§ SECTION 141 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Judge to decide as to admissibility of evidence

The judge is the gatekeeper. Evidence comes in only if relevant — the judge may ask how a fact would be relevant, and admits it only if it is. Where admissibility depends on another fact, that foundation must be laid first (or promised); and the judge controls the order of proof.

How to read Section 141

The judge admits a fact only if it would be relevant; where its admissibility rests on another fact, that foundation comes first — and the judge decides the order of proof.

The relevancy gate

The judge may ask how the fact would be relevant if proved, and admits it only if he thinks it would be relevant — not otherwise.

Conditional admissibility

If a fact is admissible only on proof of another fact, that other fact must be proved first — unless the party undertakes to prove it and the court is satisfied.

Order of proof

Where one fact’s relevance depends on another, the judge has discretion which to take first.

The bare Act

The section in its own words — three sub-sections, and four illustrations.

Section 141 · verbatim

(1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.

(3) If the relevancy of one alleged fact depends upon another alleged 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.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 26. The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property. The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact A which is said to have been the cause or effect of a fact in issue. There are several intermediate facts B, C and D which must be shown to exist before the fact A can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

In short: the judge is the gatekeeper of admissibility, and the master-key is relevance. Under sub-section (1), when a party offers evidence, the judge may ask in what manner the alleged fact, if proved, would be relevant, and shall admit it only if he thinks it would be — and not otherwise. Sub-section (2) deals with conditional admissibility: some evidence is receivable only after a foundational fact is proved — and that foundation must come first, unless the party undertakes to prove it later and the court accepts the undertaking. Sub-section (3) gives the judge a discretion over the order of proof where one fact’s relevance depends on another: he may take the first before the second, or insist on the second first. The illustrations mark the two modes: (a) the death of the maker must be proved before his statement (relevant under § 26) is led, and (b) the loss of an original must be proved before a copy is produced — both mandatory foundations; while (c) (denial of possession vs identity of the stolen property) and (d) (a cause/effect fact vs its intermediate links) are left to the court’s discretion on sequence.

→ This carries forward IEA 1872 § 136 — the judge decides admissibility on the touchstone of relevance.

Glossary

admissibility

Whether evidence is legally allowed to be received.

relevant

Connected to a fact in issue in a way the law recognises.

admissible only upon proof of some other fact

Evidence that needs a foundational fact first — e.g. the loss of an original before a copy.

undertakes to give proof

The party’s promise to prove the foundation later, accepted by the court.

relevancy depends upon another fact

The fact only matters if a linked fact is established.

discretion (order of proof)

The judge’s choice which fact to take first.

The picture

Relevance is the gate; a needed foundation is laid first; and the judge sets the order where one fact leans on another.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The relevancy gate (1)Foundation & order (2)-(3)

relevancy gateEvidence gets in only if it would be relevant

In one lineThe judge may ask how a proposed fact would be relevant if proved, and admits it only if he thinks it would be — and not otherwise.

(1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.how is it relevant? — admit only if it isthe judge tests the manner of relevance of the fact if proved, and lets it in only when satisfied it would be relevant.

ExampleCounsel offers a fact; the judge asks how it bears on the case. If the answer discloses a recognised line of relevance, it is admitted; if it is a mere side-issue, it is refused.

✗ Not thisThe gate tests relevance, not weight. ‘If proved, would be relevant’ means admission can be provisional — whether the fact is ultimately proved or believed is a separate question.

foundation & orderLay the enabling fact first — or let the judge set the sequence

In one lineWhere evidence is admissible only on proof of another fact, that fact comes first (or on an accepted undertaking); where relevance merely depends on another fact, the judge chooses the order.

(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.(2) foundation before dependent evidencethe enabling fact must be proved first — unless the party undertakes to prove it and the court is satisfied.

(3) If the relevancy of one alleged fact depends upon another alleged 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.(3) judge’s discretion on sequencewhere relevance merely depends on another fact, the judge may take the first before the second, or require the second first.

ExampleTo prove a lost document by a copy, the loss of the original must be shown first (illustration b) — a true precondition. But whether the stolen property is identified before, or after, the accused’s denial of possession is proved is left to the court (illustration c).

✗ Not thisSub-section (2) is not a mere ordering preference — without the foundation (or an accepted undertaking), the dependent evidence is not admissible at all. Sub-section (3) is only about sequence, where both facts are otherwise admissible.

Connected provisions

§ 140 · back

Order of examination of witnesses

Sequence of witnesses follows procedure; § 141 turns to the admissibility of the evidence they give.

§ 26 · illustration (a)

Statements by persons who cannot be called

The statement of a person alleged to be dead — admissible only once the death is proved.

§ 142 · next

Examination of witnesses

The three stages defined — examination-in-chief, cross-examination and re-examination.

lineage

IEA 1872, § 136

Carried forward — the judge decides admissibility on the touchstone of relevance.