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The Singapore Law Gazette

Evidence and the Litigation Process, 6th Edition by Professor Jeffrey Pinsler

As an incoming 3rd year student in the Faculty of Law of the National University of Singapore over a decade back, I was informed by well-meaning seniors that the Law of Evidence course was, arguably, one of the most challenging, if not the most complex, course in law school. The complexities of this particular area of law was – I was soon to find out – the result of 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 the intricacies of that area of law, Prof Jeffrey Pinsler’s treatise, “Evidence and the Litigation Process” – at the time just into its 2nd edition – proved to be an indispensable means of understanding the evidential principles in that course and to better appreciate and navigate the many tensions that plagued this area of law.

Some fourteen years on, while there have been changes to the Evidence Act since, the application of evidential principles continue, on occasion, to raise profoundly difficult conceptual and philosophical issues, not to mention issues of application. Cases such as Harven a/l Segar v Public Prosecutor [2017] 1 SLR 771 and Lee Chez Kee v Public Prosecutor [2008] 3 SLR 447 – both decided by a 2-1 majorities of the Court of Appeal – underscore the significance of the role of the law of evidence in judicial decision-making and illustrates the reality of how, as is the case with sentencing, judicial opinions can diverge in resolving difficult questions of law and application in this area.

Seen against this backdrop, the 6th edition of Prof Pinsler’s treatise remains as indispensable for a clear understanding of the law of evidence today and the many controversies and debates that surround a fair number of its provisions – for practitioners and students alike – as it had been during my time as a student. As the 6th edition comes relatively quickly after the release of 5th edition of this treatise (which was published just two years after that edition, which itself was published just two years after the 4th edition), an individual who is unfamiliar with the domestic landscape of evidence might query whether there would be sufficient jurisprudential and statutory developments in the course of that time to warrant an updated edition of the treatise. Those familiar with domestic jurisprudential developments would, of course, reply in the affirmative – as the Honourable the Chief Justice Sundaresh Menon observed in the foreword to this publication, there have been a considerable amount of jurisprudence emanating from the Courts in the past two years in this field, no doubt the result of complex issues of evidence having arisen with increasing frequency in recent years. This book therefore serves as a timely means to synthesize these developments.

In terms of structure, this edition adopts the same logical flow of chapters that previous editions of this publication has adopted. The treatise starts in an analytical fashion: after commencing with a brief introduction of the law of evidence (and the contemporary controversies that exist surrounding its application), it segues into an in-depth discussion of the admissibility principles and modes of proof, before discussing the contours of the evidential privileges and immunities in the law of evidence. Similar to previous editions, the second part of the book takes a more practical bent, studying how the evidential principles would apply in the litigation process, including during both the preparatory and hearing stages.

A new chapter – Chapter 24 – has been added to provide practitioners a deeper understanding of how the practitioner’s ethical obligations in legal practice. Such a chapter is timely and to be welcomed. There can, at times, be a temptation in some quarters to perceive litigation as a gladiatorial process, with the evidential rules serving as nothing more than armour and swords that should be deployed with little regard for ethics in the advancement of that party’s case. Prof Pinsler rightly highlights that although the litigation process in Singapore is adversarial in nature, thereby affording parties the privilege of preparing their cases with relatively little intervention from the Court, this is not a carte blanche for sacrificing the ethical obligations that they owe to the Court. Prof Pinsler, in this chapter, helpfully articulates the broad contours of this principle and explains how the principle is applied in a practical setting, both for court-based matters and for matters which do not involve the Court process.

It is difficult to think of many other academic works that have had such a profound impact on both practice and academic thinking on an area of law as the various editions of Prof Pinsler’s “Evidence and the Litigation Process” has had in recent times. That this is so is perhaps, on closer reflection, unsurprising – notwithstanding the complexities of the law of evidence in Singapore, each edition of the treatise has thoughtfully teased out the important issues of the day in order to reflect upon what the law is, and what the law (in Prof Pinsler’s view) should be. It therefore provides the reader not only a sense of what the law states and how it should be applied, but also competing arguments in support of any other interpretation to the law and the extent to which our present understanding of the law (and the jurisprudential approach) coheres to the law’s initial motivation or reasoning.

As a practitioner, teacher and student of the law of evidence in recent years, I daresay that the law of evidence remains just as complex today as it had been fourteen years ago, when I first had to grapple with the intricacies of the many debates surrounding aspects of the law of evidence. It speaks volumes of the richness and depth of each edition of the “Evidence and the Litigation Process” that throughout the course of that journey, this treatise (its previous editions, of course) was, without exception, always my (and many others’) first port of call in trying to digest and analyse the evidential issues at play in any given situation. This edition serves as no exception – it is a wonderful (if not wholly necessary) additional to the library of any serious student, teacher or practitioner who needs an understanding of the law of evidence.

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