HEARSAY REFORMS

• Date: 01 December 2014
• Author: CHIN Tet Yung BCL (Oxford), Dip Econ (LSE), LLB (London); Barrister (Inner Temple); Associate Professor, Faculty of Law, National University of Singapore. By this means [adducing hearsay statements] you may have any man's life in a week; and I may be massacred by mere hearsay[1]
• Published date: 01 December 2014
• Citation: (2014) 26 SAcLJ 398

Simplicity in Statute, Pragmatism in Practice?

This article examines the new hearsay scheme introduced in 2012, discussing the rules as well as the principles and policies underlying them. It argues that the hearsay scheme, while bringing welcome changes, leaves many problems unresolved, and adds new problems, especially in the form of widely phrased discretions and indeterminate rules.

I. Introduction

1 This article attempts to show that while the new hearsay scheme is definitely an improvement over the previous schemes, it suffers from not addressing several existing problems concerning the concept of hearsay and its regulation in the Evidence Act.2 The new scheme also adds some new problems in the name of flexibility. The discretion to exclude otherwise admissible hearsay “in the interests of justice” is particularly problematic due to its high generality and lack of guidance from the legislation. Also some of the provisions are capable of interpretation that might be inimical to accused persons in criminal trials. The article examines some fundamental principles that should govern the admissibility of hearsay and ends with some suggestions for further improvement.

2 Hearsay is traditionally treated as an inferior form of evidence as compared with direct testimony by witnesses. The preference for the latter is often referred to as the “primacy of orality” principle. This

principle was fiercely observed in adversarial trials until the second half of the 20th century when many common law jurisdictions relaxed their exclusionary rule of hearsay thus making hearsay easier to adduce as evidence. Singapore has followed suit in 2012 in “relaxing” the rule, and the hearsay “exceptions” in the Evidence Act received their first major restyling since its original enactment in 1893.3 The changes appear more incremental than radical, at least in form. This approach was to some unduly cautious,4 given the more drastic approaches in favour of admissibility in other jurisdictions.5 The exclusionary rule is now subject to new exceptions, while an existing exception (business records) is significantly extended. But there is an important difference between the original and the 2012 exceptions (“new exceptions”): the new exceptions6 focus on the unavailability of the declarant7 alone and not on the nature of the statement (as is the case with the old exceptions). The original approach had essentially two steps: first, it must be shown that the declarant could not be called as a witness,8 and second, that the statement fell within one or more of the “exceptions” based on the nature of the statement adduced, ie, it was a dying declaration or a declaration against interest, etc. This has led to much criticism as vital and reliable hearsay evidence not falling within the exceptions might be excluded.9 It is said that the original rule and exceptions lacked flexibility and that this made the application of the rule both under-inclusive and over-inclusive, as well as being overly technical and difficult. It also led to judges circumventing the hearsay rule through the use of circumstantial inference or classifying statements as real evidence rather than hearsay. Other jurisdictions, notably Canada, evolved a so-called principled approach to hearsay utilising the concept of reliability. All in all, there was a concerted effort to reform the hearsay rule and exceptions in the common law jurisdictions.

3 Singapore restyled the rule by including new exceptions together with a newly conferred judicial discretion to exclude hearsay (and opinion) evidence “in the interests of justice”, while retaining the old exceptions. The intention was to introduce a more flexible hearsay regime, one that was capable presumably of more correct results. Should these new exceptions that allow for hearsay to be admissible simply on proof that the declarant is absent, that admit hearsay by agreement (applying also to criminal cases) and allow hearsay by witnesses reluctant to testify10 be welcome? Not unreservedly so, as this article purports to show. In part, their statutory formulations give rise to new problems. Uncertainty is bound to follow in the wake of this new legislation that seemingly leaves the judges with a lot to do in terms of determining the meaning and scope of the new exceptions, their relationship to the old, and most indeterminate of all, the proper exercise of the newly conferred discretion to exclude hearsay “in the interests of justice”.

4 Old issues also remain unresolved: “hearsay” remains stubbornly undefined, and the scope of the exclusionary hearsay rule technically untouched; the somewhat dated view of implied assertions11 earlier embodied in the Criminal Procedure Code12 (“CPC”) is retained. There is no special provision for multiple hearsay, suggesting that it may be regarded as a matter of weight and not admissibility.13 Unlike the previous schemes, the current rules now apply to both civil and criminal cases. However, the use of an accused person's statements taken by law enforcement agencies continues to be governed by the CPC,14 which

received its “makeover” in 2010.15 This “division of labour” between two codes still raises the question as to what the prevailing law is in the case of overlap and conflict.

5 How may the current approach to hearsay be described? Hearsay should now be presumptively admissible at least where:

(a) notice is given to adduce, and the hearsay falls within one or more of the categories (which have been re-enacted, redefined and added); OR

(b) parties agree on its admissibility, AND

the judge does not exercise her discretion to exclude “in the interests of justice”.

But the rule itself remains an exclusionary rule, if only in name. The “new exceptions” to the rule are widely worded, and at first sight, one might conclude that the exclusionary rule is all but swallowed by them. However, it is not a total abrogation, and care must be taken to examine how the new scheme will operate and whether it will be much better than the ones it replaces.

6 It is argued that while the new scheme is an obvious improvement from the ones it replaces, its deceptive simplicity still leaves several pre-existing problems unresolved and, for good measure, has added some new ones. This article explores the state of the new law of hearsay, which by the Government's own admission, is still a work in progress. The following issues are specifically addressed:

1. (a) hearsay as a normative construct — defining hearsay;

2. (b) the “new exceptions” and the principles of reformulation;

3. (c) the judicial burden: rules versus discretion; and

4. (d) the fate of hearsay — the 2012 Scheme: not the last word?

First, however, it is useful to recount the problems with the “old” law.

7 Prior to 2012, the law of hearsay in Singapore could only be described as an incongruous set of rules provided for in both the Evidence Act and the former Criminal Procedure Code, setting up two regimes for the admission of hearsay in criminal cases (in 1976), and retaining the provisions of the original Evidence Act (circa 1872) for civil cases: the result was contrary to the experience in most common law countries. Singapore was the only common law jurisdiction where

hearsay was theoretically more “admissible” in criminal cases than civil. There was an obvious failure to appreciate the nature of the provisions inserted into the Criminal Procedure Code in 1976, which was the English Criminal Law Revision Committee's response to bringing the rules in criminal cases in England in line with those (as far as possible) in civil cases (the English Civil Evidence Act 1968).16 The 1976 scheme stood out like a sore thumb in Singapore law for 35 years, and was hardly used, as it was overly elaborate, both in its normative requirements and practical applications. Happily that scheme has now been repealed by the 2012 Act, and consigned to legal history.17 There is, once more, a single hearsay scheme in the Evidence Act applicable to both civil and criminal cases.

8 The law of hearsay in civil cases, based as it was on 1872 English common law rules, resulted in hearsay being “excluded” once parties adducing it did not lay the basis for admission in terms of the declarants' unavailability to give evidence, as required by the “preconditions” to the then ss 32 and 33. These preconditions had to be satisfied in all cases, and no distinction was made, as in other jurisdictions, between cases where it was considered safe to adduce hearsay despite the availability of the declarants to give evidence, and those where it was necessary to require the party adducing such hearsay to show that the declarant was unavailable before such hearsay was allowed.18 A failure to show the declarants' unavailability would result in exclusion of the hearsay statement, and severe consequences might follow on the outcome of a case, as Jet Holding Ltd v Cooper Cameron (Singapore) Pte Ltd19 so vividly illustrated. This was so even though the declarants might not be identifiable and, more importantly, helpful even if called as witnesses.

9 In so far as the role of the judge vis-à-vis hearsay is concerned, there is a duty on her to rule on whether it is admissible or not, even when both parties were either unaware of it, or did not object to its admission. It is said that this duty is imposed through the mandatory nature of the statutory requirements20 though it might also be founded

on a common law duty on the judge to act only on admissible evidence. In Keimfarben GmBH & Co KG v Soo Nam Yuen,21 a document purporting to be a letter of offer from a third party to purchase a disputed consignment of paints was tendered to prove the value of the consignment. As the offeror (maker of the document of offer) was not called to give evidence of the price he offered, the judge ruled the document of offer inadmissible by reason of it being hearsay despite the fact that...