Law of Evidence Exam Notes

Law of EvidenceGroup (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 law’s 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. Standards & Burden of Proof Standards of Proof Definitions and Interpretations Section 3(3) EA: A fact is said to be “proved” when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Section 3(4) EA: A fact is said to be “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Section 3(5) EA: A fact is said to be “not proved” when it is neither proved nor disproved. Loo Chay Sit v. Estate of Loo Chay Loo [2009] SGCA 47 (civil case) at [20]: “In a case where a fact is said to be "not proved", the court is unable to say precisely how the matter stands because of a lingering doubt as to the existence and non-existence of the fact; put simply, the court is unable to decide one way or the other. The court thus refrains from making an affirmative pronouncement as to the existence or non-existence of the fact.” Eu Lim Hoklai v. PP [2011] SGCA 16 (criminal case) at [44]-[45]: “The Judge...felt that for that reason he too could not take a firm position on...[whether the wounds were self-inflicted]. In our view, this was an error on his part … This is not to say that a fact sought to be proved may not be regarded as “not proved” which is one of the distinct concepts of proof under s.3(5) of the [EA]. It may well be that a Judge has a “lingering doubt” as to the existence or non-existence of a fact and thus concludes that it is "not proved". But in a criminal matter, where the elements of the offence are concerned, such a doubt could well constitute a reasonable doubt to defeat the Prosecution’s case, and where a defence is concerned, such a doubt does not automatically preclude an accused from proving his defence.” Are there one or two standards of proof in the EA? PP v. Yuvaraj [1970] 1 AC 913 (PC), per Lord Diplock: Lord Diplock acknowledged that the “Evidence Ordinance applies to civil and to criminal proceedings alike and the definitions of “proved” and “disproved” draw no explicit distinction between facts required to be proved by the prosecution in criminal proceedings and facts required to be proved by a successful party to civil proceedings” and that “[t]he definitions in the Evidence Ordinance do not attempt to spell out explicitly the degree of probability for which a prudent man ought to look before he acts on the supposition that a fact does not exist.” His Lordship, however, pointed out that “the degree of probability for which a prudent man ought to look before he acts on the supposition that a fact does not exist … [must, as a matter of commonsense,] depend upon the nature of the action contemplated. A degree of probability sufficient to induce a prudent man to spend a dollar on the supposition that a fact did not exist might be insufficient to induce him to risk a million dollars.” Accordingly, his Lordship concluded that “it cannot be supposed that the Evidence Ordinance intended by a 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.” Two standards of proof in criminal law? SK Chan CJ, in his capacity as the then-AG of Singapore, wrote in 1996 that “[i]n theory, it can be argued that less serious commercial crimes and many regulatory offences could be made punishable on proof on a balance of probabilities … So perhaps it may not be a heresy to suggest that the criminal law may be able to accommodate two standards of proof, the heavier one for serious offences, the lighter one for minor offences. The criminal law is not static; neither is the criminal process.” (SK Chan, “Criminal Process The Singapore Model” (1996) 17 SLR 433-504 at 501-502.) Criminal Standard of Proof The sacrosanct principle of ‘beyond a reasonable doubt’ A person may only be convicted of a crime if his guilt has been proved beyond reasonable doubt by the Prosecution. This principle is purported to be “sacrosanct … and constitutes a fundamental right that the courts have constantly emphasised” (Sakthivel Punithavathi v. PP [2007] SGHC 54 at [78])1. In the same vein, VK Rajah J, as he then was, stated in Jagatheesan s/o Krishnasamy v. PP [2006] SGHC 129 at [61] that the principle “is a bedrock principle of the criminal justice system in Singapore because while it protects and preserves the interests and rights of the accused, it also serves public interest by engendering confidence that our criminal justice system punishes only those who are guilty.” What is ‘beyond a reasonable doubt’? In Jagatheesan, VK Rajah J referred to Denning J’s, as he then was, formulation of ‘reasonable doubt’ in Miller v. Minister of Pensions [1947] 2 All ER 372 and considered that a ‘reasonable doubt’ is a doubt which can be justified by a reason in the context of the evidence as opposed to a mere fanciful doubt. In determining whether the Prosecution has proved its case beyond a reasonable doubt, the trial judge will objectively consider the evidence to ascertain whether there is a doubt logically ascertained. VK Rajah JA further elaborated on the objective approach in Sakthivel, stating that the trial judge must consider the evidence in its entirety and test it against “logic and common sense”. A determination that the Prosecution has proved his case beyond a reasonable doubt would require the trial judge to be able to say “precisely why and how the evidence supports the Prosecution’s [case theory]”2 without “filling the gaps in the prosecution’s case on [his] own initiative and through conjecture and supposition”, as well as to be satisfied that the Prosecution had “categorically [dispelled] any reasonable doubts that may [have arisen] on the evidence presented”. 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 Prosecution’s theory”. Where both the Prosecution’s and Defence’s case theories are improbable Where both the Prosecution’s and the Defence’s 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 Prosecution’s case (VK Rajah JA in Sakthivel,). What constitutes as a reasonable hypothesis sufficient to raise a reasonable doubt? Took Leng How v. PP [2006] SGCA 3 Prosecution’s case: The accused had smothered the victim to death with his bare hands. Defence’s case: The victim had a sudden onset of fits that was not brought about by the smothering, and, consequently, choked to death on her own vomit. The majority (Yong CJ and Chao JA), citing Miller v. Minister of Pensions with approval, held that not every doubt that is raised by the Defence will amount to a reasonable doubt. The question in all cases is whether such doubts are real or reasonable, or whether they are merely fanciful or of remote possibility. The majority was of the opinion that the Defence’s case was entirely speculative, as it would require the court to assume that an extreme coincidence had occurred. In the majority’s view, there was no basis for such an assumption, and accordingly, no reasonable doubt had been raised as to whether the death of the deceased was due to smothering by the accused. On the other hand, Kan J, representing the minority, was of the opinion instead that doubt raised by the evidence, which had not been removed by the Prosecution, was not a fanciful one. Specifically, the absence of injuries to the victim's nose when bruises to other regions were present raised a doubt whether there was smothering of the nose. The vomitus, bruised tongue and faecal discharge, the possibility of a spontaneous fit and the incomplete family history also created doubt whether the death resulted from smothering. Does the standard of proof vary in respect of purely circumstantial evidence? VK Rajah JA adopted the ‘only reasonable inference’ test in PP v. Chee Cheong Hin Constance [2008]: In a criminal case, proof beyond any reasonable doubt is required. Grave suspicion is no substitute for proof beyond reasonable doubt. In the same vein, moral certainty cannot replace the requirement for explicit and certain evidence. The various links in the interlocking chain of evidence must establish a complete chain that rules out any reasonable likelihood of an accused’s innocence. Guilt must be the only rational inference and conclusion to be drawn from the complete chain of evidence. In assessing the circumstances, the court should discount fanciful or speculative possibilities. However, if more than one reasonable inference can be elicited from the factual matrix, the inference most sympathetic to the accused ought to be accepted.” Loosening of the standard of beyond a reasonable doubt? In Ang Jeanette v. PP [2011] SGHC 100, the accused was charged under s.44(1) of the CDSA for remitting a total of more than S$2m on various occasions to, inter alia, one Michael Walters. On one occation, the accused's brother had called her and told her to take instructions from one "Mike", who would call her shortly regarding receiving money from someone and remitting it overseas. Following instructions from Mike, she met Aloysious on various occasions and remitted the moneys that she had received from him. At trial, evidence was led from Nail, the lead investigator in an FBI investigation concerning several fraudulent money transfers from various bank accounts in the U.S. to several bank accounts in Singapore. The defence submitted a no case to answer on the premise that the Prosecution had not proved beyond a 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 [X’s] 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 Prosecutor’s burden of adducing evidence necessary to prove the actual actus reus of the predicate offence. His Honour’s 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.” Civil Standards of Proof What is ‘balance of probabilities’? In Miller v. Minister of Pensions, Denning J defined ‘balance of probabilities’ as such: “It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not.” In other words, “the test is not whether the claimant’s case is more probable than the defendant’s, but whether the claimant’s case is more probably true than not” (Clarke v. SilkAir (Singapore) Pte Ltd 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 insurer’s. On appeal, the H.L. overturned the trial judge’s decision, pointing out that the trial judge was incorrect to assume that it was a matter of choosing between the ship owner’s and insurer’s theories of what had happened. As the burden of proof was on the shipowner, the trial judge should have considered whether the shipowner’s 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 SilkAir’s 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 SGCA’s 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 SGCA’s 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 SGCA’s 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 impact on the amount of evidence required. 6 | Page Standards & Burden of Proof Burden of Proof General Principles Relevant provisions in the EA Burden of proof 103.—(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations (a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts. On whom burden of proof lies 104. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to his possession. Therefore the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. 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 (a) A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission. (b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it. Burden of proving fact to be proved to make evidence admissible 106. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. Illustrations (a) A wishes to prove a dying declaration by B. A must prove B’s death. 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. Legal burden versus Evidential burden Legal burden refers to the burden of proving an allegation of fact to the requisite standard of proof. It always remains on the party who weeks to prove that fact. Evidential burden refers to the burden of adducing evidence to meet the standard of proof or to prevent the opposing party from meeting the standard of proof. It may shift from one party to another throughout the trial. By way of illustration, the Prosecution must prove the facts in issue on which he relies on to establish the elements of the offence. This burden is imposed by s.103 and is referred to as the legal burden. The Prosecution must also adduce evidence, failing which he will not be able to prove the facts in issue. This is referred to as the evidential burden. The Defence’s obligation, with the legal burden not being on him, is to challenge and/or weaken the effect of the prosecution’s evidence. The Defence’s aim is to reveal that the Prosecution’s evidence is not sufficiently adequate to meet the standard required for the court to determine that the facts in issue are proved beyond a reasonable doubt. Where the Prosecution has adduced sufficient evidence to bring his case beyond a reasonable doubt (i.e. discharged his evidential burden required to discharge the legal burden), the evidential burden will shift to the Defence, who will then have to adduce sufficient evidence to raise a reasonable doubt. If the Defence is successful in doing so, the evidential burden will shift back to the Prosecution, who will have to adduce sufficient evidence to remove the reasonable doubt raised by the Defence. Similarly, where the Defence raises a defence, he has the legal burden of proving on a balance of probabilities the facts in issue on which he relies on to establish the defence. If the Defence is successful, the evidential burden shifts to the Prosecution, who must then cross-examine the defence witnesses or adduce other evidence to at least equalize the probabilities. The distinction between the obligation to prove facts and the obligation to raise evidence can be fatal to a case. In PP v. Abdul Naser bin Amer Hamsah [1996] SGCA 61 the Prosecution argued that the accused, who was charged with murder, had the burden of proving that he did not intend to cause the injuries to his victim. Thean JA affirmed the finding of the trial judge that the accused only had an evidential burden to show a reasonable doubt. 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 Special knowledge (s.108) in the civil context Burden of proving fact especially within knowledge 108. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. Surender Singh s/o Jagdish Singh v. Li Man Kay [2009] SGHC 168 arose in the context of medical negligence alleged by the husband of the Deceased against the operating doctor and, vicariously, NUH. Following her operation, the Deceased was transferred to Ward 43 at about 1410 hours with instructions that she be monitored hourly in the ward. Although she her condition was reviewed at about 1430 hours, she was not monitored again as per scheduled at 1530 hours. There was a pronounced gap in the evidence in respect of the time period between 1430 hours up until the next time that she was examined (circa 16001615 hours). The Pfs submitted that pursuant to s.108, the burden should fall on NUH to prove that the Deceased was adequately and appropriately monitored since the Pfs were not in a position to provide further details on how the Deceased was cared for when she was there, and that what happened during the time in respect of which there was an evidential gap was a matter “within the knowledge” of NUH. Lai J held that pursuant to s.108, “the burden was on NUH to prove that the Deceased was adequately and appropriately monitored in Ward 43 during the crucial period after 1430 hours. … [As] the Pfs were not privy to any of the events that took place before [1600 hours,] … [i]t would be disproportionately difficult for the Pfs to prove a negative – that the staff of NUH had failed to monitor the Deceased in Ward 43. It was for NUH to show that the Deceased was monitored during the period in question”. Lai J then went on to delineate the ambit of s.108, stating that notwithstanding his holding, “a mere allegation by the Pfs that the Deceased was not monitored in Ward 43 [was] insufficient to invoke s.108 of the EA. The Pfs [had to] first establish a prima facie case against NUH that the Deceased was not monitored”. While improper conviction is a serious consequence of an overly expansive application of s.108, the danger is less pronounced within the civil sphere. However, as Surender Singh demonstrated, the court must still ensure that the conditions of s.108 are clearly satisfied before requiring a party to prove a fact which the other party is required to prove pursuant to the general rules in ss.103-105. Thus, for e.g., the Pf has the legal burden to prove negligence against the Df, and he cannot argue that under s.108, the Df must prove the non-existence of a certain fact (which indicates negligence) unless the elements of s.108 are clearly satisfied. It is important to note that when the elements of s.108 are satisfied, the language of the section clearly imposes upon the relevant party a legal burden as opposed to a mere evidential burden. 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. Where the essence of a defence is merely a denial of the requisite intention If the accused raises the defence of accident, he is merely denying that he had the requisite intention, a fact which the Prosecution is required to prove under s.103. Yet, s.107 requires him to prove accident because it is a general exception in the Penal Code (s.80). The problem is phrased by Soertsz J in the Sri Lankan case of R v. Chanderasekera (1942) 44 NLR 97 as such: “The position is, however, different in cases in which, by involving the fact in issue in sufficient doubt, the accused ipso facto involves in such doubt an element of the offence that the prosecution had to prove … [F]or instance, … [where] the jury were in sufficient doubt as to whether the death of the [victim] was the result of an accident or not, … the jury are necessarily as much in doubt whether the intention to cause death or to cause an injury sufficient in the ordinary cause [sic] of nature to cause death existed or not. In such a case, the proper view seems to me to be that the accused succeeds in avoiding the charge of murder, not because he has established his defence, but because, by involving the essential element of intention in doubt, he has produced the result that the prosecution has not established a necessary part of its case.” The SGHC’s approach to this issue in Juma’at bin Samad v. PP [1993] SGHC 145, in relation to the defence of intoxication under s.86(2) of the Penal Code, was to adhere strictly to the terminology of the EA, with the result that the accused had the burden of proving the elements of intoxication in accordance with s.107 EA. Yong CJ went on to hold that the Prosecution was “entitled to treat the accused as if he were sober” in proving beyond reasonable doubt that the accused had the necessary mens rea, even though “[t]he court may … have to answer some rather hypothetical and artificial questions in the process”. The implication of Yong CJ’s holding is that all the Prosecution needs to show is an ‘apparent intention’ arising from the actus reus of the crime, i.e., the Prosecution does not need to raise independent evidence of actual intention unless the accused proves intoxication on a balance of probabilities (in which case the evidential burden shifts to the Prosecution). The consequence of this appears to be that the Prosecution does not have a legal burden and only an evidential one in relation to intention, which somewhat contradicts the requirement under s.103 EA that the Prosecution must prove all the elements of an offence. In this respect, the approach in Chanderasekera, that defences which require the proof of additional facts should be distinguished from defences which merely challenges the Prosecution’s case, arguably accords better with reality. Notwithstanding the concessions, it remains the case that Juma’at bin Samad is consistent with s.107, and, as pointed out by Yong CJ, is therefore the preferable solution. In the context of accident, Juma’at bin Samad could possibly be extrapolated to stand for the proposition that the Prosecution need only show that apparent intention of the accused from the act and leave it to the accused to prove that his act was accidental. 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 Devlin’s 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 Prosecution’s allegation that the accused was at the scene of the crime during the material time. Words of exception or qualification in the statute creating the offence R v. Edwards [1975] QB 27 concerned whether an accused who was charged for selling intoxicating liquor without a licence. The relevant statute did not state expressly that the burden of proving the existence of a license should be on the accused. The accused contended that since the statute conferred on a constable the right to inspect the register of licenses, the Prosecution should have called evidence to prove that the accused did not have a valid license. Lawton LJ held that if the true construction of an enactment under which the charge is laid is that the enactment prohibited the doing of a certain act, save in specified circumstances, it was not for the Prosecution to prove a prima facie case of lack of excuse or qualification, instead, the accused had the legal burden to prove that he was entitled to do the prohibited act and, accordingly, in the present case the accused had to prove that he held a license. Subsequently, in R v. Hunt [1987] AC 352, the accused was charged with unlawful possession of morphine contrary to s.5 of the Misuse of Drugs Act 1971. The Act provided that no offence would be committed if the drug was mixed with other matter and the morphine only consisted of 0.2% or less. The question here was whether the Act gave rise to an exception to liability or whether they defined the elements of the offence. The HL held that Woolmington did not establish a rule of law that the burden of proving a statutory defence lay on the accused only where the statute specifically so provided, since a statute could place the burden of proof on the accused by necessary implication, and that each case turned on the construction of the particular legislation. This did not mean that Edwards was wrongly decided, instead, Lord Griffith preferred to adopt the formula stated by Lawton LJ as “an excellent guide to construction” rather than as an exception to the common law rule that the Prosecution must prove every element of the offence charged. 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 Lordship’s 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 SGCA’s 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. Special knowledge in the criminal context Burden of proving fact especially within knowledge 108. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. In Mary Ng v. R [1958] AC 173, the accused was charged for accepting money from a 3rd party to induce a judge to show favour to the 3rd party. The Prosection argued that it was for the accused to prove a lack of influence over the judge as that matter was especially within her knowledge. The PC rejected the Prosecution’s argument and held that it was not for the accused to prove that she had not acted deceitfully; rather, it was for the Prosecution to prove beyond a reasonable doubt that she had not so acted. In other words, the PC was mindful of adopting a literal interpretation of s.108, as that would have had the effect of requiring the accused to disprove the elements of the offence on the basis that he is in a better position to know about the circumstances of the case. 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 deceased’s 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 accused’s 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. Rebuttable presumptions of law Presumptions 4.—(2) Whenever it is directed by this Act that the court shall4 presume a fact, it shall regard such fact as proved unless and until it is disproved. Interpretation 3.—(1) In Parts I, II and III, unless the context otherwise requires — “Disproved” (4) A fact is said to be “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. 4 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 Similar Fact and Character Evidence Similar Fact Evidence Similar Fact Evidence in Criminal Cases The statutory scheme for similar fact evidence Facts showing existence of state of mind or of body or bodily feeling 14. Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or bodily feeling is in issue or relevant. Explanation 1 — A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists not generally but in reference to the particular matter in question. Explanation 2 — But where upon the trial of a person accused of an offence the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall also be a relevant fact. Illustrations (a) A is accused of receiving stolen goods, knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that at the same time he was in possession of many other stolen articles is relevant as tending to show that he knew each and all of the articles of which he was in possession to be stolen. (b) A is accused of fraudulently delivering to another person a counterfeit coin, which at the time when he delivered it he knew to be counterfeit. The fact that at the time of its delivery A was possessed of a number of other pieces of counterfeit coin is relevant. The fact that A had been previously convicted of delivering to another person as genuine a counterfeit coin, knowing it to be counterfeit, is relevant. (c) A sues B for damage done by a dog of B’s, which B knew to be ferocious. The facts that the dog had previously bitten X, Y and Z and that they had made complaints to B are relevant. (d) The question is whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious. The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee, if the payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person. (e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous publications by A respecting B showing ill-will on the part of A towards B is relevant, as proving A’s intention to harm B’s reputation by the particular publication in question. The facts that there was no previous quarrel between A and B and that A repeated the matter complained of as he heard it, are relevant as showing that A did not intend to harm the reputation of B. (f) A is sued by B for fraudulently representing to B that C was solvent, whereby B being induced to trust C, who was insolvent, suffered loss. The fact that at the time when A represented C to be solvent C was supposed to be solvent by his neighbours, and by persons dealing with him, is relevant, as showing that A made the representation in good faith. (g) A is sued by B for the price of work done by B upon a house of which A is owner by the order of C, a contractor. 17 | P a g e A’s defence is that B’s 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 C’s 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 A’s good faith. (i) A is charged with shooting at B with intent to kill him. In order to show A’s intent, the fact of A’s 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 A’s 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 A’s 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 B’s 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 A’s 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 accused’s 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 accused’s 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. A lacuna in respect of ss. 14 and 15? On a literal reading of s.15, it is required that the accused’s acts formed part of a ‘system’. It would therefore appear that a single act, irrespective of its probative worth, may not be adduced under s.15. While it may be true that the existence of a series of similar occurrences would increase the probability, and therefore the weight of the evidence, that the accused acted with intention, design or knowledge, it is equally true that evidence of one act, although not part of a series of similar occurrences in the ordinary sense of it, may nevertheless be sufficiently probative in certain circumstances to warrant admission, as where the occurrence is in itself an extremely rare one to begin with. Thus, the position under the EA is unsatisfactory, as a single but highly probative act will not only be inadmissible under s.15, but also under s.14 if the condition of having “reference to the particular matter in question” is not satisfied, as where the act was committed against someone in circumstances which have nothing to do with the trial of the accused. The common law approach to similar fact evidence The first significant case in respect of similar fact evidence is the PC’s decision in Makin v. AG for NSW [1894] AC 64, where a husband and wife were charged with murdering a baby which had been found buried in their garden. There was evidence to show that they had agreed to adopt it for financial consideration. The PC concluded that evidence of the discovery of other bodies of dead babies, which had been adopted under similar circumstances, in the yards of other houses previously occupied by the husband and wife, could be admitted to rebut the defence that the death of the baby was accidental. The basis of admissibility was that the evidence of the discovery of so many bodies of other babies in similar circumstances was 6 The accused denied strangulating a young girl to death. The prosecution adduced evidence of the accused’s 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 accused’s 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 Reception of Boardman in Singapore jurisprudence The balancing test in Boardman, as redefined by the HL in DPP v. P, was first received into Singapore law by the SGHC in PP v. Teo Ai Nee [1995] SGHC 70. The case involved copyright offences relating to sound recordings. The Prosecution sought to adduce evidence of the accused’s conduct and convictions for copyright offences from 10 years ago, relating to similar sound recordings involving the same artiste, to show that the accused knew that the recordings infringed copyright. Yong CJ held that “there [was] no reason why Singapore courts should not formulate and adopt a common law test like that set out in Boardman and DPP v. P”, and that the Singapore courts “should not be constrained by any such self-imposed strictures of [the] EA”. Applying the balancing test, Yong CJ came to the conclusion that the evidence of the accused’s previous acts did not have adequate probative force to make it just to admit the evidence. In addition, Yong CJ considered the evidence to be too vague, insufficiently cogent and lacking in the strength of inference to justify admissibility under ss.14, 15 and 11(b) EA. Subsequently, in Tan Meng Jee v. PP [1996] SGCA 34, although the issue of whether the balancing test expounded in Boardman applied to situations where the similar fact evidence was not within one of the matters identified in ss.14 and 15, the SGCA nevertheless held, per curiam, that “[w]hile the plain wording of the EA does seem to adopt a categorization approach to similar fact evidence, … it [is] quite clear, without deciding whether similar facts adduced for other purposes can ever be relevant, that at least where the similar facts are being adduced to prove one of the matters identified in ss.14 and 15, a balancing process must take place.” According to the SGCA, there was no controversy with such an approach as it “is warranted both in principle as well as on the wording of the legislation itself”. As to the actual content of the balancing process, the SGCA identified 3 factors (non-exhaustive) that should provide some guidance to the trial judge, viz, the cogency, strength and relevance of the evidence sought to be adduced. The authority of Tan Meng Jee has, however, been undermined by the SGHC decision of PP v. Mas Swan bin Adnan [2011] SGHC 107. Chong J noted that the SGCA’s approval of the Boardman test in Tan Meng Jee was partly influenced by two other factors, viz, (1) it accepted that the courts had a general discretion to exclude any kind of evidence prejudicial to the accused if it would be unjust to do so, even if the evidence was deemed relevant and admissible under the EA; and (2), it took the view that the Boardman test was, in substance, simply another form of the fairness exception. Chong J then observed that in light of the decisions in Phyllis Tan and Lee Chez Kee, “it is clear that the admissibility of similar fact evidence has to be determined according to the categories of relevance under ss.14 and 15 and Tan Meng Jee is inconsistent with the EA in so far as it allows for the exclusion of similar fact evidence that is otherwise deemed relevant under those provisions”. However, Chong J went on to qualify that his holding did not mean that all previous cases where the balancing test had been applied were necessarily wrongly decided, instead, decisions that have applied the ‘striking similarity’ test were “entirely consistent” with ss.14 and 15, as the term “similar occurrence” in s.15 appeared to correspond with the ‘striking similarity’ test. The reformulated approach of Chong J therefore appears to be as such: all evidence that fall within the specific categories are admissible, regardless of probative force, whereas those which do not will still be admissible if they satisfy the ‘strikingly similar’ test. In a way, this is a slight improvement on the classic categorisation approach, since the problem with the that approach is that in addition to evidence of low probity being potentially admissible, evidence of extremely high probity that do not fall within any specific category would be excluded, and typically, the more striking the similarity, the higher the probity. Can similar fact evidence be adduced to prove actus reus? As mentioned earlier, unlike the Makin formulation, which allows the adduction of similar fact evidence to rebut “a defence which would otherwise be open to the accused”, the plain wordings of ss.14 and 15 suggests quite clearly that actus reus is excluded from their ambit. Yong CJ confirmed in Lee Kwang Peng 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 victim’s 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. Collusion: conspiracy or innocent infection On the issue of whether the 3 boys had fabricated or innocently embellished their case in Lee Kwang Peng, Yong CJ considered the distinction between 2 forms of collusion formulated by Lord Mustill in R v. H 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 Prosecution’s 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 X’s 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 judge’s 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 Policital genesis of the rule in DPP v. P? It could be speculated that a deeper political motivation is discernable from the HL’s decision in DPP v. P. Specifically, the HL was perhaps swept by populist sentiments over the prevalence of sex crimes in the West at the time when the case was decided, and the requirement of “striking similarity” stood in the way of the HL. Thus, they were at pains to do away with it in order to create an exception to permit the general admissibility of similar fact evidence for sex crimes. It is also interesting to note that Yong CJ admitted in Lee Kwang Peng (a sexual offence case) that the circumstances revealed no striking similarity. In both Teo Ai Nee, a copyright infringement case, and Tan Meng Jee, a drug trafficking case, the Court meticulously examined the similarities between the similar fact evidence and the charge at hand. In both these cases, the similar fact evidence offered was rejected because they were insufficiently similar to the charge. Both cases paid lip service to DPP v. P, but applied Boardman, whereas Lee Kwang Peng applied DPP v. P literally. Professor Hor suggests that hidden political agenda permeate sex-related offences, which rationalizes the disparity. 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.” Common law position The old position is set out in Mood Music Publishing v. De Wolfe [1976] Ch 119, where the Pf claimed that the Df published musical work which infringed the Pf’s copyright in his musical work. The Df contended instead that the similarity of the work was coincidental. The court held that similar fact evidence would be admitted if it was “logically probative” (i.e. logically relevant in determining the fact which is in issue) and provided that its effect on the other party is not “oppressive or unfair” and that the latter had fair notice of it so as to be able to deal with it. The decision in Mood Music Publishing was reached on the basis that the admissibility of similar fact evidence in civil cases must have a necessary degree of relevance to the issues. More recently, there has been a shift in the common law towards a more flexible basis of admissibility. In O’Brien v. Chief Constable of South Wales Police [2005] 2 AC 534, Lord Philips held that relevance was the test for admissibility of similar fact evidence in civil cases. In other words, the evidence is admissible “if it is potentially probative of an issue in the action”. However, Lord Philips went on to hold that the court may yet decide to exclude relevant evidence where justice so requires. In considering whether the justice so requires, the court may take into account a range of factors. For e.g., the evidence may be excluded if it is insufficiently cogent such that there is a risk of prejudice that could undermine a fair trial. Consideration may also be given to “the burden which admission would lay on the resisting party: the burden in time, cost and personnel resources”. 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 O’Brien, 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 O’Brien, 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. Different considerations in a civil trial At a criminal trial, probative force of the evidence must be weighed against its potential prejudicial effect whereas, in the civil context, the countervailing consideration is described as ‘fairness’, which bears on the similar fact rule as an ethical demand for equal treatment of litigants, and not ‘prejudice’. This is implicit in the judgment of O’Brien, where it appears that only the “first part” of the DPP v. P test was adopted, viz, that the evidence must be “logically probative of an issue in the case”. Hence, while the test in DPP v. P requires a balancing of probative value against prejudicial effect, all that is matters under the O’Brien test is whether the evidence is “logically probative of an issue in the case”. Implicit in this approach is the view that the prejudicial effect of the evidence is not a factor that bears on its admissibility as a matter of law in civil proceedings. The Concept of Prejudice The dilemma surrounding the normative conceptualization of the similar fact rule can be succinctly put as such: under what circumstances should the accused’s antecedent acts be considered relevant and therefore admissible to prove his guilt? The institutional perspective encompasses the usual rhetoric such as admitting only good evidence so that the trial is not unnecessarily protracted, fact-finders are not distracted/confused, and sloppy criminal investigation is not encouraged. But the principal objection to similar fact evidence has to be that of prejudice to the accused. Thus, from the prejudice perspective, similar fact evidence is unconnected to the offence tried and has the potential to unduly influence the trier of fact by condemning the accused as a criminal from the outset. There are also other dimensions to the concept of prejudice. One associated risk is that of cognitive error. That human beings, by the very nature of our being, have a tendency to draw stronger inferences from evidence of antecedent acts than is rational cannot be discounted, as much as the judiciary is supposed to represent the bastion of objectivity. Another related aspect of prejudice is based on the idea that we cannot completely dissociate the emotional aspect of our existence from our supposed rational aspect. The consequence of this is that the trier of fact may be tempted to convict the accused not because the evidence, construed objectively and dispassionately, supports the charge but because of other extraneous factors beyond the control of a human being, such as the feeling of repulsion towards the accused. A yet again related theme is the fear that the accused may be deprived of the benefit of the presumption of innocence because of the strong antipathy that the fact-finder may feel towards him when his hideous past is revealed. Against this backdrop, the trier of fact may assign more weight to the evidence 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 Similar Fact and Character Evidence Character Evidence Character Evidence in Criminal Cases The statutory scheme for character evidence In criminal cases previous good character relevant 55. In criminal proceedings, the fact that the person accused is of a good character is relevant. Admissibility of evidence and questions about accused’s disposition or reputation 56.—(1) In any criminal proceedings, the accused may — (a) personally or by his advocate ask questions of any witness with a view to establishing directly or by implication that he is generally or in a particular respect a person of good disposition or reputation; (b) himself give evidence tending to establish directly or by implication that he is generally or in a particular respect such a person; or (c) call a witness to give any such evidence. (2) Where any of the things mentioned in subsection (1) has been done, the prosecution may call, and any person jointly charged with the accused may call or himself give, evidence to establish that the accused is a person of bad disposition or reputation, and the prosecution or any person so charged may in cross-examining any witness (including, where he gives evidence, the accused) ask him questions with a view to establishing that fact. (3) Where by virtue of this section a party is entitled to call evidence to establish that the accused is a person of bad disposition or reputation, that party may call evidence of his previous convictions, if any, whether or not that party calls any other evidence for that purpose. (4) Where by virtue of this section a party is entitled in cross-examining the accused to ask him questions with a view to establishing that he is such a person, section 122(4) shall not apply in relation to his cross-examination by that party. Parties to civil suit and their wives or husbands, and husband or wife of person under criminal trial 122.—(4) Where in any criminal proceedings the accused gives evidence, then, subject to this section and section 56, he shall not in cross-examination be asked, and if asked shall not be required to answer, any question tending to reveal to the court — (a) the fact that he has committed, or has been charged with or convicted or acquitted of, any offence other than the offence charged; or (b) the fact that he is generally or in a particular respect a person of bad disposition or reputation. (5) Subsection (4) shall not apply to a question tending to reveal to the court a fact about the accused such as is mentioned in paragraph (a) or (b) thereof if evidence of that fact is (by virtue of section 14 or 15 of this Act or of section 265 or 266 of the Criminal Procedure Code 2010 or of any other written law) admissible for the purpose of proving the commission by him of the offence charged. (6) Where in any criminal proceedings in which 2 or more persons are jointly charged, any of the accused gives evidence, subsection (4) shall not in his case apply to any question tending to reveal to the court a fact about him such as is mentioned in subsection (4)(a) or (b) if evidence of that fact is admissible for the purpose of showing any other of the accused to be not guilty of the offence with which that other is charged. (7) Subsection (4) shall not apply if — (a) the accused has personally or by his advocate asked any witness for the prosecution or for a person jointly charged with him any question concerning the witness’s conduct on any occasion or as to whether the witness has committed, or has been charged with or convicted or acquitted of, any offence; and (b) the court is of the opinion that the main purpose of that question was to raise an issue as to the 27 | P a g e witness’s 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. Accused’s good character As the accused’s good character is a relevant fact under s.55, he is entitled to give evidence of his good character, which includes both reputation and disposition8. How an accused may adduce evidence of his good character is provided for in s.56. Thus, he may do so either by (a) asking questions of any witness ‘with a view to establishing directly or by implication that [the accused] is generally or in a particular respect a person of good disposition or reputation’; or (b) the accused himself giving such evidence; or (c) specially calling a witness to testify. It was held in Tan Nguan Siah v. PP [1993] SGCA 75 that s.56 “only applies where an accused person puts his character in issue, that is to say, when he has given evidence of his own good character. It is then possible for the prosecution to attack his character”. It is important to note that s.56 allows, in addition to general disposition and reputation, even evidence of particular disposition or reputation to be adduced, whereas ss.54, 55 and 57, pursuant to Explanation 2 to s.57, are limited to only general reputation and general disposition, and does not include particular acts by which reputation or disposition are shown. In Tsang Kai Mong Elke v. PP [1994] SGCA 17, the accused, who had been charged with importation of a controlled drug, admitted that she knew she was carrying an illegal drug. Furthermore, the court assessed her as an alert and intelligent person who could not have been manipulated into bringing the drugs into Singapore. The issue before the SGCA was whether the trial judge had failed to consider the good character of the accused. Yong CJ held that “because of the nature of the appellant's defence and her own admission at trial that she thought she was carrying cannabis into Singapore, the evidence of her good character and good family background would not be of any material assistance to her defence or to rebutting the presumptions in [the MDA].” Accused’s bad character Section 122(4), which is made subject to s.56, prohibits an accused from being asked in cross-examination, and if asked he is not bound to answer, any questions which tend to reveal that he has committed, or has been charged with, or convicted or acquitted of any offence other than the one with which he is charge, or that he is generally or in a particular respect a person of bad disposition or reputation. Thus, the protection in s.122(4) only applies to the accused himself under cross-examination. On the other hand, s.56 provides that the accused loses his s.122(4) shield when he, any witness he calls or through his advocate when cross-examining a Prosecution witness adduces evidence, whether in the course of giving testimony or under cross-examination, of the accused’s good character. 8 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 accused’s 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 Prosecution’s 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 Prosecution’s or his co-accused’s 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 witness’s 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 Prosecution’s or co-accused’s 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 [accused’s] credibility”. The implication of the holding is therefore that where the operation of s.122(7) is attracted, the accused’s 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 other’s 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 court’s 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 Hearsay & Res Gestae Hearsay Conceptual Basis for the Admission of Hearsay under the EA Previously, the general consensus was that the common law exclusionary rule against hearsay should apply through s.62, which requires oral evidence to be direct, i.e., the witness must testify only on the basis of his personal perception, whether he see, heard or otherwise perceived, of the fact. However, VK Rajah JA held in Lee Chez Kee v. PP [2008] SGCA 20 that the hearsay rule does not find implicit expression in s.62, which prohibits the use of indirect evidence, and “[t]o say that s.62 imports the hearsay rule is to confuse a description of the mode of proof with the type of proof”. This is because “s.62 is not concerned with relevancy; it simply tells us how to prove facts which already have been found to be relevant by the definition of relevancy in the earlier parts of the EA”. Thus, s.62 should not be relied on for the purpose of determining the admissibility of hearsay evidence in accordance with the common law. Instead, according to his Honour, the hearsay rules operate purely in the context of whether a statement is declared to be relevant or irrelevant in Part I of the EA. VK Rajah JA’s views were echoed earlier in Roy S Selvarajah v. PP [1998] SGHC 272, where Yong CJ said: “The EA does not formulate the rule against hearsay evidence. Rather it adopts an inclusionary rule, stating what may be admitted in evidence. Under s.5 of the EA, evidence may be given in any proceedings of fact in issue or relevant fact. The common law definition of hearsay corresponds with the terminology of the EA. Statements of relevant facts are hearsay and inadmissible unless they fall within an exception to the hearsay rule since they are adduced to prove the facts to which they refer. However, where the statement itself is relevant, then it is the fact that the statement was made which is in issue” However, s.62 restrains the admissibility of multiple hearsay by preventing a witness from recounting a statement of a relevant statement as opposed to the relevant statement which he has himself perceived (see below). Definition and Application of the Hearsay Rule CPC 2010 Hearsay evidence in criminal proceedings 268. In any criminal proceedings, a statement is admissible as evidence of any fact stated therein to the extent that it is so admissible by this Code, the Evidence Act (Cap. 97), or any other written law. While the EA does not define hearsay, the definition of hearsay finds expression in s.268 of the CPC 2010. The EA and CPC 2010 espouse contrasting approaches to the hearsay rule. The CPC 2010, by virtue of the words “or any other written law” encompasses the traditional common law position. The common law definition of hearsay as adopted in Soon Peck Wah v. Woon Chye Chye is as such: “The assertions of persons made out of court whether orally or in documentary form or in the form of conduct tendered to prove the facts which they refer to (i.e. facts in issue and relevant facts) are 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. 6–11 of the EA; and (2) even if it is not, does it nevertheless fall under ss.14–57 of the EA. Key question – for what purpose was the evidence tendered? The answer to this question will determine whether the evidence amounts to inadmissible hearsay or, where the s.17-40 exceptions are not applicable, whether it will be admissible (relevant). Where the purpose of adducing evidence of an out of court statement is to establish the truth of what is contained in the statement, this will constitute hearsay. However, where the purpose of adducing evidence of an out of court statement is not to prove the truth of facts referred to in the statement, but to prove the fact that the statement was made, this is original evidence and will therefore be admissible pursuant to s.5. The aforementioned principle was borne out in the case of Subramaniam v. PP [1956] 1 WLR 965, where Lord Radcliff held that “[i]t is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made”. The law on hearsay can be divided into 4 parts, viz, (1) hearsay statements; (2) non-hearsay statements; (3) assertions that border between hearsay and non-hearsay; and (4) admissible hearsay under ss.17-41. Express assertions by statement or conduct In R v. Gibson (1887) 18 QBD 539, the accused was charged with malicious wounding by throwing a stone. An unidentified woman had said to the Prosecutor at the scene, “The man who threw the stone went in there, indicating a house in which the accused was found. The woman’s statement to the Prosecutor was not made while giving evidence in the proceedings, and was obviously tendered for the purpose of suggesting that the person found in the house was the culprit, i.e., that the fact stated was true. The statement was held to be inadmissible hearsay; evidence of the identity of the accused should have been given by calling the women to testify. Implied assertions by statement In Teper v. R [1952] AC 480, the accused’s shop was on fire. The policeman at the scene heard a bystander yell: “your place burning and you are going away from the fire?” The statement was held by the PC to amount to an implied assertion that the person driving away from the scene at the time had been the accused, and accordingly the conviction was quashed. 32 | P a g e In Wright v. Doe d’Tathan (1837) 112 ER 488, the issue was whether the testator was mentally competent to make a will. The party who claimed the will’s 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 writer’s implied assertions concerning the testator’s 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 accused’s 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 majority’s 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 minority’s 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-à-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. Implied assertion by conduct In Wright v. Doe d’Tatham, there was evidence that the testator’s neighbours, his servants and children treated him as insane. No dispute was taken over the admissibility of this conduct even though it must have involved underlying assumptions (and therefore implied assertions) by the neighbours, servants and children to the effect that the testator was insane. It was, however, implicit from the judgment of Baron Parke that had they been contested, they would have been inadmissible as being hearsay. Baron Parke provided a number of hypothetical examples illustrating his view that an assertion implied by conduct should be hearsay. These examples include a ship’s captain who, having inspected the ship, sails off (an implied assertion that the vessel is seaworthy), a doctor who allows his patient to sign a will (an implied assertion that the patient is mentally competent), and the payment of a bet as evidence that the event on which the bet depended occurred. The reliability of an implied assertion by conduct, and therefore whether it should be admissible, can vary in accordance with what is at stake, with cases where the stakes are higher being, in general, more straightforward than those where the stakes are lower. Thus, in Baron Parke’s e.g. of the ship captain, it is unlikely that the captain would have sailed off unless he is certain of the seaworthiness of his vessel. On the other hand, if X smiles at and greets Y with a handshake, there may be an underlying assumption in such conduct that the two are acquainted, but it could also very well be the case that X was simple introducing himself to Y, or that he had mistaken Y for someone else. The stakes involved here are certainly much lower than making a mistake in the ship captain’s case. The Singapore courts have yet to address the specific question of whether implied assertions arising from conduct are excluded by the hearsay rule. The EA does not specifically apply the hearsay rule to implied assertions by conduct – ss.17-40 contemplate statements only. While the use of the word “otherwise” in s.32 arguably encompasses implied assertions by conduct, s.32A states that “a protest, greeting or other verbal utterance may be treated as stating any fact that the utterance implies”, but no reference to conduct which gives rise to an implied assertion is made. It must be assumed then that such assertions do not constitute hearsay and should be admissible under s.8(2) as original evidence. Motive, preparation and previous or subsequent conduct 8.—(2) The conduct of any party or of any agent to any party to any suit or proceeding in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1 —The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 —When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects such conduct is relevant. Illustrations (f) The question is whether A robbed B. The facts that after B was robbed, C said in A’s presence: “The police are coming to look for the man who robbed B”, and that immediately afterwards A ran away are relevant. (g) The question is whether A owes B $10,000. 34 | P a g e The facts that A asked C to lend him money, and that D said to C in A’s 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. Assertions by omission – negative hearsay The cases of R v. Patel [1981] 3 All ER 94 and R v. Shone (1983) 76 Cr App Rep 72 are representative of the common law in the area of negative hearsay. In R v. Patel, the accused was charged with assisting A to enter into the country illegally. The Prosecution sought to adduce evidence (through an immigration official) that A was not listed in the Home Office records as a person entitled to a certificate of registration in the UK and that, therefore, he was an illegal immigrant. The CA held that as the absence of his name from the records was an assertion that he was an illegal immigrant, the records could not be admitted. Bristow J noted that had an immigration officer who could satisfy the court of the proper compilation and accuracy of the records testified in court, his testimony as to the significant of the omission of A’s name from the list would have been admissible. Bristow J’s dictum was endorse in R v. Shone, which involved the disappearance of certain car springs and the issue of whether they had been stolen. The springs could be identified because they bore identification numbers, which were stated in the company's stock records. The CA held that the employees of the company who were personally responsible for the stock records could testify that the absence of specific entries in the records indicated that they had not been sold or used. The argument that the absence of specific entries in the stock records amounted to an out of court assertion that the springs had not been sold or used by the company was rejected. The CA classified the evidence tendered by the employees as direct evidence which entitled the trier of fact to draw the inference that as there were no specific entries of the springs in the records, the springs must therefore have been stolen. In the context of Singapore, assertions by omission are not expressly covered by the EA. While the new s.32(1)(b) allows statements made by such person in the ordinary course of trade, business, profession or other occupation to be admitted, this provision seems to contemplate positive assertions of the contents therein. This would require the evidence of a negative fact to be defined as a positive assertion of it. Alternatively, if an omission from a document could be defined as direct evidence from which the inference of what it does not say can be drawn, then the evidence would then be admissible under s.9 or s.11, as was the case in Sagurmull v. Manraj [1990] 4 CWN. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant 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 in course of trade, business, profession or other occupation; (b) when the statement was made by such person in the ordinary course of trade, business, profession or other occupation and in particular when it consists of — (i) any entry or memorandum made by him in books kept in the ordinary course of trade, business, profession or other occupation or in the discharge of professional duty; (ii) or of an acknowledgment (whether written or signed) for the receipt of money, goods, securities or property of any kind; (iii) any information in market quotations, tabulations, lists, directories or other compilations generally 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 witness’s 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 maker’s state of mind Out of court statements adduced for the purposes of establishing a party’s 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 accused’s 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 accused’s 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 M’s state of mind. Lord Bridge held that the statements were inadmissible because M’s 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 M’s 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 M’s 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 Rice’s 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 airline’s 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 accused’s 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 witness’s 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 person’s 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. Section 32(1)(a): dying declaration Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant 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: when it relates to cause of death; (a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question; such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question; Under s.32(1)(a), there is no requirement that the maker must be under expectation of death or even in a dying state at the time of the statement. In Yeo Hock Cheng v. R [1938] MLJ 104, the court was concerned with 2 statements made by the deceased girl to her father and her sister. In her statement to her father, she said that the accused had threatened to kill her if she told him (her father) that she had slept at the accused’s house. The statement was made 9 days before the murder and there was evidence that in the intervening period, the relationship between the deceased and the accused had altered because he had promised to marry her. In the statement to her sister, she said that she was going to meet the accused and that he had asked her to dress in the clothes of a man. The statement was made on the day of the murder. In respect of the statement made to her father, the CA held that the statement consisting of the threat was too remote to relate to the ‘circumstances of the transaction which resulted in her death’. In respect of the statement made to the sister, it was held that the fact that the statement was made on the day of the murder clearly pointed to ‘circumstances of the transaction which resulted in her death’. Furthermore, she had been asked to disguise herself presumably with a view to avoiding recognition. Accordingly, the statement to the sister came within the purview of s.32(1)(a). 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 accused’s 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. Section 32(1)(b) and 34: business records and accounts 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 in course of trade, business, profession or other occupation; (b) when the statement was made by such person in the ordinary course of trade, business, profession or other occupation and in particular when it consists of — (i) any entry or memorandum made by him in books kept in the ordinary course of trade, business, profession or other occupation or in the discharge of professional duty; (ii) or of an acknowledgment (whether written or signed) for the receipt of money, goods, securities or property of any kind; (iii) any information in market quotations, tabulations, lists, directories or other compilations generally 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; Illustrations (b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that on a given day he attended A’s mother and delivered her of a son, is a relevant fact. (c) The question is whether A was in Singapore on a given day. A statement in the diary of a deceased solicitor regularly kept in the course of business that on a given day the solicitor attended A at a place mentioned in Singapore for the purpose of conferring with him upon specified business is a relevant fact. Entries in books of accounts when relevant 34. Entries in books of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. Illustration A sues B for $1,000 and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient without other evidence to prove the debt. Multiple hearsay Section 32(1)(b) may potentially give rise to an issue of multiple hearsay, that is, statements concerning matters of which the makers of those statements have no personal knowledge. This may arise, for e.g., where a medical report is compiled by the doctor’s staff who did not have personal knowledge of the 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. Section 32(1)(c): against the interest of the maker 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 against interest of maker; (c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages; Section 32(1)(e): existence of a relationship 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 relates to existence of relationship; (e) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised; Section 32(1)(h): feelings and impressions 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 several persons and expresses feelings relevant to matter in question; (h) when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question. A few issues arise in respect of s.32(1)(h), viz, whether there is a minimum number of persons, whether the persons who made the statements must be identified, and whether the statements must be made around the 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. Section 32(1)(i): a person who is compellable but refuses to give evidence 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 compellable but refuses to give evidence; (i) when the statement was made by a person who, being compellable to give evidence on behalf of the party desiring to give the statement in evidence, attends or is brought before the court, but refuses to be sworn or affirmed, or is sworn or affirmed but refuses to give any evidence; Section 32(1)(k): agreement by parties 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 by agreement (k) when the parties to the proceedings agree that for the purpose of those proceedings the statement may be given as evidence. (6) Notwithstanding paragraph (k) of subsection (1), an agreement under that paragraph does not enable a statement to be given in evidence in criminal proceedings on the prosecution’s behalf unless at the time the agreement is made, the accused or any of the co-accused is represented by an advocate. The effect of a strict reading of s.32(6) seems to be that as long one of the co-accused was represented, s.32(1)(k) would be applicable. Problems arise where the unrepresented accused does not appreciate the value or impact of the evidence to be adduced, and in so agreeing unwittingly incriminates himself. 44 | P a g e Hearsay & Res Gestae Res Gestae Statutory Scheme Section 6 of the EA Where the evidence is inadmissible as hearsay, it may nevertheless be admissible under the doctrine of res gestae. The rule is set out in s.6 EA: Relevancy of facts forming part of same transaction 6. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places. Illustrations (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating or so shortly before or after it as to form part of the transaction is a relevant fact. (b) A is accused of waging war against the Government by taking part in an armed insurrection in which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant as forming part of the general transaction, though A may not have been present at all of them. (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose and forming part of the correspondence in which it is contained are relevant facts though they do not contain the libel itself. (d) The question is whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. A transaction is defined in Art 3 of Stephen’s Digest as ‘a group of facts so connected together as to be referred to by a single legal name, such as a crime, a contract, a wrong or any other subject of inquiry which may be in issue’. What is the appropriate construction of s.6? The Singapore courts appear to have adopted 3 different approaches to the doctrine of res gestae. Old common law approach – strict contemporaneity with the facts in issue In Mohamed Allapitchay v. R [1958] MLJ 197, a stallholder at the Telok Ayer Market cried out at 3.45am: “Mohamed has stabbed me”, awaking the other stallholders in the process. The victime was then seen chasing 3 persons before collapsing. Certain stallholders, who had been involved in the chase, stopped to help him. They asked the victim who had stabbed him and he replied: “Mohamed stabbed me and Hassan and Haja Mohideen were with him.” Whyatt CJ held (without considering s.6) that the statements were not res gestae because they did not form part of the transaction. Whyatt CJ explained that “the evidence [did] not establish that [the victim’s] cry “Mohamed has stabbed me” was “part of the thing being done”. On the contrary, the three persons who it is said committed this crime were running away from the scene of the crime as fast as they could when the cry was heard. The thing had been done.” Referring to the words of Cockburn CJ in R v. Bedingfield (1879) 14 Cox CC 341, Whyatt CJ held that the cry of the victim ”was not part of anything done, or something said while something was being done, but something said after something done”. Accordingly 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 deceased’s 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 judge’s 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 accused’s 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 accused’s 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. Res gestae – a fuzzy doctrine As Cross (Australian ed) aptly puts it: “It is probably best to recognise the expression res gestae for what it is according to usage to date a blanket phrase... It is not a subject on which extreme precision is either possible or desirable... The doctrine [lacks] a theoretical and principled foundation.” 9 Note that hearsay was not an issue in this case. 47 | P a g e Confessions & Admissions Confessions in the Criminal Context Definitions Statutory Provisions Evidence Act Admission and confession defined 17.—(1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned. (2) A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence. In the context of criminal proceedings, an admission or confession is admissible by virtue of s.258(1) CPC 2010: Admissibility of accused’s statements 258.—(1) Subject to subsections (2) and (3), where any person is charged with an offence, any statement made by the person, whether it is oral or in writing, made at any time, whether before or after the person is charged and whether or not in the course of any investigation carried out by any law enforcement agency, is admissible in evidence at his trial; and if that person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit. The admissibility of admissions and confessions in criminal cases are, however, subject to the provision restricting the rank of the police officer that the statement is made to as well as the ‘voluntariness test’ in ss.258(2) and (3) CPC 2010 respectively. 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 accused’s 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 accused’s 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 accused’s statement recorded under section 22 or 23 did not fully comply with that section. The 2 limbs of voluntariness 49 | P a g e 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-accused’s account. Yong CJ held that “[t]he remark on arresting [the accused’s] 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 accused’s “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. Inducement, promise or threat must have ‘caused’ the statement to be made In Lim Thian Lai v. PP [2005] SGCA 50, the investigating officer allegedly told the accused, who the trial court described as “no babe in the woods”, that if he were to admit to the crime, the charge would be reduced from murder to manslaughter, and he would serve only a few years’ imprisonment. In his evidence, the accused had said that he did not trust policemen. Chao JA summarized the position as to the legal effect of words such as “you had better tell me the truth” as such: “Judicial attitudes towards the legal effect of the words “you had better tell the truth” or any equivalent expression have shifted over the years. While such utterances have previously been treated as necessarily establishing a threat or an inducement, the current view is that the import of 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. Self-perceived inducement, promise or threat Self perceived inducements, threats or promises do not per se make a confession involuntary. In Lu Lai Heng v. PP [1994] SGCA 54, the accused was under the impression that his mother could be in trouble because the drugs were found in her room, and was worried that she could get into trouble. When it was his understanding that the police would let his mother go free in a day or 2 if he admitted that he owned the drugs, he signed the confession statement. Yong CJ held that a self-perceived inducement could not in law amount to an inducement or promise within the meaning of s.24 EA [repealed, now purely governed by s.258(3) CPC 2010]. The evidence, according to Yong CJ, was quite clear that the police did not hold out to the accused that his mother would not be arrested or would be set free in a day or 2 if he admitted that the drugs found in her room were in fact his. This was, as he said himself in his evidence, his own perceived impression. Accordingly, on the evidence, no such inducement or promise proceeded from the police. To view it in another way, self-perceived inducements, threats or promises do not satisfy the objective limb of voluntariness, notwithstanding that the subjective limb may have been satisfied. It is arguable, though, that if the principle concern is reliability, then a perceived inducement, threat or promise certainly impacts on reliability in the same way as a real one. ‘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 accused’s 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. ‘Having reference to the charge’ Read literally, s.258(3) CPC 2010 requires that any inducement, threat or promise which does not refer to the charge – irrespective of its effect on the accused’s mind – will be considered voluntary. However, in Poh Kay Keong, Yong CJ held that s.24 EA should be given a purposive construction, such that “an inducement, threat or promise has reference to the charge against the accused person if it was made to obtain a confession relevant or relating to the charge in question”. In other words, an inducement which does not directly relate to the charge may nevertheless render a confession involuntary if it concerns any matter which could have an impact on the accused in respect of the charge. CJ Yong subsequently followed his approach Poh Kay Keong in Syed Yasser Arafat bin Shaik Mohamed v. PP [2000] SGCA 16, holding that “it is not a requirement that the inducement must relate or have reference to the charge in order to exclude a confession made as a result of that inducement ... A threat made against family members could be sufficient to vitiate a confession”. Had the police in Lu Lai Heng actually said to the accused what he perceived, it would fall squarely within the principle laid down in Poh Kay Keong and Syed Yasser Arafat. ‘Proceeding from a person in authority’ While it is quite clear that the police and other law enforcement authorities fall within the definition of ‘person in authority’, it is less clear in respect of other related staff like interpreters assisting in police investigations. In Deokinan v. R [1969] AC 20, the PC defined the phrase as encompassing “anyone who has authority or control over the accused or over the proceedings or the prosecution against him”. The PC’s definition was endorsed by the SGHC in PP v. Lim Boon Hiong [2010] SGHC 205, where the accused alleged that the interpreter had told him that he would only get 5 years’ imprisonment and 5 strokes of cane if he made admissions in his statement. The CNB officer conducting the interview was present in the room during the material time. It was contended that an interpreter could “constructively” be a person in authority, if he proffered an inducement or promise in the presence and to the knowledge of a person in authority, unless the latter took steps to dissociate himself from the inducement or promise. Chong J held that if the inducement or promise was made by the interpreter in a one-on-one conversation with the accused (when the accused is aware that he is merely an interpreter), there can be no doubt that admissions made by the accused following the inducement emanating solely from the interpreter, who would not be regarded as a person in authority, would still be admissible. Such an inducement, according to Chong J, would effectively be made by an interpreter or any other person not in authority “on a frolic of his own”, and would not in law exclude a confession thereby obtained. On the other hand, whether the position is different where the inducement or promise was made by the interpreter in the presence of an 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 accused’s 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 J’s 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 accused’s 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”. Evaluation of the oppression test under the CPC 2010 Although the inclusion of oppression in the CPC 2010 streamlines the common law with the legislative framework, the wording of Explanation 1 gives rise to several problems: (1) The statement must be obtained from the accused by the person in authority who acted in an oppressive manner towards him. This seems to be an unduly strict requirement: if the acts of oppression are carried out by another (such as another officer or a lock-up guard), and the statement is later taken not by him but by yet another investigation officer, literally, the statement is outside the scope of Explanation 1, whether or not the accused was in fact “oppressed”. That is not the common law position that is supposed to be codified by the provision; it does not require the link between the “oppressor” and the person in authority who eventually takes the statement. Thus, a purposive interpretation is necessitated to give effect to the common law position. (2) Second, there is the link to the so-called test of “voluntariness” in the second part of Explanation 1, where the court has to form an opinion that the “oppressive” acts would give the accused reason to give a statement to avoid a temporal evil or gain an advantage. Only if such acts fit the description, that they would amount to ‘a threat, inducement or promise, as the case may be’, will they render the statement inadmissible. However, it is a trite proposition at common law that oppression is seen as a separate ground for invalidating confessions in situations where there is just illegitimate pressure without inducements, threats or promise. The better approach would have been to add the phrase, ‘or oppression’ to the main body of s.258(3) at the end, with Explanation 1 defining what ‘oppression’ entails. (3) Third, from a logical standpoint, the voluntariness component does not sit well with the oppression component, since it necessitates the assumption that an accused who had his free will sapped was nevertheless capable of reason, such that when he acceded to making a statement, he chose to avoid the evil. Common sense informs one that if the accused’s “free will” had been completely sapped, he would not 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 accused’s 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 SGCA’s 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. Influence of narcotics vitiating voluntariness of statement The accused may be under the influence of drugs or may be suffering from withdrawal symptoms at the time of giving the statement such that the voluntariness of the statement may be impugned. However, Karthigesu JA held in Gurnam Singh v. PP [1994] SGCA 55 that “in order for the effects of withdrawal from drugs to affect the drug user’s medical and psychological condition to render any statement he makes to be involuntary, [the accused] must be in a state of near delirium, that is to say, that his mind did not go with the statements he was making”. Karthigesu JA, in coming to the conclusion that the accused was not in such a state, accepted the trial judge’s finding that the withdrawal symptoms that the accused suffered following his arrest was not a severe case and that he had recovered 1 day prior to making his statements. 10 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 abuser’s 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 J’s 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. Time lapse between confession and inducement, threat or promise Criminal Procedure Code 2010 Admissibility of accused’s statements 258.— (4) If the statement referred to in subsection (3) is made after the impression caused by any such inducement, threat or promise referred to in that subsection has, in the opinion of the court, been fully removed, it shall be admissible. Thus, the effect of an inducement, threat or promise can dissipate with time such that the confession would no longer be involuntary. In R v. Smith [1959] 2 QB 35, a soldier, who was part of a group of soldiers who had been threatened by their sergeant-major with extra parade duty unless a confession was forthcoming from one of them, and who did confess, was no held to be no longer under the influence of the threat when he confessed to investigating officers a day later. However, in PP v. Naikan [1961] MLJ 147, the accused confessed to his estate manager and 2 hours later to a magistrate. It was held that the inducement in respect of the first confession continued to operate in relation to the second confession. While the length of time is no doubt a factor to consider, this is not determinative. Much will depend on the circumstances of the case. Evidence Against Co-accused Statutory provision Criminal Procedure Code 2010 Admissibility of accused’s statements 258.—(5) When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration the confession as against the other person as well as against the person who makes the confession. Explanation — “Offence” as used in this section includes the abetment of or attempt to commit the offence. Illustrations (a) A and B are jointly tried for the murder of C. It is proved that A said “B and I murdered C”. The court may consider the effect of this confession as against B. (b) A is on trial for the murder of C. There is evidence to show that C was murdered by A and B and that B said “ A and I murdered C”. This statement may not be taken into consideration by the court against A as B is not being jointly tried. (7) In this section, “confession”, in relation to any person who is tried for an offence, means any statement made at any time by him stating or suggesting the inference that he committed that offence. 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-accused’s 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 Honour’s 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-accused’s 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 accused’s 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 law’s seeming concern with the unreliability of a co-accused’s 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-accused’s 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. Doctrine of Confirmation by Subsequent Facts Criminal Procedure Code 2010 258.—(6) Notwithstanding any other provision in this section — (c) when any fact or thing is discovered in consequence of information received from a person accused 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 accused’s 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. Evidential Value (Weight) of Confessions Mixed statements Section 258(1) CPC 2010 does not make any distinction between inculpatory and exculpatory statements. In Chan Kim Choi v. PP [1991] SGCA 2, the accused made a statement to the police saying that he had stabbed the deceased after the deceased had assaulted him. The accused argued that the exculpatory facts (the assault by the deceased) amounted to substantive evidence which the court could accept as true. Referring to certain English authorities on exculpatory statement, Lai J held that both the inculpatory and exculpatory parts of a mixed statement must be considered in determining where the truth lies, although, in view of the fact that the incriminating parts were likely to be true, more weight might be assigned to it that to the inculpatory parts. Chan Kim Choi was endorsed in Tang Tuck Wah v. PP [1991] SGHC 194, where Sinnathuray J held that the trial judge “was entitled, on the whole of the evidence before him, to treat the inculpatory parts of the [accused’s] statement as containing matters of truth, and to reject his explanations he gave favourable to himself”. 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 witness’s EIC can be tested under cross-examination. Procedural Irregularity in Taking Statements Statutory provisions Criminal Procedure Code 2010 Power to examine witnesses 22.—(1) In conducting an investigation under this Part, a police officer may examine orally any person who appears to be acquainted with any of the facts and circumstances of the case — (a) whether before or after that person or anyone else is charged with an offence in connection with the case; and (b) whether or not that person is to be called as a witness in any inquiry, trial, or other proceeding under this Code in connection with the case. (2) The person examined shall be bound to state truly what he knows of the facts and circumstances of the case, except that he need not say anything that might expose him to a criminal charge, penalty or forfeiture. (3) A statement made by any person examined under this section 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. 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 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 accused’s 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 accused’s statement recorded under section 22 or 23 did not fully comply with that section. Does failure to comply with the procedures in ss.22 or 23 affect admissibility? Generally Prima facie, failure to comply with the procedures set out in ss.22 or 23 does not per se affect admissibility by virtue of Explanation 2(e) to s.258 CPC 2010. However, in PP v. Tan Kiam Peng [2007] SGHC 207, VK Rajah J, as he then was, held, in respect of a failure to reduce the statement in writing, that the “failure to follow the procedural safeguards explicitly articulated in [s.122(5) CPC 2010] may, in some circumstances, diminish in the court’s eyes the veracity or accuracy of the statements purportedly made by an accused”, i.e., the procedural irregularities may affect the weight of the evidence. VK Rajah JA took a stronger stand in Muhammad bin Kadar, where he held that where there are serious breaches of s.22 or 23 which compromise in a material way the reliability of the statement(s), the court has an exclusionary discretion to exclude the statement(s). The burden was on the Prosecution to convince the court that the probative value of a statement which had been compromised by the manifest irregularities that took place when it was supposedly recorded was higher than their prejudicial effect against their maker. Statements taken in deliberate or reckless non-compliance would require especially cogent explanations. Warning the accused of his right to silence Failure to warn an accused that he is not bound to say anything and that if he chose to, the evidence might 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). General Discretion to Exclude Confessions VK Rajah JA (together with Chong J and Kan J) noted in Muhammad bin Kadar 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. Plainly, procedural irregularities may be a cause for a finding that a statement's prejudicial effect outweighs its probative value. His Honour also opined that this was precisely the discretion exercised by Rajendran J in PP v. Dahalan bin Ladaewa [1995] SGHC 126, which was evident from the focus of the discussion on the effect that certain conditions had on the evidential value of the statement's content. 61 | P a g e Right of Silence Silence when Questioned/Confronted by Persons other than the Police Criminal Procedure Code 2010 Inferences from accused’s 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. Silence When Questioned by the Police Criminal Procedure Code 2010 Power to examine witnesses 22.—(2) The person examined shall be bound to state truly what he knows of the facts and circumstances of the case, except that he need not say anything that might expose him to a criminal charge, penalty or forfeiture. The s.22 CPC 2010 statement is also known as the ‘long’ statement. Whether an accused needs to be told of his right to remain silent In PP v. Mazlan bin Maidun [1992] SGCA 90, the accused was only told that he was “bound to state truly” but was not told of his right against self-incrimination. Yong CJ held that (1) a suspect or an accused need not be expressly informed of a right to remain silent whenever any statement is recorded from him pursuant to [s.22(2) CPC 2010]; (2) a failure to so inform him is not a breach of his constitutional rights under Art 9(1) of the Constitution; and (3) any statement recorded from a suspect or an accused under [s.22(1) CPC 2010] is not rendered inadmissible merely by the fact that the suspect or accused was not informed of his right to remain silent. [S.22 CPC 2010] was not an 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 accused’s 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 accused’s 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 judge’s 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 accused’s 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 accused’s 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 Honour’s 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 court’s 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. Silence at Trial Upon Being Called to Enter a Defence Criminal Procedure Code 2010 Procedure at trial 230.—(1) The following procedure must be complied with at the trial in all courts: (j) if after considering the evidence referred to in paragraph (e), the court is of the view that there is some evidence which is not inherently incredible and which satisfies each and every element of the charge as framed by the prosecutor or as altered or framed by the court, the court must call on the accused to give his defence; (m) before the accused calls any evidence in his defence, the court must inform the accused that he will be called upon by the court to give evidence in his own defence and what the effect will be if, when so called on, he refuses to give evidence on oath or affirmation; and the court may inform the accused in the following terms: “I find that the prosecution has made out a case against you on the charge(s) on which you are being tried. There is some evidence, not inherently incredible, that satisfies each and every element of the charge(s). Accordingly, I call upon you to give evidence in your own defence. You have two courses open to you. First, if you elect to give evidence you must give it from the witness box, on oath or affirmation, and be liable to cross-examination. Second, if you elect not to give evidence in the witness box, that is to say, remain silent, then I must tell you that the court in deciding whether you are guilty or not, may draw such inferences as appear proper from your refusal to give evidence, including inferences that may be adverse to you. Let me also say, whichever course you take, it is open to you to call other evidence in your own defence. You may confer with your counsel on the course you wish to take. I now call upon you to give evidence in your own defence. How do you elect?”; Accused not to give evidence except on oath or affirmation 291.—(1) In all criminal proceedings except a committal hearing, the accused may not give evidence except on oath or affirmation, and if he does so, he is liable to cross-examination. (2) An accused who is not represented by an advocate has the right to address the court without being sworn or affirmed in circumstances where, if he were so represented, the advocate could address the court on his behalf. (3) If an accused — (a) after being called by the court to give evidence or after he or the advocate representing him has informed the court that he will give evidence, refuses to be sworn or affirmed; or (b) having been sworn or affirmed, without good cause refuses to answer any question, the court, in deciding whether the accused is guilty of the offence, may draw such inferences from the refusal as appear proper. (4) This section does not compel the accused to give evidence on his own behalf, and he will not be guilty of contempt of court if he refuses to be sworn or affirmed in the circumstances of subsection (3) (a). (5) For the purposes of this section, an accused who, having been sworn or affirmed, refuses to answer a question shall be taken to do so without good cause unless — 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. Relevant principles on drawing inferences under s.291 CPC 2010 In Haw Tua Tau v PP [1981] 3 WLR 395, the PC held that the proper inferences “to be drawn from an accused's refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary commonsense”. The PC observed that [s.291 CPC 2010] makes it clear that “the accused has a legal right to refuse to give evidence at his trial [and therefore] no legal sanctions can be imposed upon him if he chooses to remain silent. It is only if he elects to give evidence that he exposes himself to the risk of being compelled, under threat of legal sanctions, to answer questions put in cross-examination which, if answered truthfully, might tend to show that he was guilty of the offence with which he was charged.” Thus, the accused’s silence may not be used as a make-weight to fill in any gaps in the Prosecution’s case, as Chao JA held in Took Leng How v. PP [2006] SGCA 3. However, “if aspects of the evidence taken alone of in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty” (per Yong CJ in Chai Chien Wei Kelvin v. PP [1998] SGCA 64, citing Lotd Stynn’s judgement in Murray v. Director of PP [1994] 1 WLR 1 with approval). 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 accused’s 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 judge’s 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 Illegally or Improperly Obtained Evidence General Discretion to Exclude for Procedural Irregularity Although procedural non-compliance does not affect admissibility, it may yet affect: (1) exclusionary discretion of the court (PP v. Dahalan bin Ladaewa and Muhammad bin Kadar v. PP); and if it is admitted: (2) weight: PP v. Tan Kiam Peng [2006] SGHC 207: “the failure to follow the procedural safeguards explicitly articulated in [s.22 CPC 2010] … may, in some circumstances, diminish in the court’s eyes the veracity or accuracy of the statements purportedly made by an accused.” VK Rajah JA (together with Chong J and Kan J) noted in Muhammad bin Kadar that the SGHC held in Law Society of Singapore v. Tan Guat Neo Phyllis [2007] SGHC 207 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. Plainly, procedural irregularities may be a cause for a finding that a statement's prejudicial effect outweighs its probative value. His Honour also opined that this was precisely the discretion exercised by Rajendran J in PP v. Dahalan bin Ladaewa [1995] SGHC 126, which was evident from the focus of the discussion on the effect that certain conditions had on the evidential value of the statement's content. Entrapment What is ‘entrapment’? In Wong Keng Leong Rayney v. Law Society of Singapore [2007] SGCA 42, Chan CJ defined ‘entrapment’ as involving the “luring or instigating the defendant to commit an offence which otherwise, in ordinary circumstances, he would not have committed, in order to prosecute him.” In Law Society of Singapore v. Tan Guat Neo Phyllis [2007] SGHC 207, Chan CJ further elaborated on the definition of entrapment: “Entrapment involves unlawful conduct by the state or its agents in instigating, cajoling or pressuring the defendant into committing an offence which he wouldn’t otherwise have done…. [T]he evidence is then used to prosecute the defendant for the offence which he was instigated to commit. This is distinguished from merely providing the defendant with an opportunity to commit the offence”. In this connection, Chan CJ classified How Poh Sun as a classic case of an accused being given an opportunity to commit the offence, as opposed to being instigated to commit the offence, and therefore was not a case of entrapment. Chan CJ also did not classify Wong Keng Leong Rayney as a case of entrapment, as the private investigator “had merely given an opportunity to the appellant to offer her a referral fee”; she had not “caused him to make the offer, and/or, subsequently, to pay the referral fee….[T]he appellant did what he did “voluntarily”, and [he] would have done the same thing if any other estate agent had approached him with a genuine offer of referral work.” 68 | P a g e The law on entrapment/illegally obtained evidence pre-R v. Sang Cheng Swee Tiang v. PP [1964] 1 MLJ 291 was the first case reported locally concerning the common law discretion to exclude evidence obtained by entrapment. The accused was charged with assisting in the carrying on of a public lottery. 2 police officers had entered the accused’s shop for the express purpose of entrapping the accused into accepting a stake, which he did. One of the issues on appeal was whether a trial court had the discretion to exclude evidence improperly obtained. The majority (Wee CJ and Chua J) referred to the judgment of Goddard CJ in the PC case of Kuruma Kaniu v. The Queen [1955] AC 197, which had held that “the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused”. The majority also referred to Callis v. Gunn [1964] QB 495, in which Lord Parker CJ held that the “strict rules of admissibility would operate unfairly against the accused” if the evidence “had been obtained in an oppressive manner or against the wishes of the accused”. The majority concluded that it was “undisputed law” that there is a judicial discretion to exclude relevant evidence if its reception “would operate unfairly against the accused”. On the other hand, Ambrose J in his dissenting speech did not accept that such a discretion could exist in the absence of an empowering provision in the EA. However, his Honour observed that even if the court had such a discretion, it would not have been correct to exercise it in the circumstances of the case. The law on entrapment/illegally obtained evidence following R v. Sang The issue for consideration in R v. Sang [1980] AC 402 was whether the courts had the discretion to exclude evidence obtained by an undercover agent. Lord Diplock’s holding can be divided into 3 general propositions: (1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value (2) Save with regard to admission and confessions, and generally with regard to evidence obtained from the accused after the commission of the offence, the trial judge has no discretion to refuse to admit relevant admissible evidence merely on the ground that it was obtained by improper or unfair means. (3) It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur. The approaches of R v. Sang and Cheng Swee Tiang differ in that the former only allows evidence to be excluded as a result of unfairness at trial, whereas the latter allowed evidence to be excluded as a result of impropriety in the process of obtaining evidence. R v. Sang was first considered in Ajmer Singh v. PP [1986] SGHC 39, which concerned illegally obtained evidence but no entrapment was involved. The accused was convicted of riding a scooter whilst incapable of having proper control of the vehicle as a result of intoxication. At the trial, the doctor gave evidence that the accused showed symptoms of intoxication and that the blood specimen taken from him indicated a certain blood alcohol level above the prescribed limit. The accused argued on appeal that the evidence of the blood sample should not have been admitted as it was taken in breach of the procedures laid down by the Road Traffic Act, which, inter alia, required his consent. Chan J, as he then was, decided that it was not necessary to determine whether or not the accused give his consent. Nevertheless, his Honour proceeded to comment on the assumption that no consent had been given, and held, on the authority of Sang, that the illegally obtained evidence was admissible as its probative value far outweighed its prejudicial effect. In How Poh Sun v. PP [1991] SGCA 22, the accused was arrested, charged with and convicted of a capital drug trafficking charge following an operation set up by the CNB using another offender (Goh) who was prepared to co-operate. Goh had contacted the accused and told him that a buyer wanted a large quantity of heroine. The accused canvassed the defence that his prosecution for a capital offence was unfair since, if the narcotics police had raided his home (which address they had), they would have found only the drugs in 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 HL’s 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. Apparent extension of the scope of R v. Sang In SM Summit Holdings Ltd v. PP [1997] SGHC 255, Yong CJ appeared to have extended the scope of the Sang discretion by drawing a distinction between illegally obtained evidence by a law enforcement officer and by a private investigator. In SM Summit Holdings, a private investigator (at the behest of the Pf) had procured Summit Holdings (who was suspected of copyright and trademark infringements) to infringe copyright and trademarks so that a complaint could be made, and consequentially search warrants obtained, against Summit Holdings. The private investigator had deposed in his statutory declaration showing how he had procured the party to replicate 8 stampers which contained allegedly copyright infringing programmes. Yong CJ held that the court had a discretion to exclude evidence that involved illegal conduct which precedes the crime and was designed to bring about the very commission of the offence. In this connection, his Honour drew “a distinction between the case where police conduct has merely induced the accused person to commit the offence which he has committed (as in Sang) and the case where the illegal police conduct itself constitutes an essential ingredient of the charged offence”. Yong CJ also emphasized that different tests applied for law enforcement officers and private investigators. In the former, it is a case where the public interest in the conviction and the punishment of those guilty of a crime is likely to prevail over other considerations, and the exclusion of evidence would in fact undermine judicial integrity in allowing such alleged offenders to get away, whereas in the latter, the illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. As such, Yong CJ held that the integrity of the administration of criminal justice required that such evidence be excluded. In SM Summit Holdings, the improperly obtained evidence was sought to be used in the context of justifying a search warrant. An argument for abuse of the court’s process could perhaps be mounted since in Phyllis Tan, Chan CJ held that the judicial process in criminal cases was established for the very purpose of putting an accused on trial for the commission of an offence, and as such, the invocation of the court's process for the very purpose for which it was established could not be an abuse of its process. The law on entrapment/illegally obtained evidence following Phyllis Tan In Wong Keng Leong Rayney, Chan CJ declared that the term “unfairness” in the context of the Sang principle is not concerned with the process of obtaining evidence, but with the effect of the evidence at trial. However, as the parties did not address the court on the admissibility provisions in the EA and the related policy considerations, Chan CJ determined that it was more convenient for the court of 3 judges to decide on the matter in Phyllis Tan. In Phyllis Tan, certain lawyers had hired a private investigator to obtain evidence that the respondent’s law practice had been involved in touting for conveyancing work. The private investigator proceeded to represent herself as a real estate agent who might want to engage the respondent to act for her client in the purchase of a property and they eventually met. The private investigator made audio and video recordings of a telephone discussion and meeting respectively with the respondent (without their knowledge). After that meeting, the private investigator made a complaint against the respondent to the Law Society in connection with the respondent’s offer to pay a referral fee for procuring conveyancing work. The SGHC, presided over by Chan CJ, Phang JA and Ang J, observed that the given overarching principle in the EA is that all relevant evidence is admissible unless specifically expressed to be inadmissible, and against this backdrop, Cheng Swee Tiang and How Poh Sun are inconsistent with the EA insofar as they sanction the exclusion of relevant evidence on the ground of unfairness to the accused. In this respect, the court was of the opinion that Ambrose’s dissenting judgment in Cheng Swee Tiang was correct in pointing 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” Prosecution based on evidence obtained by entrapment as an abuse of process Phyllis Tan also stands for the related proposition that a prosecution based on entrapment or illegally obtained evidence is not an abuse of process as long as it has been brought “for the bona fide prosecution of criminals”. In coming to his decision, Chan CJ considered the English and Australian approaches in Loosely and Ridgeway respectively. In Looseley, the HL considered state entrapment as an abuse of executive power, and thus, prosecuting an accused on evidence thereby obtained was an abuse of process and would bring the administration of justice into disrepute, which the court would not tolerate. In contrast, Ridgeway held that such a prosecution could not be an abuse of process for the reason that the judicial process in criminal cases was established for the very purpose of putting an accused on trial for the commission of an offence. The invocation of the court's process for the very purpose for which it was established could not be an abuse of its process. Chan CJ agreed with the approach in Ridgeway “as a matter of legal logic”, and accordingly held that the court may not exclude evidence or stay the proceedings on the basis of the evidence being obtained by entrapment. Chan CJ also added that even if a prosecution founded upon entrapment evidence was an abuse of process, the court has no jurisdiction to stay a prosecution because of the separation of powers under the Constitution. However, the court has, in an appropriate case, the power within its own judicial sphere to declare a prosecution unconstitutional for breach of constitutional power, or for infringement of constitutional rights and protections. In the same vein, Tay J held in Mohamed Emran bin Mohamed Ali v. PP [2008] SGHC 103, a case where the accused contended that the non-prosecution of the state agent who had incited and instigated him to traffic drugs was an infringement of his Art 12 rights, that the failure to prosecute the state agent did not contravene the accused’s rights under Art 12. There was an intelligible differentiation between entrapped drug traffickers and state agents provocateurs, viz, the former class of persons belonged to one that had demonstrated both the mens rea and actus reus to promote the drug trade, whereas the latter group, on the other hand, had the sanction of the State and their operative mens rea was to curb and curtail the drug trade rather than to promote it. Tay J also observed that there is a perfectly rational nexus between entrapment operations and the socially desirable and laudable objective of containing the drug trade, viz, such operations are necessary to flush out suppliers of drugs and serve as an important deterrent against the traffic in drugs as they introduce a clear and present risk of instant arrest into the equation for drug traffickers. It is hard to see why the constitutional separation of prosecutorial and judicial power should rule out a discretion to stay proceedings on the ground of abuse of process. The fragmentary model of governance that the SGHC seemed to have endorsed would subvert the very check and balance that separation of powers was designed to institute. Furthermore, if our system is based on the “Westminster model”, and presumably the government of the UK still is, then it appears that the Court might have inadvertently implied that the HL in Loosely had violated a fundamental tenet of the Westminster model. Aftermath of Phyllis Tan – is there a discretion or not? In Muhammad bin Kadar [2011] SGCA 32, the 1st statement was allegedly made to SSI Zainal alone in a police car. Z had told his 2 colleagues to leave the car so that he could speak to Ismil (brother of Muhammad) alone. Z recorded the confession (that Ismil had ‘slashed’ the victim) on a slip of paper. This 71 | P a g e was not recorded in Z’s 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. Z’s 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 B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s 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 accused’s 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 witness’s 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 driver’s intoxication (based on the accused’s 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 accused’s unfitness to drive was admissible. 74 | P a g e ‘Special means of knowledge’ under s.51 EA 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. Leong Wing Kong v. PP [1994] SGCA 37, the accused testified that the heroin he was caught with was for personal consumption, but a CNB officer with more than 20 years of experience testified that if the accused was right, he would have in effect been consuming 73 pieces of 1-inch straws per day, which was a significantly higher amount that what a hardcore addict would consume. The accused contended that the CNB officer was not an expert and accordingly, his evidence was hearsay and inadmissible. Yong CJ held that as the CNB officer had more than 20 years’ of experience working with the law enforcement division of CNB and that the had access to information about the drug scene in Singapore in the course of his work, he therefore had sufficient work experience to be considered an expert in the matter on which he gave evidence. Accordingly, the CNB officer had the ‘special means of knowledge’ within the meaning of s.51 EA and his opinion evidence was therefore admissible. 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. Explanatory Statement for new s.47 EA Section 47 is reenacted to extend the scope of admission of expert evidence to points of “scientific, technical or other specialised knowledge” generally. The new s.47(2) abolishes the “common knowledge rule” and is modelled after s.25(2)(b) of the New Zealand Evidence Act 2006. Under the “common knowledge rule”, opinions of experts on matters of common knowledge and experience are strictly not relevant and therefore not admissible. The express abolition of the rule is accompanied by the judicial discretion in s.47(4) to exclude expert opinion evidence where it is not in the interests of justice to treat it as relevant. This discretion is similar to that in the new s.32(3). 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 chemist’s 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 accused’s 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. Expert opinion to assist in considering the probability of an accused’s veracity In Lowery v. R [1974] AC 85, L and K were both charged with the murder of a girl, and both of them alleged that the other was the perpetrator. L claimed that he was fearful of K and couldn’t prevent K from killing the girl whereas K claimed he did not fully appreciate what was going on as he was on drugs, and was powerless to stop L. In support of his case, K called a psychologist who had interviewed and conducted personality tests on both L and K. The psychologist testified that K “was an immature, emotionally, shallow youth, who seemed likely to be led and dominated by more aggressive and dominant men” whereas L had “a strong aggressive drive with weak controls over the expression of those aggressive impulses”. The PC decided that the expert opinion was scientific evidence as to the respective personalities of the two accused as, and to the extent, revealed by certain well-known tests. Thus, the evidence was relevant insofar as it helped in considering which side of the story was more probable. In light of the new s.47(1) and (3) EA, such evidence, notwithstanding R v. Turner (below), is likely to be admissible, but is at the same time likely to be excluded pursuant to the discretion in s.47(4) EA. 78 | P a g e Expect opinion not required for ordinary human experiences Lowery was distinguished by the English CA in R v. Turner [1975] QB 834 as a case which was “decided on its special facts”, and which did not stand as “authority for the proposition that in all cases psychologists and psychiatrists can be called to prove the probability of the accused’s veracity”. In Turner, the accused was convicted of the murder of his girlfriend by bludgeoning her to death. He appealed on the ground that the trial judge had not allowed a psychiatrist to give evidence supporting his defence of provocation. The English CA upheld the trial judge’s decision on the basis that mental illness was not in issue. Lawton LJ held that it was knowledge common to all that “both men and women who are deeply in love can, and sometimes do, have outbursts of blind rage when discovering unexpected wantonness on the part of their loved ones... Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life”. Turner was cited locally in Chou Kooi Pang v. PP [1998] SGCA 48 as authority for the proposition that an expert should not give evidence if the court is able to come to its own conclusion without assistance. The accused in Chou Kooi Pang was convicted for drug trafficking. A psychologist was called to give evidence of his low IQ in support of his defence that he did not know or suspect that he was carrying drugs. Applying Turner, Yong CJ held that “expert opinion is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge. If, on the proven facts, a judge can form his own conclusions without help, the opinion of an expert is unnecessary”. As the court could itself conclude whether the accused knew or suspected that he was carrying drugs, there was no need for the opinion of the psychiatrist on that matter. 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 expert’s 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 expert’s 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 Reliability of Expert Evidence The court’s determination that expert evidence is necessary does not however mean that it will necessarily be accepted. It may be rejected if it is unsound or illogical or if it is contradicted by other evidence presented in the case. However, as the SGCA held in Saeng-Un Udom v. PP [2001] SGCA 38, while the court must not blindly accept the evidence merely because there is no definite opinion to the contrary, the court will normally accept an unchallenged expert opinion if its is based on a sound foundation and is not otherwise objectionable. In Saeng-Un Udom, the accused was charged with murder by striking the victim with a metal rod. The expert for the Prosecution, who was the only expert witness called, testified that death was caused by an instrument with a sharp edge, not a rod. In convicting the accused, the SGHC rejected this opinion and substituted its own view that the accused had used a metal rod. Thean JA held that the where the court is confronted with expert opinion which was unopposed and “based on sound grounds and supported by the basic facts”, it can do little but to accept the evidence. His Honour admonished that it was not for the court to draw its own inferences in such circumstances, and accordingly, the accused was acquitted as the opinion raised a reasonable doubt. VJ Rajah J, as he then was, also commented in Sakthivel Punithavathi v. PP [2007] SGHC 54, even though in that case there were conflicting expert evidence from both parties, that it is axiomatic “that a judge is not entitled to substitute his own views for those of an uncontradicted … Be that as it may, a court must not on the other hand unquestioningly accept unchallenged evidence. Evidence must invariably be sifted, weighed and evaluated in the context of the factual matrix and in particular, the objective facts. An expert’s opinion “should not fly in the face of proven extrinsic facts relevant to the matter”. In reality, substantially the same rules apply to the evaluation of expert testimony as they would to other categories of witness testimony. Content credibility, evidence of partiality, coherence and a need to analyse the evidence in the context of established facts remain vital considerations; demeanour, however, more often than not recedes into the background as a yardstick.” In any case, the new s.47(4) EA now confers on the court a discretion to exclude in the interests of justice an otherwise relevant opinion. Opinions of experts 47.—(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. Conflicting Expert Testimony In Singapore Finance Ltd v. Lim Kah Ngam (Singapore) Pte Ltd [1984] SGHC 11, the Pfs claimed against the Dfs for damage caused to the Pfs’ buildings. Conflicting expert evidence were adduced by both sides to prove different versions of how extensive cracks on a building came about. Lai J revealed that his approach in evaluating the evidence was to examine the scientific grounds and bases which they relied upon. Where the opinion of an expert was based on reports of facts and empirical observations, the court had to be satisfied, on the balance of probabilities, whether those facts existed and whether any inferences drawn from those facts were sound or not. In reaching its conclusion, the court will analyse the grounds of the opinion to determine its soundness. Thus in Tengku Jonaris Badlishah v. PP [1999] SGCA 21, the accused, who was charged with murder, raised the defence of diminished responsibility on the ground that he was suffering from depression and ‘cannabis intoxication’ at the material time. His expert testified to this effect. The Prosecution’s expert witness, however, contended that the accused was not suffering from any abnormality of the mind. Yong CJ held that the trial judge was entitled to elect between the evidence of these two expert witnesses, in accordance with the approach laid down in McLean v Weir [1973] 3 CCLT 87 and approved in Muhammad Jefrry bin Safii v PP [1996] SGCA 44. Yong CJ was of the view that the trial judge had 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 expert’s 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 Prosecution’s 2 medical experts had testified that the victim’s 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 victim’s dominant hand. They had also confirmed that the injuries must have been caused by a number of blows (instead of a single blow). The Defence’s medical expert, however, opined that the victim’s 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 victim’s 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 Prosecution’s medical experts, who were considerably less experienced and thorough than the Defence’s expert, could not convincingly account for the superficial cuts on the victim’s 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 judge’s grounds of decision that she was unduly impressed by the Prosecution’s 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 Defence’s expert’s substantial clinical experience or to his standing as an expert. Grounds of Opinion Statutory Provision Evidence Act 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. Grounds of opinion when relevant 53. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based 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 witness’s 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 256–257). The principle just mentioned is now embodied, in the local context, in O 40A r 2 of the Rules of Court, as follows: Expert’s 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 Lloyd’s Rep 68 at 81–82, 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 Lloyd’s Rep 455 at 496. Indeed, Cresswell J’s 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 expert’s 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, “Expert’s 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 Ali’s Law of Evidence, vol 2 ([68] supra), especially at pp 2354–2355; 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]. Mühlbauer 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 702’s ‘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 expert’s 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 technique’s 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 Legal Professional Privilege Statutory Provisions Evidence Act Application of Parts I, II and III 2.—(1) Parts I, II and III shall apply to all judicial proceedings in or before any court, but not to affidavits presented to any court or officer nor to proceedings before an arbitrator. Professional communications 128.—(1) No advocate or solicitor shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate or solicitor by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment. (2) Nothing in this section shall protect from disclosure — (a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate or solicitor in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. (3) It is immaterial whether the attention of such advocate or solicitor was or was not directed to such fact by or on behalf of his client. Explanation — The obligation stated in this section continues after the employment has ceased. Illustrations (a) A, a client, says to B, a solicitor: “I have committed forgery and I wish you to defend me”. As the defence of a man known to be guilty is not a criminal purpose this communication is protected from disclosure. (b) A, a client, says to B, a solicitor: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue”. This communication being made in furtherance of a criminal purpose is not protected from disclosure. (c) A, being charged with embezzlement, retains B, a solicitor, to defend him. In the course of the proceedings B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. Communications with legal counsel in entity 128A.—(1) A legal counsel in an entity shall not at any time be permitted, except with the entity’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal counsel, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his employment as such legal counsel, or to disclose any legal advice given by him to the entity, or to any officer or employee of the entity, in the course and for the purpose of such employment. (2) Nothing in subsection (1) shall protect from disclosure — (a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any legal counsel in an entity in the course of his employment as such legal counsel showing that any crime or fraud had been committed since the commencement of his employment as such legal counsel; (c) any such communication made to the legal counsel which was not made for the purpose of seeking legal advice; or 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. Sphere of Legal Professional Privilege’s Applicability Application of Parts I, II and III 2.—(1) Parts I, II and III shall apply to all judicial proceedings in or before any court, but not to affidavits presented to any court or officer nor to proceedings before an arbitrator. Does the privilege apply to other types of quasi-judicial proceedings? In Yap Sing Lee v. MCST No 1267 [2011] SGHC 24, Belinda Ang J held that legal advice privilege is “no longer … regarded as merely a rule of evidence, restricted to judicial or quasi-judicial proceedings, but is 88 | P a g e now considered a substantive legal right that may be claimed outside these areas”. Legal Advice Privilege Rationale Lord Brougham said in Greenough v. Gaskell (1833) 1 My & K 98 that the rule arises “… out of regard to the interests of justice, which cannot be [upheld], and, to the administration of justice, which can not go on, without the aid of men skilled in jurisprudence [and] in the practice of the Courts … If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case.” Similarly, Lord Taylor held in R v. Derby Magistrates’ Court [1996] 1 AC 487 that “[t]he principle which runs through all these cases, and many other cases … is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence…. It is a fundamental condition upon which the whole administration of justice rests … Legal professional privilege is concerned with the interaction between two aspects of the public interest in the administration of justice. The public interest in the efficient working of the legal system requires that people should be able to obtain professional legal advice on their rights and liabilities and obligations. This is desirable for the orderly conduct of everyday affairs. Similarly, people should be able to seek legal advice and assistance in connection with the proper conduct of court proceedings. To this end communications between clients and lawyers must be uninhibited. But, in practice, candour cannot be expected if disclosure of the contents of communications between client and lawyer may be compelled, to a client's prejudice and contrary to his wishes. That is one aspect of the public interest. It takes the form of according to the client a right, or privilege as it is unhelpfully called, to withhold disclosure of the contents of client-lawyer communications. In the ordinary course the client has an interest in asserting this right, in so far as disclosure would or might prejudice him. The other aspect of the public interest is that all relevant material should be available to courts when deciding cases. Courts should not have to reach decisions in ignorance of the contents of documents or other material which, if disclosed, might well affect the outcome. All this is familiar ground, well traversed in many authorities over several centuries. The law has been established for at least 150 years, since the time of Lord Brougham L.C. in 1833 in Greenough v. Gaskell, 1 M. & K. 98: subject to recognised exceptions, communications seeking professional legal advice, whether or not in connection with pending court proceedings, are absolutely and permanently privileged from disclosure even though, in consequence, the communications will not be available in court proceedings in which they might be important evidence.” Chan CJ confirmed the rationale for the privilege in the SGCA case of Skandinaviska Enskilda Banken AB (Publ) v Asia Pacific Breweries (Singapore) Pte Ltd [2007] 2 SLR(R) 367, stating that legal advice privilege “recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.” Communication Between Lawyer and Client Scope of communication In Balabel v. Air India [1988] 2 All ER 246, Taylor LJ held that “the test is whether the communication or other document was made confidentially for the purposes of legal advice.” According to Taylor LJ, these 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 BIU’s 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 [BoE’s] 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 LJ’s 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 “By or on behalf of” – who is the client? Under the EA, the word “client” is not defined. Neither is it defined by the Interpretation Act. There is apparently a lacuna as to what the word means when a corporate body seeks legal advice. A broad definition of ‘client’ will spread the coverage of privilege widely, leading to loss of corporate transparency and accountability, which in turn affects the ability of a non-corporate party to pursue litigation against a corporate party. In Three Rivers v. Bank of England (No. 5) [2003] QB 1556, the depositors and liquidators sought discovery of the documents prepared by BIU in connection with the inquiry, in particular the internal documents prepared by the employees of BoE on the instructions of and for BIU. The English CA, adopting a narrow definition of ‘client’ for the purposes of attaching the common law privilege, rejected BoE’s claim of legal privilege. There were 2 key points that was made in coming to this decision. First, it was held that BIU was the client in question and the employees of BoE who had created the various documents were 3rd parties to the solicitor-client relationship between BIU and Freshfields. Secondly, it held that legal professional privilege only applies to communications passing between a client and its legal adviser and documents evidencing such communications, but not documents communicated to a client or his solicitor for advice to be taken upon. The English CA adopted a narrow definition of ‘client’ for the purposes of attaching the common law privilege. It held that, in the case of a corporate client, legal advice privilege would not attach to communications to the legal adviser by either employees who were not part of the directing mind and will of “the client” or by others who were not “the client”. The result was that the privilege did not attach to memoranda supplied by employees for the purpose of being sent to the client’s solicitor. The applicability of Three Rivers (No. 5) to these provisions came up for discussion in the SGCA case of Skandinaviska. An employee of APB had used APB’s name to obtain and use credit and loan facilities from several banks. The employee was subsequently charged and convicted of several cheating charges. After APB discovered the fraud, a special committee was set up and this committee appointed PWC and D&N to investigate into the fraud. Draft reports were prepared by PWC although a final report was never issued. The banks which sued APB sought discovery of the PWC draft reports. APB asserted privilege – both litigation and legal professional privilege. Phang JA held that “Three Rivers (No. 5) should be read in the context of the court’s finding that the BIU (and no one else) was authorised to communicate with the bank’s solicitors. In so far as s.128 of the EA is concerned, the company cannot itself make the communication to its solicitors: only individuals can do so, and those individuals would be those authorised to do so, expressly or impliedly. The words ‘by or on behalf of his client’ in this particular provision embody, statutorily, the proposition just mentioned. Accordingly, [there was no] inconsistency between Three Rivers (No. 5) and s.128 of the EA.” In other words, Phang JA’s view was that if an employee was not authorised to communicate with the company’s solicitors for the purpose of obtaining legal advice, then that employee’s communication would not be protected by legal advice privilege. The difference between Three Rivers (No. 5) and Skandinaviska is in that in the former, BIU, having been authorized to communicate with BoE’s legal advisers, became the directing mind and thus the ‘client’ for the purposes of seeking of legal advice, whereas in the latter, the SGCA adopted a wider definition of ‘client’, holding that the directing mind or client is the Board of Directors, and the persons authorised to communicate with the legal advisers would be communicating with him by or on behalf of the client (i.e., the Board of Directors). In short, the English CA adopted the ‘specific directing mind’ test, whereas the SGCA adopted the ‘general directing mind’ test. In favour of the definition adopted in Skandinaviska, 4 arguments can be made: First, a narrow definition could result in a loss of candour in communications between employees or corporate officers who are not part of the “client group” of persons. It could eliminate candour in situations where candour should be encouraged; as where diverse members of the corporate entity would be 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. Third party communication and legal advice privilege Under the EA, it is unclear whether the extension of legal advice privilege to 3rd party communications can be justified by a liberal interpretation of the existing terms of ss.128 and 128A EA. The approaches to 3rd party communications differ in the UK and in Australia. The English position, as laid out by the English CA in Three Rivers (No. 5), is that legal advice privilege can only be claimed for communications passing between a lawyer and his client made in confidence for the purpose (which need not be the dominant purpose) of obtaining legal advice or assistance. In contrast, the Australian position is laid out in Pratt Holdings Pty Ltd v. Commissioner of Taxation [2004] FCAFC 122, where, on the advice of the solicitor, the company procured a report on the company’s financial situation from an accountant. The report was forwarded to the solicitor. The Australian Federal Court held that “legal advice privilege is capable of extending to non-agent, third party authored documentary communications” if it was made to the client for the dominant purpose of obtaining legal advice. According to Finn J, there were clear policy reasons that support extending the privilege to such 3rd party authored documentary communications: “Whether a natural person or a corporation, a party seeking to obtain legal advice may not have the aptitude, knowledge, skill and expertise, or resources to make adequately, appropriately or at all such communication to its legal adviser as is necessary to obtain the legal advice required. Such is commonplace today where advice is sought on complex and technical matters. To deny that person the ability to utilize the services of a third party to remedy his or her own inability or inadequacy unless he or she is prepared to forego privilege in the documents prepared by the third party, is to disadvantage that person relative to another who is able adequately to make the desired communication to a legal adviser by relying upon his or her own knowledge, resources, etc. For the law to provide such an incentive not to utilise the services of third parties in such circumstances is to undercut the privilege itself. It would not facilitate access to effective legal advice nor would it facilitate effective communication with legal advisers for the purpose of obtaining legal advice.” In Skandinaviska, Phang JA expressed strong endorsement by way of obiter dicta of the approach in the Pratt Holdings over the approach in Three Rivers (No. 5). According to Phang JA, “the reasoning of in Pratt Holdings appears sound and provides a sensible and a workable basis for balancing the need for complete confidentiality in a solicitor and client relationship with the need for disclosure of information which is not communicated for the purpose of obtaining legal advice. The approach in Pratt Holdings is principled, logically coherent and yet practical”. 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. Exceptions to Privilege Statutory Provisions Professional communications 128.—(2) Nothing in this section shall protect from disclosure — (a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate or solicitor in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. Illustrations (a) A, a client, says to B, a solicitor: “I have committed forgery and I wish you to defend me”. As the defence of a man known to be guilty is not a criminal purpose this communication is protected from disclosure. (b) A, a client, says to B, a solicitor: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue”. This communication being made in furtherance of a criminal purpose is not protected from disclosure. (c) A, being charged with embezzlement, retains B, a solicitor, to defend him. In the course of the proceedings B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. Communications with legal counsel in entity 128A.—(2) Nothing in subsection (1) shall protect from disclosure — (a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any legal counsel in an entity in the course of his employment as such legal counsel showing that any crime or fraud had been committed since the commencement of his employment as such legal counsel; (c) any such communication made to the legal counsel which was not made for the purpose of seeking legal advice; or (d) any document which the legal counsel was acquainted with otherwise than in the course of and for the purpose of seeking legal advice. Communications made in furtherance of an illegal purpose The main issue here is the interpretation of the word ‘illegal’. A literal interpretation might suggest that the provision only qualifies the privilege in respect of communications made for a criminal purpose. If that is 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. What about illegality of a third party? In Francis & Francis (a firm) v. Central Criminal Court [1988] 3 All ER 775, the police were investigating the affairs of a suspect whom they believed to be trafficking drugs and who used the proceeds to purchase properties for members of his family. One such beneficiary was G, a client of a law firm. The police obtained an ex parte order for the production by the solicitors of all the files in their possession relating to G’s financial transactions. The solicitors argued that the material was privileged. Lloyd LJ held that since the solicitors had conceded that ‘criminal purposes’ meant any criminal purpose, it logically followed that the criminal purpose could be that of a 3rd party. Accordingly, the materials were not privileged notwithstanding that G was neither privy to nor aware of the illegality. ‘Fraud’ observed by the advocate or solicitor Gelatissimo Ventures (S) Pte Ltd v. Singapore Flyer Pte Ltd [2010] SGHC 235 concerned an application by the Pfs to strike out certain passages in an affidavit filed by the Df, which referred to a privileged communication between the Pfs and their solicitor. The Pfs had initially applied for pre-action discovery against the Df. In response, the Df filed an affidavit alleging that the Pfs were seeking to abuse the court process by obtaining information with the ulterior motive of disclosing it to the media. In support of this contention, an email communication from the Pfs’ lawyer to the Pf was attached to the affidavit. In the email communication, the lawyer advised the Pf on the Df’s reply to the pre-action discovery request and indicated a clear intention to reveal information to the press. The email had been passed to the Df by a person who had previously been a Pf (in which capacity he received the email) but who had withdrawn from the action. The Pfs then filed an application seeking to expunge the parts of the affidavit which referred to the email. Lai J held that the historical development of litigation privilege and its underlying policy considerations were such that it did not make any sense for the “fraud exception” not to apply to it. Accordingly, the “fraud exception” applied to both legal advice and litigation privilege. In respect of the ambit of the fraud exception, Lai J held that the balancing approach adopted in Canada and Australia was best suited for resolving the question of the extent to which legal privilege should give way to other countervailing public policy considerations. Her Honour defined fraud at its core to include all forms of criminal and civil fraud. Such fraud, according to Lai J, required no balancing exercise, as no privilege can arise in respect of documents and communications made in furtherance of such nefarious purposes. On the other hand, fraud at its penumbra required the court to consider whether the purpose for which the legal advice was given was sufficiently iniquitous, and whether the policy considerations that militated against such iniquity were sufficiently important to justify the lifting of legal privilege. After conducting a survey of the common law authorities, Lai J considered the following criteria as being relevant to the balancing process: (1) the person who claims the privilege may lose his right even if he has not acted dishonestly; (2) the degree of his culpability is “an important factor”; (3) the court must evaluate claim to privilege against the public policy considerations (including the consequences of the claimant’s iniquitous conduct if his claim to privilege is upheld; (4) prima facie, the claimant will have a stronger claim to privilege if his communication is protected by both legal advice and litigation privilege; (5) the claim to privilege will generally be stronger when the conduct of the claimant was itself an issue in the 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 claimant’s improper conduct. Waiver Statutory Provisions Application of Parts I, II and III 2.—(1) Parts I, II and III shall apply to all judicial proceedings in or before any court, but not to affidavits presented to any court or officer nor to proceedings before an arbitrator. Professional communications 128.—(1) … unless with his client’s express consent … Communications with legal counsel in entity 128A.—(1) … except with the entity’s express consent … 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. 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. Waiver in the course of discovery O 24 r 19 of the Rules of Court provide that “[w]here a party inadvertently allows a privileged document to be inspected, the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained”. Inadvertence, however, does not extend to fraud or mistake, such that inspection of a privileged document procured by fraud or given by mistake will not be considered a waiver. In Ser Kim Koi v. Fulton William Merrell [2008] SGHC 23, Prakash J held that “even after inspection, if there has been fraud or it is clear that inspection of a privileged document was given by mistake, the party who saw it may be injuncted from making use of the knowledge gained from that document”. 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 Pf’s 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 employer’s 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. The position in Singapore The position in Singapore as it stands is set out in Tentat and Gelatissimo. Tentat concerned an email communication attached to the affidavit of the holding company’s former officer, THH, who obtained a copy of it in his capacity as such. THH was also a shareholder and director of the Df. The Pf applied for a declaration that the email communication was privileged, and for the Df to be restrained from using it in separate proceedings brought by a company related to the Pf against the same the Df. Kan J, adopting May LJ’s pronouncement in Goddard, held that a 3rd party in possession of a copy of a privileged document is entitled to adduce it in evidence, subject to the right of the person claiming privilege to apply to restrain its use prior to it becoming a part of the record in any court proceedings or being released into the public domain. On the facts of Tentat, even though THH had referred to the email communication in his affidavit, it had yet to be presented as evidence at the hearing of the application. Accordingly, the use of the privileged email communication was restrained. In Gelatissimo, Lai J went one step further by stating that Kan J had rejected the principles stated in Calcraft in favour of a more protective attitude towards privileged documents. Similarly applying Goddard v. Nationwide Building Society, Lai J went on to hold that a party seeking to adduce secondary evidence of privileged documents could be restrained from doing so where the document had not yet become a part of the record in any court proceedings or had otherwise been released into the public domain. It is noteworthy that Lai J’s interpretation of Kan J’s treatment of Calcraft is somewhat doubtful, since it was quite clear that Kan J, as well as May LJ in Goddard (which his Honour apparently endorsed), limited the application of Calcraft to cases where there was no timely objection by the party claiming privilege. At this juncture, the principles that can be extracted from the common law authorities are as such: 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. Are the common law principles consistent with the EA? Sections 128 and 128A prohibit the disclosing of privileged communications while s.131 grants the privilege holder the right not to reveal them. The EA does not impose restrictions on persons who come into possession of privileged documents – ss.128, 128A and 129 only prohibit advocate and solicitors, legal counsels, as well as their employees, clerks and interpreters from disclosing privileged communications. Employing the statutory interpretation canon of expressio unios est exclusio alterius, persons who do not come within these provisions would be free to disclose them unless they are restrained from doing so under separate principles of law. Accordingly, the common law is not inconsistent with the EA. Is the court’s jurisdiction to grant relief a legal or an equitable one? Legal professional privilege is a right which justifies protection. Accordingly, the use or disclosure of the privileged information will be granted as of right. As Nourse J said in Goddard, “[t]here is no discretion in the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the communication, the justice of admitting or excluding it or the like. The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute”. Nourse LJ’s formulation is somewhat qualified and appears to be an extreme version of the maxim “equity follows the law”. In some ways, it appears that Nourse LJ’s formulation is that the remedy is grounded in a semi-legal and semi-equitable jurisdiction, although this interpretation would be highly unorthodox. On the other hand, Scott J held in Webster that once a privileged document or a copy of it passed into the hands of another party to the action, prima facie the benefit of the privilege is lost. However, if the privileged document was also a confidential document, it will be eligible for protection against unauthorised disclosure or use by the court in the exercise of its discretion. In this connection, his Honour said: “I would, with the greatest of respect, find some difficulty in [the] proposition as stated by Nourse LJ … There is never any question of an absolute right to have confidential information protected.” As to how the court will decide whether to exercise its discretion, Scott J held that “[t]he court must, in each case where protection of confidential information is sought, balance on the one hand the legitimate interests of the plaintiff in seeking to keep the confidential information suppressed and on the other hand the legitimate interests of the defendant in seeking to make use of the information … Whether the unauthorised use of confidential information or of confidential documents will be restrained is essentially discretionary and must … be dependent on the particular circumstances of the particular case. The privileged nature of the document in question is bound to be a highly material factor but would not … exclude from the scales other material factors.” Locally, Tentat and Gelatissimo both did not address the issue of the balancing operation and the conditions for granting the injunction, nor did both judges make any reference to the court’s equitable jurisdiction to restrain the use of the privileged information. Lai J, however, noted in Gelatissimo at [16] that “privilege and confidentiality are two separate legal doctrines that entail different legal consequences”. 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 court’s 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 Legal Professional Privilege Litigation Privilege Rationale Phang JA said in Skandinaviska that litigation privilege “is not directed at, still less, restricted to communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor–client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and fear of premature disclosure.” Does s.128/128A Recognise Litigation Privilege? In Skandinaviska, Phang JA ruled that “litigation privilege exists by virtue of the common law. Since … s.131 of the Act … clearly envisages the concept of litigation privilege, there is no inconsistency between the common law and the statutory provisions. Accordingly, s.2(2) of the Act would apply to confirm the applicability of litigation privilege at common law in the local context … as there is no inconsistency between litigation privilege at common law and ss.128 and 131 read together”. Subsequently in Gelatissimo, Belinda Ang J seemed to have misunderstood Phang JA’s pronouncement in Skandinaviska, interpreting the SGCA to have held instead that “litigation privilege exists in s.131 of the EA by virtue of the common law”. It is unclear that the Phang JA meant to treat s.131 as the source of litigation privilege in Singapore. It is submitted, instead, that his Honour merely observed that s.131 “envisages the concept of litigation privilege”. While s.131 clearly envisages that the privilege may be claimed in court, and therefore in the context of litigation, the privilege it provides for is legal advice privilege rather than litigation privilege: s.131 covers only communication between lawyer and client (and not 3rd party communication) and it does not require that the communication be made for the dominant purpose of litigation. Accordingly, the better view of the ruling by the Phang JA is that the common law on litigation privilege applies in Singapore by virtue of s.2(2) of the EA and not that the source of litigation privilege is s.131. Principles and Application In the HL decision of Waugh v. British Railways Board [1980] AC 521, it was held that if the dominant purpose for which legal advice had been sought and obtained was for anticipation or contemplation of litigation, then the advice concerned would be protected by litigation privilege. The ‘dominant purpose’ test in Waugh was endorsed by the SGHC in Wee Keng Hong Mark v. ABN Amro Bank NV [1997] SGHC 10. In that case, a bank commissioned a report in response to allegations that it had breached its duty. Rubin J held that the ‘dominant purpose’ test was not satisfied as litigation was only one of the purposes. Similarly in Brink’s Inc v. SIA Ltd [1997] SGHC 306, SIA commissioned a report in response to a claim against it for loss of goods. Selvam J held that the dominant purpose test was not satisfied as litigation was only one of the purposes in contemplation. 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