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Evidence Ordinance 1961

CONSOLIDATED ACTS OF SAMOA 2009

EVIDENCE ORDINANCE 1961

Arrangement of Provisions

TITLE

1. Short title and commencement
2. Interpretation

PART I
OATHS AND AFFIRMATIONS

3 - 8 Repealed.

PART II
WITNESSES, ETC.

9. All witnesses competent
10. Privilege
11. Proof of contradictory statements of witness
12. Cross-examination as to previous statements in writing
13. How far witness may be discredited by the party producing him or her
14. Evidence of parties and their husbands and wives in civil proceedings
15. Evidence of accused persons and their husbands and wives
16. Evidence of persons jointly charged
17. Cross-examination as to credit
18. Confession after promise, threat, or other inducement
19. Proof of previous conviction of witness
20. Evidence of prisoners
21. Prohibited questions not to be published

PART III
JUDICIAL NOTICE AND DOCUMENTARY EVIDENCE

22. Judicial notice of enactments, etc.
23. Judicial notice of certain seals and signatures
24. Copies of enactments, etc., printed under the authority of the Government receivable in evidence
25. Evidence of official documents
26. Other public documents, how provable
27. Documentary evidence in civil cases
28. Proof of documents executed abroad
29. Proof of instrument requiring attestation
30. Photographic copies of records to be evidence
31. Presumption as to documents 20 years old
32. Documents may be impounded

PART IV
GENERAL

33. Discretion as to admissibility
34. Evidence of non-access
35. Communications to clergymen and medical men
36. Legislation superseded and savings

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THE EVIDENCE ORDINANCE 1961
1961 No.28

AN ORDINANCE to consolidate certain enactments relating to the law of evidence.

(29 December 1961)
(Commencement date: 1 January 1961)

1. Short title and commencement - (1) This Ordinance may be cited as the Evidence Ordinance 1961.

(2) This Ordinance shall come into force on the 1st day of January 1962.

2. Interpretation - In this Ordinance, unless the context otherwise requires:

"Constitution" means the Constitution of the Independent State of Samoa;

"Enactment" includes the Constitution and any Act, Ordinance, Regulation or Order;

"Court" includes any Court constituted in and for the Independent State of Samoa by any enactment;

"Document" includes any book, map, plan, drawing, photograph or any part thereof;

"Film" includes any photographic plate, microfilm, or photostatic negative;

"Prisoner" means any person serving a term of imprisonment or in lawful custody pending trial or otherwise;

"Proceeding" or "judicial proceeding" includes any action, trial, inquiry, cause or matter, whether civil or criminal, depending or to be inquired of or determined in any Court.

PART I
OATHS AND AFFIRMATIONS

3-8 Repealed by section 12 of the Oaths, Affidavits and Declarations Act 1963.

PART II
WITNESSES, ETC.

9. All witnesses competent - No person shall be excluded from giving evidence in any proceeding on the ground that he or she has or may have an interest in the matter in question, or in the result of the proceeding, or on the ground of his previous conviction of any offence.

10. Privilege - Subject to the provisions of section 271 of the Customs Act 1977, no person shall be compelled to answer any question or to produce any document if he or she states as part of his or her evidence on oath in any judicial proceeding that the answer to such question or the production of such document may in his or her honest belief tend to expose him or her to the risk of criminal prosecution.

11. Proof of contradictory statements of witness - Every witness under cross-examination, and every witness on his or her examination in chief (if the Court, being of opinion that the witness is hostile, permits the question), may in any proceeding, civil or criminal, be asked whether he or she has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his or her present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and, if he or she does not distinctly admit that he or she made such statement, proof may be given that he or she did in fact make it.

12. Cross-examination as to previous statements in writing - (1) A witness may be cross-examined as to previous statements made by him or her in writing or reduced into writing relative to the subject-matter of the proceedings without such writing being shown to him or her; but if it is intended to contradict such witness by the writing his or her attention must, before such contradictory proof can be given, be called to those parts of the writing that are to be used for the purpose of so contradicting him or her.

(2) The Court may at any time during the trial require the writing to be produced for its inspection, and may thereupon make such use of it for the purposes of the trial as it thinks fit.

13. How far witness may be discredited by the party producing him or her - A party producing a witness shall not be allowed to impeach his or her credit by general evidence of bad character, but may contradict him or her by other evidence.

14. Evidence of parties and their husbands and wives in civil proceedings - In any civil proceeding the parties thereto, and the persons on whose behalf such proceeding is brought or defended, and the husbands and wives of such parties or persons respectively, shall be competent and compellable to give evidence on behalf of either or any of the parties to such proceeding.

15. Evidence of accused persons and their husbands and wives - (1) Every person charged with an offence shall be a competent but (except where the contrary is expressly provided by any enactment) not a compellable witness upon his or her trial for that offence.

(2) The wife or husband of any person charged with an offence shall be a competent witness, on the trial of that person, but shall not be a compellable witness, except in the following cases:

(a) When called as a witness by the accused;

(b) When the offence of which the accused is charged is an offence against the wife or husband of the accused or against a child of either the wife or the husband;

(c) Bigamy.

(3) If any witness who under this section is competent but not compellable gives evidence on any such trial, he or she shall be liable to cross-examination in the same manner as if he or she was a compellable witness, whether the matter on which he or she is so cross-examined arises out of his or her examination in chief or not.

16. Evidence of persons jointly charged – (1) Where any person is charged with an offence jointly with any other person, he or she shall be a competent and compellable witness for the prosecution against the other person, and without the consent of that other person or for the defence of the other person at every stage of the proceedings, if:

(a) The proceedings against him or her have been stayed, or the information against him or her withdrawn or dismissed; or

(b) He or she has been acquitted of the offence; or

(c) He or she has pleaded guilty to the offence; or

(d) He or she is being tried separately,-

(2) where 2 or more persons are jointly charged with any offence, the evidence of any person called as a witness for the prosecution or the defence in pursuance of this section may be received as evidence either for or against any of the persons so charged.

17. Cross-examination as to credit - In any proceeding the Court may limit in any manner and to any extent which it thinks fit the cross-examination of any witness as to credit, and shall refuse to permit any such cross-examination which is needlessly offensive or injurious to the witness, having regard to the nature or gravity of the imputations made against him or her, to the importance of his or her evidence, and to the effect of such imputation upon his or her credibility.

18. Confession after promise, threat, or other inducement - A confession tendered in evidence in any criminal proceeding shall not be rejected on the ground that a promise or threat or any other inducement (not being the exercise of violence or force or other form of compulsion) has been held out to or exercised upon the person confessing, if the judge is satisfied that the means by which the confession was obtained were not in fact likely to cause an untrue admission of guilt to be made.

19. Proof of previous conviction of witness - A witness may be questioned as to whether he or she has been convicted of any offence, and, if he or she either denies or does not admit the fact, or refuse to answer, the cross-examining party may prove such conviction.

20. Evidence of prisoners - (1) On application made in that behalf by any person who states on oath that any prisoner can give material evidence in any judicial proceeding any Court may order such prisoner to be brought up for examination as a witness in that proceeding.

(2) In every such case the Court may, before making such order, require the applicant to deposit a sum sufficient to pay the expense of bringing up the prisoner, maintaining him or her while out of prison, and returning him or her thither, including the expense of his or her custody in the meantime.

21. Prohibited questions not to be published - (1) It shall not be lawful for any person to print or publish any question or inquiry which the Court:

(a) Has forbidden or disallowed; or

(b) Has warned the witness he or she is not obliged to answer, and has ordered shall not be published.

(2) Every person who prints or publishes any question in breach of this section commits a contempt of Court.

PART III
JUDICIAL NOTICE AND DOCUMENTARY EVIDENCE

22. Judicial notice of enactments, etc. - In every proceeding the Court shall take judicial notice of all enactments, and laws in force in Samoa.

23. Judicial notice of certain seals and signatures - In every proceeding the Court shall take judicial notice of the Public Seal of Samoa and of the seal of any Court, officer, or other person authorised or required by law to use any such seal, and of the signature of any Judge or other officer, whether judicial or not, of the Public Service without evidence of such seal having been impressed or any other evidence relating thereto.

24. Copies of enactments, etc., printed under the authority of the Government receivable in evidence - All copies of enactments, reports, notices, orders, proclamations, records and other matters of a public nature purporting to be printed under the authority of the Government shall on production be admitted as evidence thereof respectively by all Courts and persons acting judicially, without proof being given that such copies were so printed.

25. Evidence of official documents - Prima facie evidence of the making or issue of any official document purporting to be made or issued by any person purporting to be authorised or empowered in that behalf by or under any enactment may be given in all Courts and in all legal proceedings in any of the following modes, that is to say:

(a) By the production of the original document, or of one or 2 or more originals, purporting to be signed by the person who made or issued it;

(b) By the production of a copy of the Samoa Gazette purporting to contain a copy of the document;

(c) By the production of a copy of the document purporting to be printed by the Government Printer;

(d) By the production of a written copy or extract purporting to be certified by the person who made or issued the document or by any other person purporting to possess the powers under which the document was made or issued.

26. Other public documents, how provable - (1) Where 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, but no enactment exists rendering its contents provable by means of a copy, any copy or extract therefrom shall be admissible in evidence in any Court, or before any person acting judicially, if it be proved to be an examined copy or extract, or if it purports to be signed or certified as a true copy by the officer to whose custody the original is entrusted.

(2) Such officer shall furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding 3 sene for every folio of 90 words.

27. Documentary evidence in civil cases - (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 or her personal knowledge) in the performance of a duty to record information supplied to him or her 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 statement shall be called as a witness need not be satisfied if he or she is dead, or unfit by reason of his or her bodily or mental condition to attend as a witness, or if he or she is beyond the seas and it is not reasonably practicable to secure his or her attendance, or if all reasonable efforts to find him or her 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 circumstances 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 (1) 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.

28. Proof of documents executed abroad - (1) Every document duly executed out of Samoa shall so far as regards the execution thereof be admissible in evidence in any Court if it is executed in the manner prescribed by the law of the country in which the document was executed for the verification of documents to be used abroad.

(2) It shall be presumed that any seal or signature impressed or subscribed to any document purporting to have been duly executed out of Samoa is genuine, and that the person appearing to have signed or attested any such document and authority to do so, and that such document was in fact made in accordance with the law under which it purports to have been made in the absence of evidence to the contrary.

29. Proof of instrument requiring attestation - Any instrument other than a will or testamentary instrument to the validity of which attestation is requisite may, in any proceedings, whether civil or criminal, be proved in the manner in which it might be proved if no attesting witness were alive.

30. Photographic copies of records to be evidence - (1) A print, whether enlarged or not, from a film of any public record produced or certified by the officer to whose custody the film is entrusted shall be admissible in evidence in all cases in which and for all purposes for which the public record would have been admissible.

(2) A print, whether enlarged or not, from a film of any document shall be admissible in evidence in the like manner if the Court is satisfied that:

(a) The film was taken while the document was in the custody of the officer, person or body properly entitled to such custody, with the intention that it be a permanent record; and

(b) The document cannot be produced or cannot without undue inconvenience or delay be produced.

31. Presumption as to documents 20 years old - In any proceedings, whether civil or criminal, a document proved or purporting to be not less than 20 years old, and produced from the custody of some persons, official, or body who might reasonably be expected to have possession of it, shall, in the absence of any circumstances of suspicion, be deemed to have been duly signed, sealed, attested, delivered and published according to its purport.

32. Documents may be impounded - Where any document has been received in evidence, the Court or person admitting the same may, on the request of any party against whom the same is so received, direct that such document be impounded and kept in the custody of some officer of the Court, or other proper person, until further order.

PART IV
GENERAL

33. Discretion as to admissibility - Where the amount claimed or the value of the property claimed or in issue in civil cases does not exceed $100, a Court may receive any such evidence as it thinks fit, whether the same be admissible or not at common law.

34. Evidence of non-access - In any proceedings, whether civil or criminal, either of 2 spouses may give evidence proving or tending to prove that the spouses did not have sexual relations with each other at any particular time notwithstanding that the evidence would tend to show that any child born to the wife during marriage was illegitimate.

35. Communications to clergymen and medical men - (1) A minister of religion shall not divulge in any proceeding any confession made to him or her in his or her professional character, except with the consent of the person who made such confession.

(2) A physician or surgeon shall not, without the consent of his or her patient, divulge in any civil proceeding (unless the sanity of the patient is the matter in dispute) any communication made to him or her in his or her professional character by such patient, and necessary to enable him or her to prescribe or act for such patient.

(3) Nothing in this section shall protect any communication made for any criminal purpose, or prejudice the right to give in evidence any statement or representation at any time made to or by a physician or surgeon in or about the effecting by any person of an insurance on the life of himself or herself or any other person.

36. Legislation superseded and savings - (1) This Ordinance is declared to be enacted in substitution for Part VII of the Samoa Act 1921 (NZ) and it is hereby declared that the said Part VII shall, from the date this Ordinance comes into force, no longer form part of the law of Samoa.

(2) It is hereby declared that the enactment of this Ordinance shall not affect any document made, proceedings commenced, or anything whatsoever done under Part VII of the Samoa Act 1921 (NZ), and every such document, proceeding or thing, so far as it is subsisting or in force at the date this enactment comes into force and could have been made, commenced or done under this Ordinance, shall continue and have effect as if it had been made, commenced or done under the corresponding provisions of this Ordinance, and as if that provision had been in force when the document was made or the proceedings were commenced, or the thing was done.

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REVISION NOTES 2008

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.

(b) All references to the male gender have been made gender neutral.

(c) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(d) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

There were no amendments made to this law since the publication of the Western Samoa Statutes Reprint 1978-1996.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2007. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

REVISION NOTES 2008 No. 2

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The commencement date has been inserted after the assent date under the general powers of the Attorney General. No amendment has been made to this law since the publication of the Consolidated and Revised Statues of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2008. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.
Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

REVISION NOTES 2009

There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2009. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised and consolidated by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).

The Evidence Ordinance 1961 is administered in the Ministry of Justice and Courts Administration.