EVIDENCE (AMENDMENT) BILL

Order for Second Reading read.

5.56 p.m.

The Minister for Law and the Environment (Mr E. W. Barker): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

The Evidence Act needs to be amended to bring it into line with the changes proposed for the Criminal Procedure Code. The Bill also seeks to clarify certain sections of the Act relating to the accused's character and his right to claim the privilege against self-incrimination and against incriminating his spouse.

Clause 3 of the Bill provides for the admissibility of statements produced by computers. It seems desirable to include this provision in the Bill because the increasing use of computers by the Post Office, statutory bodies, banks and business firms to store certain kinds of information will make it more difficult to prove certain matters, such as cheque frauds, unless it is made possible for this to be done from computers. Admissibility is subject to strict conditions, necessary to ensure that the information is reliable, as to the regular supply of information to the computer and to its proper working. Subsection (4) of section 34A in clause 3 of the Bill allows evidence by certificate in order to identify a document produced by the computer and to give particulars of its working, but subsection (5) of section 34A enables the court for special reason to require oral evidence to be given of these matters.

Section 34B in clause 3 contains various supplementary provisions relating to proof of documents, to the drawing of inferences, for the purpose of deciding admissibility, from the circumstances in which a statement was made and from the form and contents of a document, and to the weight to be attached to a statement admissible under section 34A. Subsection (3) of section 34B provides that in estimating the weight, if any, to be attached to a statement produced by a computer, regard shall be had to all the circumstances and, in particular, to its contemporaneity or otherwise and to the question whether any person who was in a position to do so had any reason to conceal or misrepresent the facts.

In 1960, section 54 of our Evidence Ordinance was amended to take away the accused's immunity from cross-examination about his other misconduct if the accused has personally or by his advocate and solicitor asked questions of the witnesses for the prosecution with a view to establishing his own good character, or has given evidence of his good character, or the nature and conduct of the defence is such as to involve imputations on the character of the prosecution witness, or the accused has given evidence against any other person charged with the same offence. Modern criminals, however, have developed a practice of giving the impression that they are respectable persons while avoiding taking any course which clearly enables the court to hold that the accused has personally or by his advocate and solicitor asked questions of witnesses for the prosecution with a view to establishing his own good character, or has given evidence of his good character within the meaning of subsection (2) of section 54 of the Evidence Act. Moreover, section 54 of the Act does not make it clear that the prosecution can adduce evidence to prove that the accused is not of good character and at what stage of the proceedings it may do so. Clause 4 of the Bill, therefore, proposes to clarify the situation and to deal with cases in which it is hinted indirectly, that the accused is a respectable person. The clause makes it clear that a co-accused, as well as the prosecution, may cross-examine the accused to rebut his claim to be of good disposition or reputation and may adduce evidence for this purpose. However, clause 6 proposes to restrict the right of the prosecution or of a co-accused to cross-examine the, accused about misconduct other than that involved in the offence charged on the ground that he has made imputations against the witnesses against him. The court shall not permit a question tending to reveal that the accused has committed or has been charged with or convicted or acquitted of any offence or that he is a person of bad disposition or reputation unless it is the opinion of the court that the question is relevant to the accused's credibility as a witness. However, this restriction does not apply to a question tending to prove that the accused has committed the offence charged or to a question which will enable a co-accused to reveal a fact which would prove that he is not guilty of any offence with which he is jointly charged with the accused.

Clause 7 restricts in two ways the right of the accused, if he gives evidence, to claim the privilege against self-incrimination or against incriminating his spouse. The proposal is that the accused should have no privilege against self-incrimination in the case of a question about the offence charged or about any other offence which is admissible as standing directly or indirectly to show that he committed the offence charged but should have the privilege in respect of other offences which are relevant to his credibility as a witness. But no privilege should be allowed if the accused has claimed to be of good disposition or reputation. On the same principle, the accused should be allowed no privilege against incriminating his wife except in relation to an offence going to his credibility as a witness.

Clauses 5, 8 and 10 of the Bill seek to abrogate the common law rule, making it obligatory for a judge to give a warning of the danger of convicting on the uncorroborated evidence of an accomplice. Since corroboration is not required as a matter of law, it follows that the conviction will not be quashed merely because of absence of corroboration; but if the judge does not warn himself the conviction will be quashed, even if there is corroboration, unless the appeal can be dismissed on the ground that "no miscarriage of justice has actually occurred". Since evidence in corroboration must be "independent testimony which affects the accused by connecting or tending to connect him with the crime", it follows that a witness cannot corroborate himself. A witness whose evidence requires corroboration, or in whose case corroboration has to be looked for under the common law rules, cannot be corroborated by a similar witness. Thus an unsworn child cannot corroborate another and one accomplice cannot corroborate another.

Members may well ask, who is an accomplice? There is no legal definition of the word. But on any view, persons are accomplices who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact or persons committing, procuring or aiding and abetting. This is the natural and primary meaning of the term "accomplice." But persons falling strictly outside the ambit of this category have been held to be accomplices; e.g, receivers have been held to be accomplices of the thieves from whom they received the goods although the receiver was not necessarily a party to the substantive crime of theft.

The common law rules have the great disadvantage' of being sometimes difficult to apply owing to technical distinctions, for example as to what kinds of evidence may he corroboration and as to whether a person is an accomplice. These difficulties have caused many mistaken rulings at trials and consequent quashings of convictions. One disadvantage in particular is that a conviction may have to be quashed if the judge holds that a piece of evidence is capable of being corroboration but the appellate court holds that it is not capable of being so. Convictions have been quashed even in cases where there was ample evidence to convict the accused because the appellate court considered that the judge might have found that the evidence was corroborated when in fact it was not, and so have thought that the danger referred to did not exist.

The reasons for exercising caution in accepting the evidence of accomplices are obvious:-

Firstly, the accomplice being a criminal, his evidence is impugned;

Secondly, an accomplice has a strong motive to remove suspicion from himself by fixing it on another;

Thirdly, if he has a spite against the accused, then, knowing all the circumstances of the crime, he will have little difficulty in making convincing false charges against him, although the accused is innocent.

But as long ago as 1836 when it was only a rule of practice that a special direction should be given as to the evidence of accomplices, Henry Joy, Lord Chief Baron of the Court of Exchequer in Ireland, published a book, On the Evidence of Accomplices, in the course of which he wrote:

`How the practice which at present prevails, could ever have grown into a general regulation, must be matter of surprise to every person who considers its nature. Why the case of an accomplice should require a particular rule for itself: why it should not, like that of every other witness of whose credit there is an impeachment, he left to the unfettered discretion of the judge, to deal with it as the circumstances of each particular case nay require, it seems difficult to explain. Why a fixed unvarying rule should be applied to a subject which admits of such endless variety as the credit of witnesses, seems hardly reconcilable to the principles of reason. (But, that a judge should come prepared to reject altogether the testimony of a competent witness as unworthy of credit, before he had even seen that witness; before he had observed his look, his manner, his demeanour; before he had an opportunity of considering the consistency and probability of his story; before he had known the nature of the crime of which he was to accuse himself, or the temptation which led to it, or the contrition with which it was followed;) that a judge, I say, should come prepared beforehand to advise the jury to reject without consideration such evidence, even though judge and jury should be perfectly convinced of its truth, seems to he a violation of the principles of common sense, the dictates of morality, and the sanctity of a juror's oath.'

The view that the present requirement is wrong is also in accordance with the views of the learned members of the Criminal Law Revision Committee of the United Kingdom whose Eleventh Report on Evidence (General) was presented to the United Kingdom Parliament in June 1972. It is felt `that it should be a matter for the judge's discretion whether or not to convict on the uncorroborated evidence of an accomplice and as long as the judge recognises who are the accused's accomplices in the case before him and treats their evidence with caution there should be no danger of a miscarriage of justice. There appears also to be no real need for retaining the rule that certain witnesses are incapable of corroborating other witnesses.

Clause 9 proposes that a previous statement made by a witness should be admissible not only to support or impugn his credibility as a witness but as evidence of the fact stated in it. The present law has caused difficulty when evidence is given that a witness made a previous statement inconsistent with his evidence given in court. Evidence that the witness did so is admissible but it is admissible not in order to prove the truth of what was said in the previous statement but only in order to neutralise, the effect of the evidence given in court by the maker of the statement. Many regard this as too subtle a distinction. Similarly, where a document used by a witness to refresh his memory is proved, it is proposed that the statement in that document shall be admissible as evidence of the facts stated in it. The law at present requires the witness who has refreshed his memory to produce and show to the adverse party the document used by him to refresh his memory and he may be cross-examined on the contents of such document but the document shall not be admissible as evidence of the facts stated therein. The above proposals, however, are subject to certain safeguards for it is provided in subsection (5) of section 145 in clause 9 that in estimating the weight, if any, to be attached to a statement admissible under this clause, regard shall be had to all the circumstances and, in particular, to its contemporaneity or otherwise and to the question whether any person who was in a position to do so had any reason to conceal or misrepresent the facts. Subsection (6) proposes that a statement admissible by virtue of this clause shall not be capable of corroborating the evidence given by the maker of the statement.

Sir, like the Criminal Procedure Code (Amendment) Bill, it is the intention to refer this Bill to Select Committee where representations will be welcome and will be given careful consideration.

Sir, I beg to move.

Question proposed.

6.18 p.m.

Mr P. Selvadurai (Kuo Chuan): Mr Speaker, Sir, these four Bills that we have before us in this House today relate to the administration of criminal justice in our courts. Whilst the provisions of the Criminal Justice (Temporary Provisions) (Amendment) Bill do not affect the substance and character of criminal trials, the provisions of the Criminal Procedure Code (Amendment) Bill, the Evidence (Amendment) Bill and the Criminal Law (Temporary Provisions) (Amendment) Bill do. They make substantial alterations, among other changes, to the law as it stands now relating to caution statements made to the police by an accused person before he is interrogated by the police, corroboration of the testimony of an accomplice, confession, and they also introduce further refinements to the rule against hearsay.

One's first instinctive reaction to the proposed changes is one of suspicion born of the fact that this is an instance of an already powerful executive branch of the State seeking to increase its powers in its dealings with the citizens. But a closer reading of the provisions of these Bills would show that apart from removing some of the fetters, presumptions and inferences that hamper the prosecution in proving its case against an accused person, they also in the process augmented the judicial power and responsibility in ascertaining the truth or otherwise of evidence sought to be proved in court. This tendency to grant greater judicial flexibility to the judge is to be welcomed.

The law relating to caution statements made by the accused to the police and to the need for corroboration of the evidence of an accomplice has so got into such a morass of technicalities that a caution required to be administered by a police officer to an accused person before he was interrogated had become a piece of catechism and it failed wholly to achieve the purpose that it was meant to achieve. The voluntariness of the accused's statement was not enhanced and the prevention of police brutality during interrogation of witnesses was not thereby automatically guaranteed.

We all know, Mr Speaker, Sir, that no crime would be solved and no criminal brought to book on the basis of purely voluntary statements made by accused persons or witnesses to the police over cups of tea. It is a hard fact of life that due to the power of terror and reprisal wielded by the secret societies in Singapore no witness to a violent crime would voluntarily come forward to give evidence against a miscreant. It is small wonder that in approximately 70% of the murder trials, convictions were obtained on the basis of caution statements that were promptly disavowed in court amidst allegations of police brutality. This must mean that despite such allegations our judges were satisfied that the offences against the accused had been proved probably true beyond reasonable doubt.

In human affairs even when the subject of inquiry was susceptible of legal proof, certainty is usually unattainable. The substitute is probability and the tribunal of fact had to decide which case was probably true and in a criminal trial probably true beyond reasonable doubt. I must also point out that the laws relating to hearsay, corroboration and the reception of caution statements were originally fashioned and laid down by the great judges of the common law in the context of jury trials when juries had at all times to be guided by judges on how to decide fairly without caprice or prejudice. Now that we do not have juries a greater latitude should be left for the free exercise of judicial reasoning and discretion and, insofar as this Bill achieves this; this House should welcome it, particularly so where over the years we have enacted laws that have in some measure taken away the business of judging questions dealing with rights of our citizens from the judiciary and placed them in the hands of the executive. This is a derogation from the judicial power under our Constitu- tion and may well be ultra vires and void. This, however, is a different question and I shall have occasion to expand on it in this House at the appropriate time.

Mr Speaker, Sir, if all of us do our work properly under these Bills, it is conceivable that the provisions we seek to introduce today may work out to be more humane to an accused person than it otherwise is today.

Sir, I support this Bill.

Mr N. Govindasamy: Sir, I suppose the hon. Member for Kuo Chuan, who is well-versed in law, is right in his pronouncement that under these Bills things may work out better than it is today. However, may I just have my own reservation on at least one clause in this Bill.

Sir, it is the judicial practice now that at a trial it is obligatory for the court to warn itself about convicting an accused on the uncorroborated testimony of an accomplice. In this Bill, if clause 8 is accepted, then it is obligatory for the court to accept the uncorroborated testimony of an accomplice. An accomplice, to save his own skin, will give all sorts of evidence in order to convict others. Acceptance of this uncorroborated evidence is a move that leaves much to be desired.

Sir, having lost faith in the investigative capabilities of the police force, we now have to rely on the evidence of only collaborators and accomplices. If I may say so, the Bill wants to take a short-cut to justice. There is no such thing as a short-cut to justice. The way to justice is always a long and burdensome one. Does this mean "Prosecution made Easy"?

Mr Barker: Sir, I do not propose to deal with the arguments here but to leave them to the Select Committee. But I would like to correct a misapprehension held by the Member for Telok Blangah who says that it is obligatory for the court to accept the uncorroborated testimony of an accomplice, and he quotes clause 8. Clause 8 says nothing of that kind. It says:

`An accomplice shall be a competent witness against an accused person; and any rule of law or practice whereby at a trial it is obligatory for the court to warn itself about convicting the accused on the uncorroborated testimony of an accomplice is hereby abrogated.'

What is abrogated is the requirement of a warning. It does not make it obligatory for the court to accept the uncorroborated evidence of an accomplice. It can, but it is not obligatory.

Sir, I would like to thank both Members for their contribution and hope to see them in Select Committee.

Question put, and agreed to.

Bill accordingly read a Second time.

Resolved,

"That the Evidence (Amendment) Bill be committed to a Select Committee consisting of Mr Speaker as Chairman and seven Members to be nominated by the Committee of Selection."-[Mr E. W. Barker].