Report No. 69

Chapter 15

How much of a Statement to be Proved Section 39

15.1. Introductory.-

Section 39 reads-

"When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, book, or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made."

15.2. Principle.-

The principle on which this section is based is that, it would not be just to take a part of a conversation, letters, etc. as evidence against a party, without giving to the party at the same time the benefit of the entire residue of what he said or wrote on the same occasion.1

1. Cf. Queen's case, (1820) 2 F&B 297 (per Abbot, C.J.).

15.3. It can also be stated that since the Court expect a witness making a statement not only to state the truth but the whole truth, some such principle is implicit in the obligation undertaken by the witness.

15.4. Distinct matters, of course, cannot be so introduced,1 even though relevant to the case as a whole, if they are not connected with the part given in evidence.

1. (a) Prince v. Samo, 7 A&E 627;

(b) Davies v. Morgan, (1831) 1 Cr&J 587.

15.5. English law.-

The principle in English law is that when an admission is tendered against a party, he is entitled to have proved, as a part of his adversary's case, so much of the whole statement, document or correspondence containing or referred to in the admission, and, this is so although such other parts may be favourable to himself;1 but the jury may attach different degrees of credit to the different parts.

In particular, in relation to interrogatories, the rule is that any party may, at the trial of a cause, matter or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories, without putting in the others or the whole of such answers: provided, always, that, in such a case, the Judge may look at the whole of the answers, and if he shall be of opinion that any others of them are so connected with those put in, that the last-mentioned answers ought not to be used without them, he may direct them to be put in.2

1. (a) Thomson v. Austen, (1823) 2 Dowe&Ry 358 (361).

(b) R. v. Gray, (1911) 6 Cr App R 242.

(c) Burnell v. H.T.C., (1955) 3 All ER 822.

2. Lyell v. Kennedy, (1883) 27 Ch D 1 (15, 29).

15.6. Reasons as explained in American case.-

The reason for the admission of evidence explaining the part of the statement was lucidly explained in the American case of Com. v. Keyes, 11 Gray 323 (325) (Merrick, J.), in Wigmore's Evidence, 1905 Edn., section 2113: p. 2861. cited in Field., in these words:

"Every remark or observation made upon those topics is to be received as competent evidence, because they may essentially modify the character and purport1 of the whole conversation, and vitally affect what might otherwise appear to be explicitly asserted or denied."

1. Emphasis supplied.

15.6A. Limitation.-

Of course, the rule has limitations. As has been observed in another American case1-

"Ten subjects may be talked about in one conversation. When one of the ten is the subject of litigation, it is not competent to put in evidence the conversation about the other nine."

1. Antherton v. Defreeze, 129 Mich 364: 88 NW 886; Wigmore's Evidence, 1905 Edn section 2113, p. 2860, cited in Field.

15.7. Again, as Merrick, J. in Corn. v. Keyes, 11 Gray 323 (325) (Merrick, J.); Wigmore's Evidence, 1905 Edn section 2113, p. 2861, cited in Field,, observed:1

"There is an important limitation to the rule in giving evidence of conversations or of oral statements and declarations. The proof in such case is to be confined to what was said upon or concerning those matters which are made subjects of enquiry or investigation. Every remark or observation made upon those topics to be received as competent evidence, because they may essentially modify the character and purport of the whole conversation, and vitally affect what might otherwise appear to be explicitly asserted or denied.

But, if, during the same interview between the witnesses and the party, other subjects of conversation or discussion are introduced, remote and distinct from that which is the object of enquiry or investigation, it is obvious that whatever may be said concerning them can have no tendency to illustrate, vary or explain it. Everything pertaining to these additional and extraneous matters should therefore be rejected as irrelevant and useless."

1. Corn. v. Keyes,

15.8. Wigmore's view-Emphasis on subject.-

According to Wigmore1 three general corollaries may be deduced from the principle referred to above-

(i) No utterance irrelevant to the issue is receivable.

(ii) No more of the remainder of the utterance than concerns the same subject and is explanatory of the first part, is receivable.

(iii) The remainder thus received merely aids in the construction of the utterance, as a whole, and is not in itself testimony.

1. See Wigmore's Evidence, 1905 Edn., section 2113, p. 2860, cited in Field.

15.9. Mode of proof of oral conversations, statements and declarations.-

The aspect of relevance of the utterance is discussed in the American case of Garay v. Nicholson, 24 Wend 350 (351) (Cowen, J.); Wigmore's Evidence, 1905 Edr section 2113, p. 2860, cited in Field, where Cowen, J. observed-

"The rule about the whole being admissible must obviously mean that the additional conversation called for should be relevant to the matter in issue All evidence is received under the qualification (mentioned above), and, not so restrained, might operate as a waste of time; other subjects might be introduced having no connection with the subject-matter of the suit."

15.10. Scope for improvement.-

While the principle has been adequately reflected in section 39, the section could be improved in one respect, namely, by an express provision spelling out the rights of the opposite party.

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