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The Singapore Law Gazette

Evidence and the Litigation Process, 7th Edition

By Professor Jeffrey Pinsler, SC

Notions of fairness and equity are at the core of any functioning judicial system. To most, the touchstone of the extent to which this aspiration is met is assessed through the lenses of the outcomes of the trial process; i.e. whether the result (be it a conviction or acquittal in the criminal litigation process, or a finding in favour of one party or the other in the civil context) coheres and accords with one’s perception of a fair outcome. While that certainly represents an important facet to the discussion, it is by no means complete: indeed, an equally vital and important anterior aspect to such a debate must be the coherence, lucidity and rationality of the rules of the litigation process and the consistency of their application, for those rules can often significantly influence the outcomes. This is where the laws of evidence come in – they provide a structure and aspire to bring consistency and cogency to the process by which litigating parties are able to bring forth material or assertions to assist the Court to make the necessary findings of fact and law.

None of this is to suggest that the evidential rules are easy. On the contrary, as discussed in my reviews of previous iterations of this book, the evidential rules in the domestic context are often complex and, at times, even results in considerable disagreements amongst the most distinguished of jurists in the High Court and the Court of Appeal. To a large extent, this is unsurprising given the genesis of the evidential rules in Singapore and the journey that they have traversed. As I had noted in a review of the 6th edition of Prof Jeffrey Pinsler SC’s treatise in this publication in November 2017, such complexities are informed by:

… an interplay between two inter-related considerations: the dated origins of the statutory construct that regulated the law of evidence in Singapore (the Evidence Act, which was first introduced in 1893) and the need to synthesize the jurisprudential developments that provide a significant gloss to the statutory framework …

Given these prevailing realities, and the centrality of the need to make sense of the law of evidence as an adjunct to any meaningful discussion of what the law is and what it should be, the first six editions of Prof Pinsler’s treatise have been regarded as indispensable reading for anyone invested in understanding the law of evidence given how they have helpfully attempted to distil and analyse the contours of these evidential principles in a meaningful, coherent and principled manner.

The same perhaps can be said of the 7th edition of Evidence and the Litigation Process. The structure of the 7th edition is broadly similar to that of the 6th edition, with the first part of the treatise providing the reader a critical look at the evidential principles and how they apply in Singapore, including providing his thoughts on whether, or to what extent, the application of the evidential principles in Singapore accords to their raison d’etre. The second part of the treatise, again much like prior editions, speaks to the practitioner by bringing the reader through the different features and nuances of the trial process. The bifurcation of the treatise in this manner is by design and allows readers to first understand the intricacies of the various evidential principles in Singapore, before delving into the practical nuts and bolts of their application in the litigation process.

Significant changes to the legal landscape in the law of evidence in the form of both jurisprudential developments and statutory enactments have been covered in the publication in impressive detail. It would be plain that there have been numerous strands of significant development in the law of evidence in the last two years, and Prof Pinsler admirably covers most of them. On the jurisprudential front, watershed developments such as Anita Damu v PP [2020] 3 SLR 825 (expert evidence), PP v Soh Chee Wen [2020] 3 SLR 1435 (litigation privilege), Muhammad Nabill bin Mohd Fuad v PP [2020] SGCA 25 (the duty of disclosure), PP v GCK & Another Matter [2020] 1 SLR 486 (the “unusually convincing” test and the interplay between that and the criminal law threshold of requiring proof beyond reasonable doubt) and PP v Mohd Ariffan bin Mohd Hassan [2019] 2 SLR 490 (on the adduction of fresh evidence on appeal), to state just a few, are all discussed in considerable depth. At the same time, the implications of various recent statutory reforms, such as that of the Criminal Justice Reform Act 2018, to the law of evidence are also analysed.

This edition of the treatise is not accompanied by the customary foreword by the Honourable the Chief Justice that featured in prior editions. As the author explained in the preface to the treatise, it was felt to be inappropriate to approach the Honourable the Chief Justice to pen a forward given the Court’s present focus on attending to matters pertaining to the COVID-19 pandemic. Of course, one of the most palpable and unmistakable endorsements of any legal treatise is its’ role in the shaping of jurisprudence. Seen through such lenses, there is no doubt that the Evidence and the Litigation Process series of treatises has been, and continues to be, deeply influential in guiding the Courts in grappling with the most difficult issues that come up in the law of evidence. As an example, in Anita Damu v PP [2020] 3 SLR 825, the Honourable the Chief Justice cites the 6th edition of this treatise with approval numerous times and relies on it as the central academic authority for the proposition that the rule on the ultimate issue (i.e. the evidential principle or rule that an expert should not be allowed to opine on the decision to be made by a Court) has lost much of its force in the modern-day context. Such continued and consistent reliance by our Courts on Evidence and the Litigation Process to inform its approach to the law of evidence tells us all we need to know about the continued relevance and profound influence of the author and of this publication in the field of evidence. Indeed, it is difficult to conceive of a more influential series of books on evidence law, or one that has had a more profound impact on jurisprudential developments in Singapore, in recent times than this series.

The breakneck speed at which legislative and jurisprudential developments even in the few months since this publication (as examples, the legislative processes and frameworks put in place in view of the COVID-19 pandemic and the rash of recent cases emanating from the Supreme Court such as Goh Chin Soon v PP [2020] SGHC 162) means that there is already considerable fertile ground for further analysis, discussion and critique in the 8th edition (which I am sure is in the works!) of this treatise. Until that time, much like the past few editions of this treatise during their time, the 7th edition of Evidence and the Litigation Process represents a necessary and essential addition to the library of judges, lawyers, practitioners and students alike in navigating the intricacies of the law of evidence.

 
All conclusions, observations and views expressed or reflected in this article are those of the author and may not be reflective of the views of the Attorney-General’s Chambers.

Evidence and the Litigation Process, 7th edition may be purchased here.

Attorney-General’s Chambers
LL.B. (Hons) (NUS); LL.M (Harvard)