EVIDENCE ORDINANCE

EVIDENCE ORDINANCE

CHAPTER 8.

EVIDENCE ORDINANCE.

ARRANGEMENT OF SECTIONS.
Section. Page

1. Short title ............................ ... ... ... ... ... ... 271
2. Interpretation ......................... ... ... ... ... ... ... 271

PART I-ADMISSIBLE WITNESSES AND EVIDENCE.

3. Incompetency from immature age or unsoundness of mind 271
4. Evidence of child of tender years ...... ... ... ... ... 272
5. Evidence of parties .................... ... ... ... ... ... 272
6. Evidence of husband and wife ........... ... ... ... ... 273
7. Privilege of husband and wife .......... ... ... ... ... 273
8. Evidence of access ..................... ... ... ... ... ... 273
9. No incapacity on account of crime or interest ... ... 273
10. Exception as to defendant in criminal proceedings ... 273
11. Evidence of parties and their husbands and wives in
proceedings for adultery ............... ... ... ... ... 273
12. Evidence of parties in action for breach of promise ... 274
13. Discrediting a witness ................. ... ... ... ... ... 274
14. Proof of contradictory statement of adverse witness ... 274
15. Cross-examination as to previous statement in writing ... 274
16. Proof of conviction and previous conviction for indictable
offence ................................ ... ... ... ... ... 275
17. Attesting witness need not be called ... ... ... ... ... 275
18. Comparison of disputed with genuine writing ... ... ... 275

PART II-ADMISSIBLE DOCUMENTS.

19. Copy of document of public nature ...... ... ... ... ... 275
20. Official documents ..................... ... ... ... ... ... 276
21. Admissibility of notarial acts done before British diplomatic
and consular officers .................. ... ... ... ... ... 276
22. Copy of entry in banker's book ......... ... ... ... ... 276
23. Court or judge may direct copies of entries in banker's book
to be taken ............................ ... ... ... ... ... 277
24. Computation of time .................... ... ... ... ... 277
25. Proof of foreign or colonial act of state, judgment, etc. 277
26. Proof of statutes of British possessions ... ... ... ... 278
27. Swearing of answer, etc., in Supreme Court in England 279
28. Admissibility of document having seal and signature of
British ambassador ..................... ... ... ... ... 279
29. Proof of various matters in civil proceedings ... ... ... 280
30. Effect of notices in Gazette ........... ... ... ... ... ... 280
31. Admissibility of document filed in foreign court or consulate 281
32. Courts to take judicial notice of signature of judges, etc 281
33. Admissibility of documentary evidence as to facts in Mue 281





Section Page
34. Weight to be attached to evidence ... ... ... ... ... ... 283
35.Proof of instrument to validity of which attestation is
necessary ... ... ... ... ... ... ... ... ... ... ... 283
36. Presumptions as to documents twenty years old ... ... ... 283.
37. Power to order proof of specified facts by affidavit with or
without attendance of deponent ... ... ... ... ... ... 283
38. Interpretation and savings ... ... ... ... ... ... ... ... 284

PART III-DEPOSITIONS.

39. Admissibility in evidence in criminal proceedings of deposi-
tion of person dead, etc . ............. ... ... ... ... ... 284
40. Prima facie proof of examination having been duly taken 285
41. Objection that deposition tendered was not signed by
magistrate ............................. ... ... 285
42. Power to take deposition of person dangerously ill etc., and
admissibility thereof .................. ... ... ... ... ... 285

PART IV.-COMMISSIONS TO TAKE EVIDENCE.

43. Examination of witnesses in the Colony in relation to action
pending before British court ........... ... ... ... ... 286
44. Examination of witnesses in the Colony in relation to pro-
ceedings pending in foreign country ... ... ... ... 287
45. Effect of certificate of ambassador, etc., as evidence in support
of application ........................ ... 287
46. Examination of witness under ss. 43 and 44 ... 288

PART V-OATHS, AFFIRMATIONS, ETC.

47. Administration of oath ................ ... ... ... ... ... 288
48. Powers of Legislative Council as to examination of witnesses 288
49. Normal manner of administration of oaths ... ... ... 289
50. Swearing with uplifted hand ........... ... ... ... ... 289
51. Oath not affected by absence of religious belief ... ... 289
52. Affirmation in lieu of oath ........... ... ... ... ... ... 290
53. Interpretation of oaths and affirmations ... ... ... ... 290

PART VL-MISCELLANEOUS.

54. Impounding of forged document admitted in evidence ... 290
55. Admissibility of certain medical notes and reports ... 290
56. Observations and evidence of accused person before magis-
trate to be taken down and to be admissible at trial 291
57. Warrant or order to bring up prisoner to give evidence 291
58. -Saving as to 7 Will. 4 and 1 Vict. c. 26 ... ... ... ... ... 291





CHAPTER 8.
EVIDENCE.

To consolidate the law of evidence.

[18th January, 1889.]

1. This Ordinance may be cited as the Evidence
Ordinance.

2. In this Ordinance-
'bank' means any corporation, company, or society estab-
lished by charter or under or by virtue of any Act of
Parliament or Ordinance, lawfully carrying on the
business of bankers, or any foreign banking company
carrying on business in this Colony;
'banker's book' includes any ledger, day book, cash book,
account book, or any other book used in the ordinary
business of the bank;
'court' includes the Chief justice and any other judge, also
every magistrate, justice, officer of any court, commis-
sioner, arbitrator, or other person having, by law or by
consent of parties, authority to hear, receive, and
examine evidence with respect to or concerning any
action, suit, or other proceeding civil or criminal, or with
respect to any matter submitted to arbitration or ordered
to be inquired into or investigated under any com-
mission.

PART I.

ADMISSIBLE WITNESSES AND EVIDENCE.

3. The following persons only shall be incompetent to
give evidence in any proceedings-
(a)children under seven years of age, unless they
appear capable of receiving just impressions of the
facts respecting which they are examined and of
relating them truly; and
(b)persons of unsound mind, who, at the time of their
examination, appear incapable of receiving just





impressions of the facts respecting which they are
examined or of relating them truly; and no person
who is known to be of unsound mind shall be liable
to be summoned as a witness without the consent
previously obtained of the court or person before
whom his attendance is required.

4. Where, in any proceeding against any person for in
offence, any child of tender years who is tendered as a Witness
does not in the opinion of the court understand the nature of
an oath, the evidence of that child may be received, though
not given upon oath, if, in the,opinion of the court, the child
is possessed of sufficient intelligence to justify the reception
of the evidence, and understands the duty of speaking the
truth ; and the provisions of section 39 of this Ordinance shall
extend to the evidence of the child, though not given on
oath, but otherwise taken and reduced into writing in accord-
ance with the provisions of section So of the Magistrates
Ordinance : Provided that-
(a)no person shall be, liable to be convicted of the
offence unless the testimony admitted by virtue of
this section and given on behalf of the prosecution
is corroborated by some other material evidence in
support thereof implicating the accused; and
(b) any child, whose evidence is received as aforesaid
and who wilfully gives false evidence under such
circumstances that, if the evidence had been given
on oath, he would have been guilty of perjury,
shall, subject to the provisions of the juvenile
Offenders Ordinance, be liable on summary convic
tion to such punishment as might have been awarded
had he been charged with perjury and the case been
dealt with summarily under section 8 of that
Ordinance.

5. In all proceedings before the court, the parties and
the husbands and wives of the parties thereto, and the
persons in whose behalf any proceedings rnay be brought,
or instituted, or opposed, or defended, and the husbands and
wives of such persons shall, except as hereinafter excepted,
be competent and compellable to give evidence, either viva
voce or by deposition, according to the practice of the court,
on behalf of either or any of the parties to the proceedings.





6. Nothing in this Ordinance shall render any husband
competent or compellable to give evidence for or against his
wife, or any wife competent or compellable to give evidence
for or against her husband, in any criminal proceedings.

7.In no proceedings shall a husband be compellable to
disclose any communication made to him by his wife during
the marriage nor shall a wife be compellable to disclose any
communication made to her by her husband during the
marriage.

8. (1) Notwithstanding aily rule of law, the evidence
of a husband or wife shall be admissible in any proceedings
to prove that marital intercourse did or did not take place
between them at any period.

(2) Notwithstanding anything in this section or any rule
of law, a husband or wife shall not be cornpellable in any
proceedings to give evidence of the matters aforesaid. [6A

9. No person offered as a witness in any proceedings
shall be excluded by reason of incapacity from crime or
interest from giving evidence, either in person or by deposi-
tion, according to the practice of the court, on the trial or
hearing of any proceedings or at any stage thereof.

10. Nothing in this Ordinance shall render any person
who in any criminal proceedings is charged with an indictable
offence or any offence punishable on summary conviction
compellable to give evidence for or against himself, or shall
render any person in any proceedings compellable to answer
any question tending to criminate himself.

11. In any proceedings instituted in consequence of
adultery, the parties to such proceedings and the husoands
and wives of such parties shall be competent to give evidence
in relation thereto : Provided that no such witness, whether
a party to the proceedings or not, shall be liable to be asked
or bound to answer any question tending to show that he or
she has been guilty of adultery, unless such witness has
already given evidence in the same proceedings in disproof
of his or her alleged adultery.





12. The parties to any action for breach of promise of
marriage shall ba competent to give evidence in such action :
Provided always that no plaintiff in any action for breach of
promise of marriage shall recover a verdict unless his or her
testimony is corroborated by some other material evidence in
support of such promise. [10

13. A party producing a witness in any proceedings
shall not be allowed to impeach his credit by general evidence
of bad character, but he may, in case the witness, in the
opinion of the court, proves adverse, contradict him by other
evidence or by leave of the court, prove that he has made
at other times a statement inconsistent with his Present testi-
mony, but, before such last-mentioned proof can be given,
the circumstances of the supposed statement, sufficient to
designate the particular occasion, must be mentioned to the
witness, and he must be asked whether or not lie has made
such statement. [11

14. If a witness in any proceedings, on cross-
examination as to a former statement made by him relative
to the subject-matter of the proceedings and inconsistent with
his present testimony, does not distinctly admit that he has
made such statement, proof may be given that he did in fact
make it; but, before such proof can be given, the circum-
stances of the supposed statement, sufficient to designate the
particular occasion, must be mentioned to the witness, and
lie must be asked whether or not he has made such statement.
[12

15. A witness in any proceedings may be cross-examined
as to previous statements made by him in writing or reduced
into writing relative to the subject-matter of the proceedings,
without such writing being shown to him; but if it is intended
to contradict such witness by the writing, his attention must,
before such, contradictor proof can be given, be called to

those parts of the writing which are to be used for the purpose
of so contradicting him: Provided always that it shall be
competent for the court, at any time during the trial or hear-
ing of the proceedings, to require the production of the
writing for its inspection, and the court may thereupon make
such use of it for the purposes of the trial or hearing as it
may think fit. [13





16. A witness in any proceedings may be questioned as
to whether he has been convicted of any felony or mis-
demeanor, and, on being so questioned, if he either denies or
does not admit the fact or refuses to answer, it shall be lawful
for the cross-examining or opposite party to prove such
conviction, and in such case, and also whenever it may be
necessary to prove the trial and conviction or acquittal of
any person charged with an indictable offence, a certificate,
record, or extract of the conviction containing the substance
and effect only (omitting the formal part) of the conviction
for such offence, purporting to be signed by the clerk of
the court or other officer having the custody of the records
of the court where the offender was convicted, or acquitted,
or by the deputy of such clerk or officer, shall, on proof
of the identity of the person, be sufficient evidence of such
conviction or acquittal, without proof of the signature or
official character of the person appearing to have signed
the same. [14

17. It shall not be necessary in any proceedings to prove
by the attesting witness any instrument to the validity of
which attestation is not requisite; and such instrument may
be proved by admission or otherwise as if there had been no
attesting witness thereto. [15

18. Comparison of a disputed writing with any writing
proved to the satisfaction of the court to be genuine shall be
permitted to be made by witnesses in any proceedings, and
such writings, and the evidence of witnesses respecting the
same, may be submitted to the court and to the jury, if any,
as evidence of the genuineness or otherwise of the writing
in dispute. [16

PART II.

ADMISSIBLE DOCUMENTS.

19. Whenever any book or other document is of such a
public nature as to be admissible in evidence on its mere
production from the proper custody, and no enactment exists
which renders its contents provable by means of a copy, any
copy thereof or extract therefrom shall be admissible in
evidence in the court, provided it is proved to be an examined





copy or extract or provided it purports to be signed and
certified as a true copy or extract by the officer to whose
custody the original is entrusted, and which officer is hereby
required to furnish such certified copy or extract to any
person applying at a reasonable time for the same, on pay-
ment of a reasonable sum for the same, not exceeding fifty
cents for every folio of seventy-two words. - [17

20. Whenever, by any enactment, any certificate, official
or public document, or proceeding of any corporation or
joint-stock or other company, or any certified copy of any
document, by-law, entry in any register or other book, or
of any other proceeding is. receivable in evidence of any
particular in the court or before the Legislative Council or
any committee thereof, the same shall respectively be
admitted in evidence, provided they respectively purport to
be sealed or impressed with a stamp, or scaled and signed,
or signed alone, as required, or impressed with a stamp and
signed, as directed by the enactment, without any proof of
the seal or stamp where a seal or stamp is necessary, or of
the signature or of the official character of the person
appearing to have signed the same, and without any further
proof thereof, in every case in which the original record
could have been received in evidence. [18

21. Every oath, affidavit, and notarial act, administered,
sworn, or done, under or in accordance with the provisions
of section 6 of the Commissioners for Oaths Acts, 1889, shall
be as effectual as if duly administered, sworn, or done by
or before any lawful authority in the Colony. [19

22. Subject to the provisions of this section, a copy of
an entry in a banker's book shall in all proceedings be
received as prima facie evidence of such entry and of the
matters, transactions, and accounts therein recorded:
Provided-
(a)that such book was, at the time of making the entry,
one of the ordinary books of the bank, and the entry
was made in the usual and ordinary course of busi-
ness, and the book is in the custody or control of
the bank; such proof may be given by a partner
or officer of the bank orally or by an affidavit sworn
before any person authorized to take affidavits;





(b)also, that it is proved, orally or by affidavit sworn
as aforesaid, by some person who has examined the
copy with the original entry, that the copy has been
examined with the original entry and is correct; and
(c)further, that a banker or officer of a bank shall not,
in any proceedings to which the bank is not party,
be compelled to produce any banker's book the
contents of which can be proved under this Ordin-
ance, or to appear as a witness to prove the matters,
transactions, or accounts therein recorded, except by
order of a judge made for special cause. [20

23. (1) On the application of any party to any proceed-
ings, the court or a judge may order that such party be at
liberty to inspect and take copies of any entries in a banker's
book for any of the purposes of such proceedings.

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

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

(4) Any such order against a bank mav be enforced as
if the bank were a party to the. proceeding. [21

24. General holidays, within the meaning of the Holi-
days Ordinance, shall be excluded from the computation of
time under sections 22 and 23. [22

25. All proclamations, treaties, and other acts of state
of any foreign state or of any British possession, and all
judgments, decrees, orders, and other judicial proceedings

of any court of justice or any consulate in any foreign state
or in any British possession, and all affidavits, pleadings,





and other legal documents, filed or deposited in any such
court or consulate may be proved in the courts of this Colony
either by examined copies or by copies authenticated as
hereinafter mentioned: that is to say, if the document sought
to be proved is a proclamation, treaty or other act of state,
the authenticated copy to be admissible in evidence must
purport to be scaled with the seal of the foreign state or
British possession to which the original document belongs,
and if the document sought to be proved is a judgment,
decree, order, or other judicial proceeding of any court of
justice or any consulate in any foreign state or in any British
possession, or an affidavit, pleading, or other legal docu-
rnent filed or deposited in any such court or consulate, the
authenticated copy to be admissible in evidence must
purport either to be sealed with the seal of such court or
consulate, or, in the event of such court having no seal,
to be signed by the judge or, if there are more judges than
one, by any one of the judges of such court, and such judge
shall attach to his signature a statement in writing on the
said copy that the court of justice whereof he is a judge has
no seal ; but if any of the aforesaid authenticated copies
purport to be sealed or signed as hereinbefore respectively
directed, the same shall respectively be admitted in evidence
in every case in which the original document could have
been received in evidence, without any proof of the seal,
where a seal is necessary, or of the signature, or of the truth
of the statement attached thereto, where such signature and
statement are necessary, or of the judicial character of
the person appearing to have made such signature and
statement. [23

26. (1) Copies of Acts, Ordinances and statutes passed
by the legislature of any British possession, and of orders,
regulations, and other instruments issued or made under
the authority of any such Act, Ordinance, or statute, if
purporting to be printed by the Government printer, shall
be received in evidence by all courts in this Colony without
any proof being given that the copies were so printed.

(2) Any person who prints any copy or pretended copy
of any such Act, Ordinance, statute, order, regulation, or
instrument which falsely purports to have been printed by
the Government printer, or tenders in evidence any such





copy or pretended copy which falsely purports to have been
so printed knowing that it was not so printed, shall be liable
to imprisonment for twelve months.

(3) In this section, 'Government printer' means, as
respects any British possession, the printer purporting to
be the printer authorized to print the Acts, Ordinances, or
statutes of the legislature thereof, or otherwise to be the
iovernment printer of that possession.

(4) The Governor in Council may by order extend this
section to any British protectorate, and when so extended
this section shall apply as if the protectorate were a British
possession, and with such other necessary adaptations as
may be made by the order. [23A

27. (1) All answers to interrogatories, disclaimers,
examinations, affidavits, and attestations of honour, and all
other documents required to be sworn in causes or matters
depending in the Supreme Court, and also acknowledgments
required for the purpose of enrolling any deed in the said
court, shall and may be sworn and taken in England, Scot-
land, or Ireland, or the Channel Islands, or in any other
colony or place under the dominion of His Majesty before
any court, judge, notary public, or person lawfully
authorized to administer oaths in such country, colony, or
place respectively, or before any of His Majesty's consular
officers in any place out of His Majesty's dominions.

(2) The judges and officers of the Supreme Court shall
take judicial notice of the seal or signature, as the case may
be, of any such court, judge, notary public, person, or con
sular officer attached, appended, or subscribed to any such
document as aforesaid. [24

28. (1) Any document purporting tohave affixed, im-
pressed, or subscribed thereon or thereto the seal and
signature of any British ambassador, envoy, minister, charge
d' affaires, secretary of embassy or of legation, or consular
officer in testimony of any such oath, affidavit, or act having
been administered, sworn, had, or done by or before him
under the Acts mentioned in section 21 shall be admitted
in evidence without proof of any such seal and signature or
of the official character of such person.





(2) In this section, 'consular officer' includes every
consul-general, consul, vice-consul, pro-consul, consular
agent, acting consul-general, acting consul, acting vice
consul, and acting consular agent. [25

29. In civil proceedings-
(a)the Gazette and any Government Gazette of any
British possession may be proved by the production
thereof;
(b)all proclamations, acts of state, whether legislative
or executive, nominations, appointments, and other
official communications of the Government appear-
ing in any such Gazette may be proved by its
production;
(e) the court may, on matters of public history, litera-
ture, science, or art, refer, for the purposes of
evidence, to such published books, maps, or charts
as the court may consider to be of authority on the
subject to which they relate;
(d) (i) books printed or published under the
authority of the Government of a foreign country,
and purporting to contain the statutes, code, or
other written law of such country, and also printed
and published books of reports of decisions of the
courts of such country, and books proved to be
commonly admitted in such courts as evidence of
the law of such country, shall be admissible as
evidence of the law of such foreign country; and
(ii) maps made under the authority of any
Government or of any public municipal body, and
not made for the purpose of any litigated question,
shall prima facie be deemed to be correct, and shall be
admitted in evidence without further proof. [26

30. Where any notice, order or other document is
required by any enactment to be published in the Gazette,
or where any document referred to in paragraph (b) of the
preceding section appears in the Gazette, a copy of the
Gazette in which it is so published or appears shall be prima
facie evidence of the facts stated in such notice, order or
document.





31. All documents whatsoever legally and properly filed
or recorded in any foreign court of justice or consulate
according to the law and practice of such court or consulate,
and all copies of such documents, shall be admissible in
evidence in the courts of this Colony on being proved in
like manner as any documents filed or recorded in any
foreign court are provable under this or any other Ordin-
ance; and all docurn nts whatsoever so filed or recorded in
any foreign court or consulate, and all copies of such
documents, shall, when so proved and admitted, be held
authentic and effectual for all purposes of evidence as the
same would be held in such foreign court or consulate. [27

32. All courts, judges, magistrates, justices of the peace,
officers of the courts, commissioners acting judicially, and
other judicial officers shall take judicial notice of the signa
ture of the judges, provided such signature is attached or
appended to any judgment, decree, order, certificate, or other
judicial or official document. [28

33. (1) 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 fact
shall, on production of the original document, be admissible
as evidence of that fact if the following conditions are
satisfied, that is to say-
(a) if the maker of the statement either-
(i) had personal knowledge of the matters dealt
with by the statement; or
(ii) where the document in question is or forms
part of a record purporting to be a continuous
record, made the statement (in so far as the matters
dealt with thereby are not within his personal
knowledge) in the performance of a duty to record
information supplied to him by a person who had,
or might reasonably be supposed to have, personal,
knowledge of those matters; and
(b)if the maker of the statement is called as a witness
in the proceedings:
Provided that the condition that the maker of the state-
ment shall be called as a witness need not be satisfied if he
is dead, or unfit by reason of his bodily or mental condition





to attend as a witness, or if he is beyond the seas and it is
not reasonably practicable to secure his attendance, or if all
reasonable efforts to find him have been made without
success.

(2) In any civil proceedings, the court may at any
stage of the proceedings, if having regard to all the circum-
stances of the case it is satisfied that undue delay or expense
would otherwise be caused, order that such a statement as
is mentioned in subsection (i) shall be admissible as evidence
or may, without any such order having been made, admit
such a statement in evidence-
(a)notwithstanding that the maker of the statement is
available but is not called as a witness;
(b)notwithstanding that the original document is not
produced, if in lieu thereof there is produced a copy
of the original document or of the material part
thereof certified to be a true copy in such manner
as may be specified in the order or as the court may
approve, as the case may be.

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

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

(5) For the purpose of deciding whether or not a state-
ment is admissible as evidence by virtue of the foregoing
provisions, the court may draw any reasonable inference from
the form or contents of the document in which the statement
is contained, or from any other circumstances, and may, in
deciding whether or not a person is fit to attend as a witness,
act on a certificate purporting to be the certificate of a
registered medical practitioner, and where the proceedings
are with a jury, the court may in its discretion reject the
statement notwithstanding that the requirements of this





section are satisfied with respect thereto, if for any reason
it appears to it to be inexpedient in the interests of justice
that the statement should be admitted. [28A

34. (1) In estimating the weight, if any, to be attached
to a statement rendered admissible as evidence by section
33, 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 contem-
poraneously with the occurrence or existence of the facts
stated, and to the question whether or not the maker of the
statement had any incentive to conceal or misrepresent facts.

(2) For the purpose of any rule of law or practice
requiring evidence to be corroborated or regulating the
manner in which uncorroborated evidence is to be treated,
a statement rendered admissible as evidence by section 33
shall not be treated as corroboration of evidence given by the
maker of the statement. [28B

35. Subject as hereinafter in this Part provided, in any
proceedings, whether civil or criminal, an instrument to the
validity of which attestation is requisite may, instead of being
proved by an attesting witness, be proved in the manner in
which it might be proved if no attesting witness were alive :
Provided that nothing in this section shall apply to the
proof of wills or other testamentary documents. [28C

36. In any proceedings, whether civil or criminal, there
shall, in the case of a document proved, or purporting, to be
not less than twenty years old, be made any presumption
which immediately before the 24th day of March, 1939,
would have been made in the case of a document of like
character proved, or purporting, to be not less than thirty
years old. [28D

37. The court may at any stage of any proceedings by
order direct that specified facts may be proved at the trial
by affidavit with or without the attendance of the deponent
for cross-examination, notwithstanding that a party desires
his attendance for cross-examination and that he can be
produced for that purpose. [28E





38. (1) In sections 33 to 37-
'document' includes books, maps, plans, drawings and
photographs;
'statement' includes any representation of fact, whether
made in words or otherwise;
'proceedings' includes arbitrations and references, and
'court' shall be construed accordingly.

(2) Nothing in sections 33 to 37 shall-
(a)prejudice the admissibility of any evidence which
would apart from the provisions of the said sections
be admissible; or
(b)enable documentary evidence to be given as to any
declaration relating to a matter of pedigree, if that
declaration would not have been admissible as
evidence if the said sections had not been enacted.
[28F

PART III.

DEPOSITIONS.

39. Whenever it is proved by the oath of any credible
witness, or in any other manner whatsoever it appears, to the
satisfaction of the Supreme Court, that the Attorney General,
or other person conducting a prosecution on behalf of the
Crown, is unable to produce at the trial any person as a
witness, in consequence of the death of such person, or of his
absence from the Colony, or of the impracticability of serving
process on him, or of his being so ill as not to be able to
travel, or of his being insane, or of his being kept out of the
way by means of the procurement of the person accused, or
of his being resident in a country the laws of which prohibit
his absenting himself therefrom, or which he refuses to quit
after application made to him in that behalf or because he
cannot be found at his last-known place of residence in the
Colony; and if it also appears from the certificate of the
magistrate or other officer hereinafter mentioned that such
person was examined before a magistrate, or other officer to
whom the cognizance of the offence appertained, and that
the usual oath was administered to him prior to his examina-
tion, and that the examination was taken in the presence of
the person accused, and that he, or his counsel or solicitor,
had a full opportunity of cross-examining such person, and





that the evidence so taken was reduced into writing and
read over to and signed by him and also by the magistrate
or other officer as aforesaid, so much of the evidence as would
have been admissible, if the said person had been produced
and examined before the said court in the ordinary manner,
shall be read and received in evidence. [29

40. The production from the custody of the proper
officer of the certificate referred to in section 39 shall be
sufficient proof of the signature of such magistrate or other
officer aforesaid, unless it is proved that such examination
was not taken in manner aforesaid or was not in fact signed
by the person examined or by the magistrate or officer afore
said purporting to sign the same. [30]

41. No objection to the reception in evidence of the
examination of any person shall be permitted to prevail on
the ground that the particular examination of such person
was not signed by the magistrate or other officer as aforesaid,
if it appears, in manner aforesaid, that the depositions
wherein such examination was included were so signed. [31]

42. (1) Whereas it may happen that a person, who is
dangerously ill, and unable to travel, may be able to give
material and important information relating to an indictable
offence or to a person accused thereof, and it is desirable, in
the interests of truth and justice, that means should be
provided for perpetuating such testimony and for rendering
the same available in cases of necessity-
Whenever it is made to appear, to the satisfaction of
any magistrate or justice of the peace, that any person who
is dangerously ill and unable to travel, is able and willing to
give material information relating to an indictable offence
or to a person accused thereof, it shall be lawful for the said
magistrate or any justice of the peace to take in writing his
statement upon oath, and such magistrate or justice shall
thereupon subscribe the same, and shall add thereto by way
of caption a statement of his reason for taking the same,
and of the day and place when and where the same was
taken, and of the names of the persons, if any, assisting at
the taking thereof, and, if the same relates to any offence
for which any accused person is already committed or bailed
to appear for trial, shall transmit the same with the said





addition to the Registrar of the Supreme Court, and in all
other cases to the magistrates' clerk, who are respectively
required to preserve the same and file it for record; and if
afterwards, on the trial of any offender or offence to which
the same may relate, the person who made the said state-
ment is proved to be dead, or if it is proved that there is no
reasonable probability that such person will be able to attend
and give evidence at the trial, it shall be lawful to read such
statement in evidence, either for or against the person
accused, without further proof thereof, if the same purports
to be signed by the magistrate or justice by or before whom
it purports to be taken, and provided it is proved, to the
satisfaction of the court, that reasonable notice of the inten-
tion to take such statement has been given to the person
(whether prosecutor, or person accused) against whom it is
proposed to be read in evidence, and that such person, or
his counsel or solicitor, had or might have had, if he had
chosen to be present, full opportunity of cross-examining the
person who made the same.
(2) No such statement shall be rejected on the ground
of any failure to comply with any of the provisions of sub-
section (I) with regard to the notice or the caption unless
the court is of opinion that the person accused was sub-
stantially prejudiced by such failure. [32]

PART IV.

COMMISSIONS TO TAKE EVIDENCE.

43. (1) Where, on an application for this purpose, it
is made to appear to the court or judge that any of His
Majesty's courts or tribunals of competent jurisdiction out-
side the Colony has duly authorized, by commission, order,
or other process, the obtaining the testimony in or in relation
to any civil proceedings pending in or before such court or
tribunal of any witness out of the jurisdiction of such court
or tribunal and within the jurisdiction of the Supreme Court,
it shall be lawful for the court or judge to order the examina-
tion before the person appointed, and in manner and form
directed by such commission, order, or other process as
aforesaid, of such witness accordingly, so far as not re-
pugnant to the laws and practice of the Colony.

(2) It shall be lawful for the court or judge, by the
same or any subsequent order, to command the attendance





of any person to be named in such order for the purpose
of being examined or of producing any writings or other
documents to be mentioned in such order, and to give all
such directions as to the time, place, and manner of such
examination and all other matters connected therewith as
may appear reasonable and just.

(3) Any such order may be enforced, and any dis
obedience thereof punished, in like manner as in case of an
order made by the court or judge in any action or other
proceeding. [38]

44. (1) Where, on an application by summons for this
purpose, it is made to appear to the court or judgethat any
court or tribunal of competent jurisdiction in a foreign
country, before which any civil or commercial or criminal
proceedings are pending, is desirous of obtaining the
testimony in relation to such proceedings of any witness
within the jurisdiction of the Supreme Court, it shall be
lawful for the court or judge to order the examination upon
oath, upon interrogatories, or otherwise, before any person
named in such order, of such witness accordingly.

(2) It shall be lawful for the court or judge by the
same or any subsequent order to command the attendance
of any person to be named in such order for the purpose of
being examined or of producing any writings or other docu-
ments to be mentioned in such order and to give all such
directions as to the time, place, and manner of such
examination and all other matters connected therewith as
may appear reasonable and just.

(3) Any such order may be enforced in like manner
as an order made by the court or judge in any action or
other proceeding. [39]

45. A certificate under the hand of the ambassador,
minister or other diplomatic agent of any foreign power,
received as such by His Majesty, or in case there be no
such diplomatic agent, then of the consul-general or consul
of any such foreign power at London, received and admitted
as such by His Majesty, or of the consul-general, consul, or
vice-consul, of any such foreign power in the Colony,
received and admitted as such, that any matter in relation to
which an application is made under this Ordinance is a civil,





or commercial, or, criminal matter pending before a court
or tribunal in the country of which he is the diplomatic agent
or consul having jurisdiction in the matter so pending, and
that such court or tribunal is desirous of obtaining the
testimony of the witness to whom the application relates,
shall be evidence of the matters so certified ; but where no
such certiticate is produced, other evidence to that effect
shall be admissible. [40]

46. When, under any such commission, order, or other
process as is mentioned in section 43 or under any order
made under section 44 any witness is to be examined, such
witness shall be examined upon oath, affirmation and
declaration, or declaration alone or otherwise according to
the law and practice of the Colony: Provided always-
(a)that every person whose attendance is required
under any such commission, order, or other process
shall be entitled to the like conduct money and pay-
ment of expenses and loss of time as on attendance
at the trial or hearing of any action or other pro-
ceeding before the Supreme Court;
(b)that every person examined under any such com-
mission, order, or other process shall have the like
right to refuse to answer questions tending to cri-
minate himself and all such other questions to
which he would be entitled to object in similar
proceedings before the Supreme Court; and
(c)that no person shall be compelled to produce, under
any such order as aforesaid, any writing or other
document that he would not be compellable to pro-
duce at the trial or the hearing of any action or
other proceeding before the Supreme Court. [41]

PART V.

OATHS, AFFIRMATIONS, ETC.

47. The court is hereby empowered to administer an
oath to all such persons as are legally called or appear volun-
tarily before it. [42]

48. (1) The Legislative Council and any committee
thereof may administer an oath to any witness examined
before such Council or committee, and for that purpose shall





have all such and the like powers, rights, and privileges as
are now possessed or exercisable by the House of Commons
of the United Kingdom or any committee thereof in respect
of enforcing the attendance of witnesses, and punishing
persons guilty of contempt.

(2) Any oath or affirmation may be administered by
the presiding member of the said Council or any committee
thereof.

49. (1) Any oath mnay be administered and taken in
the form and manner following-
The person taking the oath shall hold the New Testa-
ment, or, in the case of a Jew, the Old Testament, in his
uplifted hand, and shall say or repeat after the officer
administering the oath the words 'I swear by Almighty God
that,' followed by the words of the oath
prescribed by law.

(2) The officer shall, unless the person about to take
the oath voluntarily objects thereto, or is physically incap-
able of so taking the oath, administer the oath in the form
ind manner aforesaid without question: Provided that, in
the case of a person who is neither a Christian nor a Jew,
the oath may be administered in any manner which is now
lawful.

(3) In this section 'officer' includes every person
authorized to administer oaths. [43]

50. If any person to whom an oath is administered
desires to swear with uplifted hand, in the form and manner
in which an oath is usually administered in Scotland, he
shall be permitted so to do, and the oath shall be administer-
ed to him in such form and manner without further question.
[44]

51. Where an oath has been duly administered and
taken, the fact that the person to whom the same was ad-
ministered had, at the time of taking such oath, no religious
belief, shall not for any purpose affect the validity of such
oath. [45]





52. (1) Any person upon objecting to being sworn, and
stating, as the ground of such objection, either that he has
no religious belief, or that the taking of an oath is contrary
to his religious belief, shall be permitted to make his solemn
affirmation instead of taking an oath in all places and for
all purposes where an oath is or shall be required by law.
(2) Any person who is neither a Christian nor a Jew
shall be permitted to make his solemn affirmation instead of
taking an oath in all places and for all purposes where an
oath is or shall be required by law.

(3) Every such affirmation shall commence 'I, A.B.,
do solemnly, sincerely, and truly declare and affirm,' and
then proceed with the words of the oath prescribed by law,
omitting any words of imprecation or calling to witness.
(4) Every affirmation in writing shall commence, 'I,
, of , do solemnly and sincerely
affirm,' and the form in lieu of jurat shall be 'Affirmed at
, this day of , 19 ,
Before me .'

(5) Every affirmation shall be of the same force and
effect as an oath in the usual form. [46

53. If any person taking an oath or making an affirma-
tion is ignorant of the English language the oath or affirma-
tion shall be interpreted to him by a sworn interpreter. [47

PART VI.

MISCELLANEOUS.

54. Whenever any forged document has been admitted
in evidence by virtue of this Ordinance, the court or the
person who has admitted the same, may, at the request of
any party against whom the same is so admitted in evidence,
direct that the same shall be impounded and be kept in the
custody of such officer of the court or other proper person,
for such period, and subject to such conditions as to the
court or person may seem meet. [48

55. In any prosecution for murder or manslaughter any
medical notes or report by any Government medical officer
which purport to relate to the deceased shall be admissible in





evidence upon proof of the handwriting of such Government
medical officer, and upon proof of his death or absence from
the Colony. [49

56. On the hearing of any indictable offence it shall be
the duty of the magistrate to take down in the minute of
proceedings any material statement or observation made, and
any evidence given, by the accused in the course of the
proceedings, and, without prejudice to any other method of
proof, any such statement or observation or evidence so taken
down shall be admissible in evidence against the accused on
his trial upon production ofthe minute of proceedings. [50

57. (1) It shall be lawful for the Governor or any judge
on application by affidavit, to issue a warrant or order under
his hand for bringing up any prisoner or person confined in
prison under any sentence or under commitment for trial or
otherwise (except under process in any civil proceedings)
before any court, judge, magistrate, or other judicature to
make his defence or to be examined as a witness in any pro-
ceedings depending or to be inquired of or determined in or
before such court, judge, magistrate, or judicature.

(2) Such prisoner or person shall be brought under the
same care and custody, and be dealt with in like manner in
all respects, as a prisoner required by any writ of habeas
corpus awarded by the Supreme Court to be brought before
the said court to be examined as a witness in any cause or
matter depending before the said court is by law required to
be dealt with. [51

58. Nothing in this Ordinance shall be construed to
repeal any provisions contained in the Wills Act, 1837. [52
Originally 2 of 1889. Fraser 2 of 1889. 12 of 1886. 31 of 1911. 6 of 1939. 2 of 1946. 9 of 1950. 24 of 1950. 37 of 1950. Short title. Interpretation. 9 of 1950, Schedule. [cf. 14 & 15 Vict. C. 99, s. 16.] Incompetency from immature age or unsoundness of mind. [s. 3 cont.] Evidence of child of tender years. 8 Edw. 7, c. 67, s. 30. (Cap. 227.) (Cap. 226.) Evidence of parties. [cf. 14 & 15 Vict. C. 99, s. 2; 16 & 17 Vict. C. 83, s. 1.] Evidence of husband and wife. [cf. 14 & 15 Vict. C. 99, s. 3; 16 & 17 Vict. C. 83, s. 2.] Privilege of husband and wife. 16 & 17 Vict. C. 83, s. 3. Evidence of access. 12, 13 & 14 Geo. 6, c. 100. 37 of 1950, Schedule. No incapacity from crime or interest. 6 & 7 Vict. c. 85, s. 1. Exception as to defendant in criminal proceedings. [cf. 14 & 15 Vict. c. 99, s. 3] Evidence of parties and their husbands and wives in proceedings for adultery. 32 & 33 Vict. c. 68, s. 3. Evidence of parties in action for breach of promise. 32 & 33 Vict. C 68, s. 2. Discrediting a witness. 17 & 18 Vict. C. 125, s. 22; 28 & 29 Vict. C. 18, s. 3. Proof of contradictory statement of adverse witness. 28 & 29 Vict. C. 18, s. 4. Cross-examination as to previous statement in writing. 17 & 18 Vict. c. 125, s. 24; 28 & 29 Vict. c. 18, s. 5. Proof of conviction and previous conviction for indictable offence. 14 & 15 Vict. C. 99, s. 13; 17 & 18 Vict. C. 125, s. 25; 28 & 29 Vict. C. 18, s. 6; 34 & 35 Vict c. 112, s. 18. Attesting witness need not be called. 17 & 18 Vict. C. 125, s. 26; 28 & 29 Vict. c. 18, s. 7. Copy of document of public nature. 14 & 15 Vict. c. 99, s. 14. [s. 19 cont.] 9 of 1950, Schedule. Official documents. 8 & 9 Vict. C. 113, s. 1. Admissibility of notarial acts done before British diplomatic and consular officers 52 & 53 Vict. C. 10 s. 6 (1). Copy of entry in banker's book. 42 & 43 Vict. C. 11, ss. 3-6. Court or judge may direct copies of entries in banker's book to be taken. 42 & 43 Vict. C. 11, ss. 7, 8. Computation of time. 42 & 43 Vict. C. 11, s. 11. (Cap. 149.) Proof of foreign or colonial act of state, judgment, etc. 14 & 15 Vict. C. 99, s. 7. [s. 25 cont.] Proof of statutes. British possessions. 7 Edw. 7, c. 16, s. 1. Swearing of answer, etc., in Supreme Court in England, etc. 15 of 16 Vict. C. 86, s. 22. Admissibility of document having seal and signature of British ambassador, etc. 18 & 19 Vict, c. 42, s. 3. [s. 28 cont.] 52 Vict. C. 10, s. 6 (1); 54 & 55 Vict. C. 50, s. 2. Proof of various matters in civil proceedings. 9 of 1950. Schedule. Effect of notices in Gazette. 31 of 1911, s. 37. Admissibility of document filed in foreign court or consulate. Courts to take judicial notice of signature of judges, etc. 8 & 9 Vict. C. 113, s. 2. Admissibility of documentary evidence as to facts in issue. 6 of 1939, s. 2. [s. 83 cont.] Weight to be attached to evidence. 6 of 1939, s. 2. Proof of instrument to validity of which attestation is necessary. 6 of 1939, s. 2. Presumptions as to documents twenty years old. 6 of 1939, s. 2. Power to order proof of specified facts by affidavit with or without attendance of deponent. 6 of 1939, s. 2. Interpretation and savings. 6 of 1939, s. 2. Admissibility in evidence in criminal proceedings of deposition of person dead, etc. 11 & 12 Vict. C. 43, s. 17. Prima facie proof of examination having been duly taken. Objection that deposition tendered was not signed by magistrate. Power to take deposition of person dangerously ill etc., and admissibility thereof. 30 & 31 Vict. C. 35, s. 6. [s. 42 cont.] Examination of witnesses in the Colony in relation to action pending before British court. 22 Vict. C. 20, s. 1. Examination of witnesses in the Colony in relation to proceedings pending in foreign country. 19 & 20 Vict. C. 113, s. 1. [cf. 33 & 34 Vict. C. 52, s. 24.] Effect of certificate of ambassador, etc., as evidence in support of application. 19 & 20 Vict. C. 113, s. 2. [s. 45 cont.] Examination of witness under ss. 42 & 43. 19 & 20 Vict. C. 113, ss. 3, 4, 5; 22 Vict. C. 20, s. 3, 4. Administration of oath. 14 & 15 Vict. C. 99, s. 16. Powers of Legislative Council as to examination of witnesses. 34 & 35 Vict. C. 83, s. 1. 12 of 1886, ss. 2, 3. 24 of 1950, Schedule. Normal manner of administration of oaths. 9 Edw. 7, c. 30, ss. 2, 3. Swearing with uplifted hand. 51 & 52 Vict. C. 46, s. 5. Oath not affected by absence of religious belief. 51 & 52 Vict. c. 46, s. 3. Affirmation in lieu of oath. 51 & 52 Vict. C. 46, s. 1. 51 & 52 Vict. C. 46, s. 2. 51 & 52 Vict. C. 46, s. 4. Interpretation of oaths and affirmations. Impounding of forged document admitted in evidence. 8 & 9 Vict. C. 113, s. 4; 14 & 15 Vict. C. 99, s. 17. Admissibility of certain medical notes and reports. Observations and evidence of accused person before magistrate to be taken down and to be admissible at trial. Warrant or order to bring up prisoner to give evidence. 16 & 17 Vict. C. 30, s. 9. Saving as to 7 Will. 4 & 1 Vict. C. 26.

Originally 2 of 1889. Fraser 2 of 1889. 12 of 1886. 31 of 1911. 6 of 1939. 2 of 1946. 9 of 1950. 24 of 1950. 37 of 1950. Short title. Interpretation. 9 of 1950, Schedule. [cf. 14 & 15 Vict. C. 99, s. 16.] Incompetency from immature age or unsoundness of mind. [s. 3 cont.] Evidence of child of tender years. 8 Edw. 7, c. 67, s. 30. (Cap. 227.) (Cap. 226.) Evidence of parties. [cf. 14 & 15 Vict. C. 99, s. 2; 16 & 17 Vict. C. 83, s. 1.] Evidence of husband and wife. [cf. 14 & 15 Vict. C. 99, s. 3; 16 & 17 Vict. C. 83, s. 2.] Privilege of husband and wife. 16 & 17 Vict. C. 83, s. 3. Evidence of access. 12, 13 & 14 Geo. 6, c. 100. 37 of 1950, Schedule. No incapacity from crime or interest. 6 & 7 Vict. c. 85, s. 1. Exception as to defendant in criminal proceedings. [cf. 14 & 15 Vict. c. 99, s. 3] Evidence of parties and their husbands and wives in proceedings for adultery. 32 & 33 Vict. c. 68, s. 3. Evidence of parties in action for breach of promise. 32 & 33 Vict. C 68, s. 2. Discrediting a witness. 17 & 18 Vict. C. 125, s. 22; 28 & 29 Vict. C. 18, s. 3. Proof of contradictory statement of adverse witness. 28 & 29 Vict. C. 18, s. 4. Cross-examination as to previous statement in writing. 17 & 18 Vict. c. 125, s. 24; 28 & 29 Vict. c. 18, s. 5. Proof of conviction and previous conviction for indictable offence. 14 & 15 Vict. C. 99, s. 13; 17 & 18 Vict. C. 125, s. 25; 28 & 29 Vict. C. 18, s. 6; 34 & 35 Vict c. 112, s. 18. Attesting witness need not be called. 17 & 18 Vict. C. 125, s. 26; 28 & 29 Vict. c. 18, s. 7. Copy of document of public nature. 14 & 15 Vict. c. 99, s. 14. [s. 19 cont.] 9 of 1950, Schedule. Official documents. 8 & 9 Vict. C. 113, s. 1. Admissibility of notarial acts done before British diplomatic and consular officers 52 & 53 Vict. C. 10 s. 6 (1). Copy of entry in banker's book. 42 & 43 Vict. C. 11, ss. 3-6. Court or judge may direct copies of entries in banker's book to be taken. 42 & 43 Vict. C. 11, ss. 7, 8. Computation of time. 42 & 43 Vict. C. 11, s. 11. (Cap. 149.) Proof of foreign or colonial act of state, judgment, etc. 14 & 15 Vict. C. 99, s. 7. [s. 25 cont.] Proof of statutes. British possessions. 7 Edw. 7, c. 16, s. 1. Swearing of answer, etc., in Supreme Court in England, etc. 15 of 16 Vict. C. 86, s. 22. Admissibility of document having seal and signature of British ambassador, etc. 18 & 19 Vict, c. 42, s. 3. [s. 28 cont.] 52 Vict. C. 10, s. 6 (1); 54 & 55 Vict. C. 50, s. 2. Proof of various matters in civil proceedings. 9 of 1950. Schedule. Effect of notices in Gazette. 31 of 1911, s. 37. Admissibility of document filed in foreign court or consulate. Courts to take judicial notice of signature of judges, etc. 8 & 9 Vict. C. 113, s. 2. Admissibility of documentary evidence as to facts in issue. 6 of 1939, s. 2. [s. 83 cont.] Weight to be attached to evidence. 6 of 1939, s. 2. Proof of instrument to validity of which attestation is necessary. 6 of 1939, s. 2. Presumptions as to documents twenty years old. 6 of 1939, s. 2. Power to order proof of specified facts by affidavit with or without attendance of deponent. 6 of 1939, s. 2. Interpretation and savings. 6 of 1939, s. 2. Admissibility in evidence in criminal proceedings of deposition of person dead, etc. 11 & 12 Vict. C. 43, s. 17. Prima facie proof of examination having been duly taken. Objection that deposition tendered was not signed by magistrate. Power to take deposition of person dangerously ill etc., and admissibility thereof. 30 & 31 Vict. C. 35, s. 6. [s. 42 cont.] Examination of witnesses in the Colony in relation to action pending before British court. 22 Vict. C. 20, s. 1. Examination of witnesses in the Colony in relation to proceedings pending in foreign country. 19 & 20 Vict. C. 113, s. 1. [cf. 33 & 34 Vict. C. 52, s. 24.] Effect of certificate of ambassador, etc., as evidence in support of application. 19 & 20 Vict. C. 113, s. 2. [s. 45 cont.] Examination of witness under ss. 42 & 43. 19 & 20 Vict. C. 113, ss. 3, 4, 5; 22 Vict. C. 20, s. 3, 4. Administration of oath. 14 & 15 Vict. C. 99, s. 16. Powers of Legislative Council as to examination of witnesses. 34 & 35 Vict. C. 83, s. 1. 12 of 1886, ss. 2, 3. 24 of 1950, Schedule. Normal manner of administration of oaths. 9 Edw. 7, c. 30, ss. 2, 3. Swearing with uplifted hand. 51 & 52 Vict. C. 46, s. 5. Oath not affected by absence of religious belief. 51 & 52 Vict. c. 46, s. 3. Affirmation in lieu of oath. 51 & 52 Vict. C. 46, s. 1. 51 & 52 Vict. C. 46, s. 2. 51 & 52 Vict. C. 46, s. 4. Interpretation of oaths and affirmations. Impounding of forged document admitted in evidence. 8 & 9 Vict. C. 113, s. 4; 14 & 15 Vict. C. 99, s. 17. Admissibility of certain medical notes and reports. Observations and evidence of accused person before magistrate to be taken down and to be admissible at trial. Warrant or order to bring up prisoner to give evidence. 16 & 17 Vict. C. 30, s. 9. Saving as to 7 Will. 4 & 1 Vict. C. 26.

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