Professional Documents
Culture Documents
Group (B)
LC3001B
AY 2011/2012 (Semester 2)
As a code of non-exhaustive character, the Evidence Act has an impressive coherence and rationality, which compares favourably with the common laws uncoordinated patchwork of disparate elements. The disadvantage of the Act, however, is that it lacks the flexibility of the common law; as a result, in particular areas of application, its rationality has failed to stand the test of time. For practitioners and the courts alike, problems of fitting out or trimming and squaring the developments in the common law with the Act in these areas have exacerbated this fundamental difficulty.
1 | Page
provision contained in what purports to be a mere definition section to abolish the historic distinction fundamental to the administration of justice under the common law, between the burden which lies upon the prosecution in criminal proceedings to prove the facts which constitute an offence beyond all reasonable doubt and the burden which lies upon a party in a civil suit to prove the facts which constitute his cause of action or defence upon a balance of probabilities.
Not proved beyond a reasonable doubt by virtue of the lack of evidence submitted
1
C.f., however, SK Chan, Criminal Process - The Singapore Model (1996) 17 SLR 433-504 at 501: The principle is not sacrosanct, although it is true that a conviction for an offence generally attracts greater disabilities than a judgment in a civil suit. 2 Cited with approval in Eu Lim Hoklai v. PP [2011] SGCA 16 and Thong Ah Fat v. PP [2011] SGCA 65.
2 | Page
VK Rajah J also noted in Jagatheesan that as the starting point is the presumption of innocence in favour of the accused, [r]easonable doubt might also arise by virtue of the lack of evidence submitted, when such evidence is necessary to support the Prosecutions theory.
Where both the Prosecutions and Defences case theories are improbable
Where both the Prosecutions and the Defences contentions of what occurred are improbable, the trial judge should simply rule that the burden of proof has not been properly discharged, since it is not for the defence to clarify weaknesses in the Prosecutions case (VK Rajah JA in Sakthivel,).
3 | Page
reasonable doubt all the constituent elements of a specific predicate offence listed in the 2nd Schedule of the CDSA, i.e., that there was in fact criminal conduct which tainted the moneys handled by the accused, thereby failing to establish a link to the accused's alleged belief as to the nature of the moneys. S.44(1) CDSA (Assisting another to retain benefits from criminal conduct): a person who enters into or is otherwise concerned in an arrangement, knowing or having reasonable grounds to believe that, by the arrangement (a) the retention or control by or on behalf of [X] of [Xs] benefits of criminal conduct is facilitated (whether by concealment, removal from jurisdiction, transfer to nominees or otherwise); and knowing or having reasonable grounds to believe that that other person is a person who engages in or has engaged in criminal conduct or has benefited from criminal conduct shall be guilty of an offence. VK Rajah JA held that it [was] not necessary for the Prosecution to satisfy the court beyond a reasonable doubt that all the constituent elements of a specific offence listed in the Second Schedule have been met [so as to] mitigate [against] the Prosecution's understandable concern that it would have to prove two offences to the same exacting standards every time it undertakes a prosecution of an offence under s.44(1) (a) of the CDSA. His Honour, however, attempted to steer a middle ground by holding that it was still necessary for the Prosecution to adduce some evidence linking the moneys in question with particular criminal conduct, ie, some act that may constitute one or other of the offences (or classes thereof) listed in the Second Schedule, from which the moneys dealt with in an arrangement under s.44(1)(a) are derived, and in which the other person is engaged or has engaged, or from which he has benefited. [It would suffice if] circumstances [arose such that] the only logical inference to any reasonable person is that the moneys involved in the arrangement are criminal property, and that the other person engages in, or has engaged in, or has benefited from, criminal conduct. In essence, VJ Rajah JA had redefined the actus reus (actual criminal conduct to merely some act linking the moneys in question with some act that might constitute one or other of the offences (or classes thereof) listed in the Second Schedule) required to be proved, which in turn relaxed the Prosecutors burden of adducing evidence necessary to prove the actual actus reus of the predicate offence. His Honours decision was quite patently driven by policy considerations: There is no reason to assume that Parliament intended the Prosecution to go through the awkward and costly exercise of summoning foreign witnesses to prove all the ingredients of a foreign offence when these predicate offences are often in practice difficult to pin down. Indeed, given the inherent difficulties of legal proof in most such matters, taking such a technical view of the requirements of s.44(1)(a) of the CDSA would be tantamount to driving a coach and horses through it and robbing it of its intended efficacy.
4 | Page
[2002] SGCA 26). By way of illustration, in The Popi M [1985] 2 All ER 712, a ship sank due to water entering a hole on the port side. The shipowner claimed the hole was caused by a collision with a submerged submarine, whereas the insurer claimed that it was caused by wear and tear. The trial judge found in favour of the shipowner because its version of facts was less improbably than the insurers. On appeal, the H.L. overturned the trial judges decision, pointing out that the trial judge was incorrect to assume that it was a matter of choosing between the ship owners and insurers theories of what had happened. As the burden of proof was on the shipowner, the trial judge should have considered whether the shipowners case was more probably true than untrue. The H.L. proceeds to hold that the shipowner had failed to discharge the burden of proving its case on a balance of probabilities. In Clarke v. SilkAir (Singapore) Pte Ltd, the personal representatives of a passenger who had died when a SilkAir aircraft crashed argued in an action for damages that SilkAir could not limit its liability to pay damages because, inter alia, the crash was intentionally caused by or resulted from willful misconduct of the pilot. Yong CJ, delivering the judgment of the SGCA, held that the personal representatives had failed to show that its contentions were more probably true than untrue. It was not a question of whether their theory of what had happened was more probable than SilkAirs theory of what had happened.
Higher than on a balance of probabilities but lower than proof beyond reasonable doubt in civil fraud, dishonesty or where other serious allegations are concerned?
In Tang Yoke Kheng v. Lek Benedict [2005] SGCA 27, Choo J held that there are, indisputably, only two standards of proof. For criminal cases, the standard is proof beyond reasonable doubt; for civil matters, the standard is that of a balance of probabilities, where, minimally, the party charged with the burden of proving will succeed if he can show just that little more evidence to tilt the balance. However, where fraud is alleged in a civil case, his Honour held that because of the severity and potentially serious implications attaching to a fraud, even in a civil trial, judges are not normally satisfied by that little bit more evidence such as to tilt the balance. They normally require more Therefore, the standard of proof in a civil case, including cases where fraud is alleged, is that based on a balance of probabilities; but the more serious the allegation, the more the party, on whose shoulders the burden of proof falls, may have to do if he hopes to establish his case. Subsequently in Westlake Eating House v. Koh Choon Chin [2006] SGHC 92, Phang J (as he then was), following Tang Yoke Kheng, rejected the notion of a 3rd standard of proof that lies somewhere between the criminal and civil standards of proof. Acknowledging that there was nothing wrong in theory with the proposition that there is in fact a 3rd (or intermediate) standard of proof, Phang J noted that the SGCAs acknowledgment in Tang Yoke Kheng itself that the court would normally require more evidence and not just merely that little bit more evidence such as to tilt the balance was recognition, implicit or otherwise, of a 3rd standard of proof. However, Phang J clarified that the SGCA preferred to draw a distinction between a 3rd standard of proof and the civil standard of proof within which more proof is required than that in a standard civil case where fraud is not an issue, thereby preserving the traditional approach of having only 2 standards of proof. Phang J noted that in the practical sphere of application, this distinction was merely a matter of nomenclature and semantics, rather than logic, and that the court was well equipped and able to draw the necessary lines, regardless of the specific formula adopted. Quite apart from the fact that his Honour was bound by Tang Yoke Kheng, Phang J expressly approved of the SGCAs approach in so far as it did not make a difference to the amount of proof required, in view of the seriousness, in situations of civil fraud. He considered the SGCAs approach to be one that combined theory and practice, and provides more conceptual clarity than the third standard of proof approach, which only serves to confuse the situation where the courts were already always doing what they ought to be doing in practice, viz, to require more evidence in situations where fraud has been alleged. Thus, reiterating the SGCA in Tang Yoke Kheng, his Honour concluded that the standard of proof in civil proceedings where fraud and/or dishonesty is alleged is the civil standard of proof on a balance of probabilities. However, where such an allegation is made, more evidence is required than would be the situation in an ordinary civil case. The focus is on the degree of probability required, which will (in turn)
5 | Page
6 | Page
7 | Page
(b) A wishes to prove by secondary evidence the contents of a lost document. A must prove that the document has been lost. Whereas s.103 is concerned with the proof of facts in issue, s.105 is concerned with the proof of relevant facts. S.104 provides that if neither party adduces evidence, the party who asserts the fact would fail to prove it.
Burden of Proof in the Civil Context Who bears the burden of proof in civil cases?
In Rabobank International v. Motorola Electronics Pte Ltd [2010] SGCA 47, the Pf sued the Df to recover a debt which had been assigned to it by the original creditor. The Df argued that it had an implied right of contractual set-off against the original creditor. The issue before the SGCA was which party carried the burden of proof in respect of the implied right of contractual set-off? Chao JA held that [i]n civil trials, the pleadings are central in determining the occurrence of the burden of proof, because the pleadings state the material facts establishing the legal elements of a claim or a defence The legal burden of proving a pleaded defence rests on the proponent of the defence, unless the defence is a bare denial of the claim This rule is consistent with the general principle underlying ss.103 and 105 of the Evidence Act, viz, that he who asserts must prove.
8 | Page
Burden of Proof in the Criminal Context Who has the burden of proving that the accused comes within a particular exception?
Burden of proving that case of accused comes within exceptions 107. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code (Cap. 224), or within any special exception or proviso contained in any other part of the Penal Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances. Illustrations (a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act. The burden of proof is on A.
9 | Page
(b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self-control. The burden of proof is on A. (c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances, bringing the case under section 335, lies on A. S.107 EA imposes the legal burden on the accused to prove the elements of the defence according to the requisite standard set out in s.3 EA. This is a departure from the common law approach embodied in Woolmington v. DPP [1935] AC 462, which laid down the rule that in order to prove guilt, not only must the Prosecution prove the elements of the offence, it must also disprove any defence put forth by the Defence that is not insanity or a statutory exception. That s.107 imposes the legal burden on the accused to prove the elements of the defences such as accident, provocation, or self-defence was the conclusion of the PC in Jayasena v. R [1970] AC 618 in interpreting a similar provision to s.107 EA under the law of Ceylon, and [s.107] could not be construed in the light of Woolmington v. DPP.
10 | P a g e
Defence of alibi
The defence of alibi is more than merely a denial of presence at the scene of the crime, but instead asserts collaterally that the accused was present somewhere else (Per Yong CJ in PP v. Chong Siew Chin [2001] SGHC 372). S.107 EA is not applicable as alibi is a non-statutory defence. Instead, alibi is covered under Illustration 2 of s.105 EA. Burden of proof as to particular fact 105. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations (b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it. In Syed Abdul Aziz v. PP [1993] SGCA 65 (followed by Yong CJ in Ramakrishnan s/o Ramayan v. PP [1998] SGHC 273 and Chong Siew Chin), Rajendran J held that it was for the Prosecution to prove that the accused could not rely on an alibi and for the accused to prevent such proof by raising a reasonable doubt as to his presence at the scene of the crime. In other words, the accused bore only an evidential burden to raise the issue of alibi. The formulation of Rajendran J (and subsequently Yong CJ) is difficult to reconcile with s.3(3) EA read with s.105 EA, as the accused merely has an evidential burden to adduce evidence so as to raise a reasonable doubt, and need not prove the legal elements of the defence. More doubt is cast over the holding when taking into consideration Lord Devlins pronouncement in Jayasena that there is only one burden of proof in the EA, viz, the legal burden of proof. Practically speaking, even if the accused bore a legal burden of proving the fact that he was somewhere else at the material time, the conclusion might very well be the same, since if the accused fails to prove that fact on a balance of probabilities, it may still have the effect of raising a reasonable doubt over the Prosecutions allegation that the accused was at the scene of the crime during the material time.
11 | P a g e
Where, however, a linguistic construction does not indicate clearly on whom the burden of proof lies, the court, according to Lord Griffith, should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. In his Lordships view, the last consideration is one of great importance, as Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be very slow to draw any such inference from the language of a statute. His Lordship took into account the gravity of drug-related offences and indicated his preference for resolving any construction ambiguity in favour of the accused by placing the burden of proving the nature of the substance involved in so serious an offence on the Prosecution. Accordingly, on a true construction of the provisions, the offence involved possession of morphine in a prohibited form, and as it would have been particularly onerous for the accused to prove that the substance was not prohibited given the fact that the drug had been seized from in during the police investigations, it was for the Prosecution to prove that the morphine consisted of more than 0.2% and not for the accused to prove that there was 0.2% or less. The English CA adopted a syntactical approach and classified defences based on the syntax or the sectional location of the provision. On the other hand, the HL in Hunt, while upholding Edwards as reaching the correct conclusion on the facts, preferred to employ a purposive approach, paying attention to not only the linguistic structure of the statute, but also to the mischief at which it was aimed as well as various practical matter which affect the burden of proof. The effect of the less mechanical approach in Hunt is that there will be situations where although words of exception or qualification appear in a statute, they may be construed as not imposing the burden of proof on the accused, and, conversely, even if a statutory provision does not contain words of exception or qualification, the court might still hold that the section does impose the burden of proof on the accused. In principle, the Hunt approach is the better one. However, taking into account the language of s.107, which expressly imposes the burden of proof on the accused to prove, inter alia, that he comes within any special exception or proviso contained in any law defining the offence, as well as the decision of Tan Khee Wan Iris v. PP [1995] SGHC 94 (below), it will invariably be the case, at least where words of exception or qualification appear in a statute, that the burden will be placed on the accused. Edwards and Hunt were applied by the SGCA in PP v. Kum Chee Cheong [1993] SGCA 95, which concerned s.3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act: it shall not be lawful for any person to use or to cause or permit any other person to use a motor vehicle, unless there is in force a policy of insurance. Thean JA held that the result of Edwards and Hunt was that [w]here an enactment prohibits the doing of an act save in specified circumstances or by persons of specified class or with specified qualifications or with licence or permission of specified authorities, it is a matter of construction whether the burden of proving the circumstances, qualification, licence or the like shifts3 to the defendant, and if on the true construction of the enactment, the burden shifts to the defendant it is for him to show that he is entitled to do the prohibited act and that burden is not an evidential burden but a legal burden. It follows therefore that in such case there is no necessity for the Prosecution to establish prima facie evidence of the specified circumstances, qualification or licence or the like as provided in the enactment entitling the defendant to do the prohibited act. On the facts, as the Motor Vehicles (Third-Party Risks and Compensation) Act did not expressly provide for on whom the burden lies to prove that there is in force such policy of insurance, the Court opined that
3
For the sake of clarity, the legal burden, unlike the evidential burden, does not shift from one party to another at any time during the course of the trial. The confusing terminology employed by the SGCA should be contextualized and interpreted as who has the legal burden from the outset pursuant to the circumstances of the trial.
12 | P a g e
the mischief at which the Act is directed is the risks of injury or damage to third parties arising from the use of motor vehicles and the purpose of the Act is undoubtedly to make mandatory the necessary insurance to be taken out to cover such risks. Furthermore, while the accused would have little difficulty in producing the policy, it would be impossible or disproportionately difficult for the prosecution to prove that [the accused] did not have in force at the material time such policy of insurance. Accordingly, the SGCA was of the opinion that the burden was on the accused to prove that he had the policy of insurance at the material time. The SGCAs approach appeals to common sense since it is eminently harder to prove a negative averment than a positive one (unless, in the context of Kum Chee Cheong, there was a centralised insurance policy registry through which the Prosecution could have obtained a list of policyholders with valid policies at the material time to show that the accused was not on the list although this might constitute negative hearsay where the person who compiled the list does not testify (R v. Patel [1981] 3 All ER 94)). Hence, where it is easier for the accused to prove a positive averment, which conversely means that the prosecution would have to prove the same positive averment but as a negative averment, then the burden should be on the accused. Of note also is the fact that the SGCA did not consider s.107, as was point in Tan Khee Wan Iris v. PP [1995] SGHC 94 at [12]. Tan Khee Wan Iris arose in the context of the Public Entertainments Act, which prohibited the provision, or assistance in the provision, of public entertainment except by license. Yong CJ held that the PEA prohibits any person from providing public entertainment save within a special exception or proviso, viz, with a valid license, and therefore, s.107 EA applied so as to impose on the accused the legal burden of proving that the case fell within the special exception or proviso. Accordingly, the Prosecution was not required to show any mens rea regarding the absence of a license. In light of Tan Khee Wan Iris, an issue as to the compatibility of the purposive approach in Hunt, as endorsed by the SGCA in Kum Chee Cheong, with s.107 EA is raised. The crux of the matter is whether the court will construe the exception or proviso to determine whether it is one of substance or form, such that if it is one of substance, the burden will be on the accused, but if it is one of form, the burden will be on the Prosecution. Alternatively, the court could conclude that s.107 does not make a distinction between substance and form so that the burden will be on the accused regardless.
13 | P a g e
In the same connection, VK Rajah J (as he then was) emphasised in PP v. Chee Cheong Hin Constance [2006] SGHC 9 that s.108 does not impose any burden on the accused to prove that no crime was committed [and] cannot relieve the Prosecution from its burden of proof. It can only be employed to address certain exceptional cases where it would be impossible or at any rate disproportionately difficult for the Prosecution to establish facts which are "especially" or "particularly" within the knowledge of the accused which an accused can prove without difficulty or inconvenience. PP v. Abdul Naser bin Amer Hamsah [1996] SGCA 61, a case involving the alleged murder of a tourist during a robbery, is an e.g. of a case where s.108 did not apply. The Prosecution contended that the accused had intentionally caused the injuries to the deceased tourist by stamping on her face while she was lying on the ground, and that pursuant to s.108, it was for the accused to prove that he had caused the injuries accidentally on a balance of probabilities. In his defence, the accused contended that he had accidentally stepped on the deceaseds face. Referring to Illustration (a) to s.108, the SGCA (unanimous in respect of this issue) held that the provision had no application in the present case at all. S.108 and Illustration (a) would be applicable if the defence was that the accused did stamp his foot on the deceased's face but that his intention was not to cause, and that the stamping did not cause those injuries, as where this is the case, the act of stamping was done "with some intention other than that which the character and circumstances of the act suggest". However, the accuseds defence was that he had accidentally stepped on her, and accordingly there was no act within the meaning of the Illustration. Note: It was perhaps more appropriate for the Prosecution to have brought the case under s.107, under which the argument could be made, notwithstanding the difficulties discussed above, that the accused bore the legal burden of proving on a balance of probabilities the elements of the defence of accident, instead.
Presumptions
Presumptions 4.(1) Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved unless and until it is disproved, or may call for proof of it. (2) Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. (3) When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. Briefly, s.4(1) deals with presumptions of fact, s.4(2) deals with rebuttable presumptions of law and s.4(3) deals with irrebuttable presumptions of law.
Note that the use of the word shall is misleading, as the presumption is not mandatory in the true sense, i.e., it is rebuttable.
14 | P a g e
Reading s.4(2) with s.3(4), the party seeking to rebut the presumption bears the burden of disproving it in accordance with the standard laid down in s.3(4). In other words, the rebuttable presumption of law is a legal presumption which imposes the legal burden of proof on the party against whom the presumption operates so that he must rebut the presumption on a balance of probabilities. This was explained by Lord Diplock in the PC case of Yuvuraj, which concerned the Malaysian Prevention of Corruption Act 1961. The Act provided, inter alia, that upon proof that the accused (a) had received gratification, and (b) was then in public employment, it shall be deemed that he had received gratification for corrupt purposes, unless the contrary is proved. Lord Diplock held that in order for the accused to rebut the presumption, the presumed fact (that he had received gratification for corrupt purposes) had to be disproved on a balance of probabilities, as the words proved created a legal burden as opposed to a mere evidential one5.
Rebuttable presumption in the context of the Misuse of Drugs Act (Cap. 185)
Under the Misuse of Drugs Act, the Prosecution would have to prove, in the case of drug trafficking, that the accused was knowingly in possession of controlled drugs and that his purpose was to sell, give, administer, transport, send, deliver or distribute or to offer to do [any of these acts] or to do or offer to do any act preparatory to or for the purpose of trafficking in a controlled drug. As the facts of possession, knowledge and intention to traffic may be particularly difficult to prove, the MDA contains certain rebuttable presumptions that arise when certain prescribed facts are present. Thus in PP v. Tan Kiam Peng [2006] SGHC 207, VK Rajah J, as he then was, observed that the MDA establishes 3 core evidential presumptions in connection with drug trafficking: (1) S.18(1) MDA: A person who is proved to have had in his possession or custody or under his control a controlled drug shall, until the contrary is proved, be presumed to have had that drug in his possession. (2) S.18(2) MDA: If a person is proved or presumed to have had a controlled drug in his possession he shall, until the contrary is proved, be presumed to have known the nature of that drug. (3) S.17 MDA: Upon proof of possession of an amount of the controlled drug in excess of a certain stipulated quantity it shall be presumed, unless it is proved to the contrary, that the possession was for the purposes of trafficking. In the same case, VK Rajah J mounted a robust defence of the necessity of these presumptions: It does not require a great deal of common sense to appreciate that in certain instances it is plainly necessary to alter evidential rules in order to combat pernicious social evils in the interests of the wider community. It would be difficult in the vast majority of this particular genre of cases (and particularly drug offences) to prove the existence of mens rea when the factum of possession is the only objective factor invariably present; hence the entirely reasonable suggestion by these eminent legal jurists that it is imperative that the possessor of the substance explain persuasively his lack of knowledge. Inadequate comprehension or appreciation of the origins and basis of the entirely pragmatic and morally defensible legal reasoning underpinning such presumptions has often led to intemperate criticisms of the core presumptions created by the MDA by ill-informed observers and commentators. When the case went on appeal, the SGCA took a similar stand: The Act is structured in such a manner as to ensure that truly innocent persons are (in so far as the issue of possession is concerned) able to rebut the initial presumption (in s.18(1)) without any difficulties. However, this structure also ensures that accused who are truly guilty under the relevant provisions of the Act are not given carte blanche to deny possession by mere assertion,
5
If it were merely an evidential burden, the accused would simply have to adduce some evidence to suggest some possibility that the gratification was not used for corrupt purposes, whereas the Prosecution would have to prove beyond a reasonable doubt that the gratification was used for corrupt purposes.
15 | P a g e
without more, hence undermining the general policy of the Act itself [T]he inimical effects that would result from a frustration of the general policy of the Act generate not only social ills and tragedy but also simultaneously violate the individual rights of those who are adversely and directly impacted by the availability (and, hence purchase as well as consumption) of controlled drugs on the open market (including, in many instances, innocent members of their respective families as well). These very important aspects have generally been downplayed by critics of the Act who, at best, mention them in passing without more only to revert to the alleged contravention of the rights of the accused against whom (in their view) no presumptions should operate against. However, these critics never directly address the issue as to what the reality would be if no presumptions were in operation [T]he Legislature has put in place a structure that balances the rights of accused persons on the one hand and the rights of persons in the wider society on the other. The constitutionality of the MDA presumptions was challenged, albeit unsuccessfully, in Ong Ah Chuan v. PP [1980] SGPC 6 on the grounds that it violated the presumption of innocence and principles of natural justice. The PC held that the presumption did not violate the principles of natural justice as natural justice requires that a person should not be punished for an offence unless it has been established to the satisfaction of an independent and unbiased tribunal that he committed it. [T]here should be material before the court that is logically probative of fact sufficient to constitute the offence with which the accused is charged. Instead, the PC noted that [p]resumptions of this kind are a common feature of modern legislation concerning the possession and use of things that present danger to society like addictive drugs, explosives, arms and ammunition.
16 | P a g e
17 | P a g e
As defence is that Bs contract was with C. The fact that A paid C for the work in question is relevant as providing that A did in good faith make over to C the management of the work in question, so that C was in a position to contract with B on Cs own account and not as agent for A. (h) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropriated it he believed in good faith that the real owner could not be found. The fact that public notice of the loss of the property had been given in the place where A was, is relevant as showing that A did not in good faith believe that the real owner of the property could not be found. The fact that A knew or had reason to believe that the notice was given fraudulently by C who had heard of the loss of the property and wished to set up a false claim to it, is relevant as showing that the fact that A knew of the notice did not disprove As good faith. (i) A is charged with shooting at B with intent to kill him. In order to show As intent, the fact of As having previously shot at B may be proved. (j) A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved as showing the intention of the letters. (k) The question is whether A has been guilty of cruelty towards B his wife. Expression of their feelings towards each other shortly before or after the alleged cruelty are relevant facts. (l) The question is whether As death was caused by poison. Statements made by A during his illness as to his symptoms are relevant facts. (m) The question is, what was the state of As health at the time when an assurance on his life was effected? Statements made by A as to the state of his health at or near the time in question are relevant facts. (n) A sues B for negligence in providing him with a motor car for hire not reasonably fit for use whereby A was injured. The fact that Bs attention was drawn on other occasions to the defect of that particular motor car is relevant. The fact that B was habitually negligent about the motor cars which he let to hire is irrelevant. (o) A is tried for the murder of B by intentionally shooting him dead. The fact that A on other occasions shot at B is relevant as showing his intention to shoot B. The fact that A was in the habit of shooting at people with intent to murder them is irrelevant. (p) A is tried for a crime. The fact that he said something indicating an intention to commit that particular crime is relevant. The fact that he said something indicating a general disposition to commit crimes of that class is irrelevant. Facts bearing on question whether act was accidental or intentional 15. When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. Illustrations (a) A is accused of burning down his house in order to obtain money for which it is insured. The facts that A lived in several houses successively, each of which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant as tending to show that the fire was not accidental. (b) A is employed to receive money from the debtors of B. It is As duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive. The question is whether this false entry was accidental or intentional. The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant. (c) A is accused of fraudulently delivering to B a counterfeit dollar. The question is whether the delivery of the dollar was accidental. The facts that soon before or soon after the delivery to B, A delivered counterfeit dollars to C, D and E are relevant as showing that the delivery to B was not accidental.
18 | P a g e
The language of ss.14 and 15 clearly suggest that they are primarily concerned with the admission of similar fact evidence to show the accuseds state of mind or mens rea. Under s.14, any evidence, including similar fact evidence, may be admitted for the purposes stated therein. On the other hand, s.15 is narrower than s.14 in that it is concerned exclusively with evidence of similar facts. The purpose of s.15 is that if the accused alleges that his act was unintentional or done without particular knowledge, the Prosecution may wish to adduce evidence of a series of similar occurrences in which the accused was involved and thereby show the improbability of the accuseds explanation.
Difference between the categorization approaches under ss.14 and 15 and in Makin
On a plain reading of ss.14 and 15, the sections do not express a standard for the degree of relevance, so that if the evidence shows a particular state of mind or body or bodily feeling under s.14 or intention or knowledge under s.15, it will be admissible as a matter of law irrespective of its probative force. In other words, on a strict reading, it would appear that ss.14 and 15 adopt a categorization approach to the admissibility of similar fact evidence. While Makin also adopts a categorization approach, it is not entirely similar to ss.14 and 15. In particular, the formulation in Makin is broader because it allows the adduction of similar fact evidence to rebut a defence which would otherwise be open to the accused. A literal interpretation would mean that propensity evidence may be admitted to rebut any defence which the accused raises even if it involves a denial of the actus reus. In contrast, in the scheme of the EA, even extremely probative evidence which virtually confirms that the accused committed the alleged offence will not be admissible under ss.14 or 15, as actus reus is excluded from their ambit. Hence, the evidence in R v. Straffen [1952] 2 KB 9116 would not be admitted under ss.14 or 15.
The accused denied strangulating a young girl to death. The prosecution adduced evidence of the accuseds confession to the murder of 2 other girls, both of which shares similar circumstances to the subject of the charge. Other than the fact that the accused was in the area at the time of the murder, there was no other evidence which implicated him. Thus, the evidence would have proved the necessary actus reus of the offence.
19 | P a g e
particularly relevant to show that the defence of accident was most improbable. In coming to the decision, Lord Herschall formulated what is regarded as the categorisation approach to similar fact evidence: The mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The Makin formulation places emphasis on certain types of evidence as opposed to the degree of relevancy of evidence in general. Thus, a principal difficulty with the Makin approach is that highly probative evidence could be excluded because it is not adduced for one of the stated purposes, whereas evidence of low probative value might potentially be admitted merely because it fits into one of the categories. The rigidity of the Makin formulation has encouraged English judges, as Lord Wilberforce observed in the subsequent case of Boardman v. DPP [1975] AC 4217, to create categories of circumstances in which similar fact evidence could be adduced as exceptions in a bid to work around the exclusionary rules. Hence, in the subsequent landmark decision of Boardman v. DPP [1975] AC 421, the HL reformulated the rules of similar evidence as laid down in Makin, favouring a balancing test approach over the categorisation approach. The case concerned a headmaster of a boarding school who was charged, inter alia, for committing buggery with S and inciting H to commit buggery with him. The issue before the HL was whether the trial judge, in convicting the accused, was correct in admitting the evidence on one charge to corroborate the evidence in respect of the other charge and vice versa, and, accordingly, whether the trial judge should have ordered separate trials instead. The main similarities in the testimonies of S and H were in the accuseds modus operandi, viz, the accused had woken them up in the middle of the night in the school dormitory, spoke in a certain tone of voice, invited them to do the act in the sitting room and indicated his wish to be the passive partner. The HL held that similar fact evidence is admissible if it has a sufficient degree of probative force so as to override any prejudicial effect that it might have on the accused. This would depend on the general circumstances of each case, such that [w]hether in the field of sexual conduct or otherwise, there is no general or automatic answer to be given to the question whether evidence of facts similar to those the subject of a particular charge ought to be admitted. The speeches of the various law lords also suggested that the similar fact evidence sought to be admitted must have the quality of striking similarity in order to be admissible. In this connection, Lord Salmon said that [t]he similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence. Boardman v. DPP is a landmark case because it changed the emphasis of the rules of similar fact evidence from one that is based on certain fixed purposes for which evidence may be adduced (such as to rebut a particular type of defence raised), to one where admissibility is determined by the degree of probity of the evidence whatever the purpose of its adduction. The Boardman approach is therefore more encompassing than the highly technical categorization approach espoused in Makin. The Boardman approach was modified in DPP v. P [1991] 2 AC 447, in which a parent was charged with child sexual abuse. The similar fact evidence was an allegation that the accused had also sexually abused a sibling of the victim. The victim was different, and it was agreed on all sides that there was nothing strikingly similar about the way in which the 2 alleged sexual abuses were carried out. Lord Mackay, while retaining the core of the balancing test as laid out in Boardman, concluded that to regard striking similarity as an essential qualification for the admissibility of similar fact evidence is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it. Hence, the circumstances in which there may be sufficient probative force are not restricted to cases involving striking similarities but can be derived from some other sources, such as a relationship in time or circumstance. Ultimatelty, [w]hether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.
7
Lord Wilberforce: The English courts have tended to engage in a specious manner of outflanking the exclusionary rule.
20 | P a g e
21 | P a g e
v. PP [1997] SGHC 201 that similar fact evidence that establishes actus reus does not qualify for inclusion under ss.14 and 15. However, whether similar fact evidence could nonetheless be admitted under s.11(b) in order to prove actus reus is less straightforward. When facts not otherwise relevant become relevant 11. Facts not otherwise relevant are relevant (b) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. Illustrations (a) The question is whether A committed a crime at Singapore on a certain day. The fact that on that day A was at Penang is relevant. The fact that near the time when the crime was committed A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant. (b) The question is whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant. This issue was explored by the SGHC in Lee Kwang Peng, which concerned a taekwando instructor who was charged for outrage of modesty against 3 boys between the ages of 12 and 14. The Prosecution stood down the charges relating to the 3rd victim prior to the commencement of trial, at which all 3 victims gave evidence against the accused. The accused was convicted, and on appeal, it was contended that the 3rd victims evidence should not have been admissible. Yong CJ held that the evidence was admissible by virtue of s.11(b), which, owing to the phrase highly probable or improbable, marries relevance to probity arguably to a greater extent than either s.14 or 15, and therefore embodies the balancing mechanism of probative force against prejudicial effect established in Boardman. Yong CJ acknowledged that the use of s.11(b) would be contrary to the scheme of the Act as conceived by the draftsman, but his Honour was nevertheless prepared to employ a purposive interpretation, which would pave the way for future treatment of the EA as a facilitative statute as opposed to a mere codification of the draftman's statement of the law of evidence. The use of s.11(b) to admit similar fact evidence is, however, problematic within the general scheme of the EA. Specifically, unlike ss.14 and 15, s.11(b) is not recognized by s.122(5) as a basis for permitting crossexamination on evidence admitted under it. The logical implication is that, notwithstanding the conceivably wide ambit of s.11(b), the draftsman had intended for the admission of similar fact evidence to be governed only by ss.14 and 15.
Admissibility of similar fact evidence where the identity of the perpetrator is in issue
In DPP v. P, Lord Mackay stated that [w]here the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary, and merely showing that the probative value of the evidence overrides the prejudicial effect of the similar fact evidence is insufficient for it to be admissible. In the context of child molestation, Yong CJ held in Lee Kwang Peng that the fact that a person accused of child molestation had his position of power over the victims to achieve those ends might provide a sufficient hallmark to render the evidence of one victim admissible in the case of the other where the danger of collusion can be discounted.
22 | P a g e
[1995] 2 AC 596, which may be summarised as follows: (a) a conspiracy by the witnesses to tell deliberate untruths; and (b) unintended (or unconscious) untruths or embellishments (characterised as innocent infection) resulting from the mutual recounting of facts. According to Yong CJ, the Prosecution must rebut an allegation of collusion by conspiracy by proving beyond a reasonable doubt that there was no real risk of collusion. As for innocent infection, the court must always be alive to [the possibility of contamination] even if it considers the possibility to be slight. According to Yong CJ, innocent infection affects the probative value (weight of evidence) and not the validity of the evidence, and accordingly, the Prosecution does not have to prove the absence of any risk of contamination in these circumstances. The reasoning is difficult to comprehend. The fact is that even the unintended embellishment of evidence may have the effect of falsifying the facts. Whether it does so depends on the degree of the embellishment and the circumstances of the case. The HCA in Hoch (1988) 165 CLR 292, in contrast, opted for the more logical view that collusion or innocent infection goes into the probative value calculation at the admissibility stage. Even a cursory reading of R v. H will reveal that the primary reason for taking the assessment of collusion and innocent infection from the judge flows from the dynamics of jury trial. The jury, the Lords said, must decide questions of fact, and collusion is a question of fact. Needless to say, this rationale for the decision cuts no ice in Singapore. The preferable approach would be that if there is a reasonable doubt at the end of the case that the validity of the Prosecutions evidence is contaminated by innocent infection, the accused must be acquitted. Accordingly, it is for the Prosecution to prove beyond a reasonable doubt that its evidence has sufficient integrity to warrant a conviction.
Whether a similar fact evidence which failed the Boardman test could nevertheless be admitted as corroborating evidence
In Lee Kwang Peng, Yong CJ made remarks to the effect that even if the testimony of a witness is inadmissible as similar evidence because it failed the Boardman test, "it may nonetheless be admissible as corroborating evidence", as the exclusion of evidence as similar fact evidence does not necessarily rob it of its corroborative quality". The implication seems to be that testimony of similar fact evidence, although inadmissible as similar fact evidence (to prove guilt), may be admissible to corroborate. One would have thought that the question of admissibility is necessarily prior to the question of corroboration only if evidence is admissible can it corroborate. The consequences of any other position is incalculably disastrous. It would mean that evidence considered to be more prejudicial than probative and which therefore is likely to distort the fact-finding process is nonetheless admissible for the purposes of corroboration. It would also mean that other kinds of inadmissible evidence must, logically, be given the same dispensation, for e.g., involuntary confessions and inadmissible hearsay, since the inadmissibility of these on the basis that their prejudicial effect outweighing their probative value would not rob them of their corroborative quality.
Can similar fact evidence that would otherwise be excluded nevertheless be admitted for the purpose of setting the background of the facts in issue?
In R v. M [2000] 1 All ER 148, X and his co-accused were charge with raping Xs sister. The CA held that [w]here it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence. Accordingly, the CA affirmed the trial judges decision to permit background evidence showing that X had been taught by family members to abuse his sisters sexually when he was young and that he had been involved in a history of sexual abuse. Such evidence explained why S had not sought help and why X was able to carry out the alleged offences without fear.
23 | P a g e
Similar Fact Evidence in Civil Cases The statutory scheme for similar fact evidence
Sections 14 and 15 apply to both criminal and civil cases, as confirmed by Choo J in Rockline Ltd v. Anil Thadani [2009] SGHC 20. However, as the prejudice which may arise from similar fact evidence is generally of a lesser severity in civil cases, the court in a criminal case is likely to be stricter when exercising its discretion in admitting similar fact evidence (per Choo J in Rockline). As Lord Denning observed in Mood Music Publishing v. De Wolfe [1976] Ch 119 (endorsed in Rockline), The criminal courts have been very careful not to admit [similar fact] evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it.
24 | P a g e
Position in Singapore
Mood Music Publishing was cited with approval by the SGHC in Hin Hup Bus Service (a firm) v. Tay Chwee Hiang [2006] SGHC 169. There, a bus operated by X was involved in an accident with a concrete mixer. X had been accident-free for 20 years and suddenly within a span of 10 months, 8 similar accidents took place. The Defence sought to adduce this fact as evidence to prove that the present accident was staged to defraud insurers. Lai J was satisfied that the probative force of the evidence outweighed any prejudicial effect: the 7 previous accidents involving X constituted evidence of a regular "system" which justified the admissibility of such evidence as similar fact evidence. The question remains whether the more flexible approach in OBrien, which Lai J did not make any reference to in Hin Hup Bus Services, will be applied in Singapore. The fact that the HL found support for the discretion to exclude evidence in rule 32.1(2) of the English Civil Procedure Rules weakens the authority of OBrien, given that such a discretion does not find expression in the EA. This is particularly the case in the light of Law Society of Singapore v. Tan Guat Neo Phyllis, which held that apart from the confines of the EA, there is no residual discretion to exclude evidence which is otherwise rendered legally relevant by the EA.
25 | P a g e
than it objectively warrants. Finally, on a more philosophical level, it seems only right that a person should not be penalised for his past having already paid his debt to society. After all, the assumption is that the punishment was supposed to have been commensurate to the gravity of the offence, and to penalize him for anything more than he had been sentenced to would be fundamentally incorrect. But what does prejudice entail? There are, conceivably, 2 conceptions of prejudice. The first is inferential prejudice courts are likely to overestimate the probative value of similar fact evidence and are likely to err in the inferential steps between past misbehaviour and present misconduct. The second, and more intriguingly, is moral prejudice, which is embodied in the so-called forbidden chain of reasoning enunciated by Lord Hailsham in Boardman: the fact that the accused had on other occasions behaved in a certain way suggests that he has a tendency or propensity to behave in that certain way, and therefore is likely to have committed the offence for which he is presently being charged. The forbidden chain of reasoning involves an assumption or a prejudgment that the accused must have acted in the particular way alleged in the light of a background conception of his previous misconduct. Thus, as a result of this prejudgment, the trier of fact might subconsciously revoke the principle that reasonable doubt must be resolved in favour of the accused. Accordingly, under the 2nd conception, the focal point of prejudice is the making of such an assumption, and the ban enforced by the similar facts rule on the so-called forbidden chain of reasoning should be understood as a moral injunction against making such an assumption.
26 | P a g e
27 | P a g e
witnesss credibility, but the court shall not permit a question falling within subsection (4) to be put to the accused by virtue of this subsection unless it is of the opinion that the question is relevant to his credibility as a witness. (8) Subsection (4) shall not apply where the accused has himself given evidence against any person jointly charged with him in the same proceedings. Although evidence good and bad character are found in different provision (s.55 and s.122(4) respectively), they are materially connected as when the accused adduces evidence of his good character, the Prosecution and co-accused may, in order to rebut the evidence of good character, be entitled to present evidence of his bad character, or cross-examine him concerning the same under s.56.
Explanation 2 to s.57 In ss.54, 55, 56 and 57, the word character includes both reputation and disposition; but, except as provided in s.56, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition are shown.
28 | P a g e
Does s.122(4) apply where the accused volunteers evidence which tend to reveal the accuseds bad character?
The protection in s.122(4) does not apply where the accused himself had, for whatever reason, voluntarily raised evidence of his bad disposition or reputation and the Prosecution was merely testing the evidence under cross-examination. In Tan Nguan Siah v. PP [1993] SGCA 75, the accused was charged with drug trafficking. His defence was that the drugs were for his own consumption, and to show how serious an addict he was, he disclosed, under EIC (notwithstanding the Prosecutions concerns over prejudice), his previous spells of detention at a drug rehabilitation centre, as well as his failure to attend urine tests while being under police supervision. The Prosecution then proceeded to cross-examine the accused on those matters with the aim of showing that the extent of his addiction was not as great as he had made it out to be. The Defence argued that the trial judge had, to the prejudice of the accused, erred in allowing the accused to be cross-examined on his periods of detention at the drug rehabilitation centre and had thereby allowed evidence of "bad character" to be improperly admitted at the trial. Karthigesu JA, after perusing the entire cross-examination transcript, held that there was nothing that transgressed the parameters of what the accused said in his EIC. S.122(4) had no application as the Prosecution were simply testing the evidence the accused had given in his own defence. This, Karthigesu JA held, the Prosecution was entitled to do, as the accused had given evidence in his own defence to show the extent of his heroin addiction and his consequent need for large quantities of heroin.
S.122(4) shield not applying pursuant to s.122(7) when the accused questions Prosecutions or his co-accuseds witnesses with a view to undermining their credibility
Pursuant to s.122(7), the accused loses the protection provided by s.122(4) if his primary purpose in questioning the witness for the Prosecution or co-accused is to raise an issue as to his credibility. Thus, it only applies where such a witness is questioned, and only where the main purpose is to challenge the witnesss credibility. Thus, if the accused, who is charged with theft of a watch, questions the Prosecution witness to the effect that he gave the accused the watch as a present, he will not lose the protection, as this goes to the defence, even though it necessarily goes to the credibility of the Prosecution witness as well. However, if the accused alleges in a general vein that the Prosecutions or co-accuseds witness has given false evidence or questions him about his previous arrests or charges or convictions for the purpose of reducing his credibility, s.122(7) would apply. The line is, however, rather thin when the Prosecution witness is an alleged accomplice and he is asked about his arrest or charges brought against him in respect of the same transaction which led to the Prosecution of the accused in a separate proceeding. The line of questioning arguably goes to defence as much as to his credibility. Where s.122(7) applies, the credibility of the accused may be attacked in cross-examination. The word credibility, however, raises difficult issues as to its definition and scope, which directly impacts the range of questions that an accused may be asked where s.122(7) applies. The crux of the matter is whether credibility implies that only questions regarding conduct or offences that involves dishonesty will attract the operation of s.122(7), or whether it encompasses other conduct or offences involving any type of wrong. In Garmaz s/o Pakhar v. PP [1995] SGHC 240, certain police officers were charged with acting corruptly. In the course of the cross-examination of a Prosecution witness (who was allegedly involved in the alleged corrupt activities of the accused), counsel for the accused asked him: Were you ever arrested by CPIB and charged for any offence? Yong CJ held that the shield provided by s.122(4) was lowered as the facts fell squarely within s.122(7) EA, and accordingly, the Prosecution was entitled to cross-examine the accused on their previous pleas of guilt to disciplinary charges in other proceedings. The disciplinary charges, according to Yong CJ, [were] not really connected in any way with the corruption charges in question. As they do not indicate a propensity towards corruption, Yong CJ held that the probative value of the evidence [was] minimal. At best there [was] only some relevance towards the [accuseds] credibility. The implication of the holding is therefore that where the operation of s.122(7) is attracted, the accuseds credibility may be affected by unrelated offences, although the impact of such evidence must depend on the
29 | P a g e
circumstances.
Accused losing s.122(4) protection pursuant to s.122(8) where he gives evidence against a co-accused
Pursuant to s.122(8), the accused will lose his s.122(4) protection if he has given evidence against a coaccused who is tried in the same proceedings, whether or not they are charged with the same offence or different offences. An example where s.122(8) was operative is PP v. Tan Chaun Ten [1996] SGHC 281, where one of the coaccused gave evidence of the others involvement in the alleged crime and became subject to crossexamination on his character. The 11th Report (1972) of the UK Criminal Law Revision Committee noted that where s.122(8) is operative, the protection is removed not only in favour of the accused against whom the evidence is given but also in favour of the prosecution and any of the other co-accused. Singapore has yet to make a pronouncement as to whether both the co-accused and the Prosecution are entitled to cross-examine the accused, but the language of s.122(8) does not draw any distinction between the positions of the co-accused and the Prosecution concerning the cross-examination of the accused, and hence on a strict reading, both the co-accused and the Prosecution should be so entitled.
Character Evidence in Civil Cases The statutory scheme for similar fact evidence
In civil cases character to prove conduct imputed irrelevant 54. In civil cases the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is irrelevant, except in so far as such character appears from facts otherwise relevant. Character as affecting damages 57. In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant. Explanation In sections 54, 55, 56 and 57, the word character includes both reputation and disposition; but, except as provided in section 56, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition are shown. Section 54 concerns the admission of character evidence where it appears from the facts to be relevant. Evidence of character is also relevant pursuant to s.57 if it affects the quantum damages to be awarded. As explained by Choo J in Rockline Ltd v. Anil Thadani [2009] SGHC 20, Section 54 is not a shelter for bad character. In civil cases, as it is generally, the law protects a person from adverse findings against him only on the evidence that he was of bad character. Character in itself is an irrelevant fact. A person might be in breach of contract whether or not he was of good character; and conversely, a person of bad character might suffer a civil wrong inflicted on him by a person of good character. Section 54 emphasized the point that relevant evidence may sometimes leave impressions of character that might influence the courts findings of fact but such subsidiary impressions are not grounds for rejecting the otherwise relevant evidence. The second ground was based on the complaint that the passages in the affidavits in question contain scandalous or vexatious assertions concerning some of the defendants.
30 | P a g e
31 | P a g e
inadmissible unless they fall within the scope of the established exceptions. However, VK Rajah JA held in Lee Chez Kee that due to the different conceptual bases, it is not appropriate to adopt the common law definition for the purpose of the EA. Instead, hearsay in the EA is perceived as such: the statement itself, even though it may be of relevant facts, is an irrelevant fact and inadmissible due to the lack of general provisions under the EA making statements of relevant facts themselves relevant facts. Thus, out of court statements of relevant facts or facts in issue are only admissible under the EA to the extent that the statements are legally relevant pursuant to any of ss.1741 (Lee Chez Kee, per VK Rajah JA). In other words, the EA does not formulate the rule against hearsay evidence. Rather, it adopts an inclusionary approach, stating what may be admitted in evidence. The important question, as pointed out by VK Rajah JA in Lee Chez Kee, is thus whether the statement to be admitted satisfies any of the definitions of legal relevancy (which is a separate issue from whether the statement is logically relevant) in the EA. If so, it is relevant, and is made admissible by s.5 of the EA and that is the end of the enquiry. It does not matter whether evidence of the relevant fact thus established matches that which the common law denotes as being original evidence or as being hearsay evidence admissible under an exception to the hearsay rule. In short, Singapore applies a two-step approach in ascertaining the admissibility of hearsay evidence: (1) whether the evidence is relevant under ss. 611 of the EA; and (2) even if it is not, does it nevertheless fall under ss.1457 of the EA.
32 | P a g e
In Wright v. Doe dTathan (1837) 112 ER 488, the issue was whether the testator was mentally competent to make a will. The party who claimed the wills validity sought to adduce certain letters which had been written to the testator for the purpose of showing that the writers (who had since died) must have assumed (on the basis of the style of their language) that he was sane. It was held on appeal that the letters were rightly excluded as they were tendered to prove the writers implied assertions concerning the testators sanity. The difficulties posed by the implied assertions by statement also split the HL in R v. Kearley [1992] 2 AC 228. The accused was charged with dealing in illegal drugs. As the limited quantity of illegal drugs found at his house was insufficient to charge him with the offence, the police remained on the premises for several hours for the purpose of securing more evidence. During the course of they stay, they answered 10 phone calls asking for Chippie to supply the usual. 7 visitors also came to the house asking for Chippie so that they could purchase drugs. The callers and visitors were not called to testify. The police officers gave evidence of their conversations with the callers and the visitors to show that the accused had been dealing in drugs. The majority held that the testimony was inadmissible as the statements impliedly asserted that the accused was a drug dealer. Neither was the evidence admissible to show the beliefs of the callers and visitors which were irrelevant in the circumstances of the case. The minority (Lord Griffiths and Lord Browne-Wilkinson) considered the evidence to be admissible on the basis that the large number of callers and visitors seeking drugs from the accuseds home gave rise to a clear inference that the accused had set up a drug market which was accessible to members of the public. Accordingly, in the view of the minority, this was circumstantial rather than hearsay evidence. Lord Griffith stated that as a matter of common sense it [was] difficult to think of much more convincing evidence of his activity as a drug dealer than customers constantly ringing his house to buy drugs and a stream of customers beating a path to his door for the same purpose. The majoritys conclusion can be supported on the basis that if the callers and visitors had expressly stated that the accused was a drug dealer, this would have been clearly hearsay. The fact that a person believes that another person is involved in criminal conduct does not necessarily mean that this is true, and such evidence would be too unreliable for a court to rely upon. On the other hand, in the absence of a conspiracy of a conspiracy to frame the accused, the minority judgment might be supported on the basis that 17 persons could not all be wrong about their assumption that the accused was a drug dealer. The weakness of the minoritys approach, however, is that it inevitably attracts the question of how many callers/visitors is required to justify an inference of a market? The facts of Kearley might perhaps be a situation in which the flexible approach based on reliability as endorsed by Mason J in Walton v. The Queen (1989) 84 ALR 59, even though he was alone in his view, could have applied. In Kearley, there was no evidence suggesting that all 17 persons had conspired to frame the accused, which renders the implied assertion, taking into account also the circumstances, highly probative. In view of the repeated admonishment that in Singapore, the court is the trier of fact, and that the court is purportedly more than capable, vis--vis a panel of jurors, of undertaking such a balancing exercise. Certain implied assertions are specifically made admissible under the EA (s.32A) and CPC 2010 (s.269). These include the implied assertions arising from a protest, greeting or other verbal utterances. Evidence Act Protesting, greeting, etc., treated as stating fact that utterance implies 32A. For the purposes of section 32(1), a protest, greeting or other verbal utterance may be treated as stating any fact that the utterance implies. CPC 2010 Definitions, etc., for sections 270 to 277 269. (3) For the purposes of this section and of sections 270 to 277, a protest, greeting or other verbal utterance may be treated as stating any fact that the utterance implies.
33 | P a g e
Section 32A EA and s.269(3) CPC 2010 assume that implied assertions of a verbal nature are hearsay and can only be admitted as an exception to the hearsay rule. Accordingly, the statement of a bystander, although hearsay, may be admissible under the limited circumstances in s.32 EA for a civil case and s.269 CPC 2010 for a criminal case where the conditions under s.32(1) EA and s.270 and s.271 CPC 2010 are respectively complied with.
34 | P a g e
The facts that A asked C to lend him money, and that D said to C in As presence and hearing: I advise you not to trust A for he owes B $10,000, and that A went away without making any answer, are relevant facts. (h) The question is whether A committed a crime. The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant. (i) A is accused of a crime. The facts that after the commission of the alleged crime he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.
35 | P a g e
used and relied upon by the public or by persons in particular occupations; or (iv) a document constituting, or forming part of, the records (whether past or present) of a trade, business, profession or other occupation that are recorded, owned, or kept by any person, body or organization carrying out the trade, business, profession or other occupation, and includes a statement made in a document that is, or forms part of, a record compiled by a person acting in the ordinary course of trade, business, profession or other occupation based on information supplied by other persons; In the context of criminal law, a record may be admitted if it satisfies the conditions set out in s.272 CPC 2010: Admissibility of certain records as evidence of facts stated 272.(1) Without prejudice to section 35 of the Evidence Act (Cap. 97), in any criminal proceedings a statement in a document is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence would be admissible if (a) the document is, or forms part of, a record compiled by a person acting under a duty from information which (i) was supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and (ii) if not supplied by that person to the compiler of the record directly, was supplied by him to the compiler of the record indirectly through one or more intermediaries each acting under a duty; and (b) the person who originally supplied the information from which the record containing the statement was compiled satisfies the condition specified in subsection (2)(a) or (b) or any of the conditions specified in subsection (2)(c). (2) The conditions referred to in subsection (1)(b) are (a) that the person in question has been or is to be called as a witness in the proceedings; (b) that the person in question, being compellable to give evidence on behalf of the party wishing to give the statement in evidence, attends or is brought before the court (i) but refuses to be sworn or affirmed; or (ii) is sworn or affirmed but refuses to give any evidence; or (c) that it is shown with respect to the person in question (i) that he is dead or is unfit by reason of his bodily or mental condition to attend as a witness; (ii) that despite reasonable efforts to locate him, he cannot be found whether within or outside Singapore; (iii) that he is outside Singapore and that it is not practicable to secure his attendance; (iv) that, being competent but not compellable to give evidence on behalf of the party desiring to give the statement in evidence, he refuses to do so; or (v) that, because of the time that has elapsed since he supplied the information and considering all the circumstances, he cannot reasonably be expected to remember the matters dealt with in the statement. (3) A statement shall not be admissible in evidence in any criminal proceedings by virtue of subsection (2)(b) or (c)(ii), (iii) or (iv) if the person who originally supplied the information from which the record containing the statement was compiled did so after the commencement of investigations into the offence which is the subject-matter of the proceedings. (4) Where a document setting out the evidence which a person could be expected to give as a witness has been prepared for the purpose of any pending or contemplated proceedings, whether civil or criminal, and that document falls within subsection (1)(a), then in any criminal proceedings in which that person has been or is to be called as a witness, a statement contained in that document shall not be given in evidence by virtue of subsection (2)(a) or (c)(v) without the leave of the court; and the court shall not give leave under this subsection in respect of any such statement unless it is of the opinion that, in the particular circumstances in which that leave is sought, it is in the interests of justice for the witnesss oral evidence to be supplemented by the reception of that statement or for the statement to be received as evidence of any matter about which he is unable or unwilling to give oral evidence. (5) A reference in this section to a person acting under a duty includes a reference to a person acting in the course of any trade, business, profession or other occupation in which he is engaged or employed for the purposes of any paid or unpaid office he holds.
36 | P a g e
Avoiding the Hearsay Rule Where the statement is tendered as evidence of makers state of mind
Out of court statements adduced for the purposes of establishing a partys state of mind may be relevant and therefore admissible. In Subramaniam v. PP [1956] 1 WLR 965, the accused was charged with being a terrorist. He claimed that he had been forced by the terrorists to operate with them and that he was told by them that he would be killed if he did not comply. The PC determined that the evidence is admissible as the purpose of tendering the statement was not to prove their factual content (that the terrorist would have killed the accused), but rather to show the accuseds state of mind for the purposes of establishing the defence of duress, which depended on how the accused reacted to the terrorists irrespective of whether the threats would have actually been carried outs. In the context of Singapore, where, as in Subramaniam, the evidence is held to show the accuseds state of mind, it will be admissible under s.8 or s.14 EA. The line between hearsay and original evidence, however, is not that clear in every case. In R v. Ratten [1972] AC 378, the accused was charged with murder by shooting his wife. A telephone operator testified that she had received a telephone call (it was established that the call was made 3 minutes before the shooting), that a female voice answered, that the caller was sobbing hysterically and that she said get me the police please. The PC concluded, inter alia, that the circumstances in which the statement was made indicated that the wife was in a state of fear. It could be argued, however, that the statement should have been excluded as hearsay because the wife had impliedly asserted that she was being threatened and that the Prosecution was tendering the statement to prove the facts underlying this assertion. If the statement is to be adduced to show state of mind, this must be an issue in the proceedings. In R v. Blastland [1986] AC 41, the accused was charged with murder and buggery of a boy. Although he had admitter to meeting the boy and attempting buggery with him, he denied the charge of murder. He contended that he had run off after noticing another man (M) in the vicinity (whom the accused believed might have seen him and the boy together). The accused sought to tender statements made by M (who did not testify) to certain witnesses indicating his knowledge that the boy had been murdered even before the discovery of his body. To avoid the hearsay rule, the accused argued that the statements were original evidence because they revealed Ms state of mind. Lord Bridge held that the statements were inadmissible because Ms state of mind was irrelevant to any issue before the jury. It is difficult to comprehend the decision of the HL. Surely, the fact that Ms knowledge could possibly have been acquired from his own act of murder was relevant to the issue of whether the accused had committed the murder? The HL might have been able to come to the same conclusion but via the more defensible explanation that the witnesses evidence of what M had said to them was hearsay as it was tendered to prove the inference (based on Ms knowledge) that M could have killed the boy. That said, the evidence of the witnesses would probably be admissible in Singapore under s.32(1)(c) EA (statement against the interests of the maker).
Whether the identity or origin of a person/thing may be proved by the existence of a written piece of identification or other writing bearing a name?
The issue here is whether the existence of a written piece of identification, such as a ticket or label, or other writing bearing a name or identifying markings can be adduced to prove the identity or origin of a person or thing, or will it be excluded as hearsay evidence? The doubt is in whether the document concerned makes
37 | P a g e
any statement as to identity. In reality, such documents have both hearsay (the act of attaching a label or any similarly deliberate piece of identification to an object probably amounts to a statement) and nonhearsay components. This difficult is illustrated in R v. Rice [1963] 1 QB 857, where Rice and another person were convicted of conspiracy. The Prosecution needed to establish that Rice flew from London to Manchester on a particular day, and was permitted to call an officer from the airline to testify that a used air ticket bearing Rices name was found in a file containing used tickets issued for the journey. Rice denied that he was on the flight and argued that the ticket was hearsay evidence as it was tendered to prove its assertion that he had flown to Manchester on the day shown on the ticket. The CA rejected the argument on the basis that the ticket was relevant and admissible circumstantial evidence on the issue of whether Rice had flown to Manchester. According to Winn J, the mere existence of the ticket in that form, including the name Rice, was non-hearsay, circumstantial evidence that someone using the name Rice flew to Manchester on the relevant day, and therefore also of the fact that the accused Rice had done so. As it was the airlines practice of collecting used tickets in a file, it is likely that if the facts of Rice were to come before the courts in Singapore, s.32(1)(b) would apply to render the ticket admissible, thus avoiding the conceptual difficulties that the court in Rice grappled with.
Real evidence
Real evidence generally concerns tangible objects produced before the court from which direct evidence can be derived or inferences can be drawn from the circumstantial evidence about the relevant facts. Sketch In R v. Percy Smith [1976] Crim LR 511, it was held that a police sketch is an assertion of the person giving the description through the hand of the police artist and therefore is not hearsay. In R v. Cook [1987] 1 QB 417, a lady who had been robbed described the assailant, and from this description a photofit was produced by the police which was then photographed and used in court. The accused contended that the photofit picture was hearsay, i.e., an assertion by the police officer of a relevant fact (the accuseds identity) which he did not himself perceive. The CA regarded the production of the sketch or photofit be a police officer making a graphic representation of a witnesss memory as another form of the camera at work, albeit imperfectly and not produced contemporaneously with the material incident but soon or fairly afterwards. The pronouncements in R v. Cook that photofits or sketches may be likened to photographs is doubtful. The former involves human processing which can have a grave impact on the accuracy and therefore reliability of the final product, whereas the latter simply captures an image in its original state. Computer print-out In PP v. Ang Soon Huat [1991] 1 MLJ 1 (HC), the accused was charged with trafficking in diamorphine. Computer printouts of the results of the chromatograph and spectogram tests conducted on the substance were held to be admissible as real evidence. The court drew a distinction between the case where the where only the computer printout was tendered in evidence (without accompanying oral evidence) and the printout was nothing more than a regurgitation of the information fed in (as in Aw Kew Lim v. PP [1987] 2 MLJ 601), and the situation in which the computer not only records, but also processes and calculates the information fed into them, with accompanying oral evidence to confirm these matters. The former would constitute hearsay evidence whereas the latter would constitute real evidence. The case would be decided differently today in view of s.35 EA, which concerns the admissibility of computer output.
38 | P a g e
Admissible Hearsay ss.17-40 Availability proviso under s.32, the introduction of an interest of justice discretion and other safeguards
Section 32(1)(j): a person who is dead or who cannot be produced as witness Previously, evidence of the subject matters described in s.32(1) can only be admitted where, apart from satisfying the requirement prescribed in the relevant subsection, it is additionally shown that the maker of such statement was dead, incapable of being found or of giving evidence, or that his attendance could be procured without unreasonable delay or expense. Under the amended EA, the hearsay exceptions under s.31(1) will no longer be subject to satisfaction of the availability proviso. In addition, the circumstances in the availability proviso will itself themselves constitute free-standing exceptions to hearsay under s.32(1)(j). 32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally, in a document or otherwise), are themselves relevant facts in the following cases: or is made by a person who is dead or who cannot be produced as witness; (j) when the statement is made by a person in respect of whom it is shown (i) is dead or unfit because of his bodily or mental condition to attend as a witness; (ii) that despite reasonable efforts to locate him, he cannot be found whether within or outside Singapore; (iii) that he is outside Singapore and it is not practicable to secure his attendance; or (iv) that, being competent but not compellable to give evidence on behalf of the party desiring to give the statement in evidence, he refuses to do so; An issue may potentially arise in respect of the definition of not practicable to secure his attendence. The previous s.32 availability proviso contained the words whose attendance cannot be procured without an [unreasonable] amount of delay or expense, and thus unreasonable delay or expense are likely to be some of the factors affecting practicality. Whether or not there is ground for holding that the relevant evidence cannot be procured without unreasonable delay or expense within the meaning of s.33 EA is purely a question of fact which needs to be proved, and accordingly a mere allegation of unavailability will not be sufficient (Jet Holdings Ltd v. Cooper Cameron (Singapore) Ltd [2006] SGCA 20). Section 32(3): discretion to exclude evidence in the interest of justice To prevent abuse of these broadened hearsay exceptions, a new s.32(3) was introduced to confer on the courts a discretion to exclude hearsay evidence whose admission would not be in the interests of justice. Further, where hearsay evidence is admitted, s.32(5) confers on the court to shall assign such weight as it deems fit to the statement. The concept of interest of justice is highly amorphous and capable of subjective determination, and may consequently result in inconsistency between cases. This risk is particularly pronounced in the context of criminal cases. S.114(1)(d) of the UK Criminal Justice Act 2003 lists the following factors for determining what is in the interest of justice: (1) probative value (2) value in relation to understanding the other evidence; (3) availability of other evidence;
39 | P a g e
(4) importance of the evidence; (5) circumstances in which the statement was made; (6) reliability of the maker; (7) reliability of the evidence of the making of the statement; (8) whether oral evidence of the matter can be given, and if not, why not; (9) whether there is any difficulty in challenging the evidence; (10) any risk of unfairness. It is worth noting, however, that the discretion in s.114(1)(d) of the UK CJA 2003 is an inclusionary one, whereas the one in s.32(3) is an exclusionary one. Notwithstanding the technical difference, the list is helpful in determining the application of the s.32(3) discretion, since the interest of justice is a substantive ground for inclusion is simply the reverse of saying that the interest of justice is a substantive ground for exclusion. The phrasing of the discretion necessarily implies that all evidence admitted pursuant to s.32(1) are in the interest of justice. While its purported function is to serve as a weapon of last resort persuade the court to exclude technically admissible evidence, one unintended consequence may be that the discretion will likely, and perhaps even invariably, be invoked as a weapon of first resort. Thus, attempting to adduce admissible hearsay evidence will almost always be met with the objection of admission being against the interest of justice. Section 32(4): notice procedure 32.(4) Except in the case of subsection (1)(k), evidence may not be given under subsection (1) on behalf of a party to the proceedings unless that party complies (a) in the case of criminal proceedings, with such notice requirements and other conditions as may be prescribed by the Minister under section 428 of the Criminal Procedure Code 2010 (Act 15 of 2010); and (b) in all other proceedings, with such notice requirements and other conditions as may be prescribed in Rules of Court (Cap. 322, R 5) made by the Rules Committee constituted under section 80 of the Supreme Court of Judicature Act (Cap. 322). Section 32(4) only contemplates hearsay evidence that is raised pre-trial. It has no effect if the hearsay issue comes up during trial. Section 32C: challenging the credibility of the maker Admissibility of evidence as to credibility of maker, etc., of statement admitted under certain provisions 32C.(1) Where in any proceedings a statement made by a person who is not called as a witness in those proceedings is given in evidence by virtue of section 32(1) (a) any evidence which, if that person had been so called, would be admissible for the purpose of undermining or supporting that persons credibility as witness is admissible for that purpose in those proceedings; and (b) as regards any matter which, if that person had been so called, could have been put to him in crossexamination for the purpose of undermining his credibility as witness, being a matter of which, if he had denied it, evidence could have been adduced by the cross-examining party, evidence of that matter may with the leave of the court be given for that purpose. (2) Where in any proceedings a statement made by a person who is not called as a witness in those proceedings is given in evidence by virtue of section 32(1), evidence tending to prove that, whether before or after he made that statement, he made another statement (orally, written or otherwise) inconsistent with the first-mentioned statement is admissible for the purpose of showing that he has contradicted himself. (3) For the purposes of section 32(1)(b), subsections (1) and (2) apply in relation to both the maker of the statement and the person who originally supplied the information from which the statement was made.
40 | P a g e
(4) Section 32(2) applies for the purposes of this section as it applies for the purposes of section 32(1). Section 160: matters which may be proved in connection with s.32 or s.33 What matters may be proved in connection with proved statement relevant under section 32 or 33 160. Whenever any statement relevant under section 32 or 33 is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested. There is no ostensible distinction in substance between s.160 and s.32C apart from terminology: credit and credibility; corroborate and supporting; impeach and undermining. Some evidence are, however, not able to be corroborated: Evidence not capable of corroboration 160A. For the purpose of any rule of law or practice that requires evidence to be corroborated or that regulates the manner in which uncorroborated evidence is to be treated (a) a statement that is admissible in evidence by virtue of section 32(1) is not capable of corroborating evidence given by the maker of the statement; and (b) a statement that is admissible in evidence by virtue of section 32(1)(b) is not capable of corroborating evidence given by the person who originally supplied the information from which the statement was made.
41 | P a g e
It should be noted that one of the basis for not admitting the statement to the father was that the victim and the accuseds relationship had changed for the better within that 9 days. This implies that, notwithstanding that a distinction qualified by time appeared to have been drawn, no time limitation was placed by the court on s.32(1)(a) per se. This would be consistent with the plain language of the section, which does not make any reference to time. If a suicide note is concerned, then statements that tend to prove disprove the suicide, even if it were some time before the death of the deceased, would be relevant as tending to disprove the suicide. The time lapse will only go to weight, and the judge has the discretion to assign a weight, in accordance with s.32(5), which he deems fitting for corresponding with the time lapse.
42 | P a g e
information given by the doctor. Where the medical report contains the opinions of the doctor, a further issue in respect of hearsay opinion, which will only be admissible if the conditions in s.32B are satisfied. Statement of opinion 32B.(1) Subject to this section, section 32 applies to statements of opinion as they apply to statement of fact. (2) A statement of opinion shall only be admissible under section 32(1) if that statement would be admissible in those proceedings if made through direct oral evidence. (3) Where a person is called as a witness in any proceedings, a statement of opinion by him on a relevant matter on which he is not qualified to give expert evidence, if made by way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived. As s.32(1)(b) EA now includes the words supplied by other persons, a literal construction would give rise to the conclusion that multiple hearsay falls within the ambit of the section. This interpretation is reinforced by the fact that the purpose of the amendment was to enhance the admissibility of hearsay evidence in general. While acknowledging that multiple hearsay is prima facie allowed, it appears however that the affected party could nevertheless argue that admission would be against the interest of justice. But if one considers that including a discretion to exclude on the basis of being against the interest of justice necessarily means that hearsay evidence that are expressly allowed under s.32(1) are prima facie in the interest of justice to admit, then perhaps multiple hearsay would affect weight under s.32(5) rather than admissibility.
43 | P a g e
same time. As to the last issue, Khoo J remarked in Saga Foodstuffs Manufacturing v. Best Food [1994] SGHC 281 that the purpose of s.32(1)(h) is to admit evidence of reactions by persons in circumstances which exclude the opportunity for reasoned reflection and possibility of concoction and distortion, which seems to suggest that the more spontaneous and coincidental the statements made, the more likely such statements will be admissible. As for the first 2 issues, it would seem that the lower then number of people and the more anonymity involved, the higher the prejudicial effect and accordingly, the more it would be in the interest of justice to exclude under s.32(3). Accepting that proposition, the evidence may nevertheless be admissible under the similar fact rule. For e.g., a number of people recounting that their impression of the accused was that he hated his wife might be admissible under s.14.
44 | P a g e
45 | P a g e
the Court was of the opinion that this statement was not part of the res gestae. Ratten/Andrews/apparently Chi Tin Hui approach possibility of concoction and fabrication The common law criterion now is no longer strict contemporaneity with the facts in issue, but whether the circumstances give rise to the possibility of concoction and fabrication. In Ratten v. R [1972] AC 378, Lord Wilberforce stated the test as such: The possibility of concoction, or fabrication, where it exists, is an entirely valid reason for exclusion, and is probably the real test which judges in fact apply this should be recognised and applied directly as the relevant test. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded [I]f the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The Ratten restatement was received by the HL in R v. Andrews [1987] AC 281, where the accused was convicted of aggravated burglary and manslaughter. He and 1 other were alleged to have entered the deceaseds flat and attacked him with knives. The victim, who later died, managed, within a few minutes of the attack, to proceed downstairs to the flat below to ask for assistance. Within minutes, the police arrived and he informed them as to the identity of the assailants. The HL determined that there statements were admissible as res gestae to prove their content on the basis of the trial judges view that there was no possibility of concoction or fabrication of the identification in the circumstances, which their Lordships accepted. Lord Ackner, in summarising the application of the res gestae doctrine, held that the primary question is whether the possibility of concoction or distortion be disregarded, which requires the circumstances in which the particular statement was made to be considered. The likelihood of conconction or distortion is minimal where the utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. The inference that the reaction was instinctive would be stronger where the event was so unusual or startling or dramatic as to dominate the thoughts of the victim. In order for the statement to be sufficiently "spontaneous", it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. In other words, the event, which provided the trigger mechanism for the statement, must remain operative. The fact that the statement was made in answer to a question is but one factor to consider in this respect. As to the possibility of error in the facts narrated in the statement, this goes to the weight to be attached to and not to the admissibility of the statement. In Chi Tin Hui v. PP [1994] SGCA 18, SGCA appeared to have endorsed the more flexible approach in Ratten and Andrews. The CNB laid a trap for the accused when he delivered heroin to one of his contacts. The accused was arrested the accused when he rang the doorbell. At the time of the arrest, the accused was in possession of a parcel. The CNB officer testified that he asked the accused a series of questions regarding the parcel. Initially, the accused answered that it was a gift. After further pressing, he confessed that it contained 59 sachets of heroin. The issue before the SGCA was whether the questions and answers were part of the res gestae. Without making reference to the English authorities, Karthigesu JA held that the trial judge had rightly discarded any possibility of concoction by [the CNB officer]. Karthigesu JA added that the accuseds oral statements formed part of the transaction of transporting the drugs. The decision may be difficult to reconcile with the strict context of s.6 as the transportation of the drugs, and therefore the transaction, ended as soon as the accused was arrested and handcuffed. Furthermore, if it is accepted that the SGCA in effect applied the Ratten test, it was, if anything, a misapplication of the test, simply because the statement was made by the accused, whereas the court focused on concoction of the part of the CNB officer. As a matter of concept, it would perhaps have been more appropriate for the statements of the accused to be admitted as a confession to knowledge and possession pursuant to ss.17 and 21 EA.
46 | P a g e
Broad application of s.6 in Don Promphinit In Don Promphinit v. PP [1994] SGCA 93, Yong CJ held that evidence of the accuseds drug-related activities (including negotiations and aborted transactions 9) during the 3 months preceding the offence with which he was charged constituted the transaction and, accordingly, was admissible pursuant to s.6: In our opinion, those events were intricately connected with the facts in issue and presented a complete picture of the circumstances in which the offence was committed. Conceivably, even though there was no discussion of the legal principles in that case, the case could stand for the proposition that any evidence which precedes the facts in issue will be admissible pursuant to s.6 if it leads to the commission of the offence. This would be an extension of the meaning of transaction in s.6. The preceding activities connection to the facts in issue (the actual act of drug trafficking) in this case is weak at best, as the facts in issue can be fully appreciated as a distinct occurrence.
47 | P a g e
Definition of confession
In Anandagoda v. R [1962] MLJ 289, Lord Guest held that the test whether a statement is a confession is an objective one, whether to the mind of a reasonable person reading the statement at the time and in the circumstances in which it was made it can be said to amount to a statement that the accused committed the offence or which suggested the inference that he committed the offence. The statement must be looked at as a whole and it must be considered on its own terms without reference to extrinsic facts It is not permissible to look at other facts which may not be known at the time or which may emerge in evidence at trial. But equally it is irrelevant to consider whether the accused intended to make a confession. If the facts in the statement added together suggest the inference that the accused is guilty of the offence then it is nonetheless a confession although the accused at the same time protests his innocence The appropriate test in deciding whether a particular statement is a confession is whether the words of admission in the context expressly or substantially admit guilt or do they taken together in the context inferentially admit guilt? In other words, to amount to a confession, the statement must sufficiently connect the accused, whether expressly or impliedly, and whether of a plenary or unplenary nature, to the offence: Chai Chien Wei Kelvin [1998] SGCA 64. Hence, a confession may be constituted on the basis of inference. In Sim Cheng Hui v. PP [1998] SGCA 17, the accused made a statement after his arrest to the effect that the drugs which he was found to be in
48 | P a g e
possession of belonged to him. Yong CJ held that the statement clearly implicated him in the offence of drug trafficking. Although the accused did not expressly admit to the offence of drug trafficking, Yong CJ felt that this was immaterial, as the facts that the accused was found to be in possession of such a large amount of drugs must allow the inference to be drawn that he was trafficking those drugs. Yong CJ also noted to be pertinent the fact that the accused had not said that the drugs were for his own consumption, and therefore it could be inferred taking into account all the circumstances of the case that he possessed the drugs for the sole purpose of trafficking them.
Rank of the Police Officer Must Not be Below the Rank of Sergeant
Criminal Procedure Code 2010 Admissibility of accuseds statements 258. (2) Where a statement referred to in subsection (1) is made by any person to a police officer, no such statement shall be used in evidence if it is made to a police officer below the rank of sergeant.
General Principles of Admissibility: Voluntariness & Oppression Statutory provisions that set out the voluntariness test
Criminal Procedure Code 2010 Admissibility of accuseds statements 258.(3) The court shall refuse to admit the statement of an accused or allow it to be used in the manner referred to in subsection (1) if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused grounds which would appear to him reasonable for supposing that by making the statement he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Explanation 1 If a statement is obtained from an accused by a person in authority who had acted in such a manner that his acts tend to sap and have in fact sapped the free will of the maker of the statement, and the court is of the opinion that such acts gave the accused grounds which would appear to the accused reasonable for supposing that by making the statement, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, such acts will amount to a threat, inducement or promise, as the case may be, which will render the statement inadmissible. Explanation 2 If a statement is otherwise admissible, it will not be rendered inadmissible merely because it was made in any of the following circumstances: (a) under a promise of secrecy, or in consequence of a deception practised on the accused for the purpose of obtaining it; (b) when the accused was intoxicated; (c) in answer to questions which the accused need not have answered whatever may have been the form of those questions; (d) where the accused was not warned that he was not bound to make the statement and that evidence of it might be given against him; or (e) where the recording officer or the interpreter of an accuseds statement recorded under section 22 or 23 did not fully comply with that section.
In Chai Chien Wei Kelvin v. PP, Yong CJ explained that [t]he test of voluntariness is applied in a manner which is partly objective and partly subjective. The objective limb is satisfied if there is a threat, inducement or promise, and the subjective limb when the threat, inducement or promise operates on the mind of the particular accused through hope of escape or fear of punishment connected with the charge. Subsequently, Chao JA reiterated the objective and subjective components of voluntariness in Lim Thian Lai v. PP [2005] SGCA 50. Woo J added in PP v. Ismil bin Kadar [2009] SGHC 84 that [i]t is a question of fact to be determined in the circumstances of each case whether a statement or conduct by someone else, usually a police officer, constitutes an inducement, threat or promise which operated on the mind of an accused person and caused him to give his statement.
Sufficiency of inducement
In Sharom bin Ahmad v. PP [2000] SGCA 36, one of the accused (facing a capital charge of drug trafficking) alleged that he gave the statement after the inspector (together with an interpreter) threatened to arrest his wife, but at the same time promised to let him see her if he gave a statement. An inducement to lower the charge to a non-capital one was also allegedly made, and a further threat of indefinite detention if the accused did not give a statement that would tally with the co-accuseds account. Yong CJ held that [t]he remark on arresting [the accuseds] wife, if made at all, could amount to a threat sufficient to vitiate the confession ... As for the inducement to see the wife, this by itself was unlikely to be a sufficient inducement that would render the statement involuntary, especially if the accused was facing a capital charge. Yong CJ referred to Yeo See How v. PP [1996] SGCA 39, where the SGCA found that given the nature of the capital charge that the accused was facing, it was incredible that he would have made the statement merely to obtain cigarettes and visits by his family members, and held that it was unbelievable and that it made no sense that the accuseds free will would be so easily weakened by his desire to see his wife that he would rather give a statement that would eventually bring him more harm than any advantage. In other words, trivial inducements would not, according to the court, give accused persons reasonable grounds for making statements, especially if they were facing serious or capital charges. The difficulty with the decision, and the objective limb of the voluntariness test in general, is that who is to know what could have influenced an accused person, sometimes faced with robust questioning in a hostile, unfriendly environment, into making a statement just to obtain some relief, especially those suffering from ailments or drug withdrawal symptoms, or those who in the face of hostile questioning desperately want to see just a familiar face like that of his spouse or friend? A strict application would appear to lead to the conclusion that investigation officers can promise meals, meetings with girlfriends or other family
members to accused persons facing serious charges with impunity, as trial judges would invariably find that it would not be reasonable to succumb to such inducements, threats or promises and confess in view of the gravity of the charge.
50 | P a g e
such words should be assessed in the context of the individual case This must be correct. The effect of such words if uttered must, in the final analysis, be assessed according to the part objective and part subjective test propounded in Chai Chien Wei Kelvin and Gulam bin Notan Mohd Shariff Jamalddin and Another v. PP. As the accused had said that he did not trust policemen, the subjective component was not satisfied and therefore, he could not claim that he relied on the promise made by the police officer.
Reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him
On a literal reading, if the evil sought to be avoided pursuant to the inducement, promise or threat was not of a temporal (i.e. non-spiritual) nature, then the confession will remain voluntary. Thus, a threat saying that God will punish you if you do not tell the truth will not render the confession involuntary. In Osman bin Din v. PP [1995] SGCA 25, Yong CJ held that it was necessary for the accused to have reasonable grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature by giving the contested statements. How his Honour came to the conclusion that the accused had no reasonable grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature by giving the statements was, however, unclear. Yong CJ merely held that [a]lthough those words were coupled with further statements to the effect that the appellant would be beaten up and sent to the gallows and verbal abuses which supposedly caused the appellant to shed tears, it was not sufficient to give the [accused] any reasonable grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature by giving the statements. In Poh Kay Keong v. PP [1995] SGCA 84, the accused was charged for the possession of drugs for the purpose of trafficking. The police officer said to the accused that he would charge his brother and sister-inlaw and recommend that their HDB flat be confiscated. He had also made a representation to the accused that he would not face the death penalty since the accuseds key could not open the door to the flat where the drugs in question were found and as such, he should give a good statement and the investigating office would know what to do. Yong CJ employed a purposive construction of s.24 and held that the advantage or evil has reference to the proceedings against an accused person if it was gained or avoided (as the case may be) by the making of a statement (a confession in the present case) relevant or relating to the charge brought against the accused. Accordingly, Yong CJ found that the first statement was an inducement or threat. As for the second statement, Yong CJ held that it was plainly an inducement which had reference to the charge
51 | P a g e
against the accused and was calculated to influence his mind with respect to his escape from the charge brought against him. Poh Kay Keong was distinguish in Ismail bin Abdul Rahman v. PP [2004] SGCA 7, where Yong CJ held that the difference between the alleged inducements in Poh Kay Keong and the present case was the degree of assurance (discernible to the reasonable man) allegedly given to the respective accuseds by the police officers involved, viz, in Poh Kay Keong the accused was told that he would not hang, whereas in the present case, the accused was told that the officer would try to get the appellant a lighter sentence. As such, the Court saw it more appropriate to adopt the approach in Osman bin Din to hold that the accused would have had no reasonable grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature by giving the statements, failing on the objective limb of the voluntariness test. Thus, whether the accused had subjectively thought that an advantage would have resulted from telling the truth did not arise.
52 | P a g e
investigating officer who has actual authority over the accused depends on a number of elements which must be considered and balanced, such as the actions of the person in actual authority, the viewpoint of an objective observer and the subjective perspective of the accused. In his Honours view, an interpreter could in principle be regarded as a person in constructive authority if his inducement or promise to the accused was made in the presence of a person in actual authority provided the accused subjectively believed, on reasonable grounds, that the person in actual authority heard the inducement or promise made by the interpreter and took no step to dissociate himself from it; whereas, where the accused has no reasonable grounds to believe, or does not even believe, that the person in actual authority heard the inducement or promise, then the interpreter cannot be clothed with constructive authority, for the accused is not relying on any actual authority at all, but is relying instead on his own subjective viewpoint and beliefs. Chin, Confessions and Statements Made by Accused Persons Revisited (2012) 24 SAcLJ 60: Whether an interpreter should be regarded as a person in authority or not should not depend on the chance of whether the person in actual authority happens to be around at the time the inducement, threat or promise is made. It is easy to manipulate such situations. On a more general level, why are we not concerned with inducements, threats or promises from persons not in authority? The requirement of a person in authority seems to assume that persons not in authority have no capacity to issue convincing inducements, threats or promises. On a deeper level, what seems to be suggested is that the underpinning of the admissibility provisions concerning confessions is dominated by propriety of official behaviour, rather than by reliability and privilege against self-incrimination. One other situation that was not covered in the judgment may arise, viz, if the accused, for whatever reason, did not believe that the person offering an inducement, threat or promise is a person in authority, even though he may actually be one within the description. The issue here is that subjectively, the accused did not believe that that person was one in authority, but objectively, he was in fact one. If the view is taken that the authority of the person validates and gives content to the inducement, threat or promise, then it is arguable that the subjective beliefs of the accused should prevail, such that he did not give the confession involuntarily and it should accordingly be admissible.
Oppression
Criminal Procedure Code 2010 Admissibility of accuseds statements 258. Explanation 1 If a statement is obtained from an accused by a person in authority who had acted in such a manner that his acts tend to sap and have in fact sapped the free will of the maker of the statement, and the court is of the opinion that such acts gave the accused grounds which would appear to the accused reasonable for supposing that by making the statement, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, such acts will amount to a threat, inducement or promise, as the case may be, which will render the statement inadmissible.
The phrase acted in such a manner that his acts tend to sap and have in fact sapped the free will of the maker of the statement in Explanation 1 imports the common law definition of oppression as laid down by Edmund Davies LJ in R v. Prager [1972] 1 WLR 260 (applying Sach Js dicta in R v. Priestly (1967) 51 Cr App R 1) and endorsed locally in Chai Chien Wei Kelvin v. PP and Seow Choon Meng v. PP [1994] SGCA 67).
Mere discomfort insufficient Mere discomfort, however, is insufficient to constitute oppression. In Yeo See How v. PP [1996] SGCA 39, Chao J held that there is no necessity for interrogators to remove all discomfort. Some discomfort is to be expected the issue is whether such discomfort is of such a great extent that it causes the making of an involuntary statement. In Yeo See How, the discomforts that the accused complained of, viz, that he felt
53 | P a g e
cold, that he was not given medicine for his gastric pain, and that he was hungry, were held to be clearly not great and therefore did not affect the voluntariness of the statement. On the other hand, in PP v. Lim Kian Tat [1990] SGHC 22, the accuseds statement was taken on the 4th night of a continuous 18-hour interrogation, during which he had a break of 1 hour. The accused did not have any adequate sleep over the course of the 4 nights. Lai J held that the statement was inadmissible for oppression. In coming to its decision, Lai J, even though his Honour expressed his awareness of the prohibition against inquiring into the truthfulness or otherwise of statements in a voir dire, made the inference from the inconsistency between the confession and the forensic evidence that there was in fact oppression involved. No sweeping stand that every failure to offer sustenance constitutes oppression Yong CJ held in Chai Chien Wei Kelvin (following Fung Yuk Shing v. PP [1993] SGCA 61) that it is not realistic to take the sweeping stand that every failure to offer an accused sustenance constitutes a threat or an inducement of such gravity as to render any statement made involuntary. On the facts, the court did not consider that the omission to give the accuse any food and drink for a period of about 7 hours was so serious that his will might have been overborne. The accused in Fung Yuk Shing was similarly deprived of food and drink for 7 hours, but Yong CJ also took into account the fact that the accused had eaten a meal on board the plane prior to his arrest at the airport, that he did not ask for a meal nor complain of hunger pangs, and that neither medical examinations conducted that day suggested that the accused was in a state of collapse or even in a physically weakened state due to hunger and thirst. Similarly in PP v. Tan Boon Tat [1990] SGHC 124, the accused alleged that as a result of not being given any food or drink for about 9.5 hours, he was very tired and hungry and was in a daze and a state of confusion when the statement was given. Thean J accepted that the accused at the material time was tired, hungry and thirsty, as well as under great stress, and that it was highly inconsiderate of the officers concerned. However, Thean J, having regard to the testimony of the doctor who examined the accused after the statement was made, was of the opinion that the accused was not in such a state of shock, exhaustion or fatigue that he had no will to resist making any statement which he did not wish to make.
54 | P a g e
have had an operating mind capable of reason much less choice. The effect of the new definition under the CPC 2010 is therefore to raise the threshold required to satisfy oppression to such an extent that there might as well not be a ground for oppression, since it would be eminently difficult for an accused to establish oppression. In contrast, the common law approach in R v. Priesly is more justified and therefore preferable as it focuses on the condition of the accused, i.e., free will sapped and therefore confession inadmissible.
Deception
Criminal Procedure Code 2010 Admissibility of accuseds statements 258. Explanation 2 If a statement is otherwise admissible, it will not be rendered inadmissible merely because it was made in any of the following circumstances: (a) under a promise of secrecy, or in consequence of a deception practised on the accused for the purpose of obtaining it; In PP v. Ismil bin Kadar [2009] SGHC 84, Woo J held that the fact that the police told the suspect falsely that his fingerprints were found in the flat in which the victim was murdered was deception under s.29 EA [repealed, now Explanation 2 of s.258 CPC 2010] and not an inducement under s.24 EA [repealed, now s.258(3) CPC 2010], as such a statement did not give the accused any grounds for supposing that he would gain an advantage by making the confession. Accordingly, the statement was admissible. In PP v. Mazlan bin Maidun [1992] SGCA 90, the interpreter had told the accused that he was bound to state truly the facts and circumstances with which he was acquainted concerning the case, but not that he was entitled to refrain from stating anything which might expose him to a criminal charge. Yong CJ drew a distinction between factual misrepresentation and a positive misrepresentation of the law, and held that s.29 EA only applied to the former, i.e., a misrepresentation of the law would not be deception and therefore render the statement involuntary. The reason, according to Yong CJ, is that, in the context of the facts of the case, the failure to inform a person of his rights in circumstances where a positive duty has arisen to give such information may amount to an inducement within the meaning of the proviso to [s.258(3) CPC 2010], because it would be reasonable to assume that such an omission might have caused that person to say what he might not otherwise have said. The SGCAs distinction between factual misrepresentation and a positive misrepresentation of the law in its attempt to interpret the meaning of deception is not very convincing. If the principal concern is that the accused might have [said] what he might not otherwise have said, then whether the deception is legal or factual would not matter, as the underlying principle is the privilege against self-incrimination 10, which underlies both factual and legal misrepresentation.
Although it should be noted that the SGCA also held elsewhere in the judgment that the privilege was not a fundamental rule of natural justice and that the police have no duty to inform the accused of his privilege embodied in s.121(2), which appears to be internally contradictory.
55 | P a g e
Doubt has, however, been casted over the ratio in Gurnam Singh by the dicta of Woo J in PP v. Ismil bin Kadir, where his Honour suggested that a drug abusers mind may not go with his statements even if he was not in a state of near delirium. Thus, a drug abuser may not be nearly delirious but still be in a state of drowsiness or confusion such as to make it unsafe to admit his statement made in such circumstances. As a matter of stare decisis, the ratio in Gurnam Singh still prevails. Without making a judgment as to the merits of Woo Js views, much will depend on the facts of each case, such as the type of substance abused, the level of addiction of the accused, the time between the statement being taken and the accused being allegedly under the influence of the drugs etc.
56 | P a g e
Section 258(5) CPC 2010 only applies: (1) to confessions (as defined in s.258(7) CPC 2010 as well as s.17(2) EA), and such confession must implicate both the maker and the co-accused; (2) where 2 or more persons are jointly tried, i.e., it does not apply where they are tried separately; (3) where the persons jointly tried are charged for the same offence, which, per the Explanation to s.258(5) CPC 2010, includes abetment.
Take into consideration can the confession form the sole basis of the co-accuseds conviction?
The old position on this issue is propounded in Ramachandran v. PP [1993] SGCA 47, where Rajendran J (along with Khoo J and Yong CJ) held that the confession of a co-accused can only play a supportive role in a criminal prosecution and cannot by itself form the basis of a conviction. The position has since been amended by Chin Seow Noi v. PP [1993] SGCA 87, where the Yong CJ (along with Karthigesu JA and Goh J) held that it is trite law that an accused person may be convicted solely on the basis of his confession. He point out that there was nothing in s.30 EA [s.258(5) CPC 2010] or in the EA itself which would point ineluctably to the conclusion that there must exist "independent" evidence against the accused before the confession of his co-accused can be used against him. The natural interpretation of s.30 EA, according to Yong CJ, is that it allows the conviction of an accused person to be sustained solely on the basis of a confession by his co-accused, provided, of course, that the evidence emanating from that confession satisfies the court beyond reasonable doubt of the accused's guilt. In his Honours opinion, a narrower construction would emasculate s.30 EA. Addressing the issue of reliability, Yong CJ expressed confidence in the ability of the courts to assess the evidentiary value of a co-accuseds confession against the accused and assign an appropriate weight accordingly. Following Chin Seow Noi, it would be conceivable that a co-accused may be convicted solely on the basis of a confession that was constituted on the basis of inference. Thus in Sim Cheng Hui, after holding that it could be inferred from the circumstances that the statement of the co-accused amounted to a confession, the SGCA went on to hold that the statement became part of the evidence against the co-accused, and although the accuseds statement did not expressly point the guilty finger at the co-accused, the circumstances allowed for the inference that the co-accused was also guilty. The authoritativeness of Chin Seow Noi has, however, been undermined by statements made by a differently constituted SGCA in Lee Chez Kee. VK Rajah JA expressed the concern that given the laws seeming concern with the unreliability of a co-accuseds confession in situations apart from s.30 (to the extent of making such confessions inadmissible against another accused), it does seem a bit out of the ordinary for a co-accuseds confession admitted under s.30 to be attributed so much weight to the extent of it being able to secure a conviction on its own. VK Rajah JA then went on to suggest that Chin Seow Noi may need to be reconsidered in the future. Perhaps a rational approach would be to assign weight in accordance to the stage at which the confession was made. Custodial confessions, by virtue of the conditions of police custody and interrogation, necessarily carries a higher risk of false confessions and therefore a higher risk of being tainted with unreliability. On the other hand, pre-investigation statements are less susceptible, at least in most instances, to false confessions and, accordingly, unreliability.
57 | P a g e
of any offence in the custody of any officer of a law enforcement agency, so much of such information as relates distinctly to the fact or thing thereby discovered may be proved. In PP v. Chin Moi Moi [1994] SGHC 279, Yong CJ considered the rationale for the provision to be that the statement has to be reliable if the statement or a part of it can subsequently be confirmed by the discovery of a material fact. In order to invoke s.27 EA [repealed, now s.258(6)(c) CPC 2010], Yong CJ emphasized that it is essential to prove that a fact was discovered in consequence of the information received from the accused. The information must be such as has caused discovery of a fact, i.e., the fact must be the consequence and the information the cause of its discovery If there is no link between the information and the fact discovered, such information would not be admissible. The section does not allow confessions generally and is limited to that part of the information as is strictly pertinent. As Yong CJ stated in Chin Moi Moi, s.27 is not a backdoor avenue for the admission of statements made by an accused person to the police, bypassing [s.258(6) CPC 2010] [T]he section was not to let in confessions generally and no more than that which showed how the fact which was discovered was connected with the accused was admissible. Thus, by way of illustration, if an accused confessed that he killed his wife and added that he hid the knife in the roof of his house, and the knife was subsequently found by the police in the place where the accused claimed it was hidden, the inadmissibility of the confession, if it were to be for whatever reason, would be qualified by s.258(6)(c) CPC 2010 to the extent that the accuseds statement as to the whereabouts of the knife will be admissible. One potential problem with s.258(6) CPC 2010 seems to be that even statements obtained via torture or inhumane treatment are admissible if a fact or thing is subsequently discovered in consequence of the involuntary statement. The effect of this is to indicate that the courts are willing to condone torture, which undermines the integrity principle.
Retracted confession
In Lim Thian Lai v. PP, Chao JA held that it is settled law that an accused can be convicted solely on his confession even though that statement is subsequently retracted. But before convicting a person on this basis, the court must be satisfied that his confession is voluntary, true and reliable. It has also been held by the SGCA in Panya Martmontree v. PP [1995] SGCA 59 that a retracted
58 | P a g e
confession of a co-accused implicating the accused in the offence may be relied upon to establish the accused's guilt. In Jagatheesan s/o Krishnasamy v. PP [2006] SGHC 129 (cited with approval by VK Rajah JA in Muhammad bin Kadar v. PP [2011] SGCA 32), VK Rajah J, as he then was, held that by parity of reasoning, with Lim Thian Lai v. PP and Panya Martmontree, the fact that a witness (in this case, an accomplice) may have retracted his statement inculpating the accused does not, ipso facto, render the statement of little evidential weight. The evidential weight to be assigned to the retracted statement should be assiduously and scrupulously assessed by the courts, but in general, his Honour opined, it is neither productive nor meaningful to treat retracted statements as a separate class of evidence attracting its own peculiar rules of analysis. Instead, retracted statements should be regarded as an instance of inconsistency in the witness's testimony, and whether the fact that a witness has retracted his statement should be allowed to cast about the credibility of that witness and the veracity of his statement depends on whether a reasonable and reliable explanation can be furnished for the retraction. If the explanation for the retraction is unsatisfactory, then this may cast doubt on the entire evidence of that witness. However, uncorroborated confessions that have for good reason (or reasons) been withdrawn by their makers should be treated with particular caution. If the explanation for retraction was that the statement was given involuntarily but such an explanation it had been established by the trial judge that the statement was in fact voluntarily given, and where another good reason for retraction is not proffered, the court might take the starting point to be that the EIC should, prima facie, be treated as less reliable than the retracted statements (per Yong CJ in Lau Song Seng v. PP [1972] SGCA 56). It is odd that the starting point is that the EIC should be treated as being less reliable than the retracted statements. The starting point should, instead, be neutral, since after all, the credibility of the witnesss EIC can be tested under cross-examination.
59 | P a g e
have read to him a notice in writing as follows: You have been charged with [or informed that you may be prosecuted for] (set out the charge). Do you want to say anything about the charge that was just read to you? If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore it may be better for you to mention such fact or matter now. If you wish to do so, what you say will be written down, read back to you for any mistakes to be corrected and then signed by you.. (2) If an accused, after the notice under subsection (1) is read to him (a) remains silent; or (b) says or does anything which intimates his refusal to give a statement, the fact of his remaining silent or his refusal to give a statement or his other action must be recorded. (3) A statement made by an accused after the notice under subsection (1) is read to him must (a) be in writing; (b) be read over to him; (c) if he does not understand English, be interpreted for him in a language that he understands; and (d) be signed by him. (4) No statement made by an accused in answer to a notice read to him under subsection (1) shall be construed as a statement caused by any threat, inducement or promise as is described in section 258(3), if it is otherwise voluntary. (5) A copy of a statement recorded under this section must be given to the accused at the end of the recording of such statement. Admissibility of accuseds statements 258. Explanation 2 If a statement is otherwise admissible, it will not be rendered inadmissible merely because it was made in any of the following circumstances: (d) where the accused was not warned that he was not bound to make the statement and that evidence of it might be given against him; or (e) where the recording officer or the interpreter of an accuseds statement recorded under section 22 or 23 did not fully comply with that section.
60 | P a g e
be used against it also does not affect the admissibility of the statement by virtue of Explanation 2(d) to s.258 CPC 2010. It was held in Mazlan bin Maidun that the police has no duty to inform the accused of his privilege under s.121(2), viz, that he need not say anything that might expose him to a criminal charge, but where the accused is also told that he is bound to state truly what he knows of the facts and circumstances of the case without also telling him of his privilege, the statement may be excluded as being a legal misrepresentation which does not fall within Explanation 2(a) of s.258 CPC 2010. Serving and reading of notice and charge Prior to the amendments, the requirement was that the notice in writing had to be served on and explained to the accused. Under the current CPC 2010, s.23 requires only that the notice in writing be read to the accused. In Tsang Yuk Ching v. PP [1990] SGCA 10, Wee CJ, interpreting the phrase explain to, held that the requirement is satisfied if an accused person is told in general terms what the charge and warning mean. Since accused persons differ in background, what form the explanation should take must ultimately depend on the facts of each case. Literally read, the officer would have discharged the procedural requirement simply by reading word for word that which is written on the notice. It is odd, though, that the requirement is no longer that of explain. Surely the accused should at least understand what he is being charged with in order to defend himself? In any case, the statement in Tsang Yuk Ching will probably not be inadmissible under CPC 2010 because of Explanation 2(e).
61 | P a g e
Right of Silence
Silence when Questioned/Confronted by Persons other than the Police
Criminal Procedure Code 2010 Inferences from accuseds silence 261.(2) Subsection (1) does not (a) prejudice the admissibility in criminal proceedings of evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct for which he is charged, in so far as evidence of this would be admissible apart from that subsection; or (b) preclude the drawing of any inference from any such silence or other reaction of the accused which could be drawn apart from that subsection. The common law position is propounded in Parkes v. The Queen [1976] 1 WLR 1251, where Lord Diplock held that if a charge is made against a person in that person's presence it is reasonable to expect that he or she will immediately deny it, and the absence of such a denial is some evidence of an admission on the part of the person charged, and of the truth of the charge. Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true." Parkes was followed in Tan Khee Koon v. PP [1995] SGHC 236, where Yong CJ held that s.123(3) CPC [now s.261(2) CPC 2010] leaves the position as it stands at common law, where the effect of silence is dependent upon the status of the accuser with respect to the accused. It is only if the relationship is equal that the silence may be taken as evidence of the allegation. Yong CJ found on the facts that as the complainant was not superior to the appellant, and was actually in an inferior position, the inference from silence was possibly that the allegations were true. Yong CJ nevertheless qualified his holding by saying that such inferences are very much dependent on the circumstances. Usually, where it is reasonable to expect an answer or a denial but the accused does not proffer one, it suggests that the accused accepts the truth of the accusation, and accordingly, in such circumstances, the fact of silence can be used against the accused.
62 | P a g e
admissibility provision, and admissibility was governed instead by [s.258(3) CPC 2010]. In the circumstances, the misrepresentation of law amounted to an inducement to make the statement which therefore rendered the statement inadmissible. In Ong Seng Hwee v. PP [1999] SGHC 208, Yong CJ disbelieved the accuseds allegation that he was told that he was bound to state the truth but was not informed of his right to remain silent. Yong CJ went on to hold that even if his allegation was true, and that the caution administered in fact amounted to an inducement, it was not shown that it had caused the making of the statement, i.e., even if the objective limb was satisfied, the subjective limb was not. To come to this conclusion, Yong CJ noted that after the accused was told that he was bound to tell the truth, he continued to protest his innocence for half an hour.
Can an adverse inference be drawn from accuseds non-disclosure of fact in his s.22 CPC 2010 statement?
Lim Lye Huat Benny v. PP [1995] SGCA 80, the accused was charged with drug trafficking. His defence at trial, which he did not mention both in his [s.22 CPC 2010] (long) (which was given one day after the s.23 CPC 2010 statement) and [s.23 CPC 2010] (short) statements, was that he thought he was delivering counterfeit money. The reason proffered for the omission was that the accused was too tired and hungry and that all he wanted to do was to rest. The reason was rejected and the trial judge drew an adverse inference against the accused. On appeal, Thean JA held that the trial judge was entitled to draw an adverse inference against the accused in respect of the long statement, but that there was a plausible explanation for the omission in respect of the short statement, viz, that the short statement was recorded at an unearthly time and that at that time, the accused was too tired and hungry to think of his defence. The SGCA has recently clarified that an exculpatory fact that was omitted will require cogent reasons to justify the omission, and failure to proffer such a reason or reasons would justify the drawing of an adverse inference. In Kwek Seow Hock v. PP [2011] SGCA 12, the accused was charged with drug trafficking. At trial, the accused testified that half amount of drugs he was caught with was for his personal consumption (which would have brought the amount below the capital punishment threshold), but the trial judge drew an adverse inference against him on the basis that he had omitted to mention this fact in his long statement and that he had not separated the portion that he claimed was for his personal consumption from the portion that was purportedly for trafficking purposes. The trial judge, however, declined to draw an adverse inference against the accused in respect of the omission when giving the cautioned statement. On appeal, the accused contended that the trial judge had erred in law in drawing an adverse inference against him. Chan CJ upheld the trial judges decision to not draw an adverse inference in respect of the short statement and to draw an adverse inference in respect of the long statement. Chan CJ pointed out that [s.22 CPC 2010] (long statement) entitled an accused person to remain silent in so far as self-incrimination is concerned, and because of this privilege against self-incrimination when making a long statement, no adverse inference, in general, may be drawn against the accused for failing to state any fact or circumstance which may incriminate him in any way. If, however, the fact or circumstance that is withheld will exculpate the accused from an offence, a court may justifiably infer that it is an afterthought and untrue, unless the court is persuaded that there are good reasons for the omission to mention that exculpatory fact or circumstance. Section 22(2) CPC 2010 says that the accused need not say anything that might expose him to a criminal charge, penalty or forfeiture. One way to look at Kwek Seow Hock is that by saying that a portion of the heroin was for the purposes of consumption, the accused would be to exposing himself to a criminal charge for consumption, which, under s.22(2) CPC 2010, he was not bound to do. In other words, instead of looking at the omission as an exculpatory statement, it could be seen as an inculpatory statement, which he was not bound to state. Further, it is arguably inappropriate for the court to draw an adverse inference against the accused pursuant to an omission to mention a fact in the long statement. The premise of the adverse inference under s.261(1) CPC 2010 is that the accused had been warned of the consequences of not mentioning material facts. While
63 | P a g e
such a warning is giving pursuant to the cautioned statement, no such warning is given in relation to the long statement. It is, however, not invariably the case that the long statement is given before the short statement. As a matter of fact, the long statement is usually taken over several sessions. Thus, it could be contended, on the other hand, that adverse inferences can be drawn against any long statements that were given subsequent to the short statement, if it is also at the same time accepted that the s.23 procedure is not self-contained such that the caution and corresponding inferences may not ever be extended to s.22 statements.
Silence Upon Being Charged or Officially Informed Under s.23(1) CPC 2010
Criminal Procedure Code 2010 Cautioned statements 23.(1) If, during an investigation, a person (referred to in this section as the accused) is charged with an offence or informed by a police officer or any other person charged with the duty of investigating offences or charging offenders that he may be prosecuted for an offence, he must be served with and have read to him a notice in writing as follows: You have been charged with [or informed that you may be prosecuted for] (set out the charge). Do you want to say anything about the charge that was just read to you? If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore it may be better for you to mention such fact or matter now. If you wish to do so, what you say will be written down, read back to you for any mistakes to be corrected and then signed by you.. (2) If an accused, after the notice under subsection (1) is read to him (a) remains silent; or (b) says or does anything which intimates his refusal to give a statement, the fact of his remaining silent or his refusal to give a statement or his other action must be recorded. (3) A statement made by an accused after the notice under subsection (1) is read to him must (a) be in writing; (b) be read over to him; (c) if he does not understand English, be interpreted for him in a language that he understands; and (d) be signed by him. (4) No statement made by an accused in answer to a notice read to him under subsection (1) shall be construed as a statement caused by any threat, inducement or promise as is described in section 258(3), if it is otherwise voluntary. (5) A copy of a statement recorded under this section must be given to the accused at the end of the recording of such statement. Inferences from accuseds silence 261.(1) Where in any criminal proceeding evidence is given that the accused on being charged with an offence, or informed by a police officer or any other person charged with the duty of investigating offences that he may be prosecuted for an offence, failed to mention any fact which he subsequently relies on in his defence, being a fact which in the circumstances existing at the time he could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, the court may in determining (a) whether to commit the accused for trial; (b) whether there is a case to answer; and (c) whether the accused is guilty of the offence charged, draw such inferences from the failure as appear proper; and the failure may, on the basis of those inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material. (2) Subsection (1) does not (a) prejudice the admissibility in criminal proceedings of evidence of the silence or other reaction of the
64 | P a g e
accused in the face of anything said in his presence relating to the conduct for which he is charged, in so far as evidence of this would be admissible apart from that subsection; or (b) preclude the drawing of any inference from any such silence or other reaction of the accused which could be drawn apart from that subsection.
Whether an adverse inference can be drawn when the accused chose to be silent because he wanted to consult a lawyer
In Yap Giau Beng Terence v. PP [1998] SGHC 232, the accused was charged with corruptly offering gratification to 2 witnesses to an accident he had caused as an inducement for forbearing to report him to the police for running away from the accident scene. His defence was that he had thought that one of the witnesses was one of the victims and he had wanted to offer he compensation, and later asked her to negotiate with the other victims on his behalf. His explanation for the omission to mention this in his cautioned statement was that he wanted to consult his lawyer first as he did not want to say the wrong things. Yong CJ held the explanation to be completely unacceptable, as it would render s.123 [s.261 CPC 2010], which purpose was to compel the accused to outline the main aspects of his defence immediately upon being charged so as to guard against the accused raising defences at trial which are merely afterthoughts, otiose. Yong CJ was of the view that it must have been evident to the accused, even without the benefit of consulting a lawyer, that the facts he raised at trial in his defence afforded a legitimate explanation for the offer of money he allegedly made, and that it would have been in his interest to mention them. These were thus facts which the accused could reasonably have been expected to mention upon being charged, and the trial judge was perfectly entitled to draw an adverse inference against the appellant under [s.261 CPC 2010] for failing to mention them.
When will an adverse inference be drawn from an accuseds failure to mention certain facts in his cautioned statement?
Adverse inference drawn In Lau Lee Peng v. PP [2000] SGCA 13, counsel for the accused contended that the accused, being a fishmonger of low intellect, could have failed to mention the allegations of provocation in his statements because he did not understand the importance of doing so at the relevant time. Chao JA held that the explanation was plainly unsustainable as the caution administered was simple enough. Chao JA also rejected the contention that the accused was of low intellect, noting that he was clever enough to think of a fictitious person to bear the brunt of the blame for the killing during the police questioning. In PP v. Azman bin Abdullah [1998] SGHC 161, the Prosecution appealed on the basis that the trial judge had erred in failing to draw an adverse inference from the failure of the accused to mention his defence in his cautioned statement. Yong CJ held that the language of [s.261 CPC 2010] makes it clear that the court has a discretion whether an adverse inference is appropriate in all the circumstances of the case. It is not the law that an adverse inference must be drawn whenever an accused elected not to say anything in his [s.23 CPC 2010] statement. In his Honours view, as the district judge had exercised his discretion judiciously in not drawing an adverse inference (the district judge had found that the statement had not been given voluntarily), there was no cause for any interference. Adverse inference not drawn Lim Lye Huat Benny, Thean JA agreed with the trial judge that there was a plausible explanation for the omission in respect of the short statement, viz, that the short statement was recorded at an unearthly time and that at that time, the accused was too tired and hungry to think of his defence.
65 | P a g e
Inference to be drawn from a failure to explain notice under s.23 CPC 2010
The old s.23 CPC 2010 requires the notice to be explained to the accused when taking the cautioned statement, and in Tsang Yuk Chung v. PP [1990] SGCA 10, it was held that the failure to explain the notice to the accused may affect the courts approach towards drawing the appropriate inferences. If the noncompliance is serious enough, the court will not draw any inferences at all from the failure of the accused to mention certain facts. In the present scheme of CPC 2010, however, it is only required that the notice be read to the accused.
66 | P a g e
(a) he is entitled to refuse to answer by section 122(4) of the Evidence Act (Cap. 97) or another written law or on the ground of privilege; or (b) the court excuses him from answering it. (6) Subsection (3) does not apply to an accused if it appears to the court that his physical or mental condition makes it undesirable for him to be called on to give evidence.
Section 291(6) CPC 2010 exception from drawing of inferences for the physically or mentally unfit
Section 291(6) CPC 2010 expressly prohibits the drawing of inferences where it appears to the court that the accuseds physical or mental condition makes it undesirable for him to be called upon to give evidence. In Took Leng How, the Defence contended that no inference should be drawn as the accused was alleged to have suffered, and was purportedly still suffering at the time of the trial, from schizophrenia. Chao JA, however, held on the evidence and the trial judges finding that the accused was mentally fit, and thus the trial judge was entitled to draw adverse inferences as he deemed appropriate in the circumstances against the accused.
67 | P a g e
68 | P a g e
69 | P a g e
the flat and he would then have been charged only with the lesser offence of unlawful possession of a smaller quantity of heroin. Yong CJ rejected the argument and held, in accordance with the HLs observations in R v. Sang that the defences of agent provocateur and entrapment did not exist in English law, that entrapment was not a defence under Singapore law.
70 | P a g e
out that there was no fairness exception in relation to entrapment. In any event, the court continued, the fairness exception has no practical effect in entrapment cases since, by definition, the probative value of such evidence must be greater than the prejudicial effect in proving the guilt of the accused. For this reason, the court explained, the Sang formulation is, in practical terms, consistent with the EA and in accordance with the letter and spirit of s.2(2) EA, and is therefore applicable in the Singapore context. The court concluded that there is no discretion to exclude illegally obtained evidence (including entrapment evidence) by reason of the provisions of the EA
71 | P a g e
was not recorded in Zs field diary, which he did not carry with him as he was required to do under the Police General Orders. His reason for this was that he was not on field duty and merely assisting in the investigations. Z recorded the 1st statement in his field diary after lunch but substituted the word slashed for stabbed. The 2nd statement was made at the Jurong Police Division Headquarters on the same day. Z interviewed Ismil alone again at but did not put the content of the interview into writing until after lunch. Other procedural irregularities that were raised were (1) no warning was administered to Ismil before taking the statement; (2) neither statement was read back to him and he was not given the opportunity to correct either statement; and (3) neither statement was signed by him. Zs explanation for these irregularities were that he wanted to refer Ismil to another officer to record a proper statement. VK Rajah JA11 (together with Chong J and Kan J) noted that the SGHC held in Phyllis Tan that the key holding of the HL in R v. Sang, viz, that there remained a discretion to exclude any evidence that had more prejudicial effect than probative value, was consistent with the EA and in accordance with the letter and spirit of s.2(2) EA, and [was] therefore applicable in the Singapore context. According to VJ Rajah JA, it was very clear from the judgment in Phyllis Tan that a common law discretion to exclude voluntary statements that would otherwise be admissible exists where the prejudicial effect of the evidence exceeds its probative value, and there is no reason why this discretion may not be exercised in respect of voluntary statements from accused persons. VK Rajah then went on to state that procedural irregularities may be a cause for a finding that a statement's prejudicial effect outweighs its probative value [T]he rules prescribed by the CPC for the recording of statements are in existence to provide a safeguard as to reliability The [PGO], especially, set out basic but essential practices for police officers. When fully complied with, the [PGO] thus help ensure that statements are reliably recorded. It follows as a logical conclusion that a serious breach of procedural rules, whether prescribed by the CPC or the [PGO], would necessarily render such statements less reliable. Accordingly, if the Prosecution sought to admit a statement recorded in breach of the relevant provisions in the CPC and/or the [PGO], it would bear the burden of establishing that the probative value of the statement outweighed its prejudicial effect. The Prosecution can discharge this burden if, for instance, some reasonable explanation is given for the irregularity, however, statements taken in deliberate or reckless non-compliance in relation to procedural requirements will generally require more cogent explanation from the Prosecution to discharge its burden, as compared to where the irregularities are merely careless or arising from some pressing operational necessity. VK Rajah JA, however, qualified the rule by stating that the court should be careful to avoid basing the exercise of the exclusionary discretion primarily on a desire to discipline the wrongful behaviour of police officers or the Prosecution. It is important, he remarked, to distinguish an evidential discretion from a disciplinary function. Courts should also refrain from excluding evidence based only on facts indicating unfairness in the way the evidence was obtained (as opposed to unfairness in the sense of contributing to a wrong outcome at trial). That being said, his Honour opined that a vigilant emphasis on the procedural requirements in the recording of statements can have a positive effect on the quality of such evidence generally. Making it clear that noncompliance with the required procedures could actually weaken the Prosecution's case against an accused person would have the effect of removing the incentive for such non-compliance on the part of police officers, so as to help ensure that all evidence in the form of written statements coming before the court will be as reliable as possible. Turning to the facts of the case, VK Rajah JA held that both statements should have been excluded by the trial judge in the exercise of discretion as they were obtained in deliberate non-compliance with the procedural requirements [s.22(3) CPC 2010] rather than mere carelessness or operational necessity. This was in view of the fact that the Prosecution was not able to give any plausible (let alone persuasive) reason as to why SSI Zainal, a seasoned investigator with 28 years of experience, failed to observe the basic requirements of [s.22(3) CPC 2010]. The burden was on the Prosecution to convince the court that the probative value of each of the 2 statements, which had been compromised by the manifest irregularities that took place when each of them was supposedly recorded, was higher than their prejudicial effect against their maker. As the breaches of the CPC and the PGO also appeared to be deliberate, the explanation given needed to be especially cogent, and the Prosecution had been unable to discharge the burden.
11
Perhaps his Honour felt left out of the Phyllis Tan party and therefore decided to add his gloss on the matter in an entirely differently constituted court.
72 | P a g e
Opinion
Lay Opinion
Statutory Provisions
Evidence Act Statement of opinion 32B.(3) Where a person is called as a witness in any proceedings, a statement of opinion by him on a relevant matter on which he is not qualified to give expert evidence, if made by way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived. Opinion as to handwriting when relevant 49. When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person, is a relevant fact. Explanation A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. Illustration The question is whether a given letter is in the handwriting of A, a merchant in London. B is a merchant in Singapore, who has written letters addressed to A and received letters purporting to be written by him. C is Bs clerk, whose duty it was to examine and file Bs correspondence. D is Bs broker, to whom B habitually submitted the letters purporting to be written by A, for the purpose of advising him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write. Opinion as to existence of right or custom when relevant 50. When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right of persons who would be likely to know of its existence, if it existed, are relevant. Explanation General custom or right includes customs or rights common to any considerable class of persons. Illustration The right of the inhabitants of a particular kampong to use the water of a particular well is a general right within the meaning of this section. Opinion as to usages, tenets, etc., when relevant 51. When the court has to form an opinion as to (a) the usages and tenets of any body of men or family; (b) the constitution and government of any religious or charitable foundation; or (c) the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon are relevant facts. Opinion on relationship when relevant
73 | P a g e
52.(1) When the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who as a member of the family or otherwise has special means of knowledge on the subject is a relevant fact. (2) Such opinion shall not be sufficient to prove a marriage in prosecutions under section 494 or 495 of the Penal Code (Cap. 224). Illustrations (a) The question is whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife is relevant. (b) The question is whether A was a legitimate son of B. The fact that A was always treated as such by members of the family is relevant. Grounds of opinion when relevant 53. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. Illustration An expert may give an account of experiments performed by him for the purpose of forming his opinion.
Opinion which assists the court by conveying relevant facts personally perceived by the witness ultimate issue doctrine
Statement of opinion 32B.(3) Where a person is called as a witness in any proceedings, a statement of opinion by him on a relevant matter on which he is not qualified to give expert evidence, if made by way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived. In R v. Davies [1962] 1 WLR 1111, the accused was charged for drink driving. The Prosecution called a witness, another driver, to give evidence about the facts he had observed and also opinion evidence about the accused's condition. The Defence contended that the witness should be allowed to speak only about the facts he had observed, because the condition of the driver was a question for the court. The court agreed with the defence that the condition of the driver was a question for the court, holding that while a witness could quite properly state his general impression whether or not the driver of a vehicle was intoxicated by describing the facts relied on, he was not, merely because he was a driver himself, in the expert witness category, and thus it was improper to ask him his opinion of the driver's fitness or unfitness to drive. The same approach was taken in the Irish case of Sherrard v. Jacob [1965] NI 151, where the accused was charged with driving motor car while under such a degree of intoxication that he did not have proper control of the vehicle. The prosecution witnesses gave evidence that the accused was drunk based on following facts: eyes were glazed and red, he was staggering, he reeked of alcohol, his speech was slurred etc. The majority held that the witnesses could testify as to the accuseds intoxication but not to the unfitness to drive. Lord MacDermott dissented, holding instead that the evidence of unfitness to drive was part and parcel of the witnesss perception, and should therefore be admissible. A different approach was however taken by the Supreme Court of Canada in Graat v. R [1982] 144 DLR (3d) 267. The accused was charged with the offence of driving a motor car while his ability to drive was impaired by alcohol. The police witnesses gave opinion evidence of drivers intoxication (based on the accuseds manner of driving the car, that he smelled of alcohol, his staggered walk, instability and bloodshot eyes), as well as his unfitness to drive. The Supreme Court rejected the ultimate issue doctrine on the basis that the trier of fact had discretion to admit certain types of opinion evidence where the distinction between opinion and fact are not clear, and unanimously held that the opinion as to the accuseds unfitness to drive was admissible.
74 | P a g e
75 | P a g e
Opinion
Expert Opinion
Statutory Provisions
Evidence Act Opinions of experts 47.(1) Subject to subsection (4), when the court is likely to derive assistance from an opinion upon a point of scientific, technical or other specialized knowledge, the opinions of experts upon that point are relevant facts. (2) An expert is a person with such scientific, technical or other specialized knowledge based on training, study or experience. (3) The opinion of an expert shall not be irrelevant merely because the opinion or part thereof relates to a matter of common knowledge. (4) An opinion which is otherwise relevant under subsection (1) shall not be relevant if the court is of the view that it would not be in the interests of justice to treat it as relevant. Illustrations (a) The question is whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant. (b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do or of knowing that what they do is either wrong or contrary to law, are relevant. (c) The question is whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the 2 documents were written by the same person or by different persons are relevant. Facts bearing upon opinions of experts 48. Facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant. Illustrations (a) The question is whether A was poisoned by a certain poison. The fact that other persons who were poisoned by that poison exhibited certain symptoms, which experts affirm or deny to be the symptoms of that poison, is relevant. (b) The question is whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects but where there were no such sea-walls began to be obstructed at about the same time is relevant. Grounds of opinion when relevant 53. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. Illustration An expert may give an account of experiments performed by him for the purpose of forming his opinion.
76 | P a g e
Oral evidence must be direct 62.(1) Oral evidence must in all cases whatever be direct (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
Definition of an Expert
Opinions of experts 47.(2) An expert is a person with such scientific, technical or other specialized knowledge based on training, study or experience.
Qualifications of Expert
It is not necessary for the witness to be professionally qualified in order to be considered an expert, so long as he has sufficient experience concerning the matters. In PP v. Muhamed bin Sulaiman [1982] MLJ 320, the accused was charged with murder. The only evidence connecting the accused to the murder was the evidence of a chemist that the bullet recovered from the body of the deceased was fired from the rifle issued to the accused. The trial judge held the chemists evidence to be inadmissible due to, inter alia, there being inadequate evidence of his competency as an expert in fire arms and in the identification of the rifle from which the bullet had been fired. On appeal, the Federal Court of KL held that the trial judge had erred in treating the chemist as a nonexpert. The chemist, by virtue of his education, scientific qualification and practical experience gained in the department of Chemistry at the University of Malay, had sufficient experience and practical experience so as to acquire the necessary skill and knowledge, and could therefore be regarded as an expert for the purpose of determining whether or not the bullet had been fired through the accuseds rifle. However, the experience must relate specifically to the matters in issue in order to justify a witness giving expert testimony. In PP v. Chong Wei Kian [1990] 3 MLJ 165, the accused was charged for drug trafficking. A chemist of 18 years from the Johor Bahru Chemistry Department testified that the substance found on the accused was heroin. The Federal Court of KL held that the chemist was not an expert witness as, apart form the fact that he had been a chemist for 18 years, no other evidence was tendered to show his qualification and experience in the field of assessing the nature and weight of drugs.
Need for Expert 2 different approaches for traffic accident related cases
There may be cases where an issue may arise in respect of whether an expert opinion is even required for the particular subject matter of the case. In Ong Chan Tow v. R [1963] MLJ 160, the accused had been
77 | P a g e
convicted of causing the death of a motorist in a traffic accident. The accused called a motor engineer, who was also an insurance assessor, to give expert evidence based on a view of the accident scene 2 months after the incident, and a study of the photographs and the plan of the scene. He had also seen the damaged car, a wheel track on the grass verge as well as other marks. On the basis of these facts, he gave his opinion that the motorist was driving too fast and could have avoided the bus. Winslow J held that the issue before the court was whether the accused had failed to stop at the Halt sign, which was a matter that could be determined by the court without the assistance of expert evidence. As to the skid marks, broken glass and other debris at the scene, Winslow J held that these were clearly matters for the court and such an expert should not be asked to give his conclusions on matters which are eminently matters for the court to decide otherwise he would tend to arrogate to himself the functions of the court. The motoring expert is there to help the Court on technical and mechanical matters, not to draw inferences which even a layman can equally well draw. On the other hand, the SGHC came to a different conclusion regarding the traffic accident in PP v. Tubbs, Julia Elisabeth [2001] SGHC 212. A group of pedestrians including a mother, her son and a toddler, attempted to cross a road while standing on the road divider and were knocked down by a car driven by the accused. At the trial, expert evidence was heavily relied on as there were no independent eyewitnesses. The expert witnesses agreed that: (a) the accused was driving at a speed of about 50km/h, (b) the group would take approximately 2 seconds to move from the road divider to the area of impact, and (c) the reaction time of a driver under the circumstances was between 1.5 and 2 seconds; but disagreed on whether the fatalities could have been avoided. Yong CJ did not consider that the normal perception and reaction time of a drive was a matter within the ordinary human experience for which the court could come to its own conclusions, nor one which was easily explicable by recourse to common sense. As such, the assistance of expert testimony was necessary in the circumstances. Yong CJ also noted that the experts' view on the perception and reaction time under the circumstances had not been challenged, and since it was based on sound grounds and supported by the basic facts, the court can do little else but to accept the evidence. Phang JC attempted to steer a middle path between the 2 approaches in Khoo Bee Keong v. Ang Chun Hong [2005] SGHC 128, where he commented that one must be careful not to allow [accident reconstruction] techniques to overwhelm the very valuable resources of plain intellect, logic and common sense Nevertheless, parties ought to be open to new and better techniques of reconstruction where the circumstances and resources warrant it. In light of the new s.47(1) and (3) EA, the fact that the matter is of common knowledge and experience no longer renders an expert opinion admissible, and as long as the court is likely to derive assistance from the expert opinion, it will be relevant.
78 | P a g e
Ultimate Issue May the expert give his opinion on the very issue that the court has to decide?
In DPP v. A and BC Chewing Gum [1968] QB 159, psychiatrists sought to testify that certain allegedly obscene cards sold to children together with packets of bubble gum could not have had the effect of depraving or corrupting the children. The lower court refused to hear the evidence on the basis that it infringed the ultimate issue rule. On appeal, the English CA held that the evidence of the psychiatrists was not the very issue to be decided by the court. There were, according to Lord Parker CJ, 2 issues before the court. Firstly, what sort of effect would these cards singly or together have upon children; and no doubt children of different ages; what would it lead them to do? Secondly, was what they were led to do a sign of corruption or depravity? It was perfectly proper to call a psychiatrist to answer the first issue but not the second. Similarly, in R v. Stockwell (1993) 97 Cr App Rep 260, the accused was charged for robbery. There was evidence of the robbery in the form of a video security film, but it was not entirely clear that the accused was the person depicted in the film. The Prosecution called an expert in photo identification to testify that the accused was the person in the film. The accused contended that the experts testimony should not be allowed as it infringed the ultimate issue rule. Citing A and BC Chewing Gum, the English CA held that if there was indeed a rule prohibiting experts from giving an opinion on an ultimate issue, it has long been more honoured in the breach than the observance. In other words, an expert is now permitted to give his opinion on what has been called the ultimate issue, but the judge should make it clear to the jury that they are not bound by the experts opinion, and that the issue is for them to decide. The rule laid down in R v. Stockwell applies a fortiori where the judge is the trier of fact.
79 | P a g e
80 | P a g e
carefully and dispassionately assessed the respective theories of the two experts, and had accordingly reached a clear conclusion in fact. The SGCA in Muhammad Jefrry bin Safii v PP [1996] SGCA 44 pointed out that the experts qualifications are of secondary importance in determining whether the expert testimony was persuasive or not. What was germane, instead, was the knowledge and familiarity of the expert with the particular subject matter. However, in Sakthivel Punithavathi, VK Rajah J, as he then was, opined that in the context of medical evidence, an expert with greater relevant clinical experience may, although not invariably the case, often prove to be more credible and reliable on hands-on issues for the purposes of deciding between conflicting testimonies. In Sakthivel Punithavathi, the accused was accused of using a chopper to cause serious injuries to the last 3 fingers of the right hand of the victim. The Prosecutions 2 medical experts had testified that the victims injuries were not typical of self-inflicted injuries, basing their conclusions on, inter alia, the direction of lacerations and the fact that the injuries were on the victims dominant hand. They had also confirmed that the injuries must have been caused by a number of blows (instead of a single blow). The Defences medical expert, however, opined that the victims injuries were consistent with selfinflicted injuries with the presence of classic hesitation cuts of varying degrees. He had also indicated, inter alia, that it was unlikely the victim would have willingly and passively been cut multiple times and that given the injuries sustained, the implement used and the size of the accused, it was not possible for the accused to have held the victims hand and cut her. VK Rajah J, as he then was, held that where there is conflicting evidence between experts, it will not be the sheer number of experts articulating a particular opinion or view that matters, but rather the consistency and logic of the preferred evidence that is paramount. Generally speaking, the court should also scrutinise the credentials and relevant experience of the experts in their professed and acknowledged areas of expertise. Not all experts are of equal authority and/or reliability. In so far as medical evidence is concerned, an expert with greater relevant clinical experience may often prove to be more credible and reliable on hands-on issues although this is not an inevitable rule of thumb. Having said that, there is no precise pecking order or hierarchy relating to expert evidence. Experts may sometimes be abundantly eminent while lacking credibility in a particular matter. On the facts, the Prosecutions medical experts, who were considerably less experienced and thorough than the Defences expert, could not convincingly account for the superficial cuts on the victims fingers. Their relatively limited experience with hand injuries coupled with references to suicide cases was neither impressive nor persuasive. It appeared from the subtext of the trial judges grounds of decision that she was unduly impressed by the Prosecutions reliance on 2 medical experts, in contradistinction to the sole expert the Defence had recourse to. It also appeared to his Honour that the trial judge had failed to accord proper significance either to the Defences experts substantial clinical experience or to his standing as an expert.
81 | P a g e
are also relevant. Illustration An expert may give an account of experiments performed by him for the purpose of forming his opinion. Oral evidence must be direct 62.(1) Oral evidence must in all cases whatever be direct (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. (2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable. In AD v. AE [2005] SGHC 30, Choo J that a DNA report that was tendered by someone else other than the doctor who prepared it was inadmissible as the court was only presented with a report from a laboratory on the DNA results and a note under the letterhead of a doctor. Similarly in Khoo Bee Kiong, reliance was placed on the expert witnesss sworn affidavit, which could not be tested in cross-examination. Notwithstanding the foregoing, in light of the amendments to the hearsay opinion (the new s.32B(2)), AD v. AE is no longer good law. Under the present scheme, the opinion evidence would be admissible if the person who expressed the opinion was entitled to give such opinion evidence in court. Section 62(2) EA also allows treatises to be admissible in court without the need to call the author as a witness for the prescribed reasons.
Ethical Perspectives
Khoo Bee Kiong, per Phang JC at [82] [85] and [87]: [82] There are also other more general yet no less intractable difficulties with regard to expert evidence generally. One has been hinted at, but is in fact an extremely pressing problem and ought therefore to be mentioned. It would surprise no one. It relates to the alleged bias on the part of the expert concerned. It would surprise no one simply because, apart from court-appointed experts, every expert is appointed (and remunerated) by the party who has engaged his or her services. It is true that the expert concerned has, in the final analysis, an overriding duty to objective justice and to the court (see, for example, the oft-cited observations by Lord Wilberforce in the House of Lords decision of Whitehouse v Jordan [1981] 1 WLR 246 at 256257). The principle just mentioned is now embodied, in the local context, in O 40A r 2 of the Rules of Court, as follows: Experts duty to the Court (O. 40A, r. 2) 2.(1) It is the duty of an expert to assist the Court on the matters within his expertise. (2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid. [emphasis added] Reference may be made, in addition, to O 40A r 3(2)(h) as well as the views of V K Rajah JC (as he then was) in the Singapore High Court decision of Vita Health Laboratories Pte Ltd v Pang Seng Meng [2004] 4 SLR 162 at [79][90]. [83] All this is only to be expected as [e]xpert witnesses are in a privileged position; indeed only experts are permitted to give an opinion in evidence [emphasis in original] (per Cazalet J in the English decision of Re J (Child Abuse: Expert Evidence) [1991] FCR 193 at 226. To this end, the duties of experts have been set out in detail in many cases. Perhaps one of the most detailed
82 | P a g e
formulations is that by Cresswell J in the English High Court decision of The Ikarian Reefer [1993] 2 Lloyds Rep 68 at 8182, which was endorsed (with one modification) on appeal: see per Stuart-Smith LJ, delivering the judgment of the English Court of Appeal in The Ikarian Reefer [1995] 1 Lloyds Rep 455 at 496. Indeed, Cresswell Js formulation has been described as [t]he most important enunciation of the duties and responsibilities of expert witnesses (see Freckelton & Selby, The Law of Expert Evidence ([68] supra) at p 594). [84] However, one cannot be faulted for taking the views just expressed, with respect to an experts duty to the court and to justice, with the proverbial pinch of salt, especially when one views this proposition through the lenses of practical reality. Not surprisingly, therefore, this datum difficulty is almost always referred to in the literature and the case law which it cites (see, for example, Jeffrey Pinsler, Experts Duty to be Truthful in the Light of the Rules of Court (2004) 16 SAcLJ 407 and, by the same author, Evidence, Advocacy and the Litigation Process ([68] supra) at p 650; Sir John Woodroffe & Syed Amir Alis Law of Evidence, vol 2 ([68] supra), especially at pp 23542355; and Anthony Kenny, The Expert in Court (1983) 99 LQR 197 at 214). It has also been pointed out that the Court may be induced to believe the expert who has succeeded in putting forward his views in the most persuasive and plausible manner (see H A Hammelmann, Expert Evidence (1947) 10 MLR 32 at 34). This poses no real difficulty if the expert concerned has, in fact, a persuasive case. However, where he or she does not, the intensity surrounding problems of bias (already undesirable in themselves) is driven home in spades. [85] The real and effective solution to the difficulties centring on the alleged bias of experts probably lies in the sphere of the extra-legal and this, in itself, reflects, once again, the almost natural intractability that especially characterises the law relating to expert evidence. [87] All the issues canvassed above - and more besides - point to the fact that the area of expert evidence generally is in need of re-examination. Fortunately, none of the issues raised had any impact on the resolution of the present proceedings. This was due, as already mentioned, to the fact that the case was a relatively straightforward one, where the expert evidence proffered was not (unfortunately) particularly helpful ... However, Singapore is not the only jurisdiction where a review might be necessary. Significantly, the New South Wales Law Reform Commission's Issues Paper entitled Expert witnesses (IP 25, November 2004) refers (at para 1.2) to the 'world-wide reassessment and change relating to the management of court business generally and expert witnesses in particular' [emphasis added]. Mhlbauer AG v. Manufacturing Integration Technology Ltd [2010] SGCA 6 at [45]: [45] The issue of the need for review in this area of the law referred to in the last paragraph of the passage quoted in the preceding paragraph was also alluded to by counsel for the Appellant, Dr Lai. Dr Lai emphasised that the issue in relation to the possible (or even probable) bias of experts is an especially significant one in patent cases and suggested that a new system involving impartial assessors might be a possible solution. The special difficulties just mentioned might well be the case, given the very nature of the inquiry in such cases, in which the court also often does not possess the requisite technical expertise. However, it is obviously also significant with respect to all other areas of the law as well. In the meantime, however, it may well be wise and prudent for the parties concerned in future cases (especially of this nature) to apply to the court to appoint an impartial and objective expert (whose views they would agree to abide by) pursuant to O 40 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (which permits the court to appoint one or more independent experts on the application of any party which, under O 40 r 1(2) "shall, if possible, be a person agreed between the parties and, failing agreement, shall be nominated by the Court"). It should, however, also be noted that this same Rule also permits the court to appoint one or more independent experts "on its own motion", although, in the nature of things (particularly in patent disputes), this particular avenue will probably prove to be less than practical.
83 | P a g e
Novel Science
Novel science concern the realm of knowledge that are not fully accepted by mainstream scientific community, such as astrology, feng shui, alternative therapy, fringe science etc. In Fyre v. US, 293 F 1013 (1923), an expert witness was called to testify that the accused had taken a systolic blood pressure deception test, and to further testify as to the results of the test. The CA of District of Columbia held that expert testimony deduced from a well-recognized scientific principle or discovery must be sufficiently established to have gained general acceptance in the particular field in which it belongs for it to be admissible. On the facts, the court held that the systolic blood pressure deception test had not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made. In 1975, 52 years after Frye, the Federal Rules of Evidence came into force governing the reception of evidence in the Federal Courts. Rule 702, which governs the reception of expert evidence, provided as follows: Rule 702. Testimony by Experts If scientific, technical or other specialised knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise. In Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993), the expert called by the Pf, who were borne deformed allegedly as a result of his mother ingesting a drug manufactured by the Df, testified that the drug had caused the deformities. However, the majority of the scientific field does not agree that the drug causes limb deformities and the FDA continues to approve of its use in pregnant women. The US Supreme Court held that the rigid general acceptance test propounded in Frye was in conflict with the Federal Rules of Evidence which put the focus on whether the evidence had a sound scientific foundation and whether it would assist a tribunal of fact to understand the evidence or to determine a fact in issue. The Court therefore held that the Federal Rules had established reliability and relevance as the only two criteria to determine if expert evidence should be admitted and left no room for general acceptance as a threshold question. The Court interpreted the phrase scientific knowledge in Rule 702 as requiring the evidence to satisfy the prerequisite of evidentiary reliability and as importing the requirement that the evidence be supported by appropriate validation by the methods and procedures used in science. The Court emphasised that the focus of the inquiry into reliability should be on the principles adduced and methodology utilised not on the actual conclusions reached by the expert. The word assist in Rule 702 was said to create a helpfulness standard which goes primarily to the requirement of relevance. Rule 702s helpfulness standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. This test goes beyond mere logical relevance required by Rule 401. Scientific evidence is required to pass a heightened relevancy test because the Supreme Court was of the view that even if evidence is shown to be scientifically valid, it must also be shown to be scientifically relevant, or fit, for the purpose for which it is adduced. It must be established that the experts reasoning or methodology, even if scientifically valid, is scientifically probative of the particular fact or facts to which it is directed. The Supreme Court then went on to suggest some non-definitive guidelines to determine reliability of scientific knowledge. The four non exhaustive guidelines suggested were: (1) Whether the claims can and have been tested; (2) Whether the theory or technique has been subjected to peer review and publication; (3) The known or potential rate of error and the existence and maintenance of standards controlling the techniques operation; (4) Whether there has been general acceptance within a relevant scientific community. Having set out the new guidelines, the Supreme Court concluded by holding that even if evidence is
84 | P a g e
admitted under the new guidelines, Rule 403 will act as a safeguard to exclude the relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. As a result of Daubert, general acceptance by a relevant scientific community has now been relegated to being merely one factor in a non-exhaustive list of factors to be taken into account in determining admissibility. It is no longer the sole and exclusive criterion as it was under Frye. The gate-keeping responsibility has been shifted from the scientific community to the judge. Comparing the Frye approach with the Daubert approach The Frye approach has the following advantages: (a) It sidesteps the task of judicial assessment of scientific validity by deferring to the general opinion of the relevant expert community. (b) It is a relatively quick method of determining admissibility of novel scientific evidence. Trials are not prolonged and juridical resources are conserved by not having to deal with complicated threshold questions. (c) The high threshold requirement of establishing general acceptance provides a greater assurance of reliability for the evidence. (d) The test is relatively brightline and promotes consistency of decision- making. The Frye approach, however, has certain disadvantages: (a) The Frye test applies only to novel scientific evidence whereas Daubert provides assistance in evaluating the admissibility of all scientific evidence. The application of the Frye test therefore means that a field of scientific expertise, once it has been recognised and is no longer considered novel, ceases to be subject to ongoing scrutiny. The Frye test therefore fails to recognise that what may have been reliable science at one time may cease to be so. (b) Acceptance in the scientific community is a nebulous concept. It is difficult to determine what should constitute the relevant community. (c) It is difficult to ascertain the views of a completely unbiased and impartial majority of practitioners in a particular field whose financial viability is not intimately connected to the technique or theory in question. (d) The Frye test makes no attempt to evaluate the contents or methods used in the scientific knowledge adduced and merely focuses on which methods have been accepted and recognised by the majority of the profession (extrinsic evaluation). The absence of an empirical testing requirement may result in the reception of unreliable evidence. (e) Reliable and helpful scientific methodologies or techniques may be excluded merely because they are too recent or because they only represent the views of a minority in the field. Advantages of the Daubert approach: (a) The Daubert test goes directly to the nub of the issue to determine whether as a matter of fact a technique or theory has sufficiently evidentiary reliability to be received in court by evaluating the content and methods used in the scientific knowledge adduced (internal inspection). (b) The Daubert test permits more relevant and reliable expert evidence to go before the court. (c) Opinion evidence resulting from the application of a field of expertise will not be excluded merely because that field is new and cannot yet be said to be generally accepted. Disadvantages of the Daubert approach: (a) It places too great an onus on judges who are expected to act as amateur scientists in evaluating the underlying essence of scientific knowledge and to apply difficult epistemological concepts such as falsifiability to decide what are merely threshold questions. (b) Judges will require special training to cope with the task of assessing scientific methodologies. (c) More judicial time will be consumed in applying the test and will in turn result in more costs to the parties. (d) The concept of falsifiability, which is the key test of scientific validity propounded in Daubert, is an adequate, but not always necessary, criterion to distinguish between good and junk science. Although a rigid application of this criterion may rightly exclude some unreliable types of syndrome evidence, it may
85 | P a g e
also result in the exclusion of orthodox forensic practices that cannot meet falsifiability criteria for example fingerprints, ballistics, bite-marks and handwriting. (e) It is biased in favour of hard sciences. Syndrome evidence is usually adduced by experts in social and behavioural sciences and cannot be tested or falsified in the strict sense because these soft sciences deal with the psychology of human beings. (f) The guideline of falsification by empirical testing or rate of error was formulated specifically to test scientific evidence and is not appropriate for evaluating other forms of specialised knowledge. (g) The test is very general in nature and the non-exhaustive factors set out do not give the courts much guidance in its application. The approach in Singapore Under the amended s.47(1) EA, novel science will fall within the ambit of the phrase specialized knowledge, which was included to avoid any argument that the fields of expertise on which expert evidence is admissible are closed, and is therefore likely to be prima facie admitted where it is of assistance to the court. In determining whether the evidence is of assistance, the court may observe the Daubert guidelines, or alternatively, the court may only have regard to the factors elucidated in Daubert in deciding how much weight to assign to the evidence. The court also reserves the discretion to exclude the evidence under s.47(4) EA.
86 | P a g e
87 | P a g e
(d) any document which the legal counsel was acquainted with otherwise than in the course of and for the purpose of seeking legal advice. (3) For the purposes of subsection (2)(b), it is immaterial whether the attention of the legal counsel was or was not directed to the fact by or on behalf of the entity. (4) Where a legal counsel is employed by a public agency and is required as part of his duties of employment or appointment to provide legal advice or assistance in connection with the application of the law or any form of resolution of legal dispute to another public agency or agencies, subsection (1) shall apply in relation to the legal counsel and the second-mentioned public agency or agencies as if the legal counsel were also employed by the second-mentioned public agency or agencies. (6) For the purposes of subsection (5), public agency includes (a) the Government, including any ministry, department, agency, or Organ of State or instrumentality of the Government; (b) any board, commission, committee or similar body, whether corporate or incorporate, established under a public Act for a public function (referred to in this subsection as a statutory body); (c) any other board, commission, committee or similar body appointed by the Government, or by a statutory body, for a public purpose. Section 128 to apply to interpreters, etc. 129. Sections 128 and 128A shall apply to interpreters and other persons who work under the supervision of legal professional advisers. Privilege not waived by volunteering evidence 130.(1) If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 128 or 128A; (2) If any party to a suit or proceeding calls any such advocate or solicitor as a witness, that party shall be deemed to have consented to such disclosure as is mentioned in section 128 only if that party questions the advocate or solicitor on matters which but for the question the advocate or solicitor would not be at liberty to disclose. (3) If any party to a suit or proceeding calls any legal counsel in an entity as a witness, that party shall be deemed to have consented to such disclosure as is mentioned in section 128A only if that party questions the legal counsel on matters which but for the question the legal counsel would not be at liberty to disclose. Confidential communications with legal advisers 131.(1) No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others. (2) In subsection (1) and section 129, legal professional adviser means (a) an advocate or solicitor; or (b) in the case of any communication which has taken place between any officer or employee of an entity and a legal counsel employed, or deemed under section 128A(4) or (5) to be employed, by the entity in the course and for the purpose of seeking his legal advice as such legal counsel, that legal counsel.
88 | P a g e
now considered a substantive legal right that may be claimed outside these areas.
89 | P a g e
purposes had to be construed broadly. The scope of the privilege rule is not limited to communications between client and solicitor which request and convey legal advice. It also applies to those communications which do not specifically seek and convey legal advice but which are part of the necessary exchange of information whose object is the giving of legal advice as and when appropriate, and must include advice as to what should prudently and sensibly be done in the relevant legal context. The fundamental condition of legal advice privilege is that the communication must relate in some way to legal advice.
Requirement of confidentiality
Phang JA held in Scandinaviska that the privilege only protects confidential communications, and although s.128 does not refer to the confidentiality of the communication from the client to the lawyer, whilst s.131 refers to such a quality with respect to any communication passing between him and his lawyer, it is implicit that the nature of the business or enterprise involved in a client obtaining legal advice from a lawyer must have the element or quality of confidentiality in the communication to the lawyer or the advice given to the lawyer.
Presentational advice
Three Rivers v. Bank of England (No. 6) [2005] AC 610 arose against the backdrop of the spectacular collapse of BCCI, which led to massive losses to depositors. An inquiry was commissioned by the Chancellor to carry out a public inquiry on BoE, who was under a statutory responsibility to maintain supervisory oversight over BCCI. In turn, BoE appointed 3 of its own officials (Bingham Inquiry Unit) to deal with all communications with the solicitors. BoE appointed Freshfields to advise it on how to present evidence to the inquiry. After the BIUs report was published, BoE faced lawsuits by depositors who had suffered losses, and the lawyers representing the depositors demanded disclosure of the communications between BoE and its lawyers. The HL was asked to consider whether the scope of legal advice privilege extended to presentational advice with which a lawyer might be requested to furnish his client. The HL held that the communications between BoE and its lawyers were privileged, since the issue of whether BoE had properly performed its duties of supervision involved potential legal action for breach of its duties under public law, and presentational advice was necessary for the purpose of enhancing [BoEs] prospects of persuading the inquiry that it had complied with its duties. In other words, there was a sufficient legal context. In coming to its conclusion, the HL endorsed Taylor LJs statement in Balabel that legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context. Lord Scott gave the following guidelines in a case where it is not obvious that communications have taken place in the relevant legal context: There is, in my opinion, no way of avoiding difficulty in deciding in marginal case whether the seeking of advice from or the giving of advice by lawyers does or does not take place in a relevant legal context so as to attract legal advice privilege. In cases of doubt the judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply. If it does so relate then, in my opinion, the judge should ask himself whether the communication falls within the policy underlying the justification for legal advice privilege in our law. Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect the privilege to apply? The criterion must, in my opinion, be an objective one. Lord Roger, inter alios, agreed, pointing out that BoE was not seeking Freshfields assistance as bankers, accountants, rhetoricians or anything else: it was seeking their comments and assistance as lawyers professing expertise in the field. The HL also suggested that privilege applies to advice given to participants in all courts, tribunals and inquiries, including inquests and planning inquiries12.
12
In this connection, see Yap Sing Lee v. MCST No. 1267 above.
90 | P a g e
91 | P a g e
proactively seeking to defuse potentially litigious situations, for example, conducting a review of a potentially defective product or running an environmental assessment check in a situation where no customer has complained. Secondly, a narrow definition will raise a plethora of questions. For instance, the issues that remain unanswered with respect to the definition in Three Rivers (No. 5) are numerous. Among them are these: how can this client group be identified short of an express authorisation by the Board of Directors? When can members outside of this client group provide information or should the client group be the only ones responsible for all collation of data and communications? Thirdly, the consequences of a narrow definition would be especially stark in large corporate organisations, especially transnational organisations where it is necessary, by sure dint of size, for organisations to designate and entrust the collation of data to delegated individuals or managers in each country. Yet, this economically beneficial approach to the collation of data is challenged by the narrow definition espoused in Three Rivers (No. 5) since prudence would require that the client group of employees obtain all the relevant information themselves instead of delegating this duty downwards. Fourthly, it is unfair to restrict the ability of a corporate entity to investigate allegations of fraud or negligence by requiring the corporate entity to constantly guard against its own employees being compelled into disclosing sensitive or inconvenient information.
92 | P a g e
Pratt Holdings raises an issue in respect of statutory integrity and compliance with ss.128(1) and 128A(1) EA. The words by or on behalf of his client embody the English approach of requiring the third party to be a channel of communication or conduit on behalf of the client. To encompass a situation whereby the 3rd party provides separate information in a capacity independent of the client would require a stretch of the statutory language. In Pratt Holdings, the report was written by an accounting firm and sent by the accounting firm to the client. Even on a liberal reading of on behalf of in the first limb of s.128(1), it is difficult to see how the report was in itself a communication by the accounting firm on behalf of the client to the lawyer. It is perhaps more appropriate to rely on the second limb of s.128. This limb extends legal advice privilege to any document with which [the advocate or solicitor] has become acquainted in the course and for the purpose of his professional employment. This phrase is very wide, and if read literally, could potentially cover a 3rd party report of the type seen in Pratt Holdings. However, the danger of an uncalibrated extension of legal advice privilege to 3rd party communications may encourage corporate misconduct and increase the zone of secrecy in opposition to open discovery rules, for e.g., a client could cloak all pre-existing incriminating documents with the privilege by the simple expediency of forwarding them to his or her lawyer for safekeeping.
93 | P a g e
the case, any communication made for a non-criminal purpose is protected by privilege notwithstanding the degree of impropriety which might be involved. On the other hand, it could also be construed to include any conduct that would make it unconscionable to uphold the privilege. In Barclays Bank v. Eustice [1995] 1 WLR 1238, Schiemann LJ considered that advice sought or given for the purpose of effecting iniquity is not privileged, and public policy would require that such communications be discoverable. As to the iniquity required to deprive the client of the privilege, Schiemann LJ accepted that it could involve all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances. Accordingly, communications between the Df and his legal adviser for the purpose of entering transactions at an undervalue in order to prejudice the interests of the creditor-bank were held to be not protected by privilege.
94 | P a g e
proceedings rather than being a separate and distinct factor; and (6) the party opposing the privilege must adduce at least some prima facie evidence (although he need not prove his case on a balance of probabilities) concerning the claimants improper conduct.
Implied waiver
Implied waiver may arise under s.130 if the client calls his lawyer as a witness and questions him on any matter protected by privilege. The client may also waive his privilege when, pursuant to s.131, he voluntarily gives evidence as a witness, as under those circumstances, he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others. In case law, Kan J acknowledged in Tentat Singapore Pte Ltd v. Multiple Granite Pte Ltd [2009] SGHC 136 the common law principle that a party may impliedly waive his privilege if the facts clearly establish this intention.
95 | P a g e
Use of Privileged Information by a 3rd Party and Available Remedies The common law position
Under common law, conflicting authorities exist in respect of the use of privileged information by a 3rd party. In Calcraft v. Guest [1890] 1 QB 759, the English CA laid down the rule that if another party has possession of a copy of a privileged document, he will be able to adduce it if it is relevant. Accordingly, the Df in that case was permitted to present copies of privileged documents pertaining to legal proceedings brought by Pfs predecessor in title more than a century before the current action. Subsequently in Lord Ashburton v. Pape [1913] 2 Ch 439, Cozens-Hardy MR sought to interpret the rule in Calcraft as such: [T]he rules of evidence as explained in Calcraft v. Guest merely amounts to this, that if a litigant wants to prove a particular document which by reason of privilege or some circumstances he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means, and even, it may be, by criminal means. The Court in such an action is not really trying the circumstances under which the document was produced. That is not an issue in the case But that does not seem to me to have any bearing upon a case where the whole subject-matter of the action is the right to retain the originals or copies of certain documents which are privileged. Similarly, Kennedy LJ held: [T]he principle laid down in Calcraft v. Guest must be followed, yet, at the same time, if before the occasion of the trial when a copy may be used, although a copy improperly obtained, the owner of the original can successfully promote proceedings against the person who has improperly obtained the copy to stop his using it, the owner is none the less entitled to protection, because, if the question had arisen in the course of a trial before such proceedings, the holder of the copy would not have been prevented from using it on account of the illegitimacy of its origin. The issue arose again in Webster v. James Chapman & Co [1989] 3 All ER 939. In this case, Webster was injured in an industrial accident, and he commissioned consulting engineers to report on the system of work. When his solicitors received the engineers report, his solicitors instructed the engineers to consider their adverse conclusions. By mistake, a copy of the report was sent to the employers solicitors, who refused to return it or to undertake not to use it. Webster then brought an action for the return of the report, and to restrain the use of it. Although the evidence over which privilege was claimed was not secondary evidence, Scott J, as he then was, considered Calcraft and Lord Ashburton and concluded that: Calcraft v. Guest and Lord Ashburton v. Pape are examples of two independent and freestanding principles of jurisprudence. The former case related to privileged documents and to the scope of the protection provided by legal privilege. The latter case related to confidential documents and to the protection that equity will provide to that category of documents. I think it is important to notice the different principles on which protection of confidential documents on the one hand and privileged documents on the other hand are based Once a privileged document or a copy of a privileged document passes into the hands of some other party to the action, prima facie the benefit of the privilege is lost: the party who has obtained the document has in his hands evidence which, pursuant to the principle in Calcraft v. Guest, can be used at the trial. But it will almost invariably be the case that the privileged document will also be a confidential document and, as such, eligible for protection against unauthorised disclosure or use.
96 | P a g e
Finally, in Goddard v. Nationwide Building Society [1987] QB 670, May LJ found that the application of the rules in Calcraft and Lord Ashburton depends on the stage of use of the privileged information: If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation: however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies or to restrain him from disclosing or making any use of any information contained in them. According to Nourse LJ, [t]he crucial point is that the party who desires the protection must seek it before the other party has adduced the confidential communication in evidence or otherwise relied on it at trial.
Preliminary observation
At this juncture, some preliminary observations may be made. Firstly, the cases have mostly dealt with secondary documents, but it is submitted that the same principles should apply a fortiori to primary documents. Neither Lindley MR nor Parke B explained in Calcraft v. Guest how privilege is lost through the process of copying. Since the privilege subsists in the content of the information, the same principles should apply to primary documents. Secondly, the cases dealt primarily with legal advice privilege. In Goddard, reference was made to legal professional privilege in general even though the facts of the case gave rise to legal advice privilege (Pf and Df used same solicitor who sent Df a copy of an attendance not which recorded, inter alia, earlier conversations which he had with the Pf regarding the purchase of the house via a mortgage from Df). It is submitted that the same principles should also apply to litigation privilege.
97 | P a g e
The principle in Calcraft will be applicable where the document or communication over which privilege is claimed will be applicable if it has already been adduced as evidence at trial. Thus, if a party to litigation has in his possession copies of documents or communications to which legal professional privilege attaches, he will be able to adduce such copies as secondary evidence in his litigation. However, a party who seeks the protection can apply to court to restrain the use or disclosure of the document or communication if the document or communication has not become a part of the record in any court proceedings or been released into the public domain.
98 | P a g e
It is submitted that whether the remedy is grounded in law or equity depends on the nature of the relationship between privilege and confidentiality. If a clear line is drawn between both doctrines, then the rule is that privilege is lost once document has come into the possession of another, and the only basis for restraining the improper use or disclosure of the document is the courts equitable jurisdiction to restrain a breach of confidence. The preferable view would be that the injunction is granted in aid of the privilege (per Nourse LJ in Goddard), i.e., equitable doctrine is being used to support the privilege rule. This entails that the privilege is only lost to the extent that the document is in the possession of the 3rd party, and that legal privilege is reinstated once the document is back in the hands of the party claiming the privilege, and that equity aids the reinstatement of the privilege by restraining the party seeking to use it from using or disclosing it, and by requiring the return or destruction or the document. In this connection, as held by Nourse LJ, there is no discretion in the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the communication.
99 | P a g e
100 | P a g e
Waugh was formally received into Singapore law by the SGCA in Skandinaviska. Firstly, Phang JA followed Wheeler v. Le Merchant (1881) 17 Ch D 675 and held that the critical difference between legal advice privilege and litigation privilege is that the latter applies to every communication, whether confidential or otherwise so long as it is for the purpose of litigation. It also applies to communications from third parties whether or not they were made as agent of the client. Secondly, citing Waugh, Phang JA held that there were 2 basic and closely related principles in respect of litigation privilege, viz, (1) litigation must have been contemplated as having been reasonably in prospect; and (2) the dominant purpose for which legal advice had been sought and obtained was for anticipation or contemplation of litigation. As to the first principle, the test is that of reasonable prospect of litigation, which does not mean that the chance of litigation must be higher than 50%. As to the second principle, assuming that litigation was contemplated as having been reasonably in prospect, it must also be established that the dominant purpose for which legal advice had been sought and obtained was for anticipation or contemplation of litigation before litigation privilege can be raise successfully.
101 | P a g e