PREVIOUS INCONSISTENT STATEMENTS: SCOPE OF SECTION 147(3) OF THE EVIDENCE ACT AND ITS APPLICABILITY WHERE THE WITNESS DOES NOT TESTIFY TO THE FACTS MENTIONED IN HIS PREVIOUS STATEMENT
| Date | 01 December 2001 |
| Author | JEFFREY PINSLER |
| Published date | 01 December 2001 |
The purpose of this article is to consider whether s 147(3) of the Evidence Act (EA),1 which automatically admits a previous inconsistent statement (put to a witness in cross-examination) as evidence of the facts it refers to, should apply to a witness who untruthfully claims to have forgotten those facts or otherwise refuses to answer questions on matters within his personal knowledge. Should the party be permitted to cross-examine the uncooperative witness (whether that witness is called by him2 or by the opposing party) on his previous statement so that, pursuant to s 147(3), the statement replaces the testimony which the witness ought to have given? In these circumstances, the application of this provision would have to be based on the argument that the previous statement is inconsistent with the witness’s statement in court of feigned loss of memory (‘I cannot remember’) or feigned lack of knowledge (‘I do not know’). This argument was accepted as valid by the Singapore High Court in PP v Heah Lian Khin,3 a focal point for discussion in this article.
It is the view of the author that the application s 147(3) to these circumstances would amount to an extension of the provision beyond its intended scope, be contrary to the framework of statutory provisions governing the admissibility of hearsay evidence, might encourage an abuse of process and could result in prejudice to the accused person or party against whom the previous statement is used. It will be argued that the proper approach is for the court to exercise its broad discretion to allow cross-examination4 so that the witness may be impeached by his previous statement. Although the previous statement would not automatically constitute evidence in the case (s 147(3) would not apply), the cross-examination of the witness on his previous statement and other evidence in the case may establish some if not all the facts in the previous
statement, or justify the court in exercising its discretion to admit the statement pursuant to s 380(4) of the Criminal Procedure Code (CPC) on the basis that ‘it is in the interests of justice for the witness’s oral evidence to be supplemented …’.5 Although there is no equivalent provision (to s 380(4) (CPC)) for civil cases, it will be argued that where, in the exceptional case, a witness is examined in chief,6 the former statement should be admitted into evidence with the leave of the court on the basis that the hearsay rule should not be applied more rigorously than in criminal cases.7
The rule against hearsay is well-established by case law and statute in Singapore. The Court of Appeal has endorsed the following definition:
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 (ie facts in issue and relevant facts) are inadmissible unless they fall within the scope of the established exceptions.8
Section 377 of the CPC states:
In any criminal proceedings a statement other than one made by a person while giving oral evidence in those proceedings shall be admissible as evidence of any fact stated therein to the extent that it is so admissible by virtue of any provision of this Code or any other written law, but not otherwise.
Therefore, a previous statement of a witness (ie, a statement made out of court) is not admissible to prove the facts to which it refers unless it comes within a recognised exception to the hearsay rule. A previous statement of a witness may be used for non-hearsay purposes in certain circumstances.9 It might be admitted to show that the witness gave a materially different version of the facts in the past. Here, the previous statement is used to reduce the significance or entirely negate the effect of his testimony concerning those facts, the rationale being that he has said something inconsistent with what he is now saying in court and therefore his evidence should not be believed. The previous statement might be consistent with his testimony in which case it might be admitted
to show the consistency.10 Here again, the previous consistent statement would only have the effect of supporting the testimony, in the same way that a previous inconsistent statement would have the effect of undermining the testimony. In either case, the previous statement, if exceptions to the hearsay rule do not apply, would not be admissible as substantive evidence.11 Another non-hearsay purpose of a witness’s previous statement is its use to refresh memory. The witness may refer to his previous statement12 for this purpose if the condition of contemporaneity is satisfied.13 The document is merely used as a tool to stimulate the witness’s memory and does not become evidence unless a provision specifically provides for its admissibility.14
The previous inconsistent statement is a formidable weapon of the cross-examiner for there is nothing quite as destructive of a witness’s testimony
as material self-contradiction. This was recognised early on by the common law which developed the method of putting a previous inconsistent statement to a witness.15 In the context of cross-examination of a witness by the party who calls him, the process was given statutory effect in 1854 by the Common Law Procedure Act16 in respect of civil cases. The provision was replaced and extended to criminal cases by s 3 of the Criminal Procedure Act, 1865:
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
The position at common law, which continues in England in relation to criminal cases,17 is that although the witness might be impeached by the previous inconsistent statement, that statement does not, as general rule, become evidence in the case. The purpose of the statement is to counteract or discredit the witness’s account of the facts in court so that his testimony is less likely to be believed or (better still from the point of view of the cross-examiner), rejected altogether.18 There are traditional reasons why the previous statement of witness in criminal proceedings is not admitted into evidence. It is not sworn or affirmed in the context of court proceedings and, therefore, the maker is not constrained by the particular legal duty to tell the truth and corresponding punishment for its breach.19 As the statement is not made in court proceedings, the trier of fact is deprived of the opportunity for assessing the witness’s credibility (at the time when the statement was made) in making its determination as to the truth of the statement. Furthermore, the witness is not subject
to cross-examination when he made the previous statement and it may be difficult to ascertain whether the statement was encouraged or induced20 in favour of either the defence or prosecution.21 As the hearsay rule excludes the statement as evidence of the facts it refers to,22 it is only admissible for this purpose pursuant to an exception to the rule.
Until the amendments in 1976,23 there were only two provisions in s 14724 and they set out the procedure for putting a witness’s previous inconsistent statement to him:
(1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
(2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he made such statement.
The wording of these provisions was substantially influenced by ss 4 and 5 of the Criminal Procedure Act 1865.25 The position at common law was
applied so that while a witness could be cross-examined on his previous inconsistent statement, the significance of the statement was limited to its effect on the testimony in court; it did not become evidence in the case. Hence, in Muthusamy v PP,26 Taylor J said:
He [the magistrate] completely misunderstood the principle of using the former statement to impeach credit and took the view that the former statement could be ‘put in’ and that the court could then choose whether to accept the unsworn police statement or the witness’s sworn statement in court as his evidence of the incident. This is utterly illegal. In no case can the former statement become his evidence.
The principle was unhesitatingly applied27 until statutory reform in 1976 altered the effect of the previous statement. In that year, the Evidence (Amendment) Act28 introduced a series of additional provisions to supplement s 147(1) and (2).29 One of these, s 147(3), states:
Where in any proceedings a previous inconsistent or contradictory statement made by a person called as a witness in those...
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