New Evidence Act 2011, except Part IV which relates to witness anonymity, goes into operation on January 6, 2012

St. Kitts and Nevis’ Attorney General and Minister of Justice and Legal Affiars, Hon. Patrice Nisbett (Photo by Erasmus Williams)

BASSETERRE, ST. KITTS, JANUARY 6TH 2012 (CUOPM) – The Evidence Act, passed by the St. Kitts and Nevis National Assembly on September 30th 2011 and assented to by His Excellency the Governor Dr. Sir Cuthbert Sebastian on October 17th 2011 is now in effect.

Attorney General and Minister of Justice and Legal Affairs, the Hon. Patrice Nisbett has appointed January 6th 2012 as the Appointed Day, when the Evidence Act come into operation.

However, according to Statutory Rules and Orders No. 1 of 2012, all provisions of the Act are in operation except Part IV which relates to witness anonymity.

Last September lawmakers replaced its 135-year old Evidence Act that originated out of the United Kingdom, like most of pre-independence legislation.

The St. Kitts and Nevis National Assembly voted unanimously to replace the Evidence Act Cap. 25, which originally was Act No. 3 of 1876, with the Evidence Act, 2011.

The Evidence Act was drafted and passed after extensive informal consultation process between the Attorney General’s Chambers, the St. Kitts and Nevis Bar Association, the Royal St. Christopher and Nevis Police Force, the Judiciary in the Federation and other stakeholders which began early in 2009.

Part III of the Act provides for competence and compellability of witnesses to give evidence. The competence of a witness speaks to whether that witness may legally give evidence in a court. A witness may not legally be able to give evidence for several reasons, including, that the witness may be a child who is so young that he or she cannot understand the questions that are asked, or give answers that can be understood.

Parts V and VI of the Act provide for the manner of giving evidence and admission and proof of certain statements in documents, respectively.

The Act provides for the admissibility of computer generated business records to reflect the technological advancements in the society. There are applicable conditions for accepting such documents but this, nevertheless represents a much-needed advancement in the legislation.

Parts VII and VIII provide for relevance of evidence and exceptions to the relevance rule, respectively and substantially abrogate the common law hearsay rule.

It allows for the admissibility of an out of court statement of a witness who is fearful, no longer available, who has disappeared or is deceased. Oral opinion evidence, among other things, would also be admissible once it complies with the relevant requirements under the Act.

Part VIII, Clause 84 (1) provides for the procedure for conducting confessions and permits the introduction of additional elements to the traditional conditions under which a confession is made by an accused person in criminal proceedings. These additional elements include the requirement that a confession may only be made in circumstances where such confession and the questions leading up to it may be recorded audio-visually or through the use of audio equipment as the case may be.

During the debate, Attorney General Nisbett highlighted Clause 88 of Part VIII which makes provision for evidence of silence.

“Clause 88 provides that even if a witness refuses to answer a question that is put to him or her, that that fact on its own would not be sufficient to support an unfavourable inference against that witness simply because he or she chose not to reply to a question. An “inference unfavourable to the party” means that the court would be entitled to impute some level of guilt or guilty knowledge on the part of the accused person or to find that the person had something to hide by choosing not to respond. Again this provision is intended to put the witness in such a case on a level playing field and to respect the right of a person to answer or not to answer a particular question,” the Attorney General explained.

“Clause 89 provides for the balanced application of the rule of law and fairness. The clause basically provides that if, as part of criminal proceedings, the prosecution seeks to introduce evidence of a confession that was obtained under questionable circumstances, so much so, that the admission of that confession would be unfair to the accused, then the court will have a discretion to refuse to admit that evidence or to refuse to admit that evidence to prove a particular fact.”

The new law also provides for identification evidence. The law as it now stands does not provide explicit directions in terms of summing-up directions to the jury where identification of an accused is in issue.

Part IX provides for rules of privilege, Part X provides for exclusion of evidence on grounds of policy in the public interest and Part XI provides for general provisions relating to Parts IX and X. Under Part X, the court may direct that evidence shall not be adduced where the public interest in admitting evidence that relates to matters of national security is outweighed by the public interest in preserving secrecy or confidentiality in relation to that evidence.

Part XII provides for exclusion of evidence in exercise of judicial discretion and empowers the Court to refuse to admit any evidence where the probative value of the evidence is outweighed by the danger of unfair prejudice or confusion resulting from such evidence being admitted.

Part XIII provides for proof of evidence in which proof shall not be required about matters of law or matters of common knowledge, among other things.

“Part XIV provides for the standard of proof of evidence in civil and criminal proceedings. The Bill provides that in civil proceedings a court shall find the case of a party proved if the court is satisfied that the case has been proven on the balance of probabilities. The balance of probabilities” is a legal standard applied in many jurisdictions for deciding the outcome of civil cases and requires that a dispute be decided in favour of the party whose claims are more likely to be true,” said Attorney General Nisbett during the debate last September.

He said Part XIV also provides that in criminal proceedings a court shall not find the case of the prosecution to be proven unless it is satisfied that it has been proven beyond reasonable doubt.

Part XV provides for warning the jury with regard to certain specific matters. One of the duties of the judge is to provide guidance to the jury as regards the application of the law. This includes cautioning the jury in cases where the evidence is unreliable.

Part XVI provides for electronic evidence and the provisions in that Part were taken from the OECS Electronic Evidence Model Bill and the HIPCAR Electronic Evidence Model Bill.

Part XVII provides for DNA evidence. Notwithstanding the provisions in this Act on DNA evidence it is intended that a comprehensive piece of legislation on DNA and DNA testing will soon be prepared to add to the provisions in this Part.

Part XVIII provides for miscellaneous matters including a provision empowering the Minister to make Rules and Regulations and a provision empowering the Minister to amend the Schedules to this Act by an Order. Section 166 provides that a defendant must give notice of the particulars of an alibi within the prescribed period or he must seek the leave of the court to adduce evidence in support of an alibi.

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