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LAWS OF BRUNEI
2 of 1939
(Cap. 3 of 1951)
1984 Ed. Cap. 108
REVISED EDITION 2002
(15th March 2002)
LAWS OF BRUNEI
REVISED EDITION 2002
ARRANGEMENT OF SECTIONS
RELEVANCY OF FACTS
Of the Relevancy of Facts
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.
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.
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.
Of Oral Evidence
59. Proof of facts by oral evidence.
60. Oral evidence must be direct.
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.
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.
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.
PRODUCTION AND EFFECT OF EVIDENCE
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.
116. Estoppel of tenant and of licensee of person in possession.
117. Estoppel of acceptor of bill of exchange, bailee or licensee.
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.
133A. Evidence of child.
134. Number of witnesses.
134A. Abolition of corroboration rules.
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.
Of Improper Admission and Rejection of Evidence
167. No new trial for improper admission or rejection of 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.
An Act to unify within Brunei Darussalam the law relating to evidence
Commencement: 17th April 1939
RELEVANCY OF FACTS
1. This Act may be cited as the Evidence Act.
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.
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.
(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;
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.
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.
Of the Relevancy of Facts
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.
(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.
(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.
(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.
(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.
(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.
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.
(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.
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.
(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.
(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.
(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.
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.
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.
(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.
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.
(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.
(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:
(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.
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.
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.
(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.
(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.
(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.
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.
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).
(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.
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.
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.
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.
Of Documentary Evidence
Proof of contents of documents.
61. The contents of documents may be proved either by primary or bysecondary 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.
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.
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.
(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.
(2) This section shall not apply to any electronic record or electronicsignature to which the Electronic Transactions Order, 2000 applies.
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.
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.
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.
(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.
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.
(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.
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.
(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 or other disposition ofproperty, or any matter required by law to be reduced to the form of a document,have been proved according to section 91, no evidence of any oral agreement orstatement shall be admitted as between the parties to any such instrument ortheir representatives in interest for the purpose of contra- dicting, varying,adding to, or subtracting from its terms:
Provided that —
(a) any fact may be proved which would invalidate any documentor which would entitle any person to any decree or order relating thereto; suchas fraud, intimidation, illegality, want to due execution, want of capacity inany contracting party, the fact that it is wrongly dated, want or failure ofconsideration, or mistake in fact or law;
(b) the existence of any separate oral agreement, as to anymatter on which a document is silent and which is not inconsistent with itsterms, may be proved, and in considering whether or not this proviso applies,the court shall have regard to the degree of formality of the document;
(c) the existence of any separate oral agreement constituting acondition precedent to the attaching of any obligation under any such contract,grant or disposition of property, may be proved;
(d) the existence of any distinct subsequent oral agreement, torescind or modify any such contract, grant or disposition of property, may be proved except in cases in which such contract, grant or disposition ofproperty is by law required to be in writing, or has been registered accordingto the law in force for the time being as to the registration of documents;
(e) any usage or custom by which incidents not expresslymentioned in any contract are usually annexed to contracts of that description may be proved; provided that the annexing of such incident would not berepugnant to or inconsistent with the express terms of the contract;
(f) any fact may be proved which shows in what manner the language ofa document is related to existing facts.
(a) A policy of insurance is effected on goods “in ships from Brunei Darussalam to London”. The goods are shipped in aparticular ship, which is lost. The fact that that particular ship was orallyexcepted from the policy cannot be proved.
(b) A agrees absolutely in writing to pay B $1,000 on the firstof March, 1893. The fact that at the same time an oral agreement was made thatthe money should not be paid till the 31st of March cannot be proved.
(c) An estate called “the Kranji Tea Estate” is sold by adeed which contains a map of the property sold. The fact that land not includedin the map had always been regarded as part of the estate and was meant to passby the deed cannot be proved.
(d) A enters into a written contract with B to work certainmines, the property of B , upon certain terms. A was induced to doso by a misrepresentation of B as to their value. This fact may beproved.
(e) A institutes a suit against B for the specific performanceof a contract, and also prays that the contract may be reformed as to one of itsprovisions on the ground that that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him tohave the contract reformed.
(f) A orders goods of B by a letter in which nothing is saidas to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied oncredit for a term still unexpired.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words: “Bought of A a horsefor $300”. B may prove the verbal warranty.
(h) A hires lodgings of B and gives B a card on whichis written: “Rooms $80 a month”. A may prove a verbalagreement that these terms were to include partial board.
A hires lodgings of B for a year, and a regularly stampedagreement drawn up by an attorney is made between them. It is silent on thesubject of board. A may not prove that board was included in the termsverbally.
(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount A may prove this.
(j) A and B make a contract in writing to take effect upon thehappening of a certain contingency. The writing is left with B , whosues A upon it. A may show the circumstances under which itwas delivered.
Exclusion of evidence to explain or amend ambiguous document.
93. When the language used in a document is on its face ambiguous ordefective, evidence may not be given of facts which would show its meaning orsupply its defects.
(a) A agrees in writing to sell a horse to B for $500 or $600.Evidence cannot be given to show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given of facts whichwould show how they were meant to be filled.
Exclusion of evidence against application of document to existingfacts.
94. When language used in a document is plain in itself and when itapplies accurately to existing facts, evidence may not be given to show that itwas not meant to apply to such facts.
A conveys to B by deed “my estate at Seria containing100 acres”. A has an estate at Seria containing 100 acres. Evidencemay not be given of the fact that the estate meant was one situated at adifferent place and of a different size.
Evidence as to document unmeaning in reference to existing facts.
95. When language used in a document is plain in itself, but isunmeaning in reference to existing facts, evidence may be given to show that itwas used in a peculiar sense.
A conveys to B by deed “my plantation inSeria”.
A had no plantation in Seria, but it appears that he had a plantation in Kuala Belait, of which B had been in possession since the execution of the deed.
These facts may be proved to show that the deed related to the plantation in Kuala Belait.
Evidence as to application of language which can apply to one only ofseveral persons.
96. When the facts are such that the language used might have beenmeant to apply to any one, and could not have been meant to apply to more thanone of several persons or things, evidence may be given of facts which show towhich of those persons or things it was intended to apply.
(a) A agrees to sell to B for $500 “my whitehorse”. A has 2 white horses. Evidence may be given of facts whichshow which of them was meant.
(b) A agrees to accompany B to Halifax. Evidence may begiven of facts showing whether Halifax in England or Halifax in Canada wasmeant.
Evidence as to application of language to one of two sets of facts toneither of which the whole correctly applies.
97. When the language used applies partly to one set of existing factsand partly to another set of existing facts, but the whole of it does not applycorrectly to either, evidence may be given to show to which of the 2 it wasmeant to apply.
A agrees to sell to B “my land at X in theoccupation of Y ”. A has land at X , but not in theoccupation of Y , and he has land in the occupation of Y , but it isnot at X. Evidence may be given of facts showing which he meant tosell.
Evidence as to meaning of illegible characters etc.
98. Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, localand provincial expressions, of abbreviations and of words used in a peculiarsense.
A , a sculptor, agrees to sell to B “all my mods”. A has both models and modelling tools. Evidence may be given to showwhich he meant to sell.
Who may give evidence of agreement varying terms of document.
99. Persons who are not parties to a document or their representativesin interest may give evidence of any facts tending to show a contemporaneousagreement varying the terms of the document.
A and B make a contract in writing that B shall sell A certain tin to be paid for on delivery. At the same time they make anoral agreement that three months’ credit shall be given to A. Thiscould not be shown as between A and B , but it might be shown by C if it affected his interests.
Construction of wills not affected.
100. Nothing in sections 91 to 99 shall affect the construction ofwills.
PRODUCTION AND EFFECT OF EVIDENCE
Of the Burden of Proof
Burden of proof.
101. (1) Whoever desires any court to give judgement as to any legalright or liability, dependent on the existence of facts which he asserts, mustprove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is saidthat the burden of proof lies on that person.
(a) A desires a court to give judgement that B shall bepunished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b) A desires a court to give judgement that he is entitled to certainland in the possession of B by reason of facts which he asserts and which B denies to be true.
A must prove the existence of those facts.
On whom burden of proof lies.
102. The burden of proof is a suit or proceeding lies on that personwho would fail if no evidence at all were given on either side.
(a) A sues B for land of which B is in possession, andwhich, as A asserts, was left to A by the will of C , B’s father.
If no evidence were given on either side, B would be entitled to hispossession.
Therefore, the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it wasobtained by fraud, which A denies.
If no evidence were given on either side, A would succeed as thebond is not disputed and the fraud is not proved.
Therefore, the burden of proof is on B.
Burden of proof as to particular fact.
103. The burden of proof as to any particular fact lies on that personwho wishes the court to believe in its existence, unless it is provided by anylaw that the proof of that fact shall lie on any particular person.
(a) A prosecutes B for theft and wishes the court to believethat B admitted the theft to C. A must prove the admission.
(b) B wishes the court to believe that at the time in question he waselsewhere. He must prove it.
Burden of proving fact to be proved to make evidence admissible.
104. The burden of proving any fact necessary to be proved in order toenable any person to give evidence of any other fact, is on the person whowishes to give such evidence.
(a) A wishes to prove a dying declaration by B. A must prove B’s death.
(b) A wishes to prove by secondary evidence the contents of a lostdocument.
A must prove that the document has been lost.
Burden of proving that case of accused comes within exceptions.
105. When a person is accused of any offence, the burden of provingthe existence of circumstances bringing the case within any of the general exceptions in the Penal Code (Chapter 22), or within any specialexception or proviso contained in any other part of the same Code, or in any lawdefining the offence, is upon him, and the court shall presume the absence ofsuch circumstances.
(a) A accused of murder alleges that by reason of unsoundness of mindhe did not know the nature of the act.
The burden of proof is on A.
(b) A accused of murder alleges that by grave and sudden provocationhe was deprived of the power of self-control.
The burden of proof is on A.
(c) Section 325 of the Penal Code (Chapter 22) provides that whoever,except in the case provided for by section 335, voluntarily causes grievous hurtshall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances, bring the case under section 335, lies on A.
Burden of proving fact especially within knowledge.
106. When any fact is especially within the knowledge of any person,the burden of proving that fact is upon him.
(a) When a person does an act with some intention other than thatwhich the character and circumstances of the act suggest, the burden of provingthat intention is upon him.
(b) A is charged with travelling on a railway without a ticket.
The burden of proving that he had a ticket is on him.
Burden of proving death of person known to have been alive within 30 years.
107. When the question is whether a man is alive or dead, and it isshown that he was alive within 30 years, the burden of proving that he is deadis on the person who affirms it.
Burden of proving that person is alive who has not been heard of for 7 years.
108. When the question is whether a man is alive or dead, and it isproved that he has not been heard of for 7 years by those who would naturallyhave heard of him if he had been alive, the burden of proving that he is aliveis shifted to the person who affirms it.
Burden of proof as to relationship in the cases of partners, landlord andtenant, principal and agent.
109. When the question is whether persons are partners, landlord andtenant, or principal and agent, and it has been shown that they have been actingas such, the burden of proving that they do not stand, or have ceased to standto each other in those relationships respectively, is on the person who affirmsit.
Burden of proof as to ownership.
110. When the question is whether any person is owner of anything ofwhich he is shown to be in possession, the burden of proving that he is not theowner is on the person who affirms that he is not the owner.
Proof of good faith in transactions where one party is in relation ofactive confidence.
111. Where there is a question as to the good faith of a transactionbetween parties, one of whom stands to the other in a position of activeconfidence, the burden of proving the good faith of the transaction is on theparty who is in a position of active confidence.
(a) The good faith of a sale by a client to an attorney is in questionin a suit brought by the client. The burden of proving the good faith of thetransaction is on the attorney.
(b) The good faith of a sale by a son just come of age to a father isin question in a suit brought by the son. The burden of proving the good faithof the transaction is on the father.
Birth during marriage conclusive proof of legitimacy.
112. The fact that any person was born during the continuance of avalid marriage between his mother and any man, or within 280 days after itsdissolution, the mother remaining unmarried, shall be conclusive proof that heis the legitimate son of that man, unless it can be shown that the parties tothe marriage had no access to each other at any time when he could have beenbegotten.
Presumption that boy under 13 cannot commit rape.
113. It shall be an irrebuttable presumption of law that a boy underthe age of 13 years is incapable of committing rape.
Court may presume existence of certain fact.
114. The court may presume the existence of any fact which it thinkslikely to have happened, regard being had to the common course of naturalevents, human conduct, and public and private business, in their relation to thefacts of the particular case.
The Court may presume —
(a) that a man who is in possession of stolen goods soon after thetheft is either the thief or has received the goods knowing them to be stolen,unless he can account for his possession;
(b) that any accomplice is unworthy of credit unless he is corroborated in material particulars;
(c) that a bill of exchange accepted or endorsed was accepted orendorsed for good consideration;
(d) that a thing or state of things which has been shown to be inexistence within a period shorter than that within which such things usuallycease to exist is still in existence;
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particularcases;
(g) that evidence which could be and is not produced would if producedbe unfavourable to the person who withholds it;
(h) that if a man refuses to answer a question which he is notcompelled to answer by law, the answer if given would be unfavourable tohim;
(i) that when a document creating an obligation is in the hands of theobligor the obligation has been discharged.
But the court shall also have regard to such facts as the following, inconsidering whether such maxims do or do not apply to the particular case beforeit —
as to illustration (a) — a shop-keeper has in his till a markeddollar, soon after it was stolen and cannot account for its possessionspecifically but is continually receiving dollars in the course of hisbusiness;
as to illustration (b) — A , a person of the highestcharacter is tried for causing a man’s death by an act of negligence inarranging certain machinery B , a person of equally good character, whoalso took part in the arrangement, describes precisely what was done and admitsand explains the common carelessness of A and himself;
as to illustration (b) — a crime is committed by severalpersons. A , B and C , three of the criminals, are capturedon the spot and kept apart from each other. Each gives an account of the crimeimplicating D , and the accounts corroborate each other in such a manneras to render previous concert highly improbable;
as to illustration (c) — A , the drawer of a bill ofexchange, was a man of business.
B , the acceptor, was a young and ignorant person completely under A’s influence;
as to illustration (d) — it is proved that a river ran in acertain course 5 years ago, but it is known that there have been floods sincethat time which might change its course;
as to illustration (e) — a judicial act, the regularity of whichis in question, was performed under exceptional circumstances;
as to illustration (f) — the question is whether a letter wasreceived. It is shown to have been posted, but the usual course of the post wasinterrupted by disturbances;
as to illustration (g) — a man refuses to produce a documentwhich would bear on a contract of small importance on which he is sued, butwhich might also injure the feeling and reputation of his family;
as to illustration (h) — a man refuses to answer a questionwhich he is not compelled by law to answer, but the answer to it might causeloss to him in matters unconnected with the matter in relation to which it isasked;
as to illustration (i) — a bond is in possession of the obligor, but the circumstances of the case are such that he may havestolen it.
115. When one person has by his declaration, act or omissionintentionally caused or permitted another person to believe a thing to be trueand to act upon such belief, otherwise than but for that belief he would haveacted, neither he nor his representative in interest shall be allowed in anysuit or proceeding between himself and such person or his representative ininterest to deny the truth of that thing.
A intentionally and falsely leads B to believe that certainland belongs to A and thereby induces B to buy and pay forit.
The land afterwards becomes the property of A and A seeks toset aside the sale of the ground that at the time of the sale he had notitle.
He must not be allowed to prove his want of title.
Estoppel of tenant and of licensee of person in possession.
116. No tenant of immovable property, or person claiming through suchtenant, shall during the continuance of the tenancy be permitted to deny thatthe landlord of such tenant had at the beginning of the tenancy a title to suchimmovable property; and no person who came upon any immovable property by thelicence of the person in possession thereof shall be permitted to deny that suchperson had a title to such possession at the time when such licence wasgiven.
Estoppel of acceptor of bill of exchange, bailee or licensee.
117. (1) No acceptor of a bill of exchange shall be permitted todeny that the drawer had authority to draw such bill or to endorse it.
(2) No bailee, agent or licensee shall be permitted to deny that thebailor, principal or licensor, by whom any goods were entrusted to any of themrespectively, was entitled to those goods at the time when they were soentrusted:
Provided that any such bailee, agent or licensee may show that he wascompelled to deliver up any such goods to some person who had a right to them asagainst his bailor, principal or licensor, or that his bailor, principal orlicensor wrongfully and without notice to the bailee, agent or licensee, obtained the goods from a third person, who has claimed them from suchbailee, agent or licensee.
Explanation — The acceptor of a bill of exchange may deny thatthe bill was really drawn by the person by whom it purports to have beendrawn.
Who may testify.
118. All persons shall be competent to testify unless the courtconsiders that they are prevented from understanding the questions put to themor from giving rational answers to those questions by tender years, extreme oldage, disease, whether of body or mind, or any other cause of the same kind.
Explanation — A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers tothem.
119. (1) A witness who is unable to speak may give his evidence inany other manner in which he can make it intelligible, as, for example, bywriting or by signs; but such writing must be written and the signs made in opencourt.
(2) Evidence so given shall be deemed to be oral evidence.
Parties to civil suits their wives and husbands.
120. (1) In all civil proceedings the parties to the suit, and thehusband or wife of any party to the suit, shall be competent witnesses.
(2) In criminal proceedings against any person the husband or wife of suchperson respectively shall be a competent witness.
(3) In criminal proceedings the accused shall be a competent witness in hisown behalf, and may give evidence in the same manner and with the like effectand consequences as any other witness, provided that, so far as thecross-examination relates to the credit of the accused, the court may limit thecross-examination to such extent as it thinks proper, although the proposedcross-examination might be permissible in the case of any other witness.
(4) Where in any criminal proceedings the accused gives evidence, then,subject to this section and section 54, he shall not in cross-examination beasked, and if asked shall not be required to answer, any question tending toreveal to the court —
(a) the fact that he has committed, or has been charged with orconvicted or acquitted of, any offence other than the offence charged; or
(b) the fact that he is generally or in a particular respect a personof bad disposition or reputation.
(5) Subsection (4) shall not apply to a question tending to reveal to thecourt a fact about the accused such as is mentioned in paragraph (a) or (b) thereof if evidence of that fact is (by virtue of section 14 or 15 orof any other written law) admissible for the purpose of proving the commissionby him of the offence charged.
(6) Where in any criminal proceedings in which two or more persons arejointly charged, any of the accused gives evidence, subsection (4) shall not inhis case apply to any question tending to reveal to the court a fact about himsuch as is mentioned in paragraph (a) or (b) thereof if evidenceof that fact is admissible for the purpose of showing any other of the accusedto be not guilty of the offence with which that other is charged.
(7) Subsection (4) shall not apply if —
(a) the accused has personally or by his advocate asked any witnessfor the prosecution or for a person jointly charged with him any questionconcerning the witness’s conduct on any occasion or as to whether thewitness has committed, or has ben charged with or convicted or acquitted of, anyoffence; and
(b) the court is of the opinion that the main purpose of that questionwas to raise an issue as to the witness’s credibility,
but the court shall not permit a question falling within subsection (4) to beput to the accused by virtue of this subsection unless it is of the opinion thatthe question is relevant to his credibility as a witness.
(8) Subsection (4) shall not apply where the accused has himself givenevidence against any person jointly charged with him in the sameproceedings.
Judges and Magistrates.
121. No Judge and, except upon the special order of the High Court, nomagistrate shall be compelled to answer any questions as to his own conduct incourt as such Judge or magistrate or as to anything which came to his knowledgein court as such Judge or magistrate; but he may be examined as to other matterswhich occurred in his presence whilst he was so acting.
(a) A , on his trial before the High Court, says that a deposition wasimproperly taken by B , the committing magistrate. B cannot becompelled to answer questions as to this except upon the special order of theHigh Court.
(b) A is accused before the Court of a Magistrate of having givenfalse evidence before B , a magistrate. B cannot be compelled tosay what A said except upon the special order of the High Court.
(c) A is accused of attempting to murder a police officer whilst onhis trial before B , a Judge of the High Court. B may be examinedas to what occurred.
Communications during marriage.
122. No person who is or has been married shall be compelled todisclose any communication made to him during marriage by any person to whom heis or has been married; nor shall he be permitted to disclose any suchcommunication unless the person who made it or his representative ininterest consents, except in suits between married persons or proceedings inwhich one married person is prosecuted for any crime committed against theother.
Evidence as to affairs of State.
123. No one shall be permitted to produce any unpublished officialrecords relating to affairs of State, or to give any evidence derived therefrom,except with the permission of the officer at the head of the Departmentconcerned, who shall give or withhold such permission as he thinks fit, subject, however, to the control of the Minister*.
124. No public officer shall be compelled to disclose communications made to him in official confidence when he considers that thepublic interests would suffer by the disclosure.
Information as to commission of offences.
125. No magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue or the excise laws. Explanation — “Revenue officer” in this section means any officer employed in or about the business of any branch of the public revenue or in or about the business of any Government farm.
126. (1) No advocate or solicitor shall at any time be permitted,unless with his client’s express consent, to disclose any communicationmade to him in the course and for the purpose of his employment as such advocateor solicitor by or on behalf of his client, or to state the contents orcondition of any document with which he has become acquainted in the course andfor the purpose of his professional employment, or to disclose any advice givenby him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure—
(a) any such communication made in furtherance of any illegalpurpose;
* Transferred to the Permanent Secretary, Office of the Prime Minister, with effect from 26th July 1999 — [S 37/99]
(b) any fact observed by any advocate or solicitor in the course ofhis employment as such showing that any crime or fraud has been committed sincethe commencement of his employment.
(2) It is immaterial whether the attention of such advocate or solicitor wasor was not directed to such fact by or on behalf of his client.
Explanation — The obligation stated in this section continuesafter the employment has ceased.
(a) A , a client, says to B , a solicitor: “I havecommitted forgery and I wish you to defend me”.
As the defence of a man known to be guilty is not a criminal purpose thiscommunication is protected from disclosure.
(b) A , a client, says to B , a solicitor: “I wish toobtain possession of property by the use of a forged deed on which I request youto sue”.
This communication being made in furtherance of a criminal purpose is notprotected from disclosure.
(c) A , being charged with embezzlement, retains B , asolicitor, to defend him. In the course of the proceedings B observesthat an entry has been made in A‘s account- book, charging A with the sum said to have been embezzled, which entry was not in thebook at the commencement of his employment.
This being a fact observed by B in the course of his employment,showing that a fraud has been committed since the commencement of theproceedings, it is not protected from disclosure.
Section 126 to apply to interpreters etc.
127. Section 126 shall apply to interpreters and the clerks orservants of advocates and solicitors.
Privilege not waived by volunteering evidence.
128. If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls any such advocate or solicitor as a witness, he shall be deemed to have consented to such disclosure, only if he questions such advocate or solicitor on matters which but for such question he would not be at liberty to disclose.
Confidential communications with legal advisers.
129. No one shall be compelled to disclose to the court anyconfidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness, in whichcase he may be compelled to disclose any such communications as may appear tothe court necessary to be known in order to explain any evidence which he hasgiven, but no others.
Production of title deeds of witness not a party.
130. (1) No witness who is not a party to the suit shall becompelled to produce his title deeds to any property, or any document in virtueof which he holds any property as pledgee or mortgagee, or any document theproduction of which might tend to criminate him, unless he has agreed in writingto produce them with the person seeking the production of such deeds or someperson through whom he claims.
(2) No witness who is a party to the suit shall be bound to produce anydocument in his possession or power which is not relevant or material to thecase of the party requiring its production.
(3) No bank shall be compelled to produce the books of such bank in anylegal proceeding to which such bank is not a party, except as provided bysection 6 of the Bankers’ Books Evidence Act (Chapter 107).
Production of documents which another person having possession couldrefuse to produce.
131. No one shall be compelled to produce documents in his possessionwhich any other person would be entitled to refuse to produce if they were inhis possession, except for the purpose of identification, unless such last-mentioned person consents to their production, nor shall anyone who is entitledto refuse to produce a document be compelled to give oral evidence of itscontents.
Witness not excused from answering on ground that answer willcriminate.
132. (1) A witness shall not be excused from answering any questionas to any matter relevant to the matter in issue in any suit, or in any civil orcriminal proceeding, upon the ground that the answer to such question willcriminate, or may tend directly or indirectly to criminate, such witness, orthat it will expose, or tend directly or indirectly to expose, such witness to apenalty or forfeiture of any kind, or that it will establish or tend toestablish that he owes a debt or is otherwise subject to a civil suit at theinstance of the Government or of any other person.
(2) No answer which a witness shall be compelled by the court to give shallsubject him to any arrest or prosecution, or be proved against him in anycriminal proceeding, except a prosecution for giving false evidence by suchanswer.
(3) Before compelling a witness to answer a question the answer to whichwill criminate or may tend directly or indirectly to criminate such witness, thecourt shall explain to the witness the purport of subsection (2).
(4) Where the accused gives evidence in any criminalproceedings —
(a) he shall not be entitled to refuse to answer a question or producea document or thing on the ground that to do so would tend to prove thecommission by him of the offence charged; and
(b) except as regards any question, document or thing which in theopinion of the court is relevant solely or mainly to the accused’scredibility as a witness (not being, in the case of a question, one asked byvirtue of section 54), he shall not be entitled to refuse to answer a questionor produce a document or thing on the ground that to do so would —
(i) tend to expose him to proceedings for some other offence or forthe recovery of a penalty; or
(ii) tend to expose his wife or husband to proceedings for an offence orfor the recovery of a penalty.
(5) Where a person being the wife or husband of the accused gives evidencein any criminal proceedings, that person —
(a) shall not be entitled to refuse to answer a question orproduce a document or thing on the ground that to do so would tend to prove thecommission by the accused of the offence charged; and
(b) except as regards any question, document or thing which in theopinion of the court is relevant solely or mainly to that person’scredibility as a witness, shall not be entitled to refuse to answer a questionor produce a document or thing on the ground that to do so would tend to exposeher or him to proceedings as mentioned in subsection (4) (b) (i).
(6) No answer which an accused or his spouse shall be compelled to giveunder subsection (4) (b) or under subsection (5) (b) shall—
(a) expose the accused to any proceedings for some otheroffence or for the recovery of a penalty or be proved against him in any suchproceedings; or
(b) expose the spouse to any proceedings for an offence or for therecovery of a penalty or be proved agaist the spouse in any suchproceedings.
(7) Any reference in this section to proceedings for the recovery of apenalty includes a reference to civil proceedings therefor.
133. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds uponthe uncorroborated testimony of an accomplice.
Evidence of child. [S 29/97]
133A. (1) Where, in any proceedings against any person for anyoffence, any child called as a witness does not in the opinion of the courtunderstand the nature of an oath, his evidence may be received, though not givenupon oath, if, in the opinion of the court, he is possessed of sufficientintelligence to justify the reception of the evidence and understands the dutyof speaking the truth.
(2) Where evidence admitted by virtue of this section is given on behalf ofthe prosecution, the accused shall not be liable to be convicted of the offenceunless that evidence is corroborated by some other material evidence in supportthereof implicating him.
Number of witnesses.
134. No particular number of witnesses shall in any case be requiredfor the proof of any fact.
Abolition of corroboration rules. [S 29/97]
134A. Any requirement whereby at a trial it is obligatory for thecourt to give a warning about convicting the accused on the uncorroboratedevidence of a person merely because that person is —
(a) an alleged accomplice of the accused; or
(b) where the offence charged is a sexual offence, the person inrespect of whom it is alleged to have been committed,
is hereby abrogated.
Of the Examination of Witnesses
Order of production and examination of witnesses.
135. The order in which witnesses are produced and examined shall beregulated by the law and practice for the time being relating to civil andcriminal procedure respectively, and in the absence of any such law by thediscretion of the court.
Court to decide as to admissibility of evidence.
136. (1) When either party proposes to give evidence of any fact,the court may ask the party proposing to give the evidence in what manner thealleged fact, if proved, would be relevant; and the court shall admit theevidence if it thinks that the fact, if proved, would be relevant, and nototherwise.
(2) If the fact proposed to be proved is one of which evidence isadmissible only upon proof or some other fact, such last mentioned fact must beproved before evidence is given of the fact first mentioned, unless the partyundertakes to give proof of such fact and the court is satisfied with suchundertaking.
(3) If the relevancy of one alleged fact depends upon another alleged factbeing first proved, the court may, in its discretion, either permit evidence ofthe first fact to be given before the second fact is proved, or require evidenceto be given of the second fact before evidence is given of the first fact.
(a) It is proposed to prove a statement about a relevant fact by aperson alleged to be dead, which statement is relevant under section 32.
The fact that the person is dead must be proved by the person proposing toprove the statement before evidence is given of the statement.
(b) It is proposed to prove by a copy the contents of a document saidto be lost.
The fact that the original is lost must be proved by the person proposing toproduce the copy before the copy is produced.
(c) A is accused of receiving stolen property, knowing it to have beenstolen.
It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property. Thecourt may in its discretion either require the property to be identified beforethe denial of the possession is proved or permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact ( A ) which is said to havebeen the cause or effect of a fact in issue. There are several intermediatefacts ( B , C and D ) which must be shown to exist beforethe fact ( A ) can be regarded as the cause or effect of the fact in issue.The court may either permit A to be proved before B , C or D is proved or may require proof of B , C and D before permitting proof of A.
Examination-in-chief; cross-examination and re-examination.
137. (1) The examination of a witness by the party who calls himshall be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called hiscross-examination.
(3) Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his re-examination.
Order of examinations. Direction of re-examination.
138. (1) Witnesses shall be first examined-in-chief, then, if theadverse party so desires, cross-examined, then, if the party calling them sodesires, re-examined.
(2) The examination and cross-examination must relate to relevant facts,but the cross-examination need not be confined to the facts to which the witnesstestified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation ofmatters referred to in cross-examination; and if new matter is, by permission ofthe court, introduced in re-examination, the adverse party may furthercross-examine upon that matter.
(4) The court may in all cases permit a witness to be recalled either forfurther examination-in-chief or for further cross-examination, and if it doesso, the parties have the right of further cross-examination and re- examinationrespectively.
Cross-examination of person called to produce a document.
139. A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examinedunless and until he is called as a witness.
Witnesses to character.
140. Witnesses to character may be cross-examined and re-examined.
141. Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as towhich the witness is to testify, is called a leading question.
When they must not be asked.
142. (1) Leading questions must not, if objected to by the adverseparty, be asked in an examination-in-chief or in a re-examination, except withthe permission of the court.
(2) The court shall permit leading questions as to matters which areintroductory or undisputed, or which have in its opinion been alreadysufficiently proved.
When they may be asked.
143. (1) Leading questions may be asked in cross-examination,subject to the following qualifications:
(a) the question must not put into the mouths of the witness the verywords which he is to echo back again; and
(b) the question must not assume that facts have been proved whichhave not been proved, or that particular answers have been given contrary to thefact.
(2) The court, in its discretion, may prohibit leading questions from beingput to a witness who shows a strong interest or bias in favour of thecross-examining party.
Evidence as to matters in writing.
144. Any witness may be asked whilst under examination whether anycontract, grant or other disposition of property as to which he is givingevidence was not contained in a document, and if he says that it was, or if heis about to make any statement as to the contents of any document which in theopinion of the court ought to be produced, the adverse party may object to suchevidence being given until such document is produced or until facts have beenproved which entitle the party who called the witness to give secondary evidenceof it.
Explanation — A witness may give oral evidence of statementsmade by other persons about the contents of documents if such statements are inthemselves relevant facts.
The question is whether A assaulted B.
C deposes that he heard A say to D : “ B wrote a letter accusing me of theft and I will be revenged on him”. Thestatement is relevant as showing A’s motive for the assault andevidence may be given of it though no other evidence is given about theletter.
Cross-examination as to previous statements in writing.
145. (1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant tomatters in question in the suit or proceeding in which he is cross-examined,without such writing being shown to him or being proved; but if it is intendedto contradict him by the writing, his attention must, before the writing can beproved, be called to those parts of it which are to be used for the purpose ofcontradicting him.
(2) If a witness, upon cross-examination as to a previous oralstatement made by him relevant to matters in question in the suit orproceeding in which he is cross-examined and inconsistent with his presenttestimony, does not distinctly admit that he made such statement, proof may begiven that he did in fact make it; but before such proof can be given, thecircumstances of the supposed statement, sufficient to designate theparticular occasion, must be mentioned to the witness, and he must be askedwhether or not he made such statement.
(3) Where in any proceedings a previous inconsistent orcontradictory statement made by a person called as a witness in thoseproceedings is proved by virtue of this section, that statement shall by virtueof this subsection be admissible as evidence of any fact stated therein of whichdirect oral evidence by him would be admissible.
(4) Where a person called as a witness in any proceedings is cross-examined on a document used by him to refresh him memory, that document may bemade evidence in those proceedings; and where a document or any part of adocument is received in evidence by virtue of this subsection, any statementmade in that document or part by the person using the document to refresh his memory shall by virtue of this subsection be admissible as evidence ofany fact stated therein of which direct oral evidence by him would beadmissible.
(5) In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of this section regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular, to the question whether or not the statement was made contemporaneously with the occurence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent the facts.
(6) Notwithstanding any other written or rule of practice requiringevidence to be corroborated or regulating the manner in whichuncorroborated evidence is to be treated, a statement which is admissible inevidence by virtue of this section shall not be capable of corroboratingevidence given by the maker of the statement.
Questions lawful in cross-examination.
146. When a witness may be cross-examined he may, in addition to thequestions hereinbefore referred to, be asked any questions which tend—
(a) to test his accuracy, veracity or credibility;
(b) to discover who he is and what is his position in life; or
(c) to shake his credit by injuring his character, although the answerto such questions might tend directly or indirectly to criminate him, or mightexpose or tend directly or indirectly to expose him to a penalty orforfeiture.
When witness to be compelled to answer.
147. If any such question relates to a matter relevant to the suit or proceeding, section 132 shall apply thereto.
Court to decide when question shall be asked and when witnesscompelled to answer.
148. (1) If any question relates to a matter not relevant to thesuit or proceeding, except in so far as it affects the credit of the witness byinjuring his character, the court shall decide whether or not the witness shallbe compelled to answer it, and may, if it does not think fit to compel him toanswer the question, warn the witness that he is not obliged to answer it.
(2) In exercising its discretion, the court shall have regard to thefollowing considerations —
(a) such questions are proper if they are of such a nature that thetruth of the imputation conveyed by them would seriously affect the opinion ofthe court as to the credibility of the witness on the matter to which hetestifies;
(b) such questions are improper if the imputation which they conveyrelates to matters so remote in time or of such a character that the truth ofthe imputation would not affect or would affect in a slight degree the opinionof the court as to the credibility of the witness on the matter to which hetestifies;
(c) such questions are improper if there is a great disproportionbetween the importance of the imputation made against the witness’scharacter and the importance of his evidence;
(d) the court may, if it sees fit, draw from the witness’srefusal to answer, the inference that the answer, if given, would beunfavourable.
Question not to be asked without reasonable grounds.
149. No such questions as referred to in section 148 ought to be askedunless the person asking it has reasonable grounds for thinking that theimputation which it conveys is well founded.
(a) An advocate is instructed by another advocate that an importantwitness is a professional gambler. This is a reasonable ground for asking thewitness whether he is a professional gambler.
(b) An advocate is informed by a person in court that an importantwitness is a professional gambler. The informant, on being questioned by the advocate, gives satisfactory reasons for hisstatement. This is a reasonable ground for asking the witness whether he is aprofessional gambler.
(c) A witness of whom nothing whatever is known is asked at randomwhether he is a professional gambler. There are here no reasonable grounds forthe question.
(d) A witness of whom nothing whatever is known, being questioned asto his mode of life and means of living gives unsatisfactory answers. This maybe a reasonable ground for asking him if he is a professional gambler.
Procedure of court in case of question being asked without reasonablegrounds.
150. If the court is of opinion that any such question as is referredto in section 148 was asked without reasonable grounds, it may, if it was askedby an advocate, report the circumstances of the case to the High Court or otherauthority to which the advocate is subject in the exercise of hisprofession.
Indecent and scandalous questions.
151. The court may forbid any questions or inquiries which it regardsas indecent or scandalous, although such questions or inquiries may have somebearing on the questions before the court, unless they relate to facts in issueor to matters necessary to be known in order to determine whether or not thefacts in issue existed.
Questions intended to insult or annoy.
152. The court shall forbid any question which appears to it to beintended to insult or annoy, or which, though proper in itself, appears to thecourt needlessly offensive in form.
Exclusion of evidence to contradict answers to questions testingveracity.
153. When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but if he answers falsely he may afterwards be charged with giving false evidence. Exception 1 — If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.
Exception 2 — If a witness is asked any question tending toimpeach his impartiality and answers it by denying the facts suggested, he may be contradicted.
(a) A claim against an underwriter is resisted on the ground offraud.
The claimant is asked whether in a former transaction he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim. The evidence isinadmissible.
(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
(c) A affirms that on a certain day he saw B at Kuala Belait.
A is asked whether he himself was not on that day at Bandar Seri Begawan. He denies it.
Evidence is offered to show that A was on that day at Bandar SeriBegawan.
The evidence is admissible, not as contradicting A on a fact whichaffects his credit, but as contradicting the alleged fact that B wasseen on the day in question in Kuala Belait.
(d) A is tried for a rape on B. B is asked incross-examination whether she has not had illicit intercourse with C and D. She denies it.
Evidence is offered to show that she has had such intercourse with C and D. The evidence is not admissible.
In each of the cases in illustrations (c) and (d) the witnessmight, if the denial was false, be charged with giving false evidence.
(e) A is asked whether he has not said that he would be revenged on B , against whom he gives evidence. He denies it.
He may be contradicted on the ground that the question tends to impeach hisimpartiality.
Question by party to his own witness.
154. The court may, in its discretion, permit the person who calls awitness to put any questions to him which might be put in cross-examination bythe adverse party.
Impeaching credit of witness.
155. The credit of a witness may be impeached in the following ways bythe adverse party or, with the consent of the court, by the party who calls him—
(a) by the evidence of persons who testify that they from theirknowledge of the witness believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted theoffer of a bribe, or has received any other corrupt inducement to give hisevidence;
(c) by proof of former statements inconsistent with any part of hisevidence which is liable to be contradicted;
(d) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
Explanation — A witness declaring another witness to be unworthyof credit may not, upon his examination-in-chief, give reasons for his belief,but he may be asked his reasons in cross-examination, and the answers which hegives cannot be contradicted, though, if they are false, he may afterwards becharged with giving false evidence.
(a) A sues B for the price of goods sold and delivered to B.
C says that he delivered the goods to B.
Evidence is offered to show that on a previous occasion he said that he hadnot delivered the goods to B.
The evidence is admissible.
(b) A is indicated for the murder of B.
C says that B , when dying declared that A had given B the wound of which he died.
Evidence is offered to show that on a previous occasion C said thatthe wound was not given by A or in his presence.
The evidence is admissible.
Questions tending to corroborate evidence or relevant factadmissible.
156. (1) When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact to which he testifies.
(2) Any rule of law or practice whereby in criminal proceedings theevidence of one witness is incapable of corroborating the evidence of anotherwitness is hereby abrogated.
A , an accomplice, gives an account of a robbery in which he took part.He describes various incidents, unconnected with the robbery, which occurred onhis way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate hisevidence as to the robbery itself.
Former statements of witness may be proved to corroborate latertestimony as to same fact.
157. In order to corroborate the testimony of a witness, any former statement made by such witness, whether written or verbal, on oath, or inordinary conversation, relating to the same fact at or about the time when thefact took place, or before any authority legally competent to investigate thefact, may be proved.
What matters proved in connection with proved statement relevantunder section 32 or 33.
158. Whenever any statement relevant under section 32 or 33 is proved,all matters may be proved either in order to contradict or to corroborate it, orin order to impeach or confirm the credit of the person by whom it was made,which might have been proved if that person had been called as a witness and haddenied upon cross-examination the truth of the matter suggested.
159. (1) A witness may while under examination refresh his memory byreferring to any writing made by himself at the time of the transactionconcerning which he is questioned, or so soon afterwards that the courtconsiders it likely that the transaction was at that time fresh in hismemory.
(2) The witness may also refer to any such writing made by any other personand read by the witness within the time aforesaid, if, when he read it, he knewit to be correct.
(3) Whenever the witness may refresh his memory by reference to anydocument, he may, with the permission of the court, refer to a copy of suchdocument:
Provided the court is satisfied that there is sufficient reason for the non-production of the original.
(4) An expert may refresh his memory by reference to professionaltreatises.
Testimony to facts stated in document mentioned in section 159.
160. A witness may also testify to facts mentioned in any suchdocument as is mentioned in section 159 although he has no specific recollectionof the facts themselves, if he is sure that the facts were correctly recorded inthe document.
A book-keeper may testify to facts recorded by him in books regularly kept inthe course of business if he knows that the books were correctly kept, althoughhe has forgotten the particular transactions entered.
Right of adverse party as to writing used to refresh memory.
161. Any writing referred to under section 159 or 160 must be producedand shown to the adverse party if he requires it; such party may, if he pleases,cross-examine the witness thereupon.
Production of documents and their translations.
162. (1) A witness summoned to produce a document shall, if it is inhis possession or power, bring it to court notwithstanding any objection whichthere may be to its production or to its admissibility. The validity of any suchobjection shall be decided on by the court.
(2) The court, if it sees fit, may inspect the document unless it refers toaffairs of State, or take other evidence to enable it to determine on itsadmissibility.
(3) If for such a purpose it is necessary to cause any document to betranslated, the court may, if it thinks fit, direct the translator to keep thecontents secret unless the document is to be given in evidence, and if thetranslator disobeys such direction, he shall be held to have committed anoffence under section 166 of the Penal Code (Chapter 22).
Giving as evidence of document called for and produced on notice.
163. When a party calls for a document which he has given the otherparty notice to produce, and such document is produced and inspected by theparty calling for its production, he is bound to give it as evidence if theparty producing it requires him to do so and if it is relevant.
Using as evidence of document production of which was refused onnotice.
164. When a party refuses to produce a document which he has hadnotice to produce, he cannot afterwards use the document as evidence without theconsent of the other party or the order of the court.
A sues B on an agreement, and give B notice to produceit. At the trial A calls for the document, and B refuses toproduce it. A gives secondary evidence of its contents. B seeksto produce the document itself to contradict the secondary evidence given by A , or in order to show that the agreement is not stamped. He cannot doso.
Judge’s power to put questions or order production.
165. The Judge may, in order to discover or to obtain proper proof ofrelevant facts, ask any question he pleases, in any form at any time, of anywitness or of the parties, about any fact relevant or irrelevant; and may orderthe production of any document or thing; and neither the parties nor theiragents shall be entitled to make any objection to any such question or order,nor, without the leave of the court, to cross-examine any witness upon anyanswer given in reply to any such question:
Provided that the judgement must be based upon facts declared by this Act to be relevant and duly proved:
Provided also that this section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131 if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with the primary evidence of any document, except in the cases herein before excepted.
Power of jury or assessors to put questions.
166. In cases tried by jury or with assessors the jury or assessorsmay put any questions to the witnesses through or by leave of the Judge, whichthe Judge himself might put and which he considers proper.
Of Improper Admission and Rejection of Evidence
No new trial for improper admission or rejection of evidence.
167. The improper admission or rejection of evidence shall not beground of itself for a new trial or reversal of any decision in any case if itappears to the court before which such objection is raised that, independentlyof the evidence objected to and admitted, there was sufficient evidence tojustify the decision, or that, if the rejected evidence had been received, itought not to have varied the decision.
Application of Chapter XII. [S 6/99]
168. The provisions of this Chapter shall apply to all civilproceedings, notwithstanding any provision of this Act or of any other law tothe contrary effect.
Admissibility of hearsay evidence. [S 6/99]
169. (1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
(2) In this Chapter —
(a) “hearsay” means a statement made otherwise than by a peron while giving oral evidence in the proceedings, which istendered as evidence of the matters stated; and
(b) references to hearsay include hearsay of whatever degree.
(3) Nothing is this Chapter shall effect the admissibility of evidenceadmissible apart from this section.
(4) The provision of sections 170 to 174 do not apply to hearsay evidenceadmissible apart from this section, notwithstanding that it may also beadmissible by virtue of this section.
Notice of proposal to adduce hearsay evidence. [S 6/99]
170. (1) A party proposing to adduce hearsay evidence in civil proceedings shall, subject to the following provisions of thissection, give to the other party or parties to the proceedings —
(a) such notice (if any) of that fact; and
(b) on request, such particulars of or relating to the evidence,
as in reasonable and practicable in the circumstances for the purpose ofenabling him or them to deal with any matters arising from its beinghearsay.
(2) Subsection (1) may be excluded by agreement of the parties; andcompliance with the duty to give notice may in any case be waived by the personto whom notice is required to be given.
(3) A failure to comply with subsection (1) does not affect theadmissibility of the evidence but may be taken into account by the court—
(a) in considering the exercise of its powers with respect to thecourse of proceedings and costs; and
(b) as a matter adversely affecting the weight to be given to theevidence in accordance with section 172.
Power to call witness. [S 6/99]
171. Where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief.
Consideration relevant. [S 6/99]
172. (1) In estimating the weight (if any) to be given to hearsayevidence in civil proceedings that court shall have regard to any circumstancesfrom which any inference can reasonably be drawn as to the reliabilityor otherwise of the evidence.
(2) Regard may be had, in particular, to the following —
(a) whether it would have been reasonable and practicable for theparty to whom the evidence was adduced to have produced the maker of theoriginal statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the mattersstated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal ormisrepresent matters;
(e) whether the original statement was an edited account, or was madein collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluationof its weight.
Competence and credibility. [S 6/99]
173. (1) Hearsay evidence shall not be admitted in civil proceedingsif or to the extent that it is shown to consist of, or to be proved by means of,a statement made by a person who at the time he made the statement was notcompetent as a witness. For this purpose, “not competent as awitness” means suffering from such mental or physical infirmity, or lack of understanding, as would render a person incompetent as a witness incivil proceedings.
(2) Where in civil proceedings hearsay evidence is adduced and the maker ofthe original statement, or of any statement relied upon to prove anotherstatement, is not called as a witness —
(a) evidence which if he had been so called would beadmissible for the purpose of attacking or supporting his credibility as awitness is admissible for that purpose in the proceedings; and
(b) evidence tending to prove that, whether before or after he madethe statement, he made any other statement inconsistent with it is admissiblefor the purposes of showing that he had contradicted himself:
Provided that evidence may not be given of any matter of which, if he hadbeen called as a witness and had denied that matter in cross-examination,evidence could not have been adduced by the cross-examining party.
Previous statements of witnesses. [S 6/99]
174. (1) The provisions of this Chapter as to hearsay evidence incivil proceedings apply equally (but with any necessary modifications) inrelation to a previous statement made by a person called as a witnessin the proceedings.
(2) A party who has called or intends to call a person as a witness incivil proceedings may not in those proceedings adduce evidence of aprevious statement made by that person, except —
(a) with the leave of the court; and
(b) for the purpose of rebutting a suggestion that his evidence hadbeen fabricated.
This shall not be construed as preventing a witness statement (that is, awritten statement of oral evidence which a party to the proceedings intends tolead) from being adopted by a witness in giving evidence or treated as hisevidence.
(3) Nothing in this Chapter affects any of the rules of law as to thecircumstances in which, where a person called as a witness in civilproceedings is cross-examined on a document used by him to refresh his memory,that document may be made evidence in the proceedings.
(4) Nothing is this section shall be construed as preventing astatement of any description referred to above from being admissible by virtueof section 169 as evidence of the matters stated.
Evidence formerly admissible. [S 6/99]
175. (1) Any rule of law whereby in civil proceedings —
(a) published works dealing with matters of a public nature (forexample, histories, scientific works, dictionaries and maps) areadmissible as evidenc of facts of a public nature stated in them;
(b) public documents (for example, public registers, and returns madeunder public authority with respect to matters of public interest) areadmissible as evidence of facts stated in them; or
(c) records (for example, the records of certain courts, treaties,Crown grants, pardons and commissions) are admissible as evidence of factsstated in them,
shall continue to have effect.
(2) Any rule of law whereby in civil proceedings —
(a) evidence of a person’s reputation is admissible for the purpose of proving his good or bad character; or
(b) evidence or reputation or family tradition is admissible—
(i) for the purpose of proving or disproving pedigree or the existence of amarriage; or
(ii) for the purpose of proving or disproving the existence of any publicor general right or of identifying any person or thing,
shall continue to have effect in so far as they authorise the court to treatsuch evidence as proving or disproving that matter. Where any such rule applies,reputation or family tradition shall be treated for the purposes of this Chapteras a fact and not as a statement or multiplicity of statements about the matterin question.
(3) The words in which a rule of law mentioned in this section is describedare intended only to identify the rule and shall not be construed as altering itin any way.