Article 6.18 Rules of Evidence

(a) Subject to the specific requirements of this Part 5, the judge in a criminal case may inform themselves in any way they think fit. The judge must give the parties the opportunity to make submissions in respect of any matter of which the judge informs themselves that is not part of the evidence adduced by a party in the case.

(b) Subject to this Article and any specific requirements of this Code, a party to a case to which this Code applies may, at the trial of that case, adduce evidence that is relevant to that case. Subject to Article 1.3 a party to a case to which this Code applies may at the trial of that case adduce evidence that is relevant to that case. Evidence is relevant if, were the court to accept it, the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. Whether or not evidence is relevant is determined by the court as a matter of fact.

(iii) This evidence is not admissible:

(A) hearsay – evidence that is hearsay, except that:

(1) evidence given by a person in another civil or criminal case in the ICT is not hearsay;

(2) documents and written communications (whether physical or electronic) are not hearsay; and

(3) the accused may adduce hearsay evidence to prove, directly or by implication, that the accused is of good character, and if the accused does so, the prosecutor may likewise adduce such evidence to prove, directly or by implication, that the accused is not of good character;

(B) opinion – evidence that is opinion, unless given by an independent expert witness accepted by the court as such in respect of a specific subject;

(C) privilege – evidence is not to be adduced if, on objection of the client, the court finds that adducing the evidence would result in the disclosure of confidential communications or documents (including advice) between a client and their lawyer or between two or more lawyers acting for a client; that privilege is lost if the client has disclosed or consented to the disclosure of such communications or documents to any other person other than as a result of duress or deception or under compulsion of law;

(D) religious confessions – a person who is or was (when the confession was made) a member of the clergy of a religious denomination may refuse to divulge that a confession was made or the contents of the confession, unless the confession was made for a criminal purpose;

(E) self-incrimination – except where Article 1.1(d)(2)(D) applies, a person is not obliged to give particular evidence on the ground that the evidence may tend to prove that the person has committed an offence;

(F) plea bargain – a matter disclosed by or on behalf of an accused in negotiations with the prosecutor for a plea bargain (whether or not the negotiations were successful);

(G) improperly or illegally obtained – evidence that was obtained improperly or in contravention of a law, unless the desirability of admitting that evidence outweighs the undesirability of admitting evidence so obtained;

(H) obtained in absence of a caution - evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if (i) the person was under arrest for an offence at the time, and (ii) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately. This paragraph does not apply so far as any ICT law compels the person to answer questions put by, or do things required by, the investigating official; and

(I) general discretion – if the court rules that the probative value of evidence, though relevant, is substantially outweighed by the danger that the evidence might be unfairly prejudicial, be misleading or confusing, or cause or result in an undue waste of time.

The onus of proving that evidence is inadmissible is on the party alleging it, to the standard of balance of probabilities.

(iv) Proof is not required of these matters:

(A) the existence or content of any law of the ICT or any published decisions of ICT courts;

(B) matters of common knowledge; and

(C) a document (but not necessarily the truth of the document) relating to the affairs of the ICT that is produced to the court by an officer of the ICT with an affirmation that the document is an official document of the ICT.

(v) In a case, evidence is not required to prove the existence of an agreed fact and evidence cannot be adduced to contradict or qualify an agreed fact, unless the court so orders. An “agreed fact” is a fact that the parties to the case have agreed is not to be disputed, where that agreement is recorded in a written agreement of the parties signed by each party or its advocate.

(vi) The court must determine what weight evidence adduced to the court is to be given.

(vii) Subject to any law concerning the legal capacity of minors and persons under a mental impairment:

(A) every person is competent to give evidence; and

(B) a person who is competent to give evidence is compellable to give that evidence.

(viii) Every witness in a criminal case shall be examined upon oath or, if the witness elects, by affirmation.

(ix) A person who acts as interpreter in a case (including for languages other than the language in which the case is conducted, or for deaf or mute persons) must either take an oath or make an affirmation before so acting.

(x) The court may make such orders as it considers just in relation to:

(A) the way in which witnesses are questioned or other evidence is adduced;

(B) the presence or behaviour of witnesses or any person in connection with giving evidence;

(C) the way voluminous or complex documents or other materials are adduced, or presented or used during a trial, including by the use of electronic case management.

(xi) Without prejudice to any other consequence under ICT law, failure to give honest evidence under oath or affirmation is and may be punished as perjury (which is hereby constituted a crime with a penalty not exceeding six months imprisonment or a fine of up to 100 currency units) or a contempt of court, as the court elects.