REMAKING THE EVIDENCE CODE

• Published date: 01 December 2009
• Citation: (2009) 21 SAcLJ 52
• Date: 01 December 2009
• Author: CHIN Tet Yung LLB (Lon), BCL (Oxon), Dip Econs (LSE); Barrister (Inner Temple); Associate Professor, National University of Singapore.

Search for Values

This article seeks to consider whether there is a case for “remaking” the Evidence Act, which codified the 19th century English law of evidence, and if so, what values a new code should embrace. It argues that the current Act lacks a coherent value system and examines the various judicial approaches to reconcile the code with modern common law. Meta-theories justifying a modern law of evidence are also useful. Finally, the article outlines an argument that the concept of “procedural fairness” should have a central role in remaking the code.

“Procedural justice tends of its nature to be imperfect and not ideal, being the untidy outcome of past political compromises … So disputes about the just and fair political procedures and institutions will continue indefinitely, punctuated by occasional compromises.”1

I. Preliminary issues stated

1 If any statute deserves iconic status, it is the Evidence Act.2 At the turn of the century, it would have been in force for over a

hundred years3 with relatively few major amendments.4 This sharply contrasts with the massive (and sometimes frenetic)5 efforts of other jurisdictions6 to restate the law of evidence both in terms of structure and content. English case law as at the time of enactment (1872) had been the basis for the original code.7 Given the fact that much of the law was restated in the 20th century, altering not just the scope but the very nature of the rules as well in major areas such as standards of proof, hearsay and character evidence (including similar fact evidence), it is surprising how resistant the code is from change. A number of the 19th century rules were shown to be based on falsifiable psychological assumptions, dubious epistemic premises or outdated political or social mores: these were modified, overruled or repealed not just by judicial decision alone but also by legislation in other jurisdictions. However, the changes in the law of evidence here have been few and far between, and through judicial decision8 rather than legislation, though civil procedure law has undergone several important institutional changes.9 With whatever few changes that were made, the code resembles very much an historic artefact preserving much of its structure, but with new

additions by different artisans10 showing little concern for connectivity to the design and purpose of the original legislation.11 A holistic view of the whole enterprise is missing, making the task of judges and lawyers difficult in understanding and interpreting it and raising the question whether the Evidence Act — this statutory icon — should remain standing or be deconstructed and remade. Both internal and external incoherence exists in the current code, which requires attention.12 Applying the code in a modern legal system has been difficult — its provisions pose more problems than they resolve. While one cannot say that the code has “failed” to guide lawyers and courts in the admissibility of evidence, it seems that judges have struggled to make sense of some of the rules (such as the similar facts rule, the burden of proof rules, the hearsay rule) in the light of developments in the subject, both at common law and in modern legislation.13

2 Indeed, developments in the law of evidence and procedure in the common law world have gone far beyond judicial or legislative restatement. Since the ground-breaking works of William Twining on theorising about evidence and fact-finding,14 there has been an enormous expansion of writings on the subject, especially on criminal

evidence,15 and the work has also extended to the criminal trial16 and, even further, to the criminal process.17 These scholarly works employing related fields of behavioural sciences, economics, epistemology, political philosophy, probability theory and sociology all add to the general knowledge base on the subject of procedural law, including evidence law.18

3 Given these developments, why is so little attention paid to remaking the code in Singapore? To answer this, we need to evaluate the present code, the legislative and judicial ideology, and to examine whether the present values as reflected in the code would still apply in the new century. We not only have to know where we are, we need a sense of where we ought to be. As so very aptly put by Paul Roberts:

Law reform is always supposed to make things better, which implies that there must be some criterion for differentiating between states of affairs as better, the same or worse than before. Ideally, one should be able to conceptualise a pattern or model … of how things ought to be …19

4 But even if changes were made, they must still have an ideal, a direction, otherwise “every two strides taken forward might be cancelled out by two retrogressive steps in the opposite direction”. One might add that this also includes judicial development of case law, but, more importantly, it makes the point that legislative reforms need to be structured and based on sound values and policies adopted consciously and rationally. The radical changes in the law of evidence in other

common law jurisdictions have all been in the direction of a liberal tradition reinforced by norms from international conventions (especially the European Convention on Human Rights). This “rights based” approach (also associated with Packer’s “due process” model)20 is perceived to be at odds with the more conservative rules that held sway during the Victorian era,21 which corresponds more to Packer’s “crime control” model so-called.22 The latter approach is regarded as more acceptable in Singapore, which prides itself on its policy of “Asian values”, stability, safety and security and low crime, and which might be labelled communitarian values.23 The crucial question is simple enough to state, but any answer remains at best a compromise: it is whether a modern adversarial system as developed is so welded to individualism and rights discourse that it takes precedence over communitarian values, or whether communitarian interests could be fitted to exist coherently with rights, or even whether they could, in certain situations, override rights. This probably is the first task — to identify the value system that underlies the code, and then to analyse the judicial ideology towards it, and to see whether there is a case for remaking the code, and if so, what are the values that should underlie the evidence code for the 21st century.

5 Yet another reason for explaining the absence or relative slowness of change is institutional: the law of evidence is referred to famously as a “child of the jury system”24 so that there is a perception that without the jury, it could be applied more loosely, or conveniently ignored in the belief that judges could assess evidence and give it its proper weight better. In other words, in a bench trial, the goalpost is moved from admissibility to weight of evidence, and in the main, the rules of evidence governs admissibility with few rules on weight. Simply stated, the second set of “preliminary” issues concerns the issue that, absent the jury, is there a need for a law of evidence? If so, what rules should be repealed, and of those remaining, which of them needs to be

modified to operate in bench trials?25 Yet another problem that has received attention of late is the nature of the rules — should the rules be “bright-line”, that is categorical and specific in nature such that the judge is given only a very weak discretion — namely that of interpreting the highly specific norms and applying them to the fact-finding process,26 or should she be given a stronger discretion, and consequently the code worded in such a way as to state principles rather than rules from which a judge could be guided in the exercise of her discretion in working out the appropriate response in each case?

6 Following from the extended role of the judge as a fact-finder in addition to her traditional role as a trier of law, another problem is: what principles and rules should guide her in her fact-finding? The stock characteristic of the adversarial system of trial by jury is the alleged impartiality of the judge, in her only role of determining issues of law, and admissibility of evidence, leaving the parties to present their evidence, and the jury to weigh the evidence and decide on the facts. In fact, this raises several issues, the first of which is whether judges are more “suitable” at determining the truth than laymen. Secondly, in becoming a fact-finder, is the judge still subject to the rules that she must remain as passive and dispassionate as possible27? If she has a duty to find facts, and thinks that she has doubts not cleared by counsel, can she intervene with her own questions? What are the limits to judicial intervention in fact-finding? Another worrying related issue is whether the judge is able to keep the two functions of fact-finder and trier of law separate, or whether her decisions, including findings of fact, would be “tainted” by evidence she had ruled “inadmissible” earlier; in other words, a covert leakage into the fact-finding process of the judge of evidence that ought not to have been considered?28

7 These “preliminary” yet fundamental issues sketched above need to be resolved in shaping a law of evidence for a modern legal system. There are other local issues, of course, not least the problem of retaining the inclusionary approach adopted in the Act and the well-meaning but ill-conceived reliance solely on the concept of “relevancy”. The case for distinguishing between relevancy, admissibility and weight is well made out in modern evidence law. A wider issue — that of retaining the code as distinct from adopting another vehicle for the rules of evidence is a practical matter, to be decided by the appropriate legislative or judicial institution. What can be observed is that there seems to be a move to state rules of evidence (in...