ADMISSIBILITY AND THE DISCRETION TO EXCLUDE EVIDENCE

• Date: 01 December 2013
• Published date: 01 December 2013
• Citation: (2013) 25 SAcLJ 215
• Author: Jeffrey PINSLER Sc LLB (liverpool), Llm (cambridge), LLD (liverpool); Barrister (middle Temple), Advocate And Solicitor (singapore); Senior Professorial Fellow, Singapore Institute of Legal Education; Professor, Faculty of Law, National University of Singapore.

In Search of a Systematic Approach

In 2012, two new provisions were introduced to the Evidence Act which empower the courts to exclude evidence of hearsay and expert opinion in the interests of justice. Additionally, the Court of Appeal has recently affirmed that the courts may exercise an independent discretion to exclude evidence in criminal cases where the probative value of an accused person's statement is overridden by its prejudicial effect. This article examines these developments and argues for a clearer and more comprehensive statutory scheme governing the court's discretion to exclude admissible evidence in civil and criminal cases.

I. Introduction

1 Recent statutory and judicial developments have had an important impact on the court's discretion to exclude admissible evidence in both criminal and civil proceedings. In Muhammad bin Kadar v Public Prosecutor1 (“Kadar”), the Court of Appeal confirmed that the courts do have a discretion to exclude admissible evidence in criminal proceedings where its probative value is outweighed by its prejudicial effect (“the probative value/prejudicial effect balancing test”).2Kadar raises the issue of the scope of the discretion to exclude and the principle(s) that should govern its operation. Should the probative value/prejudicial effect balancing test endorsed in this case be generally applicable or is it only a single factor to be considered in specific circumstances? As this test is not expressed by the Evidence Act3 (the primary statute on the law of evidence), what is its source? In his speech to Parliament, in relation to the Second Reading of the Evidence

(Amendment) Bill 2012,4 the Minister for Law (“the Minister”) referred to the court's “inherent jurisdiction”5 to exclude evidence.6 Although the Court of Appeal in Kadar referred to the court's inherent jurisdiction, it classified the court's power to reject evidence as an “exclusionary discretion”.7 If the courts have an inherent jurisdiction to exclude evidence, it should be asked whether this is a general doctrine or one that is subject to the confines set by the case law (such as the probative value/prejudicial effect balancing test affirmed in Kadar). In the interests of certainty, and considering the importance of ensuring that admissible evidence that is compromised by its unreliability is rejected, would it be appropriate to enact a new provision in the Criminal Procedure Code 20108 (“the CPC 2010") to clarify the basis and scope of the discretion?

2 These issues also resonate in the sphere of the new statutory discretions introduced by the Evidence (Amendment) Act 2012.9 Sections 32(3) and 47(4) of the Evidence Act10 (“the EA”) enable the court to reject otherwise admissible hearsay and expert opinion evidence if it would not be in the interests of justice to admit it. These are the first discretionary provisions to be introduced to the EA, and they apply to both civil and criminal proceedings. Although they have been justified as a necessary response to the expansion in scope of the admissibility provisions governing hearsay and opinion evidence,11 they do raise conceptual and practical difficulties. The absence of guidelines or principles concerning the exercise of the discretion means that the courts will have to identify the objectives and priorities of these provisions and formulate their own criteria. Distinctions may have to be made between civil and criminal proceedings because of the need for precautions against injustice in the latter sphere. The question arises as to whether the limitation of the discretion to exclude evidence within the scope of ss 32(3) and 47(4) ignores the need for a discretion to exclude evidence admissible under other provisions of the EA. Should there be a general discretion to exclude in the EA, one that is anchored by broad criteria so that the courts are provided with the flexibility to respond appropriately to the particular circumstances of every case? This leads to the further consideration of how a discretionary

mechanism can effectively operate in conjunction with the rules of admissibility and thereby enhance the integrity of the trial process.

II. Recent judicial developments

3 In recent years, the courts have had to grapple with difficult issues pertaining to the discretion to exclude evidence that is improperly obtained from an accused person. While statutory law operates to exclude an involuntary statement,12 it does not expressly provide the courts with the power to exclude improperly obtained voluntary statements. The different positions taken by the courts over the preceding five decades have been addressed elsewhere.13 In Law Society of Singapore v Tan Guat Neo Phyllis14 (“Phyllis”), the High Court, having concluded that any discretion it might have to exclude evidence did not arise on the facts (because of the absence legal impropriety),15 took the opportunity to clarify (“for the guidance of the courts in future cases”) whether the Singapore courts have the discretion to exclude admissible evidence.16

4 There is no doubt about the High Court's conclusion in Phyllis that a court has no discretion to exclude evidence merely on the basis that it has been obtained by improper means.17 The judgment was less clear about the status of the common law probative value/prejudicial effect balancing test, which was restated by Lord Diplock in the first limb of his formulation in R v Sang18 (“Sang”) (and is referred to in Phyllis as “the Sang formulation”).19 Having pointed out that the overarching principle in the EA is that “all relevant evidence is admissible unless specifically expressed to be inadmissible”,20 the High Court in Phyllis considered that as the probative value of entrapment evidence must exceed its prejudicial effect, it is admissible. Consequently, it concluded that “the Sang formulation is, in practical

terms, consistent with the EA and in accordance with the letter and spirit of s 2(2),[21] and is therefore applicable in the Singapore context”.22 This pronouncement could be read to mean that the effect of the probative value/prejudicial effect test in relation to improperly obtained evidence of the actual commission of the offence (for example, the evidence of the police officers who had entrapped the accused) is the same as the position under the EA.23 Such evidence is admissible and is not subject to the discretion to exclude which is not expressed in the EA.

5 An alternative reading of the pronouncement by the High Court in Phyllis is that it had endorsed the Sang formulation as a principle of Singapore evidence law. Earlier, in Wong Keng Leong Rayney v Law Society of Singapore,24 the Court of Appeal had acknowledged the existence of the probative value/prejudicial effect balancing test but expressly left the matter to be decided by the High Court in Phyllis.25 However, in the absence of an express power in the EA, the alternative reading of the pronouncement requires the identification of the source of the court's entitlement to exclude evidence.26 After Phyllis, the courts were resolute in emphasising the literal application of the EA and the non-applicability of extraneous principles. In Lee Chez Kee v Public Prosecutor27 (“Lee Chez Kee”), the Court of Appeal emphatically declared that the High Court in Phyllis“persuasively ruled 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”.28 This position was reiterated by the High Court in Public Prosecutor v Mas Swan bin Adnan29 (a case concerning similar fact evidence) when it construed ss 14 and 15 of the EA30 independently of the probative value/prejudicial

effect test in the Sang formulation.31 In its most recent judgment in Kadar, the Court of Appeal affirmed Phyllis as standing for the proposition that a court does have discretion to exclude evidence if its probative value is outweighed by its prejudicial effect (as stipulated in the Sang formulation). It characterised this power as an “exclusionary discretion”32 and cited academic comment to the effect that it arises from the court's inherent jurisdiction.33 The view that the court has the discretion to exclude evidence on the basis of its inherent jurisdiction was subsequently expressed by the Minister in the course of the Second Reading of the Evidence (Amendment) Bill 2012.34

III. The impact of Muhammad bin Kadar v Public Prosecutor

6 In Kadar, the first and second appellants (Muhammad and Ismil, respectively) appealed to the Court of Appeal against their convictions for murder in the course of a robbery.35 While Muhammad's conviction was affirmed, Ismil's appeal was allowed on the basis that, inter alia, the High Court ought to have exercised its discretion to exclude the first two statements that were made to a senior station inspector pursuant to s 121 of the CPC.36 The inadmissibility of these statements and the “irresolvable doubts” concerning the reliability of his other statements37 meant that the Prosecution had failed to prove Ismil's presence at the scene of the crime. Although the Prosecution changed its position in the course of the appeal by submitting that Ismil was guilty of robbery with hurt rather than murder, this charge also failed in the light of the Court of Appeal's findings on the evidence.38 The conclusion of the Court of Appeal is highly significant. Apart from clarifying the High Court's judgment in Phyllis to the effect that the courts are empowered to exclude evidence as a matter of discretion in specific circumstances, Kadar showed how the doctrine could ensure reliability by supplementing the legal test for voluntariness in the proviso to

s 122(5) of the CPC39 (at the time of the case) and currently in s 258(3) of the CPC 2010.40

7 As pointed out by the Court of Appeal in Kadar, the established law is that a statement that is voluntary is admissible, even if the procedural requirements...