Report No. 185
We agree with para 23.9 of the 69th Report to add the words "other than in a criminal prosecution", after the words "in any proceeding".
In the 69th Report (see Chapter 24) after some discussion, it was pointed out in para 24.94 that the section is not happily worded (as stated by Woodroffe and Amir Ali) in so far as it implies a mandatory rule that the contents of documents can never be proved by oral evidence. In certain circumstances, the contents may be proved by oral evidence, when such evidence of their contents is admissible as secondary evidence (see section 63(5). However, it was said that it is like a minor point, not calling for amendment. We, however, think that the matter should be placed beyond controversy and we recommend that section 59 be redrafted as follows:
"59. Proof of facts by oral evidence.- (1) Subject to the provisions of sub-section (2), all facts may be proved by oral evidence.
(2) Save as otherwise expressly provided under this Act, the contents of documents or electronic records shall not be proved by oral evidence."