THE LAW OF EVIDENCE by THE LATE SIR ARTHUR EGGAR edited by MAUNG MAUNG, B.L. (Ran.), J.S.D. (Yale), LL.D. (Utrecht) of Lincoln's Inn, Barrister-at-Law RANGOON GAZETTE LTD., 379, Bo Aung Gyaw Street, Rangoon, Burma.Copyrights Reserved Printed in 1963 Printed, Bound and Published by RANGOON GAZETTE LTD., 379, Bo Aung Gyaw Street, Printer's Permanent Reg. No. 0008 Publisher's Permanent Reg. No. 0009 Rangoon; Burma,THE LAW OF EVIDENCE “It is the duty of the presiding officer (of a court-martial) to see that justice administered, that the accused has a fair trial, and that he does not suffer a disadvantage in consequence of his position as a person under trial, or of his ignorance, or of his incapacity to examine or cross-examine witnesses, or otherwise.” “It is the duty of the prosecutor to assist the court in the administration of justice, to behave impartially, to bring the whole of the transaction before the court, and not to take any unfair advantage of or suppress any evidence in favour of the accused." Rules 15 (2) and 16 (1) of the Defence Services RulesOther books by Dr. Maung Maung: THE FORGOTTEN ARMY BURMA’S TEETHING TIME GRIM WAR AGAINST THE KMT. LONDON DIARY BURMA IN THE FAMILY’ OF NATIONS BURMA’S CONSTITUTION A TRIAL IN BURMA AUNG SAN OF BURMA LAW AND CUSTOM IN BURMA AND THE BURMESE FAMILYPREFACE The aim of law is to do justice between citizen and citizen, between citizen and the state. Where there is no law there is anarchy. Where there is law there is order, and when the laws are just there is happiness and harmony in the society. Laws broadly fall into two classes: substantive laws which define the rights, duties and liabilities of citizen and state, and procedural laws which define the methods by which the substantive laws may be applied to particular cases. Both the substance of the laws and the methods of their application must be good and wise so that justice may be done. Good laws applied badly or wrongly cannot attain justice. Similarly, good methods and procedures cannot provide any cure when the laws are ill. And, in the doing of justice the most important factor is, of course, man. Lawsare made by men (which term includes women), and are interpreted and administered by men. Laws are not dead words and phrases which lie buried in the big books. They live, like the law-makers who make them, like the lawyers, the magis- trates and the judges who use them, apply them, make decisions on them; like the people in society whose daily lives are regulated by them. The living laws of society must give justice, and men of law must sce the laws in that light. When, instead, men of law see the laws as just so many words strung up together in sentences, piled up together in paragraphs, dated and numbered in the statute books or the law reports, then the laws lose their strength and power and begin to die. The law of evidence is procedural law. It does not define rights, duties and liabilities. It prescribes the methods and pro- cedures for sifting and weighing facts on which decisions depend in disputes over rights, duties and liabilities. First, the essential questions are framed to decide a dispute. ‘Then, the law of evidence defines what facts are relevant to decide those questions, how and by whom they may be proved, and the principles by which what is put in as “‘proof” may be tested and magned, The fixed aim is to dis- cover the truth about the relevant facts as a necessary step towards a fair and cortect decision of the questions in dispute. ‘The whole truth about the relevant facts must be found, and not half-truths. There may be whole truths about irrelevant facts, and they must be rejected, for if they are allowed to enter the dispute matters become very confused indeed and the main questions fordecision are lost. The rules of evidence are framed with those ends in view: the discovery of the whole truth, and the excJusion of half- truths and truths about irrelevant facts. The rules are therefore easy to understand if their aim and purpose is understood. They are not merely technical and mechanical devices; the rules have meaning and purpose, and in applying them their meaning and purpose must be kept constantly in view. It is often complained that the law of evidence is too technical, and that instead of being a help it is a hindrance in the doing of justice. In asense all procedural laws are technical, for they lay down the rules on how cases and disputes may be tried and decided and how they may not be tried and decided, Such rules can some- times be restrictive, and they can render a trial slow and cumbersome. Yet, if the rules are all abolished, and every judge or magistrate is left free to conduct a trial in his own way, and if lawyers are free to do what they want, the parties to a dispute to say what they wish to say, relevant or irrelevant, where will matters end? Or, will matters ever end? Very often it is not the rules which prove to be too technical, it is the people who apply the rules who are too technically-minded. It may be the judge who only understands the rules as just words and phrases, sections in a statute, reported legal decisions, and who cannot rise high enough to get a clear view of the situation and see what the main questions for decision are. Such a judge often goes to a book first, takes out of ita rule or a ruling which he does not fully understand, and tries to fit it into the case before him which he does not fully appreciate, Or, the fault may lie with some lawyers who look upon rules and principles as just so many means of delaying a trial or gaining advantage, fair or unfair. They do not use the rules as aids to the discovery of the truth and to a fair and speedy trial; they use, or abuse, the rules to conceal the truth and to delay or obstruct the trial. In such cases the remedy lies not in reforming the rules but in reforming the men of law by giving them more education and making them more aware of their higher duties to society. A judge or a lawyer who delays or defeats justice undermines the confidence of the people in the judicial process. The exclusion of irrelevant matter is easier said than done. Several tests are prescribed in the law of evidence to determine relevancy, but these tests read somewhat like narrow technicaliti rules. Commonsense and a spirit of fairplay are essential in the application of the rules, as indeed they are essential in the doing of justice in general. On the one hand there must be a full and fair hearing, which means that the parties in dispute must be given their opportunities to have their say, produce their witnesses, documents and papers and such evidence. On the other hand the parties must be restricted to relevant facts, and this is best done by gentle guidance from the judge who controls the proceedings and the lawyers who guide their clients and present their cases to the court, Relevancy sometimes means different things to the layman and the lawyer. In court it is strictly tested. In the daily lives of laymen ‘it is more loosely interpreted. For example, listen to a husband and his wife quarrelling. ‘The questions in dispute may be whether the husband gives enough house-keeping money to the wife, or whether he is keeping a mistress in the fashion of men who belong to his “class”. The questions are simple enough, and in the calm atmosphere of a court, under gentle guidance from the judge and the lawyers, the truth as to the relevant facts may be found by application of the rules of evidence, and the answers to the questions may be revealed. But in the home, in the heat and anger of the quarrel, the husband and the wife do not go strictly by the rules of evidence. Swept along by passion they find everything relevant: that the wife snores in bed and isa bad cook, that oné of her maternal uncles is a gambler; that the husband is lazy and does not earn as much as her friend's dear husband, that he too has a gambler some- where up the family tree. Thus, the standards of proof and the rules of relevaney are different in the home and in the court. Another area where the rules of relevancy seem to be loosely applied is the political area. There, when parties split and splinter, we have heard responsible people call each other names, make charges and assertions which may not stand up to the strict tests of relevancy in court. One politician says his rival is a rich man, has two or more wives, and cannot therefore be a good patriot; the country will go to the dogs if that rival were ever to become prime minister. Another says he himself is very poor, and therefore very honest; he has never studied beyond the 7th standard in school and is therefore a patriot of the first calibre: “Vote for me, for being a poor but honest patriot I shall make the country rich when I become prime minister.” This is not to laugh at politics, but only to point out that in that field a different language is spoken, and different rules of relevaney are applied.iv In evidence, as in many other things, quality counts more than quantity. It is not the number of witnesses whom a party produces, but their reliability and relevancy which matters. A principle of the Iaw of evidence is that the best evidence must be produced, i.e. first-hand and not second-hand evidence must be submitted. A witness must tell the court what he himself has seen, heard, felt, or considered, and not what some other person has said he has seen, heard, felt or considered. A witness must, in other words, say what he himself’ knows, and not what he has heard another man say he knows. “Hearsay” is, thus, rejected, for that is second-hand, or third-hand, evidence, and not good enough. There are, of course, a few exceptions, for every rule must have exceptions, but they apply only when the first-hand source is no longer available—e.g. when a man who knew who stabbed him, and declared the name, has since died of his wounds, Or when the hearsay evidence is itself relevant, e.g. when the question to be decided is whether A had uttered defamatory words against B, the fact that A spoke those words to Cand Disrelevantand Cand D can say in court what A had said to them. Here, however, it is not really an exception to the hearsay rule, for what C and D say about what A said to them become first-hand evidence ona fact that is televant. The exclusion of hearsay is often considered to be unreasonable by police officers who have to investigate and send up cases to court, for example, and by litigants as well. 4 will say, “I heard it from B who is such an eminent and reliable man; why shouldn't what I heard be accepted in evidence and believed ?” Or, A may say, “Everyone knows about this. The whole town talks about this. I heard it at atea-shop. There can’t be smoke without fire. It must be true.” What he says may be reasonable by ordinary standards, but in the courtroom stricter tests have to be prescribed, and the best evidence and only the relevant evidence must be insisted on. The tests must be calmly, scientifically applied, and not passionately or ervotionally. A judge is a human being and is not entirely free of passion or prejudice, but in deciding cases he has to try his best to free himself and give calm and impartial justice. Is the law of evidence which we use in Burma too technical? Is it too rigid? Should it be reformed so that hearsay and second- ary evidence may be admitted in certain cases and the Search for the truth may proceed more freely on a broader plane? These are questions which are often asked in England, the United States, the Soviet Union, the People’s Republic of China, and elsewhere, in respect of the law of evidence and other procedural laws which havev force in those countries. Asking such questions and trying to improve existing laws is a healthy and desirable activity. Society and its laws must try to march together; when the laws lag toa far behind society, there is much unhappiness, injustice, and frustration. There are two schools of thought on legal reform. One school considers that there is no need for any. It says: the laws that we have are very old and contain the ultimate of human wisdom. These laws were drafted in 1860 by Lord Macaulay, and polished by their Lordships of the Privy Council. Therefore, nobody should dare to change them. The other school is on the opposite extreme. It says: times have changed, society has moved on, the laws are obsolete. Scrap all the laws, write new ones, abolish the rules of procedure and render moral and social justice without restraint. Both schools are unrealistic. The first school fails to note that society keeps on changing, and government and laws need to change to meet the new needs and fulfil the new aspirations. There is no ultimate: wisdom in Macaulay or the Privy Council, the High Court or the Supreme Court. The best law-makers cannot make laws which will be good and sufficient for all time; the wisest judges make mistakes. The second school also errs because abolition of all laws is only change for the sake of changing and serves no purpose. Wisdom and experience must be used to design new laws and new systems to meet new needs. A middle way therefore needs to be taken between the two extremes of the two schools. Following this middle way, India appointed a Law Commission, soon after attainment of independence, to study and recommend on the reform of laws and judicial administration, Deep and thorough studies are being undertaken by the Law Commission, and on the law of evidence—which is the same as the law of evidence in Burma on the main points—the Commission has found that the law is as adequate as that provided in England by the Evidence Act of 1938, and in America by the Model Code of Evidence compiled and published by the American Law Enstitute in 1942. “Considering the provisions in regard to the admission of hearsay evidence in our Evidence Act,” the Comtnission reports, “such as section 32 of the Act, it appears to us that our Act contains provisions for the admission of hearsay evidence in several mattersin which it became admissible in England only after the Act of 1938, Indeed in certain matters the provisions of the Act are wider and permit evidence to be given of matters which may not be admissible evidence in England even after recent legislation.” * Law Commission of India, 14th Report, 1958, p.S17vi The law of evidence, like other laws, is not perfect. It needs to be studied and reformed from time to time. As Yaw Atwinwun U Po Hlaing wrote in his classic study on government, “A Guide to Kings”: “The age of the laws is no true test of their’ merit: old or new, the merit of the laws lies in their being good and just,”? The important thing, therefore, is to make good laws and apply them justly. Much depends on the application. The aim of men of law should be to serve justice, not merely the words of the laws. “All law and no justice,” with the judges and lawyers obsessed with the technicalities of the Jaws and the punctuation marks, will only serve to undermine the confidence of the people in the judicial process. The earlier Courts of Equity in England came to function mainly to cut through the technicalities of the laws and render substantial justice to the citizens. So also, under the Burmese Kings, judges were instructed to do substantial justice and not allow themselves to be tied up, hand and foot, by technicalities. “The surviving records show that at times counsel exercised their ingenuity in raising technical pleas; but they found scant favour with the Courts. Thalunmintra, by his royal edict of 1636 A.D., enjoined his judges to do substantial justice, disregarding technicalities and subtleties in deciding disputes before them. Bodawpaya, in his royal edict of 1783 A.D., addressed to judges, said: ‘Let witnesses testify to all incidents within their knowledge; if they state that they did not see the defendant assault the plaintiff with a stick but saw the former throw a brick-bat at the latter, you shall, if you accept the testimony of the witnesses, award damages for the assault with the brick-bat, even though the plaintiff in his pleadings alleged an assault with a stick. The suit shall not be thrown out.’ "* Thus, let us study the law of evidence not as a bundle of rigid technical rules, but as means, designed from commonsense and experience, of discovering the truth about the essential questions in a case. Let us master the rules, and not be mastered by them. Let us use them to achievé the one fixed aim of law, which is to do justice. The outlines of this book are taken from the pocket-book on Evidence by the late Sir Arthur Eggar, Professor of Law at the Rangoon University, and the first Advocate-General of Burma. The pocket-book went into several editions, and on the author's sugges- tion I edited it and brought out an edition in 1958, a few months * Rajadhammasangaha, by U Po Hiaing, edited by Maung Htin, Rangoon, 1960 (in Burmese). * The Expansion of Burmese Law, by Dr. E Maung, Rangoon, 1952, p.17.aii after his death. The book distils the essential wisdom and principles of the law of evidence, and I have tried to bring it up to date, adding illustrations from the latest decisions of our | edition is a substantial enlargement on the 1958 edition—which is now out of print—but I have also tried to keep the book down to the size of a handy handbook which the author intended it to be. “This book,” wrote Eggar to me when I was preparing the 1958 edition, “sis for the lawyer to slip in his pocket when going into Court. It is a handy weapon for dealing with objections as soon as they arise. First blow usually decides the contest ; there is no time for reference to large treatises.” The first blow struck in court may well be the decisive blow and to be able to strike it the response must be quick and the grasp of the essential principles on the subject must be firm. He whose mind is clogged with details and technicalities may not be so quick and clear on the principles, and in the fast give-and-take that often developsin the court he may founder and fall. This reminds me of the words of advice which Professor Kyaw Myint of the Law Faculty of the University of Rangoon gave me on his retirement after handing over the faculty to Professor Myint and his teaching subjects to mein 1957, “I have tried to make my students learn to think on their feet,” Prof. Kyaw Myint wrote, “and the ability to dissect a problem and apply the principles of law to it is the main thing. If you can teach them how to cut through the mass of a problem and get at its heart quickly and decide what law applies, you will have taught them a lot, and they will be safe in court.” That was sound advice, and I tried to follow it, with what success I cannot tell. Thinking quickly and getting to the heart of the problem unfumblingly is not easy, whether one is seated or standing, and I am myself still learning. This is a book of principles which may be a help to the student and the legal practitioner to become friends with the law of evidence, to apply its principles quickly while standing or sitting in court or at one’s desk, to strike the first blow if necessary. Eggar was not an expert. He was a teacher, builder, creator. He was a man of many parts: teacher of mathematics, barrister, law professor, legal draftsman, government attorney; a private soldier in an anti-aircraft battery during World War J, in which capacity he wrote a few statutes for the government in Egypt at ten pounds apiece; builder of the University Boat Club with its motto ‘Row Till You Are Dead’, To his memory this book is dedicated,viii In undertaking a task one should, by Burmese custom, be aware of the gratitude one owes to one’s teachers. I prepare this book in that deep awareness. Professors Dr. Ba Han and Dr. Myint, and Chief Justice U Chan Tun Aung, my teachers in the law faculty seventeen years ago: teachers of the Inns of Court School of Law, of Utrecht, of Yale, too numerous to mention, but un- forgotten; members of the Bench and the Bar contacts with whom has remained a consistent source of joy and education all. these years; U Ba Scin, the Attorney-General, a small-sized man with a big-sized heart, from whom, as an assistant, I learned much during the crowded years of the Caretaker Government, 1958-60; to them J acknowledge my thanks. To the students of the law faculty to ‘whom it was my honour to lecture for fous happy years ; to my wife who has marched with me on a long hard road for over sixteen years, and our seven children who teach me how to think amidst the noise they make and how to act as a reasonable judge and umpirein the disputes they constantly fall into; last but not least, to my father, a great inspirer, many many thanks. MAUNG MAUNG Rangoon, October, 1963.TL. ML. Vi. CONTENTS PAGE Preface OPERATION OF THE ACT ee EVIDENCE AND PROOF ... a WHEN EVIDENCE IS NOT REQUIRED 1 1 3 Presumptions of Facts... i. “ 5 9 0 1 1. Judicial Notice 2 3. When the Burden of Proof is on the Opponent 4. Conclusive Proof " . 5. Facts Admitted “ I 6. Estoppel ” oe od FACTS WHICH MAY BE PROVED ... wo B 1. Facts in Issue, Relevant Facts 13 2. Explanatory Facts 14 3. Facts supporting inference or probability 4 4. The whole transaction of res gestae 15 5. Cause, Opportunity, Effect “ 16 6. Surrounding Circumstances 16 7. Motive 16 8. Preparation 16 9. Conduct and its Explanation 17 10. Conduct of Co-contpirators 18 11, State of Mind or Body ... 19 12. Character 20 13. Damages... 21 14. Right or Custom 21 OPINIONS... o 2 HEARSAY IS EXCLUDED . 4 1. When Statements may be proved u 2. When a person cannot be called 26 3. Evidence in a former Brogeeaing: 29 4. Admissions ... 30 5. Confessions 32, 6. Statements in Books 39 T. Judgements ... 40Vil. VU. XL XIL XII, WHEN DOCUMENTS ARE NECESSARY. 1. Dispositive documents 2. Extrinsic evidence admissible 3. Interpretation of documents PRODUCTION OF DOCUMENTS BEFORE THE HEARING PRODUCTION OF DOCUMENTS AS EVIDENCE 1. The original must be produced 2. Secondary evidence 3. Special Forms of proof PRESUMPTIONS AS TO DOCUMENTS PROOF OF GENUINENESS OF DOCUMENTS ~ 1. Attestation 2. Registration 3. Stamp 4. Alteration THE WITNESS 1. Summons and attendance 2. Privilege 3. Protection 4. Competency 5. Oath re PROCEDURE IN COURT The right to begin Examination-in-chief Cross-examination Re-examination Examination by the Court vane APPENDICES, QUESTIONS AND EXERCISES THE EVIDENCE ACT 42 42 50i. OPERATION OF THE ACT. The Evidence Act which is digested in this book is the Act which is in force in Burma. It applies to all judicial proceedings in or before any Court (s.1 of the Act) including all Judges and Magistrates and all persons (except arbitrators) legally authorised to take evidence (s.3). ‘The Evidence Act applies to proceedings before Courts-martial, vide s.136 of the Defence Services Act (Act 43 of 1959). Enquiry Committees appointed under the Enquiry Committees Act of 1950, must follow the principles of the Evidence Act, though not actually its detailed provisions. The Evidence Act does not apply to affidavits presented to any Court or Officer; as to this method of giving evidence, the Civil Procedure Code lays down the rules in s.30 and Order XIX rules 1-3. Il. EVIDENCE AND PROOF In general, facts may be proved by oral evidence (5.59), i.e. state- ments on oath by witnesses in Court (s.3). But the existence, con- dition and contents of documents must be proved by the documents themselves produced for the inspection of the Court (ss.3,59,64) except in circumstances where secondary evidence is admissible (ss. 65 etc.) or when the document is only remotely relevant (3.144 Expl). And the Court may see for itself any material thing (5.60; CPC s.30 and O.XII, 1.11), and may view the place of occur- rence A fact is said to be PROVED (or disproved) when, after consi- dering the matters before it, the Court believes that the fact exists (or does not exist), or considers its existence (or non-existence) so probable that a prudent man ought to act upon the supposition that it exists (or does not exist) : 5.3. The Court must frame its judgement with prudence onthe probabilities of the case even in a criminal trial. Although there is direct evidence there is always an element of probability, because the witness may be mistaken or false. And although no witness or document directly states that a fact exists, where the matters2 THE LAW OF EVIDENCE before the Court show several indications of the existence of that fact the Court may consider it as proved if a prudent man ought to do so. Emphasis is often laid upon the fact that a criminal charge must be proved “beyond reasonable doubt”, and if there is a reasonable doubt, the accused must be acquitted : King-Emperor vs. U Damapala, 14 Ran, 666 F.B, But this is the same as the principle stated above. “Circumstantial evidence” may be sufficient proof, even in a criminal rial. Itmay even bestronger thandirect evidence. Where there is only one fact which fits the circumstances, that fact is proved by those circumstances. The danger of relying on such evidence is that other facts may also fit the circumstances, “Circumstantial evidence must be consistent, and consistent only with the guilt of the accused. The inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. If the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit.” Maung Tin Win vs. The Union of Burma, 1955 BLR 146 H.C. MANU (Book VIII, 44) said: As a hunter traces the lair of a wounded deer by the drops of blood, even so the King shall discover ‘on which side the right lies by inferences from the facts of the case. The “weight of the evidence’’is that which turns the scale in the balance of probabilities. It is not measured by the number of witnesses (s,134), nor by the number of circumstances. Evidence is weighed, not counted. When the law does not prescribe the number of witnesses who must prove the guilt of the accused, the evidence of one witness, if believed, may be made the foundation of a conviction, even if the maximum’ sentence may be death. Maung Shwe vs. The Union of Burma, 1960 BLR 243 H.C. Items of small. value may be sufficient when taken together. Tactically, it is often wiser to over-prove than to under-prove ‘one’s case, as some of the evidence may be struck out as inadmis- sible at the trial or on appeal (s.167).THE LAW OF EVIDENCE 3 1. WHEN EVIDENCE IS NOT REQUIRED 1. Judicial Notice No fact of which the Court will take judicial notice need be proved (5.56). The Court may not act upon its own knowledge except as regards facts of which it is directed to take judicial notice, or may or shall presume. Thatis to say, there are things which the Court is supposed to know and facts which it may, or must, accept without proof. ‘The Court may act upon matters of common knowledge. For example the Supreme Court took judicial notice of the fact that troops under the authority of the Government in Formosa were doing grave harm to the people of Burma: Cha Eik Haung vs. The Commissioner of Police, 1953 BLR 54 S.C. Inanother case, theSupremeCourt took judicial notice of a speech made by the Prime Minister and issued by the Ministry of Informa- tion, Lim Lyan Hwat vs, The Secretary, Ministry of Home Affairs, 1960, BLR 128 S.C. at 132. Onall matters of public history, literature, science or art (8.57) or public or general interest (3.87) the Court may consult books of reference, No fact of which the Court will take judicial notice need be proved; but the Court may first require production of any book or document necessary (8.57). And there is no need to prove that the book correctly states the person by whom, and the time and place at which, it was written and published (8.87). Section 57 purports to state what the Court is supposed to know, but much of it is unsuited to independent Burma. Picking out what is suitable, we find that the Court is presumed to know: all laws and rules having the force of law in force at any time or in any part of Burma; the course of proceedings of the Parliament in Burma; the seals of all Courts of Burma; the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public; and all seals which any person is authorised to use by any enactment in force in Burma;4 THE LAW OF EVIDENCE the accession to office, names, titles, functions and signatures of the persons filling (for the time being) any public office in any part of Burma, as notified in the Burma Gazette: the existence, title and national flag of every State or Sovereign recognized by the Union Government; the divisions of time, the geographical divisions of the world, and public festivals, feasts and holidays notified in the Burma Gazette; the territories under the dominion of the Union of Burma; the commencement, continuance and termination of hostilities between the Union of Burma and any other State or body of persons ; the names of the members and officers of the Courts and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorised’ by law to appear or act before it; and the rule of the road on land or at sea. The rule of the road on land is to keep to the left: “If you go left, you go Tight; if you go right, you g0 wrong.” The rule of the road at sca or in narrow navigable waters is to keep to the right. But if the courses are far apart, then, “Green to green, or red to red—perfect safety, go ahead!” Published Acts or copits printed by the Government (5.78), Government law books and law reports may be used without proof (ss. 38, 84). “Foreign law” needs to be proved by an expert witness (8. 45), a treatise on the subject (ss. 60, 87), a public document (s. 78), a book published by the Government of the foreign country or a fener of decisions (ss. 38, 84), or a certified copy of a judgement s. 86). Published maps and charts generally offered for public sale, and maps or plans made under the authority of the Government may be produced in evidence (ss, 36, 83, 87). Presumption of accuracy in s. 83 regarding maps and plans made by authority of the Government means accuracy as to drawing and correctness of the messurements, and does not refer to theTHE LAW OF EVIDENCE = laying of boundaries between estates according to rights of parties. Town maps for Pegu prepared by officers of the C.A.S. (B) by taking copies from blue prints which were copies of the revenue survey maps for Pegu are mere copies of copies and it is doubtful ifthe presumption arises in respect of theC,A.S, (B) maps: U Ba Shin vs. Daw Hnin Hlaing, 1961 BLR 67 H.C. Facts of a public nature may be proved by a recitalin an Act or notification (ss. 37, 81). The Burma Gazette proves itself (ss. 37, 81), and so dacs a newspaper (s. 81), but the Court need not believe all that the news- paper says. 2. Presumptions of Facts Evidence is not required to prove a fact which the Act directs the Court to presume (8. 4). The circumstances which giverise to the presumption must be proved to exist. If these are sufficient, the Court will regard the fact as proved ; but the opposite party may rebut the circumstances and disprove the fact. Examples: presumptions as to certified copies of documents (s. 79); record ef evideses or cbaleesion (s.80); Gazette, newspaper, or document directed by law to be kept by any Berson (s. 81); Govern- ment maps or plans (s. 83); Government law books and law reports (s. 84); powers of attorney duly executed and authenticated (s. 85); regularity of document not produced after notice (s. 89). Sections 118 and 119 of the Negotiable Instruments Act contain special rules of presumptions in regard to negotiable instruments. In some cases the Evidence Act allows the Court to presume a fact but gives the option te call for proof (s.4). Examples: authorship of books of reference, maps or charts (5, 87); correct transmission of telegram (s, 88); genuineness of documents 30 years old (s. 90); and several cases illustrated in s. 114, The Court may rely upon its knowledge of the common course of natural events, human conduct, public and private business (s. 114).om THE LAW OF EVIDENCE The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession specifically, or in natural course as where the thing stolen is a coin (marked) and he docs not examine every coin he receives in the course of his business (s. 114-a). The Court may presume that things go on existing as before, unless something happens which may change them, eg. if it is proved that a river ran in a certain course five years ago, evidence need not be given to prove that it ran that course day by day. But if there has been a flood, evidence will be needed to show whether there has been any change of course (s. 114-d), ‘The Court may presume that the common course of business has been followed in a particular case. Example: if it is proved that a letter was posted, the Court may presume that it was deli- vered to the addressee. ' So also, if it is proved that the letter was put into the office box from which the peon habitually took letters to post (s. 114-f). The Court may presume that judicial and official acts have ‘been regularly performed, unless there were exceptional circum- stances (s. 1i4-c). The Court may presume that there was good consideration for a bill of exchange ven or endorsed. (s. 114-c). And the fact that a bond has got back to the hands of the person bound thereby, raises the presumption that it has been paid (unless he stole it) 4s. 114-i). The Court may presume that evidence which could be, and is not produced would be unfavourable to the person who withholds it (s. 114-g), unless he gives a satisfactory explanation. (But if the defendant was never asked by the plaintiff to produce account- books, neither the plaintiff nor the Court could draw any inference from the non-production of the books. Swee Chwan Bee Rice Mill Co. vs. Sukru Nahag, 1955 BLR 291 H.C.) So also if a man refuses to answer a question (5. 114-h). The Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars (s. 114-b). See also chapter XI, 4 on competency of witness,THE LAW OF EVIDENCE a Other natural inferences are often made by Courts: cohabita~ tion raises a presumption of marriage, but this depends on local customs: Ma Wun Di vs. Ma Kin, | Burma Law Times, 125, P.C. ‘A child may be presumed to have his father’s religion and status. Property in the possession of a joint Hindu family is presumed to be their joint property. ‘There is a presumption of absence of criminal intent. But every man is presumed. to know the natural and probable con: quences of his act and to intend that those consequences shi follow (s. 106). A knowledge of law is presumed: ignorance of law is no excuse, for otherwise the law will never be enforced for people will say they do not know it. Delay in suing creates suspicion. Further examples of presumptions which the Court may (or must) make are shown in the following rules concerning the burden of proof and conclusive proof. 3. When the Burden of Proof is on the Opponent When a person is bound to prove the existence of any fact, it is said that the “burden of proof” lies on that person (8. 101). ‘The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie upon any particular person (s. 103). Example: The burden of proof lies on the prosecution to establish that the accused is guilty. But s.167-A of the Sea Customs ‘Act puts the burden of proof on the accused to establish his inno- cence when he is charged of infringing the law relating to importing and exporting of goods. This special rule of evidence must, however, be used with fairness: U Saw U vs. The Collector of Customs, 1960 BLR 197, S.C. If there is proof that a man was alive 30 years ago, or less, the Court presumes that he is still alive. If it is proved, however, that he has not been heard of for 7 years, the Court presumes that he is dead. There is no presumption as to the date of his death (ss. 107, 108).8 THE LAW OF EVIDENCE When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they are such, the burden of proving that they ate not lies on the person who says so (s. 109), When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who says he is not the owner (s. 110). The fact of possession gives rise to a prima facie Presumption of ownership (unless the personin possession is estopped from raising this plea under s. 116 or otherwise). Possession is a right which may be separated from ownership, A person having possession of property, although he is not the owner, has a right to such possession against everyone except a person who can show a better title to possess. Where possession by the defendant is proved or admitted, the plaintiff must Prove his. own title; if he is able to do so, the defendant is called upon to Prove a better title: Maung Daw Na vs. Maung Wa Maung, 1941, RLR 706 F.B.; Ma Ma Lay vs. Nazir Khan, 1949, BLR 95, Force does not interrupt possession. If the plaintiff’ proves that he had possession and was Wrongfully ousted by the defendant, he thereby proves a title to possess which rebuts the prima facie Presumption in favour of the defendant arising out of the mere fact of actual possession. But a suit for mere possession of immoveable property must be brought under s. 9 of the Specific Relief Act within 6 months of dis-possession (Limitation Act, Schedule I, Art. 3). If this remedy is not availed of, the plaintiff must prove title by suit. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence (fiduciary relationship), the burden of proving the good faith of the transaction is on the party who is in a position of active confidence (s. 111), Examples: legal adviser and his client; parent and child: medical practitioner and patient; trustee and the beneficiary: guardian and ward; agent and principal. In each of these cases, it lies on the former to prove that the transaction was done in good faith—Contract Act, s. 16, on “undue influence”. Except in the above cases, good faith is presumed.THE LAW OF EVIDENCE 9" all presume the absence of circumstances which bring a case within an “exception” to an offence; the burden of proof is on the accused to establish that he should have the benefit of an exception. The burden of proving that an accused person is guilty of the offence charged “always lies squarely on the prosecution, In the course of the trial, the “burden” may shift to the accused to support his defences, such as his afibi, but the principal burden of proving that he is guilty is with the prosecution till the end. The Fundamental Principles of Criminal Procedure, followed in the Soviet Union, contain this: “The court, procurator, investigator, and person conducting the inquiry, have no right to place the onus of proof upon the accused.”” This principle is held to be very import- ant. “The onus of proof rests upon the investigating bodies and the court. The onus of proving his innocence must not be placed upon the accused.” The Soviet Bar, by Zaitsey and Poltorak, Moscow, 1959, pages 138-139, For other rules relating to the burden of proof, see chapter XIIE. 4. Conclusive Proof Certain facts give rise to a conclusive, not merely prima facie, presumption of other facts. ‘When one fact is declared by the Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and. shall not allow evidence to be given for the purpose of disproving it (s. 4). The fact that any person was born during the continuance of a valid marriage between his mother and a man, or within 280 days after its dissolution (the mother zemaining unmarried) shall be conclusive proof that he is the legitimate son of that man. The only evidence that may be given for the purpose of disproving it is evidence that the parties to the marriage had no access to each other at any time when he could have been begotten (s. 112). Other evidence of relationships is admissible. But sce s. 122 (husband and wife may claim privilege in respect of communications with each other),10 THE LAW OF EVIDENCE _ Judgements in probate, matrimonial, admiralty or insolvency jurisdiction are conclusive proof of certain matters (s. 41). Dispositive documents are conclusive as to their terms (s. 92). 5. Facts Admitted No fact need be proved in any proceeding which the parties or their agents agree to admit at the heating, or agree to admit by writing before the hearing, or which by any rule of pleading in force at the time they are deemed to have admitted by their plead- ings. The Court may, however, require the admitted facts to be proved otherwise than by the admissions (s. 58). An admission made “without prejudice” cannot be proved (s.23). Also, compare ss. 17, ete. (admissions which may be used as proof of facts although not made for that purpose) and s. 115 ete. (estoppels). An accused person may admit facts, but cannot consent to irregularity of procedure. Abbas Ali vs. King Emperor, 3 LBR 208 FB. When an accused person “pleads guilty” he may be convicted. But where he is not likely to understand the technicalities of the charge, the Court will not accept his plea. His plea of guilty may estop the accused person from questioning the correctness of his conviction but it is still the Court’s duty to see that no miscarriage of justice results. The King vs. San Fo Chin, 1947 RLR 202. An admission on a point of law is not binding. Parties cannot agree that the provisions of a statute shall be disregarded. The parties caniot give the Court jurisdiction which the law does not give it. For admissions on pleadings in. a civil suit, see CPC, Order XI, rr 14,6. Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. The Court may, how- ever, require the admitted facts to be proved otherwise than by the admissions (Order VIII, 1.5). See also O. Vil rr. 2,3, 4, & 8, and O. VI, rr. 2, 4, 6, 7, 8, 10, 11, 12, 13 & 17.THE LAW OF EVIDENCE i Admissions are not conclusive evidence of matter admitted (s. 31), Also see Daw Cho vs, U Ganni, 1951 BLR 158, 8.C. 6. Estoppel No proof is required in support of a position, or state of affairs which, in certain circumstances, the opponent is prevented from challenging. When one person has, by his declaration, act, or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceeding between himself and auch perton or his representative, to deny the truth of that thing (s. 155). “Intentionally” means little more than that the person making the representation must know that the other will act upon it. It is not necessary to prove that the representation was fraudulent; and the estoppel cannot be avoided by the plea that the person making the representation did so under a mistake as to the circum- stances. (Example of estoppel by conduct, see Maung Tun Soe vs. Maung Chit 1954, BLR 299). Statements, conduct, silence, omissions, negligence ete. actually inducing the belief in question will create estoppel. The test is: was the other person thereby caused to believe the thing to be true, and did he act upon such belief ? If the other person knows the representation to be false, he does not believe it to be true. If other considerations induced him to take the action he did, then he did not act upon the representa- tion. If it is not common sense for himto have acted on the re- presentation, it may be presumed that he did not do so. Everybody is presumed to know the law of the country and not to be misled ‘by a representation as to what the law is. A representation that something will be true in the future will not be an estoppel but may amount to a contract. The rule of estoppel applies to the case of an owner who allows property to appear in the name of another (benami) and thereby jnduces bona fide purchasers who have no contractual or constructive notice of the fact, to deal with that other as owner. See Transfer of Property Act s. 41; Contract Act, ss. 108, 178 and compare the protection given to the holder-in-due-course of a negotiable42 THE LAW OF EVIDENCE instrument. See Contract Act s. 237 (estoppel against principal denying authority of agent); ss. 245, 246 (estoppel against denying partnership; Transfer of Property Act s. 78 (estoppel against prior mortgagee), The principle of estoppel cannot beevoked to defeat the plain provisions of statutory law such as limitation. A person cannot be estopped from raising the plea that a suit is barred, An infant cannot bind himself by contract and, probably cannot be estopped from denying liability. "But he will be prevented from taking advantage of his own fraud. No tenant of immoveable property, or person claiming through such tenant, shail, during the continuance of the tenancy, be per- mitted 10 deny that the landford of such tenant had, at the beginning of the tenancy, @ title to such immoveable property; And no person who came upon any immoveable property by the license of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such license was given (8. 116). Nor shall any baile or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or license commenced, authority to make such bailment or grant such license (s. 117). The tenant, licensee or bailee, by accepting possession as such is bound by his implied admission that the lessor, licensor or bailor had power to give such possession. But the admission is only as to the state of things existing at the commencement of possession; @ tenant may plead that the lessor’s title has subsequently been extinguished by the tenant's adverse possession of other change. And the estoppel’ has effect only so long as the grantee claims Possession under the title of his grantor; it will not prevent a bailee from explaining that he cannot re-deliver the goods owing to their having been taken from him by a person who had a better title to them than the bailor. No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to indorse it(s. 117), Tt may be assumed that he would not have accepted it if the drawer had no such authority, and having held himself out as liableTHE LAW OF EVIDENCE 13 and permitted third parties to act on that belief, he is not allowed to withdraw from that position. See also ss. 41, 42, 88, 120, 121 & 122 of the Negotiable Instruments Act. Iv. FACTS WHICH MAY BE PROVED 1. Faets im Issue, Relevant Facts _ Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue or of such other facts as are declared to be relevant, and of no others (s. 5). These sections relating to the relevaney of facts provide door- ways through which proof may be admitted; if one door is closed, another may be open; if evidence is not admissible through one section it may be admitted through another. In civil cases the Courts lean in favour of admissibility; but in criminal cases the prosecution is more strictly bound. The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or if the rejected evidence would not have varied the decision (s. 167). “Fact” means and includes anything, state of things, or relation of things capable of being perceived by the senses: and any mental condition of which any person is conscious (s. 3.)- The expression “facts in issue” means and includes 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 necessarily follows (3. 3.). One fact is said to be' relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts. When either party proposes to give evidence of any fact, the Judge may ask in what manner the aileged fact would be relevant and shall admit the evidence if he thinks that the fact would be relevant, and not otherwise,14 THE LAW OF EVIDENCE If the relevancy of one fact depends upon another fact being first proved the Judge may, in his 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 (ss. 136, 104), 2. Explanatory Facts Facts necessary fo explain or introduce a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose (5. 9). The illustrations to this section show that evidence to explain or introduce a fact will be admitted only so far as is necessary; that explanation of a fact which is part of the same transaction as a fact in issue is admissible; and that statements may be explanatory of facts. The explanation suggested may, of course, be negatived by showing that the facts have another meaning. Evidence which is tendered under this section may be admissible also under s. 6 (facts forming part of the transaction) or s. 7 (Facts which are the occasion, cause or effect of a fact, surrounding circumstances, showing opportunity) or s. 8 (motive, preparation, conduct) or s. 11 (showing probability) or s. 14 (showing state of mind or body). Faets Supporting Inference or Proba Y Facts which support an inference suggested by a fact in issue or relevant fact, are relevant in so far as they are necessary to lend that support (s. 9). Facts which are not otherwise relevant if, by themselves or in connection with other facts, they make the existence of any fact in issue or relevant fact highly probable or make the non-existence of any such fact highly improbable (s. 11). (Iilustration-b) Facts which show that a crime could have been committed by nobody but the accused are relevant. Many other sections indicate that the Court may utilise its own “inferences” as proof. Sce s. 3, proof; s. 7, opportunity, cause orTHE LAW OF EVIDENCE 15, effect; s. 8, motive or preparation; s. 8 conduct; s. 14, fact from which a state of mind may be inferred; and so forth. An inference may be negatived by showing that the facts have another meaning, or are untrue. Facts which rebut an inference suggested by a fact in issue or relevant fact, are relevant in so far as they are necessary for that purpose (s. 9). Facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact or if, by themselves or in connection with other facts they make the existence of any fact in issue or relevant fact highly improbable or make the non-existence of any such fact highly probable (s. 11). An alibi is relevant as a defence (Illustration-a). Facts to be asserted or denied in answer to the issue are facts in issue (s. 3 Explanation), Where there is a question whether a particular act was done, the existence of any course of business according to which it naturally would have been done is a relevant fact (s. 16). __ To prove that a letter reached the addressee, trace the letter by evidence as far as possible and carry it on by evidence of course of business. The Court may presume that the common course of business has been followed in a particular case (s. 114 illustration). But the presumption wiil be rebutted on proof that the usual course was interrupted by disturbances. The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for trans- mission at the office from which the message purports to be sent: but the Court shall not maxe any presumption as to the person by whom such message was delivered for transmission (s, 88). 4, The Whole Transaction of RES GESTAE ___ Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time or place or at different times and places (s. 6),16 THE LAW OF EVIDENCE See the illustrations to this section as to things said or done by the parties or bystanders, facts forming part of the general transac- tion, letters forming part of the correspondence, and intermediate deliveries of goods. These are“res gestae”—the incidents inseparably connected with the act in question which explain its real nature. “Evidence of the remarks of bystanders and so forth is a snapshot of the transaction; it is the act giving evidence of itself. But what people say of the affair after they have had time to think about it would be likely to give an incorrect impression, mixed up with their inferences or distorted by bias; such evidence is therefore irrelevant under this section. This section relates only to the res gestae of facts in issue. Section 7 relates to the res gestae of relevant facts. 5. Cause or Effect Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction, are relevant (s. 7). See also s. 6, facts forming part of the transaction; s. 8, motive, preparation, conduct; s. 9, facts which explain introduce or suggest inference; s, 11, probability; and s. 14, state of mind or body. 6. Surrounding Circumstances Surrounding circumstances unconnected with the transaction are not relevant under this section but may be admissible for the purpose of corroborating a witness (s. 156). 7. Motive Any fact is relevant which shows or constitutes a morive for any fact in issue or relevant fact (s. 8). Motive is uncertain ground for inference as to whether a man actually committed a crime, On the other hand, the absence of motive affords a strong presumption of innocence. 8. Preparation Any fact is relevant which shows or constitutes preparation for any fact in issue or relevant fact (s. 8),THE LAW OF EVIDENCE 17 9, Conduct The conduct of any party or of any agent to any party to any suit or procceding, in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto and the conduct of any party against whom is the subject of any proceeding is relevant if such conduct influences or is influenced by any fact in issue of relevant fact, and whether it was previous or Subsequent thereto (s. 8). Men’s acts are evidence of their attitude of mind. But conduct is uncertain ground for inference because there may be several explanations for it; all people do not act alike. The conduct of an accused cannot be conclusive of his guilt unless quite incompatible with his innocence. Silence, or other conduct, when charged with an act is not necessarily an admission of guilt unless it is obvious that an innocent man would have acted otherwise. Evidence of conduct may be admissible also under ss. 6, 7, 9, 11, 14. The disappearance of two accused persons from their village after a murder was committed docs not necessarily mean that they are guilty, for they may have run away to avoid retaliation for a crime they have not commitied: see Maung Tun Sein vs. The Union of Burma, 1954 BLR 11 S.C. The word “conduct” in s. 8 does not include the statements of the person unless shase statements accompany or explain acts other than statements (Explanation 1). Illustration j; Where the question is whether a girl was ravished, the fact that shortly after the rape she made a complaint relating to the crime, is relevant and the statement is admissible. The fact that she said she had been ravished, but not by way of making a complaint, is not relevant as conduct under this section, though it may be relevant as a dying declaration under s. 32 (1) or as corroborative evidence under s. 157. ‘The illustration applies to offences other than rape for example, robbery (see illustration k.). Statements may be admissible if they form part of the transac- tion (s.6), are the cause or effect of facts (s. 7), show state of mind or body (s. 14), explain or introduce facts (3.9); support or rebut an inference (8. 9) or show probability (s. 11).