitted adultery or to have been adjudged to be the father of a child �

(a) he shall be taken to have committed the adultery to which the finding relates or, as the case may be, to be the father of that child, unless the contrary is proved; and

(b) without prejudice to the reception of any other admissi ble evidence for the purpose of identifying the facts on which the finding or adjudication was based, the con-
tents of any document which was before the court, or which contains any pronouncement of the court, in the matrimonial or affiliation proceedings in question shall be admissible in evidence for that purpose.

(3) Nothing in this section shall prejudice the operation of any enactment whereby a finding of fact in any matrimonial or affiliation pro ceedings is for the purposes of any other proceedings made conclusive evidence of any fact.

(4) Section 70A(4) shall apply for the purposes of this section as if the reference to subsection (2) were a reference to subsection (2) of this section.

Conclusiveness of convictions for purposes of defamation actions

70C (1) In an action for libel or slander in which the question whether a person did or did not commit a criminal offence is relevant to an issue arising in the action, proof that, at the time when the issue falls to be determined, that person stands convicted of that offence shall be conclusive evidence that he committed that offence; and his conviction thereof shall be admissible in evidence accordingly.

(2) In any such action in which by virtue of this section a per son is proved to have been convicted of an offence, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which that person was convicted, shall, without prejudice to the recep tion of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, be admissible in evidence for the purpose of identifying those facts.

(3) For the purposes of this section a person shall be taken to stand convicted of an offence if but only if there subsists against him a conviction of that offence by or before any court in Bermuda.

(4) Section 105(2) and (4) shall apply for the purposes of this section as they apply for the purposes of that section, but as if in section 105(4) the reference to subsection (2) were a reference to subsection (2) of this section.

Proof of absence from Bermuda

71 (1) In any proceedings, whether civil or criminal, evidence that a person is or has been absent from Bermuda may, without preju dice to any other method of proving such absence, be given in the man ner hereinafter specified in this subsection �

(a) as respects any person, by production of a certificate setting out that that person left Bermuda on a certain day and has not returned, or has returned on a certain day (as may be applicable) and purporting to be signed by the Chief Immigration Officer; or

(b) as respects a person who is or was at the time when he last left Bermuda a member of any part of the armed forces, being a person whose presence in Bermuda was occasioned solely by reason of his being a member of the armed forces, by the production of a certificate setting out that that person left Bermuda on a certain day and has not returned on a certain day (as may be applicable) and purporting to be signed by the officer for the time being in command in Bermuda of that part of the armed forces of which that person is, or was at the time he has left Bermuda, a member; or

(i) a civilian employee serving with any part of the armed forces, being a person whose presence in Bermuda was occasioned solely by such em ployment; or

(ii) the wife or dependent child of a member of any part of the armed forces, being a wife or child whose presence in Bermuda was oc casioned solely by the presence of the member of whom she or the child is a dependent,

by the production of a certificate setting out that that person left Bermuda on a certain day and has not returned, or has re turned on a certain day (as may be applicable) and purporting to be signed by the of ficer for the time being in command in Bermuda of that part of the armed forces with which that person was serving, or, as the case may be, of that part of the armed forces of which the person upon whom the absent per son is dependent was a member;

and any such cer tificate as aforesaid shall, until the contrary is proved, be taken as proof of the facts set out therein.

(2) In this section "the armed forces" means any of the naval,
military or air forces of Her Majesty or of the United States of America.

Examination of witness under commission

72 Every judge, or commissioner or other person appointed to take the examination of witnesses under a commission to take evidence, shall take all such examinations upon oath, or affirmation in cases where un der this Act affirmation is allowed, which may be administered either by such commissioner or person or by any Judge.

Costs of commission to examine witnesses

73 The costs attendant upon any commission to examine wit nesses shall be costs in the cause unless otherwise directed by the judge mak ing the order for the commission to issue, or by the court before which the cause is tried.

Administration of oaths by Justices

74 It shall not be lawful for any Justice of the Peace in Bermuda to administer or receive or cause or allow to be administered, or received, any oath, affidavit, or solemn affirmation, touching any matter whereof such Justice has not jurisdiction or cognizance by virtue of any Act or any Act of the Parliament of the United Kingdom:

Provided that nothing herein contained shall extend to any oath, affidavit, or solemn affirmation, before any justice, in any matter or thing touching the preservation of the peace, or the prosecution, trial, or pun ishment, of offences, or touching any proceedings before the Senate or the House of Assembly in Bermuda, or any Committee thereof, re spectively, nor to any proceedings before any court of justice in Bermuda, nor to any oath, affidavit, or affirmation which may be re quired by the laws of the United Kingdom, or any part thereof, or of any part of Her Majesty's dominions, or of any Foreign State, to give validity to instruments of writing designed to be used in any such place.

Power of Supreme Court to make rules with respect to mat ters con tained in Act

75 The provisions relating to the making of Rules of Court con tained in the Supreme Court Act 1905 [title 8 item 1] shall, subject to the provisions of this Act, be deemed to extend and apply to the matters contained in this Act.

FIRST SCHEDULE

[deleted by 1971:111]

SECOND SCHEDULE

PROVISIONS OF LAW CONSTITUTING OFFENCES IN RESPECT OF WHICH THE HUSBAND OR WIFE OF THE PERSON CHARGED MAY BE CALLED AS A WITNESS WITHOUT THE CONSENT OF THE PERSON CHARGED

PART 1

Criminal Code [title 8 item 31]:

section 177 (unnatural offences and attempts to commit such offences);

section 178 (unnatural offences with animals and attempts to commit such offences);

section 194 (administering drugs etc. with intent to procure mis carriage);

section 225 (causing bodily injury by explosion);

section 226 (placing an explosive substance in any place with intent to do harm);

section 289 (attempted murder);

section 290 (threatening to murder);

section 291 (conspiracy to murder);

section 303 (disabling in order to commit an indictable of fence);

section 304 (stupefying in order to commit an indictable of fence);

section 305 (wounding etc. with intent to do grievous bodily harm etc.);

section 306 (doing grievous bodily harm etc.);

section 307 (preventing escape from shipwreck);

Department	Certifying Officer
The Treasury	Any Commissioner, Sec retary or Assistant Sec retary of the Treasury.
The Commissioners for executing the office of Lord High Admiral.	Any of the Commission ers for executing the of fice of Lord High Admi ral, or either of the Sec retaries of the said Commissioners.
Any Department in re spect of which a Secre tary of State may be ap pointed.	Any Secretary or Under Secretary of State.
The Defence Council.	Two members of the Defence Council, or the Secretary of the Defence Council or any person authorized by the De fence Council to act on their behalf.
The Committee of Privy Council for Trade.	Any member of the Committee of Privy Council for Trade, or any Secretary or Assis tant Secretary of the said Committee.
The Post Office.	The Postmaster-General or a secretary or assis tant secretary of the Post Office.
Any Department in re spect of which a Minis ter may be appointed.	The Minister or a sec retary of the Minister or any person authorized by the Minister to act in his behalf.

Bermuda Consolidated Legislation

Evidence Act 1905