136. Court to decide as to admissibility of evidence

(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.

Evidence 91

(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 first mentioned, unless the party undertakes to give proof of the fact and the court is satisfied with the 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 he 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.

Terms defined in s 3

court
Defined · s 3
“court” means a court established by or under Part IX of the Federal Constitution and includes— (a) a Judge; (b) a Sessions Court Judge; (c) a Magistrate; and (d) except an arbitrator, every person legally authorized to take evidence;
Open s 3
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, signs, 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 howsoever made, or any sounds, electronic impulses, or other data whatsoever; (d) a recording, or transmission, over a distance of any matter by any, or any combination, of the means mentioned in paragraph (a), (b) or (c), or by more than one of the means mentioned in paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose of expressing, describing, or howsoever representing, that matter; A writing is a document. Words printed, lithographed or photographed are documents. A map, plan, graph or sketch is a document. Evidence 15 An inscription on wood, metal, stone or any other substance, material or thing is a document. A drawing, painting, picture or caricature 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 a 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;
Open s 3
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;
Open s 3
fact
Defined · s 3
“fact” means and includes— (a) any thing, state of things or relation of things capable of being perceived by the senses; (b) any mental condition of which any person is conscious; (a) That there are certain objects arranged in a certain order in 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;
Open s 3
fact in issue
Defined · s 3
“fact in issue” means any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows; A is accused of the murder of B. At his trial the following facts may be in issue: that A caused B’s death; that A intended to cause B’s death; that A had received grave and sudden provocation from B; that A at the time of doing the act which caused B’s death was by reason of unsoundness of mind incapable of knowing its nature;
Open s 3

Report

Read on from s 137

Chapter XI

Improper Admission and Rejection of Evidence

Read on from Chapter XI