PRIOR INCONSISTENT STATEMENTS: FAIRNESS, STATUTORY INTERPRETATION AND THE FUTURE OF ADVERSARIAL JUSTICE1
| Date | 01 December 2002 |
| Author | MICHAEL HOR |
| Published date | 01 December 2002 |
There has been much judicial activity in the field of prior inconsistent statements in Singapore. This discussion identifies two major themes in judicial attempts to make sense of the major amendments of 1976 which made prior inconsistent statements substanlively admissible — the need to draw the line between legitimate statutory interpretation and judicial legislation, and the need to respond adequately to the reality that the use of prior inconsistent statements (together with other like developments) has shifted the criminal process in Singapore far beyond the traditional adversarial system which was inherited from the English common law.
1 Jurisdictions claiming a common law heritage, of which Singapore is one, have traditionally traded on the assumption that there is in place what is essentially an adversarial process of settling legal disputes.2 The focus of legal regulation is the trial. Rules and principles of law, both great and small, prescribe what can and cannot be done at the trial. Little or nothing is said about what goes on before the trial — for what happens then, as the adversarial orthodoxy would have it, is not important enough to merit much attention. However, there have been significant legal developments inimical to the spirit of adversarial justice. These events concern the introduction and use of incriminatory statements made in the course of police investigations at the trial. An early and major inroad was the admissibility of confessions contained in statements given to the police in the course of investigations.3 Another watershed was reached when the Court of Appeal overruled previous authority to hold that confessions of a co-accused incriminating the accused can ground a conviction per se.4 The purpose of this discussion is to explore a third, and no less important, phenomenon — the admissibility
and use of prior inconsistent statements of prosecution witnesses, obtained in the course of police investigations and employed to incriminate the accused5 in the face of testimony unfavourable to the prosecution at the trial.6 These three developments demand a major shift in the way we should assess the relative importance of the different stages in the criminal process. The adversarial assumption that the trial is the more crucial stage is no longer correct. The vast majority of cases are decided primarily on statements obtained by the police long before the trial.7 The impressive array of rules designed to ensure fairness at the trial must be adapted and translated for use in the pre-trial process. To persist in the adversarial fiction that the pre-trial process is unimportant, and hence does not need regulation, is to have the worst of both worlds — strong protection at the trial where it is too late, and no protection at the pre-trial stages (and especially in the course of police investigations) where practically everything of moment is happening. This article tracks significant new developments in the law of prior inconsistent statements with a view to assessing their impact on the overall fairness of the proceedings to see if this fear is borne out.
2 The law of prior inconsistent statements in Singapore is complicated by unclear legislative intent in the relevant statutory provisions caused largely by the failure to rationalise existing statutes with more recently introduced amendments.8 The great amendments of 19769 fundamentally altered the law to provide for substantive admissibility of prior inconsistent statements, but little else was done to reconcile them with existing (and now co-existing) provisions which limit the admissibility of pre-trial statements in general. Problems with statutory interpretation abound and
courts have been faced with the dilemma of either following the spirit of the amendments to the detriment of the older provisions, or of adhering to the logic of the existing law and curtailing an expansive operation of the amendments. Sensitive decisions have to be made, and if they are to be made correctly, the impact of alternative interpretations on the overall fairness of the proceedings must be examined and taken to heart.
3 The vast majority of potential prior inconsistent statements which the prosecution might want to use are police statements — statements given by prospective witnesses in the course of police interviews.10 The admissibility and use of prior inconsistent statements is specifically dealt with in s 147(3) of the Evidence Act:11
“Where … a previous inconsistent … statement made by a person called as a witness … is proved … that statement shall … be admissible as evidence of any fact stated therein. …”
4 The admissibility of police statements, on the other hand, is governed by s 122 of the Criminal Procedure Code:12
“(1) Except as provided in this section, no statement made by any person to a police officer in the course of a police investigation … shall be used in evidence …
(2) When any witness is called … the court shall refer to any statement made by that witness to a police officer in the course of a police investigation … and the statement may be used to impeach the credit of the witness in the manner provided by the Evidence Act. [Emphasis added.]”
5 The problem is easily explained. Section 147(3) was introduced into the Evidence Act by the amendments of 1976.13 The old law was that prior inconsistent statements could only be used to destroy the credit or
credibility of the witness14— the amendment allows them to be used as substantive evidence. The relevant provisions of the Criminal Procedure Code were untouched by the 1976 amendments. There is no doubt that they allow the use of police statements “to impeach the credit” of a witness, but do they also allow the use of police statements as substantive evidence?
6 For a long time after the 1976 amendments came into force, it appeared that police statements of witnesses were not admissible as substantive evidence. As recently as 1992, the Court of Appeal in Somwang Phatthanasaeng v Public Prosecutor15 ruled in no uncertain terms (in the context of police statements) that:
“We do not think that the principle of law is in any doubt: a previous statement made by an accused which has been used to impeach his credit, is only admissible for that limited purpose, ie to impeach his credit, and not as substantive evidence of the content thereof. [Emphasis added.]”
While this pronouncement has yet to be definitively overruled, it now seems fairly clear that the tide has turned and that if the issue were to be re-visited in the Court of Appeal, it would probably be decided in favour of the substantive use of prior inconsistent police statements.16 Representative of this new line of cases is Public Prosecutor v Sng Siew Ngoh which articulates most clearly the reasons for this change of heart.17 A number of them are given and it is worth our while to investigate them in some detail. They are conveniently divided into two kinds of justification.
7 The first set of reasons tries to foreclose the issue at “surface level” statutory interpretation — if the legislature has addressed the matter, then whatever the pros and cons, that must still be the law. Chief Justice Yong Pung How said:18
“[Section] 122(2) specifically provides for the use of prior inconsistent statements … [I]t is contended that s 122(2) does not operate as a sufficient exception as it deals solely with the use of prior inconsistent statements to impeach the credit of the witness … [S]uch an approach is altogether too narrow. … [A]fter the introduction of s 147(3), the notion of impeachment has been altered… [T]he intention of the legislature … must be given effect to. [Emphasis added.]”
8 The problem is there is nothing to show what the intention of the legislature was. Indeed, it is most likely that the legislature never applied its collective mind to the issue. The sentiment of Professor J D Pinsler carries much force:19
“One would assume that if section 147(3) was intended to impinge so dramatically upon the long established provisions in section 122, this would have been more clearly brought out in the Parliamentary address or Explanatory statement … Section 147(3) was apparently passed without consideration of the provisions in section 122 CPC.”
9 It is not so much the “notion” of impeachment which has changed — the idea of impeaching the credit of the witness, ie persuading the court not to believe the witness, has always existed, and continues to exist. What does appear to have changed fundamentally is the consequence of impeachment. Although prior inconsistent statements in general are substantively admissible, it can surely not be so patently absurd for the legislature to have intended that police statements can only be used to impeach credit. Indeed, the plain meaning of s 122(2) inescapably allows police statements to be used only to impeach credit and nothing else. The criticism levelled at this approach was that it is “too narrow”— but “narrow” by what measure? The burden must be on those who wish to depose the only plain reading of the provision. There is no doubt that the court in Sng Siew Ngoh was anxious to extend the logic of s 147(3) into s 122(2). If it is artificial or too subtle to distinguish between impeachment of credit and substantive admissibility,20 then that must be so for police statements as for other statements. Yet what has happened to the logic of s 122 — that the admissibility and use of police statements must be closely and carefully restricted to precisely what is allowed under that section? Where is the legislative determination that the logic of s 147(3) is to override the logic of s 122?
10 In fact the legislature has not spoken, or spoken clearly enough for all of us to hear. The court assumes the role of policy maker when it intends to depart from the plain...
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