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The Law of Evidence (Amendment) Law, 1968*

Published online by Cambridge University Press:  12 February 2016

Ernst Livneh
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Type
Legislation
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Israel Law Review , Volume 5 , Issue 2 , April 1970 , pp. 268 - 285
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1970

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References

1 Scottish common law does till this day: Callan v. McFadyean [1951] S.C. (J.) 82 at 86, 87.

2 Several laws enacted since 1547.

3 See sec. 5 of The Law of Evidence Amendment Ordinance, 1924. (Later sec. 6 of the Evidence Amendment Ordinance, Ch. 5 of the Laws of Palestine.)

4 Cf. Baker, , The Legal System of Israel (1968) pp. 224–25.Google Scholar

5 (1938) 5 P.L.R. 111.

6 One such rule was given statutory form: sec. 59(5) C.C.O., inserted in 1939, requires corroboration of a single testimony on “seditious offences”. The Israel legislator added, for example, the “indirect” testimony of a child witness on a sex offence (sec. 11 of the Law of Evidence Revision (Protection of Children) Law, 1955) and the testimony of a prostitute against her procurer (sec. 8 (2) of the Criminal Law Revision (Prostitution Offences) Law, 1962).

7 But see Part II, paras. 1 (a) and 4.

8 See, for example, Part II, paras. 1–3.

9 R. 191 (2) Civil Procedure Rules (1938) (hereafter C.P.R.), now r. 182 (b) C.P.R. 1963.

10 (1955) 9 P.D. 729.

11 Art. 285 of the Code de Procédure Civile of 1806 (hereafter C.P.C.) bears some resemblance to the provision of sec. 6(1) of the Evidence Ordinance. It enjoins in respect of children “à avoir à leurs dépositions tel égard que de raison”, without however requiring the court to set out its deliberations in the judgment. Sec. 393 of the German Zivilprozessordnung (hereafter Z.P.O.) prescribes that persons under 16 must be examined without oath, thus hinting at the supposedly lower value of their testimony.

12 Sec. 6A was inserted in the Ordinance by sec. 221(1) Cr. P. L. 1965.

13 Joseph v. A.G. (1957) 11 P.D. 1071.

14 Joseph v. A.G. loc. cit.; Levi v. A.G. (1953) 7 P.D. 926.

15 An interesting aspect of corroboration is illustrated by Beitner v. A.G. (1958) 12 P.D. 537. The accused's own testimony may, of course, contain corroboration of that of a (minor) witness, but where it partly confirms and partly contradicts it, the court may not prefer that evidence which requires corroboration. In the present case the court had, however, found that part of the accused's testimony, which differed from that of the child, was per se incredible, and the Supreme Court confirmed the conviction.

16 Sec. 155 Cr. P.L. 1965 and r. 128(b) C.P.R. 1963.

17 How much credibility is added to the testimony by the oath is a question that will not be discussed here.

18 See art. 108 of the Code de Procédure Pénale (1957) (hereafter C.P.P.). See also sec. 60 of the German Code (St.P.O.).

19 Para. 2(b) below.

20 Secs. 371–383 Aust. Z.P.O. (1895).

21 Now secs. 445–455 Germ. Z.P.O. (1877–1950).

22 Austria—sec. 380(1) with sec. 327. (See also secs. 377, and 381); Germany—sec. 453. (See also secs. 446, 452(1), 454.)

23 C.P.C, arts. 268 and 283.

24 Sec. 383(l)-(3) Z.P.O. The former sec. 393.

25 The former sec. 393 Z.P.O.

26 Cf. secs. 321, 337(3) of the Aust. Z.P.O.

27 Sec. 393(4) Z.P.O.

28 In re Garnett (1885) 31 Ch.D. 1; In re Hodgson (1885) 31 Ch.D. 177; Rawlinson v. Scholes (1898) 79 L.T. 350.

29 Sec. 90. Evidence Bill, 1952.

30 The inclusion of documents in sec. 6(4) depends on whether eduth is to be understood verbally as “testimony” or in accordance with the name of the Ordinance as “evidence”.

31 See especially the distinction between “evidence” and “statement” in sec. 4. In A.G. v. Examining Judge (1959) 13 P.D. 5 the High Court discussed whether a witness's “statement” made to the police can serve as “evidence” for the purpose of a preliminary enquiry. Far less would the accused's answer be called “evidence”. See also sec. 145 (a) (1) and (2) Cr. P.L. 1965.

32 As in sec. 2(2) of the Criminal Procedure (Evidence) Ordinance.

33 As is the privilege of close relatives under secs. 3 and 5.

34 Sec. 136.

35 Sec. 145.

36 The new sec. 5B(c) denies that right to the accused who chose to give evidence in his own defence in respect of questions concerning the offence with which he is charged; but even then there is no duty to warn him that he need not disclose other offences.

37 See arts 104–105 of the French C.P.P.; sec. 52(2) of the German St.P.O. and sec. 383(2) of Z.P.O.

38 (1968) (II) 22 P.D. 85 at 100. The case as such concerned extradition from Israel, but the passage quoted refers expressly to “any person accused of a crime”.

39 Austria sec. 321. Germany sec. 384.

40 e.g. matters of family status and family property; transactions in which the witness was called to serve as a witness (testaments, etc.) or in which he himself acted as representative of a party.

41 The privilege is however not available in cases of defamation, since in Europe these are a matter of criminal proceedings.

42 Under sec. 8(1) of the Penal Law Reform (Prostitution Offences) Law, 1962, a prostitute may give evidence against her husband and parents for procuring.

43 Evidence Ordinance (Amendment No. 6) Bill, 1967.

44 See para. 6, hereafter.

45 Arts. 146, 273 Ott. Cr.P.C. included brothers and sisters, as did arts. 156, 322 of its model, the old French Code d'Instruction Criminelle. The new French Code, too, mentions them, but now in France all relatives of the accused may be examined, though as a rule not under oath: arts. 448, 449 C.P.P., 1957.

46 See above, p. 273 at n. 24.

47 See para. 2 above.

48 See Harnon, , “Evidence Excluded by State Interest”, (1968) 3 Is.L.R. 387Google Scholar, published while the Law was still being debated in the Knesset.

49 (1968) 84 L.Q.R. 171. See also (1969) L.Q.R. 17.

50 Conway v. Rimmer (1968) A.C. 910, [1968] 1 All E.R. 874 and [1968] All E.R. 304.

51 [1942] A.C. 624.

52 (1957) 11 P.D. 403, esp. at 412.

53 [1942] A.C. 624 at 642.

54 (1957) 11 P.D. 403 at 410.

55 Evidence Ordinance (Amendment No. 6) Bill, 1967, sec. 2.

56 See the proposed sec. 14C of the Ordinance.

57 See para. 2 below.

58 Cf. Duncan's case (note 51) at p. 642.

59 Sec. 5 A (a) and (c). Secs. 27–29 of the Criminal Law (State Security, Foreign Relations and Official Secrets) Law, 1957, lay down that no person is allowed to reveal state secrets. It is, however, not certain that the right and the duty of secrecy will always coincide and comprise the same information.

60 It ought to be “evidence”: see n. 30 above.

61 Cf. the new (1953) sec. 53a of the German Criminal Procedure Code.

62 R. 35 of the Chamber of Advocates (Professional Ethics) Rules, 1963, charges the advocate with the duty to take reasonable steps for ensuring his employees' silence; but those rules are not the proper place to impose a legal duty on the employees—that must be done by law. Such an express duty for the staff of a notary is now provided in sec. 41 of the Notaries Bill, 1969.

63 See the quotation from the Ha'etzni case above at p. 279 at n. 54 in text.

64 This is the difference from State privilege at p. 281, (para. 3).

65 See above p. 282.

66 Some of the Laws defining the welfare officer's duty of secrecy limit it by the formula “save to the extent necessary for the implementation of this or any other Law.…” Thus even a consultation held with him otherwise than in connection with his enquiries in a pending court case is not protected.

67 See also: “A State Statute to Provide a Psychotherapist-Patient Privilege” (1967) 4 Harvard Journal on Legislation, 307.