Proposed amendments to the Evidence Act

16 JAN 2012

16 Jan 2012 Posted in Press releases

  1. Overview

  1. The Ministry of Law (MinLaw) is proposing amendments to the Evidence Act (EA), which provides the framework of rules for the types of evidence that can be admitted as evidence during court proceedings. The amendments are to ensure the Act’s continued relevance.

  2. In October 2011, MinLaw conducted a public consultation of the proposed amendments to the EA. A draft Bill (see Annex A (0.1MB)) was also posted on MinLaw’s website, and key stakeholder agencies including the Supreme Court, Attorney-General’s Chambers, Law Society and Singapore Corporate Counsel Association were consulted on the proposed amendments.

  3. The feedback received was generally in favour of the amendments put forward. The provisions in the present Bill have been fine-tuned to incorporate the feedback received from the public consultation. More details of the feedback received and incorporated in the Bill can be found at Annex B (0.1MB).

  1. In summary, the Bill proposes amendments to the EA to reform five specific areas of the law of evidence:
    1. extend the benefit of legal professional privilege to in-house legal counsel;
    2. give the courts greater discretion to admit expert opinion evidence;
    3. align the rules for admission of computer output evidence with those governing other forms of evidence;
    4. broaden and align the categories of admissible hearsay evidence for both criminal and civil proceedings; and
    5. delete a provision in the EA which permits the credit of a rape victim to be impeached by proof that she is of a “generally immoral” character
  1. Proposed Amendments in the Bill
  1. Legal Professional Privilege
  1. The law recognises that documents and communications between a lawyer and client for the purposes of legal advice are ‘privileged’, and consequently protected from disclosure in court proceedings. At common law, courts in a number of jurisdictions, such as the United Kingdom and Australia, have, to varying degrees, extended the application of privilege to communications between an in-house counsel and his employer.
  1. The Bill clarifies the position in Singapore by statutorily conferring in-house counsel with the benefit of privilege. Feedback was received during the public consultation that such privilege should not be contingent on whether a legal counsel is called to the Singapore Bar or qualified in another jurisdiction, but whether he was employed in the capacity of legal counsel and whether the communication in question relates to matters of legal advice.
  1. Adopting this feedback, under the proposed amendments in the Bill, in-house counsel may enjoy privilege so long as they are employed for the purpose of giving legal advice and the communication for which privilege is claimed relates to matters of legal advice. Such privilege would also apply to public officers working as legal counsel in public agencies such as the Attorney-General Chambers, Ministries or statutory boards.
  1. This amendment will increase Singapore’s attractiveness as a location for MNCs’ in- house legal departments and enhance our stature as a hub for legal and commercial services.
  1. Opinion Evidence
  1. The current provisions of the EA only permit the use of expert opinion evidence in five areas of specialised knowledge, namely “foreign law, science or art, handwriting or finger impressions”.
  1. These limitations on the categories of admissible expert opinion evidence are unnecessarily restrictive in Singapore’s context, which no longer adopts a system of jury trial. Our judges are capable of appreciating the subtleties of expert opinion evidence and according the appropriate weight to it.
  1. The Bill thus proposes expanding the categories of admissible expert opinion evidence to allow the court to admit such evidence as long as it would be able to derive assistance from them. The court similarly has the discretion to exclude expert opinion evidence in the interests of justice.
  1. Computer Output
  1. The EA currently imposes more stringent requirements for the admission of computer output evidence 1 than other types of evidence. Examples of computer output evidence would include documents and printouts generated by computers, digital sound and video recordings produced by computers and meter readings from electronic devices. The higher threshold for the admission of such evidence was introduced in 1996 due to concerns over the reliability of evidence in the form of computer output.
  1. With technological improvement and sophistication over time, such concerns are no longer justified. Given the prevalence of electronic records, the higher threshold for computer output evidence has also presented difficulty and inconvenience for parties seeking to admit electronic evidence in court proceedings.
  1. The Bill will: (a) repeal the existing sections in the EA that impose computer output-specific requirements, and (b) allow such evidence to be subject to the same rules of admission as all other types of evidence, such as the hearsay rule 2 and the rules on authentication.
  1. Hearsay
  1. Under our law of evidence, a person generally cannot admit a statement as evidence without also calling the maker of the statement to testify in court as a witness (also known as the hearsay rule). This ensures that the veracity of a statement will be tested in court through the cross-examination of its maker. Thus, for example, if a person (A) is charged with an offence, and a witness (B) wishes to testify that he was told by another person (C) that C saw A commit the offence, B’s evidence would be hearsay evidence and would run foul of the hearsay rule.
  1. This hearsay rule is subject to certain recognised exceptions in the EA. Generally, hearsay evidence may be admitted if it is reliable or may be the only evidence available on a given issue. For instance, hearsay evidence may be admitted if it is a statement made in the ordinary course of business or a statement made by a dying person as to the cause of his death.
  1. These existing statutory exceptions have been said to be unnecessarily narrow in scope, posing difficulties for parties in court proceedings. The Bill will amend the EA to broaden the scope of the existing hearsay exceptions and introduce various new exceptions. The Bill will also seek to align the civil and criminal evidential rules on hearsay evidence to ensure that the same exceptions apply to both types of proceedings.
  1. To ensure that these broadened / new hearsay exceptions are not abused, the courts will be given an overriding discretion to exclude hearsay evidence in the interests of justice. A party seeking to rely on hearsay evidence will also generally have to give notice in advance of the use of such evidence.
  1. Credit of Rape Victims
  1. Following suggestions received from consultees, including AWARE, in the public consultation, the Bill will delete section 157(d) of the EA, which permits the credit of a rape victim to be impeached by proof that she is of a “generally immoral” character.
  1. The admissibility of a sexual assault victim’s past sexual history should depend on the relevance of such evidence to the issues in the proceedings and need not rest on an express provision to this effect. Moreover, at times, this provision has unfortunately been seen as an invitation for an accused person and his lawyers to further traumatise the sexual assault victim.
  1. Conclusion
  1. These amendments to the EA are likely to save significant legal time and costs for litigants by preventing unnecessary technical challenges on the admissibility of certain kinds of evidence. Further, they will help ensure that all the relevant evidence is before the court hearing the matter, whether criminal or civil, thus enhancing access to justice.

Annex A: Evidence (Amendment) Bill 2012 (0.1MB)
Annex B: Responses to feedback received from the public consultation (0.1MB)

[1] The EA defines “computer output evidence” to mean not just computer printouts, but any statement or representation (whether in audio, visual, graphical, multi-media, printed, pictorial, written or any other form) which is produced by a computer or translated from a statement or representation so produced.

[2] See para 15 for an explanation of the hearsay rule.

Last updated on 25 Nov 2012