Jurisdiction - Singapore
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Relaxing The Hearsay Rule.

22 February, 2012

 

 

INTRODUCTION
 
Amendments to the Evidence Act (“Act”) were passed in Parliament on 14 February 2012, setting out new rules for the type of evidence which may be admitted in court proceedings. These changes are likely to come into effect this year. One of the major changes to the Act is that judges will soon have more leeway to admit out-of-court statements as evidence.
 
HEARSAY RULE
 
In Singapore, a person generally cannot admit a statement as evidence in court proceedings without calling the maker of the statement to testify in court as a witness (“Hearsay Rule”). This Hearsay Rule ensures that the veracity of a statement will be tested in court through the cross-examination of its maker.
 
In civil proceedings, the exceptions to the Hearsay Rule are provided for in section 32 of the Act. Generally, hearsay evidence may be admitted in court proceedings only if it falls within certain recognised categories provided for in the Act (such as a statement made by a dying person as to the cause of his death, or where a statement was made in the ordinary course of business (“Business Records Exception”)). These exceptions are further subject to the overriding proviso of the unavailability of the maker of the statement (the “Availability Proviso”).
 
These existing statutory exceptions to the Hearsay Rule have been criticised as being unnecessarily narrow in scope. For example, while the Business Records Exception applies when the maker of a statement in the ordinary course of business cannot be found or has become incapable of giving evidence, the evidence is excluded when the maker of the statement cannot be identified or refuses to give evidence. Evidence of a business record compiled by a record keeper from information supplied by a transactor may also not be admitted, as admissibility of evidence is confined to first-hand reports made by the transactor himself. These pose difficulties for parties in court proceedings.
 
In criminal proceedings, the exceptions to the Hearsay Rule are contained in the Criminal Procedure Code 2010 (the “CPC”). The provision of two sets of rules in civil and criminal proceedings has been criticised for creating an anomaly in the law since the Hearsay Rule is generally applied more liberally in criminal proceedings.
 
AMENDMENTS TO THE ACT
 
To address the criticisms of the Hearsay Rule, new exceptions to the Hearsay Rule were introduced in the Act while existing statutory exceptions were broadened. Amendments were also made to harmonise the application of the Hearsay Rule in both civil and criminal proceedings.
 
Existing statutory exceptions broadened
 
Section 32 of the Act was amended so that the exceptions provided for therein will no longer be predicated on the unavailability of the maker of the statement. Instead, the circumstances set out in the Availability Proviso will themselves now constitute free-standing exceptions to Hearsay Rule.
 
The amended section 32 provides that certain statements of facts made by a person (whether orally, in a document or otherwise) may be admissible if the statement was put into writing at the request of the maker of the statement at the time the statement was made or reasonably soon afterwards. Further, where parties to court proceedings agree to admit statements in court proceedings, such statements may be admissible notwithstanding that they may constitute hearsay evidence.
 
The Business Records Exception has also been widened such that the court may admit into evidence all business records produced in the ordinary course of business which appear prima facie authentic, including:
 
(a) any information in market quotations, tabulations, lists, directories or other compilations generally used and relied upon by the public or by persons in particular occupations; and
 
(b) documents forming (in part or wholly) the records (whether past or present) of a business that are maintained or kept by any person or entity carrying out the business.
 
New exceptions to the Hearsay Rule
 
The following new exceptions to the Hearsay Rule are contained in sections 32A to 32C of the Act, which are supplemental provisions to be read together with the amended section 32.
 
(a) A protest, greeting or other verbal utterance may be treated as stating any fact that the utterance implies.
(b) A statement of opinion may also be admissible if the statement was made through direct oral evidence.
(c) Where a person is called as a witness in any court proceedings, a statement of opinion by him on a matter which he is not qualified to give expert evidence is admissible as evidence of what he perceived if it was made as a way of conveying relevant facts personally perceived by him.
(d) Where a statement is made by a person who is not called as a witness by virtue of a statutory exception to the Hearsay Rule, any evidence may be admissible for the purpose of undermining or supporting that person’s credibility as a witness.
 
Safeguards
 
To prevent abuse of the new hearsay regime, two measures have been introduced.
 
First, the courts have a residual discretion to exclude hearsay evidence whose admission would not be in the interests of justice, even if hearsay evidence falls within the statutory exceptions set out in the amended section 32 of the Act. This discretion is in addition to the court’s inherent jurisdiction to exclude prejudicial evidence. The courts will also have the discretion to assign the weight to such evidence, if admitted.
 
Second, except in the case where the parties to a legal dispute before the courts agree to admit hearsay evidence in court proceedings, a party intending to introduce hearsay evidence must give notice of his intention to do so.
 
NON DISCRIMINATION OF ELECTRONIC EVIDENCE
 
With the repeal of sections 35 and 36 of the Act, the existing rules providing for the relevancy and admissibility of evidence will regulate the admissibility of electronic evidence in the same manner as any other item of evidence.
 
ALIGNMENT OF THE CIVIL AND CRIMINAL EVIDENCE RULES ON HEARSAY EVIDENCE
 
The civil and criminal evidential rules on hearsay evidence have been aligned to ensure that the same exceptions apply to both types of proceedings. Exceptions under the CPC have been moved to the Act and will now apply to both civil and criminal proceedings. The CPC will consequently be amended
 
COMMENTS
 
The amendments go some way to rationalise and provide some much needed clarity on the area of hearsay evidence. They also allow for a broader admission of evidence, and help to ensure that more relevant evidence is placed before a judge hearing the matter, whether in civil or criminal proceedings. This in turn enhances access to justice. From a business standpoint, commercial litigants will also find it easier to admit business records to prove their case.
 
While a step in the right direction, the amendments still retain technical rules which may keep out some evidence. It is suggested that evidence ought to be admissible as long as it is relevant, with the judge as a finder of fact to decide the weight to be allocated to that piece of evidence. The worry that such abolition of the Hearsay Rule will lead to a flood of unreliable evidence may be overstated. The judges will ultimately decide on the basis of credible and reliable evidence, and it will not be in the interest of litigants to put forth a mass of hearsay evidence.
 
 
For further information, please contact:
 
Hri Kumar Nair, Partner, Drew & Napier
 

 

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