A Handbook for Public Prosecutors

26. Documentary Evidence

Chapter 26 DOCUMENTARY EVIDENCE Definition “Documentary evidence” means all documents produced as evidence before the court, and “document” means any writing, typewriting, printing, photostat, photograph and every recording upon any tangible thing, any form of communication or representation by letters, figures, marks, or symbols or by more than one of these means, which may be used for the purpose of recording any matter provided that such recording is reasonably permanent and readable by site (see s. 3 TEA). Documents that are often produced in court are those of handwriting, printing, photostat, photograph and typewriting. Primary and secondary evidence Documentary evidence is divided into two categories, namely, primary and secondary evidence. As the rules regarding their admissibility differ, a public prosecutor should have some idea of those categories. The rule is that unless there are special circumstances, a document can only be proved by primary evidence. In other words, for a document to be admitted, it must be the document itself, that is, the original document (see s. 66 TEA). Secondary evidence which may be produced in the absence of primary evidence, in certain circumstances, include certified copies of originals ; copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and the copies compared with such copies; copies made from and compared with the original; counterparts of documents as against the parties who did not execute them; and oral accounts of the contents of a document given by some person (see s. 65 TEA). Admissibility of secondary evidence Secondary evidence is admissible, among others, in the following circumstances: 1. when the original is in the possession or power of the person against whom the document is sought to be proved, or of a person out of reach of, or not subject to the process of the court, or on failure of the possessor of the original to produce it after due notice; 2. when the contents of the original or the existence of it are proved to be admitted in writing by the person against whom it is intended to be proved; 3. when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any reason not arising from his own default or neglect, produce it in reasonable time; 4. when the original is of such a nature as not to be easily moveable; 5. when the original is a public document; 6. when the original is a document of which a certified copy is permitted by the Evidence Act or by any written law to be given in evidence; and 7. when the original consists of numerous accounts or other documents which cannot be conveniently examined in court, and the fact to be proved is the general result of the whole collection (see s. 67 TEA). It is for the party seeking to have secondary evidence admitted to prove that such secondary evidence falls under one of the foregoing categories. Such party must first adduce evidence to show the circumstances in which the primary evidence has been made unavailable before attempting to introduce the secondary evidence under any of the exceptions. Proof of execution of documents A document has little or no evidential value unless it goes some way to prove the case or provides the basis on which the evidence connecting the accused is founded; and in a number of cases involving documentary evidence the case turns on the question as to who executed a particular document. It is, therefore , the duty of a public prosecutor to lead evidence to prove the execution of a particular document he desires to be produced. If the case for the prosecution is that the accused executed the document or made it in any other way, the signing or making of such document must be proved (see s. 69 TEA). There are various ways in which the signature or handwriting of the person alleged to have executed a document may be proved. One such means is the evidence of a handwriting expert, and in other cases the opinion of nonexperts too may be used. Secondly, any signature or writing admitted or proved to the satisfaction of the court to have been written by the person con198 Part III Basic Principles of the Law of Evidence cerned, may be compared by a witness or by the court with the one which is to be proved, even if...