EVIDENCE (AMENDMENT) BILL

Order for Second Reading read.

The Minister for Law (Prof. S. Jayakumar): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Sir, this is quite a complicated and technical Bill and I seek the indulgence of Mr Speaker and the House as I take the House through the main provisions of the Bill.

Mainly, the Bill seeks to amend the Evidence Act for the following purposes:

Firstly, to provide for the admissibility and weight of computer output produced by any computer or network as evidence in both civil and criminal proceedings.

Secondly, to enable Rules to be made for the filing and receiving of evidence in court by the use of information technology (electronic filing).

Thirdly, to allow accurate reproductions of documents produced by electronic, electrochemical, chemical, magnetic, optical or other technical processes to be admissible as secondary evidence.

Fourthly, to allow voluminous or complex evidence to be given in the form of charts, summaries or computer output in both civil and criminal proceedings; and

Fifthly, to allow evidence to be given by live video or live television links in certain civil proceedings.

Most of the amendments deal with these matters which I have just mentioned. But there are two other separate amendments in the Bill. Let me say what they are at this moment. I will elaborate later.

These two amendments are:

(a) to reverse the common law rule (known as the rule in Hollington v Hewthorn [1943] English case) which excludes evidence of judicial findings of convictions or acquittals in subsequent cases; and

(b) to abolish the irrebutable presumption of law that a boy under the age of 13 years is incapable of committing rape.

I will now talk about the first category of amendments.

Replacing antiquated provisions

These amendments provide for the admissibility of information stored in computers, and the use of information technology in our courts. They are intended to replace the existing scheme to be found in sections 35 and 36. Those provisions were more suited to mainframe computers sited in specially designed premises, especially in the 1960s and 1970s. The use of personal computers at home and in the office is now common place, as is the linking of such computers to form vast networks that allow information to be entered, stored, altered and retrieved by a host of users in a global environment. Developments in document imaging technologies have also enabled users to keep images of their paper documents in electronic media, thereby allowing them to save storage costs as the paper originals could then be destroyed. The law has therefore to be updated to facilitate the wider use of these new technologies. Such a law, of course, has to strike a balance between guaranteeing the reliability of evidence produced by such technologies and ensuring that the admissibility of such evidence is not hampered by complicated conditions and procedures.

Need for computer-related amendments

These amendments are required as large institutions such as the Inland Revenue have already implemented document imaging technology for the processing of taxpayers returns. Many business transactions are now conducted on-line, particularly through the use of Tradenet. Members will also know that the Technology Court has been set up, and many other public and private sector institutions are already working through electronic networks, dispensing with paper transactions and documentation.

Scope of sections 35 and 36

The amended and re-enacted sections 35 and 36 are wide enough to cover traditional computer print-outs as well as multi-media and graphical outputs. The provisions can cover outputs from a stand-alone or portable computer and those from local area or wide area networks. They also apply to both civil and criminal proceedings. In general, both the private and public sectors are subject to the same requirements unless special circumstances warrant otherwise.

Three ways to admit computer output

The amended sections 35 and 36 will provide for three different ways to admit computer output. Briefly, they are, firstly by way of express agreement between the parties to the proceedings (or between public prosecutor and defence counsel). The second way is by showing that the computer output came from "an approved process" (where the network is independently audited). The third route is by showing that in a particular case, the output came from a source that is working properly at all material times.

Express agreement

If I may elaborate on these three matters. Express agreement can be made at any time, even during the proceedings. Section 35(2) provides that in criminal proceedings, the accused must be represented on this issue. That is a safeguard. This is because there should be no room for an allegation that the prosecution tricked the accused into agreeing to admit such evidence. This practice follows that already existing in the Criminal Procedure Code as regards formal admissions. An agreement can be vitiated by proof of duress, fraud, misrepresentation or mistake.

Approved process

Let me turn to the second method, the approved process. Where a computer output is produced from an "approved process", the presumption is that the output is accurate unless proven otherwise. Such a process is approved when it is audited and certified by an agency that is appointed by the Minister in accordance with the regulations. The audit will need to be carried out by an independent body whose audit will be based on a set of compliance criteria established by the authority. Any institution that takes the necessary steps to obtain certification as an approved process may, of course, then destroy their paper documents with confidence.

Certification by Systems Operators or Information Systems Managers

Thirdly, where computer output is tendered without express agreement or "approved process" certification, the party tendering such output will have to show through an affidavit and certificate from the Systems Operator (Sysops) or Information System Manager (IS Manager) that there is no reason to doubt the truth or reliability of the output, and that at all material times, the system was operating properly or, if not, that the accuracy of the output was not adversely affected.

Where there is no Systems Operator or the IS Manager available, the section allows an expert with access to the system to provide the necessary certification. This provision can also be used where the Systems Operator or the IS Manager is suspected, for example, of computer misuse or other fraud and therefore refuses to cooperate with the authorities. If I may give an example. Police computer experts may, for example, gain access to a system belonging to a suspect purveying electronic pornography.

Court may call for further evidence

Sir, where a court is not satisfied with the accuracy of the output, it may call for further evidence under section 36. Such evidence may be provided by affidavits or oral examination of the relevant operators and persons. Evidence may also be given by an independent expert appointed or accepted by the court. If the court is still not satisfied, it may call for oral evidence from the deponent of an affidavit.

New section 36A on Rules of filing and receiving evidence and documents in court by using information technology (Electronic Filing)

Let me now turn to new section 36A. It enables the Supreme Court Rules Committee to make Rules to provide for the filing and receiving of evidence and documents in court by the use of information technology. It will enable the legal framework to be constructed for electronic filing of court documents and the Technology Court.

New section 62A on video link testimony

Let me now turn to new section 62A which allows a witness with leave of the court to give evidence through a live video or live television link in civil proceedings. This will be allowed in any of these circumstances: where the witness is below 16 years of age; where it is expressly agreed between the parties to the proceedings that evidence may be so given; where the witness is outside Singapore; or where the court is satisfied that it is expedient in the interest of justice to do so.

This section is intended to create a proper legislative framework and to clarify and enlarge the court's powers in relation to evidence given by live video and television links. Let me clarify that it does not mean that the Court did not have jurisdiction to order the evidence of a witness to be taken by live video or television links in civil proceedings before the enactment of this amendment.

I might add, Sir, that the court must not make an order for video link testimony or include a particular provision in such an order, if to do so would be inconsistent with the court's duty to ensure that the proceedings are conducted fairly for the parties.

Secondary evidence - section 65(b)

If I may move to section 65(b). The types of secondary evidence have been increased to include computer output, to ensure the proper operation of other admissibility sections. A new illustration has been added to that section to show clearly the nature of the output which will be accepted as judicial evidence. That illustration reads:

"(ba) A copy of a document in the form of a print-out, or image on a monitor screen, retrieved from a magnetic or optical storage device, such as a tape, hard disk, laser-disc or CD-ROM, is secondary evidence of the contents of the document if it is shown that the copy retrieved from the storage device satisfies the conditions providing for the admissibility of such output."

The amendments to this section will ensure the admissibility of such output as secondary evidence where the conditions for the use of such evidence are justified, eg, where the original has been destroyed.

Section 68A - Manner of giving voluminous or complex evidence

I move on to new section 68A. This amendment facilitates the use of multi-media technology in the courtroom of the future in the presentation of voluminous or complex evidence. An important safeguard which has been built into this provision is that any relationship among facts or opinions which asserted in the presentation of such complex materials must be subsequently proved by evidence that is otherwise independently admissible.

Section 45A - Reversing the Rule in Hollington v Hewthorn

Let me move to new section 45A concerning the rule in Hollington v Hewthorn. Section 45A is to reverse a common law rule (known among lawyers as the rule in Hollington v Hewthorn, an English case) that operated to exclude evidence of judicial findings of convictions or acquittals from admissibility in subsequent cases. This common law rule states that the evidence in an earlier criminal case cannot be admitted against the defendant in a later civil trial, although, as is known, the standard of proof is higher in a criminal case. For example, a criminal conviction for dangerous driving is inadmissible as evidence of negligence in a civil action for causing personal injuries to the other driver. Reversing this rule means that judicial time and legal costs will be saved by not having to litigate all over again issues which have been decided by another court in previous proceedings. The amendments, Sir, on this matter are similar to provisions in the English and Australian legislation.

Section 115 - Abolition of irrebuttable presumption that boy under 13 years of age is incapable of rape

I move on to the amendment to repeal section 115. Section 115 is repealed to abolish the irrebuttable presumption of law that a boy under 13 years of age is incapable of committing rape. This archaic rule is inconsistent with the realities of this day and age with children reaching physical maturity at an earlier age. The equivalent common law rule in the United Kingdom was recently abolished by the Sexual Offences Act 1993. Of course, the possibility of a rapist below 13 years of age is remote, but such a young rapist, if the case ever occurs, ought not to go off completely scot-free merely because of this technicality in the law.

Drafting of proposed amendments

Sir, the amendments were drafted by a committee led by the Dean of the Law Faculty, comprising members from the Judiciary, the Attorney-General's Chambers, MINDEF Legal Services and the universities. They considered other comparable legislation from Australia, Canada, Malaysia, New Zealand, South Africa, United Kingdom and the USA.

Consultations with relevant organisations

The Judiciary, National Computer Board, the Auditor-General, the Ministry of Information and the Arts and the Ministry of Finance have been consulted and they support the relevant amendments.

The Law Society and the Institute of Certified Public Accountants have also been consulted and many of their views have been taken into account in the final draft of the Bill.

Conclusion

To conclude, Sir, I believe these amendments will provide a good legislative framework for the admissibility and use of computer generated evidence which we can expect to become increasingly important in today's era of information technology. It will bring our Courts into the forefront of information technology with the use of computer technology in the form of computer generated presentations and graphics in our Technology Courts. The proposed amendments also take into account further developments in computer and information technology in the coming years and into the 21st Century.

Sir, I beg to move.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Prof. S. Jayakumar].

Bill considered in Committee.

[Mr Speaker in the Chair]

Clause 1 -

The Chairman: In page 1, line 4, the citation year "1995" will be changed to "1996". This will be done.

Clause 1 ordered to stand part of the Bill.

Clauses 2 to 9 inclusive ordered to stand part of the Bill.

Bill reported without amendment; read a Third time and passed.