§ 279 — Procedure to determine admissibility of evidence

279.—(1) Subject to this Code and any other written law relating to the admissibility of evidence, where any party objects to the admissibility of any statement made by that party or any other evidence which the other party to the case intends to tender at any stage of the trial, the court must determine it separately at an ancillary hearing before continuing with the trial.Illustrations

(a)

Evidence is to be given of a tape recording that is said to be of a conversation between X and Y. There is an objection that the tape has been tampered with. The court must hold an ancillary hearing to determine its admissibility.

(b)

X is accused of murdering Y and disposing of the body by dismembering it. The prosecution seeks to offer evidence that X was involved in the murder of Z where similar dismemberment was done. The defence objects to the admission of such evidence. The court must hold an ancillary hearing to determine the admissibility of the evidence.

(c)

The prosecution seeks to admit the statement of the accused. The accused alleges that the statement was given involuntarily as a result of a threat, inducement or promise. The court must hold an ancillary hearing to determine whether the statement was given voluntarily.

(d)

The prosecution seeks to admit a statement of the accused, who denies that the accused made it. No ancillary hearing is necessary as this does not relate to the voluntariness of the statement.

(e)

X is accused of murdering Y. Z, a good friend of X, testifies that X told Z that X had murdered Y, which is denied by X. As Z is not a person in authority, no ancillary hearing is necessary as there is no issue of admissibility.

(2) In an ancillary hearing, any evidence adduced must be limited only to the ancillary issue.

(3) The following procedure must be complied with at an ancillary hearing:(a)

the party seeking to admit the evidence must produce the party’s evidence on the ancillary issue;

(b)

the party must then examine the party’s witnesses (if any) and each of the witnesses may in turn be cross‑examined by the other party and every co‑accused (as the case may be), after which the first party may re-examine the witnesses;

(c)

after the party has concluded the party’s case, the court must call on the other party to present the other party’s evidence;

(d)

when the other party is called on to present the other party’s evidence, the other party must examine the other party’s witnesses (if any) and each of the witnesses may in turn be cross‑examined by the first party and every co‑accused (as the case may be), after which the witnesses may be re‑examined;

(e)

an accused may apply to the court to issue process for compelling the attendance of any witness and the production of any exhibit in court, whether or not the witness has previously been examined in the case, for the purpose of examination or cross‑examination;

(f)

the court must issue process unless it considers that the application made under paragraph (e) should be refused because it is frivolous or vexatious or made to delay or frustrate justice and in such a case the court must record the reasons for the order;

(g)

before summoning any witness pursuant to an application under paragraph (e), the court may require that the reasonable expenses incurred by the witness in attending the trial be deposited in court by the defence;

(h)

at the close of the other party’s case, whether or not evidence has been adduced in accordance with section 283, the first party has the right to call a person as a witness or recall and re‑examine a person already examined, for the purpose of rebuttal, and the witness may be cross‑examined by the other party and every co‑accused, after which the first party may re‑examine the witness;

(i)

at the close of the other party’s case, the first party may sum up the first party’s case;

(j)

the first party has the final right of reply on the whole case;

(k)

before proceeding with the main trial, the court must make a ruling on the admissibility of the statement or the other evidence which has been objected to by any party to the proceedings.

(4) Where a witness, other than an accused, is giving evidence for the prosecution or the defence, the court may, on the application of either party, interpose that witness with any other witness if the court is of the view that there are good reasons to do so.

(5) If any evidence has been given in any ancillary hearing relating to the statement or the other evidence which has been objected to by any party to the proceedings, any such evidence which is relevant for the purposes of the main trial is admissible without the need to recall any of the witnesses to give evidence.

(6) The court may, in the interests of justice, allow any witness who has testified at the ancillary hearing to be recalled during the trial for examination or cross-examination by the prosecution or the defence, as the case may be.

(7) If the court, after hearing evidence in the main trial, is doubtful about the correctness of its earlier decision whether or not to admit the evidence at the ancillary hearing, it may call on the prosecution and the defence to make further submissions.

(8) If the court, after hearing any submissions, decides to reverse its earlier decision in admitting the evidence, it must disregard such evidence when determining whether or not to call for the defence or when determining the guilt or otherwise of the accused.

(9) If the court, after hearing any submissions, decides to reverse its earlier decision in not admitting the evidence, such evidence may be admitted in court for the purpose of determining whether or not to call for the defence or when determining the guilt or otherwise of the accused.

—(1) Subject to this Code and any other written law relating to the admissibility of evidence, where any party objects to the admissibility of any statement made by that party or any other evidence which the other party to the case intends to tender at any stage of the trial, the court must determine it separately at an ancillary hearing before continuing with the trial.Illustrations

(a)

Evidence is to be given of a tape recording that is said to be of a conversation between X and Y. There is an objection that the tape has been tampered with. The court must hold an ancillary hearing to determine its admissibility.

(b)

X is accused of murdering Y and disposing of the body by dismembering it. The prosecution seeks to offer evidence that X was involved in the murder of Z where similar dismemberment was done. The defence objects to the admission of such evidence. The court must hold an ancillary hearing to determine the admissibility of the evidence.

(c)

The prosecution seeks to admit the statement of the accused. The accused alleges that the statement was given involuntarily as a result of a threat, inducement or promise. The court must hold an ancillary hearing to determine whether the statement was given voluntarily.

(d)

The prosecution seeks to admit a statement of the accused, who denies that the accused made it. No ancillary hearing is necessary as this does not relate to the voluntariness of the statement.

(e)

X is accused of murdering Y. Z, a good friend of X, testifies that X told Z that X had murdered Y, which is denied by X. As Z is not a person in authority, no ancillary hearing is necessary as there is no issue of admissibility.

(2) In an ancillary hearing, any evidence adduced must be limited only to the ancillary issue.

(3) The following procedure must be complied with at an ancillary hearing:(a)

the party seeking to admit the evidence must produce the party’s evidence on the ancillary issue;

(b)

the party must then examine the party’s witnesses (if any) and each of the witnesses may in turn be cross‑examined by the other party and every co‑accused (as the case may be), after which the first party may re-examine the witnesses;

(c)

after the party has concluded the party’s case, the court must call on the other party to present the other party’s evidence;

(d)

when the other party is called on to present the other party’s evidence, the other party must examine the other party’s witnesses (if any) and each of the witnesses may in turn be cross‑examined by the first party and every co‑accused (as the case may be), after which the witnesses may be re‑examined;

(e)

an accused may apply to the court to issue process for compelling the attendance of any witness and the production of any exhibit in court, whether or not the witness has previously been examined in the case, for the purpose of examination or cross‑examination;

(f)

the court must issue process unless it considers that the application made under paragraph (e) should be refused because it is frivolous or vexatious or made to delay or frustrate justice and in such a case the court must record the reasons for the order;

(g)

before summoning any witness pursuant to an application under paragraph (e), the court may require that the reasonable expenses incurred by the witness in attending the trial be deposited in court by the defence;

(h)

at the close of the other party’s case, whether or not evidence has been adduced in accordance with section 283, the first party has the right to call a person as a witness or recall and re‑examine a person already examined, for the purpose of rebuttal, and the witness may be cross‑examined by the other party and every co‑accused, after which the first party may re‑examine the witness;

(i)

at the close of the other party’s case, the first party may sum up the first party’s case;

(j)

the first party has the final right of reply on the whole case;

(k)

before proceeding with the main trial, the court must make a ruling on the admissibility of the statement or the other evidence which has been objected to by any party to the proceedings.

(4) Where a witness, other than an accused, is giving evidence for the prosecution or the defence, the court may, on the application of either party, interpose that witness with any other witness if the court is of the view that there are good reasons to do so.

(5) If any evidence has been given in any ancillary hearing relating to the statement or the other evidence which has been objected to by any party to the proceedings, any such evidence which is relevant for the purposes of the main trial is admissible without the need to recall any of the witnesses to give evidence.

(6) The court may, in the interests of justice, allow any witness who has testified at the ancillary hearing to be recalled during the trial for examination or cross-examination by the prosecution or the defence, as the case may be.

(7) If the court, after hearing evidence in the main trial, is doubtful about the correctness of its earlier decision whether or not to admit the evidence at the ancillary hearing, it may call on the prosecution and the defence to make further submissions.

(8) If the court, after hearing any submissions, decides to reverse its earlier decision in admitting the evidence, it must disregard such evidence when determining whether or not to call for the defence or when determining the guilt or otherwise of the accused.

(9) If the court, after hearing any submissions, decides to reverse its earlier decision in not admitting the evidence, such evidence may be admitted in court for the purpose of determining whether or not to call for the defence or when determining the guilt or otherwise of the accused.