§ SECTION 147 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Evidence as to matters in writing

If it’s in a document, prove it by the document. Where a contract, grant or disposition is contained in a document, the adverse party may object to oral evidence of its contents until the document is produced (or secondary evidence is founded). But a person’s statement about a document, if relevant in itself, may be proved without it.

How to read Section 147

When the matter is written down, oral evidence of its contents can be blocked until the document itself is produced — but a relevant statement that merely refers to a document is not caught.

The question

A witness may be asked whether the contract, grant or disposition he speaks of was contained in a document.

The objection

If it was — or he is about to state a document’s contents that ought to be produced — the adverse party may object until the document is produced, or secondary-evidence facts are proved.

The carve-out

A witness may give oral evidence of others’ statements about a document if those statements are relevant facts in themselves.

The bare Act

The section in its own words — the rule, an Explanation, and an illustration.

Section 147 · verbatim

Any witness may be asked, while under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

Illustration

In short: this is the documentary-evidence rule applied at the witness box. Where the matter a witness is speaking to — a contract, grant or other disposition of property — is in fact contained in a document, the law prefers the document itself. So a witness may be asked whether it was in writing; and if it was, or if he is about to state the contents of a document that (in the court’s view) ought to be produced, the adverse party may object to that oral evidence — until the document is produced, or until the facts are proved that entitle the calling party to give secondary evidence of it. The Explanation marks the boundary: a witness may give oral evidence of statements made by other persons about the contents of documents, if those statements are in themselves relevant facts. The distinction is between proving the contents of the document (which needs the document) and proving that something was said — a relevant fact in its own right — which does not. The illustration shows the latter: A’s angry words referring to a letter are admissible to prove his motive, even though the letter is never produced.

→ This carries forward IEA 1872 § 144 — the contents of a document are proved by the document, not by oral account.

Glossary

contract, grant or disposition of property

A transaction that may be recorded in a document.

contained in a document

Set out in writing.

ought to be produced

The court considers the document itself should be brought.

object… until the document is produced

The adverse party can block oral proof of the contents until the document comes (or secondary evidence is founded).

secondary evidence

A copy or account, admissible once the conditions (e.g. loss) are proved.

statements about contents… relevant in themselves

A statement referring to a document, admissible as a relevant fact (e.g. motive) — not to prove the contents.

The picture

Proving what a document says needs the document; proving that words were spoken — a relevant fact — does not.

The section, part by part

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

The ruleThe carve-out

the ruleProve a document’s contents by the document

In one lineIf the matter was in a document, the adverse party may object to oral evidence of its contents until the document is produced — or the facts for secondary evidence are proved.

Any witness may be asked, while under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced,was the matter in writing?…if the matter is in a document the court thinks ought to be produced…

the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.→ the other side can block oral proof of the contents…until the document is produced, or the foundation for secondary evidence is laid.

ExampleA witness starts to describe what a lease said. The other side may object: the lease itself must be produced — unless it is shown to be lost or otherwise within the secondary-evidence conditions.

✗ Not thisThis does not bar every mention of a document. It bars oral proof of the contents where the document ought to be produced — not a statement offered for a different, relevant purpose.

the carve-outA relevant statement about a document is not proof of its contents

In one lineA witness may give oral evidence of others’ statements about the contents of documents if those statements are in themselves relevant facts — the document need not be produced.

Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.statements about documents, relevant in themselves…where the fact that a statement was made is itself relevant, it may be proved orally — the document is not needed.

The question is, whether A assaulted B. C deposes that he heard A say to D— “B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant, as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.A’s words show motive — not the letter’s contentsC may repeat what A said, because it evidences A’s motive, not the contents of B’s letter.

ExampleThe point of the illustration: the evidence is not led to prove what B’s letter said — it is led to prove that A harboured a grudge. That grudge is a relevant fact (motive), so the letter itself is beside the point.

✗ Not thisThe carve-out does not let a party smuggle in a document’s contents through hearsay. It admits a statement only where the statement is a relevant fact in itself — not as a substitute for producing the document.

Connected provisions

§ 146 · back

Leading questions

The previous examination rule — the form of questions; § 147 turns to proof of written matters.

§ 148 · next

Cross-examination as to previous statements in writing

Question a witness on his prior writing without showing it — but confront him with the parts before contradicting by it.

documents

Primary & secondary evidence

A document is proved by the original; secondary evidence is admissible only on proof of the conditions.

lineage

IEA 1872, § 144

Carried forward — the contents of a document are proved by the document, not by oral account.