The Evidence (Amendment) Act, 2009 - Trinidad and … · 2010-04-21 · THE EVIDENCE (AMENDMENT) ACT, 2009 Arrangement of Sections Section 1. Short title 2. Commencement 3. Act inconsistent

THE EVIDENCE (AMENDMENT) ACT, 2009

Arrangement of Sections

Section

1. Short title2. Commencement3. Act inconsistent with Constitution4. Interpretation5. Section 13 amended6. Section 15C amended7. Sections 15H, 15I, 15J, 15K, 15L, 15M, 15N, 15O, 15P, 15Q, 15R,

15S, 15T, 15U, 15V and 15w 8. Transitional

AN ACT to amend the Evidence Act, Chap. 7:02

[Assented to 11th January, 2010]

WHEREAS it is enacted by section 13(1) of theConstitution that an Act of Parliament to which thatsection applies may expressly declare that it shall haveeffect even though inconsistent with sections 4 and 5 ofthe Constitution and, if any Act does so declare, it shallhave effect accordingly:

Preamble

Second Session Ninth Parliament Republic of Trinidad and Tobago

REPUBLIC OF TRINIDAD AND TOBAGO

Act No. 16 of 2009

[L.S.]

And Whereas it is provided in section 13(2) of theConstitution that an Act of Parliament to which thatsection applies is one the Bill for which has been passedby both Houses of Parliament and at the final votethereon in each House has been supported by the votesof not less than three-fifths of all the members of thatHouse:

And Whereas it is necessary and expedient that theprovisions of this Act shall have effect even thoughinconsistent with sections 4 and 5 of the Constitution:

ENACTED by the Parliament of Trinidad and Tobago asfollows:—

1. This Act may be cited as the Evidence(Amendment) Act, 2009.

2. This Act shall come into force on a date to be fixedby the President by Proclamation.

3. This Act shall have effect even though inconsistentwith sections 4 and 5 of the Constitution.

4. In this Act, “the Act” means the Evidence Act.

5. Section 13 of the Act is amended—(a) in subsection (2) by deleting the word “A”

and substituting the words “Subject tosection 15N, a”; and

(b) by repealing subsection (3).

6. Section 15C of the Act is amended—(a) in subsection (1)—

(i) in paragraph (d), by deleting theword “or”;

(ii) in paragraph (e), by deleting thefull stop and substituting thewords “; or ”; and

Interpretation Chap. 7:02

Act inconsistent withConstitution

Commencement

Enactment

Short title

Section 13amended

Section 15C amended

2 No. 16 Evidence (Amendment) 2009

(iii) by inserting after paragraph (e),the following paragraph:

“(f) is fearful and noreasonable steps can betaken to protect theperson or others or toprotect him or others fromfinancial loss.”;

(b) in subsection (2), by deleting the words“subsection (1)(e)” and substituting thewords “subsections (1)(a), (1)(e) and (1)(f)”;and

(c) by inserting after subsection (4) thefollowing subsections:

“(5) For the purpose of sub-section (1)(f) “fearful” is to beconstrued widely and includes fear ofthe death or injury of another personor of financial loss.

(6) A condition set out in any para-graph of subsection (1) which is in factsatisfied is to be treated as notsatisfied if it is shown that thecircumstances described in thatparagraph are caused—

(a) by the person in support ofwhose case it is sought to givethe statement in evidence; or

(b) by a person acting on hisbehalf,

in order to prevent the person whomade the statement giving oralevidence in the proceedings, whetherat all or in connection with the subjectmatter of the statement.”.

No. 16 Evidence (Amendment) 2009 3

7. The Act is amended by inserting after section 15Gthe following sections:

15H. (1) Where in criminal proceedings aperson gives oral evidence and—

(a) he admits making a previousinconsistent statement; or

(b) a previous inconsistent statementmade by him is proved by virtue ofsection 5, 6 or 7,

the statement is admissible asevidence of any matter stated in it ofwhich oral evidence by that personwould be admissible.

(2) Where in criminal proceedingsevidence of an inconsistent statementmade by a person is given under section15D(1)(c), the statement is admissible asevidence of any matter stated in it of whichoral evidence by that person would beadmissible.

15I. (1) This section applies where—(a) a person is called as a witness in

proceedings for an indictableoffence or for the summary trial ofan indictable offence;

(b) the witness claims or has at anytime claimed to have witnessedwhether visually or in any otherway—

(i) events alleged by theprosecution to includeconduct constituting theoffence or part of theoffence; or

(ii) events closely connectedwith the offence;

Admissibilityof evidence byvideorecording

Sections 15H, 15I,15J,15K, 15L, 15M, 15N,15O, 15P, 15Q, 15R,15S, 15T, 15U, 15Vand 15W inserted “Admissibility

ofinconsistentstatements


(c) the witness has previously givena statement of the events inquestion, whether in response toquestions asked or otherwise;

(d) the statement was given at atime when those events werefresh in the witness’s memory orwould have been assuming thetruth of the claim mentioned inparagraph (b);

(e) a video recording was made of thestatement;

(f) the witness is a child and the videorecording was made in thepresence of an adult chosen bythe witness;

(g) the Court has made a directionthat the video recording should beadmitted as evidence in chief of thewirness and the direction has notbeen rescinded; and

(h) the video recording is played inproceedings in accordance with thedirection.

(2) A direction under sub-section (1)(g)—

(a) may not be made in relation toa video recording given by theaccused;

(b) may be made only if it appears tothe Court that—

(i) the witness’s recollectionof the events in questionis likely to be significantlybetter in the videorecording than it willbe when he givesoral evidence in theproceedings; and


(ii) it is in the interestsof justice for the videorecording to be admitted,having regard inparticular to thematters mentioned insubsection (3).

(3) Those matters are—(a) the interval between the time of

the events in question and the timewhen the video recording wasmade;

(b) any other factors that mightaffect the reliability of what thewitness said in the video recording;

(c) the quality of the video recording;and

(d) any views of the witness as towhether his evidence in chiefshould be given orally or by meansof the video recording.

(4) Where, or to the extent that,the witness in his oral evidence in theproceedings asserts the truth of the state-ments made by him in the video recording,the statements shall be treated as if madeby him in that evidence.

(5) The reference in subsection(1)(g) to the admission of a video recordingincludes a reference to the admission ofany part of that recording.

(6) When considering whetheror not any part of a video recording shouldbe admitted under this section, the Courtshall consider—

(a) whether admitting that part of therecording would carry a risk ofprejudice to the accused; and


(b) whether the interests of justicenevertheless requires that part ofthe recording to be admitted inview of the desirability of showingthe whole, or substantiallythe whole, of the video recording.

(7) Where a video recording isadmitted under this section, the witnessmay not give evidence in chief otherwisethan by means of the recording as to anymatter which, in the opinion of the Court,has been dealt with adequately in thevideo recording.

(8) A statement made by a witnessin a video recording may be admittedunder this section whether or not thestatement was made on oath.

(9) Nothing in this section shallaffect the admissibility of any videorecording which would be admissible apartfrom this section.

15J. In sections 15H and 15I—“oral evidence” includes evidence

which, by reason of any disability,disorder or other impairment, aperson called as a witness gives inwriting or by signs or by way ofany device;

“video recording” means any record-ing, on any medium, from which amoving image may by any meansbe produced, and includes theaccompanying sound-track.

Definition ofcertain termsused


15K. (1) Reference to evidence of aperson’s bad character is to evidence of, ora disposition towards, misconduct on hispart, other than evidence which—

(a) has to do with the alleged facts ofthe offence with which the accusedis charged; or

(b) is evidence of misconduct inconnection with the investigationor prosecution of that offence.

(2) For the purpose of this sectionand sections 15L to 15W, “misconduct”includes the commission of an offence orother reprehensible behaviour.

15L. (1) The common law rulesgoverning the admissibility of evidence ofbad character in criminal proceedings areabolished.

(2) Subsection (1) is subject to anyrule of law under which in criminalproceedings evidence of a person’sreputation is admissible for the purpose ofproving his bad character.

15M. (1) In criminal proceedingsevidence of the bad character of a person,other than the accused, is admissiblewhere—

(a) it is important explanatoryevidence;

(b) it has substantial probative valuein relation to a matter which—

(i) is in issue in theproceedings; and

(ii) is of substantial impor-tance in the context of thecase as a whole; or

Non-accused’sbad character

Bad character

Abolition ofcommon lawrules


(c) all parties to the proceedings agreeto the evidence being admissible.

(2) For the purpose of subsection(1)(a), evidence is important explanatoryevidence if—

(a) without it, the Court or jury wouldfind it impossible or difficult tounderstand other evidence in thecase; and

(b) its value in understanding the caseas a whole is substantial.

(3) In assessing the probative valueof evidence for the purpose of subsection(1)(b), the Court shall have regard, inparticular, to the following factors—

(a) the nature and number of theevents to which the evidencerelates;

(b) when those events are alleged tohave happened or existed;

(c) where—(i) the evidence is evidence of

a person’s misconduct,and

(ii) it is suggested that theevidence has probativevalue by reason ofsimilarity between thatmisconduct and otheralleged misconduct,

the nature and extent of thesimilarities and the dissimilaritiesbetween each of the allegedinstances of misconduct;


(d) where—(i) the evidence is evidence of

a person’s misconduct;(ii) it is suggested that

that person is alsoresponsible for the mis-conduct charged; and

(iii) the identity of the personresponsible for themisconduct charged isdisputed,

the extent to which the evidence shows ortends to show that the same person wasresponsible each time.

(4) Except where subsection (1)(c)applies, evidence of the bad character of aperson, other than the accused, must notbe given without leave of the Court.

15N. (1) In criminal proceedingsevidence of the accused’s bad character isadmissible where—

(a) all parties to the proceedings agreeto the evidence being admissible;

(b) the evidence is adduced by theaccused himself or is given inanswer to a question asked by himin cross-examination and intendedto elicit it;

(c) it is important explanatoryevidence;

(d) it is relevant to an importantmatter in issue between theaccused and the prosecution;

Accusedperson’s badcharacter


(e) it has substantial probative valuein relation to an important matterin issue between the accused and aco-accused;

(f) it is evidence to correct a falseimpression given by the accused; or

(g) the accused has made an attack onanother person’s character.

(2) Sections 15O to 15S containprovisions supplementing subsection (1).

(3) The Court shall not admitevidence under subsection (1) if, on anapplication by the accused to exclude it, itappears to the Court that the admission ofthe evidence would have such an adverseeffect on the fairness of the proceedingsthat the Court ought not to admit it.

(4) On an application to excludeevidence under subsection (3) the Courtshall have regard, in particular, to thelength of time between the matters towhich that evidence relates and thematters which form the subject of theoffence charged.

15O. For the purpose of section 15N(1)(c),evidence is important explanatoryevidence if—

(a) without it, the Court or jury wouldfind it impossible or difficult tounderstand other evidence in thecase; and

(b) its value in understanding the caseas a whole is substantial.

Importantexplanatoryevidence


15P. (1) For the purpose of section15N(1)(d), an important matter in issuebetween the accused and the prosecutionincludes—

(a) the question whether the accusedhas a propensity to commitoffences of the kind with which heis charged, except where hishaving such a propensity makes itno more likely that he is guilty ofthe offence;

(b) the question whether the accusedhas a propensity to be untruthfulin any respect.

(2) Where subsection (1)(a) applies,an accused person’s propensity to commitoffences of the kind with which he ischarged may, without prejudice to anyother way of doing so, be established byevidence that he has been convicted of—

(a) an offence of the same descriptionas the one with which he ischarged; or

(b) an offence of the same category asthe one with which he is charged.

(3) Subsection (2) does not apply inthe case of a particular accused if theCourt is satisfied, by reason of the lengthof time since his conviction or for any otherreason that it would be unjust for thesection to apply in his case.

(4) For the purpose of sub-section (2)—

(a) two offences are of the samedescription as each other if thestatement of the offence in awritten charge or indictmentwould, in each case, be in the sameterms;

Importantmatter inissuebetween theaccused andtheprosecution


(b) two offences are of the samecategory as each other if theybelong to the same category ofoffences.

(5) Only prosecution evidence isadmissible under section 15N(1)(d).

15Q. (1) Evidence which is relevant tothe question whether the accused has apropensity to be untruthful is admissibleunder section 15N(1)(e) only if the natureor conduct of the accused’s defence issuch as to undermine the co-accused’sdefence.

(2) Only evidence—(a) which is to be, or has been,

adduced by the co-accused; or(b) which a witness is to be invited to

give, or has given, in cross-exami-nation by the co-accused,

is admissible under section 15N(1)(e).15R. (1) For the purpose of section

15N(1)(f)—(a) the accused gives a false impres-

sion if he is responsible for themaking of an express or impliedassertion which is apt to give theCourt or jury a false or misleadingimpression about himself; and

(b) the evidence to correct such animpression is evidence which hasprobative value.

(2) An accused is treated as beingresponsible for the making of an assertionif—

(a) the assertion is made by theaccused in the proceedings,whether or not in evidence given byhim;

Evidence tocorrect a falseimpression

Importantmatter inissue betweenthe accusedand aco-accused


(b) the assertion was made by theaccused—

(i) on being questionedunder caution, beforecharge, about the offencewith which he is charged;or

(ii) on being charged with theoffence or officiallyinformed that he may beprosecuted for it,

and evidence of the assertion is given inthe proceedings;

(c) the assertion is made by a witnesscalled by the accused;

(d) the assertion is made by a witnessin cross-examination in response toa question asked by the accusedthat is intended to elicit theassertion, or is likely to do so; or

(e) the assertion was made by aperson out of Court, and theaccused adduces evidence of it inthe proceedings.

(3) An accused who would other-wise be treated as responsible for themaking of an assertion shall not be sotreated if, or to the extent that, he with-draws it or disassociates himself from it.

(4) Where it appears to the Courtthat an accused, by means of his conduct(other than the giving of evidence) in theproceedings, is seeking to give the Court orjury an impression about himself that isfalse or misleading, the Court may, if itappears just to do so, treat the accusedas being responsible for the making ofan assertion which is apt to give thatimpression.


(5) In subsection (4) “conduct”includes appearance or dress.

(6) Evidence is admissible undersection 15N(1)(f) only if it goes no furtherthan is necessary to correct the falseimpression.

(7) Only prosecution evidence isadmissible under section 15N(1)(f).

15S. (1) For the purpose of section15N(1)(g), an accused makes an attack onanother person’s character where—

(a) he adduces evidence attacking theother person’s character;

(b) he, or by his attorney-at-law, asksquestions in cross-examinationthat are intended to elicit suchevidence, or are likely to do so; or

(c) evidence is given of an imputationabout the other person which ismade by the accused—

(i) on being questionedunder caution, beforecharge, about the offencewith which he is charged;or

(ii) on being charged withthe offence or officiallyinformed that he might beprosecuted for it.

(2) In subsection (1)—“evidence attacking the other person’s

character” means evidence to theeffect that the other person—

(a) has committed an offence,(whether a different

Attack onanotherperson’scharacter


offence from the one withwhich the accused ischarged or the same one); or

(b) has behaved, or isdisposed to behave, in areprehensible way;

“imputation about the other person”means an assertion to that effect.

(3) Only prosecution evidence isadmissible under section 15N(1)(g).

15T. (1) In criminal proceedings before ajudge and jury where—

(a) evidence of an accused’s badcharacter has been admitted undersection 15N(1)(c) to (g); and

(b) the Court is satisfied at any timeafter the close of the case for theprosecution that—

(i) the evidence is contami-nated; and

(ii) the contamination is suchthat, considering theimportance of the evi-dence to the case againstthe accused, his convic-tion of the offence wouldbe unsafe,

the Court may either direct the jury toacquit the accused of the offence or, if itconsiders that there ought to be a retrial,discharge the jury.

(2) Where—(a) a jury is directed under subsection

(1) to acquit an accused of anoffence; and

Stopping thecase whereevidence iscontaminated


(b) the circumstances are such that,apart from this subsection, theaccused could if acquitted of thatoffence be found guilty of anotheroffence, the accused may not befound guilty of that other offence ifthe Court is satisfied that theevidence is contaminated asmentioned in subsection (1)(b).

(3) Where—(a) a jury is required to determine

under section 66 of the CriminalProcedure Act whether an accuseddid the act charged;

(b) evidence of the accused’s badcharacter has been admitted undersection 15N(1)(c) to (g); and

(c) the Court is satisfied at any timeafter the close of the case for theprosecution that—

(i) the evidence is con-taminated; and

(ii) the contamination is suchthat, considering theimportance of theevidence to the caseagainst the accused, afinding that he did the actor made the omissionwould be unsafe,

the Court may either direct the jury toacquit the accused of the offence or, ifit considers that there ought to be arehearing, discharge the jury.

Chap. 12:02


(4) This section does not prejudiceany other power a Court may have todirect a jury to acquit an accused of anoffence or to discharge a jury.

(5) For the purpose of this sectiona person’s evidence is contaminatedwhere—

(a) as a result of an agreement orunderstanding between thatperson and one or more persons; or

(b) as a result of that person beingaware of anything alleged by oneor more persons whose evidencemay be, or has been, given in theproceedings,

the evidence is false or misleading in anyrespect, or is different from what it wouldotherwise have been.

15U. (1) In proceedings for an indictableoffence or for the summary trial of anindictable offence, evidence of any previousconviction of the accused for an offencewhilst under the age of eighteen is notadmissible unless—

(a) the conviction was in relation to anindictable offence or the summarytrial of an indictable offence; and

(b) the Court is satisfied that theinterests of justice require theevidence to be admissible.

(2) Subsection (1) applies inaddition to section 15N.

Offencescommitted byaccused whena child


15V. (1) Subject to subsection (2), areference to the relevance or probativevalue of evidence is a reference to itsrelevance or probative value on theassumption that it is true.

(2) In assessing the relevance orprobative value of an item of evidence aCourt need not assume that the evidenceis true if it appears on the basis of anymaterial before the Court, including anyevidence it decides to hear on the matter,that no Court or jury could reasonably findthe evidence to be true.

15W. (1) Where the Court makes arelevant ruling—

(a) it shall state in open Court, but inthe absence of the jury, its reasonsfor the ruling; and

(b) if it is a Magistrates’ Court, it shallcause the ruling and the reasonsfor it to be entered in the registerof the Court’s proceedings.

(2) In this section “relevant ruling”means—

(a) a ruling on whether an item ofevidence is evidence of a person’sbad character;

(b) a ruling on whether an item ofevidence is admissible undersection 15M or 15N;or

(c) a ruling under section 15T.

Assumptionof truth inassessment ofrelevance orprobativevalue

Court’s dutyto givereasons forrulings


8. This Act shall not apply to a—(a) preliminary enquiry; or(b) criminal trial,

which is in progress before the commencement of thisAct.

Passed in the Senate this 2nd day of November , 2009.

Acting Clerk of the Senate

IT IS HEREBY CERTIFIED that this Act is one the Bill forwhich has been passed by the Senate and at the finalvote thereon the Senate has been supported by the votesof not less than three-fifths of all the members of theSenate, that is to say by the votes of 22 members of theSenate.


Passed in the House of Representatives this 20th dayof November, 2009.

Acting Clerk of the House


Transitional

IT IS HEREBY CERTIFIED that this Act is one the Bill forwhich has been passed by the House of Representativesand at the final vote thereon in the House has beensupported by the votes of not less than three-fifths of allthe members of the House, that is to say by the votesof 26 members of the House.


House of Representatives amendments agreed to bythe Senate on the 8th day of December, 2009.


Senate amendments agreed to by the House ofRepresentatives on the 9th day of December, 2009.



Documents

The Evidence (Amendment) Act, 2009 - Trinidad and … · 2010-04-21 · THE EVIDENCE (AMENDMENT) ACT, 2009 Arrangement of Sections Section 1. Short title 2. Commencement 3. Act inconsistent