REFLECTIONS ON S 2(2) OF SINGAPORE EVIDENCE ACT AND ROLE OF COMMON LAW RULES OF EVIDENCE

• Author: Benny TAN Zhi Peng LLB (Hons) (National University of Singapore); Lecturer, Faculty of Law, National University of Singapore; Advocate and Solicitor (Singapore).
• Date: 01 December 2018
• Published date: 01 December 2018

New Discoveries on Intentions and Implications

It has been said that the question regarding s 2(2) of the Singapore Evidence Act and its effect on the extent common law rules of evidence can play a role here is perhaps the most controversial in the law of evidence in Singapore. In this piece, the author attempts to exhaustively relook at whether there is a better way to tackle this conundrum, only to find out that we have all along been mistaken as to the true draftsman of that provision. Based on this new finding, the author considers the intentions of that draftsman behind including the provision and propose a reconsidered approach to deal with any issue relating to relying on common law rules of evidence when applying the Evidence Act.

I. Background and preliminary points

1 The law of evidence in Singapore is well-known among students, academics1 and even judges2 as being tough to grasp, quite

technical, and often headache-inducing. Our rules of evidence are very predominantly found in our Evidence Act,3 which was first introduced in Singapore in 1893.4 It was essentially “the Indian [Evidence] Code adapted to the circumstances of [the Colony of the Straits Settlements]”.5 There are not many major differences between the two Acts. Every student of the law of evidence here would be familiar with Sir James Fitzjames Stephen. It was he who drafted the Indian Evidence Act6 (“IEA”), which was passed as law in India in 1872.7 In a few more years, it will be the 150th anniversary of the introduction of the IEA.

2 It is not unfair to say that the greatest source of controversy and difficulty stems from s 2(2) of the Evidence Act.8 That provision, on its face uncomplicated, states that “[a]ll 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not contained in any written law, so far as such rules are inconsistent with any of the provisions of this Act, are repealed”. To those unfamiliar with Singapore's law of evidence, it may come as a big surprise how a single provision can lead to so much difficulty, and for some, so much frustration. Chief Justice Chan Sek Keong (as his Honour then was) alluded to the root of the difficulty when he elaborated that:9

[The complexity is with] the extent to which the law of evidence in Singapore has remained frozen or static by reason of s 2(2) … Two subsidiary questions arise. The first is the scope of inconsistency contemplated by that provision. The second is whether it contemplates a cut off date for the repeal on unwritten rules of evidence (which presumably is a reference to the common law rules of evidence) …

To put it another way, the core question is: in light of s 2(2), to what extent can common law rules of evidence play a role when applying the

Evidence Act? Jeffrey Pinsler has remarked that this question is “perhaps the most controversial in the law of evidence [in Singapore]”.10

3 That is the key question because since about 150 years ago when Stephen drafted the IEA (and Singapore adopted it substantially), courts in other jurisdictions which did not codify their rules of evidence have developed, evolved, and even introduced many common law rules of evidence. Many of these changes were made to take into account developments in society, technological advancements, better understanding of psychology, etc.11 This is but a natural state of affairs for common law rules. The common law is flexible and able to evolve as and when is necessary.

4 But the Evidence Act itself has been amended only nine times12 during its 15 decades of existence. The bulk of these amendments are cosmetic, formal or technical.13 Some of the recent amendments, although more significant, related to very specific aspects of evidence law.14 The vast majority of the provisions in the Evidence Act have been untouched since they were first introduced. This state of affairs would not be that much of an issue if Singapore courts can look to the common law rules of evidence, in one way or another, to try and deal with possible inadequacies of the Evidence Act to respond to modern developments. This is where s 2(2) comes in. Everyone has so far viewed that provision as having the effect of stopping, or at least hindering, one from relying on the common law rules of evidence inconsistent with the Evidence Act's provisions, because s 2(2) has repealed these rules.15 And, in most cases, the struggle is with in what way, and to what extent, s 2(2) bars the reliance.16 Section 2(2) is a general provision and so it potentially rears its head in every issue that involves the Evidence Act.

As each day passes and the common law elsewhere develops further, it becomes more pressing to look to the common law to ensure our rules of evidence, where necessary, catch up. Yet, from the sources that we have up till now been looking at, there is reason to think that Stephen indeed intended for common law rules to play very little, if even any, role as regards issues concerning the Evidence Act.

5 So, as we approach the 150th anniversary of Stephen introducing the IEA, the present author thinks it fitting to deeply relook at this issue. In particular, given that s 2(2) is apparently the source of so much of the difficulties, it seems surprising that its genesis and purpose have never been exhaustively explored. After all, s 2(2), a provision of a statute, is itself subject to s 9A of the Interpretation Act17 and therefore, it is essential to apply the purposive approach and find out what Parliament's intention18 was in inserting s 2(2) into the Evidence Act. Did Stephen really intend, and if so, to what extent did he intend, for s 2(2) to bar a court from relying on common law rules of evidence? Perhaps most importantly, what did he mean by the word “inconsistent”? Have we looked at everything that may be relevant in helping us deal better with the conundrum?

6 As will be elaborated below,19 this endeavour led to a very critical realisation,20 which is that s 2(2) of our Evidence Act was not drafted by Stephen; it was actually by the then Attorney-General of the Straits Settlements, Sir John Winfield Bonser. And, it is in fact Bonser's writings that will illuminate the true intention of s 2(2) and what should the interaction be, if any, between common law rules of evidence and the Evidence Act.

7 In the next Part, the present author sets out in a bit more detail the key difficulties arising from s 2(2) and the role of common law rules of evidence in Singapore, and what we thought of that section up till now. In Parts III and IV, the author shows that Bonser was actually the draftsman of that provision, and discuss what he had to say about the role of common law rules of evidence with respect to the Evidence Act

and the IEA, and the implications of his position.21 Then, in Part V, based on the discovery of the true intentions behind s 2(2), the author suggests what he believes should be the approach when one is considering to rely on a common law rule of evidence in Singapore.22 In Part VI, the author provides examples of how this approach should be applied, and reconsider some of the major past cases that have had to deal with this issue.23

8 Before moving on though, it is imperative that the article deals with the issue of terminology. Because the issue regarding the role of common law rules of evidence has been challenging and multifaceted, moving forward, it would help significantly if we understand first that there are generally only two main ways in which a common law rule can play a role when the Evidence Act applies. On this, the present author adapts from the terminology and explanation provided by the Court of Appeal in Sembcorp Marine Ltd v PPL Holdings Pte Ltd24 (“Sembcorp”) with respect to construction of a contract.25 In Sembcorp, the Court of Appeal explained that contractual interpretation involves trying to understand a term that parties have expressly included in a contract or, in other words, what the parties' intentions were in including that particular term. Contractual implication involves a situation where there is no express term in a contract, that is, there is a silence on a particular issue, but based on what it thinks would have been the parties' intention, a court inserts in the contract an unwritten and a presumed term. Contractual interpretation and implication are collectively known as contractual construction.26

9 So, too, in a case where a statute (or a code such as the Evidence Act) applies, the court will inevitably have to engage in statutory construction. First, where there is a provision that deals with the issue at hand, the court will have to interpret the words of the provision, and the common law may assist in this endeavour of trying to discern Parliament's intention with respect to those words. Second, where there is no express provision that deals with the issue and the court has to fill

in the gap, the common law may come in to supplement, which is a rough analogue of contractual implication. The rest of this piece will focus on examining the question as to what extent common law evidence rules can play a role (a) in interpreting and, (b) where there are gaps in the Evidence Act that need to be filled, in supplementing, the provisions in the Evidence Act.

II. Difficulties arising from s 2(2) of Evidence Act and reliance of common law rules of evidence

A. Section 2(2) of Evidence Act

10 Why has it been so difficult to apply s 2(2) to the issue of the role of common law evidence rules? We can safely assume that the phrase “rules of evidence not contained in any written law” refers to the common law rules of evidence,27 and “repealed” means removed from existence, or no longer applicable as law.28 Those terms are straightforward. So, on its face, s 2(2) simply says that all the common law rules of evidence that are inconsistent with the Evidence Act provisions are no longer law in Singapore. The trouble is with the word “inconsistent”. As cases involving other contexts have shown...