Evidence Act · 2014 Revised Edition · Chapter II
32. Cases in which statement of relevant fact by person who is dead or cannot be found etc. is relevant
Official textFrom Attorney General's Chambers, unchanged
Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases —
evidence
“evidence” includes — (a) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence; (b) all documents produced for the inspection of the court: such documents are called documentary evidence.
when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
Evidence
Such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;
when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty;
or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;
when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;
when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;
when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;
when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;
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when the statement is contained in any deed or other document which relates to any such transaction as is mentioned in section 13(a);
when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question;
when the statement was made in the course of, or for the purposes of, any investigation or inquiry into an offence under or by virtue of any written law; and such statement was made by a public officer in the discharge of his duties.
The provisions of paragraph (i) shall apply only in relation to a criminal proceeding.
Illustrations
The question is whether A was murdered by B.
A dies of injuries received in a transaction in the course of which she was ravished.
The question is whether she was ravished by B; or
The question is whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.
The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business stating that on a given day he attended A’s mother and delivered her a son, is a relevant fact.
The question is whether A was in Seria on a given day.
A statement in the diary of a deceased solicitor regularly kept in the course of business that on a given day the solicitor attended A at a place mentioned in Seria for the purpose of conferring with him upon specified business. is a relevant fact.
Evidence
The question is whether a ship sailed from Bandar Seri Begawan on a given day.
A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bandar Seri Begawan, is a relevant fact.
The question is whether rent was paid to A for certain land.
A letter from A’s deceased agent to B, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.
The question is whether A and B were legally married.
The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.
The question is whether A, a person who cannot be found, wrote a letter on a certain day.
The fact that a letter written by him is dated on that day is relevant.
The question is, what was the cause of the wreck of a ship?
A protest made by the captain, whose attendance cannot be procured, is a relevant fact.
The question is whether a given road is a public way.
A statement by A, a deceased Penghulu of the Mukim, that the road was public is a relevant fact.
The question is, what was the price of shares on a certain day in a particular market?
A statement of the price made by a deceased broker in the ordinary course of his business is a relevant fact.
The question is whether A, who is dead, was the father of B.
A statement by A that B was his son is a relevant fact.
The question is, what was the date of the birth of A?
A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.
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The question is whether and when A and B were married.
An entry in a memorandum-book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.
A sues B for a libel expressed in a printed caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character.
The remarks of a crowd of spectators on these points may be proved.
Relevancy of certain evidence for proving in subsequent proceedings the truth of facts therein stated.
Terms defined in s 3
court
Defined · s 3“court” includes all Judges and Magistrates and, except arbitrators, all persons legally authorised to take evidence;
document
Defined · s 3“document” means any matter expressed, described or howsoever represented upon any substance, material, thing or article, including any matter embodied in a disc, tape, film, sound track or other device whatsoever, by means of — (a) letters, figures, marks, symbols, signals or other forms of expression, description or representation whatsoever; (b) any visual recording (whether of still or moving images); (c) any sound recording or any electronic, magnetic, mechanical or other recording, whatsoever and however made, or any sound, electronic impulse or other data whatsoever; (d) a recording or transmission of the means mentioned in paragraph (a), (b) or (c), or by more than one of the means mentioned in paragraph (a), (b), (c) or (d), intended to be used or which may be used for the purpose of expressing, describing or howsoever representing that matter; Illustrations A writing is a document. Words printed, lithographed or photographed are documents. A map, plan, graph or sketch is a document. An inscription on wood, metal, stone or any other substance, material or thing is a document. A photograph or a negative is a document. A tape recording of a telephonic communication, including a recording of such communication transmitted over distance is a document. A photographic or other visual recording, including a recording of photographic or other visual transmission over a distance is a document. A matter recorded, stored, processed, retrieved or produced by a computer is a document.
evidence
Defined · s 3“evidence” includes — (a) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence; (b) all documents produced for the inspection of the court: such documents are called documentary evidence.
fact
Defined · s 3“fact” means and includes — (a) anything, state of things or relation of things capable of being perceived by the senses; (b) any mental condition of which any person is conscious. Illustrations (a) That there are certain objects arranged in a certain order in a certain place is a fact. (b) That a man heard or saw something is a fact. (c) That a man said certain words is a fact. (d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact. (e) That a man has a certain reputation is a fact. One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts;
Part II
On proof
Chapter III
Chapter IV
Chapter V
Chapter VI
Part III