APPROACHES TO THE EVIDENCE ACT: THE JUDICIAL DEVELOPMENT OF A CODE

• Author: JEFFREY PINSLER
• Published date: 01 December 2002
• Date: 01 December 2002

Introduction

1 Many former students will attest that the Law of Evidence was the most difficult (not a few have said “painful”) subject that they had to study in the Faculty of Law. Their teachers are not disheartened by such a reaction for it reveals a manner of study essential to the proper interpretation of a statute frozen in time in the face of the evolving common law. Some of the challenges may be exemplified by the following questions: What is the relationship between the Act and common law principles established after its enactment? Does the common law apply if the Act does not cover an evidential issue? What if a section does have some bearing on the evidential issue but appears incomplete or imprecise in the face of a related common law principle? What if the Act recognises part of a common law doctrine which has since been developed beyond the scope of the Act. What if a common law principle is not consistent with the pertinent sections of the Act but could operate in the context of another section which is not literally pertinent. What if a common law principle interferes with the framework of the Act? These difficulties are exacerbated by the demands placed on the judiciary to ensure interpretive consistency in its approach to the Act. Moreover, to the extent that the courts are willing to apply a purposive or non-literal interpretation to the Act, they have to assume the responsibility of applying their own philosophy or policy in an area of law which has been traditionally governed by the legislature.

Interpretation of a code

2 The law of evidence is (or is supposed to be) primarily dictated by a 111-year-old code1 which consolidated English law on the subject as it stood in the early 1870s.2 The Evidence Act, enacted in 1893,3 was largely based on the Indian Evidence Act of 1872 which had been drafted by Sir Fitzjames Stephen as a complete formulation of the law of evidence.4 The statute, though a code,5 is not exhaustive of the rules of evidence. Other statutes may make provision generally or in relation to specific

matters. However, it is in the nature of the relationship between the Evidence Act and the common law that considerable difficulty of interpretation often arises. In their endeavour to establish some form of symbiosis, the courts have had to take controversial approaches to the statute. The principle governing the link between the Act and the common law is formulated by s 2(2) of the Act:

“All rules of evidence not contained in any written law, so far as such rules are inconsistent with any of the provisions of this Act, are repealed.”

3 This provision was intended to exclude the operation of any court ruling inconsistent with the Act at the time it came into force.6 It has also been applied so as to exclude subsequent inconsistent common law authorities.7 The difficulty raised by s 2(2) is the precise meaning of “inconsistency”. Inconsistency can occur in different contexts. In Mahomed Syedol Ariffin v Yeoh Ooi Gark,8 Lord Shaw, in delivering the conclusion of the Privy Council, stated:

”… the rule and principle of the Colony must be accepted as it is found in its own Evidence Ordinance, and that the acceptance of a rule or principle adopted in or derived from English law is not permissible if thereby the true and actual meaning of the statute under construction be varied, or denied effect.”9

4 The courts have shown a preparedness to be more flexible when the common law rule may assist in the interpretation of a provision of the Evidence Act. In Shabban v Chong Fook Kam10 (which concerned the interpretation of a provision of the Criminal Procedure Code), the Privy Council, while acknowledging “that the law of Malaysia has to be taken from the Code and not from cases on the common law,” stated:

”… where as here, the Code is embodying common law principles, decisions of the courts of England and of other Commonwealth countries in which the common law has been expounded, can be helpful in the understanding and application of the Code.”

5 This pronouncement is not entirely consistent with the view of the House of Lords in Bank of England v Vagliano11 which considered the

resort to existing cases to be inappropriate or at least of incidental value.12Mahomed Syedol, Vagliano and Shabban represent varied approaches to establishing the balance between the integrity of a code and the judicial desire to be pragmatic or the paramountcy of statutory law and the need for flexibility. But this is too simply put, for the cases reveal a level of abstruseness which may lead one to wonder whether the formulation of a clear and precise doctrine is possible at all.

Vague and imprecise provisions

6 The common law can certainly be applied when a provision of the Evidence Act is unclear or vague and the common law is consistent with and clarifies the section. This would not be contrary to Lord Shaw’s view in Mahomed Syedol Ariffin (which assumes that the provision is clear and unambiguous making the application of the common law inappropriate)13 and would accord with the Privy Council’s view in Shabban that the common law can “be helpful in the understanding and application of the Code”.14

7 A more difficult situation arises where one has an apparently vague provision of the Act which could be interpreted in the context of a more precise common law principle. These circumstances arose in PP v Yuvaraj.15 The Privy Council had to determine the extent of proof required to rebut the presumption of corruption which arose pursuant to the Prevention of Corruption Act.16 It considered the definition of “proved” and “disproved” in s 3(3) and (4) of the Evidence Act:

“(3) 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.

(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.”

8 In the view of the Privy Council, it could not have been the intention of the Evidence Act “to abolish the historic distinction fundamental to the administration of justice under the common law…”.17 Yet, although Stephen was aware of these specific standards in civil and criminal cases,18 he indicated that the distinction might be arbitrary in certain situations19 and preferred to introduce the more flexible concept of how a “prudent man” would decide the case. He considered that “the degrees of probability attainable in … judicial enquiries are infinite, and do not admit of exact measurement or description”.20 It must follow that the Privy Council was not correct in its conclusion in Yuvaraj that the Act could not have intended to abandon the specific tests of “reasonable doubt” and “balance of probabilities.” In effect, the Privy Council imposed its own view because it could not accept what it perceived to be the imprecision of the Act’s definition of proof. The court corrected rather than clarified the Act.

9 This approach was even more apparent in Liew Kaling & Anor v PP,21 in which Thomson CJ considered the Act’s standard of proof provision to be too simplistic. His Lordship ruled that the trial judge had been wrong to apply the Act’s definition of “proved” because “it must be a matter of almost insuperable difficulty [for a jury] to appreciate such a philosophical distinction as that between believing a fact to exist and considering its existence so probable that a hypothetically prudent man ought to act upon the supposition that it does exist”. The learned judge disapproved of the judicial practice in Malaysia and Singapore of “quoting the actual words of

the Evidence Ordinance to juries”22 and applied the test of “beyond a reasonable doubt” which had been established by the English cases.23

10 Both the appellate Court24 in Liew Kaling and the Privy Council in Yuvaraj seemed to be revising rather than interpreting the Act. The approach is not consistent with the fundamental principle of interpretation of a code formulated in Vagliano, Mohd Syedol and Shabban.25 The phrases “beyond a reasonable doubt” and “balance of probabilities” are now established tests for the standard of proof in Singapore and have served the interests of justice. However, recent jurisprudence may vindicate Stephen’s view that fixed standards of proof may not always be appropriate. Apart from the issue of a higher standard of proof in civil cases involving serious allegations,26 questions have been raised about the traditional standards of proof from the perspective of both prosecution and the accused. Such a view has been propagated in the criminal context on the basis that a distinction should be made between serious and minor offences so that, in the case of the latter, the prosecution should only bear the burden of proof on a balance of probabilities.27 Conversely, the courts in various countries have acknowledged that an accused person, against whom a legal presumption operates, may (in appropriate circumstances) discharge his burden adducing sufficient evidence not amounting to proof on a balance of

probabilities.28 The currency of this view indicates that — contrary to Thomson CJ’s criticism in Liew Kaling of the impracticality of the wording of s 329— Stephen’s less than precise approach incorporates a flexibility which acknowledges the difficulties inherent in the application of fixed burdens of proof. If so, the common law should not have been so readily applied on this issue.

Omission of common law principle

Complete absence of a doctrine

11 Whereas the courts may give a specific interpretation to what they perceive to be vague or...