§ SECTION 27 · BSA 2023 · CHAPTER II — RELEVANCY OF FACTS

Relevancy of evidence given in an earlier proceeding, to prove the truth of its facts in a later one

When a witness who testified in an earlier case is now unavailable, his recorded evidence may prove the truth of what he said in a later proceeding — guarded by three safeguards: same parties, a chance to cross-examine, and the same questions.

How to read Section 27

One rule, three safeguards, one Explanation.

The rule

Earlier sworn evidence may prove the truth of its facts later — if the witness is now unavailable (dead, untraceable, incapable, kept away, or too costly).

Three safeguards

Same parties · the opponent had a right and opportunity to cross-examine · the questions substantially the same.

Explanation

A criminal trial or inquiry counts as a proceeding between prosecutor and accused.

The bare Act

The section in its own words — colour-keyed by what each phrase does.

Section 27 · verbatim

Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine and the questions in issue were substantially the same in the first as in the second proceeding.

Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

In short: the law would rather have the witness in the box — but if he is truly beyond reach, his earlier tested evidence is the next best thing. The three safeguards make sure the other side already had its fair chance to challenge it.

→ This carries forward IEA 1872 § 33 — the “former testimony” exception to the hearsay rule.

Glossary

judicial proceeding

A proceeding in which evidence is taken on oath before a court or a person authorised by law.

kept out of the way

A fifth trigger unique to this section — the witness is deliberately kept away by the adverse party.

representatives in interest

Those who stand in the shoes of the original parties — heirs, assignees — so the “same parties” test is still met.

right and opportunity to cross-examine

The opponent must have been able to test the witness — whether or not he actually did.

questions in issue

The matters actually disputed — they must be substantially the same in both proceedings.

subsequent proceeding

A later case (or a later stage of the same case) in which the earlier evidence is sought to be used.

The picture

Earlier testimony carried into a later proceeding — through three gates.

The section, part by part

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

The ruleThe three safeguardsThe Explanation

the ruleEarlier testimony, when the witness is gone

In one lineIf a witness who testified in an earlier case is now unavailable, that earlier testimony can be used to prove the truth of what he said in a later case.

Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it,the earlier evidencetestimony a witness gave in an earlier judicial proceeding (or before a legally-authorised person)…

is relevant for the purpose of proving,may prove…is relevant to prove…

in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding,in a later proceeding…in a later proceeding (or a later stage of the same one)…

the truth of the facts which it states,the truth of its contents…the truth of the facts that testimony stated…

when the witness is dead or cannot be found, or is incapable of giving evidence,trigger · gone / incapable…but only when the witness is now dead, untraceable, or unable to testify…

or is kept out of the way by the adverse party,⚠ or kept away by the opponent…or deliberately kept away by the other side…

or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:or too costly…or bringing him would need unreasonable delay or expense.

ExampleIn an earlier suit, W testified that he saw A sign the deed. Before the later related suit, W dies. W’s recorded earlier evidence may be used to prove that A signed — provided the three safeguards are met.

✗ Not thisThis is not for any old statement — it must be sworn evidence given in a judicial proceeding (or before a legally-authorised person), and the witness must be genuinely unavailable. A witness merely reluctant, but reachable, does not open the door.

the three safeguardsWhy the old evidence can be trusted

In one lineThe earlier evidence counts only if the same parties faced it, the opponent could cross-examine, and the questions were substantially the same.

Provided that the proceeding was between the same parties or their representatives in interest;safeguard 1 · same partiesthe earlier case must have been between the same parties (or those standing in their shoes)…

that the adverse party in the first proceeding had the right and opportunity to cross-examine⚠ safeguard 2 · cross-examination…the opponent must have had the right AND opportunity to cross-examine…

and the questions in issue were substantially the same in the first as in the second proceeding.safeguard 3 · same questions…and the questions in issue must be substantially the same in both.

ExampleA v B, an earlier suit on the same boundary; B cross-examined W. W is now dead. In the later A v B suit on that boundary, W’s evidence comes in — same parties, B had the chance to cross-examine, same question. But if the later suit were A v C (a stranger), safeguard 1 fails.

✗ Not thisThe opportunity to cross-examine is what matters, not whether it was used — a party who chose not to cross-examine cannot later object. But if he had no right or no opportunity, the evidence is out.

the ExplanationProsecutor and accused are the two “parties”

In one lineIn a criminal case, the prosecutor and the accused are treated as the “same parties” — so earlier trial or inquiry evidence can carry over across stages.

A criminal trial or inquiryin criminal casesa criminal trial or inquiry…

shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.= prosecutor vs accused…is treated as a proceeding between the prosecutor and the accused — so the “same parties” safeguard is satisfied across its stages.

ExampleAt the inquiry stage, W testified against the accused, who cross-examined him. W dies before trial. Because the inquiry is deemed a proceeding between prosecutor and accused (same parties), W’s earlier evidence may be used at the trial.

✗ Not thisThe Explanation only settles the “same parties” limb for criminal cases — the accused must still have had the right and opportunity to cross-examine, and the questions must be substantially the same. It is not a shortcut past the other safeguards.

Connected provisions

§ 26

Statements of the unavailable

§ 26 admits a dead person’s statements; § 27 admits their earlier sworn testimony — same unavailability triggers.

Ch X

Cross-examination

The safeguard turns on the right to cross-examine — governed by the examination-of-witnesses chapter.

§ 28 · next

Entries in books of account

The next provision in Chapter II.

lineage

IEA 1872, § 33

Carried forward — the “former testimony” exception to hearsay.