The Interpretation of The Evidence Act, 1938
| Date | 01 April 1949 |
| Published date | 01 April 1949 |
| Author | Zelman Cowen,P. B. Carter |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00116.x |
THE
MODERN
LAW
REVIEW
Volume
12
April
1949
No.
2
THE INTERPRETATION
OF
THE
EVIDENCE
ACT,
1938
THE
Evidence Act,
1988,
has now been in operation for ten years.
Although it has not produced a great volume of litigation, several
problems
of
interpretation have arisen during this period. The
cases have shown that the interpretation of the Act
is
not free from
difficulty. In one of the early cases in which the Act was con-
sidered, Scott
L.J.
said that it was a
'
difficult Act to construe for
certain purposes, as any Act of the kind necessarily is when applied
to
actual circumstances
'.l
This difficulty was referred to again in
one of the most recent cases,
Barkamy
v.
South
Wales
TTansport
Co.,
Ltd.,a
where Asquith
L.J.
said that 'the construction of the
Evidence Act,
1088,
is not free from difficulties
'
It
is with these
problems of interpretation that this article is primarily concerned.
The Act has not inappropriately been described by Wigmore
as
a
'
hybrid
'.s
Sections
1
and
2
deal with the admission of written
statements in civil proceedings
in
cases in which evidence would
otherwise be excluded at common law. Section
8
deals with the
proof in both criminal and civil proceedings
of
documents which
require attestation. Section
4
deals with presumptions made as to
documents twenty years old in criminal and civil proceedings.
Section
5
explains section
99
of the Supreme Court of Judicature
(Consolidation) Act,
1925,
and section
99
of the County Courts
Act,
1984.
Section
6
is a definition clause, and need be noted only
so
far as it provides that the rules relating to documentary evidence
of pedigree declarations are unaffected by the Act.
It
will be seen
from this brief summary that the Act deals with
a
variety of
subject-matters, but we shall be concerned only with the first two
sections.
These provide
as
follows: Section
1
(1)
states that in any civil
proceedings where direct oral evidence of a fact would be admilc-
sible, 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:
'
(i)
if
the maker
of
the statement either
(a)
had
personal knowledge of t.he matters dealt with by the statement,
or
(b)
where the document in question
is
or
forms part of
a
record pur-
porting to be a continuous record, made the statement (in
so
far as
1
Robinson
v.
Stern
[1939]
1
K.B.
260,
267.
8
The
Law
of
Eoidsncs
(3rd
ad.
l940),
Vol.
6,
p.
951.
a
[is481
a
AN
E.R.
460.
VOL.
12.
145
10
146
THE MODERN
LAW
REVIEW
VOL.
12
the matters dealt with thereby are not within his personal knowledge)
in the performance of a duty to record information supplied to him
by a person who had, or might reasonably be supposed to have,
personal knowledge of those matters
’;
and (ii) if the maker of the
statement is called as a witness in the proceedings, provided that
this latter requirement need not be complied with if the maker
is dead, or if he is physically or mentally unfit to
be
called, or
irr
beyond the seas and it is not reasonably practicable to secure his
attendance,
or
if all reasonable efforts to find him have failed.
Section
1
(2)
provides that in civil proceedings, where the court
is
satisfied that undue expense or delay would otherwise result,
it
may dispense with the calling of the maker as
a
witness or may
permit copies of the statement to be produced in lieu of the original
document. Section
1
(3) excludes ‘any statement made by a
person interested at a time when proceedings were pending or
anticipated involving
a
dispute as to any fact which the statement
might tend to establish
’.
Section
1
(4)
requires
a
statement
to
be
Fitten by the maker or
to
be
signed or initialled by him or other-
wise recognised in writing by him. Section
1
(5)
provides that for
the purpose of deciding whether
or
not a statement is admissible
under the foregoing provisions, the court may draw any reasonable
inference from the form or contents of the document or from any
other circumstances, and may act on the certificate of a registered
medical practitioner in deciding whether
a
person is
fit
to attend.
Further, where proceedings are with a jury, the court may in its
discretion reject the statement, notwithstanding compliance with
the foregoing provisions, if for any reason it appears to
be
inexpedient in the interests of justice to admit the statement.
Section
2
(1)
provides that
in
estimating the weight to be
attached to a statement the court shall have regard
to
all the
circumstances from which any inference can reasonably be drawn
a8 to the accuracy of the statement, and shall have particular
regard to the question whether the statement was made contem-
poraneously with the occurrence or existence of the facts stated,
and to the question whether or not the maker had any incentive
to conceal or misrepresent facts. Section 2
(2)
provides that
statements rendered admissible are not to be treated
as
corrobora-
tion of evidence given by the maker of the statement.
Some indication of the beneficial results produced by these
statutory modifications of the common law rules
is
given by the
architect of the Act, Lord Maugham:
‘
During my long time at the Bar,
I
came across
a
number of
cases in which the Evidence Act,
1988,
had
it
been in force
would have been
of
extraordinary value.
I
have had cases
in which
it
was necessary to prove reports by engineers as
to
the value of ore deposits of various kinds in distant lands or
to prove circumstances connected with landing facilities on a
distant island or the value of plantations in various places,
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