Evidence Act Section
147(3): Legislation or
Legislative Interference?

Lord Guest: 

Do you say that in a criminal case a law could say to the judges that they must find the accused guilty? Do you say that could be incorporated in a law? 

Solicitor General of Ceylon: 

However shocking it might be, the answer was yes. The ‘concept of sovereignty was so wide ... an awful power ...’ (Liyanage v The Queen [1967] AC 259 at 272). 

Lord Pearce: 

If you are right in saying that there can be interference with the process of the judiciary, although the appointment of the judiciary is protected, there is really no limitation to the lengths to which interference with the judiciary can go. Could you direct all the judges to find all their prisoners guilty by Act of Parliament, or not to find any contravention of the statue void.’ (Liyanage’s case page 275B-C).

This article considers the question whether the amendments made to
s 147 of the Evidence Act (Cap 97) by the introduction of s 147(3), in particular, to the existing provisions of the section by the Evidence Amendment Act (No 11 of 1976) amounts to legislative interference with judicial power vested in the Supreme Court and subordinate courts by Art 93 of the Constitution of Singapore or is general legislation properly enacted by the Legislature exercising powers vested in it by Art 38 of the Constitution making changes to the law. If the amendment amounts to interference with judicial power, it would be inconsistent with the Constitution and to that extent of the inconsistency, void under Art 4.

Legislative History

By Letters Patent dated 4 February 1867, the Straits Settlements were given a Colonial Constitution with legislative authority vested in the Legislative Council of the Straits Settlements. The Legislative Council enacted the Judicial Duties Act 1867, (Straits Settlements Act III of 1867). The Governor ceased to be a Judge of the Court of Judicature, but the Resident Councillors continued to sit as judges under their new title of Lieutenant-Governors. The first small step at a separation of powers was taken but the modern conception of separation of powers in the Constitution had not yet been established as a legal principle for the Colony. 

By the Supreme Court Ordinance 1868 (Straits Settlements Ordinance V of 1868), the Court of Judicature of Prince of Wales’ Island, Singapore and Malacca was abolished and replaced by the Supreme Court of the Straits Settlements. By this reorganisation, the Resident Councillors ceased by implication to be Judges of the Court. Judicial power was separated from its executive and legislative moorings but it was not a separation of powers under a written Constitution but simply a provision of institutions for the final decision of disputes between subject and subject and subject and the state. 

The changes to the court structure in England brought about by the United Kingdom Judicature Acts of 1873-75, saw the Courts Ordinance 1878 (Straits Settlements Ordinance III of 1878) being passed to restructure the courts in Singapore. The jurisdiction of the Supreme Court was made similar to that of the new English High Court. In addition, the jurisdiction and residence of the Judges were made more flexible, so that by implication the divisions, which were created earlier, were abolished. Judicial power breathed and asserted its independence under common law before judicial power was vested in the courts by Art 93 of the Constitution in 1965. 

The Post-War Years Leading to Independence

Following the Japanese surrender on 12 September 1945, Singapore was temporarily administered by the British Military Administration which proclaimed inter alia that ‘all laws and customs existing immediately prior to the Japanese occupation will be respected.’ The independence of judicial power came into its own again and was made similar to that of the High Court of England. The Straits Settlements were disbanded and Singapore was made a separate Crown Colony on 1 April 1946. Singapore became an internally self-governing state in 1959. Judicial power was kept separate from the Legislative and Executive powers. 

Merger

Singapore’s judicial system was altered once again following her entry into Malaysia on 16 September 1963. The merger necessitated a reorganisation of the courts in Singapore and Malaysia. This was effected through the Malaysia Act (Federation of Malaya Act No 26 of 1963), which came into force on 16 September 1963 and the Malaysian Courts of Judicature Act of 1964 (Malaysian Act 7 of 1964). The second Act, most of which came into operation on 16 March 1964, repealed the provisions relating to the Singapore Supreme Court in Singapore’s Courts Ordinance as well as the whole of the Singapore’s Court of Criminal Appeal Ordinance. The Supreme Court of the Colony of Singapore was replaced with the High Court of Malaysia in Singapore, while the Court of Appeal was assimilated into the Federal Court. (See www.supcourt.gov.sg/englishorganisation/ foundingofSingapore.html). 

Upon separation the Malaysian Parliament transferred legislative power without words of limitation. The full plenary powers the Malaysian Parliament could bestow was transferred so as to vest in the Head of State and in the Legislature of Singapore (s 5 Republic of Singapore Independence Act). 

Common Law and Separation of Powers

Blackstone discussed the separation of powers in his Commentaries on the Laws of England in the context of the king’s prerogative. To Blackstone separation of powers meant primarily the separation of judicial powers. The judicial separation of powers was necessary to ensure that the executive power does not ‘overbalance’ the legislative. There was a need to provide an institutional check on the powers of the executive and the legislature. 

Even harder to get around in England and in the minds of common law lawyers is the fact of parliamentary supremacy. Where America maintains a separation of executive, legislative and judicial powers, Britain has a ‘balance’ between the three. This does not guarantee equal weight to all, certainly not to the judges. The courts in England, however, gained some clout in 1998, when they were given powers to declare legislation incompatible with the European Convention on Human Rights. But unlike Singapore, the English courts cannot strike down legislation. In a constitutional fight with the cabinet, the judges in England would still lose. (Economist: ‘Wigs on the warpath’ 13 March 2004). 

Malaysia too had a king with prerogative powers, but, it was a Federation of many states which included Singapore. It had a written Constitution and continues to have a multi-racial, multi-religious and a multi-cultural population. The State Constitutions were not all alike. The Malaysian Constitution had to address political problems outlined by Madison in the Federalist. 

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few, or many and whether hereditary, self appointed, or elective may justly be pronounced the very definition of tyranny (Federalist 47: 244). 

If angels were to govern, neither external nor internal controuls [sic] on government would be necessary. In forming a government which is to be administered by men over men, the greater difficulty lies in this: You will first enable the government to controul the governed; and in the next place, oblige it to control itself (my emphasis). A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precaution (Federalist 51: 262). 

Auxiliary Precaution

The separation of powers was made the main auxiliary precaution against the encroaching nature of power whether by the executive, legislature or judicial arms of government and as in the American Constitution classical political thought become legal principle in the Constitutions of America, Malaysia and in the Constitution of Singapore. 

In Hinds v R [1977] AC 195 the separation of powers issue arose when the constitutionality of two sections of a statute were considered by the Privy Council. 

In his exposition of the principles underlying what he called ‘the Westminster model’ of Constitution, Lord Diplock referred to: 

   the basic concept of separation of legislative executive and judicial power and said: 

‘It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government.’ (page 212D) 

Lord Diplock added: 

What, however, is implicit in the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v R [1967] 1 AC 259 (page 213C). 

Judicial Power to a Minister

In 1962 the then Ceylon legislature passed the Criminal Law (Special Provisions) Act No 1 of 1962 conferring upon the Minister of Justice the power of nominating judges to try accused persons. The Act was directed at senior police officers who had planned to take over the Government and was made ex post facto. 

The Crown contended that no separation of powers existed under the Ceylon Constitution and if a separation of powers existed dehors (out of) the written Constitution, it was a separation on the lines of the British Constitution, as Ceylon had been accustomed to that kind of separation. 

The judgment held that a separation of the three powers was embodied in the Constitution given by the Ceylon (Constitution) Order in Council, 1946. The court further held the section invalid and that it deprived them of jurisdiction to try the appellants. 

The power of nomination conferred on the Minister offended against the cardinal principle that nothing was to be done which created even a suspicion that there had been an improper interference with the course of justice (Lord Hewart in Rex v Sussex Justices, ex parte McCarthy 1924 1 KB 256). (See also Liyanage v The Queen [1967] AC at 261). The nomination by the Minister was ultra vires the Constitution and therefore the judges could not try the case. 

Before the Supreme Court of Ceylon the appellants further contended that the Constitution recognised a separation of powers of government similar to that of America, Australia, Canada and India. 

The Supreme Court of Ceylon in Reg v Liyanage (1963) 64 NLR 313 held that the power given by that section was ultra vires the Ceylonese Constitution on the grounds: 

(a) the power of nomination conferred on the Minister was an interference with the exercise by the judges of the Supreme Court of the strict judicial power of the state vested in them by virtue of s 52 of the Ceylon (Constitution) Order in Council 1946, or was in derogation thereof; 

(b) that the power of nomination had always been exercised by the judicature as part of the exercise of the judicial power of the state and would not be reposed in anyone outside the judicature (my emphasis); 

(c) that the power of nomination conferred on the Minister offended against the cardinal principle that nothing was to be done which created even a suspicion that there had been an improper interference with the course of justice. 

Ministerial Participation

The House of Lords rejected Ministerial participation in the judicial process very firmly in Re Anderson v Home Secretary [2003] 1 AC 837. The claimant had been convicted of two murders for which he had received mandatory life sentences. The trial judge advised the Secretary of State on the appropriate tariff to be served by the prisoner necessary to satisfy the requirements of retribution and deterrence. 

The Secretary of State set a longer period than that recommended by the judiciary. The claimant challenged the Minister’s decision by way of judicial review on the grounds that the Secretary of State as a member of the executive had acted incompatibly with the claimant’s right to a fair hearing by an independent and impartial tribunal. The tariff should be determined judicially (my emphasis). 

The single issue was whether the Home Secretary as a member of the executive is entitled to fix the minimum period of imprisonment to be served. The court allowing the appeal held that the nature of the procedure adopted by the Secretary of State must be judged as a matter of reality than that of form. 

The imposition of sentence was part of a trial for the purposes of the right to a fair hearing by an independent and impartial tribunal. Tariff fixing was legally indistinguishable from the imposition of a sentence; the tariff must be set by an independent and impartial tribunal. The Secretary of State was neither independent of the executive nor a tribunal and should not play a part in fixing the tariff (page 838). The courts will not permit executive interference in the judicial process. 

Legislative Intromission

The question before the Supreme Court of Malaysia in PP v Dato Yap Peng [1987] 2 MLJ 311 was whether the power given to the Public Prosecutor to remove a pending case from a subordinate court for trial to the High Court encroaches upon the judicial power of the court as vested and protected by Art 121 of the Malaysian Constitution (the corresponding article to Art 93 of the Singapore Constitution). 

The leading majority judgment was delivered by Abdoolcader SCJJ who held s 418A of the Criminal Procedure Code of Malaysia unconstitutional and void. Abdoolcader SCJJ said: (318-E) 

In my view the provision of s 418A are both a legislative and executive intromission into the judicial power of the Federation. It is a legislative incursion to facilitate executive intrusion .... in the context of s 418(3) judicial power would amount to ‘doing what you are told to do’ .... An invalid legislative interference acts on pending judicial proceedings, either directly or indirectly by executive action arrogating to itself functions proper to the courts and usurps or obtrudes on the judicial process ... (my emphasis) 

Rules of Evidence

The Ceylonese Criminal Law (Special Provisions) Act No 1 of 1962 in Liyanage’s case purported, inter alia, to alter the rules of evidence and criminal procedure obtaining under the general law at the time when the offences were committed and to do away with the prohibitions under the general law of certain kinds of evidence. The Ceylonese Act further provided for the admission in evidence of certain confessions and statements to the police inadmissible under the Evidence Code of Ceylon. The limits of legislative power and interference with judicial power become a live issue. 

The 1962 Ceylonese Act swept away the protection given by the general criminal law and the law of evidence to all accused persons to ensure them a fair trial. 

If under the guise of legislation the legislature seeks to direct judges to try a particular case in a different way from the way in which the courts would try a similar case in accordance with the rules of evidence then it becomes necessary to consider the source from which the legislative power is derived in the Constitution and the legislation enacted to see if it is legislation or legislative interference. 

Separation of Powers and the Singapore Constitution

The question is whether the Constitution of Singapore is also based on a separation of powers of government similar to the Constitutions of the US, Australia, Canada, South Africa, India, Ceylon and Malaysia. 

The Constitution of Singapore is based on the doctrine of the separation of powers (see The Government and the Executive in Part V; The Legislature Part VI; The Judiciary Part VIII). (See also Ong Ah Chuan v PP [1981] AC 648 where Lord Diplock said the Singapore Constitution is based on a separation of powers (page 673 H). He also said that the Privy Council was not disposed to find that Art 9(1) justifies all legislation whatever its nature) (page 659 G). 

Encroachments

The Americans advocated higher protection for judicial power particularly from interference by the legislature. Madison said: 

[The legislature’s] constitutional powers being at once more extensive and less susceptible of precise limits, it can with greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. 

Madison had witnessed colonial and ‘post revolutionary legislatures’ dominating and usurping adjudicative functions. When the American Constitution was drafted he remarked: 

the legislative department is everywhere extending the sphere of its activities and drawing all power into its impetuous vortex.
(The Federalist No 48 n 12333) 

It was to prevent the recurrence of such abuses that the framers vested the executive, legislative and judicial powers in separate branches. Their concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person was expressed, not only in this general allocation of power but also in more specific provisions such as the Bill of Attainder Clause. (462 US 919 (1982) 962) 

The framers of the Singapore Constitution too had witnessed what legislatures that are dominated are likely to do and Art 77 provides that it is the particular function of the Presidential Council for Minority rights to draw attention to any Bill or to any subsidiary legislation if that Bill or subsidiary legislation is in the opinion of the Council a ‘differentiating measure’. 

‘Differentiating measure’ is defined in Art 68 to mean ‘any measure which is, or is likely in its practical application to be, disadvantageous to persons of any racial or religious community and not equally disadvantageous to persons of other such communities, either directly by prejudicing persons of that community or indirectly by giving advantage to persons of another community.’ Direct and indirect prejudice is relevant. 

The concerns of the Constitution are not limited to measures which are or likely in its practical application to be disadvantageous only to persons of any racial or religious community because Art 12(1) guarantees equality before the law both as to the manner in which people are treated and to equal protection of the law. ‘Law’ is defined in Art 2(1) to include any enactment whatsoever having the force of law in Singapore. 

Article 2A of the Singapore Constitution has entrenched Art 12(1) and provides that a Bill seeking to amend inter alia, any provision in Part IV on Fundamental Liberties, where Art 12(1) appears shall not be passed by Parliament unless supported by a national referendum. 

Tracing the Line

As early as in 1871 the Supreme Court of America in US v Klein (80 US/13 Wall 128 (1871)) stated the proposition that the legislature would breach the separation principle if it were to ‘prescribe’ a rule for the decision of a cause in a particular way (page 146). The constitutional offence lay in the element of prescription or direction. 

In Liyanage v The Queen [1967] AC 259 the Criminal Law (Special Provisions) Act No 1 of 1962 purported to, inter alia, make admissible in evidence certain statements and admissions made to the Police that were otherwise inadmissible under the Ceylonese Evidence Code. The case came up before the Privy Council after it was heard by the Supreme Court of Ceylon (as it then was). The Privy Council after remarking that it was not necessary to attempt the almost impossible task of tracing where the line is to be drawn between what will and what will not constitute interference (pages 289-90), identified indicia of unconstitutional interference, which did not constitute a closed set but something to be determined by the facts and circumstances of each case including the true purpose of the legislation (page 290). At (page 289-B) the Privy Council Court said: 

Their Lordships cannot read the words of s 29(1) entitling Parliament to pass legislation which usurps the judicial power of the judicature e.g. by passing an Act of attainder against some person or instructing a judge to bring in a verdict of guilty against someone who is being tried - if in law such usurpation would otherwise be contrary to the Constitution (my emphasis). 

At page 290-D the Privy Council referring to the Ceylonese Act that was challenged said: 

Each case must be decided in the light of its own facts and circumstances, including the true purpose of the legislation, the situation to which it was directed, the existence (where several enactments are impugned) of a common design and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings. It is therefore necessary to consider more closely the nature of the legislation challenged in this appeal.

 The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable (in view of the White Paper) and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals. It legalised their imprisonment while they were awaiting trial. It made admissible their statements inadmissible obtained during that period. It altered the fundamental law of evidence so as to facilitate their conviction... These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion ... (my emphasis) 

Street CJ in 1986 7 NSWLR 372 opined that: 

For Parliament, uncontrolled as it is by any of the safeguards that are enshrined in the concept of due process of law, to trespass into this field of judging between parties by interfering with the judicial process is an affront to a society that prides itself on the quality of its justice. Under the Commonwealth Constitution it would ... attract a declaration of invalidity.’ (The Separation of Powers and Legislative Interference with Judicial Functions in Pending Cases [2002] Fed L Rev 2003 at p 22). 

The High Court of Australia in Leeth v Commonwealth (1992) 174 CLR 445 confirmed in obiter that the developments in relation to the issue of legislative interference had been recognised by the court. Mason CJ, Dawson and McHugh JJ: 

[L]egislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly (see Liyanage v The Queen). It is upon this principle that bills of attainder may offend against the separation of judicial power (see Polyukhovich v Commonwealth). But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function (at 469-70) (my emphasis). 

Law of General Application?

The Evidence Amendment Act (No 11 of 1976), unlike the Ceylonese legislation, is not ex post facto legislation. Can it also be said to be a law of general application which seeks to govern the exercise of jurisdiction conferred upon the courts or does it trespass upon the judicial function? All retrospective legislation is not bad. It is perfectly valid in certain circumstances to grant a person indemnity retrospectively. It is not necessary for the legislation to be retrospective for it to trespass into judicial power. 

Singapore Evidence Act (Cap 97) 

(a) The law of evidence in Singapore is codified in the Evidence Act (Cap 97, 1997 ed), which with some exceptions, applies equally to civil as well as criminal proceedings. 

(b) The Act traces its history back to the Evidence Ordinance 1893 and is based on the Indian Evidence Act 1872. Parts I, II and III of the Act apply to all judicial proceedings in or before any court s 2(1). 

(c) Cases from the appellate courts of jurisdictions which have a codified law of evidence with provisions identical to or analogous to the provisions of the Evidence Act are relevant. Liyanage’s case is good persuasive authority. 

The provisions of the Evidence Act apply to the adducing of evidence at trials. In criminal cases oral evidence is important. Oral evidence must be direct. Hearsay evidence is the exception. Before a person gives evidence he must take the oath or affirmation administered by the court. The evidence is recorded in the presence of the accused by the court (s 203 Criminal Procedure Code Cap 68). The witness is usually cross-examined. 

Evidence includes 

(a) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence (my emphasis) (s 3 Cap 97); 

(b) all documents produced for the inspection of the court; such documents are called documentary evidence (s 3 Cap 97). 

A fact is said to be ‘proved’ when, after considering the matters before it, the court either believes it to exist or considers its existence probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists (s 3(3) (Cap 97)). A fact is said to be ‘not proved’ when it is neither proved or disapproved (s 3(5) (Cap 97)). 

The 1976 Amendments

Until the amendments in 1976, there were only two subsections to the then
s 145, the present s 147(1) and s 147(2). They set out the procedure for putting a witness’s previous inconsistent statement to him. The present s 147(1) and
s 147(2) read as follows: 

(1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question in the suit or proceeding in which he is cross-examined, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 

(2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he made such statement.’ 

The position at common law was applied so that while a witness could be cross-examined on his previous inconsistent statement, the significance of the statement was limited to its effect on the testimony in court; it did not become evidence in the case. Hence, in Muthusamy v PP, [1947] MLJ 57, at 58 Taylor J said: 

He [the magistrate] completely misunderstood the principle of using the former statement to impeach credit and took the view that the former statement could be ‘put in’ and that the court could then choose whether to accept the unsworn police statement or the witness’s sworn statement in court as his evidence of the incident. This is utterly illegal. In no case can the former statement become his evidence. 

In Jones v R [1948] MLJ 182, Murray-Aynsley CJ said at 182: 

These statements can only be used to impeach the credit of the witnesses. That is to say, when these statements have been proved, they do not become independent evidence of facts contained in them. 

The Minister of Law proposing the addition of s 147(3) said: 

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. (Parliamentary Debates 1975, Vol 34 pages 1246-47).

The Explanatory Statement

The Explanatory Statement to Bill No 34/75 which introduced the amendment to s 145 of the Evidence Act is in the following terms: 

Clause 9 provides that where a previous inconsistent or contradictory statement made by a person called as a witness in the proceedings in question is proved or where a document used by a witness to refresh his memory is proved, then the previous statement or any statement made in that document used to refresh the witness’s memory shall be admissible in evidence of any facts stated in it of which direct oral evidence of the witness would be admissible. Subsection (5) provides 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 incentive to conceal or misrepresent the facts. Subsection (6) provides that a statement which is admissible in evidence by virtue of this clause shall not be capable of corroborating the evidence given by the maker of the statement. 

Upon the statement being proved to be a previous statement of the witness that is inconsistent or contradictory with what is said upon oath the judge must admit the facts in the statement as evidence. The judge’s discretion has been taken away. The judge is directed not only to admit the evidence but also treat it as direct oral evidence, when it is inconsistent and contradictory with the evidence given before him. 

Clause 9 is in the following terms: 

‘Section 145 of the Evidence Act is hereby amended by inserting immediately after ss (2) thereof the following new subsections: 

(3) Where in any proceedings a previous inconsistent or contradictory statement made by a person called as a witness in those proceedings is proved by virtue of this section, that statement shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible (my emphasis).

(4) Where a person called as a witness in any proceedings is cross-examined on a document used by him to refresh his memory, that document may be made evidence in those proceedings; and where a document or any part of a document is received in evidence by virtue of this subsection, any statement made in that document or part by the person using the document to refresh his memory shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.

(5) In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of this section regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular, to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent the facts.

(6) Notwithstanding any other written law or rule of practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement which is admissible in evidence by virtue of this section shall not be capable of corroborating evidence given by the maker of the statement.’ 

Clause 9 does not require the statement to have been made voluntarily or for it to have been made before a Magistrate under s 124 of the Criminal Procedure Code or for the witness to accept the contents for the statements as being true or for the evidence to be credible. Clause 9 now appears as ss 147(3), 147(4), 147(5) and 147(6). 

It is doubtful whether the making of a previous inconsistent or contradictory statement of a witness admissible under s 147(3) Cap 97 as evidence of any fact stated in it of which direct oral evidence would be admissible would advance the truth determining process. Where life or liberty of an individual is deprived on the strength of evidence contained in a previous inconsistent or contradictory statement it cannot be said that life or liberty has been deprived according to law as required by Art 9(1) of the Constitution which requires due process to be satisfied. 

It is submitted that in trying to straighten out a subtle distinction the legislature has, perhaps unwittingly, taken a place on the judicial seat. 

Prior Statements

A prior statement of a witness is hearsay if offered to prove the happening of facts stated in the statement. Prior statements have, however, been permitted to impeach the witness by showing a self-contradiction where the statement is not consistent with his testimony in court but were only admissible as proof of the matters stated in the statements only when the statements fell within one of the exceptions to the hearsay rule. It is submitted that s 145(3) is not an exception to the hearsay rule. It is a direction to the judge. The prosecution uses statements to prove its case when the witness does not testify according to the facts in the statement. 

The reasons for excluding prior statements are: 

(i)    the statements may not have been made under oath;

(ii)   the statements were not made before the court which is determining the facts in dispute;

(iii) the statements were not made in the presence of the accused even when the statements are recorded usually in a police station;

(iv)   the statements may have been made to the police in the course of police investigations in circumstances where the witness may not have told the truth, especially if he is an accomplice. Section 145(5) provides for adjustments to be made to the weight the court can give to the statement;

(v)    the statements were not the subject of cross-examination. Under
s 145(3) untested evidence is by legislative fiat made the equivalent of direct oral evidence when it offends the general laws of evidence and criminal process. 

Section 145(3) empowers the prosecution in criminal proceedings ie the executive where life and liberty of an individual may be deprived in effect to direct the judiciary where a witness called by the prosecution makes an inconsistent or contradictory statement on some matter or other to admit an earlier statement as evidence of any fact in the statement of which direct oral evidence would be admissible regardless of the judge’s views on the matter. The judge’s discretionary power is taken away. 

Judicial Proceeding

A ‘judicial proceeding’ is defined to mean any proceedings in the course of which evidence is or may be legally taken’ (s 2 Cap 68). 

A police officer making a police investigation under the provision of s 121 of the Criminal Procedure Code may examine orally any person supposed to be acquainted with the facts and circumstances of the case. He must reduce into writing any statement made by the person so examined. The persons examined are usually accused persons or potential witnesses (my emphasis). 

The statement of an accused is admissible under s 121(5) of the CPC in evidence provided the court is satisfied that the making of the statement was not caused by any inducement threat, or promise and that it was voluntarily made. 

The statements of persons called as witnesses, however, upon the statements being inconsistent or contradictory with the evidence in court, in the opinion of the prosecution, would by virtue of
s 147(3) of the Evidence Act be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible. The judge must do what he is told to do and admit the statements as substantive evidence notwithstanding the fact that the statements were recorded by police officers in the absence of the accused. Making the statements substantive evidence, in effect, amounts to conferring a judicial function on police officers reducing into writing facts and circumstances from persons supposed to be acquainted with the facts and circumstances of a case at a police station. The statement would be recorded even before the trial has started, or a person charged. Upon the statement being disowned, inconsistent or contradicted, it becomes substantive evidence by legislative fiat. 

That,  however, is not the only interference with judicial power by the legislature and the executive. If the court should find that the statement that is admitted under s 147(3) corroborates the evidence given by the witness under oath in court and has stood up to the cross-examination of the prosecution. The court is then told that the statement must not be taken as corroborative evidence (see s 147(6)). 

The statement recorded by the police officer prevails in judicial proceedings. It is gross interference with judicial power and a direction to judges who stand guard over fundamental liberties and whose power in turn is protected by the Constitution. 

It is submitted that the effect of s 147(3) and s 147(6) of the Evidence Act is a direction by the legislature to the Judiciary as to how a judge must discharge his judicial functions in the course of a judicial proceeding when exercising judicial power. It is inconsistent with the Constitution and the courts duty to ascertain the truth of facts adduced before it. It is an interference with judicial power. It is not compatible with the right of an individual to a fair hearing by an independent and impartial tribunal protected by Art 93 of the Constitution. 

Conclusion

The Evidence Act, is essentially ‘existing law’ within the meaning of Art 162 of the Constitution. It is within the court’s power to construe s 147(3) and s 147(6) subject to Art 162 so that they exercise judicial power unfettered by the provisions of s147(3) and 147(6). If, however, the court takes the view that ss  147(3) and 147(6) are mandatory provisions then it would be inconsistent with Art 4 of the Constitution and to the extent of their inconsistency void on the ground that it is legislative interference with judicial power in the course of a judicial proceeding.

KS Rajah, SC

Harry Elias Partnership
E-mail: ksrajah@harryelias.com.sg