Evidence Act 2015

Link to law: http://www.palemene.ws/new/wp-content/uploads/01.Acts/Acts%202015/Evidence-Act-2015-Eng.pdf

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rangement of Provisions

PART 1
PRELIMINARY

1. Short title and commencement
2. Interpretation
3. Application and relationship
with other Acts
4. All relevant evidence
admissible unless excluded by
lawor Judge
5. Acts to be liberally construed
6. Co-conspirator’s rule, etc., not
affected
7. Evidence may be
provisionally admitted
8. Evidence given to establish
admissibility

PART 2
ADMISSIBILITY

Division 1 - Admissibility

Subdivision A - Hearsay evidence


9. Definition
10. General rule as to
admissibility of hearsay
11. Admissibility of hearsay in
business records
12. Hearsay statements in
documents required for
applications or pleadings in
civil proceedings
13. When defendant’s hearsay
statement not admissible

Subdivision B - Opinion
and expert evidence

14. Opinion rule
15. Admissibility of a statement
of opinion
16. Admissibility of expert
opinion evidence
17. Expert’s conduct in civil
proceedings

Division 2 - Defendants’
statements, improperly
obtained evidence, etc.

18. Defendants’ statements
offered by prosecution
19. Statements may beedited
20. Improperly obtained evidence
21. Exclusion of statements
influenced by oppression
22. Confession after promise,
threat, or other inducement

2 Evidence 2015, No. 47
23. Defendant’s silence before or
at trial
24. Admissions in civil
proceedings

Division 3 - Previous
consistent statements

25. Previous consistent statements

Division 4 - Veracity

26. Application of veracity rules
27. Evidence as to veracity
28. Evidence of a defendant’s
veracity
29. Evidence of a co-defendant’s
veracity

Division 5 - Propensity

30. Propensity rule
31. Propensity evidence about
defendants
32. Propensity evidence about co-
defendants
33. Propensity evidence offered
by prosecution
34. Evidence of sexual experience
of complainants in trials of
sexual cases

Division 6 - Identification evidence

35. Admissibility of visual
identification evidence

Division 7 - Evidence of
convictions and civil judgments

36. Application
37. Conviction as evidence in
civil proceedings
38. Conviction as evidence in
defamation proceedings
39. Conviction as evidence in
criminal proceedings
40. Civil judgment as evidence in
criminal or civil proceedings

PART 3
PRIVILEGE AND
CONFIDENTIALITY

Division 1 - General

41. Definition
42. Order for protection of
privileged material, etc.

Division 2 - Privilege

43. Effect and protection of
privilege
44. Privilege for communications
with legal advisers
45. Privilege and solicitors’ trust
accounts
46. Privilege for preparatory
materials for proceedings
47. Privilege for settlement
negotiations or mediation
48. Privilege for communications
with ministers of religion
49. Privilege in criminal
proceedings for information
obtained by medical
practitioners or a clinical
psychologist
50. Privilege against self-
incrimination
51. Discretion as to incrimination
under foreign law

2015, No. 47 Evidence 3
52. Claiming privilege against
self-incrimination in court
proceedings
53. Replacement of privilege with
respect to disclosure
requirements in civil
proceedings
54. Informers
55. Waivers
56. Joint and successive interests
in privileged material
57. Protection of information
relating to a matter of State
58. Powers of Judge to
disallow privilege

Division 3 - Confidentiality

59. Discretion to exclude
information given or obtained
in confidence
60. Evidence of parties and their
husbands and wives in civil
proceedings
61. Evidence of defendants in
criminal proceedings and their
husbands and wives

PART 4
TRIAL PROCESS

Division 1 - General

62. Competence and
compellability
63. Competence of Judges,
assessors and counsel
64. Compellability of defendants
and co-defendants in criminal
proceedings
65. Compellability of Head of
State, Judges, etc.
66. Evidence of assessors
deliberations

Division 2 - Oaths or affirmations

67. Witness to give evidence on
oath or affirmation
68. Interpreter to take oath or
make affirmation

Division 3 - Support persons,
communication assistance
and witness address

69. Support persons and
communication assistance
70. Witness’s address may not be
subject to question

Division 4 - Questioning witnesses

71. Ordinary way of giving
evidence
72. Examination of witnesses

Division 5 - Judge may
disallow questions

73. Unacceptable questions
74. Leading questions in
examination-in-chief and re-
examination
75. Use of documents in
questioning witness or
refreshing memory
76. Duty to put questions in cross-
examination
77. Cross-examination may be
limited
78. Cross-examination as to credit
79. Hostile witness
80. When a party in person may
not cross-examine witness
81. Cross-examination on
previous statements
82. Re-examination
83. Evidence following closure of
party’s case
84. Judge may recall witness
85. Questioning of witnesses by
Judge
4 Evidence 2015, No. 47
Division 6 - Directions as to
the manner in which
evidence is given

86. Directions as to alternative
ways of giving evidence
87. Chambers hearing before
directions for alternative ways
of giving evidence
88. Alternative ways of giving
evidence
89. Video recorded evidence
90. Directions when child
complainant gives evidence

Division 7 - Evidence from
undercover police officers

91. Undercover police officers
92. Effect of Commissioner’s
certificate

Division 8 - Witness
anonymity orders

93. Anonymity order may be
made before trial
94. Effect of pre-trial anonymity
order
95. Orders and directions
necessary to preserve
anonymity
96. Variation or discharge of
anonymity order
97. Offence of breaching
anonymity order

Division 9 - Corroboration
and judicial directions

98. Corroboration generally not
necessary
99. Judge may direct assessors as
to reliability of evidence
100. Directions when evidence
given under certain
conditions
101. Directions as to lies told by
defendant
102. Directions as to evidence
given by a childand judicial
warning about identification
evidence
103. Failure or delay in
complaining in sexual cases

Division 10 - Uncontroverted facts
and reliable public documents

104. Asserted fact may be
accepted without evidence
105. Admission of reliable
published documents
106. Authenticity of public
documents
107. Evidence of convictions,
acquittals and proceedings
108. Proof of conviction from
fingerprints
109. Samoan and foreign official
documents
110. Evidence of foreign law
111. Notification in official
document of doing any act

Division 11 - Evidence taken in
Samoa for use in overseas criminal
proceeding

112. Definition
113. Examination of witness at
request of overseas court
114. Powers may be exercised by
Registrar
115. Evidence in support of
application
116. Protection of witness
117. Requesting authority may
be asked to pay expenses

Division 12 - Evidence
by video link
2015, No. 47 Evidence 5
118. Evidence and submissions
by video link and telephone
conference from another
country
119. Powers of courts
120. Evidence and submissions
by video link
121. Evidence and submissions
by telephone

PART 5
JUDICIAL NOTICE AND
DOCUMENTARY
EVIDENCE

122. Judicial notice of
enactments and court
judgments
123. Certificates for international
affairs
124. Evidence produced by
processes, machines and
other devices
125. Documents produced by
processes, machines and
other devices in the course
of business
126. Evidence of certain acts of
lawyers and notaries public
127. Attestation of documents
128. Seals and signatures
129. Documents 20 years old
produced from proper
custody
130. Evidence of official records
131. Evidence of certain public
documents
132. Official statistics
133. Documents may be
impounded

PART 6
MISCELLANEOUS

134. Rules
135. Regulations
136. Repeal, transitional and
saving provisions

__________

2015, No. 47

AN ACT to
(a) help secure the just determination of proceedings
by -
(i) providing facts to be established by
the application of logical rules; and
(ii) promoting fairness to parties and
witnesses; and
(iii) protecting rights of confidentiality
and other important public interests; and
(iv) avoiding unjustifiable expense and
delay; and


6 Evidence 2015, No. 47

(v) enhancing access to the law of
evidence and understanding of the law of
evidence; and
(b) provide for other related purposes.
[05th
November 2015]

BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:

PART 1
PRELIMINARY

1. Short title and commencement-(1) This Act may be cited
as the Evidence Act 2015.
(2) This Act commences on a date or dates nominated by the
Minister.
(3) Despite subsection (2), the Minister may defer the
commencement of Division 12 of Part 4 until such time the
necessary facilities and equipment are available to the courts.

2. Interpretation-(1) In this Act, unless the context otherwise
requires:
“admission”, in relation to a civil proceeding, means a
statement that is:
(a) made by a person who is or becomes a party to the
proceeding; and
(b) adverse to the person’s interest in the outcome of the
proceeding.
“child” means a person under the age of 18 years;
“child complainant”, in relation to any proceeding, means a
complainant who is a child when the proceeding
commences;
“communication assistance” means oral or written
interpretation of a language, written assistance,
technological assistance, and any other assistance that
enables or facilitates communication with a person who:


2015, No. 47 Evidence 7

(a) does not have sufficient proficiency in the Samoan or
English language to -
(i) understand court proceedings conducted
in Samoan or English; or
(ii) give evidence in Samoan or English; or
(b) has a communication disability.
“conviction” means:
(a) in sections 37 to 39, a subsisting conviction entered
before or after the commencement of this Act
by -
(i) a court; or
(ii) a court established bythe law of a
country; and
(b) in sections 107 and 108, a subsisting conviction
entered before or after the commencement of this
Act by a Samoan or foreign court.
“copy”, in relation to a document, includes a copy of a copy
and a copy that is not an exact copy of the document but is
identical to the document in all relevant respects;
“country” means a country (other than Samoa) which is a
member of the Pacific Islands Forum or a prescribed
country and includes a State, territory, province, or other
part of the country;
“court” means the Court of Appeal, the Supreme Court, a
District Court, Family Court, Youth Court, or any other
subordinate court established pursuant to Article 74 of the
Constitution, but does not include the Land and Titles
Court;
“document” means:
(a) any material, whether or not it is signed or otherwise
authenticated, that bears symbols (including words
and figures), images, or sounds or from which
symbols, images, or sounds can be derived, and
includes -
(i) a label, marking, or other writing which
identifies or describes a thing of which it forms
part, or to which it is attached;
(ii) a book, map, plan, graph, or drawing;


8 Evidence 2015, No. 47

(iii) a photograph, film, or negative; and
(b) information electronically recorded or stored, and
information derived from that information.
“domestic violence” means:
(a) physical abuse;
(b) sexual abuse;
(c) emotional, verbal and psychological abuse;
(d) intimidation;
(e) harassment;
(f) stalking;
(g) any other controlling or abusive behaviour towards a
complainant where such conduct harms, or may
cause imminent harm to, the safety, health or
wellbeing of the complainant.
“duty” includes:
(a) duty imposed by law or arising out under a contract; or
(b) duty recognised in carrying out of any business
practice or of any professional duty.
“enforcement agency” means the Police or a body or
organisation that has a statutory responsibility for the
enforcement of an enactment;
“expert” means a person who has specialised knowledge or
skill based on training, study, or experience;
“expert evidence” means the evidence of an expert based on
the specialised knowledge or skill of that expert and
includes evidence given in the form of an opinion;
“give evidence” means to give evidence in a proceeding:
(a) in the ordinary way, as described insection 71; or
(b) in an alternative way, as provided for by section 88; or
(c) in any other way provided for under this Act or any
other enactment;
“Government” means the Government of Samoa;
“harassment” means engaging in a pattern of conduct that
induces the fear of harm to a complainant including:
(a) repeatedly watching or loitering outside of or near the
building or place where the complainant resides,
works, carries on business, studies or happens to
be;


2015, No. 47 Evidence 9

(b) repeatedly making calls or texts by telephone, mobile
phone, internet (skype) or by any other
technological means, or inducing another person to
make calls or texts by telephone or mobile phone
to the complainant, whether or not conversation
ensues;
(c) repeatedly sending, delivering or causing the delivery
of radio messages, letters, telegrams, packages,
facsimiles, electronic mail or other objects to the
complainant.
“hearsay rule” means the rule described in Subdivision A of
Division 1 of Part 2;
“hearsay statement” means a statement that:
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the
truth of its contents;
“hostile”, in relation to a witness, means that the witness:
(a) exhibits, or appears to exhibit, a lack of veracity when
giving evidence unfavourable to the party who
called the witness on a matter about which the
witness may reasonably be supposed to have
knowledge; or
(b) gives evidence that is inconsistent with a statement
made by that witness in a manner that exhibits, or
appears to exhibit, an intention to be unhelpful to
the party who called the witness; or
(c) refuses to answer questions or deliberately withholds
evidence.
“incriminate” means to provide information that is reasonably
likely to lead to, or increase the likelihood of, the
successful prosecution of a person for a criminal offence;
“international organisation” means an organisation of States
or governments of States or an organ or agency of an
organisation of that kind, and includes the Commonwealth
Secretariat;
“interpreter” includes a person who provides communication
assistance to a defendant or a witness;


10 Evidence 2015, No. 47

“intimidation” means uttering or conveying a threat, or
causing a complainant to receive a threat, which induces
fear;
“Judge” includes a Fa’amasino Fesoasoani or a tribunal;
“lawyer”or “counsel” or “solicitor” means a person admitted
as a Barrister and Solicitor of the Supreme Court under the
Lawyers and Legal Practice Act 2014;
“leading question” means a question that directly or indirectly
suggests a particular answer to the question;
“offer evidence” includes eliciting evidence by cross-
examining a witness called by another party;
“opinion”, in relation to a statement offered in evidence,
means a statement of opinion that tends to prove or
disprove a fact;
“party” means a party to a proceeding;
“police officer” means a sworn member of the Police;
“previous statement” means a statement made by a witness at
any time other than at the hearing at which the witness is
giving evidence;
“proceeding” means:
(a) a proceeding conducted by a court; and
(b) any interlocutory or other application to a court
connected with that proceeding, including judicial
settlement conference.
“propensity rule” means the rule described in section 30;
“public document” means a document that:
(a) forms part of the official records of the legislative,
executive, or judicial branch of the Government of
Samoa or of a foreign country or of a person or
body holding a public office or exercising a
function of a public nature under the law of Samoa
or a foreign country; or
(b) forms part of the official records of an international
organisation; or
(c) is being kept by, or on behalf of, a branch of any
government, person, body, or organisation referred
to in paragraph (a) or (b), for the purpose of
carrying out the official functions of that
government, person, body, or organisation.

2015, No. 47 Evidence 11

“Registrar” means a Registrar of a court, and includes an
Assistant Registrar;
“seal” includes a stamp;
“self-incrimination” means the provision by a person of
information that could reasonably lead to, or increase the
likelihood of, the prosecution of that person for a criminal
offence;
“sexual case” means a criminal proceeding in which a person
is charged with, or is waiting to be sentenced or otherwise
dealt with for:
(a) an offence against any of the provisions of Part VII of
the Crimes Act 2013; or
(b) any other offence against the person of a sexual nature.
“stalking” means repeatedly following, pursuing, or accosting
the complainant;
“statement” means:
(a) a spoken or written assertion,in any form or
manner,(including any sketch) by a person of any
matter; or
(b) non-verbal conduct of a person that is intended by that
person as an assertion of any matter.
“telephone conference” means a telephone call in which the
calling party wishes to have one or more called partyto
listen in to the audio portion of the call;
“veracity” means the tendency of a person to refrain from
lying;
“video link” means anyform oftechnology to receive and
transmit audio-video signals by users at different
locations, for communication between persons;
“video record” means a recording on any medium from which
a moving image may be produced by any means; and
includes an accompanying sound track;
“visual identification evidence” means evidence that is:
(a) an assertion by a person, based wholly or partly on
what that person saw, to the effect that a defendant
was present at or near a place where an act
constituting direct or circumstantial evidence of the
commission of an offence was done at, or about,
the time the act was done; or

12 Evidence 2015, No. 47

(b) an account (whether oral or in writing) of an assertion
of the kind described in paragraph (a).
“witness” means a person who gives evidence and is able to
be cross-examined in a proceeding.
(2) A hearing commences when, at the substantive hearing of
the issues that are the subject of proceedings, the party having the
right to begin commences to state that party’s case or, having
waived the right to make an opening address, calls that party’s
first witness.
(3) Without limiting the Acts Interpretation Act 1974, this
Act:
(a) is to be interpreted in a way that promotes its purpose
and principles; and
(b) is not subject to any rule that statutes in derogation of
the common law should be strictly construed; but
(c) may be interpreted having regard to the common law,
but only to the extent that the common law is
consistent with -
(i) its provisions; and
(ii) the promotion of its purpose and its
principles; and
(iii) the application of the rule in
section 5.

3. Application and relationship with other Acts-(1) This
Act binds the Government.
(2) An enactment prevails if there is an inconsistency between
the enactment and this Act, unless this Act provides otherwise.
(3) Despite subsection (2), this Act prevails if there is any
inconsistency between the rules of court and this Act.

4. All relevant evidence admissible unless excluded by law
or Judge-(1) Evidence that is not relevant is not admissible in a
proceeding.
(2) All relevant evidence is admissible in a proceeding except
evidence that is:
(a) inadmissible under this Act or any other enactment; or
(b) excluded under this Act or any other enactment.


2015, No. 47 Evidence 13

(3) Evidence is relevant in a proceeding if it has a tendency to
prove or disprove anything that is of consequence to the
determination of the proceeding.
(4) In any proceeding, the Judge must exclude evidence if its
probativevalue is outweighed by the risk that the evidence will:
(a) have an unfairly prejudicial effect on the proceeding;
or
(b) needlessly prolong the proceeding.
(5) In determining whether the probative value of evidence is
outweighed by the risk that the evidence will have an unfairly
prejudicial effect on a criminal proceeding, the Judge must take
into account the right of the defendant to offer an effective
defence.

5. Acts to be liberally construed - If there is no provision in
this Act or any other enactment regulating the admission of any
particular evidence or the relevant provisions deal with that
question only in part, decisions about the admission of that
evidence must be made having regard to:
(a) the purpose and the principles set out in the long title;
and
(b) the common law,to the extent that the common law is
consistent with the promotion of that purpose and
those principles in the long title and is relevant to
the decisions to be taken.

6. Co-conspirator’s rule, etc., not affected - Nothing in this
Act affects the rules of the common law relating to:
(a) the admissibility of statements of co-conspirators or
persons involved in joint criminal enterprises; or
(b) the admissibility of a defendant’s statement against a
co-defendant in circumstances where the
defendant’s statement is accepted by the co-
defendant.

7. Evidence may be provisionally admitted - If a question
arises concerning the admissibility of any evidence, the Judge
may admit that evidence subject to evidence being later offered
which establishes its admissibility.

14 Evidence 2015, No. 47

8. Evidence given to establish admissibility - Evidence
given by a witness to prove the facts necessary for deciding
whether some other evidence should be admitted in a proceeding:
(a) is admissible in the proceeding if the evidence given by
the witness is inconsistent with the witness’s
subsequent testimony in the proceeding (whether
or not the other evidence is admitted);
(b) is not otherwise admissible in the proceeding.

PART 2
ADMISSIBILITY

Division 1 - Admissibility

Subdivision A - Hearsay evidence

9. Definition-(1) In this Division:
“business”:
(a) means any business, profession, trade, manufacture,
occupation, or calling of any kind; and
(b) includes the activities of a Ministry, local authority,
public body, body corporate, organisation, or
society.
“business record” means a document:
(a) that is made -
(i) to comply with a duty; or
(ii) in the course of a business, and as a
record or part of a record of that business;
and
(b) that is made from information supplied directly or
indirectly by a person who had, or may reasonably
be supposed by the court to have had, personal
knowledge of the matters dealt with in the
information he or she supplied.
“circumstances”, in relation to a statement by a person who is
not a witness, includes:
(a) the nature of the statement; and
(b) the contents of the statement; and


2015, No. 47 Evidence 15

(c) the circumstances that relate to the making of the
statement; and
(d) any circumstances that relate to the veracity of the
person; and
(e) any circumstances that relate to the accuracy of the
observation of the person.
(2) For the purpose of this Division, a person is unavailable as
a witness in a proceeding if the person:
(a) is dead; or
(b) is outside Samoa and it is not reasonably practicable
for the person to be a witness; or
(c) is unfit to be a witness because of age or physical or
mental condition; or
(d) cannot with reasonable diligence be identified or
found; or
(e) is not compellable to give evidence.
(3) Subsection (2) does not apply to a person whose statement
is sought to be offered in evidence by a party who has caused the
person to be unavailable in order to prevent the person from
attending or giving evidence.
(4) A hearsay statement is not admissible except:
(a) as provided by this Division or by the provisions of
any other enactment; or
(b) in cases where -
(i) this Act provides that this Division does
not apply; and
(ii) the hearsay statement is relevant and
not otherwise inadmissible under this Act.

10. General rule as to admissibility of hearsay-(1) Subject
to subsections (2) to (4) and section 12, a hearsay statement is
admissible in any proceeding if:
(a) the circumstances relating to the statement provide
reasonable assurance that the statement is reliable;
and
(b) either -
(i) the maker of the statement is unavailable
as a witness; or


16 Evidence 2015, No. 47

(ii) the Judge considers that undue expense
or delay would be caused if the maker of the
statement were required to be a witness.
(2) A party intending to offer hearsay evidence under
this Subdivision must, within sufficient time before the
hearing, provide the court and any other party with notice
of the party’s intention to offer the hearsay statement in
evidence.
(3) In criminal proceedings, the notice under subsection (2)
must:
(a) state the name of the maker of the statement, if known,
(subject to any witness anonymity order under
Division 8 of Part 4);
(b) if the hearsay statement was made in writing, be
accompanied by a copy of the statement in which
the statement is contained;
(c) if the hearsay statement was made orally, state the
content of the hearsay statement;
(d) if section 10(1)(a) is relied on, state the circumstances
relating to the statement that provide reasonable
assurance that the statement is reliable;
(e) if section 11 is relied on, state why the document is a
business record;
(f) if section 10(1)(b)(i) or 11(a) is relied on, state why the
person is unavailable as a witness;
(g) if section 10(1)(b)(ii) or 11(c) is relied on, state why
undue expense or delay would be caused if the
person were required to be a witness.
(4) The Judge may dispense with the requirements of
subsection (2) if:
(a) having regard to the nature and contents of the hearsay
statement, no party is substantially prejudiced by
the failure to comply with the requirements; or
(b) compliance was not reasonably practicable in the
circumstances; or
(c) the interests of justice so require.


2015, No. 47 Evidence 17

11. Admissibility of hearsay in business records - Subject
to sections 10(2) and 12, a hearsay statement contained in a
business record is admissible if:
(a) the person who supplied the information used for the
composition of the record is unavailable as a
witness; or
(b) the Judge considers no useful purpose would be served
by requiring that person to be a witness as that
person cannot reasonably be expected (having
regard to the time that has elapsed since the person
supplied the information and to all the other
circumstances of the case) to recollect the matters
dealt with in the information the person supplied;
or
(c) the Judge considers that undue expense or delay would
be caused if that person were required to be a
witness.

12. Hearsay statements in documents required for
applications or pleadings in civil proceedings-(1) In a civil
proceeding, a hearsay statement in an affidavit made to support or
oppose an application is admissible for the purposes of that
application if, and to the extent that, the applicable rules of court
require or permit a statement of that kind to be made in the
affidavit.
(2) In a civil proceeding, a hearsay statement in a document
by which documents are discovered or interrogatories are
answered is admissible in that proceeding if, and to the extent
that, the applicable rules of court require or permit the making of
a statement of that kind.

13. When defendant’s hearsay statement not admissible-
(1) If a defendant in a criminal proceeding does not give
evidence, the defendant may not offer his or her own hearsay
statement in evidence in the proceeding.
(2) This section does not limit the previous consistent
statement rule.


18 Evidence 2015, No. 47

Subdivision B - Opinion and expert evidence

14. Opinion rule - A statement of an opinion is not
admissible in a proceeding, except as provided by section 15 and
16.

15. Admissibility of a statement of opinion - A witness may
state an opinion in evidence in a proceeding if that opinion is
necessary to enable the witness to communicate, or the fact-finder
to understand, what the witness saw, heard, or otherwise
perceived.

16. Admissibility of expert opinion evidence-(1) An opinion
by an expert that is part of expert evidence offered in a
proceeding is admissible if the fact-finder is likely to obtain
substantial help from the opinion in understanding other evidence
in the proceeding or in ascertaining any fact that is of
consequence to the determination of the proceeding.
(2) An opinion by an expert is not inadmissible only because
it is about an ultimate issue to be determined in a proceeding;
orincidentally refers to a matter of common knowledge.
(3) Subject to subsection (4), if an opinion by an expert is
based on the existence of a matter or state of affairs that is outside
the general body of knowledge that makes up the expertise of the
expert, the opinion may be relied on by the fact-finder only if that
matter or state of affairs is or will be proved or judicially noticed
in the proceeding.
(4) If expert evidence about the sanity of a person is based in
whole or in part on a statement that the person made to the expert
about the person’s state of mind, then:
(a) the statement of the person is admissible to establish
the facts on which the expert’s opinion is based;
and
(b) neither the hearsay rule nor the previous consistent
statement rule applies to evidence of the statement
made by the person.



2015, No. 47 Evidence 19

17. Expert’s conduct in civil proceedings-(1) In a civil
proceeding, experts are to conduct themselves in preparing and
giving expert evidence in accordance with the applicable rules of
court relating to the conduct of experts.
(2) The expert evidence of an expert who has not complied
with rules of court of the kind specified in subsection (1) may be
given only with the permission of the Judge.

Division 2 - Defendants’ statements,
improperly obtained evidence, etc.

18. Defendants’ statements offered by prosecution-(1)
Evidence offered by the prosecution in a criminal proceeding of a
statement made by a defendant is admissible against that
defendant, but not against a co-defendant in the proceeding.
(2) However, evidence offered under subsection (1) is not
admissible against that defendant if it is excluded under section 20
or 21.
(3) Divisions 1 and 3 do not apply to evidence offered under
subsection (1).
(4) This section is subject to section 6.

19. Statements maybe edited-(1) If a statement is
determined by the Judge to be inadmissible in part in a
proceeding, a party who wishes to use an admissible part of the
statement may, subject to the direction of the Judge, edit the
statement by excluding any part of it that is inadmissible.
(2) A party may not edit a statement under subsection (1)
unless, in the opinion of the Judge, the inadmissible parts of the
statement can be excluded without obscuring or confusing the
meaning of the admissible part of the statement.

20. Improperly obtained evidence-(1) This section applies
to a criminal proceeding in which the prosecution offers or
proposes to offer evidence if:
(a) the defendant or, if applicable, a co-defendant against
whom the evidence is offered raises, on the basis
of an evidential foundation, the issue of whether
the evidence was improperly obtained and informs

20 Evidence 2015, No. 47

the prosecution of the grounds for raising the
issue; or
(b) the Judge raises the issue of whether the evidence
wasimproperly obtained and informs the
prosecution of thegrounds for raising the issue.
(2) The Judge must:
(a) find, on the balance of probabilities, whether or not the
evidence was improperly obtained; and
(b) if the Judge finds that the evidence has been
improperly obtained, determine whether or not the
exclusion of the evidence is proportionate to the
impropriety by means of a balancing process that
gives appropriate weight to the impropriety and
also takes proper account of the need for an
effective and credible system of justice.
(3) For the purposes of subsection (2), the Judge may, among
any other matters, have regard to the following:
(a) the importance of any right breached by the
impropriety and the seriousness of the intrusion on
it;
(b) the nature of the impropriety, in particular, whether it
was deliberate, reckless, or done in bad faith;
(c) the nature and quality of the improperly obtained
evidence;
(d) the seriousness of the offence with which the
defendant is charged;
(e) whether there were any other investigatory techniques
not involving any breach of the rights that were
known to be available but were not used;
(f) whether there are alternative remedies to the exclusion
of evidence which can adequately provide redress
to the defendant;
(g) whether the impropriety was necessary to avoid
apprehended physical danger to the police or
others;
(h) whether the impropriety arose from circumstances of
danger or urgency;


2015, No. 47 Evidence 21

(i) whether the impropriety arose from a genuine
misunderstanding, accidental or unintentional
infringement.
(4) The Judge must exclude any improperly obtained evidence
if, in accordance with subsection (2), the Judge determines that its
exclusion is proportionate to the impropriety.
(5) For the purposes of this section, evidence is
improperlyobtained if it is obtained:
(a) in consequence of a breach of the rights to consult a
lawyer or the right to remain silent and not to make
a statement; or
(b) in consequence of a statement made by a defendant
that is or would be inadmissible if it were offered
in evidence by the prosecution; or
(c) unfairly.
(6) For the purposes of this section, evidence is notimproperly
obtained if the person waived his or her rightsto consult a lawyer
or to be informed of the right to remain silent and not to make a
statement.
(7) Without limiting subsection (5)(c), in deciding whether a
statement obtained by a police officer has been obtained unfairly,
the Judge must take into account any directions on the subject
issued under this subsection by the Chief Justice or rules of the
court.

21. Exclusion of statements influenced by oppression-(1)
This section applies to a criminal proceeding in which the
prosecution offers or proposes to offer a statement of a defendant
if:
(a) the defendant whom the statement is offered raises, on
the basis of an evidential foundation, the likelihood
that the statement was influenced by oppression,
and informs the Judge and the prosecution of the
grounds for raising the issue; or
(b) the Judge raises the issue of whether the statement was
influenced by oppression and informs the
prosecution of the grounds for raising the issue.


22 Evidence 2015, No. 47

(2) The Judge must exclude the statement (whether or not the
statement is true) unless satisfied beyond reasonable doubt that
the statement was not influenced by oppression.
(3) Without limiting the matters that a Judge may take into
account for the purpose of applying subsection (2), the Judge
must, in each case, take into account any of the following matters
that are relevant to the case:
(a) any pertinent physical condition of the defendant when
the statement was made (whether apparent or not);
(b) any pertinent characteristics of the defendant including
any mental, intellectual, or physical disability to
which the defendant is subject (whether apparent
or not);
(c) the nature of any threat, promise, or representation
made to the defendant or any other person.
(4) In this section, “oppression”means the deliberate exercise
of violence on or the inhuman or degrading treatment of the
defendant by a police officer.

22. Confession after promise, threat, or other inducement - Without limiting sections 20 and 21, a Judge may not reject a
confession tendered in evidence in any criminal proceeding on
the ground that a promise or threat or any other inducement (not
being the exercise of violence or force) has been held out to or
exercised upon the person confessing, if the Judge is satisfied that
the means by which the confession was obtained were not in fact
likely to cause an untrue admission of guilt to be made.

23. Defendant’ssilence before or at trial-(1) This section
applies to a criminal proceeding in which it appearsthat the
defendant failed:
(a) to answer a question put, or respond to a
statementmade, to the defendant in the course of
investigativequestioning before the trial; or
(b) to disclose a defence before trial.
(2) If subsection (1) applies:
(a) no person may invite the fact-finder to draw an
inferencethat the defendant is guilty from a failure
of thekind described in subsection (1); and

2015, No. 47 Evidence 23

(b) if the proceeding is with assessors, the Judge must
direct them that they may not draw that inference
from a failureof that kind.
(3) This section does not apply if the fact that the defendant
did not answer a question put, or respond to a statement made,
before the trial is a fact required to be proved in the proceeding.
(4) In a criminal proceeding, no person other than the
defendantor the defendant’s counsel or the Judge may comment
on thefact that the defendant did not give evidence at his or her
trial.

24. Admissions in civil proceedings-(1) Divisions 1 and 3 do
not apply to evidence of an admission offered in a civil
proceeding that is:
(a) given orally by a person who saw, heard, or otherwise
perceived the admission being made; or
(b) contained in a document.
(2) Evidence of an admission that is a hearsay statement may
not be used in respect of the case of a third party unless:
(a) the circumstances relating to the making of the
admission provide reasonable assurance that the
admission is reliable; or
(b) the third party consents.
(3) In this section, “third party” means a party to the
proceeding concerned, other than the party who:
(a) made the admission; or
(b) offered the evidence.

Division 3 - Previous consistent statements

25. Previous consistent statements-(1) A previous statement
of a witness that is consistent with the witness’s evidence is not
admissible unless subsection (2) or (3) applies to the statement.
(2) A previous statement of a witness that is consistent with
the witness’s evidence is admissible to the extent that the
statement is necessary to respond to a challenge to the witness’s
veracity or accuracy, based on a previous inconsistent statement
of the witness or on a claim of recent invention on the part of the
witness.

24 Evidence 2015, No. 47

(3) A previous statement of a witness that is consistent with
the witness’s evidence is admissible if:
(a) the circumstances relating to the statement provide
reasonable assurance that the statement is reliable;
and
(b) the statement provides the court with information that
the witness is unable to recall.

Division 4 - Veracity

26. Application of veracity rules-(1) This Division does not
apply to evidence about a person’s veracity if that veracity is an
ingredient of the claim in a civil proceeding or one of the elements
of the offence for which a person is being tried in a criminal
proceeding.
(2) Subject to section 34, this Division does not apply so far as
a proceeding relates to bail or sentencing.

27. Evidence as to veracity-(1) A party may not offer
evidence in a civil or criminal proceeding about a person’s
veracity unless the evidence is substantially helpful in assessing
that person’s veracity.
(2) In a criminal proceeding, evidence about a defendant’s
veracity must also comply with section 28 or, as the case requires,
section 29.
(3) In deciding, for the purposes of subsection (1), whether or
not evidence proposed to be offered about the veracity of a person
is substantially helpful, the Judge may consider, among any other
matters, whether the proposed evidence tends to show one (1) or
more of the following matters:
(a) lack of veracity on the part of the person when under a
legal obligation to tell the truth (for example, in an
earlier proceeding or in a signed declaration);
(b) that the person has been convicted of one (1) or more
offences that indicate a propensity for dishonesty
or lack of veracity;
(c) any previous inconsistent statements made by the
person;
(d) bias on the part of the person;

2015, No. 47 Evidence 25

(e) a motive on the part of the person to be untruthful.
(4) A party who calls a witness:
(a) may not offer evidence to challenge that witness’s
veracity unless the Judge determines the witness to
be hostile; but
(b) may offer evidence as to the facts in issue contrary to
the evidence of that witness.

28. Evidence of a defendant’s veracity-(1) A defendant in a
criminal proceeding may offer evidence about his or herveracity.
(2) The prosecution in a criminal proceeding may offer
evidence about a defendant’s veracityonly if:
(a) the defendant has offered evidence about his or her
veracity or has challenged the veracity of a
prosecution witness by reference to matters other
than the facts in issue; and
(b) the Judge permits the prosecution to do so.
(3) In determining whether to give permission under
subsection (2)(b), the Judge may take into account any of the
following matters:
(a) the extent to which the defendant’s veracityor the
veracity of a prosecution witness has been put in
issue in the defendant’s evidence;
(b) the time that has elapsed since any conviction about
which the prosecution seeks to give evidence;
(c) whether any evidence given by the defendant about
veracitywas elicited by the prosecution.

29. Evidence of a co-defendant’sveracity-(1) A defendant in
a criminal proceeding may offer evidence that challenges the
veracityof a co-defendant only if:
(a) the evidence is relevant to a defence raised or proposed
to be raised by the defendant; and
(b) the Judge permits the defendant to do so.
(2) A defendant in a criminal proceeding who proposes to
offer evidence that challenges the veracityof a co-defendant must
give notice in writing to that co-defendant, any other co-defendant
and the prosecutor of the proposal to offer that evidence unless
the requirement to give notice is waived by:

26 Evidence 2015, No. 47

(a) all the co-defendants; or
(b) the Judge in the interests of justice.
(3) A notice must:
(a) include the contents of the proposed evidence; and
(b) be given in sufficient time to provide all the co-
defendants with a fair opportunity to respond to
that evidence.

Division 5 - Propensity

30. Propensity rule-(1) In this Division, “propensity
evidence”:
(a) means -
(i) evidence that tends to show a person’s
propensity to act in a particular way or to have
a particular state of mind, being evidence of
acts, omissions, events, or circumstances with
which a person is alleged to have been
involved; or
(ii) evidence of a person’s acts, omissions
or state of mind in circumstances from which
it may reasonably be inferred that the person
acted, omitted or had a state of mind as alleged
as part of the proof of any offence with which
that person is charged; but
(b) does not include evidence of an act or omission that
is -
(i) one of the elements of the offence for
which the person is being tried; or
(ii) the cause of action in the proceeding in
question.
(2) A party may offer propensity evidence in a civil or
criminal proceeding about any person.
(3) However, propensity evidence about:
(a) a defendant in a criminal proceeding may be offered
only pursuant to section 31, 32 or 33, whichever
section is applicable; and


2015, No. 47 Evidence 27

(b) a complainant in a sexual case in relation to the
complainant’s sexual experience may be offered
only pursuant to section 34.
(4) Evidence that is solely or mainly relevant to veracity is
governed by section 26 and, accordingly, this section does not
apply to evidence of that kind.

31. Propensity evidence about defendants-(1) A defendant
in a criminal proceeding may offer propensity evidence about
himself or herself.
(2) If a defendant offers propensity evidence about himself or
herself, the prosecution or another party may, with the permission
of the Judge, offer propensity evidence about that defendant.
(3) Section 33 does not apply to propensity evidence offered
by the prosecution under subsection (2).

32. Propensity evidence about co-defendants-(1) A
defendant in a criminal proceeding may offer propensity evidence
about a co-defendant only if:
(a) that evidence is relevant to a defence raised or
proposed to be raised by the defendant; and
(b) the Judge permits the defendant to do so.
(2) A defendant in a criminal proceeding who intends to offer
propensity evidence about a co-defendant must give notice in
writing to that co-defendant, every other co-defendant, and the
prosecutor of the proposal to offer that evidence unless the
requirement to give notice is waived:
(a) by all the co-defendants; or
(b) by the Judge in the interests of justice.
(3) A notice must:
(a) include the contents of the proposed evidence; and
(b) be given in sufficient time to provide all the co-
defendants with a fair opportunity to respond to
that evidence.

33. Propensity evidence offered by prosecution-(1) The
prosecution may offer propensity evidence about a defendant in a
criminal proceeding only if the evidence has a probative value in
relation to an issue in dispute in the proceeding which outweighs

28 Evidence 2015, No. 47

the risk that the evidence may have an unfairly prejudicial effect
on the defendant.
(2) When assessing the probative value of propensity
evidence, the Judge must take into account the nature of the issue
in dispute.
(3) When assessing the probative value of propensity
evidence, the Judge may consider, among other matters, the
following:
(a) the frequency with which the acts, omissions, events,
or circumstances which are the subject of the
evidence have occurred;
(b) the connection in time between the acts, omissions,
events, or circumstances which are the subject of
the evidence and the acts, omissions, events, or
circumstances which constitute the offence for
which the defendant is being tried;
(c) the extent of the similarity between the acts, omissions,
events, or circumstances which are the subject of
the evidence and the acts, omissions, events, or
circumstances which constitute the offence for
which the defendant is being tried;
(d) the number of persons making allegations against the
defendant that are the same as, or are similar to, the
subject of the offence for which the defendant is
being tried;
(e) whether the allegations described in paragraph (d) may
be the result of collusion or suggestibility;
(f) the extent to which the acts, omissions, events, or
circumstances which are the subject of the
evidence and the acts, omissions, events, or
circumstances which constitute the offence for
which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the
defendant, the Judge must consider, among any other matters:
(a) whether the evidence is likely to unfairly predispose
the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give undue weight
in reaching a verdict to evidence of other acts or
omissions.

2015, No. 47 Evidence 29

(5) Propensity evidence may be adduced from the record of an
earlier trial in which the defendant was charged with an offence
even if the defendant was acquitted or otherwise discharged in
relation to the evidence adduced.

34. Evidence of sexual experience of complainants in trials
of sexual cases-(1) In a sexual case, no evidence can be given
and no question can be put to a witness relating directly or
indirectly to the sexual experience of the complainant with any
person other than the defendant, except with the permission of the
Judge.
(2) In a sexual case, no evidence can be given and no question
can be put to a witness that relates directly or indirectly to the
reputation of the complainant in sexual matters.
(3) In an application for permission under subsection (1), the
Judge must not grant permission unless satisfied that the evidence
or question is of such direct relevance to facts in issue in the
proceeding, or the issue of the appropriate sentence, that it would
be contrary to the interests of justice to exclude it.
(4) The permission of the Judge is not required to rebut or
contradict evidence given under subsection (1).
(5) In a sexual case in which the defendant is charged as a
party and cannot be convicted unless it is shown that another
person committed a sexual offence against the complainant,
subsection (1) does not apply to any evidence given, or any
question put, that relates directly or indirectly to the sexual
experience of the complainant with that other person.
(6) This section does not authorise evidence to be given or any
question to be put that could not be given or put apart from this
section.

Division 6 - Identification evidence

35. Admissibility of visual identification evidence-(1) If a
formal procedure is followed by officers of an enforcement
agency in obtaining visual identification evidence of a person
alleged to have committed an offence or there was a good reason
for not following a formal procedure, that evidence of a visual


30 Evidence 2015, No. 47

identification in the procedure done before trial is admissible in a
criminal proceeding.
(2) If any prescribed formal procedure is not followed by
officers of an enforcement agency in obtaining visual
identification evidence of a person alleged to have committed an
offence and there was no good reason for not following a formal
procedure, that evidence of a visual identification in the procedure
done before trial is inadmissible in a criminal proceeding unless
the trial judge is satisfied on the balance of probabilities that the
circumstances in which the identification was made did not
produce an unreliable identification.
(3) For the purposes of this section, any formal procedure that
is prescribed must be a procedure for obtaining visual
identification evidence:
(a) that is observed within a reasonable time after the
alleged offence is reported to an officer of an
enforcement agency; and
(b) in which the person to be identified is compared to no
fewer than three (3) other persons who are similar
in appearance to the person to be identified; and
(c) in which no indication is given to the person making
the identification as to who among the persons in
the procedure is the person to be identified; and
(d) in which the person making the identification is
informed that the person to be identified may or
may not be among the persons in the procedure;
and
(e) that is the subject of a written record of the procedure
actually followed that is sworn to be true and
complete by the officer who conducted the
procedure and provided to the Judge and the
defendant (but not the assessors) at the hearing;
and
(f) that is observed by taking and keeping of photographic
or other audio-visual record of the identification
process.


2015, No. 47 Evidence 31

(4) The circumstances referred to in the following paragraphs
are good reasons for not following a prescribed formal procedure:
(a) a refusal of the person to be identified to take part in
the procedure (that is, by refusing to take part in a
parade or other procedure, or to permit a
photograph or video record to be taken, where the
enforcement agency does not already have a photo
or a video record that shows a true likeness of that
person);
(b) the singular appearance of the person to be identified
(being of a nature that cannot be disguised so that
the person is similar in appearance to those with
whom the person is to be compared);
(c) a substantial change in the appearance of the person to
be identified after the alleged offence occurred and
before it was practical to hold a formal procedure;
(d) no officer involved in the investigation or the
prosecution of the alleged offence could
reasonably anticipate that identification would be
an issue at the trial of the defendant;
(e) if an identification of a person alleged to have
committed an offence has been made to an officer
of an enforcement agency soon after the offence
was reported and in the course of that officer’s
initial investigation;
(f) if an identification of a person alleged to have
committed an offence has been made to an officer
of an enforcement agency after a chance meeting
between the person who made the identification
and the person alleged to have committed the
offence.

Division 7 - Evidence of convictions
and civil judgments

36. Application - Section 37:
(a) applies -
(i) whether or not the person convicted is a
party to the proceeding; and

32 Evidence 2015, No. 47

(ii) whether or not the person was
convicted on a guilty plea;
(b) is subject to section 38; and
(c) does not affect a provision in any other enactment to
the effect that a conviction or a finding of fact in a
criminal proceeding is to constitute conclusive
evidence for the purposes of any other proceeding.

37. Conviction as evidence in civil proceedings-(1)When
the fact that a person has committed an offence is relevant to an
issue in a civil proceeding, proof that the person has been
convicted of that offence is conclusive proof that the person
committed the offence.
(2) Despite subsection (1), if the conviction of a person is
proved under that subsection, the Judge may, in exceptional
circumstances:
(a) permit a party to the proceeding to offer evidence
tending to prove that the person convicted did not
commit the offence for which the person was
convicted; and
(b) if satisfied that it is appropriate to do so, direct that the
issue whether the person committed the offence be
determined without reference to that subsection.

38. Conviction as evidence in defamation proceedings - In
a proceeding for defamation that is based on a statement to the
effect that a person has committed an offence, proof that the
person has been convicted of the offence is conclusive proof that
the person committed the offence if the conviction:
(a) subsisted at the time that the statement was made; or
(b) subsists at the time of the proceeding.

39. Conviction as evidence in criminal proceedings-(1)
Evidence of the fact that a person has been convicted of an
offence is, if not excluded by any other provision of this Act,
admissible in a criminal proceeding and proof that the person has
been convicted of that offence is conclusive proof that the person
committed the offence.


2015, No. 47 Evidence 33

(2) Despite subsection (1), if the conviction of a person is
proved under that subsection, the Judge may, in exceptional
circumstances:
(a) permit a party to the proceeding to offer evidence
tending to prove that the person convicted did not
commit the offence for which the person was
convicted; and
(b) if satisfied that it is appropriate to do so, direct that the
issue whether the person committed the offence be
determined without reference to subsection (1).
(3) A party to a criminal proceeding who wishes to offer
evidence of the fact that a person has been convicted of an offence
must first inform the Judge of the purpose for which the evidence
is to be offered.

40. Civil judgment as evidence in criminal or civil
proceedings-(1) Evidence of a judgment or a finding of fact in a
civil proceeding is not admissible in a criminal proceeding or
another civil proceeding to prove the existence of a fact that was
in issue in the proceeding in which the judgment was given.
(2) This section does not affect the operation of:
(a) a judgment in rem; or
(b) the law relating to res judicata or issue estoppel; or
(c) the law relating to an action on, or the enforcement of,
a judgment.

PART 3
PRIVILEGE AND CONFIDENTIALITY

Division 1 - General

41. Definition-(1) In this Part:
“legal adviser” means:
(a) a lawyer; or
(b) an overseas lawyer.
“overseas lawyer” means:
(a) a person who is entitled to practise as a barrister, or a
solicitor, or both,in a Commonwealth country or
any other prescribed country; or

34 Evidence 2015, No. 47

(b) a person who is, under the laws of a prescribed
country, entitled to undertake work that, in Samoa,
is normally undertaken by a lawyer.
(2) A reference in this Part to a communication or to any
information includes a reference to a communication or to
information contained in a document.
(3) Despite subsection (2), in sections 50 to 53, “information”
means a statement of fact or opinion given, or to be given:
(a) orally; or
(b) in a document that is prepared or created -
(i) after and in response to a requirement to
which any of those sections applies; but
(ii) not for the principal purpose of
avoiding criminal prosecution under the laws
of Samoa.
(4) A reference in this Division to a communication made or
received by a person or an act carried out by a person includes a
reference to a communication made or received or an act carried
out by an authorised representative of that person on that person’s
behalf.
(5) However, subsection (4) does not apply to section 48, 49
or 54.

42. Order for protection of privileged material, etc.-(1) A
Judge may order that evidence must not be given in a proceeding
of a communication, information, opinion, or document in respect
of which a person has a privilege conferred by this Division and
may make an order under this subsection:
(a) on the Judge’s own initiative; or
(b) on the application of the person who has the privilege;
or
(c) on the application of an interested person other than the
person who has the privilege.
(2) A Judge may give a direction under section 57 or 59 on the
Judge’s own initiative or on the application of an interested
person.
(3) An application under subsection (1) or (2) may be made at
any time either before or after any relevant proceeding is
commenced.

2015, No. 47 Evidence 35

(4) A Judge may give any directions that are necessary to
protect the confidentiality of, or limit the use which may be made
of:
(a) any privileged communication, information, opinion,
or document that is disclosed to a Judge or other
body or person in compliance with a judicial or
administrative order; or
(b) any communication or information that is the subject
of a direction under section 57 or 59 but is
disclosed to a Judge or other body or person in
compliance with a judicial or administrative order.
Division 2 - Privilege
43. Effect and protection of privilege-(1) A person who has
a privilege conferred by any of sections 44 to 49 in respect of a
communication or any information has the right to refuse to
disclose in a proceeding:
(a) the communication; and
(b) the information, including any information contained
in the communication; and
(c) any opinion formed by a person that is based on the
communication or information.
(2) A person who has a privilege conferred by section 50 or 54
in respect of information has the right to refuse to disclose in a
proceeding the information.
(3) A person who has a privilege conferred by any of sections
44 to 49 and 54 in respect of a communication, information,
opinion, or document may require that the communication,
information, opinion, or document not be disclosed in a
proceeding:
(a) by the person to whom the communication is made or
the information is given, or by whom the opinion is
given or the information or document is prepared
or compiled; or
(b) by any other person who has come into possession of it
with the authority of the person who has the
privilege, in confidence and for purposes related
to the circumstances that have given rise to the
privilege.

36 Evidence 2015, No. 47

(4) If a communication, information, opinion, or document, in
respect of which a person has a privilege conferred by any of
sections 44 to 49 and 54, is in the possession of a person other
than a person referred to in subsection (3), a Judge may, on the
Judge’s own initiative or on the application of the person who has
the privilege, order that the communication, information, opinion,
or document not be disclosed in a proceeding.
(5) This Act does not affect the general law governing legal
professional privilege, so far as it applies to the determination of
claims to that privilege that are made neither in the course of, nor
for the purpose of, a proceeding.

44. Privilege for communications with legal advisers - A
person who obtains professional legal services from a legal
adviser has a privilege in respect of any communication between
the person and the legal adviser if the communication was:
(a) intended to be confidential; and
(b) made in the course of and for the purpose of -
(i) the person obtaining professional legal
services from the legal adviser; or
(ii) the legal adviser giving the professional
legal services to the person.

45. Privilege and solicitors’ trust accounts-(1) This section
applies to documents that are books of account or accounting
records kept:
(a) by a solicitor in relation to any trust account money
that is subject to the Lawyers and Legal Practice
Act 2014; or
(b) by a nominee company that -
(i) is subject to any practice rules made by
the Council of the Law Society of Samoa; and
(ii) is operated by a barrister and solicitor
or an incorporated law firm as a nominee in
respect of securities and documents of title held
for clients.
(2) Section 44 does not prevent, limit, or affect:
(a) the issue by a District Court or Supreme Court Judge
of a search warrant under the Criminal Procedure

2015, No. 47 Evidence 37

Act 1972 in respect of a document to which this
section applies; or
(b) the execution of that warrant in respect of a document
to which this section applies; or
(c) the admissibility, in a criminal proceeding for an
offence described in the warrant, of any evidence
that relates to the contents of a document obtained
under the warrant.

46. Privilege for preparatory materials for proceedings-(1)
Subsection (2) applies to a communication or information only if
the communication or information is made, received, compiled,
or prepared for the dominant purpose of preparing for a
proceeding or an apprehended proceeding (the “proceeding”).
(2) A person (the “party”) who is, or on reasonable grounds
contemplates becoming, a party to the proceeding has a privilege
in respect of:
(a) a communication between the party and any other
person;
(b) a communication between the party’s legal adviser and
any other person;
(c) information compiled or prepared by the party or the
party’s legal adviser;
(d) information compiled or prepared at the request of the
party, or the party’s legal adviser, by any other
person.

47. Privilege for settlement negotiations or mediation-(1)
A person who is a party to, or a mediator in, a dispute of a kind
for which relief may be given in a civil proceeding has a privilege
in respect of any communication between that person and any
other person who is a party to the dispute if the communication:
(a) was intended to be confidential; and
(b) was made in connection with an attempt to settle or
mediate the dispute between the persons.
(2) A person who is a party to a dispute of a kind for which
relief may be given in a civil proceeding has a privilege in respect
of a confidential document that the person has prepared, or caused


38 Evidence 2015, No. 47

to be prepared, in connection with an attempt to mediate the
dispute or to negotiate a settlement of the dispute.
(3) This section does not apply to:
(a) the terms of an agreement settling the dispute; or
(b) evidence necessary to prove the existence of the
agreement in a proceeding in which the conclusion
of the agreement is in issue; or
(c) the use in a proceeding, solely for the purposes of an
award of costs, of a written offer that -
(i) is expressly stated to be without
prejudice except as to costs; and
(ii) relates to an issue in the proceeding.

48. Privilege for communications with ministers of
religion-(1) A person has a privilege in respect of any
communication between that person and a minister of religion if
the communication was:
(a) made in confidence to or by the minister in the
minister’s capacity as a minister of religion; and
(b) made for the purpose of the person obtaining or
receiving from the minister religious or spiritual
advice, benefit, or comfort.
(2) A person is a minister of religion for the purposes of this
section if the person has a status within a church or other religious
or spiritual community that requires or calls for that person:
(a) to receive confidential communications of the kind
described in subsection (1); and
(b) to respond with religious or spiritual advice, benefit, or
comfort.

49. Privilege in criminal proceedings for information
obtained by medical practitioners or clinical psychologist-(1)
This section:
(a) applies to a person who consults or is examined by a
medical practitioner or a clinical psychologist for
drug dependency or any other condition or
behaviour that may manifest itself in criminal
conduct; but


2015, No. 47 Evidence 39

(b) does not apply in the case of a person who has been
required by an order of a Judge, or by other lawful
authority, to submit himself or herself to the
medical practitioner or a clinical psychologist for
any examination, test, or for any other purpose;
(c) except that any information arising under the
examination, test or other purpose should only be
used for the purposes under this paragraph unless
decided otherwise by a Judge.
(2) A person has a privilege in a criminal proceeding in
respect of any communication made by the person to a medical
practitioner or a clinical psychologist or that the person believes is
necessary to enable the medical practitioner or a clinical
psychologist to examine, treat, or care for the person for drug
dependency or any other condition or behaviour that may
manifest itself in criminal conduct.
(3) A person has a privilege in a criminal proceeding in
respect of information obtained by a medical practitioner or a
clinical psychologist as a result of consulting with or examining
the person to enable the medical practitioner or a clinical
psychologist to examine, treat, or care for the person for drug
dependency or any other condition or behaviour that may
manifest itself in criminal conduct.
(4) A person has a privilege in a criminal proceeding in
respect of information consisting of a prescription, or notes of a
prescription, for treatment prescribed by a medical practitioner or
a clinical psychologist as a result of consulting with or examining
the person to enable the medical practitioner or a clinical
psychologist to treat or care for the person for drug dependency or
any other condition or behaviour that may manifest itself in
criminal conduct.
(5) A reference in this section to a communication to or
information obtained by a medical practitioner or a clinical
psychologist is to be taken to include a reference to a
communication to or information obtained by a person acting in a
professional capacity on behalf of a medical practitioner or a
clinical psychologist in the course of the examination or treatment
of, or care for, the person by that medical practitioner or a clinical
psychologist.

40 Evidence 2015, No. 47

(6) Nothing in this section affects the application of section
25B of the Narcotics Act 1967 relating to mandatory reporting of
suspicion of illegal use of a narcotic or controlled precursor.
(7) This section is subject to section 172 of the Criminal
Procedure Act 1972.
(8) In this section:
“clinical psychologist” means a person registered as such
under the Healthcare Professions Registration and
Standards Act 2007 as a practitioner of the profession of
psychology who is by his or her scope of practice
permitted to diagnose and treat persons suffering from
mental and emotional problems;
“drug dependency” means the state of periodic or chronic
intoxication produced by consumption of alcohol or the
repeated consumption, smoking, or other use of a
controlled drug detrimental to the user, and involving a
compulsive desire to continue consuming alcohol or
consuming, smoking, or otherwise using the drug or a
tendency to increase the dose of the drug;
“medical practitioner” means a person registered as such
under the Medical Practitioners Act 2007.

50. Privilege against self-incrimination-(1) This section
applies if:
(a) a person is (apart from this section) required to provide
specific information -
(i) in the course of a proceeding; or
(ii) by a person exercising a statutory
power or duty; or
(iii) by a police officer or other person
holding a public office in the course of an
investigation into a criminal offence or possible
criminal offence; and
(b) the information would, if so provided, be likely to
incriminate the person under Samoan law for an
offence punishable by a fine or imprisonment.
(2) The person:
(a) has a privilege in respect of the information and cannot
be required to provide it; and

2015, No. 47 Evidence 41

(b) cannot be prosecuted or penalised for refusing or
failing to provide the information, whether or not
the person claimed the privilege when the person
refused or failed to provide the information.
(3) Subsection (2) has effect:
(a) unless an enactment removes the privilege against self-
incrimination either expressly or by implication; or
(b) the person waives privilege against self-incrimination
either expressly or by implication.
(4) Subsection (2) does not enable a claim of privilege to be
made:
(a) on behalf of a body corporate; or
(b) on behalf of any person other than the person required
to provide the information (except by a legal
adviser on behalf of a client who is so required); or
(c) by a defendant in a criminal proceeding when giving
evidence about the matter for which the defendant
is being tried.
(5) This section is subject to section 53.

51. Discretion as to incrimination under foreign law-(1)
This section applies to any specific information:
(a) that a person is (apart from this section) required to
provide -
(i) in the course of a proceeding; or
(ii) by a person exercising a statutory
power or duty; or
(iii) by a police officer or other person
holding a public office in the course of an
investigation into a criminal offence or possible
criminal offence; and
(b) that would, if so provided, be likely to incriminate the
person under foreign law for an offence punishable
by -
(i) capital punishment; or
(ii) corporal punishment or imprisonment,
or both.


42 Evidence 2015, No. 47

(2) A Judge may direct that the person cannot be required to
provide the information if the Judge, after having regard to the
likelihood of extradition and other relevant matters, thinks that it
would be unreasonable to require the person to incriminate
himself or herself by providing the information.
(3) Subsection (2) does not enable a Judge to give a direction
in respect of:
(a) a body corporate; or
(b) any person other than the person required to provide
the information (except by a legal adviser on
behalf of a client who is so required); or
(c) a defendant in a criminal proceeding when giving
evidence about the matter for which the defendant
is being tried.

52. Claiming privilege against self-incrimination in court
proceedings-(1) If in a court proceeding it appears to the Judge
that a party or witness may have grounds to claim a privilege
against self-incrimination in respect of specific information
required to be provided by that person, the Judge must satisfy
himself or herself that the person is aware of the privilege and its
effect.
(2) A person who claims a privilege against self-incrimination
in a court proceeding must offer sufficient evidence to enable the
Judge to assess whether self-incrimination is reasonably likely if
the person provides the required information.

53. Replacement of privilege with respect to disclosure
requirements in civil proceedings-(1) This section applies to a
person who is required by an order of the court made for the
purposes of a civil proceeding:
(a) to disclose information; or
(b) to permit premises to be searched; or
(c) to permit documents or things to be inspected,
recorded, copied, or removed; or
(d) to secure or produce documents or things.
(2) The person does not have the privilege provided for by
section 50 and must comply with the terms of the order.


2015, No. 47 Evidence 43

(3) No evidence of any information that has directly or
indirectly been obtained as a result of the person’s compliance
with the order may be used against the person in any criminal
proceeding, except in a criminal proceeding that concerns the
falsity of the information.

54. Informers-(1) An informer has a privilege in respect of
information that would disclose, or is likely to disclose, the
informer’s identity.
(2) A person is an informer for the purposes of this section if
the person:
(a) has supplied, gratuitously or for reward, information to
an enforcement agency, or to a representative of an
enforcement agency, concerning the possible or
actual commission of an offence in circumstances
in which the person has a reasonable expectation
that his or her identity will not be disclosed; and
(b) is not called as a witness by the prosecution to give
evidence relating to that information.
(3) An informer may be a member of the police working
undercover.

55. Waivers-(1) A person who has a privilege conferred by
any of sections 44 to 50 and 54 may waive that privilege either
expressly or impliedly.
(2) A person who has a privilege waives the privilege if that
person, or anyone with the authority of that person, voluntarily
produces or discloses, or consents to the production or disclosure
of, any significant part of the privileged communication,
information, opinion, or document in circumstances that are
inconsistent with a claim of confidentiality.
(3) A person who has a privilege waives the privilege if the
person:
(a) acts so as to put the privileged communication,
information, opinion, or document in issue in a
proceeding; or
(b) institutes a civil proceeding against a person who is in
possession of the privileged communication,
information, opinion, or document the effect of

44 Evidence 2015, No. 47

which is to put the privileged matter in issue in the
proceeding.
(4) A person who has a privilege in respect of a
communication, information, opinion, or document that has been
disclosed to another person does not waive the privilege if the
disclosure occurred involuntarily or mistakenly or otherwise
without the consent of the person who has the privilege.
(5) A privilege conferred by section 47 may be waived only
by all the persons who have that privilege.

56. Joint and successive interests in privileged material-(1)
A person who jointly with some other person or persons has a
privilege conferred by any of sections 44 to 50 and 54 in respect
of a communication, information, opinion, or document:
(a) is entitled to assert the privilege against third parties;
and
(b) is not restricted by any of sections 44 to 50 and 54
from having access or seeking access to the
privileged matter; and
(c) may, on the application of a person who has a
legitimate interest in maintaining the privilege
(including another holder of the privilege), be
ordered by a Judge not to disclose the privileged
matter in a proceeding.
(2) If a person has a privilege conferred by any of sections 44
to 47 in respect of a communication, information, opinion, or
document, the personal representative of the person or other
successor in title to property of the person:
(a) is entitled to assert the privilege against third parties;
and
(b) is not restricted by any of sections 44 to 47 from
having access or seeking access to the privileged
matter.
(3) However, subsection (2) applies only to the extent that a
Judge is satisfied that the personal representative or other
successor in title to property has a justifiable interest in
maintaining the privilege in respect of the communication,
information, opinion, or document.


2015, No. 47 Evidence 45

(4) A personal representative of a deceased person who has a
privilege conferred by any of sections 44 to 47 in respect of a
communication, information, opinion, or document and any other
successor in title to property of a person who has that privilege,
may, on the application of a person who has a legitimate interest
in maintaining the privilege (including another holder of the
privilege), be ordered by a Judge not to disclose the privileged
matter in a proceeding.

57. Protection of information relating to a matter of State-
(1) A Judge may, in the Judge’s own initiative or on application
of the Attorney General, direct that a communication or
information that relates to matters of State must not be disclosed
in a proceeding if the Judge considers that the public interest in
the communication or information being disclosed in the
proceeding is outweighed by the public interest in withholding
the communication or information.
(2) A Judge may give a direction under this section that a
communication or information not be disclosed whether or not the
communication or information is privileged by another provision
of this Division or would, except for a limitation or restriction
imposed by this Division, be privileged.

58. Powers of Judge to disallow privilege-(1) A Judge must
disallow a claim of privilege conferred by any of sections 44 to
49 and 54 in respect of a communication or information if
satisfied there is a prima facie case that the communication was
made or received, or the information was compiled or prepared,
for a dishonest purpose or to enable or aid anyone to commit or
plan to commit what the person claiming the privilege knew, or
reasonably should have known, to be an offence.
(2) A Judge may disallow a claim of privilege conferred by
any of sections 44 to 49 and 54 in respect of a communication or
information if the Judge is of the opinion that evidence of the
communication or information is necessary to enable the
defendant in a criminal proceeding to present an effective
defence.


46 Evidence 2015, No. 47

(3) Any communication or information disclosed as the result
of the disallowance of a claim of privilege under subsection (2)
and any information derived from that disclosure cannot be used
against the holder of the privilege in a proceeding in Samoa.

Division 3 - Confidentiality

59. Discretion to exclude information given or obtained in
confidence-(1) A direction under this section is a direction that
any one (1) or more of the following not be disclosed in a
proceeding:
(a) a confidential communication;
(b) a confidential information;
(c) an information that would or might reveal a
confidential source of information.
(2) A Judge may give a direction under this section if the
Judge considers that the public interest in the disclosure in the
proceeding of the communication or information is outweighed by
the public interest in:
(a) preventing harm to a person by whom, about whom, or
on whose behalf the confidential information was
obtained, recorded, or prepared or to whom it was
communicated; or
(b) preventing harm to -
(i) the particular relationship in the course
of which the confidential communication or
confidential information was made, obtained,
recorded, or prepared; or
(ii) relationships that are of the same kind
as, or of a kind similar to, the relationship
referred to in subparagraph (i); or
(c) maintaining activities that contribute to or rely on the
free flow of information.
(3) When considering whether to give a direction under this
section, the Judge must have regard to:
(a) the likely extent of harm that may result from the
disclosure of the communication or information;
and


2015, No. 47 Evidence 47

(b) the nature of the communication or information and its
likely importance in the proceeding; and
(c) the nature of the proceeding; and
(d) the availability or possible availability of other means
of obtaining evidence of the communication or
information; and
(e) the availability of means of preventing or restricting
public disclosure of the evidence if the evidence is
given; and
(f) the sensitivity of the evidence, having regard to -
(i) the time that has elapsed since the
communication was made or the information
was compiled or prepared; and
(ii) the extent to which the information has
already been disclosed to other persons; and
(g) the society’s interest in protecting the privacy of
victims of offences and, in particular, victims of
sexual offences.
(4) The Judge may, in addition to the matters stated in
subsection (3), have regard to any other matters that the Judge
considers relevant.
(5) A Judge may give a direction under this section that a
communication or information not be disclosed whether or not the
communication or information is privileged by another provision
of this Division or would, except for a limitation or restriction
imposed by this Division, be privileged.

60. Evidence of parties and their husbands and wives in
civil proceedings - In any civil proceeding, the parties to civil
proceeding, and the persons on whose behalf the proceeding is
brought or defended, and the husbands and wives of the parties or
persons respectively, are competentand compellable to give
evidence on behalf of either or any of the parties to the
proceeding.

61.Evidence of defendants in criminal proceedings and
their husbands and wives-(1) A defendant charged with an
offence is a competent but (except where the contrary is expressly


48 Evidence 2015, No. 47

provided by any enactment) not a compellable witness upon his
or her trial for that offence.
(2) The wife or husband of a defendant charged with an
offence is a competentwitness, on the trial of that person, but is
not a compellable witness upon his or her trial for that offence,
except in the following cases:
(a) when called as a witness by the defendant;
(b) when the offence of which the defendant is charged is
an offence against the wife or husband of the
defendant or against a child of either the wife or
the husband;
(c) when the offence of which the defendant is charged is
an offence reported to the Police by the wife or the
husband of the defendant;
(d) when the offence of which the defendant is charged is
murder or manslaughter and the wife or husband
witnessed the act of killing the person;
(e) bigamy.
(3) The former wife or former husband of a defendant charged
is a competentand compellable witness upon the person’s trial for
that offence.
(4) If a witness who under this section is competentbut not
compellable gives evidence on any such trial, the witness is liable
to cross-examination in the same manner as if the witness was a
compellable witness, whether or not the matter on which the
witness is so cross-examined arises out of his or her examination-
in-chief.
(5) In this section, “child” includes adopted child, foster child
or child living under the care of the wife or husband.

PART 4
TRIAL PROCESS

Division 1 - General

62. Competence and compellability-(1) Subject to sections
63 to 65, in a civil or criminal proceeding:
(a) any person is competent to give evidence; and


2015, No. 47 Evidence 49

(b) a person who is competent to give evidence is
compellable to give that evidence.
(2) A person must not be excluded from giving evidence in
any proceeding on the ground that the person has or may have an
interest in the matter in question, or in the result of the
proceeding, or on the ground of the person’s previous conviction
of any offence.

63. Competence of Judges, assessors and counsel-(1) A
person who is acting as a Judge in a proceeding is not competent
to give evidence in that proceeding.
(2) A person who is acting as an assessor or counsel in a
proceeding is not competent to give evidence in that proceeding
except with the permission of the Judge.
(3) In this section:
“counsel” includes a prosecutor.

64. Compellability of defendants and co-defendants in
criminal proceedings-(1) A defendant in a criminal proceeding
is not a compellable witness for the prosecution or the defence in
that proceeding.
(2) A co-defendant is acompetent and compellable witness to
give evidence for or against a defendant in a criminal proceeding
if:
(a) the co-defendant is being tried separately from the
defendant; or
(b) the proceeding against the co-defendant has been
determined.
(3) A proceeding has been determined for the purposes of
subsection (2) if:
(a) the proceeding has been stayed, or the information
against the co-defendant has been withdrawn or
dismissed; or
(b) the co-defendant has been acquitted of the offence; or
(c) the co-defendant, having pleaded guilty to, or having
been found guilty of, the offence, has been
sentenced or otherwise dealt with for that offence.


50 Evidence 2015, No. 47

(4) Where two (2) or more persons are jointly charged with
any offence, the evidence of a person called as a witness for the
prosecution or the defence under this section may be received as
evidence either for or against any of the persons so charged.
(5) In this section, “co-defendant”, in relation to a defendant
in a criminal proceeding, means a person who is jointly charged
with the defendant.

65. Compellability of Head of State, Judges, etc., - The
following persons are not compellable to give evidence:
(a) the Head of State;
(b) a Sovereign or Head of State of another country;
(c) a Judge, including a Judge of the Land and Titles
Court, in respect of the Judge’s conduct as a Judge.

66. Evidence of assessors deliberations-(1) A person must
not give evidence about the deliberations of assessors.
(2) Subsection (1) does not prevent the giving of evidence
about matters that do not form part of the deliberations of
assessors including (without limitation):
(a) the competence or capacity of an assessor; or
(b) any conduct of, or knowledge gained by, an assessor
that is believed to disqualify that assessor from
holding that position.
(3) Subsection (1) does not prevent a person from giving
evidence about the deliberations of assessors if the Judge is
satisfied that the particular circumstances are so exceptional that
there is a sufficiently compelling reason to allow that evidence to
be given.
(4) In determining, under subsection (3), whether to allow
evidence to be given in any proceedings, the Judge must weigh:

(a) the public interest in protecting the confidentiality of
assessors’ deliberations generally; or
(b) the public interest in ensuring that justice is done in
those proceedings.


2015, No. 47 Evidence 51

Division 2 - Oaths or affirmations

67. Witness to give evidence on oath or affirmation-(1)
The evidence of all witnesses in any proceeding must be given
under oath or affirmation.
(2) A witness who is or appears to be under the age of 12
years may in any proceeding be examined without oath, but the
witness is required, before being examined, to make the following
declaration or a declaration to the like effect:

“I promise not to tell lies, but to speak the truth, the whole
truth, and nothing but the truth.”.

(3) The declaration is of the same force and effect as if the
witness had taken an oath.
(4) Evidence given by a witness to whom subsection (2)
applies must be treated in the same manner as if that evidence had
been given on oath.
(5) Despite subsections (1) and (2), a witness:
(a) to whom either of those subsections apply may give
evidence without taking an oath, or making an
affirmation, or making a promise to tell the truth,
with the permission of the Judge; and
(b) if the Judge gives permission under paragraph (a),
must be informed by the Judge of the importance
of telling the truth and not telling lies, before the
witness gives evidence; and
(c) after being given the information referred to in
paragraph (b), may give evidence which must be
treated in the same manner as if that evidence had
been given on oath.

68. Interpreter to take oath or make affirmation-(1) A
person must either take an oath or make an affirmation before
acting as an interpreter in a proceeding.
(2) An officer of the court may, upon appointment, take the
oath or make an affirmation under subsection (1).


52 Evidence 2015, No. 47

Division 3 - Support persons, communication
assistance and witness address

69. Supportpersons and communication assistance-(1) A
complainantin an offence, when giving evidence in a criminal
proceeding, is entitled to have one (1) person, and may, with the
permission of the Judge, have more than one (1) person, near him
or her to give support.
(2) Any other witness, when giving evidence in any
proceeding, may with the permission of the Judge, have one (1) or
more support persons near him or her to give support.
(3) Despite subsections (1) and (2), the Judge may, in the
interest of justice, direct that support may not be provided to a
complainant or to a witness by:
(a) any person; or
(b) a particular person; or
(c) a person who is required to give evidence in that
criminal proceeding.
(4) A complainant or other witness who is to have a support
person near him or her while giving evidence must, unless the
Judge orders otherwise, disclose to all parties as soon as
practicable the name of each person who is to provide that
support.
(5) The following persons are entitled to communication
assistance underthis Act or regulations under this Act:
(a) defendant in a criminal proceeding to -
(i) enable the defendant to understand the
proceeding; and
(ii) give evidence if the defendant elects to
do so;
(b) a witness in a civil or criminal proceeding to enable
the witness to give evidence.
(6) Communication assistance may be provided to:
(a) a defendant in a criminal proceeding on the application
of the defendant in the proceeding or on the
initiative of the Judge; or
(b) a witness on the application of the witness or any party
to the proceeding or on the initiative of the Judge.


2015, No. 47 Evidence 53

(7) A statement made in court to a Judge or a witness by a
person providing communication assistance must, if known by
the person making that statement to be false and intended by that
person to be misleading, be treated as perjury under the Crimes
Act 2013.
(8) Communication assistance need not be provided to:
(a) a defendant in a criminal proceeding if the Judge
considers that the defendant -
(i) can sufficiently understand the
proceeding; and
(ii) if the defendant elects to give evidence,
can sufficiently understand questions put orally
and can adequately respond to them; or
(b) a witness in a civil or a criminal proceeding if the
Judge considers that the witness can sufficiently
understand questions put orally and can adequately
respond to them.
(9) The Judge may:
(a) give directions regulating the conduct of a person
providing or receiving support under this section;
or
(b) direct what kind of communication assistance is to be
provided to a defendant or a witness.

70. Witness’s address may not be subject to question-(1) In
any proceeding, the precise particulars of a witness’s address
(such as, details of the place or village) may not, without the
permission of the Judge, be:
(a) the subject of any question to a witness or included in
any evidence given; or
(b) included in any statement or remark made by a
witness, lawyer, officer of the court, or any other
person.
(2) The Judge must not grant permission under subsection (1)
unless satisfied that the question to be put, the evidence to be
given, or the statement or remark to be made, is of sufficient
direct relevance to the facts in issue that to exclude it would be
contrary to the interests of justice.


54 Evidence 2015, No. 47

(3) An application for permission under subsection (1) may be
made before or after the commencement of any hearing, and is,
where practicable, to be made and dealt with in chambers.
(4) In any proceeding, the Judge may order that the identity of
any witness may be excluded in any written statement, where
disclosure of identity may risk the safety of the witness or
interference with the witness.
(5) Nothing in subsection (1) applies in a criminal proceeding
if it is necessary to disclose the particulars in the charge in order
to ensure that the defendant is fully and fairly informed of the
charge.

Division 4 - Questioning witnesses

71. Ordinary way of giving evidence-(1) The ordinary way
for a witness to give evidence is:
(a) in a criminal or civil proceeding, orally in a courtroom
in the presence of -
(i) the Judge or, if there are assessors, the
Judge and assessors; and
(ii) the parties to the proceeding and their
counsel; and
(iii) any member of the public who wishes
to be present, unless excluded by order of the
Judge; or
(b) in a criminal proceeding, in an affidavit filed in the
court or by reading a written statement in a
courtroom, if both the prosecution and the
defendant consent to the giving of evidence in this
form; or
(c) in a civil proceeding, in an affidavit filed in the court
or by reading a written statement in a courtroom,
if -
(i) rules of court permit or require the
giving of evidence in this form; or
(ii) both parties consent to the giving of
evidence in this form.
(2) An affidavit or a written statement referred to in
subsection (1)(b) or (c) may be given in evidence only if it:

2015, No. 47 Evidence 55

(a) is the personal statement of the deponent or maker; and
(b) does not contain a statement that is otherwise
inadmissible under this Act or any other
enactment.

72. Examination of witnesses-(1) Unless this Act or any
other enactment provides otherwise, or the Judge directs to the
contrary, in any proceeding:
(a) a witness first gives evidence-in-chief; and
(b) after giving evidence-in-chief, the witness may be
cross-examined by all parties, other than the party
calling the witness, who wish to do so; and
(c) after all parties who wish to do so have cross-examined
the witness, the witness may be re-examined.
(2) If a witness gives evidence in an affidavit or by reading a
written statement in a courtroom, it is to be treated for the
purposes of this Act as evidence given in chief.

Division 5 - Judge may disallow questions

73. Unacceptable questions-(1) In any proceeding, the Judge
may disallow, or direct that a witness is not obliged to answer,
any question that the Judge considers improper, unfair,
misleading, needlessly repetitive, or expressed in language that is
too complicated for the witness to understand.
(2) Without limiting the matters that the Judge may take into
account for the purposes of subsection (1), the Judge may have
regard to:
(a) the age or maturity of the witness; and
(b) any physical, intellectual, psychological, or psychiatric
impairment of the witness; and
(c) the linguistic or cultural background or religious
beliefs of the witness; and
(d) the nature of the proceeding; and
(e) for a hypothetical question, whether the hypothesis has
been or will be proved by other evidence in the
proceeding.


56 Evidence 2015, No. 47

74. Leading questions in examination-in-chief and re-
examination-(1) In any proceeding, a leading question must not
be put to a witness in examination-in-chief or re-examination
unless:
(a) the question relates to introductory or undisputed
matters; or
(b) the question is put with the consent of all other parties;
or
(c) the Judge, in exercise of the Judge’s discretion, allows
the question.
(2) Subsection (1) does not prevent a Judge, if permitted by
rules of court, from allowing a written statement or report of a
witness to be tendered or treated as the evidence-in-chief of that
person.

75. Use of documents in questioning witness or refreshing
memory-(1) A party must not, for the purpose of questioning a
witness in a proceeding, use a document that has been excluded
under section 20 or 21.
(2) A witness must not consult a document that has been
excluded under section 20 or 21 while giving evidence.
(3) If, when questioning a witness, a party proposes to use a
document or to show a document to the witness, that document
must be shown to any other party to the proceeding.
(4) If a witness proposes to consult a document while giving
evidence, that document:
(a) must be shown to any other party to the proceeding;
and
(b) may not be consulted by that witness -
(i) without the prior leave of the Judge or
the consent of the other parties; or
(ii) if the purpose of consulting that
document is to refresh his or her memory while
giving evidence, except under subsection (5).
(5) Subject to subsection (2), for the purposes of refreshing his
or her memory while giving evidence, a witness may, with the
prior leave of the Judge, consult a document made or adopted at a
time when his or her memory was fresh.


2015, No. 47 Evidence 57

76. Duty to put questions in cross-examination-(1) In any
proceeding, a party must cross-examine a witness on significant
matters that are relevant and in issue and that contradict the
evidence of the witness, if the witness could reasonably be
expected to be in a position to give admissible evidence on those
matters.
(2) If a party fails to comply with this section, the Judge may:
(a) grant permission for the witness to be recalled and
questioned about the contradictory evidence; or
(b) admit the contradictory evidence on the basis that the
weight to be given to it may be affected by the fact
that the witness, who may have been able to
explain the contradiction, was not questioned about
the evidence; or
(c) exclude the contradictory evidence; or
(d) make any other order that the Judge considers just.

77. Cross-examination may be limited - If a party in any
proceeding cross-examines a witness who has the same, or
substantially the same, interest in the proceeding as the cross-
examining party, the Judge may, in the interests of justice, limit
the extent to which leading questions may be asked in that cross-
examination.

78. Cross-examination as to credit - In any proceeding, the
Court:
(a) may limit in any manner and to any extent which it
thinks fit the cross-examination of any witness as to
credit; and
(b) must refuse to permit the cross-examination which is
needlessly offensive or injurious to the witness,
having regard to the nature or gravity of the
imputations made against him or her, to the
importance of his or her evidence, and to the effect
of any of the imputations on the credibility of the
witness.


58 Evidence 2015, No. 47

79. Hostilewitness - In any proceeding, the party who calls a
witness may, if the Judge determines that the witness is hostile
and gives permission, cross-examine the witness to the extent
authorised by the Judge.

80. When a party in person may not cross-examine
witness-(1) Despite any other enactment or rule of law, a
defendant in a criminal proceeding that is a sexual case or a
proceeding concerning domestic violence is not entitled to
personally cross-examine:
(a) a complainant;
(b) a child (other than a complainant) who is a witness,
unless the Judge gives permission.
(2) However, a Judge may allow a defendant to cross-examine
the complainant or child if the Judge directs that measures be put
in place to ensurethat the defendant does not cross-examine the
complainant or child face to face.
(3) In a civil or criminal proceeding, a Judge may, on the
application of a witness, or a party calling a witness, or on the
Judge’s own initiative, order that a party to the proceeding must
not personally cross-examine the witness.
(4) An order under subsection (3) may be made on one (1) or
more of the following grounds:
(a) the age or maturity of the witness;
(b) the physical, intellectual, psychological, or psychiatric
impairment of the witness;
(c) the linguistic or cultural background or religious
beliefs of the witness;
(d) the nature of the proceeding;
(e) the relationship of the witness to the unrepresented
party;
(f) any other grounds likely to promote the purpose of this
Act.
(5) When considering whether or not to make an order under
subsection (3), the Judge must have regard to:
(a) the need to ensure the fairness of the proceeding and,
in a criminal proceeding, that the defendant has a
fair trial; and


2015, No. 47 Evidence 59

(b) the need to minimise the stress on the complainant or
witness; and
(c) any other factor that is relevant to the just
determination of the proceeding.
(6) A defendant or party to a proceeding who, under this
section, is precluded from personally cross-examining a witness
may have his or her questions put to the witness by:
(a) a lawyer engaged by the defendant; or
(b) if the defendant is unrepresented and fails or refuses to
engage a lawyer for the purpose within a
reasonable time specified by the Judge, a person
appointed by the Judge for the purpose.
(7) In respect of each such question, the Judge may:
(a) allow the question to be put to the witness; or
(b) require the question to be put to the witness in a form
rephrased by the Judge; or
(c) refuse to allow the question to be put to the witness.

81. Cross-examination on previous statements-(1) A party
who cross-examines a witness may question the witness about a
previous statement made by that witness without showing it or
disclosing its contents to the witness if the time, place, and other
circumstances concerning the making of the statement are
adequately identified to the witness.
(2) If a witness does not expressly admit making the statement
and the party wishes to prove that the witness did make the
statement:
(a) the party must show the statement to the witness if it is
in writing, or disclose its contents to the witness if
the statement was not in writing; and
(b) the witness must be given an opportunity to deny
making the statement or to explain any
inconsistency between the statement and the
witness’s testimony.
(3) Despite subsections (1) and (2), a party may only cross-
examine a witness on a previous statement if there is
inconsistency between the statement and the witness’s testimony.


60 Evidence 2015, No. 47

(4) If a document is used by a defendant for the purpose of
cross-examining a witness but is not offered as evidence by that
defendant, the following rights of the defendant are not affected:
(a) the defendant’s right to make a no-case application;
and
(b) the defendant’s rights in relation to the order of
addressing the court.

82. Re-examination-(1) On re-examination, a witness:
(a) may be questioned about matters arising out of
evidence given by the witness in cross-
examination, including any qualification in cross-
examination of evidence given by the witness in
examination-in-chief; but
(b) may not be questioned about any other matter, except
with the permission of the Judge.
(2) If permission is given by the Judge under subsection (1),
the Judge:
(a) must allow other parties to cross-examine the witness
on the additional evidence given; and
(b) may allow further re-examination on matters arising
out of that cross-examination.

83. Evidence following closure of party’s case-(1) In any
proceeding, a party may not offer further evidence after closing
that party’s case, except with the permission of the Judge.
(2) In a civil proceeding, the Judge may not grant permission
under subsection (1) if any unfairness caused to any other party
by the granting of permission cannot be remedied by an
adjournment or an award of costs, or both.
(3) In a criminal proceeding, the Judge may grant permission
to the prosecution under subsection (1) if:
(a) the further evidence relates to a purely formal matter;
or
(b) the further evidence relates to a matter arising out of
the conduct of the defence, the relevance of which
could not reasonably have been foreseen; or
(c) the further evidence was not available or admissible
before the prosecution’s case was closed; or

2015, No. 47 Evidence 61

(d) for any other reason the interests of justice require the
further evidence to be admitted.
(4) In a criminal proceeding, the Judge may grant permission
to a defendant under subsection (1) if the interests of justice
require the further evidence to be admitted.
(5) The Judge may grant permission under subsection (1):
(a) if there are assessors, at any time until the assessors
retire to consider their verdict;
(b) in any other proceeding, at any time until judgment is
delivered.

84. Judge may recall witness-(1) In any proceeding, the
Judge may recall a witness who has given evidence if the Judge
considers that it is in the interests of justice to do so.
(2) The Judge may recall a witness under subsection (1):
(a) if there are assessors, at any time until the assessors
retire to consider their verdict; or
(b) in any other proceeding, at any time until judgment is
delivered.

85. Questioning of witnesses by Judge-(1) In any
proceeding, the Judge may ask a witness any questions that, in the
opinion of the Judge, justice requires.
(2) If the Judge questions a witness:
(a) a party, other than the party who called the witness,
may cross-examine the witness on any matter
raised by the Judge’s questions; and
(b) the party who called the witness may re-examine the
witness.

Division 6 - Directions as to the manner
in which evidence is given

86. Directions as to alternative ways of giving evidence-(1)
In any proceeding, the Judge may, either on the application of a
party or on the Judge’s own initiative, direct that a witness is to
give evidence-in-chief and be cross-examined in the ordinary way
or in an alternative way as provided in section 88.


62 Evidence 2015, No. 47

(2) An application for directions under subsection (1) must be
made to the Judge as early as practicable before the proceeding is
to be heard, or at any later time permitted by the court.
(3) A direction under subsection (1) that a witness is to give
evidence in an alternative way, may be made on one (1) or more
of the following grounds:
(a) the age or maturity of the witness;
(b) the physical, intellectual, psychological, or psychiatric
impairment of the witness;
(c) the trauma suffered by the witness;
(d) the witness’s fear of intimidation;
(e) the linguistic or cultural background or religious
beliefs of the witness;
(f) the nature of the proceeding;
(g) the nature of the evidence that the witness is expected
to give;
(h) the relationship of the witness to any party to the
proceeding;
(i) the absence or likely absence of the witness from
Samoa;
(j) any other ground likely to promote the purpose of the
Act.
(4) In giving directions under subsection (1), the Judge must
have regard to:
(a) the need to ensure -
(i) the fairness of the proceeding; and
(ii) in a criminal proceeding, that there is a
fair trial; and
(b) the views of the witness and -
(i) the need to minimise the stress on the
witness; and
(ii) in a criminal proceeding, the need to
promote the recovery of a complainant from
the alleged offence; and
(c) any other factor that is relevant to the just
determination of the proceeding.


2015, No. 47 Evidence 63

87. Chambers hearing before directions for alternative
waysof giving evidence - If an application for directions is made
under section 86, before giving any directions about the way in
which a witness is to give evidence-in-chief and be cross-
examined, the Judge:
(a) must give each party an opportunity to be heard in
chambers; and
(b) may call for and receive a report, from any person
considered by the Judge to be qualified to advise,
on the effect on the witness of giving evidence in
the ordinary way or any alternative way.

88. Alternative ways of giving evidence-(1) A Judge may
direct, under section 86, that the evidence of a witness is to be
given in an alternative way so that:
(a) the witness gives evidence -
(i) while in the courtroom but unable to see
the defendant or some other specified person;
or
(ii) from an appropriate place outside the
courtroom, using any form of electronic
communications link, either in Samoa or
another country; or
(iii) by a video record made before the
hearing of the proceeding;
(b) any appropriate practical and technical means may be
used to enable the Judge, the assessors (if any), and
any lawyers to see and hear the witness giving
evidence, pursuant to any regulations made under
section 135;
(c) in a criminal proceeding, the defendant is able to see
and hear the witness, except where the Judge
directs otherwise;
(d) in a proceeding in which a witness anonymity order
has been made, effect is given to the terms of that
order.


64 Evidence 2015, No. 47

(2) If a video record of the witness’s evidence is to be shown
at the hearing of the proceeding, the Judge must give directions
under section 86 as to the manner in which cross-examination and
re-examination of the witness is to be conducted.
(3) The Judge may admit evidence that is given substantially
pursuant to the terms of a direction under section 86, despite a
failure to observe strictly all of those terms.

89. Video recorded evidence-(1) A video record offered as
an alternative way of giving evidence must be recorded in
compliance with any regulations made under this Act.
(2) A video record that is to be offered as an alternative way
of giving evidence in a proceeding must be offered for viewing by
all parties or their lawyers before it is offered in evidence, unless
the Judge directs otherwise.
(3) All parties must be given the opportunity to make
submissions about the admissibility of all or any part of a video
record that is to be offered as an alternative way of giving
evidence.
(4) If any party indicates that the party wishes to object to the
admissibility of all or any part of a video record that is to be
offered as an alternative way of giving evidence, that video record
must be viewed by the Judge.
(5) The Judge may order to be excised from a video record
offered as evidence any material that, if the evidence were given
in the ordinary way, would or could be excluded under this Act or
any other enactment.
(6) The Judge may admit a video record that is recorded and
offered as evidence substantially pursuant to the terms of any
direction under this Division and the terms of regulations referred
to in subsection (1), despite a failure to observe strictly all of
those terms.

90. Directions when child complainant gives evidence-(1)
In a criminal proceeding in which there is a child complainant,
the prosecution must apply to the court in which the case will be
tried for directions about the way in which the complainant is to
give evidence-in-chief and be cross-examined.


2015, No. 47 Evidence 65

(2) An application for directions under subsection (1) must be
made to the court as early as practicable before the case is to be
tried, or at any later time permitted by the court.
(3) When an application is made for directions under
subsection (1), before giving any directions about the way in
which the complainant is to give evidence-in-chief and be cross-
examined, the Judge:
(a) must give each party an opportunity to be heard in
chambers; and
(b) may call for and receive a report, from any persons
considered by the Judge to be qualified to advise,
on the effect on the complainant of giving evidence
in the ordinary way or any alternative way.
(4) When considering an application under subsection (1), the
Judge must have regard to:
(a) the need to ensure -
(i) the fairness of the proceeding; and
(ii) that there is a fair trial; and
(b) the views of the complainant and -
(i) the need to minimise the stress on the
complainant; and
(ii) the need to promote the recovery of the
complainant from the alleged offence; and
(c) any other factor that is relevant to the just
determination of the proceeding.

Division 7 - Evidence fromundercover police officers

91. Undercover police officers-(1) This section and section
92 apply if a person is being, or is to be, proceeded against:
(a) for any offence that is punishable by imprisonment for
life or for a term of at least seven (7) years; or
(b) for any other offence under the Narcotics Act 1967; or
(c) for conspiracy to commit, or for attempting to commit,
an offence described in paragraph (a) or (b).
(2) If, in any proceeding to which this section applies, it is
intended to call an undercover police officer as a witness for the
prosecution, the Commissioner of Police may before the hearing,


66 Evidence 2015, No. 47

file in the court in which the proceedings are to be held a
certificate issued and signed by the Commissioner stating, in
respect of that witness, the following particulars:
(a) that during the period specified in the certificate the
witness was a member of the police and acted as an
undercover police officer;
(b) that the witness has not been convicted of any offence
or (as the case may require) that the witness has
not been convicted of any offence other than the
offence, or offences, described in the certificate;
(c) that the witness has not been found guilty of a breach
of duty under the Police Service Act 2009, or (as
the case may require) that the witness has not been
found guilty of any breach of that kind, other than
a breach described in the certificate.
(3) In this section and in section 92, “undercover police
officer”, in relation to any proceeding to which this section
applies, means a police officer whose identity was concealed for
the purpose of any investigation relevant to the proceedings.

92. Effect of Commissioner’s certificate-(1) If, in any
proceeding to which section 91 applies, the Commissioner of
Police files a certificate under that section relating to any witness,
the following provisions apply:
(a) if a witness is subsequently called for the prosecution
and states that, during the period specified in the
certificate, he or she was a member of the police
and acted as an undercover police officer under the
name specified in the certificate, it must be
presumed, in the absence of proof to the contrary,
that the certificate has been given in respect of that
witness;
(b) it is sufficient if the witness is identified by the name
by which the witness was known while acting as
an undercover police officer, and, except if leave is
given under paragraph (d), the witness must not be
required to state his or her true name or address, or
to give any particulars likely to lead to the
discovery of that name or address;

2015, No. 47 Evidence 67

(c) except if leave is given under paragraph (d), no lawyer,
officer of the court, or other person involved in the
proceeding may state in court the true name or the
address of the witness, or give any particulars
likely to lead to the discovery of that name or
address;
(d) no evidence may be given, and no question may be put
to the witness, or to any other witness, relating
directly or indirectly to the true name or the
address of the witness, except by leave of the
Judge;
(e) on an application for leave under paragraph (d), the
certificate is, in the absence of evidence to the
contrary, sufficient evidence of the particulars
stated in it.
(2) The Judge may not grant leave under subsection (1)(d)
unless the Judge is satisfied:
(a) that there is some evidence before the Judge that, if
believed by the assessors, could call into question
the credibility of the witness; and
(b) that it is necessary in the interests of justice that the
defendant be enabled to test properly the
credibility of the witness; and
(c) that it would be impracticable for the defendant to test
properly the credibility of the witness if the
defendant were not informed of the true name or
the true address of the witness.
(3) An application for leave under subsection (1)(d):
(a) may be made from time to time and at any stage of the
proceeding; and
(b) must, where practicable, be made and dealt with in
chambers; and
(c) if the application is made during the trial before
assessors, the application must be dealt with and
determined by the Judge in the absence of the
assessors.
(4) If the Commissioner of Police gives a certificate
under section 91 in respect of any witness, the Commissioner
must serve a copy of the certificate on the defendant, or on any

68 Evidence 2015, No. 47

lawyer acting for the defendant, before the witness is to give
evidence.

Division 8 - Witness anonymity orders

93. Anonymity order may be made before trial-(1) This
section and section 94 of this Act apply if a person is charged
with an offence and is to be tried in the District Court or the
Supreme Court, where the trial has been transferred under the
Criminal Procedure Act 1972 or any other enactment.
(2) At any time after the person is charged, the prosecution or
the defendant may apply to a Judge of the Supreme Court for an
order:
(a) excusing the applicant from disclosing to the other
party prior to trial, the name, address, and
occupation of any witness, and (except with leave
of the Judge) any other particulars likely to lead to
the witness’s identification; and
(b) excusing the witness from stating his or her name,
address, and occupation, and (except with leave of
the Judge) any other particulars likely to lead to the
witness’s identification.
(3) The Judge must hear and determine the application in
chambers, and:
(a) the Judge must give each party an opportunity to be
heard on the application; and
(b) neither the party supporting the application nor the
witness need disclose any information that might
disclose the witness’s identity to any person (other
than the Judge) before the application is dealt with.
(4) The Judge may make the order if he or she believes on
reasonable grounds that:
(a) the safety of the witness or of any other person is likely
to be endangered, or there is likely to be serious
damage to property, if the witness’s identity is
disclosed before the trial; and
(b) withholding the witness’s identity until the trial would
not be contrary to the interests of justice.

2015, No. 47 Evidence 69

(5) Without limiting subsection (4), in considering the
application, the Judge must have regard to:
(a) the gravity of the offence; and
(b) the importance of the witness’s evidence to the case of
the party who wishes to call the witness; and
(c) whether it is practical for the witness to be protected
prior to the trial by any other means; and
(d) whether there is other evidence that corroborates the
witness’s evidence.
94. Effect of pre-trial anonymity order - If a pre-trial
witness anonymity order is made under section 93:
(a) the party who applied for the order must give the Judge
the name, address, and occupation of the witness;
and
(b) a lawyer, officer of the court, or other person must not
disclose the name, address, or occupation of the
witness, or any other particulars likely to lead to
the witness’s identification; and
(c) any formal statement filed must not disclose the name,
address, or occupation of the witness or any other
particulars likely to lead to the witness’s
identification; and
(d) during the course of any pre-trial examination of the
witness -
(i) no oral evidence may be given, and no
question may be put to any witness, if the
evidence or question relates to the name,
address, or occupation of the witness who is
subject to the order; and
(ii) except with leave of a Judge of the
Supreme Court, no oral evidence may be given,
and no question may be put to any witness, if
the evidence or question relates to any other
particulars likely to lead to the identification of
the witness who is subject to the order; and
(e) a person must not publish, in any report or account
relating to the proceeding, the name, address, or
occupation of the witness, or any other particulars
likely to lead to the witness’s identification.

70 Evidence 2015, No. 47

95. Orders and directions necessary to preserve
anonymity-(1) A Judge who makes an order under section 93
may, for the purposes of trial (as the case may be), also make any
orders and give any directions that the Judge considers necessary
to preserve the anonymity of the witness, including (without
limitation) one (1) or more of the following directions:
(a) that the court be cleared of members of the public;
(b) that the witness be screened from the defendant;
(c) that the witness give evidence by closed-circuit
television or by video link.
(2) In considering whether to give directions concerning the
mode in which the witness is to give his or her evidence at the
trial, the Judge must have regard to the need to protect the witness
while at the same time ensuring a fair hearing for the defendant.
(3) This section does not limit:
(a) any statutory provision or rule of law which confers
power to deal with contempt of court; or
(b) any statutory provision or rule of law which confers
power to clear the court; or
(c) any power of the court to direct that evidence be given,
or to permit evidence to be given, by a particular
mode.

96. Variation or discharge of anonymity order - At any
time before a witness gives evidence during a trial, a Supreme
Court Judge may, on the Judge’s own initiative or on the
application of either party, vary or discharge a witness anonymity
order made for the purposes of the proceeding under section 93.

97. Offence of breaching anonymity order-(1) A person
commits an offence who, with knowledge of a pre-trial witness
anonymity order made under section 93, intentionally
contravenes section 940, (c) or (e), and is liable on conviction to
imprisonment for a term not exceeding seven (7) years.
(2) If a person contravenes section 94(b), (c) or (e), and that
contravention does not constitute an offence against subsection
(1), the person commits an offence and is liable on conviction:
(a) for an individual, to a fine not exceeding 50 penalty
units; and

2015, No. 47 Evidence 71

(b) for a body corporate, to a fine not exceeding 500
penalty units.
(3) This section does not limit the power of any court to
punish any contempt of court.

Division 9 - Corroboration and judicial directions

98. Corroboration generally not necessary-(1) It is not
necessary in a criminal proceeding for the evidence on which the
prosecution relies to be corroborated, except with respect to the
offences ofperjury or treason under the Crimes Act 2013.
(2) Subject to subsection (1) and section 99, if in a criminal
proceeding there are assessors, the Judge must not:
(a) warn the assessors that it is dangerous to act on
uncorroborated evidence or to give a warning to
the same or similar effect; or
(b) give a direction relating to the absence of
corroboration.

99. Judge may direct assessors as to reliability of evidence-
(1) If, in a criminal proceeding tried with assessors, the Judge is
of the opinion that any evidence given in that proceeding that is
admissible may nevertheless be unreliable, the Judge may warn
the assessors of the need for caution in deciding:
(a) whether to accept the evidence;
(b) the weight to be given to the evidence.
(2) In a criminal proceeding tried with assessors the Judge
must consider whether to give a warning under subsection (1)
whenever the following evidence is given:
(a) hearsay evidence;
(b) evidence given by a witness who has a motive to give
false evidence that is prejudicial to a defendant, if
that evidence is the only evidence implicating the
defendant;
(c) evidence about the conduct of the defendant if that
conduct is alleged to have occurred more than 10
years previously.


72 Evidence 2015, No. 47

(3) In a criminal proceeding tried with assessors, a party may
request the Judge to give a warning under subsection (1) but the
Judge may refuse that request if the Judge is of the opinion that:
(a) to do so might unnecessarily emphasise evidence; or
(b) there is any other good reason.
(4) It is not necessary for a Judge to use a particular form of
words in giving the warning.
(5) If there are no assessors, the Judge must bear in mind the
need for caution before convicting a defendant in reliance on
evidence of a kind that may be unreliable.
(6) This section does not affect any other power of the Judge
to warn or inform the assessors.

100. Directions when evidence given under certain
conditions-(1) The Judge must give the direction referred to in
subsection (2) if, in a criminal proceeding tried with assessors:
(a) a witness offers evidence in an alternative way under
this Part; or
(b) the defendant is not permitted to personally cross-
examine a witness; or
(c) a witness offers evidence under a witness anonymity
order.
(2) The direction required by subsection (1) is a direction to
the assessors that:
(a) the law makes special provision for the manner in
which evidence is to be given, or questions are to
be asked, in certain circumstances; and
(b) the assessors must not draw any adverse inference
against the defendant because of that manner of
giving evidence or questioning.

101. Directions as to lies told by defendant-(1) This section
applies if evidence offered in a criminal proceeding suggests that
a defendant has lied either before or during the proceeding.
(2) If evidence of a defendant’s lie is offered in a criminal
proceeding tried with assessors, the Judge is not obliged to give a
specific direction as to what inference the assessors may draw
from that evidence.


2015, No. 47 Evidence 73

(3) Despite subsection (2), if, in a criminal proceeding tried
with assessors, the Judge is of the opinion that the assessors may
place undue weight on evidence of a defendant’s lie, or if the
defendant so requests, the Judge must warn the assessors that:
(a) the assessors must be satisfied before using the
evidence that the defendant did lie; and
(b) the assessors should not necessarily conclude that, just
because the defendant lied, the defendant is guilty
of the offence for which the defendant is being
tried.
(4) In a criminal proceeding tried without assessors, the Judge
must have regard to the matters set out in subsection (3) before
placing any weight on evidence of a defendant’s lie.

102. Directions as to evidence given by a childand judicial
warning about identification evidence-(1) In a criminal
proceeding tried with assessors in which the complainant is a
child at the time when the proceeding commences, the Judge
must not give any warning to the assessors about the absence of
corroboration of the evidence of the complainant if the Judge
would not have given that kind of a warning had the complainant
been an adult.
(2) In a proceeding tried with assessors in which a witness is a
child, the Judge must not, unless expert evidence is given in that
proceeding supporting the giving of the following direction or the
making of the following comment:
(a) instruct the assessors that there is a need to scrutinise
the evidence of children generally with special
care; or
(b) suggest to the assessors that children generally have
tendencies to invent or distort.
(3) In a criminal proceeding tried with assessors in which the
case against the defendant depends wholly or substantially on the
correctness of visual identification of the defendant or any other
person, the Judge must warn the assessors of the special need for
caution before finding the defendant guilty in reliance on the
correctness of any of the identifications.


74 Evidence 2015, No. 47

(4) The warning need not be in any particular words but must:
(a) warn the assessors that a mistaken identification can
result ina serious miscarriage of justice; and
(b) alert the assessors to the possibility that a mistaken
witnessmay be convincing; and
(c) where there is more than one (1) identification witness,
referto the possibility that all of them may be
mistaken.

103. Failure or delay in complaining in sexual cases-(1)
Subsection (2) applies if, in a sexual case tried with assessors,
evidence is given or a question is asked or a comment is made
that tends to suggest that the person against whom the offence is
alleged to have been committed either delayed making or failed
to make a complaint in respect of the offence.
(2) If this subsection applies, the Judge must tell the assessors
that there can be good reasons for the victim of an offence of that
kind to delay making or fail to make a complaint in respect of the
offence.
Division 10 - Uncontroverted facts
and reliable public documents
104. Asserted fact may be accepted without evidence-(1) A
Judge or the assessors may take notice of facts so known and
accepted either generally or in the locality in which the
proceeding is being held that they cannot reasonably be
questioned.
(2) A Judge may:
(a) acquire knowledge mentioned in subsection (1) in any
way the Judge thinks fit; and
(b) take notice of facts capable of accurate and ready
determination by reference to sources whose
accuracy cannot reasonably be questioned and, if
the proceedings are with assessors, may direct the
assessors in relation to the matter.
105. Admission of reliable published documents-(1) A
Judge may, in matters of public history, literature, science,
or art, admit as evidence any published documents that the Judge

2015, No. 47 Evidence 75

considers to be reliable sources of information on the subjects to
which they respectively relate.
(2) Division 1 of Part 2 does not apply to evidence referred to
under subsection (1).

106. Authenticity of public documents-(1) Subsection (2)
applies to a document that purports to be a public document, or a
copy of or an extract from or a summary of a public document,
and to have been:
(a) sealed with the seal of a person or a body that might
reasonably be supposed to have the custody of that
public document; or
(b) certified to be such a copy, extract, or summary by a
person who might reasonably be supposed to have
the custody of that public document.
(2) If this subsection applies, the document is presumed,
unless the Judge decides otherwise, to be a public document or a
copy of the public document or an extract from or summary of the
public document and may be offered in evidence to prove the
truth of its contents.
(3) If an officer entrusted with the custody of a public
document is required by a Judge to produce the public document,
it is sufficient compliance with the requirement for the officer to
produce a copy of, or extract from, the public document if it
purports to be signed and certified by the officer as a true copy or
extract.
(4) It is sufficient production of a copy or extract for
subsection (3) if the officer sends it by prepaid post, or delivers it,
to:
(a) the Registrar of the court in which it is to be produced;
or
(b) the Judge before whom it is to be produced.
(5) The Judge before whom a copy or extract is produced
under subsection (3) may direct the officer to produce the original
public document.
(6) Subdivision A of Division 1 of Part 2 does not apply to
evidence offered under this section.


76 Evidence 2015, No. 47

107. Evidence of convictions, acquittals and proceedings-
(1) Evidence of the following facts, if admissible, may be given
by a certificate purporting to be signed by a Judge, a Registrar, or
other officer having custody of the relevant court records:
(a) the conviction or acquittal of a person charged with an
offence and the particulars of the offence charged
and of the person (including the name and date of
birth of the person if the person is an individual,
and the name and date and place of incorporation
of the person if the person is a body corporate);
(b) the sentencing by a court of a person to any penalty or
other disposition of the case following a plea or
finding of guilt, and the particulars of the offence
for which that person was sentenced or otherwise
dealt with and of the person (including the name
and date of birth of the person if the person is an
individual, and the name and date and place of
incorporation of the person if the person is a body
corporate);
(c) an order or judgment of a court and the nature, parties,
and particulars of the proceeding to which the
order or judgment relates;
(d) the existence of a criminal or civil proceeding, whether
or not the proceeding has been concluded, and the
nature of the proceeding.
(2) A certificate under this section is sufficient evidence of the
facts stated in it without proof of the signature or office of the
person appearing to have signed the certificate.
(3) The manner of proving the facts referred to in subsection
(1) authorised by this section is in addition to any other manner of
proving any of those facts authorised by law.
(4) Subsection (5) applies if:
(a) a certificate under this section is offered in evidence in
a proceeding for the purpose of proving the
conviction or acquittal of a person, or the sentence
by a court of a person to a penalty, or an order
made by a court concerning a person; and


2015, No. 47 Evidence 77

(b) the name of the person stated in the certificate is
substantially similar to the name of the person
concerning whom the evidence is offered.
(5) If this subsection applies, it is presumed, in the absence of
evidence to the contrary, that the person whose name is stated in
the certificate is the person concerning whom the evidence is
offered.
(6) Subdivision A of Division 1 of Part 2 does not apply to
evidence offered under this section.

108. Proof of conviction from fingerprints-(1) A certificate
is admissible in evidence to prove the identity of a person alleged
to have been convicted in a country of an offence if:
(a) the certificate purports to be signed by a fingerprint
examiner; and
(b) copies of the fingerprints of the person are exhibited or
shown on the certificate; and
(c) the certificate certifies that those copies are copies of
the fingerprints of a person who was convicted in
the fingerprint examiner’s country of the offence
of which particulars are given.
(2) Subsection (3) applies to a certificate that:
(a) purports to be signed by a fingerprint examiner; and
(b) certifies that the copies of the fingerprints that are
exhibited or shown on the certificate made under
subsection (1) and the fingerprints of the person in
respect of whom a conviction is sought to be
proved (a copy of which is exhibited or shown on
the certificate made under this subsection) are the
fingerprints of the same person.
(3) A certificate to which subsection (2) applies is, unless the
Judge decides otherwise, evidence that the person in respect of
whom the conviction is sought to be proved was convicted of the
offence of which particulars were given in the certificate made
under subsection (1).
(4) The manner of proving a conviction authorised by this
section is in addition to any other manner of proving the
conviction authorised by law.


78 Evidence 2015, No. 47

(5) In this section, “fingerprint examiner” means a fingerprint
examiner who is:
(a) a member or employee of the Samoa Police Service; or
(b) a member or employee of a police force in an overseas
country.
(6) Division 1 of Part 2 does not apply to evidence offered
under this section.

109. Samoan and foreign official documents-(1) Subsection
(2) applies to a document that purports:
(a) to have been printed in the Savali or Gazette; or
(b) to have been printed or published by authority of the
Government; or
(c) to have been printed or published by order of or under
the authority of the Legislative Assembly.
(2) If this subsection applies, the document is presumed,
unless the Judge decides otherwise, to be what it purports to be
and to have been so printed and published and to have been
published on the date on which it purports to have been published.
(3) Subsection (4) applies to a document that purports:
(a) to have been printed or published in a government or
official gazette (by whatever name called) of a
foreign country; or
(b) to have been printed or published by the government or
official printer of a foreign country; or
(c) to have been printed or published by the authority of
the legislative, executive, or judicial branch of the
government of a foreign country; or
(d) to have been printed or published by an international
organisation.
(4) If this subsection applies, the document is presumed,
unless the contrary is proved, to be what it purports to be and to
have been printed or published in the manner provided in
subsection (3) and to have been published on the date on which it
purports to have been published.
(5) Subdivision A of Division 1 of Part 2 does not apply to
evidence offered under this section.


2015, No. 47 Evidence 79

110. Evidence of foreign law-(1) A party may offer as
evidence of a statute or other written law, proclamation, treaty, or
act of State, of a foreign country:
(a) evidence given by an expert; or
(b) a copy of the statute or other written law,proclamation,
treaty, or act of State that is certified as a true copy
by a person who might reasonably be supposed to
have the custody of the statute or other written law,
proclamation, treaty, or act of State; or
(c) any document containing the statute or other written
law, proclamation, treaty, or act of State that
purports to have been issued by the government or
official printer of the country or by authority of the
government or administration of the country; or
(d) any document containing the statute or other written
law, proclamation, treaty, or act of State that
appears to the Judge to be a reliable source of
information.
(2) In addition, or as an alternative, to the evidence of an
expert, a party may offer as evidence of the unwritten or common
law of a foreign country, or as evidence of the interpretation of a
statute or other written law or a proclamation of a foreign
country, a document:
(a) containing reports of judgments of the courts of the
country; and
(b) that appears to the Judge to be a reliable source of
information about the law of that country.
(3) A party may offer as evidence of a statute or other written
law of a foreign country, or of the unwritten or common law of a
foreign country, any publication:
(a) that describes or explains the law of that country; and
(b) that appears to the Judge to be a reliable source of
information about the law of that country.
(4) A Judge is not bound to accept or act on a statement in
any document as evidence of the law of a foreign country.
(5) In this section, “statute of a foreign country” includes any
regulation, rule, bylaw, or other instrument of subordinate
legislation of the country.


80 Evidence 2015, No. 47

(6) Subdivision A of Division 1 of Part 2 does not apply to
evidence offered under this section.

111. Notification in official document of doing any act-(1)
Subsection (2) applies if the doing of an act by the Head of State
or Cabinet, or Legislative Assembly, or by a person authorised to
do the act by the law of Samoa, is notified or published in:
(a) the Savali or Gazette; or
(b) a document that was printed or published by the
authority of the Government; or
(c) a document that was printed or published by order of
or under the authority of the Legislative Assembly.
(2) If this subsection applies, it is presumed, unless the Judge
decides otherwise, that the act was done and that it was done on
the date (if any) that appears in the Savali, Gazette or document.
(3) Subsection (4) applies if the doing of an act by a foreign
legislature or a person authorised to do the act by the law of a
foreign country is notified or published in:
(a) a government or official gazette (by whatever name
called) of a foreign country; or
(b) a document that was printed or published by the
government or official printer of a foreign country;
or
(c) a document that was printed or published by the
authority of the legislative, executive, or judicial
branch of the government of a foreign country.
(4) If this subsection applies, it is presumed, unless the
contrary is proved, that the act was done and that it was done on
the date (if any) that appears in the government or official gazette
(however described) or other document.
(5) If the doing of an act by an international organisation is
notified or published in a document that was printed or published
by the international organisation, it is presumed, unless the
contrary is proved, that the act was done and that it was done on
the date (if any) that appears in the document.
(6) Subdivision A of Division 1 of Part 2 does not apply to
evidence offered under this section.


2015, No. 47 Evidence 81

Division 11 - Evidence taken in Samoa for
use in overseas criminal proceeding

112. Definition - In this Division:
“Judge” means a Judge of the Supreme Court;
“overseas court” means a court or tribunal exercising
jurisdiction in another country;
“overseas representative:
(a) means any Ambassador, High Commissioner,
Commissioner, Minister, Counsellor, Chargé
d’Affaires, Head of Mission, Consular Officer, or
Pro-consul of another country exercising
jurisdiction in Samoa; and
(b) includes -
(i) any person lawfully acting for any of
those officers; or
(ii) any Diplomatic Secretary on the staff of
any such Ambassador, High Commissioner,
Commissioner, Minister, Counsellor, Chargé
d’Affaires, or Head of Mission.
“Supreme Court” means the Supreme Court of Samoa.

113. Examination of witness at request of overseas court-
(1) If any criminal proceedings (not being criminal proceedings
of a political character) are pending before any country’scourt of
competent jurisdiction, and that court wishes to obtain the
evidence of any witness in Samoa for the purposes of those
proceedings, the Supreme Court or a Judge may order the
examination of the witness on oath, by interrogatories, or
otherwise, before any person named in the order.
(2) An order under subsection (1) may be made on the
application of the parties to the proceeding before the overseas
court or on the application of the Attorney-General.
(3) Despite subsection (2):
(a) an application for an order under subsection (1) must
be made pursuant to any prescribed requirements;
and


82 Evidence 2015, No. 47

(b) the right of the Attorney-General to make an
application of that kind is subject to any prescribed
restrictions.
(4) An order made under subsection (1) may be enforced in
the same manner as if it were an order made by the Supreme
Court or the Judge in proceedings pending in the Supreme Court
or before the Judge.

114. Powers may be exercised by Registrar-(1) A Judge
may authorise a Registrar of the Supreme Court to exercise the
powers of the Supreme Court or the Judge under section 113,
either:
(a) generally; or
(b) in respect of a particular case or class of cases.
(2) An authorisation under subsection (1) may be revoked at
any time by any Judge.
(3) If, in the opinion of the Registrar, any matter that he or she
has jurisdiction to deal with under an authorisation under
subsection (1) is of special difficulty, the Registrar may refer the
matter to a Judge who may:
(a) dispose of it; or
(b) refer it back to the Registrar with any directions that
the Judge considers appropriate.
(4) Nothing in this section prevents the exercise by the
Supreme Court or any Judge of any powers conferred on a
Registrar under this section.
(5) In this section, “Registrar” does not include an Assistant
Registrar of the Supreme Court.

115. Evidence in support of application-(1) Evidence that
any criminal proceedings are pending in an overseas court and
that the court wishes to obtain the evidence of the witness to
whom the application relates for the purposes of those
proceedings, may be given by:
(a) Letter of Request; or
(b) another document issued by that court; or
(c) the certificate of an overseas representative given
under subsection (3); or


2015, No. 47 Evidence 83

(d) other process that the Supreme Court or a Judge may
accept.
(2) Any Letter of Request or other document purporting to be
sealed with the seal of any overseas court or signed by a judge or
other judicial officer or by a Registrar or other officer of the
overseas court must for the purpose of this section and section
113 be received in evidence without proof of:
(a) the seal of the overseas court; or
(b) the signature of the Judge or other person; or
(c) the judicial or official character of the judge or other
person.
(3) A certificate purporting to be signed by an overseas
representative to the effect that any matter in relation to which an
application is made under section 113 is a criminal proceeding
pending in a court having jurisdiction in the proceeding in the
country of which he or she is a representative and that the court
having that jurisdiction wishes to obtain the testimony of the
witness to whom the application relates, is sufficient evidence of
the matters set out in the certificate.
(4) A certificate given under subsection (3) must be received
in evidence without proof of:
(a) the signature of the person who signed the certificate;
and
(b) the official character of that person.

116. Protection of witness-(1) A person may not be
compelled by an order under section 113 to give evidence which
the person could not be compelled to give in criminal proceedings
in Samoa.
(2) A person may not be compelled by an order under section
113 to give any evidence if the giving of that evidence would:
(a) infringe the jurisdiction of Samoa; or
(b) otherwise be prejudicial to the security or sovereignty
of Samoa; or
(c) be likely to be prejudicial to the trading, commercial,
or economic interests of Samoa; and,
a certificate signed by the Attorney-General to the effect that it
would be or, as the case requires, is likely to be so prejudicial for
that person to do so is conclusive evidence of that fact.

84 Evidence 2015, No. 47

(3) In this section “giving evidence” includes:
(a) answering any question; or
(b) producing any document.

117. Requesting authority may be asked to pay expenses -
A witness required to attend for examination by an order made
under section 113 is entitled to a sum for allowances and
travelling expenses applicable to witnesses in the Supreme Court.

Division 12 - Evidence by video link

118. Evidence and submissions by video link and telephone
conference from another country-(1) On the application of a
party to a proceeding before a court, the court may, if it is
satisfied that the necessary facilities and equipment are available,
or can reasonably be made available, and that evidence or
submissions in the proceeding could more conveniently be given
or made from another country, direct that evidence be given from
that other country, or submissions be made from that other
country, by video link or telephone conference.
(2) Unless the court otherwise orders, the costs incurred in
giving evidence or making submissions by video link or telephone
conference and transmitting the evidence or submissions, pursuant
to a direction given under subsection (1), must be paid by the
applicant.
(3) The court may make an order specifying the amount
payable by a party under subsection (2), and requiring the party to
pay that amount.

119. Powers of courts-(1) For the purposes of the taking of
evidence or the receiving of submissions by video link or
telephone conference from another country under section 118,
thecourt in Samoa may exercise in that other country all its
powers which it is permitted to exercise in that other country
under the laws of that other country.
(2) For the purposes of taking evidence from a witness in
Samoa or hearing submissions from a person in Samoa, a court of
another country may exercise in Samoa any of its powers, except
its powers to:

2015, No. 47 Evidence 85

(a) punish for contempt; and
(b) enforce or execute its judgments or process.
(3) Subject to subsection (2), the laws of that other country
that apply to the proceeding in that other country also apply to the
practice and procedure of the court of that other country in taking
evidence or receiving submissions from a person in Samoa.

120. Evidence and submissions by video link - Evidence
must not be given or submissions made by video link from
another country unless the courtroom or other place where the
court is sitting in Samoa and the place where the evidence is to be
given or the submissions are to be made in Samoa are equipped
with video facilities that:
(a) enable persons present at the place where the court is
sitting in Samoa to see and hear the person giving
evidence or making the submissions in that other
country; and
(b) enable persons present at the place where the evidence
is given or the submissions are made in that other
country to see and hear persons at the place where
the court is sitting in Samoa.

121. Evidence and submissions by telephone - Evidence
must not be given or submissions must not be made by telephone
conference from another country unless the courtroom or other
place where the court is sitting in Samoa and the place where the
evidence is to be given or the submissions are to be made in that
other country are equipped with telephone conference facilities
that:
(a) enable persons present at the place where the court is
sitting in Samoa to hear the person giving evidence
or making the submissions in that country; and
(b) enable persons present at the place where the evidence
is given or the submissions are made in that
country to hear persons at the place where the
court is sitting in Samoa.


86 Evidence 2015, No. 47

PART 5
JUDICIAL NOTICE AND DOCUMENTARY
EVIDENCE

122. Judicial notice of enactments and court judgments-(1)
Proof is not required about:
(a) the provisions and coming into operation (all or in part)
of -
(i) the Constitution; or
(ii) an Act or Ordinance; or
(iii) a regulation, rule, order, determination,
notice or by-law made, or purporting to be
made, under an Act or Ordinance mentioned in
paragraph (a); or
(iv) an instrument of a legislative character
made, or purporting to be made, under an Act
or Ordinance mentioned in paragraph (a), that
is an instrument whether or not required by or
under a law to be published, or the making of
which is required by or under a law to be
notified, in the Gazette or Savali or other
publication; or
(b) an order or judgment of a court and the nature, parties,
and particulars of the proceeding to which the
order or judgment relates.
(2) A Judge may inform himself or herself about those matters
in any way the judge thinks fit.
(3) In this section “Act” includes any Act revised and
consolidated pursuant to the Revision and Publication of Laws
Act 2008.
123. Certificates for international affairs - This Part
includes the application of the principles and rules of common
law and equity relating to the effect of a certificate given by or on
behalf of Samoa in relation to a matter of international affairs.

124. Evidence produced by processes, machines and other
devices-(1)This section applies to a document or thing:
(a) that is produced completely or partly by a device or
process; and

2015, No. 47 Evidence 87

(b) that is tendered by a party who asserts that, in
producing the document or thing, the device or
process has produced a particular outcome.
(2) If it is reasonably open to find that the device or process is
one that, or is of a kind that, if properly used, ordinarily produces
that outcome, it is presumed (unless the contrary is proved) that,
in producing the document or thing on the occasion in question,
the device or process produced that outcome.
125. Documents produced by processes, machines and
other devices in the course of business-(1) This section applies
to a document:
(a) that is produced completely or partly by a device or
process; and
(b) that is tendered by a party who asserts that, in
producing the document, the device or process has
produced a particular outcome.
(2) If:
(a) the document is, or was at the time it was produced,
part of the records of, or kept for the purposes of, a
business (whether or not the business is still in
existence); and
(b) the device or process is or was at that time used for the
purposes of the business,
it is presumed (unless the contrary is proved) that, in producing
the document on the occasion in question, the device or process
produced that outcome.
(3) Subsection (2) does not apply to the contents of a
document that was produced:
(a) for the purpose of conducting, or for or in
contemplation of or in connection with, a Samoan
or overseas proceeding; or
(b) in connection with an investigation relating or leading
to a criminal proceeding.

126. Evidence of certain acts of lawyers and notaries
public - It is presumed, unless the contrary is proved, that a
document was attested or verified by, or signed or acknowledged
before, a lawyer or notary public, if:

88 Evidence 2015, No. 47

(a) a law of Samoa requires, authorises or permits it to be
attested, verified, signed or acknowledged by the
lawyer or notary public; and
(b) it purports to have been attested, verified, signed or
acknowledged in that way.

127. Attestation of documents - It is not necessary to present
the evidence of an attesting witness to a document (other than a
testamentary document) to prove that the document was signed or
attested as it purports to have been signed or attested.

128. Seals and signatures-(1) If the imprint of a seal appears
on a document and purports to be the imprint of:
(a) the Public Seal of Samoa; or
(b) any other seal of Samoa or the Government; or
(c) a seal of a foreign country; or
(d) the seal of a body (including a court or a tribunal), or a
body corporate, established by the law of Samoa or
of a foreign country,
it is presumed, unless the contrary is proved, that the imprint is
the imprint of the seal, and the document was sealed as it purports
to have been sealed.
(2) If the imprint of a seal appears on a document and purports
to be the imprint of the seal of an office holder, it is presumed,
unless the contrary is proved, that:
(a) the imprint is the imprint of the seal; and
(b) the document was sealed by the office holder acting in
the office holder’s official capacity; and
(c) the office holder held the relevant office when the
document was sealed.
(3) If a document purports to have been signed by an office
holder in the office holder’s official capacity, it is presumed,
unless the contrary is proved, that:
(a) the document was signed by the office holder acting in
that capacity; and
(b) the office holder held the relevant office when the
document was signed.
(4) This section applies to documents sealed, and documents
signed, before the commencement of this section.

2015, No. 47 Evidence 89

(5) In this section, “office holder” means:
(a) the Head of State; or
(b) a person holding any other office under the law of
Samoa or of a foreign country.

129. Documents 20 years old produced from proper
custody - If a document that is or purports to be more than 20
years old is produced from proper custody, it is prima facie
evidence of the document, unless the contrary is proved.

130. Evidence of official records-(1) Evidence of record or
public document of the Government may be presented by
producing a document that:
(a) purports to be the record or document and to be signed
or sealed by -
(i) a Minister; or
(ii) a person who might reasonably be
supposed to have custody of the record or
document; or
(b) purports to be a copy of or extract from the record or
document that is certified to be a true copy or
extract by -
(i) a Minister; or
(ii) a person who might reasonably be
supposed to have custody of the record or
document.
(2) If the document is produced, it is presumed (unless the
contrary is proved) that:
(a) the document is the record, public document, copy or
extract that it purports to be; and
(b) the Minister or person -
(i) signed or sealed the record; or
(ii) certified the copy or extract as a true
copy or extract.

131. Evidence of certain public documents-(1) If:
(a) a public document, or a certified copy of a public
document, is admissible; and


90 Evidence 2015, No. 47

(b) it purports to be sealed, or signed and sealed, or signed
alone, as directed by the law of Samoa,
it is admissible in evidence to the same extent and for that purpose
in all courts of Samoa:
(c) without proof of -
(i) the seal or signature; or
(ii) the official character of the person
appearing to have signed it; and
(d) without further proof in every case in which the
original document could have been received in
evidence.
(2) A public document that is admissible in evidence without
proof of:
(a) the seal or signature authenticating the document; or
(b) the judicial or official character of the person
appearing to have signed the document,
is admissible in evidence to the same extent and for any purpose
in all courts of Samoa without that proof.
(3) This section only applies to documents that are public
records of theGovernment.
(4) A document to which this section applies is admissible
unless the contrary is proved.

132. Official statistics - A document that purports:
(a) to be published by the Government Statistician; and
(b) to contain statistics or abstracts compiled and analysed
by the Government Statistician under the Statistics
Act 2015,
is evidence that the statistics or abstracts were compiled and
analysed by the Government Statistician under that Act.

133. Documents may be impounded - The court may direct
that a document that has been tendered or produced before the
court (whether or not it is admitted in evidence) must be
impounded and kept in the custody of an officer of the court or
another person for the period, and subject to the conditions, that
the court thinks fit.


2015, No. 47 Evidence 91

PART 6
MISCELLANEOUS

134. Rules-(1) In the case of the Supreme Court and the
Court of Appeal, rules may be made for the purposes of this Act
under section 40 of the Judicature Ordinance 1961 that make
provision for, relate to, or authorise Rules in relation to:
(a) the issuing of summonses to witness or to produce
documents and the service of those summonses;
(b) the hearing or disposal of applications for orders under
any specified provisions in this Act;
(c) the lodging of documents or things with the court of
another country in compliance with a Samoan
summons that requires only the production of
documents or things by a witness;
(d) the transmission of documents or things lodged with a
Samoan court in compliance with another
country’s summons to the court that issued the
summons;
(e) the giving of evidence and the making of submissions
by video link or telephone conference in
connection with proceedings before a Samoan
court or a court of another country;
(f) the receiving of facsimiles (or other electronic
transmission) of documents or things;
(g) the form of Samoan summonses and other documents;
(h) such other matters as are contemplated by or necessary
for giving full effect to the matters in this section.
(2) For other courts, rules or, as the case may be, regulations
may be made under the authority of any enactment that provides
for the making of rules or regulations governing the practice and
procedure of the court that make provision for or relate to any of
the matters referred to in subsection (1).

135. Regulations-(1) The Head of State, acting on the advice
of Cabinet, may make regulations to give effect to the provisions
or for the purposes of this Act, and in particular may make
regulations:


92 Evidence 2015, No. 47

(a) fixing, and requiring the payment of, fees and expenses
for or incurred in taking evidence under this Part;
(b) prescribing the matters in respect of which fees are
payable under this Part and the amounts of those
fees;
(c) regulating the payment of expenses in respect of
expenses incurred in complying with Samoan
summons;
(d) prescribing the procedure to be followed, the type of
equipment to be used, and the arrangements to be
made where a person’s evidence is to be video
recorded;
(e) providing for the approval of interviewers, or class of
interviewers, for child complainants, and providing
for the approvals to be proved by production of
certificates in the prescribed form;
(f) regulating the way in which evidence of a witness may
be given in an alternative way;
(g) prescribing the form of certificate by which an
interviewer is to formally identify a video record;
(h) regulating the video recording of evidence;
(i) providing for the consent of persons to be video
recorded and specifying who may give consent on
behalf of children who are to be video recorded;
(j) prescribing the uses to which any video records may be
put and prohibiting their use for other purposes;
(k) providing for the safe custody of video records
intended to be offered as evidence;
(l) providing for the preparation of transcripts of video
records and for their uses and safe custody;
(m) regulating the provision of communication assistance
to defendants and witnesses;
(n) providing for requirements, in addition to those set out
in section 35, for formal procedures that are held to
obtain visual identification evidence;
(o) regulating the form of warnings or information that can
be given by a Judge in relation to evidence given
by children under the age of six (6) years in a
proceeding tried by assessors;

2015, No. 47 Evidence 93

(p) regulating the translation of documents into English or
Samoan;
(q) providing matters required to be prescribed by this Act.
(2) Any fee and expenses prescribed under this Act is subject
to the prior approval of the National Revenue Board established
under the Public Finance Management Act 2001.

136. Repeal, transitional and saving provisions-(1) The
Evidence Ordinance 1961 is repealed.
(2) A witness, or a party calling a witness, may apply
undersection 80(3), before the commencement of that provision,
for an order under that provision, restricting any cross-
examination that is to take place after the commencement of that
provision.
(3) A party may make an application for directions
undersection 86, before the commencement of that provision, for
the purpose of ensuring that the application for directions
permitted under that provision in respect of the giving of
evidence-in-chief by a witness and his or her cross-examination
after the commencement of that provision in any proceedings, is
made as early as practicable before the proceeding is to be heard.
(4) The prosecution may make an application for directions
under section 90 before the commencement of that provision, for
the purpose of ensuring that the application required under that
section in respect of the giving of evidence-in-chief by the child
complainant and his or her cross-examination after the
commencement of that provision, is made as early as practicable
before the case is to be tried.
(5) If, under this section, any person has the right to apply to a
Judge under any provision before its commencement for any
order or directions, the Judge also has power, before the
commencement of the provision, to exercise any of the powers
conferred by that provision on a Judge.
(6) This Act applies to any criminal or civil proceeding
(instituted before commencement of this Act), which has not
commenced its substantive hearing or trial at the commencement
of this Act.

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(7) The Evidence Ordinance 1961 (despite its repeal)
continues to apply to any criminal or civil proceeding (instituted
before commencement of this Act) that has commenced its
substantive hearing or trial at the commencement of this Act,
including hearing and determination of appeal or review relating
to that proceeding.

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The Evidence Act 2015 is administered by the
Ministry of Justice and Courts Administration.