Rationalising the burden of establishing defences at criminal law in Singapore: Reconsidering Jayasena, in the wake of Eu Lim Hoklai

AuthorMeera Rajah
Published date01 October 2017
Date01 October 2017
Subject MatterArticles
EPJ701144 299..329 Article
The International Journal of
Evidence & Proof
Rationalising the burden of
2017, Vol. 21(4) 299–329
ª The Author(s) 2017
establishing defences at
Reprints and permissions:
criminal law in Singapore:
DOI: 10.1177/1365712717701144
Reconsidering Jayasena, in the
wake of Eu Lim Hoklai
Meera Rajah
Associate, Rajah & Tann Singapore LLP, Singapore
The reversal of the burden of proof and the imposition of a mandatory death penalty for certain
offences have left the Singapore criminal justice system the subject of much rights-based criticism.
Case law hints that there exists a very real possibility of wrongful conviction, should the courts
apply s. 107 of the Evidence Act (‘EA’) in its literal sense and shift the legal burden to the accused,
irrespective of the defence he seeks to invoke. The Singapore courts have acknowledged that the
‘evidential burden’ of proof as a distinct legal concept on numerous occasions but have not
reconciled it with Lord Devlin’s interpretation of s. 3(3) EA in Jayasena, which limits proof to the
‘legal burden’. This article argues that the time has come for the Singapore courts to expressly
banish the Jayasena ghost. The fairer approach would be to examine whether the defence falls
within the categories of (a) mental condition defences, namely insanity, insane automatism,
diminished responsibility and intoxication causing abnormality of mind, and (b) other general
defences. Reliance on a defence within the former category will cause the accused to bear the
legal burden of proof; he should only bear the evidential burden for the latter.
criminal law, evidential burden, insanity, mental condition defences, reform, Singapore
The criminal process is at the heart of the criminal justice system. It is not only a subject of great practical
importance; it is also a reflection of our ideals and values as to the way in which we can accord justice to both
the guilty and the innocent. (Chan, 1996: 433)
Corresponding author:
Meera Rajah, Rajah & Tann Singapore LLP, 9 Battery Road #25-01, Singapore 049910, Singapore.
E-mail: meera.rajah@rajahtann.com; meera_rajah@outlook.com

The International Journal of Evidence & Proof 21(4)
For scholars of comparative law, Singapore’s unique criminal justice system raises a plethora of
interesting legal conundrums that merit academic discussion. In particular, the imposition of a mandatory
death penalty for certain offences has attracted the criticism of a number of international human rights
bodies (see e.g. Amnesty International, 2004; US Department of State, 2010). In relation to homicide cases,
although the mandatory death penalty has now been reserved only for intentional murder (of which there are
very few a year)1,2 the question of on whom the legal burden of proof should rest is literally a matter of life
or death. The answer to this rests on whether the local courts construe s. 107 of the Evidence Act (‘EA’)3 as
imposing a ‘legal’ or an ‘evidential’ burden on the accused, as he attempts to prove his defence. Judicial
interpretation of ss 103, 105 and 107 of the EA could often determine whether an accused is convicted of
murder or manslaughter. The Privy Council’s ruling in Jayasena v R,4 viz. that the ‘burden(s)’ discussed in
ss 103, 105 and 107 all refer to the legal burden, is still considered to be good law in Singapore.5 This
creates palpable legal tension between (a) ss 103 and 105 and (b) s. 107 of the EA. Sections 103 and 105
stipulate that he who asserts must prove, whereas s. 107 provides that the accused has to prove every
defence in the Penal Code6 or other relevant statute. Perhaps in an inarticulate response, the courts have
increasingly blurred the fine distinction between the legal and evidentiary burden, and now hardly refer to
Jayasena. For instance, the Court of Appeal in Eu Lim Hoklai v Public Prosecutor7 reached a pragmatic
outcome by adopting a holistic approach, centred on the factual matrix rather than a strict application of the
EA, skirting any discussion of the relevant sections and their impact. This suggests that, despite the
limitations of Jayasena and its continued ostensible application within Singapore, the judiciary appears
to prize substantive fairness over its precedential shackles. This uncertainty is nevertheless unsatisfactory,
especially for capital cases, where legal certainty should take precedence over the vagaries of notions of
substantive fairness that might vary between judges. Lamentably, despite the grave consequences that
follow how the courts choose to answer this question, there has been little legislative attempt to address it.
It is argued here that the form of the burden – whether legal or evidential – on the accused under s. 107
should depend on the nature of the defence invoked. A distinction should be drawn between (a) mental
condition defences, namely insanity, insane automatism, diminished responsibility and intoxication
causing abnormality of mind, and (b) other general defences. If the accused attempts to invoke one of
the former, the legal burden ought to rest on him. However, if the accused attempts to rely on one of the
latter, he ought to only bear the evidential burden – the prosecution will retain the legal burden. The
distinction lies both in that mental condition defences raise issues not necessarily pertinent to the
prosecution’s case and that the accused would have ‘knowledge’ that only he knows (within the meaning
of s. 108 of the EA). It is submitted that this approach should be preferred over the ‘form vs substance’
approach that is central to R v Hunt.8 This approach is not incompatible with the definition of proof in s.
3(3) of the EA, notwithstanding Lord Devlin’s observations in Jayasena.
1. The United Nations Office on Drugs and Crime (UNODC) Global Study on Homicide 2013, last conducted the same year, noted
that there were only 11 counts of intentional homicide in 2012, bringing Singapore’s rate (per 100,000 population) to 0.2%.
2. See the Penal Code (Amendment) Act 2012 (Act No. 32 of 2012). In his Ministerial Statement (9 July 2012), Minister
Shanmugam explained that the death penalty continues to be mandatory for these offences, as they are ‘one of the most ser-
ious . . . in our books’ and ‘it is right to punish such offenders with the most severe penalty’ (cf. other forms of murder, for which
‘justice can be tempered with mercy’).
3. Cap. 97.
4. [1970] AC 618.
5. See, e.g. Public Prosecutor v Koh Peng Kiat [2016] 1 SLR 753 at [62]; Public Prosecutor v Khwan-On Nathapon [2001] SGHC
313 at [98] and [99]; Public Prosecutor v Saengarun Ukhunthod [1993] SGHC 232 at [45] and [46]; Public Prosecutor v
Sivakumar s/o Kurusamy Pandian [1993] SGHC 162 at [101]; J Balasubramaniam v Public Prosecutor [1992] SGHC 105;
Public Prosecutor v Ithinin Bin Kamari [1992] SGHC 24; Public Prosecutor v Chan Kim Choi [1988] 2 SLR(R) 611 at [40];
Tan Ah Tee and anor v Public Prosecutor [1979-1980] SLR(R) 311 at [15]; Govindasamy N v Public Prosecutor [1974-1976]
SLR(R) 654 at [22] to [24]; and Vijayan v Public Prosecutor [1974-1976] SLR(R) 373 at [31].
6. Cap. 224.
7. [2011] 3 SLR 167.
8. [1987] AC 352.

This article begins by providing a brief overview of the criminal burden of proof in Singapore , before
elucidating the need for the existence of a clearer distinction between ss 103, 105 and 107 of the EA
today and, more importantly, how this should apply, viz. the ‘abnormality of the mind’ against ‘general
defences’ distinction, in the sections titled ‘The need for clarity, post-Jayasena’ and ‘The special case for
mental condition defences’ respectively. ‘The Singapore judiciary’s approach’ then discusses the Sin-
gapore courts’ more recent holistic approach to prioritise substantive fairness, illustrated through the
landmark decision of Eu Lim Hoklai and a general emphasis on reasonable doubt and the presumption of
innocence. ‘Other jurisdictions’ approach’ compares this approach to that of England and India, where
the EA originated. The final section, ‘Call for legislative reform’, concludes with a call for the legislative
re-examination of s. 107, given that the Jayasena interpretation of it is in conflict with the fundamental
principle of the presumption of innocence.
The Singapore courts’ current approach rests in its discretion to determine how the burden of proof
should manifest when the accused invokes defences. As the surrounding evidence remained unclear, the
‘benefit of the doubt’ was given to the appellant.9 The technicalities of the form of the burden – legal or
evidential – and on whom it should rest were not discussed. Doctrinally, this could be viewed as
sacrificing principle at the altar of flexibility. Yong Pung How CJ (as he was then) opined that the
EA should be seen as a ‘facilitative statute’ in Lee Kwang Peng v Public Prosecutor,10 and, although
Chan Sek Keong CJ (as he was then) preferred the view that it was a ‘codifying Act’ in Law Society of
Singapore v Tan Guat Neo Phyllis,11 he too conceded that ‘new rules of evidence can be given effect’,
provided ‘they are not inconsistent with the provisions of the EA or their underlying rationale’.12
However, there are limitations as to what the courts can do. The Privy Council decision of Vasquez v
R,13 which supersedes Jayasena, held that placing the legal burden of defences like provocation on the
accused was a violation of the presumption of innocence. This lends support to the argument in favour...

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