PART 3 | PRODUCTION AND EFFECT OF EVIDENCE |
103.—(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which the person asserts, must prove that those facts exist.(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. | | (a) A desires a court to give judgment that B shall be punished 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 judgment that A is entitled to certain land in the possession of B by reason of facts which A asserts and which B denies to be true. |
| | A must prove the existence of those facts. |
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| On whom burden of proof lies |
104. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. | | (a) A sues B for land of which B is in possession, and which, 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 possession. |
| | 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 was obtained by fraud, which A denies. |
| | If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. |
| | Therefore the burden of proof is on B. |
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| Burden of proof as to particular fact |
105. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact is to lie on any particular person. | | (a) A prosecutes B for theft and wishes the court to believe that 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 or she was elsewhere. B must prove it. |
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| Burden of proving fact to be proved to make evidence admissible |
106. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes 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 lost document. |
| | A must prove that the document has been lost. |
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| Burden of proving that case of accused comes within exceptions |
107. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code 1871, or within any special exception or proviso contained in any other part of the Penal Code 1871, or in any law defining the offence, is upon the person, and the court is to presume the absence of such circumstances. | | (a) A accused of murder alleges that by reason of unsoundness of mind A 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 provocation A was deprived of the power of self‑control. |
| | The burden of proof is on A. |
| | (c) Section 325 of the Penal Code 1871 provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments. |
| | A is charged with voluntarily causing grievous hurt under section 325. |
| | The burden of proving the circumstances, bringing the case under section 335, lies on A. |
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| Burden of proving fact especially within knowledge |
108. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person. | | (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon that person. |
| | (b) A is charged with travelling on a railway without a ticket. The burden of proving that A had a ticket is on him or her. |
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| Burden of proving death of person known to have been alive within 30 years |
| 109. When the question is whether a person is alive or dead, and it is shown that the person was alive within 30 years, the burden of proving that the person is dead is on the person who affirms it. |
| Burden of proving that person is alive who has not been heard of for 7 years |
| 110. When the question is whether a person is alive or dead, and it is proved that the person has not been heard of for 7 years by those who would naturally have heard of the person if the person had been alive, the burden of proving that the person is alive is shifted to the person who affirms it. |
| Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent |
| 111. When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it. |
| Burden of proof as to ownership |
| 112. When the question is whether any person is owner of anything of which the person is shown to be in possession, the burden of proving that the person is not the owner is on the person who affirms that the firstmentioned person is not the owner. |
| Proof of good faith in transactions where one party is in relation of active confidence |
113. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. | | (a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney. |
| | (b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father. |
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| Rebuttable presumption of paternity |
114.—(1) Where any person was born —| (a) | during the continuance of a valid marriage between his or her mother and any man; or | | (b) | within 280 days after the dissolution of the marriage, the mother remaining unmarried, |
| it is presumed that the person is the legitimate child of that man, unless the contrary is proved. |
[16/2013] | (2) Subsection (1) does not apply to a person whose parenthood is determined under the Status of Children (Assisted Reproduction Technology) Act 2013. [16/2013] |
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| 115. [Repealed by Act 8 of 1996] |
| Court may presume existence of certain fact |
116. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. | | | (a) | that an individual who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless the individual can account for his or her possession; |
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| | (b) | that an accomplice is unworthy of credit and his or her evidence needs to be treated with caution; |
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| | (c) | that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration; |
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| | (d) | that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence; |
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| | (e) | that judicial and official acts have been regularly performed; |
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| | (f) | that the common course of business has been followed in particular cases; |
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| | (g) | that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; |
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| | (h) | that if an individual refuses to answer a question which the individual is not compelled to answer by law, the answer if given would be unfavourable to him or her; |
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| | (i) | that when a document creating an obligation is in the hands of the obligor the obligation has been discharged. |
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| | But the court is also to have regard to such facts as the following in considering whether such maxims do or do not apply to the particular case before it: |
| | as to illustration (a)—a shop-keeper has in his or her till a marked dollar soon after it was stolen and cannot account for its possession specifically but is continually receiving dollars in the course of his or her business: |
| | as to illustration (b)—A, a person of the highest character is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done and admits and explains the common carelessness of A and B: |
| | as to illustration (b)—a crime is committed by several persons. A, B and C, 3 of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable: |
| | as to illustration (c)—A, the drawer of a bill of exchange, 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 a certain course 5 years ago, but it is known that there have been floods since that time which might change its course: |
| | as to illustration (e)—a judicial act, the regularity of which is in question, was performed under exceptional circumstances: |
| | as to illustration (f)—the question is whether a letter was received. It is shown to have posted, but the usual course of the post was interrupted by disturbances: |
| | as to illustration (g)—an individual refuses to produce a document which would bear on a contract of small importance on which the individual is sued, but which might also injure the feeling and reputation of his or her family: |
| | as to illustration (h)—an individual refuses to answer a question which the individual is not compelled by law to answer, but the answer to it might cause loss to him or her in matters unconnected with the matter in relation to which it is asked: |
| | as to illustration (i)—a bond is in possession of the obligor, but the circumstances of the case are such that he or she may have stolen it. |
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| Presumptions in relation to electronic records |
116A.—(1) Unless evidence sufficient to raise doubt about the presumption is adduced, where a device or process is one that, or is of a kind that, if properly used, ordinarily produces or accurately communicates an electronic record, the court is to presume that in producing or communicating that electronic record on the occasion in question, the device or process produced or accurately communicated the electronic record. | | A seeks to adduce evidence in the form of an electronic record or document produced by an electronic device or process. A proves that the electronic device or process in question is one that, or is of a kind that, if properly used, ordinarily produces that electronic record or document. This is a relevant fact for the court to presume that in producing the electronic record or document on the occasion in question, the electronic device or process produced the electronic record or document which A seeks to adduce. |
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[4/2012] (2) Unless evidence to the contrary is adduced, the court is to presume that any electronic record generated, recorded or stored is authentic if it is established that the electronic record was generated, recorded or stored in the usual and ordinary course of business by a person who was not a party to the proceedings on the occasion in question and who did not generate, record or store it under the control of the party seeking to introduce the electronic record. | | A seeks to adduce evidence against B in the form of an electronic record. The fact that the electronic record was generated, recorded or stored in the usual and ordinary course of business by C, a neutral third party, is a relevant fact for the court to presume that the electronic record is authentic. |
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[4/2012] |
(3) Unless evidence to the contrary is adduced, where an electronic record was generated, recorded or stored by a party who is adverse in interest to the party seeking to adduce the evidence, the court is to presume that the electronic record is authentic in relation to the authentication issues arising from the generation, recording or storage of that electronic record. | | A seeks to adduce evidence against B in the form of an electronic record. The fact that the electronic record was generated, recorded or stored by B, who opposes the relevance of the evidence, is a relevant fact for the court to presume that the electronic record is authentic. |
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[4/2012] |
(4) For the purposes of subsection (2), in criminal proceedings a party to the proceedings includes —| (a) | the police officer or other officer of a law enforcement agency who was involved in the investigation of offences allegedly committed by the accused person; or | | (b) | an accomplice of the accused person even though he or she is not charged with an offence in the same proceedings. [4/2012] |
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| (5) The Minister may make regulations providing for a process by which a document may be recorded or stored through the use of an imaging system, including providing for the appointment of one or more persons or organisations to certify these systems and their use, and for any matters incidental thereto, and an “approved process” in subsection (6) means a process that has been approved in accordance with the provisions of such regulations. [4/2012] |
| (6) Where an electronic record was recorded or stored from a document produced pursuant to an approved process, the court is to presume, unless evidence to the contrary is adduced, that the electronic record accurately reproduces that document. [4/2012] |
| (7) The matters referred to in this section may be established by an affidavit given to the best of the deponent’s knowledge and belief. [4/2012] |
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117. When one person (A) has by A’s declaration, act or omission intentionally caused or permitted another person (B) to believe a thing to be true and to act upon such belief, otherwise than but for that belief B would have acted, neither A or A’s representative in interest is to be allowed in any suit or proceeding between himself, herself or itself and B or B’s representative in interest to deny the truth of that thing. | | A intentionally and falsely leads B to believe that certain land belongs to A and thereby induces B to buy and pay for it. |
| | The land afterwards becomes the property of A and A seeks to set aside the sale on the ground that at the time of the sale A had no title. |
| | A must not be allowed to prove A’s want of title. |
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| Estoppel of tenant and of licensee of person in possession |
118.—(1) No tenant of immovable property, or person claiming through such tenant, is during the continuance of the tenancy permitted to deny that the landlord of the tenant had at the beginning of the tenancy a title to the immovable property.| (2) No person who came upon any immovable property by the licence of the person in possession thereof is permitted to deny that the person had a title to the possession at the time when the licence was given. |
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| Estoppel of bailee or licensee |
119.—(1) No bailee, agent or licensee is permitted to deny that the bailor, principal or licensor, by whom any goods were entrusted to any of them respectively, was entitled to those goods at the time when they were so entrusted.| (2) Any such bailee, agent or licensee (A) may show that A was compelled to deliver up any such goods to some person who had a right to them as against A’s bailor, principal or licensor, or that A’s bailor, principal or licensor wrongfully and without notice to A, obtained the goods from a third person, who has claimed them from A. |
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120. All persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.| Explanation.—A lunatic is not incompetent to testify unless he or she is prevented by his or her lunacy from understanding the questions put to him or her and giving rational answers to them. |
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121.—(1) A witness who is unable to speak may give his or her evidence in any other manner in which he or she can make it intelligible, as, for example, by writing or by signs; but such writing must be written and the signs made in open court.| (2) Evidence so given is deemed to be oral evidence. |
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| Parties to civil suit and their wives or husbands, and husband or wife of person under criminal trial |
122.—(1) In all civil proceedings, the parties to the suit, and the husband or wife of any party to the suit, are competent witnesses.| (2) In criminal proceedings against any person, the husband or wife of such person respectively is a competent witness. |
| (3) In any criminal proceedings, the accused is competent to give evidence on behalf of himself or herself or any person jointly charged with him or her, but is not compellable to do so. |
(4) Where in any criminal proceedings the accused gives evidence, then, subject to this section and section 56, the accused must not in cross‑examination be asked, and if asked is not required to answer, any question tending to reveal to the court —| (a) | the fact that the accused has committed, or has been charged with or convicted or acquitted of, any offence other than the offence charged; or | | (b) | the fact that the accused is generally or in a particular respect a person of bad disposition or reputation. |
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| (5) Subsection (4) does not apply to a question tending to reveal to the court 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 of this Act or of section 265 or 266 of the Criminal Procedure Code 2010 or of any other written law) admissible for the purpose of proving the commission by him or her of the offence charged. [15/2010] |
| (6) Where in any criminal proceedings in which 2 or more persons are jointly charged, any of the accused gives evidence, subsection (4) does not in his or her case apply to any question tending to reveal to the court a fact about him or her such as is mentioned in subsection (4)(a) or (b) if evidence of that fact is admissible for the purpose of showing any other of the accused to be not guilty of the offence with which that other is charged. |
(7) Subsection (4) does not apply if —| (a) | the accused has personally or by his or her advocate asked any witness for the prosecution or for a person jointly charged with him or her any question concerning the witness’s conduct on any occasion or as to whether the witness has committed, or has been charged with or convicted or acquitted of, any offence; and | | (b) | the court is of the opinion that the main purpose of that question was to raise an issue as to the witness’s credibility, |
| but the court is not to permit a question falling within subsection (4) to be put to the accused by virtue of this subsection unless it is of the opinion that the question is relevant to his or her credibility as a witness. |
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| (8) Subsection (4) does not apply where the accused has himself or herself given evidence against any person jointly charged with him or her in the same proceedings. |
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123. No Judge and, except upon the special order of the General Division of the High Court, no Magistrate may be compelled to answer any question as to his or her own conduct in court as such Judge or Magistrate or as to anything which came to his or her knowledge in court as such Judge or Magistrate; but he or she may be examined as to other matters which occurred in his or her presence while he or she was so acting. | | (a) A, on A’s trial before the General Division of the High Court, says that a deposition was improperly taken by B, the committing Magistrate. B cannot be compelled to answer questions as to this except upon the special order of the General Division of the High Court. |
| | (b) A is accused before a District Court of having given false evidence before B, a District Judge. B cannot be compelled to say what A said except upon the special order of the General Division of the High Court. |
| | (c) A is accused of attempting to murder a police officer while on A’s trial before B, a Judge sitting in the General Division of the High Court. B may be examined as to what occurred. |
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[40/2019] |
| Communications during marriage |
| 124.—(1) No person who is or has been married may be compelled to disclose any communication made to him or her during marriage by any person to whom he or she is or has been married; nor may he or she be permitted to disclose any such communication unless the person who made it or his or her representative in interest consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other. [15/2019] | (2) Nothing in this section protects from disclosure any such communication made that is relevant in any criminal proceedings in respect of a specified offence. [15/2019] |
(3) In this section —| “domestic worker” has the meaning given by section 73(4) of the Penal Code 1871; |
| “employer”, in relation to a domestic worker, has the meaning given by section 73(4) of the Penal Code 1871; |
| “employment agent”, in relation to a domestic worker, has the meaning given by section 73(4) of the Penal Code 1871; |
| “member of the employer’s household” has the meaning given by section 73(4) of the Penal Code 1871; |
“specified offence” means any of the following offences:| (a) | a child abuse offence committed against a person below 16 years of age; | | (b) | a sexual offence or an offence under Chapter 16 of the Penal Code 1871 (other than a sexual offence) committed against a person below 16 years of age; | | (c) | a sexual offence or an offence under Chapter 16 of the Penal Code 1871 (other than a sexual offence) committed against a domestic worker by an employer of the domestic worker, a member of the employer’s household or an employment agent of the domestic worker; | | (d) | a sexual offence or an offence under Chapter 16 of the Penal Code 1871 (other than a sexual offence) committed against a vulnerable person by a person who has the custody, charge or care of the vulnerable person; | | (e) | an abetment of, a conspiracy to commit or an attempt to commit any of the offences mentioned in paragraphs (a) to (d); |
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| “vulnerable person” has the meaning given by section 74A(5) of the Penal Code 1871. [15/2019] |
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| Evidence as to affairs of State |
| 125. No one is permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the Department concerned, who may give or withhold such permission as he or she thinks fit, subject, however, to the control of the Minister. |
| 126.—(1) No public officer may be compelled to disclose communications made to him or her in official confidence when he or she considers that the public interest would suffer by the disclosure. [17/2003] | (2) No person who is a member, an officer or an employee of, or who is seconded to, any organisation specified in the Schedule to the Official Secrets Act 1935 may be compelled to disclose communications made to him or her in official confidence when he or she considers that the public interest would suffer by the disclosure. [17/2003] |
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| Information as to commission of offences |
127.—(1) No Magistrate or police officer may be compelled to say from where he or she got any information as to the commission of any offence.(2) No revenue officer may be compelled to say from where he or she 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. |
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| Professional communications |
128.—(1) No advocate or solicitor is at any time permitted, unless with his or her client’s express consent, to disclose any communication made to him or her in the course and for the purpose of his or her employment as such advocate or solicitor by or on behalf of his or her client, or to state the contents or condition of any document with which he or she has become acquainted in the course and for the purpose of his or her professional employment, or to disclose any advice given by him or her to his or her client in the course and for the purpose of such employment.(2) Nothing in this section protects from disclosure —| (a) | any such communication made in furtherance of any illegal purpose; | | (b) | any fact observed by any advocate or solicitor in the course of his or her employment as such showing that any crime or fraud has been committed since the commencement of his or her employment. |
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(3) It is immaterial whether the attention of such advocate or solicitor was or was not directed to such fact by or on behalf of his or her client.| Explanation.—The obligation stated in this section continues after the employment has ceased. |
| | | (a) A, a client, says to B, a solicitor: “I have committed forgery and I wish you to defend me”. |
| | As the defence of a man known to be guilty is not a criminal purpose this communication is protected from disclosure. |
| | (b) A, a client, says to B, a solicitor: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue”. |
| | This communication being made in furtherance of a criminal purpose is not protected from disclosure. |
| | (c) A, being charged with embezzlement, retains B, a solicitor, to defend A. In the course of the proceedings B observes that 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 the book at the commencement of his or her employment. |
| | This being a fact observed by B in the course of his or her employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. |
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| Communications with legal counsel in entity |
| 128A.—(1) A legal counsel in an entity is not at any time permitted, except with the entity’s express consent, to disclose any communication made to him or her in the course and for the purpose of his or her employment as such legal counsel, or to state the contents or condition of any document with which he or she has become acquainted in the course and for the purpose of his or her employment as such legal counsel, or to disclose any legal advice given by him or her to the entity, or to any officer or employee of the entity, in the course and for the purpose of such employment. [4/2012] (2) Nothing in subsection (1) protects from disclosure —| (a) | any such communication made in furtherance of any illegal purpose; | | (b) | any fact observed by any legal counsel in an entity in the course of his or her employment as such legal counsel showing that any crime or fraud has been committed since the commencement of his or her employment as such legal counsel; | | (c) | any such communication made to the legal counsel which was not made for the purpose of seeking his or her legal advice; or | | (d) | any document which the legal counsel was made acquainted with otherwise than in the course of and for the purpose of seeking his or her legal advice. [4/2012] |
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| (3) For the purposes of subsection (2)(b), it is immaterial whether the attention of the legal counsel was or was not directed to that fact by or on behalf of the entity. [4/2012] |
| (4) Where a legal counsel is employed by one of a number of corporations that are related to each other under section 6 of the Companies Act 1967, subsection (1) applies in relation to the legal counsel and every corporation so related as if the legal counsel were also employed by each of the related corporations. [4/2012] |
| (5) Where a legal counsel is employed by a public agency and is required as part of his or her duties of employment or appointment to provide legal advice or assistance in connection with the application of the law or any form of resolution of legal dispute to another public agency or agencies, subsection (1) applies in relation to the legal counsel and the second-mentioned public agency or agencies as if the legal counsel were also employed by the second‑mentioned public agency or agencies. [4/2012] |
(6) For the purposes of subsection (5), “public agency” includes —| (a) | the Government, including any ministry, department, agency, or Organ of State or instrumentality of the Government; | | (b) | any board, commission, committee or similar body, whether corporate or unincorporate, established under a public Act for a public function (called in this subsection a statutory body); | | (c) | any other board, commission, committee or similar body appointed by the Government, or by a statutory body, for a public purpose. [4/2012] |
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| Sections 128 and 128A to apply to interpreters, etc. |
| 129. Sections 128 and 128A apply to interpreters and other persons who work under the supervision of legal professional advisers. [4/2012] |
| Privilege not waived by volunteering evidence |
| 130.—(1) If any party to a suit gives evidence therein at his or her own instance or otherwise, that party is not deemed to have consented thereby to such disclosure as is mentioned in section 128 or 128A. [4/2012] | (2) If any party to a suit or proceeding calls any advocate or solicitor as a witness, that party is deemed to have consented to such disclosure as is mentioned in section 128 only if that party questions the advocate or solicitor on matters which but for the question the advocate or solicitor would not be at liberty to disclose. [4/2012] |
| (3) If any party to a suit or proceeding calls any legal counsel in an entity as a witness, that party is deemed to have consented to such disclosure as is mentioned in section 128A only if that party questions the legal counsel on matters which but for the question the legal counsel would not be at liberty to disclose. [4/2012] |
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| Confidential communications with legal advisers |
| 131.—(1) No one may be compelled to disclose to the court any confidential communication which has taken place between him or her and his or her legal professional adviser unless he or she offers himself or herself as a witness, in which case he or she may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he or she has given, but no others. [4/2012] (2) In subsection (1) and section 129, “legal professional adviser” means —| (a) | an advocate or solicitor; or | | (b) | in the case of any communication which has taken place between any officer or employee of an entity and a legal counsel employed, or deemed under section 128A(4) or (5) to be employed, by the entity in the course and for the purpose of seeking his or her legal advice as such legal counsel, that legal counsel. [4/2012] |
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| Production of title deeds of witness not a party |
132.—(1) No witness who is not a party to the suit may be compelled to produce his or her title deeds to any property, or any document by virtue of which he or she holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him or her, unless he or she has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he or she claims.| (2) No witness who is a party to the suit is bound to produce any document in his or her possession or power which is not relevant or material to the case of the party requiring its production. |
| (3) No bank may be compelled to produce the books of such bank in any legal proceeding to which such bank is not a party, except as provided by section 174. |
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| Production of documents which another person having possession could refuse to produce |
| 133. No one may be compelled to produce documents in his or her possession which any other person would be entitled to refuse to produce if they were in his or her possession, except for the purpose of identification, unless such last mentioned person consents to their production, nor may anyone who is entitled to refuse to produce a document be compelled to give oral evidence of its contents. |
| Witness not excused from answering on ground that answer will criminate |
134.—(1) A witness is not excused from answering any question as to any matter relevant to the matter in issue in any suit, or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend, directly or indirectly, to criminate, such witness, or that it will expose, or tend, directly or indirectly, to expose, such witness to a penalty or forfeiture of any kind, or that it will establish or tend to establish that the witness owes a debt or is otherwise subject to a civil suit at the instance of the Government or of any other person.| (2) No answer which a witness is compelled by the court to give shall subject him or her to any arrest or prosecution, or be proved against him or her in any criminal proceeding, except a prosecution for giving false evidence by such answer. |
| (3) Before compelling a witness to answer a question the answer to which will criminate or may tend, directly or indirectly, to criminate such witness, the court is to explain to the witness the purport of subsection (2). |
(4) Where the accused gives evidence in any criminal proceedings —| (a) | the accused is not entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by him or her of the offence charged; and | | (b) | except as regards any question, document or thing which in the opinion of the court is relevant solely or mainly to the accused’s credibility as a witness (not being, in the case of a question, one asked by virtue of section 56), the accused is not entitled to refuse to answer a question or produce a document or thing on the ground that to do so would —| (i) | tend to expose the accused to proceedings for some other offence or for the recovery of a penalty; or | | (ii) | tend to expose the accused’s wife or husband to proceedings for an offence or for the recovery of a penalty. |
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(5) Where a person being the wife or husband of the accused gives evidence in any criminal proceedings, that person —| (a) | is not entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by the accused of the offence charged; and | | (b) | except as regards any question, document or thing which in the opinion of the court is relevant solely or mainly to that person’s credibility as a witness, is not entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to expose her or him to proceedings as mentioned in subsection (4)(b)(i). |
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(6) No answer which an accused or his or her spouse is compelled to give under subsection (4)(b) or under subsection (5)(b) shall —| (a) | expose the accused to any proceedings for some other offence or for the recovery of a penalty or be proved against him or her in any such proceedings; or | | (b) | expose the spouse to any proceedings for an offence or for the recovery of a penalty or be proved against the spouse in any such proceedings. |
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| (7) Any reference in this section to proceedings for the recovery of a penalty includes a reference to civil proceedings therefor. |
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135.—(1) An accomplice is a competent witness against an accused person.| (2) Any rule of law or practice whereby at a trial it is obligatory for the court to warn itself about convicting the accused on the uncorroborated testimony of an accomplice is abrogated. |
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| 136. No particular number of witnesses is in any case required for the proof of any fact. |
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| Order of production and examination of witnesses |
| 137. The order in which witnesses are produced and examined is to be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the court. |
| Court to decide as to admissibility of evidence |
138.—(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 the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise.| (2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact firstmentioned, unless the party undertakes to give proof of such fact and the court is satisfied with such undertaking. |
(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the court may, in its discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to 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 a person 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 to prove the statement before evidence is given of the statement. |
| | (b) It is proposed to prove by a copy the contents of a document said to be lost. |
| | The fact that the original is lost must be proved by the person proposing to produce the copy before the copy is produced. |
| | (c) A is accused of receiving stolen property, knowing it to have been stolen. |
| | It is proposed to prove that A denied the possession of the property. |
| | The relevancy of the denial depends on the identity of the property. The court may, in its discretion, either require the property to be identified before the 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 have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the 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. |
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| Examination-in-chief, cross-examination and re-examination |
139.—(1) The examination of a witness by the party who calls him or her is called his or her examination‑in‑chief.| (2) The examination of a witness by the adverse party is called his or her cross‑examination. |
| (3) Where a witness has been cross-examined and is then examined by the party who called him or her, such examination is called his or her re‑examination. |
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| Order of examinations and direction of re-examination |
140.—(1) Witnesses are to be first examined‑in‑chief, then, if the adverse party so desires, cross‑examined, then, if the party calling them so desires, 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 witness testified on his or her examination‑in‑chief. |
| (3) The re-examination is to be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re‑examination, the adverse party may further cross‑examine upon that matter. |
| (4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross‑examination, and if it does so, the parties have the right of further cross-examination and re‑examination respectively. |
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| Cross-examination of person called to produce document |
| 141. A person summoned to produce a document does not become a witness by the mere fact that he or she produces it, and cannot be cross‑examined unless he or she is called as a witness. |
| 142. Witnesses to character may be cross-examined and re‑examined. |
| 143. Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify, is called a leading question. |
| When they must not be asked |
144.—(1) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re‑examination, except with the permission of the court.| (2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved. |
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145.—(1) Leading questions may be asked in cross‑examination, subject to the following qualifications:| (a) | the question must not put into the mouth of the witness the very words which he or she is to echo back again; and | | (b) | the question must not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact. |
| (2) The court, in its discretion, may prohibit leading questions from being put to a witness who shows a strong interest or bias in favour of the cross‑examining party. |
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| Evidence as to matters in writing |
146. Any witness may be asked while under examination whether any contract, grant or other disposition of property as to which the witness is giving evidence was not contained in a document, and if the witness says that it was, or if the witness is about to make any statement as to the contents of any document which in the opinion of the court ought to be produced, the adverse party may object to such evidence being given until such document is produced or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.| Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts. |
| | | The question is whether A assaulted B. |
| | C deposes that he or she heard A say to D: “B wrote a letter accusing me of theft and I will be revenged on him”. The statement is relevant as showing A’s motive for the assault and evidence may be given of it though no other evidence is given about the letter. |
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| Cross-examination as to previous statements in writing |
147.—(1) A witness may be cross-examined as to previous statements made by him or her in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he or she is cross‑examined, without such writing being shown to him or her or being proved; but if it is intended to contradict him or her by the writing, his or her attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him or her.| (2) If a witness, upon cross-examination as to a previous oral statement made by him or her relevant to matters in question in the suit or proceeding in which he or she is cross‑examined and inconsistent with his or her present testimony, does not distinctly admit that he or she made such statement, proof may be given that he or she did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he or she must be asked whether or not he or she made such statement. |
| (3) Where in any proceedings a previous inconsistent or contradictory statement made by a person called as a witness in those proceedings is proved by virtue of this section, that statement is by virtue of this subsection admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible. |
| (4) Where a person called as a witness in any proceedings is cross‑examined on a document used by him or her to refresh his or her memory, that document may be made evidence in those proceedings. |
| (5) Where a document or any part of a document is received in evidence by virtue of subsection (4), any statement made in that document or part by the person using the document to refresh his or her memory is by virtue of that subsection admissible as evidence of any fact stated therein of which direct oral evidence by him or her would be admissible. |
| (6) In estimating the weight (if any) to be attached to a statement admissible in evidence by virtue of this section regard is to 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 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 the facts. |
| (7) Despite any other written law or rule of practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement which is admissible in evidence by virtue of this section is not capable of corroborating evidence given by the maker of the statement. |
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| Questions lawful in cross-examination |
148. Subject to section 154A, when a witness may be cross‑examined, the witness may, in addition to the questions hereinbefore referred to, be asked any questions which tend —| (a) | to test his or her accuracy, veracity or credibility; | | (b) | to discover who he or she is and what is his or her position in life; or | | (c) | to shake his or her credit by injuring his or her character, although the answer to such questions might tend, directly or indirectly, to criminate him or her, or might expose or tend, directly or indirectly, to expose him or her to a penalty or forfeiture. [20/2018] |
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| When witness to be compelled to answer |
| 149. If any such question relates to a matter relevant to the suit or proceeding, section 134 applies thereto. |
| Court to decide when question is to be asked and when witness compelled to answer |
150.—(1) If any question relates to a matter not relevant to the suit or proceeding, except insofar as it affects the credit of the witness by injuring his or her character, the court is to decide whether or not the witness is to be compelled to answer it, and may, if it does not think fit to compel him or her to answer the question, warn the witness that he or she is not obliged to answer it.(2) In exercising its discretion, the court is to have regard to the following considerations:| (a) | such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he or she testifies; | | (b) | such questions are improper if the imputation which they convey relates to matters so remote in time or of such character that the truth of the imputation would not affect or would affect in a slight degree the opinion of the court as to the credibility of the witness on the matter to which he or she testifies; | | (c) | such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his or her evidence; | | (d) | the court may, if it sees fit, draw from the witness’s refusal to answer, the inference that the answer, if given, would be unfavourable. |
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| Question not to be asked without reasonable grounds |
151. No such question as is referred to in section 150 ought to be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded. | | (a) An advocate is instructed by a solicitor that an important witness is a professional gambler. This is a reasonable ground for asking the witness whether he or she is a professional gambler. |
| | (b) An advocate is informed by a person in court that an important witness is a professional gambler. The informant, on being questioned by the advocate, gives satisfactory reasons for his or her statement. This is a reasonable ground for asking the witness whether he or she is a professional gambler. |
| | (c) A witness of whom nothing whatever is known, is asked at random whether he or she is a professional gambler. There are here no reasonable grounds for the question. |
| | (d) A witness of whom nothing whatever is known being questioned as to his or her mode of life and means of living gives unsatisfactory answers. This may be a reasonable ground for asking him or her if he or she is a professional gambler. |
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| Procedure of court in case of question being asked without reasonable grounds |
| 152. If the court is of the opinion that any such question was asked without reasonable grounds, the court may, if it was asked by any advocate or solicitor, report the circumstances of the case to the Supreme Court in order that the Judges may, if they think fit, exercise the power to suspend or strike off the roll of advocates and solicitors given to them under the Legal Profession Act 1966. |
| Indecent and scandalous questions |
| 153. The court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed. |
| Questions intended to insult or annoy |
| 154. The court is to forbid any question which appears to it to be intended to insult or annoy, or which though proper in itself, appears to the court needlessly offensive in form. |
| Restrictions on questions and evidence in criminal proceedings involving sexual offence or child abuse offence |
154A.—(1) In criminal proceedings where the accused is charged with committing a sexual offence or child abuse offence, the following are subject to such restrictions as may be provided for in rules made under subsection (2):| (a) | the questions that may be asked of the alleged victim of the offence in cross-examination; | | (b) | the evidence that may be adduced about the alleged victim. [20/2018] |
(2) The Minister may make rules to provide for —| (a) | the restrictions mentioned in subsection (1); | | (b) | any exceptions to those restrictions; and | | (c) | any application concerning any such restriction or exception. [20/2018] |
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| Exclusion of evidence to contradict answers to questions testing veracity |
155. When a witness has been asked and has answered any question which is relevant to the inquiry only insofar as it tends to shake the witness’s credit by injuring his or her character, no evidence may be given to contradict him or her; but if the witness answers falsely he or she may afterwards be charged with giving false evidence.| Exception 1.—If a witness is asked whether he or she has been previously convicted of any crime and denies it, evidence may be given of his or her previous conviction. |
| | Exception 2.—If a witness is asked any question tending to impeach his or her impartiality and answers it by denying the facts suggested, he or she may be contradicted. |
| | | (a) A claim against an underwriter is resisted on the ground of fraud. |
| | The claimant is asked whether in a former transaction he or she had not made a fraudulent claim. The claimant denies it. |
| | Evidence is offered to show that the claimant did make such a claim. |
| | The evidence is inadmissible. |
| | (b) A witness is asked whether he or she was not dismissed from a situation for dishonesty. The witness denies it. |
| | Evidence is offered to show that the witness was dismissed for dishonesty. |
| | The evidence is not admissible. |
| | (c) A affirms that on a certain day A saw B at Malacca. |
| | A is asked whether A was not on that day at Penang. A denies it. |
| | Evidence is offered to show that A was on that day at Penang. |
| | The evidence is admissible, not as contradicting A on a fact which affects A’s credit, but as contradicting the alleged fact that B was seen on the day in question in Malacca. |
| | (d) A is tried for a rape on B. B is asked in cross-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 witness might, if the denial was false, be charged with giving false evidence. |
| | (e) A is asked whether A has not said that A would be revenged on B, against whom A gives evidence. A denies it. |
| | A may be contradicted on the ground that the question tends to impeach A’s impartiality. |
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| Questions by party to his or her own witness |
| 156. The court may, in its discretion, permit the person who calls a witness to put any questions to him or her which might be put in cross‑examination by the adverse party. |
| Impeaching credit of witness |
157. The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him or her:| (a) | by the evidence of persons who testify that they from their knowledge of the witness believe him or her to be unworthy of credit; | | (b) | by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his or her evidence; | | (c) | by proof of former statements inconsistent with any part of his or her evidence which is liable to be contradicted.| Explanation.—A witness declaring another witness to be unworthy of credit may not, upon his or her examination-in-chief, give reasons for his or her belief, but he or she may be asked his or her reasons in cross‑examination, and the answer which he or she gives cannot be contradicted, though, if they are false, he or she may afterwards be charged with giving false evidence. |
| | | (a) A sues B for the price of goods sold and delivered to B. |
| | C says that C delivered the goods to B. |
| | Evidence is offered to show that on a previous occasion C said that C had not delivered the goods to B. |
| | The evidence is admissible. |
| | (b) A is indicted for the murder of B. |
| | C says that B, when dying, declared that A had given B the wound of which B died. |
| | Evidence is offered to show that on a previous occasion C said that the wound was not given by A or in his or her presence. |
| | The evidence is admissible. |
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| Questions tending to corroborate evidence of relevant fact admissible |
158.—(1) When a witness whom it is intended to corroborate gives evidence of any relevant fact, the witness may be questioned as to any other circumstances which he or she observed at or near to the time or place at which such relevant fact occurred, if the court is of the opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact to which he or she testifies.| (2) Any rule of law or practice whereby in criminal proceedings the evidence of one witness is incapable of corroborating the evidence of another witness is abrogated. |
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| Former statements of witness may be proved to corroborate later testimony as to same fact |
| 159. In order to corroborate the testimony of a witness, any former statement made by such witness, whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. |
| What matters may be proved in connection with proved statement relevant under section 32 or 33 |
| 160. 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, or in 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 had denied upon cross‑examination the truth of the matter suggested. |
| Evidence not capable of corroboration |
160A. For the purpose of any rule of law or practice that requires evidence to be corroborated or that regulates the manner in which uncorroborated evidence is to be treated —| (a) | a statement that is admissible in evidence by virtue of section 32(1) is not capable of corroborating evidence given by the maker of the statement; and | | (b) | a statement that is admissible in evidence by virtue of section 32(1)(b) is not capable of corroborating evidence given by the person who originally supplied the information from which the statement was made. [4/2012] |
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161.—(1) A witness may while under examination refresh his or her memory by referring to any writing made by himself or herself at the time of the transaction concerning which he or she is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his or her memory.| (2) The witness may also refer to any such writing made by any other person and read by the witness within the time mentioned in subsection (1), if, when the witness read it, the witness knew it to be correct. |
| (3) Whenever the witness may refresh his or her memory by reference to any document, the witness may, with the permission of the court, refer to a copy of such document if the court is satisfied that there is sufficient reason for the non‑production of the original. |
| (4) An expert may refresh his or her memory by reference to professional treatises. |
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| Testimony to facts stated in document mentioned in section 161 |
162. A witness may also testify to facts mentioned in any such document as is mentioned in section 161 although the witness has no specific recollection of the facts themselves, if the witness is sure that the facts were correctly recorded in the document. | | A book-keeper may testify to facts recorded by him or her in books regularly kept in the course of business if he or she knows that the books were correctly kept, although he or she has forgotten the particular transactions entered. |
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| Right of adverse party as to writing used to refresh memory |
| 163. Any writing referred to under section 161 or 162 must be produced and shown to the adverse party if he or she requires it; such party may cross‑examine the witness thereupon. |
| Production and translation of documents |
164.—(1) A witness summoned to produce a document must, if it is in the witness’s possession or power, bring it to court despite any objection which there may be to its production or to its admissibility.| (2) The validity of any such objection is to be decided on by the court. |
| (3) The court, if it sees fit, may inspect the document unless it refers to affairs of State, or take other evidence to enable it to determine on its admissibility. |
| (4) If for such a purpose it is necessary to cause any document to be translated, the court may, if it thinks fit, direct the translator to keep the contents secret unless the document is to be given in evidence; and if the translator disobeys such direction, the translator shall be held to have committed an offence under section 166 of the Penal Code 1871. |
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| Giving as evidence document called for and produced on notice |
| 165. When a party (A) calls for a document which A has given the other party notice to produce, and such document is produced and inspected by A, A is bound to give it as evidence if the party producing it requires A to do so and if it is relevant. |
| Using as evidence document production of which was refused on notice |
166. When a party refuses to produce a document which that party has had notice to produce, that party cannot afterwards use the document as evidence without the consent of the other party or the order of the court. | | A sues B on an agreement, and gives B notice to produce it. At the trial A calls for the document, and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. B cannot do so. |
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| Judge’s power to put questions or order production |
| 167.—(1) The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he or she pleases, in any form at any time, of any witness or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents are entitled to make any objection to any such question or order, nor, without the permission of the court, to cross‑examine any witness upon any answer given in reply to any such question. [Act 25 of 2021 wef 01/04/2022] | (2) The judgment must be based upon facts declared by this Act to be relevant and duly proved. |
| (3) This section does 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 123 to 133 if the question were asked or the document were called for by the adverse party. |
(4) The Judge must not —| (a) | ask any question which it would be improper for any other person to ask under section 150 or 151; or | | (b) | dispense with the primary evidence of any document, |
| except in the cases excepted in this Act. |
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| Power of assessors to put questions |
| 168. In cases tried with assessors, the assessors may put any questions to the witnesses through or by permission of the Judge, which the Judge himself or herself might put and which he or she considers proper. [Act 25 of 2021 wef 01/04/2022] |
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| Improper admission and rejection of evidence |
| No new trial for improper admission or rejection of evidence |
| 169. The improper admission or rejection of evidence is not ground of itself for a new trial or reversal of any decision in any case if it appears to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. |
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