Evidence is the means by which facts are proved or disproved before a court. BSA S.2(1)(e) defines it as including both oral evidence (statements of witnesses) and documentary evidence (documents and electronic records produced for inspection). The law of evidence determines what may be proved, by whom, and how.
BSA S.2(1)(e) = IEA S.3 (definition of evidence). BSA S.57 = IEA S.59 (proof by oral evidence). BSA S.58 = IEA S.60 (oral evidence must be direct). Confidence: high, directly verified from the concordance.
Definition: BSA S.2(1)(e)
"Evidence" means and includes:
- 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.
- All documents including electronic records produced for the inspection of the court: such documents are called documentary evidence.
Classification of Evidence
| Basis of Classification | Types | Content |
|---|---|---|
| Form | Oral / Documentary | Oral: testimony of witnesses. Documentary: documents and electronic records |
| Nature | Direct / Circumstantial | Direct: witness perceived the fact. Circumstantial: inference from other proved facts |
| Source | Primary / Secondary | Primary: original document. Secondary: copies, oral accounts of contents |
| Origin | Original / Hearsay | Original: first-hand knowledge. Hearsay: statement by someone not before the court |
| Character | Real / Personal | Real: material objects (weapon, bloodstain). Personal: testimony of a person |
Oral Evidence (S.57)
"All facts except the contents of documents or electronic records may be proved by oral evidence."
The Rule of Directness (S.58)
"Oral evidence must, in all cases whatever, be direct."
| If the fact to be proved | The witness must say |
|---|---|
| Could be seen | He saw it |
| Could be heard | He heard it |
| Could be perceived by any other sense | He perceived it by that sense |
| Is an opinion or the grounds on which it is held | He holds that opinion on those grounds |
Exception: Expert opinion (S.39) and statements of persons who cannot be called (S.24 to S.28) are admitted despite being opinions or hearsay.
Documentary Evidence
All documents (including electronic records) produced for the inspection of the court. Governed by S.59 to S.82 (primary and secondary evidence, presumptions as to documents, electronic records).
Direct vs Circumstantial Evidence
| Basis | Direct Evidence | Circumstantial Evidence |
|---|---|---|
| Definition | Evidence of a fact perceived directly by the witness | Evidence of facts from which the fact in issue is inferred |
| Witness's role | "I saw A stab B" | "I saw A running from B's house with a bloodstained knife" |
| Strength | Conclusive if believed | Conclusive only if the chain is complete and the only inference |
| Rule | Must satisfy S.58 (directness) | Must satisfy the "chain must be complete" test |
| Example in murder | Eyewitness to the stabbing | Motive + opportunity + weapon found + flight |
The "Complete Chain" Test for Circumstantial Evidence
For a conviction on circumstantial evidence alone:
- The circumstances must be proved (not themselves assumed).
- They must be consistent only with the guilt of the accused.
- They must be inconsistent with any other hypothesis.
- The chain must be complete, with no reasonable gap.
The Hearsay Rule
General rule: A witness may testify only to facts within his own knowledge (S.58). A statement made by a person not before the court, reported by the witness, is hearsay and generally inadmissible.
Why hearsay is excluded: The maker of the statement is not before the court, cannot be cross-examined, and his credibility cannot be assessed. The statement lacks the safeguards of oath, demeanour and cross-examination.
Statutory Exceptions to the Hearsay Rule
| Exception | BSA Provision | IEA Equivalent |
|---|---|---|
| Dying declaration | S.24(a) | S.32(1) |
| Statement against interest | S.24(c) | S.32(3) |
| Statement in the course of business | S.24(e) | S.32(5) |
| Res gestae | S.4 | S.6 |
| Admission | S.14 to S.17 | S.17 to S.23 |
| Confession | S.18 to S.23 | S.24 to S.30 |
| Statements under S.25 to S.28 | Former testimony, public records, etc. | S.33 to S.38 |
Recall Check
- What are the two components of the definition of "evidence" under S.2(1)(e)?
- What does the rule of directness (S.58) require?
- Name four exceptions to the hearsay rule under the BSA.
- What is the "complete chain" test for circumstantial evidence?
Distinctions
| Basis | Oral Evidence | Documentary Evidence |
|---|---|---|
| Form | Statements of witnesses in court | Documents and electronic records produced |
| How proved | By testimony under oath | By production and proving authenticity |
| Rule | Must be direct (S.58) | Contents proved by primary or secondary evidence (S.59 to S.62) |
| Cross-examination | Of the witness | Of the person who produced or created the document |
| Basis | Direct Evidence | Hearsay |
|---|---|---|
| Source | Witness's own perception | Statement of another person, not before the court |
| Admissibility | Generally admissible if relevant | Generally inadmissible (with statutory exceptions) |
| Cross-examination | Available | Not available (the maker is absent) |
| Example | "I saw A shoot B" | "C told me he saw A shoot B" |
| Basis | Primary Evidence | Secondary Evidence |
|---|---|---|
| Definition | The original document itself | Copies, counterparts, oral accounts of contents |
| Preference | Must be produced first | Permitted only when primary cannot be produced (S.62 conditions) |
| Electronic records | Printout with S.63(4) certificate is primary (S.61(2)) | Copies without certificate are secondary |
Flashcards
Define "evidence" under BSA S.2(1)(e).
All statements which the court permits or requires to be made by witnesses (oral evidence), and all documents including electronic records produced for inspection (documentary evidence).
What is the rule of directness under S.58?
Oral evidence must be direct: the witness must have perceived the fact with his own senses. He cannot testify to what someone else told him (hearsay).
Name four exceptions to the hearsay rule.
Dying declarations (S.24(a)), res gestae (S.4), admissions (S.14 to S.17), statements in the course of business (S.24(e)).
What is the complete chain test for circumstantial evidence?
Circumstances must be (1) proved, (2) consistent only with guilt, (3) inconsistent with any other hypothesis, (4) forming a complete chain with no reasonable gap.
Can oral evidence prove the contents of a document?
No. S.57 provides that contents of documents must be proved by documentary evidence (primary or secondary), not by oral testimony.
Exam Scenario
Problem: In a trial for dowry death, the prosecution relies on: (a) the testimony of Witness A who says "the deceased told me her mother-in-law was harassing her for dowry"; (b) a diary entry written by the deceased recording daily harassment; (c) the testimony of Witness B, a neighbour, who says "I heard the deceased screaming and the mother-in-law shouting 'bring more gold or die'." Advise on the admissibility of each.
Step 1: Classify each item
| Item | Classification | Directness |
|---|---|---|
| (a) A's testimony of what the deceased told him | Hearsay: A is reporting the deceased's statement, not his own perception | Not direct under S.58 |
| (b) Diary entry by the deceased | Documentary evidence: a document recording her statements | Not hearsay if it falls within an exception |
| (c) B's testimony of what he heard | Direct oral evidence: B perceived the sounds with his own ears | Direct under S.58 |
Step 2: Test admissibility of each
(a) A's testimony (hearsay):
The deceased cannot testify (she is dead). Her statement to A is hearsay unless an exception applies.
Under BSA S.24(a) (dying declaration equivalent): admissible if it is a statement of a person who is dead, relating to the cause of her death or any circumstances leading to her death. A dowry harassment complaint relates to the circumstances of her death. Admissible under S.24(a).
(b) Diary entry:
The diary is a document by a dead person. Under S.24(a) and S.24(e) (statement made in the ordinary course by a person who is dead), it is admissible. It relates to circumstances of the transaction resulting in her death.
Additionally, it is a document and must be proved by primary evidence (the diary itself) or secondary evidence if the original is unavailable.
Admissible under S.24.
(c) B's testimony:
B says "I heard the deceased screaming and the mother-in-law shouting." This is B's own perception (he heard it with his own ears). It satisfies S.58 (direct: he heard it).
The words "bring more gold or die" are also admissible under S.4 (res gestae) if they form part of the same transaction (the act of harassment).
Admissible as direct oral evidence and/or res gestae.
A's testimony is hearsay but admissible under the dead person exception. Do not reject it outright. The hearsay rule has statutory exceptions, and S.24(a) squarely covers statements by a dead person relating to the cause of death.
The diary must still be proved as a document. Admissibility under S.24 makes the contents relevant, but the diary must be produced (primary evidence) or its absence explained before secondary evidence is used.
Conclusion. All three items are admissible: (a) under S.24(a) (statement by dead person on cause of death), (b) under S.24 (documentary statement by dead person), (c) as direct oral evidence under S.58 and res gestae under S.4.
See Also
- Fact, Fact in Issue and Relevant Facts : what facts may be proved (the threshold before admissibility is tested).
- Doctrine of Res Gestae : the res gestae exception to hearsay (S.4).
- Primary and Secondary Evidence : how documentary evidence is formally proved.