|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Brunei Legislation |
[Database Search] [Name Search] [Noteup] [Download] [Help]
LAWS OF BRUNEI
CHAPTER 108
EVIDENCE
2 of 1939
(Cap. 3 of 1951)
1984 Ed. Cap. 108
Amended by
S 13/87
S 38/87
S 29/97
S 6/99
S 93/00
REVISED EDITION 2002
(15th March 2002)
LAWS OF BRUNEI
REVISED EDITION 2002
CHAPTER 108
EVIDENCE
Section
ARRANGEMENT OF SECTIONS
PART I
RELEVANCY OF FACTS
Chapter I
Preliminary
1. Citation.
2. Extent.
3. Interpretation.
4. Presumption.
Chapter II
Of the Relevancy of Facts
General
5. Evidence may be given of facts in issue and relevant facts.
6. Relevancy of facts forming part of same transaction.
7. Facts which are the occasion, cause or effect of facts inissue.
8. Motive, preparation and previous or subsequent conduct.
9. Facts necessary to explain or introduce relevant facts.
10. Things said or done by conspirator in reference to commondesign.
11. When facts not otherwise relevant become relevant.
12. In suits for damages facts tending to enable court to determine amount are relevant.
13. Facts relevant when right or custom is in question.
14. Facts showing existence of state of mind or of body or bodilyfeeling.
15. Facts bearing on question whether act was accidental orintentional.
16. Existence of course of business when relevant.
Admissions and Confessions
17. Admission and confession defined.
18. Admission by party to proceeding, his agent, or personinterested.
19. Admissions by persons whose position must be proved as againstparty to suit.
20. Admissions by persons expressly referred to by party to suit.
21. Proof of admissions against persons making them and by or on theirbehalf.
22. When oral admissions as to contents of documents are relevant.
23. Admissions in civil cases when relevant.
24. Confession caused by inducement, threat or promise when irrelevantin criminal proceeding.
25. (Repealed).
26. (Repealed).
27. How much of information received from accused may be proved.
28. Confession made after removal of impression caused by inducement,threat or promise relevant.
29. Confession otherwise relevant not to become irrelevant because ofpromise of secrecy etc.
30. Consideration of proved confession affecting person making it andothers jointly under trial for same offence.
31. Admissions not conclusive proof but may estop.
Statements by Persons who cannot be called as Witnesses
32. Cases in which statement of relevant fact by person who is dead orcannot be found etc. is relevant.
33. Relevancy of certain evidence for proving in subsequent proceedingthe truth of facts therein stated.
Statements made under Special Circumstances
34. Entries in books of account when relevant.
35. Relevancy of entry in public record made in performance ofduty.
35A. Admissibility of statements produced by computers.
35B. Provisions supplementary to section 35A.
36. Relevancy of statements in maps, charts and plans.
37. Relevancy of statement as to fact of public nature contained in certain Acts or notifications.
38. Relevancy of statements as to any law contained in law books.
How much of a Statement is to be Proved
39. What evidence to be given when statement forms part of a conversation, document, book or series of letters or papers.
Judgements of Courts of Justice When Relevant
40. Previous judgements relevant to bar a second suit or trial.
41. Relevancy of certain judgements in probate etc. jurisdiction.
42. Relevancy and effect of judgements, orders or decrees other thanthose mentioned in section 41.
43. Judgements etc. other than those mentioned in sections 40 to 42when relevant.
44. Fraud or collusion in obtaining judgement or incompetency of courtmay be proved.
Opinions of Third Persons When Relevant
45. Opinions of experts.
46. Facts bearing upon opinions of experts.
47. Opinion as to handwriting when relevant.
48. Opinion as to existence of right or custom when relevant.
49. Opinion as to usages, tenets etc. when relevant.
50. Opinion on relationship when relevant.
51. Grounds of opinion when relevant.
Character When Relevant
52. In civil cases character to prove conduct imputed irrelevant.
53. In criminal cases previous good character relevant.
54. Previous bad character not relevant except in reply.
55. Character as affecting damages.
PART II
ON PROOF
Chapter III
Facts which need not be Proved
56. Fact judicially noticeable need not be proved.
57. Facts of which court must take judicial notice.
58. Facts admitted need not be proved.
Chapter IV
Of Oral Evidence
59. Proof of facts by oral evidence.
60. Oral evidence must be direct.
Chapter V
Of Documentary Evidence
61. Proof of contents of documents.
62. Primary evidence.
63. Secondary evidence.
64. Proof of documents by primary evidence.
65. Cases in which secondary evidence relating to documents may begiven.
66. Rules as to notice to produce.
67. Proof of signature and handwriting of person alleged to havesigned or written document produced.
68. Proof of execution of document required by law to be attested.
69. Proof where no attesting witness found.
70. Admission of execution by party to attested document.
71. Proof when attesting witness denies the execution.
72. Proof of document not required by law to be attested.
73. Comparison of signature, writing or seal with others admitted orproved.
73A. Documentary evidence.
Public Documents
74. Public documents.
75. Private documents.
76. Certified copies of public documents.
77. Proof of documents by production of certified copies.
78. Proof of certain official documents.
Presumptions as to Documents
79. Presumption as to genuineness of certified copies.
80. Presumption as to documents produced as record of evidence.
80A. Prints from films in the possession of the Government or publicbody.
81. Presumption as to Gazettes , newspapers, private Acts ofParliament and other documents.
82. Presumption as to document admissible in England without proof ofseal or signature.
83. Presumption as to maps or plans made by authority ofGovernment.
84. Presumption as to collections of laws and reports ofdecisions.
85. Presumption as to powers of attorney.
86. Presumption as to certified copies of foreign judicialrecords.
87. Presumption as to books, maps and charts.
88. Presumption as to telegraphic messages.
89. Presumption as to due execution etc. of documents notproduced.
90. Presumption as to documents 30 years old.
Chapter VI
Of the Exclusion of Oral by Documentary Evidence
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.
92. Exclusion of evidence of oral agreement.
93. Exclusion of evidence to explain or amend ambiguous document.
94. Exclusion of evidence against application of document to existingfacts.
95. Evidence as to document unmeaning in reference to existingfacts.
96. Evidence as to application of language which can apply to one onlyof several persons.
97. Evidence as to application of language to one of two sets of factsto neither of which the whole correctly applies.
98. Evidence as to meaning of illegible characters etc.
99. Who may give evidence of agreement varying terms of document.
100. Construction of wills not affected.
PART III
PRODUCTION AND EFFECT OF EVIDENCE
Chapter VII
Of the Burden of Proof
101. Burden of proof.
102. On whom burden of proof lies.
103. Burden of proof as to particular fact.
104. Burden of proving fact to be proved to make evidenceadmissible.
105. Burden of proving that case of accused comes withinexceptions.
106. Burden of proving fact especially within knowledge.
107. Burden of proving death of person known to have been alive within 30 years.
108. Burden of proving that person is alive who has not been heard of for 7 years.
109. Burden of proof as to relationship in the cases of partners,landlord and tenant, principal and agent.
110. Burden of proof as to ownership.
111. Proof of good faith in transactions where one party is inrelation of active confidence.
112. Birth during marriage conclusive proof of legitimacy.
113. Presumption that boy under 13 cannot commit rape.
114. Court may presume existence of certain fact.
Chapter VIII
Estoppel
115. Estoppel.
116. Estoppel of tenant and of licensee of person in possession.
117. Estoppel of acceptor of bill of exchange, bailee or licensee.
Chapter IX
Of Witnesses
118. Who may testify.
119. Dumb witnesses.
120. Parties to civil suits their wives and husbands.
121. Judges and Magistrates.
122. Communications during marriage.
123. Evidence as to affairs of State.
124. Official communications.
125. Information as to commission of offences.
126. Professional communications.
127. Section 126 to apply to interpreters etc.
128. Privilege not waived by volunteering evidence.
129. Confidential communications with legal advisers.
130. Production of title deeds of witness not a party.
131. Production of documents which another person having possessioncould refuse to produce.
132. Witness not excused from answering on ground that answer willcriminate.
133. Accomplice.
133A. Evidence of child.
134. Number of witnesses.
134A. Abolition of corroboration rules.
Chapter X
Of the Examination of Witnesses
135. Order of production and examination of witnesses.
136. Court to decide as to admissibility of evidence.
137. Examination-in-chief; cross-examination and re-examination.
138. Order of examinations. Direction of re-examination.
139. Cross-examination of person called to produce a document.
140. Witnesses to character.
141. Leading questions.
142. When they must not be asked.
143. When they may be asked.
144. Evidence as to matters in writing.
145. Cross-examination as to previous statements in writing.
146. Questions lawful in cross-examination.
147. When witness to be compelled to answer.
148. Court to decide when question shall be asked and when witnesscompelled to answer.
149. Question not to be asked without reasonable grounds.
150. Procedure of court in case of question being asked withoutreasonable grounds.
151. Indecent and scandalous questions.
152. Questions intended to insult or annoy.
153. Exclusion of evidence to contradict answers to questions testing veracity.
154. Question by party to his own witness.
155. Impeaching credit of witness.
156. Questions tending to corroborate evidence of relevant factadmissible.
157. Former statements of witness may be proved to corroborate latertestimony as to same fact.
158. What matters may be proved in connection with proved statementrelevant under section 32 or 33.
159. Refreshing memory.
160. Testimony to facts stated in document mentioned in section159.
161. Right of adverse party as to writing used to refresh memory.
162. Production of documents and their translations.
163. Giving as evidence of document called for and produced onnotice.
164. Using as evidence of document production of which was refused onnotice.
165. Judge’s power to put questions or order production.
166. Power of jury or assessors to put questions.
Chapter XI
Of Improper Admission and Rejection of Evidence
167. No new trial for improper admission or rejection of evidence.
Chapter XII
Hearsay Evidence
168. Application of Chapter XII.
169. Admissibility of hearsay evidence.
170. Notice of proposal to adduce hearsay evidence.
171. Power to call witness.
172. Consideration relevant.
173. Competence and credibility.
174. Previous statements of witnesses.
175. Evidence formerly admissible.
________________________
EVIDENCE ACT
An Act to unify within Brunei Darussalam the law relating to evidence
Commencement: 17th April 1939
PART I
RELEVANCY OF FACTS
Chapter I
Preliminary
Citation.
1. This Act may be cited as the Evidence Act.
Extent.
2. This Act shall apply to all judicial proceedings in or before anycourt other than Courts Martial and Muslim Religious Courts, but not toaffidavits presented to any court or officer nor to proceedings before anarbitrator.
Interpretation.
3. In this Act, unless there is something repugnant in the subject orcontext —
“court” includes all Judges and magistrates and, except arbitrators, all persons legally authorised to take evidence;
“fact” means and includes —
(a) anything, state of things or relation of things capable ofbeing perceived by the senses;
(b) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in acertain place is a fact.
(b) That a man heard or saw something is a fact.
(c) That a man said certain words is a fact.
(d) That a man holds a certain opinion, has a certain intention,acts in good faith or fraudulently, or uses a particular word in a particularsense, or is or was at a specified time conscious of a particular sensation, isa fact.
(e) That a man has a certain reputation is a fact.
One fact is said to be relevant to another when the one is connected with theother in any of the ways referred to in the provisions of this Act relating tothe relevancy of facts;
“fact in issue” means any fact from which, either by itself or inconnection with other facts, the existence, non-existence, nature or extent ofany right, liability or disability asserted or denied in any suit or proceedingnecessarily follows;
Illustrations
A is accused of the murder of B.
At his trial the following facts may be in issue —
that A caused B’s death;
that A intended to cause B’s death;
that A had received grave and sudden provocation from B ;
that A at the time of doing the act which caused B’s death was by reason of unsoundness of mind incapable of knowing its nature.
“document” means any matter expressed or described upon anysubstance by means of letters, figures or marks or by more than one of thosemeans intended to be used or which may be used for the purpose of recording thatmatter;
A writing is a document.
Words printed, lithographed or photographed are documents.
A map or plan is a document.
An inscription on a metal plate or stone is a document.
A caricature is a document.
“evidence” includes —
(a) all statements which the court permits or requires to be madebefore it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence;
(b) all documents produced for the inspection of the court: suchdocuments are called documentary evidence.
A fact is said to be “proved” when, after considering the mattersbefore it, the court either believes it to exist or considers its existence soprobable that a prudent man ought, under the circumstances of the particularcase, to act upon the supposition that it exists.
A fact is said to be “disproved” when, after considering thematters before it, the court either believes that it does not exist orconsiders its non- existence so probable that a prudent man ought, under thecircumstances of the particular case, to act upon the supposition that it doesnot exist.
A fact is said to be “not proved” when it is neither proved nordisproved.
Presumption.
4. (1) Whenever it is provided by this Act that the court maypresume a fact, it may either regard such fact as proved unless and until it isdisproved, or may call for proof of it.
(2) Whenever it is directed by this Act that the court shall presume afact, it shall regard such fact as proved unless and until it is disproved.
(3) When one fact is declared by this Act to be conclusive proof ofanother, the court shall, on proof of the one fact, regard the other as proved,and shall not allow evidence to be given for the purpose of disproving it.
Chapter II
Of the Relevancy of Facts
General
Evidence may be given of facts in issue and relevant facts.
5. Evidence may be given in any suit or proceeding of the existence ornon-existence of every fact in issue and of such other facts as are hereinafterdeclared to be relevant, and of no others.
Explanation — This section shall not enable any person to giveevidence of a fact which he is disentitled to prove by any provision of the lawfor the time being in force relating to civil procedure.
Illustrations
(a) A is tried for the murder of B by beating him with a clubwith the intention of causing his death.
At A’s trial the following facts are in issue —
A’s beating B with the club;
A’s causing B’s death by such beating;
A’s intention to cause B’s death.
(b) A a party to a suit does not comply with a notice given by B the other party to produce for B’s inspection a documentreferred to in A’s pleadings. This section does not enable A to put such document in evidence on his behalf in such suit, otherwisethan in accordance with the conditions prescribed by the law for the time beingin force relating to civil procedure.
Relevancy of facts forming part of same transaction.
6. Facts which, though not in issue, are so connected with a fact inissue as to form part of the same transaction are relevant, whether theyoccurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whateverwas said or done by A or B or the bystanders at the beating or soshortly before or after it as to form part of the transaction is a relevantfact.
(b) A is accused of waging war against His Majesty the Sultan and YangDi- Pertuan by taking part in an armed insurrection in which property isdestroyed, troops are attacked and gaols are broken open. The occurrence ofthese facts is relevant as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part ofa correspondence. Letters between the parties relating to the subject out ofwhich the libel arose and forming part of the correspondence in which it iscontained are relevant facts though they do not contain the libel itself.
(d) The question is whether certain goods ordered from B weredelivered to A. The goods were delivered to several intermediate personssuccessively. Each delivery is a relevant fact.
Facts which are the occasion, cause or effect of facts in issue.
7. Facts which are the occasion, cause or effect, immediate orotherwise, of relevant facts or facts in issue, or which constitute the state ofthings under which they happened or which afforded an opportunity for theiroccurrence or transaction, are relevant.
Illustrations
(a) The question is whether A robbed B.
The facts that shortly before the robbery B went to a fair withmoney in his possession and that he showed or mentioned the fact that he had itto third persons are relevant.
(b) The question is whether A murdered B.
Marks on the ground produced by a struggle at or near the place where themurder was committed are relevant facts.
(c) The question is whether A poisoned B.
The state of B’s health before the symptoms ascribed to poisonand habits of B known to A, which afforded an opportunity for theadministration of poison, are relevant facts.
Motive, preparation and previous or subsequent conduct.
8. (1) Any fact is relevant which shows or constitutes a motive orpreparation for any fact in issue or relevant fact.
(2) The conduct of any party or of any agent to any party to any suit orproceeding in reference to such suit or proceeding or in reference to any factin issue therein or relevant thereto, and the conduct of any person an offenceagainst whom is the subject of any proceeding, is relevant if such conductinfluences or is influenced by any fact in issue or relevant fact, and whetherit was previous or subsequent thereto.
Explanation 1 — The word “conduct” in this sectiondoes not include statements unless those statements accompany and explain actsother than statements; but this explanation is not to affect the relevancy ofstatements under any other section of this Act.
Explanation 2 — When the conduct of any person is relevant any statement made to him or in his presence and hearing which affectssuch conduct is relevant.
Illustrations
(a) A is tried for the murder of B.
The facts that A murdered C, that B knew that A had murdered C and that B had tried to extort money from A by threatening to make his knowledge public are relevant.
(b) A sues B upon a bond for the payment of money. B denies the making of the bond.
The fact that at the time when the bond was alleged to be made B required money for a particular purpose is relevant.
(c) A is tried for the murder of B by poison.
The fact that before the death of B, A procured poison similar tothat which was administered to B is relevant.
(d) The question is whether a certain document is the will of A.
The facts that not long before the date of the alleged will A madeinquiry into matters to which the provisions of the alleged will relate, that heconsulted lawyers in reference to making the will, and that he caused drafts ofother wills to be prepared of which he did not approve are relevant.
(e) A is accused of a crime.
The facts that either before or at the time of or after the alleged crime A provided evidence which would tend to give to the facts of the case anappearance favourable to himself, or that he destroyed or concealed evidence orprevented the presence or procured the absence of persons who might have beenwitnesses or suborned persons to give false evidence respecting it arerelevant.
(f) The question is whether A robbed B.
The facts that after B was robbed, C said in A’s presence: “The police are coming to look for the man who robbed B ” and that immediately afterwards A ran away are relevant.
(g) The question is whether A owes B $10,000.
The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing: “I advise younot to trust A for he owes B $10,000”, and that A went away without making any answer are relevant facts.
(h) The question is whether A committed a crime.
The fact that A absconded after receiving a letter warning him thatinquiry was being made for the criminal and the contents of the letter arerelevant.
(i) A is accused of a crime.
The facts that after the commission of the alleged crime he absconded, or wasin possession of property or the proceeds of property acquired by the crime, orattempted to conceal things which were or might have been used in committing itare relevant.
(j) The question is whether A was ravished.
The facts that shortly after the alleged rape she made a complaint relatingto the crime, the circumstances under which and the terms in which the complaintwas made are relevant.
The fact that without making a complaint she said that she had been ravishedis not relevant as conduct under this section, though it may be relevant as adying declaration under section 32 (a) ; or as corroborative evidence undersection 157.
(k) The question is whether A was robbed.
The fact that soon after the alleged robbery he made a complaint relating tothe offence, the circumstances under which and the terms in which the complaintwas made are relevant.
The fact that he said he had been robbed without making any complaint is notrelevant as conduct under this section, though it may be relevant as a dyingdeclaration under section 32 (a) ; or as corroborative evidence undersection 157.
Facts necessary to explain or introduce relevant facts.
9. Facts necessary to explain or introduce a fact in issue or relevantfact, or which support or rebut an inference suggested by a fact in issue orrelevant fact, or which establish the identity of anything or person whoseidentity is relevant, or fix the time or place at which any fact in issue orrelevant fact happened or which show the relation of parties by whom any suchfact was transacted, are relevant in so far as they are necessary for thatpurpose.
Illustrations
(a) The question is whether a given document is the will of A.
The state of A’s property and of his family at the date of thealleged will may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A ; B affirms that the matter alleged to be libellous is true.
The position and relations of the parties at the time when the libel waspublished may be relevant facts as introductory to the facts in issue.
The particulars of a dispute between A and B about a matterunconnected with the alleged libel are irrelevant, though the fact that therewas a dispute may be relevant if it affected the relations between A and B.
(c) A is accused of a crime.
The fact that soon after the commission of the crime A absconded fromhis house is relevant under section 8 as conduct subsequent to and affected byfacts in issue.
The fact that at the time when he left home he had sudden and urgent businessat the place to which he went is relevant as tending to explain the fact that heleft home suddenly.
The details of the business on which he left are not relevant, except in sofar as they are necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract ofservice made by him with A. C on leaving A’s service says to A : “I am leaving you because B has made me a betteroffer”. This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue.
(e) A accused of theft is seen to give the stolen property to B , who is seen to give to A’s wife. B says as hedelivers it: “ A says you are to hide this”. B’s statement is relevant as explanatory of a fact which is part of thetransaction.
(f) A is tried for a riot and is proved to have marched at the at thehead of a mob. The cries of the mob are relevant as explanatory, of the natureof the transaction.
Things said or done by conspirator in reference to common design.
10. Where there is reasonable ground to believe that 2 or more personshave conspired together to commit an offence or an actionable wrong,anything said, done or written by any one of such persons, in reference to theircommon intention after the time when such intention was firstentertained by any one of them, is a relevant fact as against each of thepersons believed to be so conspiring, as well for the purpose of proving theexistence of the conspiracy as for the purpose of showing that any such personwas a party to it.
Illustration
Reasonable ground exists for believing that A has joined in aconspiracy to wage war against His Majesty.
The facts that B procured arms in Europe for the purpose of theconspiracy, C collected money in Malacca for a like object, D persuaded persons to join the conspiracy in Province Wellesley, E published writings advocating the object in view at Singapore, and F transmitted from Singapore to G at Jakarta the money which C had collected at Malacca, and the contents of a letter written by H giving an account of the conspiracy are each relevant, both to prove theexistence of the conspiracy and to prove A’s complicity in it,although he may have been ignorant of all of them, and although the persons bywhom they were done were strangers to him, and although they may have takenplace before he joined the conspiracy or after he left it.
When facts not otherwise relevant become relevant.
11. Facts not otherwise relevant are relevant —
(a) if they are inconsistent with any fact in issue or relevant fact;
(b) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is whether A committed a crime at Kuala Belait on a certain day.
The fact that on that day A was at Bandar Seri Begawan isrelevant.
The fact that near the time when the crime was committed A was at adistance from the place where it was committed, which would render it highlyimprobable, though not impossible, that he committed it is relevant.
(b) The question is whether A committed a crime.
The circumstances are such that the crime must have been committed either by A , B , C or D. Every fact which shows that the crimecould have been committed by no one else and that it was not committed by either B , C or D is relevant.
In suits for damages facts tending to enable court to determine amount arerelevant.
12. In suits in which damages are claimed any fact which will enablethe court to determine the amount of damages which ought to be awarded isrelevant.
Facts relevant when right or custom is in question.
13. Where the question is as to the existence of any right or customthe following facts are relevant —
(a) any transaction by which the right or custom in question wascreated, claimed, modified, recognised, asserted or denied or which wasinconsistent with its existence;
(b) particular instances in which the right or custom wasclaimed, recognised or exercised or in which its exercise was disputed,asserted or departed from.
Illustration
The question is whether A has a right to a fishery. A deed conferringthe fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of theright was stopped by A’s neighbours, are relevant facts.
Facts showing existence of state of mind or of body or bodilyfeeling.
14. Facts showing the existence of any state of mind, such asintention, knowledge, good faith, negligence, rashness, ill-will or good-willtowards any particular person, or showing the existence of any state of body orbodily feeling, are relevant when the existence of any such state of mind orbody or bodily feeling is in issue or relevant.
Explanation 1 — A fact relevant as showing the existence of arelevant state of mind must show that the state of mind exists not generally butin reference to the particular matter in question.
Explanation 2 — But where upon the trial of a person accused ofan offence the previous commission by the accused of an offence is relevantwithin the meaning of this section, the previous conviction of such person shallalso be a relevant fact.
Illustrations
(a) A is accused of receiving stolen goods, knowing them to bestolen. It is proved that he was in possession of a particular stolenarticle.
The fact that at the same time he was in possession of many other stolenarticles is relevant as tending to show that he knew each and all of thearticles of which he was in possession to be stolen.
(b) A is accused of fraudulently delivering to another person acounterfeit coin, which at the time when he delivered it he knew to becounterfeit.
The fact that at the time of its delivery A was possessed of a numberof other pieces of counterfeit coin is relevant.
The fact that A had been previously convicted of delivering to anotherperson as genuine a counterfeit coin, knowing it to be counterfeit, isrelevant.
(c) A sues B for damage done by a dog of B’s which B knew to be ferocious.
The facts that the dog had previously bitten X , Y and Z , and that they had made complaints to B , are relevant.
(d) The question is whether A , the acceptor of a bill ofexchange, knew that the name of the payee was fictitious.
The fact that A had accepted other bills drawn in the same mannerbefore they could have been transmitted to him by the payee, if the payee hadbeen a real person, is relevant, as showing that A knew that the payeewas a fictitious person.
(e) A is accused of defaming B by publishing an imputationintended to harm the reputation of B.
The fact of previous publications by A respecting B , showingill-will on the part of A towards B , is relevant, as proving A’s intention to harm B’s reputation by theparticular publication in question.
The facts that there was no previous quarrel between A and B ,and that A repeated the matter complained of as he heard it, are relevantas showing that A did not intend to harm the reputation of B.
(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B , being induced to trust C who was insolvent, suffered loss.
The fact that at the time when A represented C to be solvent C was supposed to be solvent by his neighbours, and by persons dealingwith him, is relevant as showing that A made the representation in goodfaith.
(g) A is sued by B. for the price of work done by B upona house of which A , is owner by the order of C , a contractor.
A’s defence is that B’s contract was with C.
The fact that A paid C for the work in question is relevant asproving that A did in good faith make over to C the managementof the work in question, so that C was in a position to contract with B on C’s own account and not as agent for A.
(h) A is accused of the dishonest misappropriation of property whichhe had found, and the question is whether, when he appropriated it, he believedin good faith that the real owner could not be found.
The fact that public notice of the loss of the property had been given in theplace where A was is relevant as showing that A did not in goodfaith believe that the real owner of the property could not be found.
The fact that A knew or had reason to believe that the notice was given fraudulently by C , who had heard of the loss of the property and wished to set up a false claim to it, is relevant as showing that the fact that A knew of the notice did not disprove A’s good faith.
(i) A is charged with shooting at B with intent to killhim.
In order to show A’s intent, the fact of A’s having previously shot at B may be proved.
(j) A is charged with sending threatening letters to B.
Threatening letters previously sent by A to B may be provedas showing the intention of the letters.
(k) The question is whether A has been guilty of cruelty towards B , his wife. Expression of their feelings towards each other shortly before or after the alleged cruelty are relevant facts.
(l) The question is whether A’s death was caused bypoison.
Statements made by A during his illness as to his symptoms arerelevant facts.
(m) The question is, what was the state of A’s health at the time when an assurance on his life was effected?
Statements made by A as to the state of his health at or near thetime in question are relevant facts.
(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use whereby A wasinjured.
The fact that B’s attention was drawn on other occasions tothe defect of that particular carriage is relevant.
The fact that B was habitually negligent about the carriages which he let to hire is irrelevant.
(o) A. is tried for the murder of B by intentionally shooting him dead.
The fact that A on other occasions shot at B is relevant as showing his intention to shoot B.
The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.
(p) A is tried for a crime.
The fact that he said something indicating an intention to commit thatparticular crime is relevant.
The fact that he said something indicating a general disposition to commitcrimes of that class is irrelevant.
Facts bearing on question whether act was accidental orintentional.
15. When there is a question whether an act was accidental orintentional or done with a particular knowledge or intention, the fact that suchact formed part of a series of similar occurrences, in each of which the persondoing the act was concerned, is relevant.
Illustrations
(a) A is accused of burning down his house in order to obtain moneyfor which it is insured.
The facts that A lived in several houses successively, each of whichhe insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant astending to show that the fire was not accidental.
(b) A is employed to receive money from the debtors of B. Itis A’s duty to make entries in a book showing the amounts receivedby him. He makes an entry showing that on a particular occasion he received lessthan he really did receive.
The question is whether this false entry was accidental or intentional.
The facts that other entries made by A in the same book are false,and that the false entry is in each case in favour of A are relevant.
(c) A is accused of fraudulently delivering to B a counterfeitdollar. The question is whether the delivery of the dollar was accidental.
The facts that soon before or soon after the delivery to B , A delivered counterfeit dollars to C , D and E are relevant asshowing that the delivery to B was not accidental.
Existence of course of business when relevant.
16. When there is a question whether a particular act was done, theexistence of any course of business, according to which it naturally would havebeen done, is a relevant fact.
Illustrations
(a) The question is whether a particular letter was despatched.
The facts that it was the ordinary course of business for all letters put ina certain place to be carried to the post, and that that particular letter wasput in that place, are relevant.
(b) The question is whether a particular letter reached A.
The facts that is was posted in due course and was not returned through the Dead Letter Office are relevant.
Admissions and Confessions
Admission and confession defined.
17. (1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and whichis made by any of the persons and under the circumstances hereinaftermentioned.
(2) A confession is an admission made at any time by a person accused of anoffence, stating or suggesting the inference that he committed that offence.
Admission by party to proceeding, his agent or person interested.
18. (1) Statements made by a party to the proceeding or by an agentto any such party whom the court regards under the circumstances of the case asexpressly or impliedly authorised by him to make them are admissions.
(2) Statements made by parties to suits, suing or sued in arepresentative character, are not admissions unless they were made while theparty making them held that character.
(3) Statements made by —
(a) persons who have any proprietary or pecuniary interest in thesubject-matter of the proceeding, and who make the statement in their characterof persons so interested; or
(b) persons from whom the parties to the suit have derived theirinterest in the subject-matter of the suit,
are admissions if they are made during the continuance of the interest of thepersons making the statements.
Admissions by persons whose position must be proved as against party tosuit.
19. Statements made by persons whose position or liability it isnecessary to prove as against any party to the suit are admissions if suchstatements would be relevant as against such persons in relation to suchposition or liability in a suit brought by or against them, and if they are madewhilst the person making them occupies such position or is subject to suchliability.
Illustrations
A undertakes to collect rents for B.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
A statement by C that he owed B rent is an admission and is arelevant fact, as against A if A denies that C did owe rentto B.
Admissions by persons expressly referred to by party to suit.
20. Statements made by persons to whom a party to the suit hasexpressly referred for information in reference to a matter in dispute areadmissions.
Illustration
The question is whether a horse sold by A to B is sound.
A says to B : “Go and ask C ; C knows allabout it ”. C’s statement is an admission. Proof ofadmissions against persons making them and by or on their behalf.
21. Admissions are relevant and may be proved as against the personwho makes them or his representative in interest; but they cannot be proved byor on behalf of the person who makes them or by his representative in interestexcept in the following cases —
(a) an admission may be proved by or on behalf of the person making itwhen it is of such a nature that, if the person making it were dead, it would berelevant as between third persons under section 32;
(b) an admission may be proved by or on behalf of the person making itwhen it consists of a statement of the existence of any state of mind or bodyrelevant or in issue, made at or about the time when such state of mind or bodyexisted and is accompanied by conduct rendering its falsehood improbable;
(c) an admission may be proved by or on behalf of the person making itif it is relevant otherwise than as an admission.
Illustrations
(a) The question between A and B is whether a certaindeed is or is not forged.
A affirms that it is genuine; B that it is forged.
A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged.
(b) A , the captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her propercourse.
A produces a book kept by him in the ordinary course of his business,showing observations alleged to have been taken by him from day to day, andindicating that the ship was not taken out of her proper course. A mayprove these statements because they would be admissible between third parties ifhe were dead under paragraph (b) of section 32.
(c) A is accused of a crime committed by him at Kuala Belait. Heproduces a letter written by himself and dated at Singapore on that day, andbearing the Singapore postmark of that day.
The statement in the date of the letter is admissible, because if A were dead it would be admissible under paragraph (b) of section 32.
(d) A is accused of receiving stolen goods, knowing them to bestolen.
He offers to prove that he refused to sell them below their value.
A may prove these statements though they are admissions, because theyare explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeitcoin which he knew to be counterfeit.
He offers to prove that he asked a skilful person to examine the coin as hedoubted whether it was counterfeit or not, and that that person did examine itand told him it was genuine.
A may prove these facts for the reasons stated in the last precedingillustration.
When oral admissions as to contents of documents are relevant.
22. Oral admissions as to the contents of a document are not relevantunless and until the party proposing to prove them shows that he is entitled togive secondary evidence of the contents of such document under the ruleshereinafter contained, or unless the genuineness of a document produced is inquestion.
Admissions in civil cases when relevant.
23. In civil cases no admission is relevant if it is made either uponan express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreedtogether that evidence of it should not be given.
Explanation — Nothing in this section shall be taken to exemptany advocate or solicitor from giving evidence of any matter of which he may becompelled to give evidence under section 126.
Confession caused by inducement, threat or promise when irrelevant incriminal proceeding.
24. A confession made by an accused person is irrelevant in a criminalproceeding if the making of the confession appears to the court to have beencaused by any inducement, threat or promise having reference to the chargeagainst the accused person, proceeding from a person in authority andsufficient in the opinion of the court to give the accused person grounds
which would appear to him reasonable for supposing that by making it he wouldgain any advantage or avoid any evil of a temporal nature in reference to theproceeding against him.
25. (Repealed).
[S 38/87]
26. (Repealed).
[S 38/87]
How much of information received from accused may be proved.
27. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of apolice officer, so much of such information, whether such information amounts toa confession or not, as relates distinctly to the fact thereby discovered may beproved.
Confession made after removal of impression caused by inducement, threator promise relevant.
28. If such a confession as is referred to in section 24 is made afterthe impression caused by any such inducement, threat or promise has, in theopinion of the court, been fully removed, it is relevant.
Confession otherwise relevant not to become irrelevant because ofpromise of secrecy etc.
29. If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or inconsequence of a deception practised on the accused person for the purpose ofobtaining it, or when he was drunk, or because it was made in answer toquestions which he need not have answered, whatever may have been the form ofthose questions, or because he was not warned that he was not bound to make suchconfession and that evidence of it might be given against him.
Consideration of proved confession affecting person making it andothers jointly under trial for same offence.
30. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation — “Offence” as used in this sectionincludes the abetment of or attempt to commit the offence.
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said: “ B and I murdered C ”. The court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidenceto show that C was murdered by A and B and that B said: “ A and I murdered C ”.
This statement may not be taken into consideration by the court against A as B is not being jointly tried.
Admissions not conclusive proof but may estop.
31. Admissions are not conclusive proof of the matters admitted, butthey may operate as estoppels under the provisions hereinafter contained.
Statement by Persons who cannot be called as Witnesses
Cases in which statement of relevant fact by person who is dead or cannotbe found etc. is relevant.
32. Statements, written or verbal, of relevant facts made by a personwho is dead or who cannot be found, or who has become incapable of givingevidence, or whose attendance cannot be procured without an amount of delay orexpense which under the circumstances of the case appears to the courtunreasonable, are themselves relevant facts in the following cases —
(a) when the statement is made by a person as to the cause of hisdeath, or as to any of the circumstances of the transaction which resulted inhis death, in cases in which the cause of that person’s death comes intoquestion.
Such statements are relevant whether the person who made them was or was notat the time when they were made under expectation of death, and whatever may bethe nature of the proceeding in which the cause of his death comes intoquestion;
(b) when the statement was made by such person in the ordinary courseof business, and in particular when it consists of any entry or memorandum madeby him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him ofthe receipt of money, goods, securities or property of any kind; or of adocument used in commerce, written or signed by him, or of the date of a letteror other document usually dated, written or signed by him;
(c) when the statement is against the pecuniary or proprietaryinterest of the person making it, or when, if true, it would expose him or wouldhave exposed him to a criminal prosecution or to a suit for damages;
(d) when the statement gives the opinion of any such person as to theexistence of any public right or custom or matter of public or general interest,of the existence of which if it existed he would have been likely to be aware,and when such statement was made before any controversy as to such right, customor matter had arisen;
(e) when the statement relates to the existence of anyrelationship by blood, marriage or adoption between persons as to whoserelationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made beforethe question in dispute was raised;
(f) when the statement relates to the existence of anyrelationship by blood, marriage or adoption between persons deceased, andis made in any will or deed relating to the affairs of the family to which anysuch deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements areusually made, and when such statement was made before the question in disputewas raised;
(g) when the statement is contained in any deed or otherdocument which relates to any such transaction as is mentioned in paragraph (a) of section 13;
(h) when the statement was made by a number of persons and expressedfeelings or impressions on their part relevant to the matter in question.
Illustrations
(a) The question is whether A was murdered by B ; or
A dies of injuries received in a transaction in the course of which she was ravished.
The question is whether she was ravished by B ; or
The question is whether A was killed by B under suchcircumstances that a suit would lie against B by A’s widow.
Statements made by A as to the cause of his or her death, referringrespectively to the murder, the rape and the actionable wrong underconsideration, are relevant facts.
(b) The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon regularly kept in the course ofbusiness, stating that on a given day he attended A’s mother anddelivered her a son, is a relevant fact.
(c) The question is whether A was in Seria on a givenday.
A statement in the diary of a deceased solicitor regularly kept in thecourse of business that on a given day the solicitor attended A at aplace mentioned in Seria for the purpose of conferring with him upon specifiedbusiness is a relevant fact.
(d) The question is whether a ship sailed from Bandar Seri Begawan on a given day.
A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bandar Seri Begawan is a relevant fact.
(e) The question is whether rent was paid to A for certainland.
A letter from A’s deceased agent to B , saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.
(f) The question is whether A and B were legallymarried.
The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.
(g) The question is whether A , a person who cannot be found,wrote a letter on a certain day.
The fact that a letter written by him is dated on that day is relevant.
(h) The question is, what was the cause of the wreck of a ship?
A protest made by the captain, whose attendance cannot be procured, is arelevant fact.
(i) The question is whether a given road is a public way.
A statement by A , a deceased Penghulu of the Mukim , that theroad was public is a relevant fact.
(j) The question is, what was the price of shares on a certain day in a particular market?
A statement of the price made by a deceased broker in the ordinary course ofhis business is a relevant fact.
(k) The question is whether A , who is dead, was the fatherof B.
A statement by A that B was his son is a relevant fact.
(l) The question is, what was the date of the birth of A ?
A letter from A’s deceased father to a friend, announcing thebirth of A on a given day, is a relevant fact.
(m) The question is whether and when A and B weremarried.
An entry in a memorandum-book by C , the deceased father of B , of his daughter’s marriage with A on a given date, is arelevant fact.
(n) A sues B for a libel expressed in a printed caricatureexposed in a shop- window. The question is as to the similarity of thecaricature and its libellous character.
The remarks of a crowd of spectators on these points may be proved.
Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated.
33. Evidence given by a witness in a judicial proceeding, or beforeany person authorised by law to take it, is relevant for the purpose of provingin a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness isdead or cannot be found or is incapable of giving evidence, or is kept out ofthe way by the adverse party, or if his presence cannot be obtained without anamount of delay or expense which under the circumstances of the case the courtconsiders unreasonable:
Provided —
(a) that the proceeding was between the same parties or theirrepresentatives in interest;
(b) that the adverse party in the first proceeding has the right andopportunity to cross-examine;
(c) that the questions in issue were substantially the same in thefirst as in the second proceeding.
Explanation — A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within themeaning of this section.
Statements made under Special Circumstances
Entries in books of account when relevant.
34. Entries in books of accounts regularly kept in the course ofbusiness are relevant whenever they refer to a matter into which the court hasto inquire, but such statements shall not alone be sufficient evidence to chargeany person with liability.
Illustration
A sues B for $1,000 and shows entries in his account-booksshowing B to be indebted to him to this amount. The entries arerelevant, but are not sufficient without other evidence to prove the debt.
Relevancy of entry in public record made in performance of duty.
35. An entry in any public or other official book, register or record,stating a fact in issue or relevant fact and made by a public servant in thedischarge of his official duty or by any other person in performance of a dutyspecially enjoined by the law of the country in which such book, register orrecord is kept, is itself a relevant fact.
Admissibility of statements produced by computers. [S29/97]
35A. (1) In any proceedings, a statement contained in documentproduced by a computere shall be admissible as evidence of any fact statedtherein of which direct oral evidence would be admissible, if it is shown thatthe conditions mentioned in subsection (2) are satisfied in relation tothe statement and computer in question.
(2) The said conditions are —
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried 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 computerin the oridinary course of those activities information of the kind contained in the statement or of the kind from which the information so containedis derived;
(c) that throughout the material part of that period the computer wasoperating properly or, if not, that any respect in which it was not operatingproperly or was out of operation during that part of that period was not such asto affect the production of the document or the accuracy of its contents;and
(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary courseof those activities.
(3) Where over a period the function of storing or processinginformation for the purposes of any activities regularly carried on over thatperiod as mentioned in subsection (2) (a) was regularly performed by computers, whether —
(a) by a combination of computers operating over that period;
(b) by different computers operating in succession over thatperiod;
(c) by different combination of computers operating insuccession over that period; or
(d) in any other manner involving the successive operation over thatperiod, in whatever order, of one or more computers and one or more combinationof computers,
all the computers used for that purpose during that period shall be treatedfor the purposes of this Act as constituting a single computer; and referencesin this Act to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidenceby virtue of this section, a certificate doing any of the following things—
(a) identifying the document containing the statement anddescribing the manner in which it was produced;
(b) giving such particulars of any device involved in theproduction of that document as may be appropriate for the purpose of showingthat the document was produced by a computer;
(c) dealing with any of the matters to which the conditionsmentioned in subsection (2) relate,
and purporting to be signed by a person holding a responsible position inrelation to the operation of the relevant device or the management of therelevant activities (whichever is appropriate) shall be evidence of any matterstated in the certificate; and for the purposes of this subsection it shall besufficient for a matter to be stated to the best of the knowledge and belief ofthe person stating it.
(5) Notwithstanding subsection (4), in any such proceedings as are thereinmentioned the court may for special cause require oral evidence to be given ofany matter of which evidence could ordinarily be given by means of a certificateunder that subsection.
(6) If any person in a certificate tendered in evidence in anyproceedings by virtue of subsection (4) intentionally makes a statement materialin those proceedings which he knows to be false or does not believe to be true,he shall be guilty of an offence and shall be liable on conviction toimprisonment for a term not exceeding 2 years or to a fine or to both.
(7) For the purposes of this Act —
(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 supplieddirectly or (with or without human intervention) by means of any appropriateequipment;
(b) where in the course of activities carried on by any individual orbody, where corporate of not, information is supplied with a view to its beingstored or processed for the purposes of those activities by a computer operatedotherwise than in the course of those activities, that information, if dulysupplied to that computer, shall be taken to be supplied to it in the course ofthose activities;
(c) a document shall be taken to have been produced by acomputer whether it was produced by it directly or (with or without humanintervention) by means of any appropriate equipment.
(8) Subject to subsection (3), in this Act “computer” means anydevice for storing and processing information, and any reference toinformation being derived from other information is a reference to its beingderived therefrom by calculation, comparison or any other process.
Provisions supplementary to section 35A. [S 29/97]
35B. (1) Where in any proceedings a statement contained in adocument is admissible in evidence by virtue of section 35A, it may be proved bythe production of that document or (whether or not that doucment is still inexistence) by the production of a copy of that document, or of the material partthereof, authenticated in such manner as the court may approve.
(2) For the purpose of deciding whether or not a statement isadmissible in evidence by virtue of section 35A, the court may draw anyreasonable inference from the circumstances in which the statement was made or otherwise came into being or from any other circumstances, including, inthe case of a statement contained in a document, the form and contents of thatdocument.
(3) In estimating the weight, if any, to be attached to a statementadmissible in evidence by virtue of section 35A, regard shall be had to all thecircumstances from which any inference can reasonably be drawn as to theaccuracy or otherwise of the statement and, in particular, to the questionwhether or not the information which the information contained in thestatement reproduces or is derived from was supplied to the relevantcomputer, or recorded for the purpose of being supplied thereto, contemporaneously with the occurence or existence of the facts dealtwith in that information, and to the question whether or not any personconcerned with the supply of information to that computer or with the operationof that computer or any equipment by means of which the document containing thestatement was produced by it, had any incentive to conceal or misrepresent thefacts.
Relevancy of statements in maps, charts and plans.
36. Statements of facts in issue or relevant facts made in publishedmaps or charts generally offered for public sale, or in maps or plans made underthe authority of Government as to matters usually represented or stated in suchmaps, charts or plans, are themselves relevant facts.
Relevancy of statement as to fact of public nature contained incertain
Acts or notifications.
37. When the court has to form an opinion as to the existence of anyfact of a public nature any statement of it made in a recital contained in—
(a) any legislation enacted by the Legislative Council or by thelegislature of any part of the Commonwealth;
(b) any printed paper purporting to be —
(i) the Gazette printed under the authority of the Government of Brunei Darussalam;
(ii) the London Gazette ; or
(iii) the Gazette of any other part of the Commonwealth including, where any part thereof is both under a central Government and a localGovernment, any such local Government,
is a relevant fact.
Relevancy of statements as to any law contained in law books.
38. When the court has to form an opinion as to a law of any country,any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country, andto contain any such law, and any report of a ruling of the courts of suchcountry contained in a book purporting to be a report of such rulings, isrelevant.
How much of a Statement is to be Proved
What evidence to be given when statement forms part of a conversation,document, book or series of letters or papers.
39. When any statement of which evidence is given forms part of a longer statement or of a conversation, or part of an isolated document or is contained in a document which forms part of a book or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, book or series of letters or papers as the court considers necessary in that particular case to the full understanding of the nature and effect of the statement and of the circumstances under which it was made.
Judgments of Courts of Justice When Relevant
Previous judgements relevant to bar a second suit or trial.
40. The existence of any judgement, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial is arelevant fact when the question is whether such court ought to takecognisance of such suit or to hold such trial.
Relevancy of certain judgements in probate etc. jurisdiction.
41. (1) A final judgement, order or decree of a competent court, inthe exercise of probate, matrimonial, admiralty or bankruptcy jurisdiction,which confers upon or takes away from any person any legal character, or whichdeclares any person to be entitled to any such character, or to be entitled toany specific thing, not as against any specified person but absolutely, isrelevant when the existence of any such legal character or the title of any suchperson to any such thing is relevant.
(2) Such judgement, order or decree is conclusive proof —
(a) that any legal character which it confers accrued at the time whensuch judgement, order or decree came into operation;
(b) that any legal character to which it declares any such person tobe entitled accrued to that person at the time when such judgement, order ordecree declares it to have accrued to that person;
(c) that any legal character which it takes away from any such personceased at the time from which such judgement, order or decree declared that ithad ceased or should cease; and
(d) that anything to which it declares any person to be soentitled was the property of that person at the time from which such judgement,order or decree declares that it had been or should be his property.
Relevancy and effect of judgements, orders or decrees other than thosementioned in section 41.
42. Judgements, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the inquiry; but such judgements, orders or decrees are not conclusive proof of that which they state.
Illustration
A sues B for trespass on his land. B alleges theexistence of a public right of way over the land which A denies.
The existence of a decree in favour of the defendant in a suit by A against C for a trespass on the same land in which C allegedthe existence of the same right of way is relevant, but it is not conclusiveproof that the right of way exists.
Judgements etc. other than those mentioned in sections 40 to 42 whenrelevant.
43. Judgements, orders or decrees other than those mentioned in sections 40, 41 and 42 are irrelevant unless the existence of such judgement, order or decree is a fact in issue or is relevant under some other provision of this Act.
Illustrations
(a) A and B separately sue C for a libel which reflectsupon each of them. C in each case says that the matter alleged to belibellous is true, and the circumstances are such that it is probably true ineach case or in neither.
A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.
(b) A prosecutes B under section 498 of the Penal Code(Chapter 22) for enticing away C , A’s wife.
B denies that C is A’s wife, but the Courtconvicts B.
Afterwards C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife.
The judgement against B is irrelevant as against C.
(c) A has obtained a decree for the possession of land against B.C , B’s son, murders A in consequence.
The existence of the judgement is relevant as showing motive for a crime.
(d) A is charged with theft and with having been previously convictedof theft. The previous conviction is relevant as a fact in issue.
(e) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced isrelevant under section 8 as showing the motive for the fact in issue.
Fraud or collusion in obtaining judgement or incompetency of court may beproved.
44. Any party to a suit or other proceeding may show that anyjudgement, order or decree which is relevant under section 40, 41 or 42, andwhich has been proved by the adverse party, was delivered by a court notcompetent to deliver it or was obtained by fraud or collusion.
Opinions of Third Persons When Relevant
Opinions of experts.
45. (1) When the court has to form an opinion upon a point offoreign law or of science or art, or as to identity or genuineness ofhandwriting or finger impressions, the opinions upon that point of personsspecially skilled in such foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, arerelevant facts.
(2) Such persons are called experts.
Illustrations
(a) The question is whether the death of A was caused bypoison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.
(b) The question is whether A , at the time of doing a certainact, was, by reason of unsoundness of mind, incapable of knowing the nature ofthe act or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mindusually renders persons incapable of knowing the nature of the acts which theydo or of knowing that what they do is either wrong or contrary to law, arerelevant.
(c) The question is whether a certain document was written by A. Another document is produced which is proved or admitted to have beenwritten by A.
The opinions of experts on the question whether the 2 documents were writtenby the same person or by different persons are relevant.
Facts bearing upon opinions of experts.
46. Facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts when such opinions arerelevant.
Illustrations
(a) The question is whether A was poisoned by a certainpoison.
The fact that other persons who were poisoned by that poison exhibited certain symptoms, which experts affirm or deny to be the symptoms of that poison, is relevant.
(b) The question is whether an obstruction to a harbour is caused by a certain sea-wall.
The fact that other harbours similarly situated in other respects but wherethere were no such sea-walls began to be obstructed at about the same time isrelevant.
Opinion as to handwriting when relevant.
47. When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person, is a relevant fact. Explanation — A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
Illustrations
The question is whether a given letter is in the handwriting of A , a merchant in London.
B is a merchant in Kuala Belait, who has written letters addressed to A and received letters purporting to be written by him. C is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting to be written by A , for the purpose of advising with him thereon.
The opinions of B , C and D on the question whether the letter is in the handwriting of A are relevant, thoughneither B , C nor D ever saw A write.
Opinion as to existence of right or custom when relevant.
48. When the court has to form an opinion as to the existence of anygeneral custom or right, the opinions as to the existence of such custom orright of persons who would be likely to know of its existence, if it existed,are relevant.
Explanation — The expression “general custom or right” includes customs or rights common to any considerable class ofpersons.
Illustration
The right of the inhabitants of a particular kampong to use the water of a particular well is a general right within the meaning of thissection.
Opinion as to usages, tenets etc. when relevant.
49. When the court has to form an opinion as to —
(a) the usages and tenets of any body of men or family;
(b) the constitution and government of any religious orcharitable foundation; or
(c) the meaning of words or terms used in particular districts or byparticular classes of people,
the opinions of persons having special means of knowledge thereon arerelevant facts.
Opinion on relationship when relevant.
50. (1) When the court has to form an opinion as to the relationshipof one person to another, the opinion expressed by conduct as to the existenceof such relationship of any person who as a member of the family orotherwise has special means of knowledge on the subject is a relevant fact.
(2) Such opinion shall not be sufficient to prove a marriage inprosecutions under section 494, 495 or 498 of the Penal Code (Chapter 22).
Illustrations
(a) The question is whether A and B were married.
The fact they were usually received and treated by their friends as husbandand wife is relevant.
(b) The question is whether A was a legitimate son of of B.
The fact that A was always treated as such by members of the family isrelevant.
Grounds of opinion when relevant.
51. Whenever the opinion of any living person is relevant, the groundson which such opinion is based are also relevant.
Illustration
An expert may give an account of experiments performed by him for the purposeof forming his opinion.
Character When Relevant
In civil cases character to prove conduct imputed irrelevant.
52. In civil cases the fact that the character of any person concernedis such as to render probable or improbable any conduct imputed to him isirrelevant, except in so far as such character appears from facts otherwiserelevant.
In criminal cases previous good character relevant.
53. In criminal proceedings the fact that the person accused is of agood character is relevant.
Previous bad character not relevant except in reply.
54. In criminal proceedings the fact that the accused person has a badcharacter is irrelevant, unless evidence has been given that he has a goodcharacter, in which case it becomes relevant.
Explanation 1 — This section does not apply to cases in whichthe bad character of any person is itself a fact in issue.
Explanation 2 — A previous conviction is relevant as evidence ofbad character.
Character as affecting damages.
55. In civil cases the fact that the character of any person is suchas to affect the amount of damages which he ought to receive is relevant.
Explanation — In sections 52, 53, 54 and 55 the word “character” includes both reputation and disposition; but, except as provided in section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition is shown.
PART II
ON PROOF
Chapter III
Facts which need not be Proved
Fact judicially noticeable need not be proved.
56. No fact of which the court will take judicial notice need beproved.
Facts of which court must take judicial notice.
57. (1) The court shall take judicial notice of the following facts—
(a) all laws or regulations having the force of law now orheretofore in force or hereafter to be in force in any part of BruneiDarussalam;
(b) all public Acts passed or hereafter to be passed byParliament, and all local and personal Acts directed by Parliament to bejudicially noticed;
(c) articles of war for the Armed Forces or any visiting forceslawfully present in Brunei Darussalam;
(d) the course of proceeding of the Legislative Council;
Explanation — The word “Parliament” in paragraphs (b) and (d) means —
(i) The Parliament of the United Kingdom of Great Britain and Northern Ireland;
(ii) The Parliament of the United Kingdom of Great Britain and Ireland;
(iii) The Parliament of Northern Ireland;
(iv) The Parliament of Great Britain;
(v) The Parliament of England;
(vi) The Parliament of Scotland; and
(vii) The Parliament of Ireland prior to the 1st. day of January, 1801;
(e) the accession of His Majesty the Sultan and Yang Di-Pertuan;
(f) the accession and the sign manual of the Sovereign for the timebeing of the United Kingdom;
(g) all seals of which Brunei Darussalam Courts take judicial notice,the seals of all the Courts of Brunei Darussalam, the seals of Courts ofAdmiralty and maritime jurisdiction and of notaries public, and all seals whichany person is authorised to use by any law in force for the time being in BruneiDarussalam;
(h) the accession to office, names, titles, functions and signatures of the persons filling for the time being any public office inany part of Brunei Darussalam, if the fact of their appointment to such officeis notified in the Gazette ;
(i) the existence, title and national flag of every State or Sovereign recognised by His Majesty;
(j) the ordinary course of nature, natural and artificial divisions oftime, the geographical divisions of the world, the meaning of Malay and Englishwords, and public festivals, fasts and holidays notified in the Gazette ;
(k) the Commonwealth countries;
(l) the commencement, continuance and termination ofhostilities between Brunei Darussalam or any part of theCommonwealth and any other State or body of persons;
(m) the names of the members and officers of the court and of theirdeputies and subordinate officers and assistants, and also of all officersacting in execution of its process, and of all advocates and solicitors andother persons authorised by law to appear or act before it;
(n) the rule of the road on the land, sea regulations and the rules ofthe air;
(o) all other matters which it is directed by any written law tonotice.
(2) In all these cases, and also on all matters of public history,literature, science or art, the court may resort for its aid to appropriatebooks or documents of reference.
(3) If the court is called upon by any person to take judicial notice ofany fact, it may refuse to do so unless and until such person produces any suchbook or document as it considers necessary to enable it to do so.
Facts admitted need not be proved.
58. (1) No fact need be proved in any proceeding which the partiesthereto or their agents agree to admit at the hearing or which before thehearing they agree to admit by any writing under their hands, or which by anyrule of pleading in force at the time they are deemed to have admitted by theirpleadings.
(2) The court may, in its discretion, require the facts admitted to beproved otherwise than by such admissions.
Chapter IV
Of Oral Evidence
Proof of facts by oral evidence.
59. All facts, except the contents of documents, may be proved by oralevidence.
Oral evidence must be direct.
60. (1) Oral evidence must in all cases whatever be direct—
(a) if it refers to a fact which could be seen, it must be theevidence of a witness who says he saw that fact;
(b) if it refers to a fact which could be heard, it must be theevidence of a witness who says he heard that fact;
(c) if it refers to a fact which could be perceived by any other senseor in any other manner, it must be the evidence of a witness who says heperceived that fact by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinionis held, it must be the evidence of the person who holds that opinion on thosegrounds.
(2) The opinions of experts expressed in any treatise commonlyoffered for sale and the grounds on which such opinions are held may be provedby the production of such treatise if the author is dead or cannot be found orhas become incapable of giving evidence or cannot be called as a witness withoutan amount of delay or expense which the court regards as unreasonable.
(3) If oral evidence refers to the existence or condition of anymaterial thing other than a document, the court may, if it thinks fit, requirethe production of such material thing for its inspection.
Chapter V
Of Documentary Evidence
Proof of contents of documents.
61. The contents of documents may be proved either by primary or bysecondary evidence.
Primary evidence.
62. Primary evidence means the document itself produced for the inspection of the court.
Explanation 1 — Where a document is executed in several parts,each part is primary evidence of the document.
Where a document is executed in counterpart, each counterpart being executedby one or some of the parties only, each counterpart is primary evidence asagainst the parties executing it.
Explanation 2 — Where a number of documents are all made by oneuniform process, as in the case of printing, lithography or photography, each isprimary evidence of the contents of the rest; but where they are all copies of acommon original they are not primary evidence of the contents of theoriginal.
Illustration
A person is shown to have been in possession of a number of placards, allprinted at one time from one original. Any one of the placards is primaryevidence of the contents of any other, but no one of them is primary evidence ofthe contents of the original.
Secondary evidence.
63. Secondary evidence includes —
(a) certified copies given under the provisions hereinaftercontained;
(b) copies made from the original by mechanical processes, which inthemselves ensure the accuracy of the copy, and copies compared with suchcopies;
(c) copies made from or compared with the original;
(d) counterparts of documents as against the parties who did notexecute them;
(e) oral accounts of the contents of a document given by some personwho has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents,though the two have not been compared, if it is proved that the thingphotographed was the original.
(b) A copy compared with a copy of a letter made by a copying machineis secondary evidence of the contents of the letter if it is shown that the copymade by the copying machine was made from the original.
(c) A copy transcribed from a copy but afterwards compared with theoriginal is secondary evidence, but the copy not so compared is not secondaryevidence of the original, although the copy from which it was transcribed wascompared with the original.
(d) Neither an oral account of a copy compared with the original noran oral account of a photograph or machine-copy of the original is secondaryevidence of the original.
Proof of documents by primary evidence.
64. Documents must be proved by primary evidence except in the caseshereinafter mentioned.
Cases in which secondary evidence relating to documents may begiven.
65. Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the followingcases —
(a) when the original is shown or appears to be in thepossession or power —
(i) of the person against whom the document is sought to be proved; or
(ii) of any person out of reach of or not subject to the process of thecourt; or
(iii) of any person legally bound to produce it,
and when after the notice mentioned in section 66 such person does notproduce it;
(b) when the existence, condition or contents of the original havebeen proved to be admitted in writing by the person against whom it is proved orby his representative in interest;
(c) when the original has been destroyed or lost, or when the partyoffering evidence of its contents cannot for any other reason not arising fromhis own default or neglect produce it in reasonable time;
(d) when the original is of such a nature as not to be easilymovable;
(e) when the original is a public document within the meaning ofsection 74;
(f) when the original is a document of which a certified copy ispermitted by this Act or by any other law in force for the time being in BruneiDarussalam to be given in evidence;
(g) when the originals consist of numerous accounts or other documentswhich cannot conveniently be examined in court, and the fact to be proved is thegeneral result of the whole collection.
In cases (a) , (c) and (d) any secondary evidence ofthe contents of the document is admissible.
In case (b) the written admission is admissible.
In case (e) or (f) a certified copy of the document but noother kind of secondary evidence is admissible.
In case (g) evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in theexamination of such documents.
Rules as to notice to produce.
66. Secondary evidence of the contents of the documents referred to in paragraph (a) of section 65 shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his solicitor, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to rendersecondary evidence admissible in any of the following cases or in any other casein which the court thinks fit to dispense with it —
(a) when the document to be proved is itself a notice;
(b) when from the nature of the case the adverse party must know thathe will be required to produce it;
(c) when it appears or is proved that the adverse party hasobtained possession of the original by fraud or force;
(d) when the adverse party or his agent has the original in court;
(e) when the adverse party or his agent has admitted the loss of thedocument;
(f) when the person in possession of the document is out of reach ofor not subject to the process of the court.
Proof of signature and handwriting of person alleged to have signed orwritten document produced.
67. (1) If a document is alleged to be signed or to have beenwritten wholly or in part by any person, the signature or the handwriting of somuch of the document as is alleged to be in that person’s handwriting mustbe proved to be in his handwriting.
[S 93/00]
(2) This section shall not apply to any electronic record or electronicsignature to which the Electronic Transactions Order, 2000 applies.
[S 93/00]
Proof of execution of document required by law to be attested.
68. If a document is required by law to be attested, it shall not beused as evidence until one attesting witness at least has been called for thepurpose of proving its execution, if there is an attesting witness alive andsubject to the process of the court and capable of giving evidence.
Proof where no attesting witness found.
69. If no such attesting witness can be found, or if the documentpurports to have been executed in the United Kingdom, it must be proved that theattestation of one attesting witness at least is in his handwriting, and thatthe signature of the person executing the document is in the handwriting of thatperson.
Admission of execution by party to attested document.
70. The admission of a party to an attested document of its executionby himself shall be sufficient proof of its execution as against him, though itis a document required by law to be attested.
Proof when attesting witness denies the execution.
71. If the attesting witness denies or does not recollect theexecution of the document, its execution may be proved by other evidence.
Proof of document not required by law to be attested.
72. An attested document not required by law to be attested may beproved as if it was unattested.
Comparison of signature, writing or seal with others admitted orproved.
73. (1) In order to ascertain whether a signature, writing or sealis that of the person by whom it purports to have been written or made, anysignature, writing or seal, admitted or proved to the satisfaction of the courtto have been written or made by that person, may be compared by a witness or bythe court with the one which is to be proved, although that signature, writingor seal has not been produced or proved for any other purpose.
(2) The court may direct any person present in court to write any words orfigures for the purpose of enabling the court to compare the words or figures sowritten with any words or figures alleged to have been written by suchperson.
(3) This section applies also, with any necessary modifications, to fingerimpressions.
Documentary evidence. [S 29/97]
73A. (1) Notwithstanding anything contained in this Act, in any civil proceedings where direct oral evidence of a fact would be admissible,any statement made by a person in a document and tending to establish that factshall, on production of the original document, be admissible as evidence of thatfact 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 purportingto be a continuous record, made the statement (so far as the matters dealt withthereby are not within his personal knowledge) in the performance of a duty torecord information supplied to him by a person who had, or might reasonably besupposed to have had, personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in theproceedings:
Provided that the condition that the maker of the statement shall be calledas a witness need not be satisfied if he is dead, or unfit by reason of hisbodily or mental condition to attend as a witness, or if he is outside BruneiDarussalam and it is not reasonably practicable to secure his attendance, or ifall reasonable efforts to find him have been made without success.
(2) In any civil proceedings, the court may at any stage of theproceedings, if having regard to all the circumstances of the case itis satisfied that undue delay or expense would otherwise be caused, order thatsuch a statement as is mentioned in subsection (1) shall be admissible asevidence or may, without any such order having been made, admit such a statementin evidence —
(a) notwithstanding that the maker of the statement is available butis not called as a witness; and
(b) notwithstanding that the original document is not produced, if, inlieu thereof, there is produced a copy of the original document or of thematerial part hereof certified to be a true copy in such manner as may bespecified in the order or as the court may approve, as the case may be.
(3) Nothing in this section shall render admissible as evidence anystatement made by a person interested at a time when proceedings were pending oranticipated, involving a dispute as to any fact which the statement might tendto establish.
(4) For the purposes of this section, a statement in a document shall notbe deemed to have been made by a person unless the document, or the materialpart thereof, was written, made or produced by him with his own hand, or wassigned or intialled by him, or otherwise recognised by him in writing as one forthe accuracy of which he is responsible.
(5) For the purpose of deciding whether or not a statement isadmissble as evidence by virtue of subsections (1) to (4), the court may drawany reasonable inference from the form or contents of the document in which thestatement is contained, or from any other circumstances, and may, in decidingwhether or not a person is fit to attend as a witness, act on a certificatepurporting to be the certificate of a registered medical practitioner, and thecourt may in its discretion reject the statement notwithstanding that therequirements of this section are satisfied with respect thereto, if for anyreason, it appers to it to be inexpedient in the interests of justice that thestatement should be admitted.
(6) In estimating the weight, if any, to be attached to a statementrendered admissible as evidence by this Act, regard shall be had to all thecircumstances from which any inference can reasonabley be drawn as to theaccuracy or otherwise of the statement, and, in particular, to the questionwhether or not the statement was made contemporaneously with theoccurence or existence of the facts stated, and to the question whether or notthe maker of the statement had any incentive to conceal of misrepresentfacts.
(7) For the purpose of any rule of law or practice requiring evidence to be corroborated, or regulating the manner in which uncorroboratedevidence is to be treated, a statement rendered admissible as evidence by thisAct shall not be treated as corroboration of evidence given by the maker of thestatement.
Public Documents
Public documents.
74. The following documents are public documents —
(a) documents forming the acts or records of the acts —
(i) of the sovereign authority;
(ii) of official bodies and tribunals; and
(iii) of public officers, legislative, judicial and executive, whether ofBrunei Darussalam or of any other part of the Commonwealth or of a foreigncountry;
(b) public records kept in Brunei Darussalam of privatedocuments.
Private documents.
75. All other documents are private.
Certified copies of public documents.
76. Every public officer having the custody of a public document whichany person has a right to inspect shall give that person on demand a copy of iton payment of the legal fees therefor, together with a certificate, written atthe foot of such copy, that it is a true copy of such document or part thereof,as the case may be, and such certificate shall be dated and subscribed by suchofficer with his name and his official title, and shall be sealed whenever suchofficer is authorised by law to make use of a seal, and such copies so certifiedshall be called certified copies.
Explanation — Any officer who by the ordinary course of officialduty is authorised to deliver such copies shall be deemed to have the custody ofsuch documents within the meaning of this section.
Proof of documents by production of certified copies.
77. Such certified copies may be produced in proof of the contents ofthe public documents or parts of the public documents of which they purport tobe copies.
Proof of certain official documents.
78. (1) The following public documents may be proved as follows—
(a) acts, orders or notifications of the Government of Brunei Darussalam in any of its departments —
by the records of the departments certified by the heads of those departmentsrespectively, or by the State Secretary; or by any document purporting to beprinted by the authority of the Government;
(b) the proceedings of the Legislative Council —
by the minutes of that body or by published Acts or abstracts or by copiespurporting to be printed by the authority of the Government;
(c) proclamations, orders or regulations issued by Her Majesty or by the Privy Council or by any department of Her Majesty’sGovernment —
by copies or extracts contained in the London Gazette or in theGovernment Gazette or purporting to be printed by the Queen’sPrinter;
(d) the acts of the Executive or the proceedings of thelegislature of a foreign country —
by journals published by their authority or commonly received in thatcountry as such, or by a copy certified under the seal of the country orsovereign, or by a recognition thereof in some public Act of BruneiDarussalam;
(e) the proceedings of a municipal body or local Council in
Brunei Darussalam —
by a copy of such proceedings certified by the legal keeper thereof, or by aprinted book purporting to be published by the authority of such body;
(f) public documents of any other class in a foreign country — by the original or by a copy certified by the lawful keeper thereof, with a certificate under the seal of a notary public or of a Brunei Darussalam Consul that the copy is duly certified by the officer having the lawful custody of the original and upon proof of the character of the document according to the law of the foreign country.
[S 13/87]
(2) Copies of Acts, Ordinances and Statutes passed by the legislature of any part of the Commonwealth and of orders, regulations and otherinstruments issued or made under the authority of any such Act, Ordinance orStatute, if purporting to be printed by the Government Printer, shall bereceived in evidence by all courts in Brunei Darussalam without any proof beinggiven that the copies were so printed.
(3) In this section “Government Printer” means, as respects anyterritory in the Commonwealth, the printer purporting to be the printer authorised to print the Acts, Ordinances or Statutes of the legislatureof that territory, or otherwise to be the Government Printer of thatterritory.
Presumptions as to Documents
Presumption as to genuineness of certified copies.
79. (1) The court shall presume to be genuine every document purporting to be a certificate, certified copy or other document whichis by law declared to be admissible as evidence of any particular fact, andwhich purports to be duly certified by any officer in Brunei Darussalam who isduly authorised thereto:
Provided that such document is substantially in the form and purports to beexecuted in the manner directed by law in that behalf.
(2) The court shall also presume that any officer by whom any such documentpurports to be signed or certified held, when he signed it, the officialcharacter which he claims in such document.
Presumption as to documents produced as record of evidence.
80. Whenever any document is produced before any court purporting tobe a record or memorandum of the evidence or of any part of the evidence givenby a witness in a judicial proceeding or before any officer authorised by law totake such evidence, or to be a statement or confession by any prisoner oraccused person, taken in accordance with law and purporting to be signed by anyJudge or magistrate or by any such officer as aforesaid, the court shall presume—
(a) that the document is genuine;
(b) that any statements as to the circumstances under which it wastaken, purporting to be made by the person signing it, are true; and
(c) that such evidence, statement or confession was duly taken.
Prints from films in the possession of the Government or publicbody.
[S 29/97]
80A. (1) A print, whether enlarged or not, purporting to be madefrom a film of any document in the possession of the Government or any publicbody may be produced in proof of the contents of the document or such part ofthe document to which the print purports to be a copy upon proof that—
(a) while the document was in the custody or control of the Governmentor public body the film was taken in order to keep a permanent record thereof;and
(b) the document photographed —
(i) was subsequently destroyed, whether deliberately or otherwise;
(ii) was so damaged as to be wholly or partlyindecipherable;
(iii) was lost; or
(iv) had passed out of the custody or control of the
Government or public body.
(2) Proof —
(a) that a print is made from a film of a document in thepossession of the Government or public body; and
(b) of compliance with the conditions in subsection (1),
may be given in respect of any document or groups of documents by a publicofficer or by an employee of the public body having custody or control of thefilm, orally or by a certificate purporting to be signed by such public officeror employee.
(3) A certificate under subsection (2) shall be admissible in evidence inany proceedings before any court on its production without further proof.
(4) On the production of a certificate under subsection (3), the courtbefore which it is produced shall, until the contrary is proved, presume—
(a) that the facts stated in the certificate relating to the print andthe compliance with the conditions in subsection (1) are true; and
(b) that the certificate purporting to be signed by a publicofficer or an employee of a specified statutory body has been signed by him.
(5) In this section — “film” includes a photographicplate, microfilm and photostatic negative.
Presumption as to Gazettes , newspapers, private Acts of Parliamentand other documents.
81. The court shall presume the genuineness of every document purporting to be the Gazette , the London Gazette or theGovernment Gazette of any part of the Commonwealth, or to be the Gazette issued by the local Government of any part of any part of theCommonwealth, or to be a newspaper or journal, or to be a copy of a private Actof Parliament printed by the Queen’s Printer, and of every documentpurporting to be a document directed by any law to be kept by any person, ifsuch document is kept substantially in the form required by law and is produced from proper custody.
Presumption as to document admissible in England without proof of seal orsignature.
82. When any document is produced before any court, purporting to be adocument which by the law in force for the time being in England orNorthern Ireland would be admissible in proof of any particular in any Court ofJustice in England or Northern Ireland, without proof of the seal or stamp orsignature authenticating it, or of the judicial or official character claimed bythe person by whom it purports to be signed —
(a) the court shall presume that such seal, stamp or signature isgenuine, and that the person signing it held at the time when he signed it thejudicial or official character which he claims;
(b) the document shall be admissible for the same purpose for which itwould be admissible in England or Northern Ireland.
Presumption as to maps or plans made by authority of Government.
83. (1) The court shall presume that maps or plans purporting to bemade by the authority of Government were so made and are accurate.
(2) Maps or plans made for the purposes of any cause or other proceeding,civil or criminal, must be proved to be accurate.
Presumption as to collections of laws and reports of decisions.
84. The court shall presume the genuineness of every book purporting—
(a) to be printed or published under the authority of theGovernment of any country and to contain any of the laws of that country; or
(b) to contain reports of decisions of the courts of such country.
Presumption as to powers of attorney.
85. The court shall presume that every document purporting to be apower of attorney, and to have been executed before and authenticated by aNotary Public or Commissioner for Oaths, or any court, Judge, Magistrate, BruneiDarussalam Consul, so executed and authenticated.
Presumption as to certified copies of foreign judicial records.
86. The court may presume that any document purporting to be acertified copy of any judicial record of any country not forming part of the Commonwealth is genuine and accurate if the document purports to becertified in any manner which is certified by any representative of His Majestyin or for such country to be the manner commonly in use in that country for thecertification of copies of judicial records.
Presumption as to books, maps and charts.
87. The court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place by whom or at which it purports to have been written or published.
Presumption as to telegraphic messages.
88. The court may presume that a message forwarded from a telegraphoffice to the person to whom such message purports to be addressedcorresponds with a message delivered for transmission at the office from whichthe message purports to be sent; but the court shall not make any presumption asto the person by whom such message was delivered for transmission.
Presumption as to due execution etc. of documents not produced.
89. The court shall presume that every document called for and not produced, after notice to produce given under section 66, was attested, stamped and executed in the manner required by law.
Presumption as to documents 30 years old.
90. Where any document purporting or proved to be 30 years old isproduced from any custody which the court in the particular case considersproper, the court may presume that the signature and every other part of suchdocument which purports to be in the handwriting of any particular person is inthat person’s handwriting, and in the case of a document executed orattested, that is was duly executed and attested by the persons by whom itpurports to be executed and attested.
Explanation — Documents are said to be in proper custody if theyare in the place in which and under the care of the person with whom they wouldnaturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case aresuch as to render such an origin probable.
This explanation applies also to section 81.
Illustrations
(a) A has been in possession of landed property for a long time. Heproduces from his custody deeds relating to the land, showing his titles to it.The custody is proper.
(b) A produces deeds relating to landed property of which he is themortgagee. The mortgagor is in possession. The custody is proper.
(c) A , a connection of B , produces deeds relating to lands in B’s possession, which were deposited with him by B for safecustody. The custody is proper.
Chapter VI
Of the Exclusion of Oral by Documentary Evidence
Evidence of terms of contracts, grants and other dispositions of propertyreduced to form of document.
91. When the terms of a contract or of a grant or of any otherdisposition of property have been reduced by or by consent of the parties to theform of a document, and in all cases in which any matter is required by law tobe reduced to the form of a document, no evidence shall be given in proof of theterms of such contract, grant or other disposition of property or of such matterexcept the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbeforecontained.
Exception 1 — When a public officer is required by law to beappointed in writing, and when it is shown that any particular person has actedas such officer, the writing by which he is appointed need not be proved.
Exception 2 — Wills admitted to probate in Brunei Darussalam maybe proved by the probate.
Explanation 1 — This section applies equally to cases in which the contracts, grants or dispositions of property referred to arecontained in one document, and to cases in which they are contained in moredocuments than one.
Explanation 2 — Where there are more originals than one, oneoriginal only need be proved.
Explanation 3 — The statement in any document whatever of afact, other than the facts referred to in this section, shall not preclude theadmission of oral evidence as to the same fact.
Illustrations
(a) If a contract is contained in several letters, all the letters in which it is contained must be proved.
(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need beproved.
(d) A contracts in writing with B for the delivery of pepperupon certain terms. The contract mentions the fact that B had paid A the price of other pepper contracted for verbally on anotheroccasion.
Oral evidence is offered that no payment was made for the other pepper. Theevidence is admissible.
(e) A gives B a receipt for money paid by B.
Oral evidence is offered of the payment. The evidence is admissible.
Exclusion of evidence of oral agreement.
92. When the terms of any such contract, grant