Second Reading Speech by Minister for Law, K Shanmugam, on the Evidence (Amendment) Bill

14 Feb 2012 Posted in Parliamentary speeches and responses

Introduction

1. Mr Speaker, Sir, I beg to move, “That the Bill be now read a Second time.”

2. Today’s amendments enhance the court’s discretion to consider relevant evidence by widening the admissibility of:
   1. computer output evidence
   2. hearsay evidence, and
   3. opinion evidence.

3. At the same time, other amendments deal with procedural justice:-
   1. The confidentiality of legal advice is enhanced by widening legal professional privilege.
   2. A rule on the evidence of character in rape cases will be repealed.

4. This Bill has benefited from:-
   1. the views of professors at the Law Faculty of the National University of Singapore;
   2. the 2003 consultation paper and the 2004 report on computer output as evidence, by the Technology Law Development Group of the Singapore Academy of Law;
   3. the 2011 report on opinion evidence by the Law Reform Committee of the Singapore Academy of Law; and
   4. other legal stakeholders.

5. I thank all who have contributed.

6. Let me now explain the key amendments.

Computer output evidence

7. Clauses 3, 7, 9, 10, 12 and 13 reform the law on computer output evidence.

8. The current framework for the admission of computer output evidence is found in sections 35 and 36.

9. They were introduced in 1996.

10. Computer technology was then in its infancy.

11. A cautious approach was therefore taken.

12. Currently, short of agreement between parties, computer output can be admitted only if:
    1. It is produced in an approved process; or
    2. It is shown to be produced by a properly operating computer which was properly used.

13. This is a somewhat cumbersome and not consonant with modern realities.

14. With the benefit of experience, we can say now that computer output evidence should not be treated differently from other evidence.

15. Sections 35 and 36 are therefore repealed.

16. In addition, there will be presumptions facilitatingthe admission of electronic records.

17. For example:
    • Where a device is one that, if properly used, accurately communicates an electronic record,
    • It will be presumed that an electronic record communicated by that device was accurately communicated.

18. Further, documents in the form of electronic records will be treated as primary evidence.

Hearsay

19. Clauses 5, 6, 11 and 19 deal with the admissibility of hearsay evidence.

20. The hearsay rule provides that an out-of-court statement shall not be admitted as proof of its contents, unless the maker of the statement is produced in Court.

21. The rule has been much criticised and exceptions have been carved out.

22. Strong views have been expressed to us that the hearsay rule should be abolished.

23. The present amendments however do not go that far.

24. There is still a core of sense in the hearsay rule – prima facie,a statement should not be admitted to prove the truth of its contents if its maker cannot be cross-examined as to its veracity.

25. What we have done is to introduce more flexible exceptions to the hearsay rule.

26. Section 32 is amended, so that the exceptions in that section will no longer br predicated on the unavailability of the maker.

27. The business records exception in section 32(b) is extended.

28. Existing exceptions under the Criminal Procedure Code 2010 will now be moved to the Evidence Act; they will now apply to both civil and criminal proceedings.

29. The Court is given a residual discretion to exclude hearsay evidence in the interests of justice.

30. This ensures that the expanded exceptions are not abused.

31. This is in addition to the Court’s inherent jurisdiction to exclude prejudicial evidence.

32. A party who intends to rely on hearsay evidence would also have to give advance notice of his intent, in accordance with the relevant rules of procedure.

Expert opinion

33. Clause 8 deals with expert opinion.

34. Currently, expert opinion is only admissible in respect of points
    1. of foreign law,
    2. of science or art,
    3. or as to the identity and genuineness of handwriting or finger impressions.

35. This description does not exhaust the range of expert opinion which may be helpful to the court.

36. All points of scientific, technical or other specialised knowledge will now be made admissible.

37. It is also provided that expert opinion is not inadmissible merely because it is relates to a matter of common knowledge.

38. This widens the cases where the court can have the benefit of an expert’s views, if it so desires.

39. As in the case of hearsay, the court will have the discretion to exclude expert opinion in the interests of justice.

40. This is in addition to the court’s inherent jurisdiction to exclude prejudicial evidence.

Legal professional privilege

41. Clauses 4, 14, 15, 16 and 17 deal with legal professional privilege.

42. The privilege will be extended to communications with in-house legal counsel, which is made for the purpose of seeking legal advice.

43. This includes legal counsel employed by a public agencies, including the Government, the Attorney-General’s Chambers and statutory boards.

44. The privilege will apply to interpreters, and other persons, who work under the supervision of in-house legal counsel.

45. These changes allow advice to be sought from in-house legal counsel in full confidence.

46. The privilege will not:
    • protect communications made in furtherance of any illegal purpose, or
    • prevent from disclosure any fact observed by legal counsel which shows that a crime or fraud has been committed.

Character of sexual assault victims

47. Clause 18 repeals section 157(d).

48. The sub-section provides that the credit of the victim in a rape or attempted rape case may be impeached by showing that she is of generally immoral character.

49. This provision has existed since 1872.

50. It is premised on antediluvian assumptions that a sexually active woman is less worthy of credit.

51. It gives an opening for sexual assault victims to be subjected to gratuitous, traumatising and insulting cross-examination.

52. The Office for Women’s Development under the Ministry of Community Development, Youth and Sports had given us feedback that this amendment ought to be made. Likewise, AWARE also gave us feedback that this provision ought to be deleted.

53. When the amendment is made, any cross-examination of a sexual assault victim must proceed on the basis of relevance.

54. I thank both MCYS and Aware for raising this issue with us and helping us on this particular issue.

Conclusion

55. The remaining clauses relate to definitional, consequential and other minor amendments.

56. They are part of the Ministry of Law’s continuing law reform efforts.

57. Sir, I beg to move.

Last updated on 25 Nov 2012