The Judicial Discretion to Exclude Relevant Evidence: Perspectives from an Indian Evidence Act Jurisdiction

Date01 October 2012
Published date01 October 2012
Subject MatterArticle
The judicial discretion to
exclude relevant
evidence: perspectives
from an Indian Evidence
Act jurisdiction
By Chen Siyuan*
Assistant Professor of Law, School of Law, Singapore Management

Abstract Stephen’s ground-breaking Indian Evidence Act contained ideas that
appear unfamiliar in the context of modern rules of evidence. Singapore is an
Indian Evidence Act jurisdiction which has retained those ideas, such as the
between relevance and admissibility, the framing of
exclusionary rules in inclusionary terms, and the prohibition against relying on
common law developments inconsistent with the Evidence Act. These
peculiarities should have presented obstacles to the applicability of the
common law concept of the judicial discretion to exclude relevant evidence, but
this has not been the case. In this article, I first suggest why Singapore courts
might have been attracted to the concept, but I then highlight fundamental
uncertainties regarding the concept’s scope and normative justification. I
proceed to propose an alternative paradigm for Singapore, namely using
relevance and reliability as the only touchstones for admissibility of all evidence
in criminal proceedings. The various advantages of this paradigm are also
Keywords Exclusionary discretion; Balancing prejudicial effect and probative
value; Indian Evidence Act 1872; Singapore Evidence Act; R v Sang

1. Examining the exclusionary discretion in light of certain features of the
Indian Evidence Act

hen Sir James Fitzjames Stephen drafted the Indian Evidence Act of 1872
(which was supposed to be a complete formulation of English evidence
W lawatthatpointintime),1heprobablywouldnothaveimaginedthat
several jurisdictions which adopted his statute would still be using it almost 150
years later.2 Ground-breaking as it was,3 when viewed through the lens of contem-
porary evidence law developments in the common law world,4 Stephen’s Evidence
Act contains a number of peculiarities, and pertinent for present purposes are
three of them.
First, Stephen did not draw a distinction between relevance and admissibility;5
thus, what is found relevant under the statute’s relevancy provisions is admis-
sible, and the need to consider the difference between legal relevance and logical
relevance is obviated.6 Secondly, in an attempt to make the statute as uncompli-
cated as possible, Stephen wanted its relevancy provisions to be expressed in
inclusionary terms rather than exclusionary terms; thus, the exceptions to the
common law exclusionary rules (as they stood in the late 1800s) are directly
captured by the various inclusionary rules in the statute.7 This also obviates the
need to consider whether a piece of evidence that has fulfilled the criteria of the
(Indian Evidence Act) relevancy provisions in question can nevertheless be
excluded or deemed inadmissible by the court.8
J. Pinsler, Evidence and the Litigation Process, 3rd edn (LexisNexis: Singapore, 2010) 18.
Ibid. at 19. Jurisdictions include Singapore (the main jurisdiction to be discussed here),
Bangladesh, Malaysia, Myanmar, Nigeria, Pakistan, South Africa and Sri Lanka. India still uses the
statute as well.
C. Tapper, Cross & Tapper on Evidence, 12th edn (Oxford University Press: Oxford, 2010) 73.
See Chin T. Y., ‘Remaking the Evidence Code: Search for Values’ (2009) 21 Singapore Academy of LJ
52 at 53: ‘A number of the 19th century rules (of the Indian Evidence Act) were shown to be based
on falsifiable psychological assumptions, dubious epistemic premises or outdated political or
social mores: these were modified, overruled or repealed not just by judicial decision alone but
also by legislation in [some] jurisdictions.’
Tapper, above n. 3 at 73.
Pinsler, above n. 1 at 56, R. Margolis, ‘The Concept of Relevance: In the Evidence Act and the
Modern View’ (1990) 11 Singapore LR 24 at 24–33, Singapore Law Reform Committee, Report of the
Law Reform Committee on Opinion Evidence
(2011) 6–10. See also J. B. Thayer, A Preliminary Treatise on
Evidence at the Common Law
(Little Brown: 1898) 265: ‘The law furnishes no test of relevancy. For this,
it tacitly refers to logic and general experience’. However, it has been said (Margolis at 32) that as
regards Stephen’s terminologies, ‘while purporting to be a concept of logical relevance the term
“relevant” means something much more restrictive than logically probative’.
Pinsler, above n. 1 at 38–9.
Tapper, above n. 3 at 73, Margolis, above n. 6 at 35–41. For a very useful flowchart of how admissi-
bility works in England, see P. Roberts and A. Zuckerman, Criminal Evidence, 2nd edn (Oxford
University Press: Oxford, 2010) 99.

Whereas the first two characteristics apply to most Indian Evidence Act jurisdic-
tions, the third peculiarity is probably confined to the Evidence Act of Singapore
(hereinafter ‘Evidence Act’ for disambiguation).9 The Evidence Act, enacted in
1893,10 states in s. 2(2):
All rules of evidence not contained in any written law, so far as such
rules are inconsistent with any of the provisions of this Act, are
This peculiarity is unique to Singapore because most, if not all, Indian Evidence
Act jurisdictions repealed their equivalent of s. 2(2) quite early on.11 The literal
words of s. 2(2) present immediately apparent problems, chief of which is that
Singapore courts cannot rely on (the ever-changing) common law rules on
evidence unless those rules are consistent with the (essentially static) Evidence
Act. Unsurprisingly perhaps, the rigid s. 2(2) was virtually completely ignored or
glossed over by Singapore courts in evidence law decisions for more than a century
despite the precedence necessarily accorded to statutory law.12 With the passage of
time, the resultant unprincipled importation of common law concepts created
increasing contradictions between many provisions in the Evidence Act and
Singapore case law.13
One of the common law concepts that Singapore courts had, for a long time,
adopted without much restraint was the judicial discretion to exclude relevant
evidence. This is a common law concept of some vintage.14 In its most basic form,
the concept can be described as a court having the residual discretion in criminal
proceedings to exclude a piece of evidence if its prejudicial effect outweighs its
probative value; this discretion is residual because it is exercised even after the
piece of evidence has been deemed relevant (and in the context of the Evidence
Act, admissible),15 and this discretion can be exercised on the basis of a whole host
of reasons and normative justifications, depending on the jurisdiction in question
Chapter 97, Revised Edition 1997.
10 Pinsler, above n. 1 at 18.
11 For instance, India itself repealed its equivalent of s. 2(2) in 1938: Margolis, above n. 6 at 26. What is
interesting though is that there is a view that the statute remains a ‘complete code’ in India and
therefore it ‘does not permit the importation of any principle of English Common Law relating to
evidence in criminal cases to the contrary’: V. R. Manohar (ed.), Ratanlal & Dhirajlal’s The Law of
, 24th edn (LexisNexis: India, 2011) 2.
12 J. Pinsler, ‘Approaches to the Evidence Act: the Judicial Development of a Code’ (2002) 14 Singapore
Academy of LJ 365 at 366–77.
13 Ibid.
14 A. Keane, J. Griffiths and P. McKeown, The Modern Law of Evidence, 8th edn (Oxford University Press:
Oxford, 2010) 44–5.
15 Ibid. See also Muhammad bin Kadar v Public Prosecutor [2011] 3 SLR 1205 at [146]–[147].

(some of which have implemented legislation to either curtail or expand the
discretion).16 The practice of Singapore courts arbitrarily adopting the concept of
exclusionary discretion without due consideration of the provisions in the
Evidence Act was always going to be a problem, particularly since the nature of the
discretion seems, on the face at least, fundamentally at odds with how relevancy
and admissibility were conceptualised by Stephen in the Evidence Act (see the first
two peculiarities above).17 There is also no proof that Stephen was cognisant of
anything akin to the concept of exclusionary discretion when he drafted the
Evidence Act.18 A commentator recently encapsulated the full range of the
problem as follows:
Although the common law has long recognised the propriety of a
residual discretion to exclude evidence, which, if admitted, would
cause the accused person to suffer injustice, the scope of this principle
has been tainted by uncertainty, repeatedly modified by the courts
and ultimately reformulated by legislation in England. In Singapore
… the courts seemed to have been satisfied in applying successive
common law developments concerning the scope of the discretion
without attempting to rationalise the governing principle in the
context of the Evidence Act …19
Then came the 2008 seminal decision of Law Society of Singapore v Tan Guat Neo
Phyllis, where the Chief Justice bucked the jurisprudential trend and declared that
in view of s. 2(2) of the Evidence Act, ‘new...

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