Samuel Pang
INTRODUCTION The law of evidence is a subject which has received great notoriety for its complex morass of technical rules. In recent years, there have been notable attempts in various common law jurisdictions to reform the law of evidence without compromising fundamental trial safeguards. On 14 February 2012, the Singapore parliament passed the Evidence Amendment Bill,1 marking the latest chapter in Singapore’s attempts to modernise its evidential laws. The reforms owed much to the work undertaken by the Singapore Law Reform Committee (LRC). The amendments made major changes in five areas of evidence law.2 This article will focus on the substantive changes made to the law of expert opinion evidence and hearsay evidence, as well as the new provisions which grant the judiciary discretion to exclude evidence.3 It will also consider the problems in achieving consistency with the overarching statutory scheme of the Evidence Act (EA).4 THE STATUTORY SCHEME OF THE EA At the outset, it is apposite to point out a key peculiarity of common law jurisdictions, like Singapore, which derive their evidence codes from the Indian EA 1872,5 namely the stark difference in the notions of relevance between the EA and the common law. Under the common law, relevance is defined as something being “logically probative or disprobative of some matter which requires proof ” (“logical relevance”).6 In relation to admissibility, the default position is that all logically relevant evidence is freely admissible subject to the application of exclusionary evidential rules designed to ensure trial fairness.7
As a result, the statutory scheme of the EA established the law of evidence in Singapore as a system comprised of inclusionary rules. Therefore, evidence cannot be admitted unless it comes within an express inclusionary rule under the EA.10 This distinction is further reinforced by Section 2(2) of the EA, which repeals evidential rules inconsistent with the EA or other written laws.11 Using this argument, courts in Singapore should not incorporate common law developments into Singaporean’s evidence law unless their adoption is consistent with the “essentially static EA”.12 Despite this, however, the Singapore courts were historically predisposed to gloss over Section 2(2) of the EA in favour of introducing both common law concepts and developments into Singaporean evidence law. For example, judicial discretion to exclude evidence on the basis of “unfairness” was recognised in the case of Cheng Swee Tiang. 13 This result was achieved without discussing how such a concept might fit within the statutory scheme of the EA. Other examples lie in the area of hearsay evidence, where courts have been known to either entirely import common law concepts of hearsay14 or to regard Section 6215 of the EA as being reflective of the hearsay rule. Furthermore, the methods which have been employed in Singapore to incorporate “res gestae”, a major common law exception to the hearsay rule, have arguably been problematic. One of the major manifestations of the “res gestae” (Latin for “things done”) rule under the common law is the proposition that an out of court statement constitutes a legitimate exception to the hearsay rule when a statement is made by a person who is so emotionally empowered by the event that the possibility of fabrication is negligible.16
By contrast, “the EA was drafted on the view that there should be no distinction between the concepts of relevance and admissibility. The Act therefore attempts to define relevance as an ever-present connection between two facts rather than identifying it as a process leading to a conclusion.”8 By employing this drafting peculiarity, the EA aims to categorically define the situations where evidence is considered relevant (“legal relevance”).9
Although the “res gestae” rule is well established in jurisdictions which do not utilise the Indian EA, this rule has not been explicitly acknowledged in the EA under the provisions of specific relevancy,17 even in an inclusionary form. The response of the Singaporean courts has been to interpret the provisions of general relevance as justifying the adoption of the res gestae rule.18 This raises the controversial issue of whether the EA’s provisions on general relevance can be used to read in common law evidential rules and thus circumvent the limits imposed by the provisions on specific relevance. Unfortunately, this conundrum is unlikely to be resolved in Singapore in the near
1 Evidence (Amendment) Act 2012, No. 4 of 2012. 2 Specifically, the areas amended are hearsay evidence, expert opinion evidence, legal advice privilege, computer output evidence and sexual character evidence. 3 Only in situations involving hearsay evidence and expert opinion evidence. 4 Singapore Evidence Act, Chapter 97. For avoidance of doubt, all references to the Evidence Act in this essay refers to the Singaporean statute unless stated otherwise. 5 Act no 1 of 1872. 6 Per Lord Simon in DPP v Kilbourne [1972] AC 729. Note also Lord Steyn’s comments in Randall [2004] where he comments that “relevance is a matter of degree to be determined by common sense and experience”. 7 Report of the Law Reform Committee on Opinion Evidence, Paragraph 33. 8 LRC Report on Opinion Evidence, paragraph 17. 9 See the cumulative effect of Section 3(2) on the definition of relevance and Section 5 which prohibits the admissibility of evidence not declared as relevant under the Act or evidence not admissible under some other written law.
10 LRC Report on Expert Evidence, Paragraph 30. 11 Section 2(2) of the EA reads: “All rules of evidence not contained in any written law, so far as such rules are inconsistent with any of the provisions of this Act, are repealed”. 12 Chen Siyuan, “ The Judicial Discretion to Exclude Relevant Evidence: Perspectives from an Indian Evidence Act Jurisdiction” [2012] International Journal of Evidence and Proof 16, 400. 13 Cheng Swee Tiang v PP [1964] MLJ 291, at 292. 14 Subramaniam v PP [1956] MLJ 220, per Mr L M D De Silva, at 222. 15 Which mandates that oral evidence must be direct. 16 See, for example, R v Andrews [1987] AC 281. While the “excited utterance” is a major aspect of the res gestae rule, it is not the only manifestation. See, for example, Sections 118(1)(4a)-(4c) of the United Kingdom Criminal Justice Act 2003 for other preserved common law recognitions of the res gestae rule. 17 Namely, Sections 12-57 of the EA. 18 Sections 6-9 of the EA. See Mohd b. Allapitchay v PP [1958] MLJ 197 (CCA). Such an approach has however produced judicial decisions which have attracted criticism. Jeffery Pinsler, for example, has questioned whether the decision in Chi Tin Hui v PP [1994]1 SLR 778 was correct. He suggests that the court should not have conflated the criteria employed by Section 6 of the EA and under the common law.
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