THE COURT'S DISCRETION TO EXCLUDE EVIDENCE IN CIVIL CASES AND EMERGING IMPLICATIONS IN THE CRIMINAL SPHERE

• Citation: (2016) 28 SAcLJ 89
• Date: 01 December 2016
• Author: Jeffrey PINSLER SC LLB (Liverpool), LLM (Cambridge), LLD (Liverpool); Barrister (Middle Temple), Advocate and Solicitor (Singapore); Geoffrey Bartholomew Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2016

The Violet Thread of Justice

The current state of the law governing the court's discretion to exclude evidence consists of two statutory provisions governing hearsay and expert evidence (introduced in 2012), in addition to a judicially developed discretion to exclude evidence, the prejudicial effect of which overrides its probative value. The latter “exclusionary discretion” was confirmed by the Court of Appeal in 2011 in a criminal case (involving the reliability of admissible statements) despite a series of judicial pronouncements over the preceding four years which entirely rejected it. This year (2015), the Court of Appeal took the view that an “inherent discretion” to exclude evidence might be exercised in civil proceedings. As this case was directly concerned with an action for breach of confidence, the Court of Appeal pointed out that its observations were tentative in the absence of full argument and that this area of law would have to be fully considered at a subsequent time. Nevertheless, the comments of the Court of Appeal are a critical starting point in civil proceedings and, as will be contended, may have a significant impact on the evolution of the law in the criminal sphere. The purpose of this article is twofold. First, it considers what the scope of the discretion ought to be in civil cases given the multiple issues which might arise. Second, it will be argued that the principle of exclusion in criminal cases is not limited to the prejudicial effect of evidence at trial but may extend to circumstances in which the manner of obtaining evidence is so improper that reliance on it by a court would detrimentally compromise the integrity of the judicial process. For this purpose, an important 2008 case which was regarded for some time as closing the door to the discretion to exclude evidence will be revisited for its observations on a balancing test involving the administration of justice, which might now have validity in the light of recent developments. It will be shown that a violet thread was sewn into the fabric of justice more than 50 years ago and that, despite its severing at various points in time, has re-emerged for fuller consideration.

I. Introduction and background

1 It is now well settled that there is a judicially developed discretion to exclude admissible evidence in criminal cases if the probative value of the evidence is outweighed by its prejudicial effect at trial. In Muhammad bin Kadar v Public Prosecutor1 (“Kadar”), the Court of Appeal applied this principle to the statements of the second appellant concerning the offence of murder in the course of robbery. Although the statements were admissible under the Criminal Procedure Code,2 the circumstances in which they were recorded by the police (and other incidents) had rendered them unreliable.3 The Court of Appeal concluded that the High Court ought to have exercised its discretion to exclude the statements on the basis that their prejudicial effect outweighed their probative value.4 The Court of Appeal characterised the court's power to reject admissible evidence as an “exclusionary discretion” based on the common law as represented by R v Sang5 (“Sang”) and also referred to the court's inherent power to prevent injustice.6 This power may be exercised in civil proceedings as well although the principles governing its scope have yet to be comprehensively defined. When, at the second reading of the Evidence

(Amendment) Bill in 2012,7 the Minister of Law stated that the court has a general power to exclude improperly obtained evidence pursuant to its “inherent jurisdiction” (in addition to the specific statutory powers conferred by the newly introduced ss 32(3) and 47(4) of the Evidence Act8 (“EA”), he did not make any distinction between criminal and civil cases.9 The existence of the power to exclude evidence in civil cases was most recently confirmed by the observations of both the High Court and Court of Appeal in ANB v ANC.10

2 In determining that it had the power to exclude evidence the unreliable statements of the second appellant, the Court of Appeal in Kadar considered that it was not developing new law but merely applying a principle that had been endorsed by Chan Sek Keong CJ in Law Society of Singapore v Tan Guat Neo Phyllis11 (“Phyllis”). The Court of Appeal held this view despite a series of cases12 decided after Phyllis and before Kadar which regarded Phyllis as having rejected any notion of a discretion to exclude evidence in the face of the omission of such a principle in the EA. The possible interpretations of Chan CJ's judgment have been considered in previous writings.13 One view (which was accepted in Kadar) is that Chan CJ had endorsed Sang as representing an independent principle of exclusion despite its non-recognition by the EA.14 Another interpretation is that the learned Chief Justice, who was concerned with the manner of obtaining evidence (in this case, the issue

of whether there was entrapment),15 was merely saying that Sang is consistent with the EA because evidence obtained by entrapment would always be more probative than prejudicial. Putting it another way, in the case of entrapment evidence, even if the common law discretion applied, the evidence would (by virtue of its overriding probative value) always be admissible. As Chan CJ put it: “the fairness exception [in R v Sang] has no practical effect in the case of entrapment evidence since, by definition, the probative value of such evidence must be greater than its prejudicial value in proving the guilt of the accused. … For this reason, the Sang formulation16 is, in practical terms, consistent with the EA and in accordance with the letter and spirit of s 2(2), and is therefore applicable in the Singapore context”.17 Although Phyllis was a case involving disciplinary proceedings against a lawyer (and therefore quasicriminal in nature), the importance of its observations in the context of criminal cases was underlined by the Court of Appeal in the preceding case of Wong Keng Leong Rayney v Law Society of Singapore18 (“Wong Keng Leong Rayney”), where it had declared (in the absence of full argument at the time) that a comprehensive review of the law in this area would be undertaken by the High Court in Phyllis.

3 An interesting feature of Chan CJ's judgment in Phyllis was his apparent favour of certain Australian and English cases which had developed a separate balancing test for determining how to respond to improperly obtained evidence (regardless of effect of the impropriety on the reliability of the evidence at trial). The impression given in Phyllis is that if Chan CJ had decided that he could exercise a power to exclude evidence independently of (and unrestricted by) the EA (assuming the exercise of that power was necessary),19 he might have applied the balancing test (including the factors that would be weighed) which had been approved of by the Australian High Court in Ridgeway v R20 (“Ridgeway”) and the House of Lords in R v Looseley21 (“Looseley”).22 This approach would involve balancing two competing interests of the administration of justice; namely, judicial access to all relevant evidence and the rejection of relevant evidence which has been obtained in a

manner which compromises the integrity of the judicial process. Where the latter interest overrides the former interest, the court might exclude the evidence after taking all germane factors into account.23 Although the Court of Appeal in Kadar stated that “courts also should refrain from excluding evidence based only on facts indicating unfairness in the way the evidence was obtained (as opposed to unfairness in the sense of contributing to a wrong outcome at trial)”,24 for reasons which will become apparent, this proposition ought not to be construed as an absolute denial of the entitlement of the court to reject evidence no matter how it is procured.

4 There is sufficient authority to mount the argument that the court has a discretion to exclude evidence when the manner in which it has been obtained compromises the integrity of the administration of justice. Indeed, it will be argued that in view of Chan CJ's apparent inclination towards Ridgeway and Looseley in Phyllis, and the acknowledgement by the Court of Appeal in Kadar of a discretion to exclude evidence independent of the EA, as well as the latest observations of the Court of Appeal in ANB v ANC,25 there might be a basis for arguing that the discretion to exclude evidence may be considered in circumstances beyond its prejudicial effect at trial (the circumstances before the Court of Appeal in Kadar). It will be shown that a “violet thread” has been sewn over a period of 50 years since the judgment of the High Court in Cheng Swee Tiang v Public Prosecutor26 (“Cheng”).27ANB v ANC involved an action for breach of confidence in which injunctive relief was sought. Both the High Court and the Court of Appeal in this case considered that the courts have the discretion to exclude evidence in civil cases and that it is rooted in the cases of Kadar and Phyllis. The Court of Appeal in ANB v ANC (which clarified that its observations were “tentative” in the absence of full argument) referred to this power as an “inherent discretion”, which could be exercised in civil and criminal cases in accordance with respectively applicable principles. Suffice it to say for the purpose of this introductory segment, the observations in ANB v ANC may, apart from their impact in civil cases, lay the ground for the extension of the scope of the discretion in the criminal field.28

II. Genesis of the discretion to exclude evidence in civil cases

A. Significance of the Court of Appeal's observations in ANB v ANC

5 With regard to civil cases, there now appears to be no doubt that the manner in which a party obtains evidence may be a significant factor which would be taken into account by a court in determining whether it should exercise its...