The Concept Of Relevance [1990]_singlrev_3

The Concept of Relevance: In The Evidence Act And The Modern View The full answer to the question, ‘what facts are relevant,’ which is the most important of all the questions that can he asked about the law of evidence, has thus to be learnt partly by experience, and partly by collecting together such crooked and narrow illustrations of it as the one just given.1 The modern concept of relevance is quite different from that of Fitzjames Stephen as expressed in the Evidence Act. 2 And while Stephen’s approach was described by Thayer as having the aspect of a tour de force, 3 the same author went on to say that it was “this attempt [to put the rules of evidence wholly into terms of relevancy] that goes far to deprive his [Stephen’s] work of permanent value”. 4 Thayer made these comments as early as 1898 and yet, notwithstanding that Stephen’s approach has been discredited for ninety years, it is still properly the foundation of the law of evidence in Singapore. The Singapore Evidence Act is a near replica of the Indian Evidence Act( IEA), which Act was drafted by Stephen in 1870-71 during his two and a half year tenure as Legal Member of the Council in India. The IEA came into force in India on 1 September 1872. Stephen’s intent then was to draft a code which would provide a complete set of rules for the judge to apply to determine what evidence was admissible in trials.5 Such a code, according to Stephen6 was needed for two principal reasons: first, because India was far from England and changes in the law were not readily communicated, either by the Reports, or by discussion at dinners in the Inns of

1 JF Stephen The Indian Evidence Act with An Introduction on the Principles of Judicial Evidence (1872) Thacker, Spink & Co, Calcutta. 2 Cap 97 Statutes of the Republic of Singapore (1985 Rev Edn). 3 JB Thayer Preliminary Treatise on the Law of Evidence at the Common Law (1898) Boston at p 266, n 1. 4

Ibid.

5 See Stephen’s representations before the India Council, reported in ND Basu The Law of Evidence in British India (1931) III. 6 Ibid.

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Court; and second, because counsel and judges in India were not always of the same high quality and experience as they were in England.7 While the paradigm of admissibility of evidence in Stephen’s code was novel, in general the content of the code was not. The Indian Evidence Act was, said Stephen in his “Introduction”, “little more than an attempt to reduce the English law of evidence to the form of express propositions arranged in their natural order, with some modifications rendered necessary by the peculiar circumstances of India”.8 The Singapore Evidence Act was first enacted as the Straits Settlement Evidence Ordinance and came into force on 1 July 1893.9 The present Singapore Evidence Act differs from the Indian Evidence Act in three ways. First, certain of the Illustrations in the two Acts, for obvious reasons, differ. For example, the Illustration to s 49 refers to B, a merchant in Singapore. In the Indian Evidence Act, B is a merchant in Calcutta.10 Second, some few parts of the substantive content of the Act were modified subsequent to criticism of the Indian Evidence Act and developments in the common law of evidence. The chief example of a modification subsequent to criticism is the change to the definition of “fact” in s 3. In the Indian Evidence Act “fact means and includes-(1) any thing, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious”. In the Singapore Evidence Act a fact is defined merely to “include” these two things, the change having been made in response to keen criticism that the definition in the Indian Evidence Act was too narrow.11 7 Lord Birkenhead tells the following story: Mansfield is said to have given to a new Colonial judge who was totally ignorant of the law the famous advice: “Never give reasons”. It is related that the judge, while he followed this advice, was never reversed, but that, at last, encouraged by repeated decisions upholding his judgements, he was betrayed into the belief that he understood the law, and so delivered a judgement setting out his reasons, with the result that he was immediately dismissed for ignorance and incompetence: in Fourteen English Judges (1926) at p 183. 8 Supra n 1 at p 2. An example of such a modification is found in s 165 of the Indian Evidence Act (s 67 of the Singapore Evidence Act). 9 For a judicial history of the Evidence Act in Singapore see the dissenting judgement of Ambrose, J in Cheng Swee Tiang v PP (1964) 30 MLJ 291 (Appellate Criminal Jurisdiction, Singapore). 10 It may be noted that many of the illustrations are developed from the facts of actual cases; this illustration is based on the case of Doe v Suckermore (1836) 5A & E at p 703. To discover the sources of the illustrations one could best refer to Stephen’s “Digest” or to Taylor’s “Treatise”, although it was Stephen’s intention that the past law not be referred to: see supra n 1 at p 129. As to the use and significance of the Illustrations, see Mohd Syedol Arifin v Yeoh Ooi Gark [1916] 2 AC 575 at p 581. 11 Supra n 3 at pp 191-92.

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Examples of modifications to the Singapore Evidence Act subsequent to developments in the common law include the insertion of a new s 120, which gives the accused the right to testify on his own behalf, and Explanation 2 to s 14, which reflects the decision of the Calcutta High Court in R. v. Kartick Chunder.12 An important difference in the two Acts is found in s 2. Section 2(1) of the Indian Evidence Act, itself since repealed13, purported to repeal all common law rules of evidence whereas s 2(1) of the Singapore Evidence Act provides for the repeal of only those judge-made rules inconsistent with the provisions of the Evidence Act. This difference between the two Acts is of fundamental importance14 but not, however, for present purposes. The third principal difference between the two Acts is that a number of sections in the Singapore Evidence Act have been added by later Acts of the Singapore Parliament. For example, ss 35 and 36 and sub-ss 122(3)-(8), which provisions are based on the recommendations in the “Eleventh Report” of the Criminal Law Revision Committee,15 were inserted by the Evidence (Amendment) Act 1976. It has often been remarked that the Indian Evidence Act was merely a condensing of Taylor’s “Treatise on the Law of Evidence”.16 Taylor’s 1848 “Treatise” was itself perhaps less original than was Stephen’s Indian Evidence Act. William Twining has called Taylor’s “Treatise” “an interesting case study in publishing history”.17 Taylor’s original intention was merely to edit Greenleaf’s 1843 American “Treatise on the Law of Evidence” for use in England and Ireland, but he found that the English case and statute law had diverged too far to make annotations satisfactory. Accordingly, Taylor published the work in his own name, despite the fact that, by his own admission, substantial parts of the original text were Greenleaf’s ipsissima verbal.18 12 (1887) 14 C 721. In fact, Explanation 2 was inserted into the Indian Evidence Act by s 1(1) of Act 3 of 1891 (India), that is, before the Straits Settlements Evidence Ordinance was enacted. For a discussion of the significance of this Explanation see (1988) 9 Sing LR at p 119, n 5. 13 Repealed by the Repealing Act 1938 (I of 1938), s 2 and Sch. 14 See, for example, Jayasena v The Queen [1970] AC 618, Cheng Swee Tiang v PP supra n 9 and (1988) 9 Sing LR at pp 109-10. 15 Criminal Law Revision Committee “Eleventh Report Evidence (General)” Cmnd 4991 (1972). The proposals made in the “Eleventh Report” were not adopted by Parliament in England. 16 For example, Subba Roa, J in A 1961 SC 493 at p 526; see Stephen’s response to these allegations: supra n 5. 17 W Twining The Rationalist Tradition of Evidence Scholarship in E Campbell and L Waller Well and Truly Tried (1982) Law Book Company, Sydney at p 232. 18 See the preface to JP Taylor’s Treatise on the Law of Evidence (1848).

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But the distinction between the rules of evidence and the theory of the subject must be kept clear, and although Stephen may have done little more in the Indian Evidence Act, regarding the rules aspect of the subject, than summarise existing texts, his contribution to the theory of the subject was significant. The leading writers before him, from Gilbert to Starkie, Greenleaf, Taylor and Best, stated the “best evidence rule”, that is, “that the best evidence that the circumstances of the case will allow must be given”,19 to be the main underlying principle of the law of evidence, but had then qualified it with so many exceptions that the best evidence rule served no useful purpose.20 As an underlying principle of admissibility Stephen replaced the best evidence rule with a doctrine of relevancy. Stephen’s particular concept of relevancy was ultimately rejected by later writers, but Twining, commenting that Stephen’s concept stimulated his critics to clarify basic concepts and reduce the law of evidence to order on sound principles, called it a “fruitful failure”. 21 It is my purpose here to consider this fruitful failure: to determine what Stephen meant by relevance, to discuss his concept in the context of the paradigm of admissibility in the Singapore Evidence Act and to compare this approach with the modern approach to relevance and admissibility of evidence. I will demonstrate that the underpinning theory of the Singapore Evidence Act is at best anachronistic and in all likelihood incorrect, and that the Act is at present internally inconsistent. I will suggest that for this reason, and because many of the rules set out in the Act are only appropriate in a system where there is trial by jury, the Singapore Evidence Act ought to be repealed. THE MODERN CONCEPT OF RELEVANCE I call this the modern approach but it is perhaps better called the current approach, for it was explicitly stated as early as 1898 by James Thayer in his “Preliminary Treatise”.22 19 Lord Hardwick in Villiers v Villiers (1740) 2 Atk 71; similarly, Omychund v Barker (1745) 1 Atk 21 at p 49. 20 Supra n 17 at p 236; supra n 3 at chapter 11. 21 Supra n 17 at p 237. 22 Supra n 3. The development of Thayer’s approach is traced in 1 Wigmore at chapter 10, pp 294-5 (3rd edn) to the important 1837 judgement of Parke B in Wright v Tatham 7 A & E at pp 313384 in which his Lordship said: One great principle of this law [of evidence] is that all facts which are relevant to the issue may be proved.

But as we have seen, at that time, and in fact at least until Stephen’s work, the best evidence rule was still considered by the text-writers to be the best fundamental principle underlying the rules of admissibility. Ch XI of the “Preliminary Treatise” is devoted to a discussion of the best evidence rule.

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Thayer announced that the scope and functions of the law of evidence are quite limited and can be reduced to a simple system, based on two principles: (1) (2)

that nothing is to be received which is not ìllogically probative of some matter requiring to be proved; and that everything which is thus probative should come in, unless a clear ground of law or policy excludes it.23

In a recent decision of the Supreme Court of Canada, on the issue as to whether certain opinion evidence of a Royal Canadian Mounted Police constable was admissible, Dickson, J as he then was, delivering the judgment of the Court, said: To resolve the question before the court, I would like to return to broad principles. Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of policy or of law.24

It will be seen that the Supreme Court of Canada did not suggest a method for determining whether a fact is relevant. To quote Thayer once more: The law furnishes no test of relevancy. For this, it tacitly refers to logic and general experience, assuming that the priciples of reasoning are known to its judges. 25

Stephen’s novel paradigm of admissibility in the Indian Evidence Act was in part a reaction to the failure of the law to provide a test for determining what is relevant.26 As we shall see, Stephen takes up about a third of his Act with a definition of relevance.

23 Supra n 3 at pp 264-65, 530. 24 Graat v The Queen (1982) 144 DLR (3d) 269 at p 281. For English authority recognizing this as the correct approach, reference may be made to the judgement of Lord Goddard in Hollington v Hewthorn & Co [1943] KB 587, in which he said at p 594: But, nowadays, it is relevance and not competency that is the main consideration, and generally speaking, all evidence that is relevant to an issue is admissible, while all that is irrelevant is excluded.

There are some difficulties in determining exactly what Lord Goddard meant by the term “relevant” in this case, especially as it is used in opposition to the term “irrelevant”, but that it is not an issue which concerned Cross (infra n 27 at p 17) and is not one which should at this moment detain us. 25 Supra n 3 at p 265. 26 Supra n 1 at p 55 and supra n 10 at x-xi.

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Cross was of the opinion that it was “difficult to improve upon” Stephen’s definition of relevance.27 But the definition of which Cross approved, that is: The word “relevant” means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future 28 existence or non-existence of the other,

is from the third edition of Stephen’s “Digest”.29 It is perhaps a suitable definition but it is not the definition Stephen used in the Indian Evidence Act nor is it, for that matter, the definition he used in the first two editions of the “Digest”.30 Such a definition is probably no more useful than the more straightforward formulation of George F James that: “Relevancy, as the word itself indicates, is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a proposition sought to be ìproved. If an item of evidence tends to prove or to disprove any proposition, it is relevant to that proposition.”31 Returning to the modern approach, the current paradigm of admissibility of evidence is thus: all relevant facts are admissible unless excluded by a clear ground of policy or of law; relevant means logically probative, and is a matter of logic and experience. But what does it mean to say something is relevant as a matter of logic? Cross was impressed by the test of relevancy suggested by Stephen in the first edition of his “General View of the Criminal Law”.32 As a test for determining

27 Sir R Cross Evidence (5th edn) Butterworths, London, at p 18. 28 Ibid. 29 Article I. 30 In the third edition of the “Digest” Stephen acknowledged that his theory of relevancy as stated in the “Introduction” was expressed too widely in certain parts, and not widely enough in others (at p 155). Criticisms of the earlier definition were made in a pamphlet authored by GC Whitworth The Theory of Relevancy for the purpose of Judicial Evidence (1875) Bombay, and these were accepted by Stephen who “accordingly embodied his [Whitworth’s] definition of relevancy, with some variations and additions, in the text of the first edition “ of the “Digest”. The definition in the third edition was substituted for the Whitworth definition not because Stephen thought it was wrong, but because the Whitworth definition gave the principle on which the rule depended rather than a practical convenient rule (“Digest” at p 155 3rd edn), and it was the latter sort of thing that Stephen was interested in expressing in the “Digest”. 31 GF James Relevancy, Probability and the Law (1941) 29 Calif LR at pp 689-690. 32 Supra n 27 at p 18; Stephen General View of the Criminal Law (1863) Macmillain, London-New York at p 236. See also 1 Wigmore chapters 30-36, p 415 et seq, for a discussion of the inductive and deductive approach to the issue of determining relevance, and especially Stephen’s “Introduction”, the second chapter of which is devoted to the subject.

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whether one fact should be regarded as relevant to another, Stephen suggested that the matter should be cast in the form of a syllogism: the alleged evidentiary fact constitutes the minor premise; it is then only necessary to decide whether the major premise is a proposition the truth of which is likely to be accepted by the person who has to draw the conclusion, in the case of a lawsuit, the trier of fact.33 For present purposes, it works this way. The conclusion is the fact we wish to prove, for example, that A intended to kill B34. The minor premise is the fact we seek to adduce, for example, that A had on two previous occasions shot at B. The major premise is a general proposition which, if true, will require that the conclusion follow from the first premise. The major premise here is: a man who in the past shot at another man is more likely to intend his death when he shoots at him than a man who has not. The trier of fact must accept this major premise to be true in order that the adduced fact (in the minor premise) be relevant to the fact sought to be proved (in the conclusion). Of course, it is the judge who must decide whether a reasonable jury could come to this conclusion from the two premises; if he decides that a reasonable jury could not, he excludes the evidence (the fact in the minor premise) on the grounds that it is irrelevant. Where the judge sits alone, should he decide that a particular item of evidence is irrelevant, he will refuse to hear evidence, for example oral testimony, tending to establish the truth of its existence or non-existence. This distinction between relevancy of a fact and the proof of it was clearly appreciated by Stephen and in fact it is fundamental to the architecture of the Evidence Act.35 Thus, if there is no true or acceptable major premise that will allow the conclusion to follow from the minor premise (as a matter of logic and experience) then the fact in the minor premise is irrelevant to the fact in the conclusion. Consider the case where the fact sought to be proved is that A stole B’s watch. The fact sought to be adduced to prove this is that A was born in Penang. The form of the argument is: A was born in Penang (minor premise); a person

33 Supra n 27 at p 18. See also supra n 32, Wigmore at chapter 30, pp 415-16. 34 This example is taken from s 14 illustration (i) of the Singapore Evidence Act. 35 Stephen wrote in the “Digest” at ix: “The arrangement of this book is the same as that of the Indian Evidence Act, and is based on the distinction between relevancy and proof, that is between the question What facts must be proved? and the question “How must a fact be proved assuming the proof of it may be given”. See also supra n 1 at pp 9, 12, where Stephen provides a “tabular scheme” of the arrangement of the Evidence Act along the lines of this distinction.

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born in Penang is more likely to steal a watch than a person born elsewhere (major premise); therefore, A stole B’s watch (conclusion).36 It is unlikely that there is a true major premise that can connect the minor premise and the conclusion in this example. Therefore, the one fact is not relevant to the other.37 But this exercise does not replace the application of logic and experience to the problem of determining whether one fact is relevant to the proof of the existence of another. After all, if A were a convicted thief, when considering whether A’s history is relevant it would still be necessary to decide whether, as a matter of logic and experience, a man who has once stolen (or, perhaps, once been convicted of stealing) is more likely than a man who has not stolen before to have stolen the watch this time. It is readily apparent that it is very important how the major premise is formulated, for it must be perceived to be true. Of course, in most cases it will be unnecessary to go through this exercise, as the fact sought to be adduced will be obviously relevant. But this execise has a further valuable function. It forces the trier of fact to think about the strengths of a party’s argument. Even the greatest of evidence scholars can make mistakes when deciding whether one fact is relevant to the proof of another. Wigmore gave this example: To prove a charge of murder evidence is offered of the defendant’s fixed design to kill the deceased. The non-syllogistic form of the argument is: “A planned to kill B; therefore A probably did kill B.” Wigmore converted this argument into the syllogism: “A had a fixed design to kill B; men’s fixed designs are probably carried out; therefore, A probably carried out his 38 design and did kill B.

Is this argument convincing? Consider the major premise: “men’s fixed designs are probably carried out”. James suggested two reasons why this might not be a useful major premise for the syllogism.39

36 Or, more properly, A is more likely, by virtue of the existence of this fact, to have stolen B’s watch. If the minor premise were that A was poor the result might be the same: the fact would be found not to be relevant. If the minor premise were that A had prior convictions for theft this fact might be relevant but inadmissible on ground of public policy or by law. Occassionaly there is a confusion between excluding evidence because it is irrelevant or because it is relevant but inadmissible by a “negative rule of exclusion”: see, for example, R Eggleston Evidence, Proof and Probability (1983) Weidenfeld and Nicolson, London at pp 83-87. 37 Supra n 31 at p 690 et seq, distinguishes between two kinds of irrelevance: an item of evidence may be irrelevant because it is not logically probative of the proposition at which it is directed, or because that proposition is not provable in the case because it is not material. We are concerned with the first kind of (ir)relevance. 38 Supra n 32, Wigmore at chapter 30, pp 416-17 (3rd edn). 39 James (1941) 29 Calif LR 689 at p 689-98.

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First, it would be more appropriate to say that “men’s fixed designs to commit murder are probably carried out”. What of men’s fixed designs to wash the car or mow the lawn? This demonstrates the problem that exists when there are in fact different probabilities that might be attached to different “sub-classes” of a proposition subsumed within a more general proposition. Second, even if the major premise were formulated more precisely as “men’s fixed designs to commit murder are probably carried out”, is this proposition true? But we all have an intuitive feeling that the fact that A had a fixed design to kill B is relevant, that is, that it is logically probative. What, then, is the proper form of the argument? Probably it is something like this: A had a fixed design to kill B (minor premise); Men having such a fixed design are more likely to kill than are men not having such a fixed design (major premise);40 Therefore, the apparent probability of A’s guilt is now greater than before the evidence of design was received (conclusion).

Note that Wigmore’s conclusion that “therefore A probably did kill B”, has been amended. This is because evidence is admissible which makes guilt more probable than before it was adduced without necessarily making the accused “probably” (that is, more likely than not) guilty.41 THE CONCEPT OF RELEVANCE IN THE EVIDENCE ACT The concept of relevance in the Singapore Evidence Act differs from the modern concept in two related ways. First, while purporting to be a concept of logical relevance42 the term “relevant” means something much more restrictive than logically probative. Second, under the Evidence Act, relevance is the sole and necessary condition of admissibility, rather than a precondition of it; that is, under the Act, relevant means admissible.43

40 Ibid at p 699. 41 Supra n 36 at p 86 called this confounding of “probably” and “increased probability” the “Wigmore fallacy”. 42 Supra n 1 at pp 52-53; supra n 3 at p 266, n 1. 43 Supra n 1 at p 55; Ratanlal and Dhirajlal The Law of Evidence (1987) Wadhwa and Company, Nagpur at p 5: “Relevant”, strictly speaking, means admissible in evidence.

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We have seen that by 1876 (the time of the first edition of the “Digest” Stephen was no longer satisfied with his earlier definition of relevance in the “Introduction”. But it is the earlier concept of relevance which is reflected in the Evidence Act, although the Act’s definition differs significantly from that in the “Introduction”, principally because of the Act’s novel paradigm of admissibility. In the “Introduction” Stephen gives the following definition of relevance: facts may be regarded as relevant which can be shown to stand either in the relation of cause or in the relation of effect to the fact to which they are said to be relevant. 44

Stephen was concerned about the obscurity of this definition, and was worried that though this mode of describing relevancy might be correct, it would not be readily understood. “For instance”, he asked, “how is an alibi relevant under this definition? The answer is, that a man’s absence from a given place at a given time is a cause of his not having done a given act at that place and time.”45 But Stephen did not feel that this mode of language would be particularly helpful, and it was for this reason that relevancy was comprehensively defined in the Evidence Act. THE OUTLINE OF THE FIRST PART OF THE EVIDENCE ACT Part I of the Evidence Act, in particular ss 5-57, deals with relevancy of facts. This Part provides the answer to the first of what Stephen called the “three great questions” to which the law of evidence supplies answers;46 that is: what facts may be proved to be true upon a legal proceeding having for its object the ascertainment of any legal right or liability. 47

Sections 5-11 enumerate specifically the different instances of connection between cause and effect which occur most frequently in judicial proceeding.48 Stephen purposely worded these sections very widely and in such a way as to overlap.49 For example, a motive for murder relevant under s 8 (Illustration (a)) is also relevant under s 7 as a cause of the murder.

44 Supra n 1 at p 53; see n 3 at pp 191-92, n 3 for a discussion of what Stephen meant by “fact”. 45 Supra n 1 at p 55. 46 Supra n 32 at pp 181-82; n 1 at pp 7-9. 47 The other two great questions are: how is a fact that may be proved to be proved; and, who is to prove it? 48 Supra n 1 at p 55. 49 Ibid.

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Further, s 11, especially sub-s (b) is broad enough to cover most facts relevant by ss 6-10. Section 11 provides: Facts not otherwise relevant are relevant-(b) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

If it were not for the word “highly” in the sub-section, this would be an adequate definition of “logically probative”. In his “Introduction” Stephen made it clear that he did not intend that the concept was to have the meaning of logically probative, and said that it was “in compliance with a suggestion from the Madras Government” that some degree of latitude was left in the wording of s 11. 50 I do not intend to go through each of ss 6-11 explaining to what modern rules they correspond. I would be unable to do so without discussing much of the law of evidence as I went along. For example, s 6 corresponds in part to the modern rule of res gestae, which is, in the opinion of some writers, an exception to the rule against hearsay, and, according to others, outside the hearsay rule altogether. Rather than be detained by such discussion, it is sufficient to say at this moment that so long as a fact is declared to be relevant by this, or any other section in Part I of the Evidence Act, it is admissible. As I have said, the concept of relevance in the Evidence Act means something less than logically probative. But it is defined more broadly than it is in ss 6-11, in which sections Stephen hoped to “codify” his cause and effect definition of relevance. Sections 12-57 extend the definition of relevance. For example, s 12 states: In suits in which damages are claimed any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.

And s 53 provides: Whenever the opinion of any living person is relevant, the grounds on which such an opinion is based are also relevant.

Thus, in effect, nearly the whole of the first Part of the Evidence Act, from ss 6-57, is taken up defining the concept of relevance. The reason for such an elaborate definition of relevance is found in s 5.

50 Supra n 1 at p 123.

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THE PARADIGM OF THE EVIDENCE ACT It will be recalled that the paradigm of admissibility at common law is that all relevant, meaning logically probative, facts are admissible unless excluded by a clear ground of policy or law. That is, the English law of evidence is a collection of “express negative rules”.51 The paradigm of admissibility under the Evidence Act is the converse of the common law one.52 Section 5 of the Evidence Act provides: Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.53

That is, under the Evidence Act, the paradigm of admissibility is: no facts but facts in issue54 are admissible unless positively declared in the Act to be relevant. Thus in the Evidence Act, but for facts in issue, relevance is equated with admissibility.

51 Supra n 10 “Digest” at ix. I will return to this proposition because while it is correct, in Stephen’s understanding of it will be found the fundamental error in his doctrine of relevancy. 52 Supra n 1 at p 55, Stephen says of ss 6-11: “These sections are by far the most important, as they are the most original part of the Evidence Act, as they affirm positively what facts may be proved, whereas the English law assumes this to be known, and merely declares negatively that certain facts shall not be proved”. 53 Section 3(2) of the Evidence Act adds little to the definition of relevant, merely providing that: “One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.” 54 Fact in issue is defined in s 3(1) of the Evidence Act to include “any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows”. This potentially troublesome definition is clarified by the narrow meaning assigned the concept in the Illuistration: A is accused of the murder of B. At his trial the following facts may be in issue: that A caused B’s death that A intended to cause B’s death; that A received grave and sudden provocation from B; that A at the time of doing the act which caused B’s death was by reason of unsoundness of mind incapable of knowing its nature. Thus, facts in issue are determined by the substantive law. A more precise definition is given by Stephen supra n 32 at pp 181-82: “All facts which, if proved would establish or rebut the existence of any...right or liability. ...[T]he pleadings in each case show that they are”. See also the supra n 1 at p 9.

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The procedure required by the Evidence Act is exceptionally cumbersome. Each fact which a party seeks to adduce must be shown to be relevant under one of ss 6-57. Stephen gives several examples in the “Introduction” of the way in which this is to be done.55 It is certainly not a procedure which recommends itself; nor is it one that is generally, if at all, followed by the courts. But the most curious feature about admissibility in the Evidence Act is not that it reversed the common law paradigm; it is that the substitution in the Act of positive rules for the negative ones of the common law was acknowledged by Stephen himself to be of little importance. Important as these sections [that is, ss 6-11] are for purposes of study,” said Stephen, “and in order to make the whole body of law to which they belong easily intelligible to students and practitioners not trained in English courts, they are not likely to give rise to litigation or to nice distinctions. The reason is that s 16756 of the Evidence Act...renders it practically a matter of little importance whether evidence of a particular fact is 57 admitted or not.

This section provides: The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it appears to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.58

This section was presumably a reaction to the English law of the time. In the “Introduction” Stephen says: “The extreme intricacy and minuteness of the law of England on this subject is principally due to the fact that the improper admission or rejection of a single question and answer would give a right to a new trial in a civil case, and would upon a criminal trial be sufficient ground for the quashing of a conviction before the court for Crown Cases reserved”.59

55 See for example, the review of the evidence presented in “Donellan”: supra n 1 at p 57. 56 Section 169 of the Singapore Evidence Act. 57 Supra n 1 at p 55. 58 The section was already part of the law of India as s 57 of Act II of 1855. 59 Supra n 1 at pp 55-56. One might well ask why, if the issue of relevance is in practice so unimportant, it attracted so much of Stephen’s energy. The answer is probably that Stephen wanted his practical Act to reflect his general theory of evidence; the drafting of the Act was perhaps as great an exercise of ego as of intellect.

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LEGAL RELEVANCE AND THE INDIAN EVIDENCE ACT Thayer said of Stephen’s treatment of the law of evidence that “it is to be observed that by relevancy he always means logical relevancy; the common but uninstructive distinction between legal and logical relevancy was not made by him”.60 In this observation Thayer is only partially correct,61 for although it is true that Stephen made no explicit distinction between legal and logical relevancy, and while Stephen often discussed relevancy in terms of logical probity in both the “Introduction” and the “Digest”, his doctrine of relevancy was one of legal relevancy. Moreover, in the IEA particularly, his doctrine embodies the concepts of legal relevancy in both senses of that term. There are two kinds of legal relevancy and they are of such different origins and effects that they ought not to go by the same name. Stephen’s doctrine of relevancy in part embodies both these kinds, but goes beyond them. The first kind of legal relevancy is that which formed the foundation of the doctrine in the Indian Evidence Act, that is, that certain types of evidence, by precedent and authority, have so often been admitted that they are admitted as relevant in the instant case without reference to their logical probity.62 An oftencited63 formulation64 of this definition is that of Cushing, CJ in the 1876 New Hampshire case of State v LaPage: ...although undoubtedly the relevancy of testimony is originally a matter of logic and common sense, still there are many instances in which the evidence of particular facts as bearing on particular issues has been so often the subject of discussion in courts of law, and so often ruled upon, that the united logic of a great many judges and lawyers may be said to furnish evidence of the sense common to a great many individuals, and,

60 Supra n 3 at p 266, n 1. 61 Supra n 36 p 82 seems to make a similar mistake relying on Stephen’s definition of relevance in s 11 of the IEA and in later editions of the “Digest” to support the view that Stephen’s concept of relevance was one of logical relevancy. 62 The converse of this is perhaps the more important result, that is, certain types of evidence, for example hearsay, have so often by precedent been excluded that they will be excluded in the instant case as legally irrelevant without regard to their logical relevance; see supra n 1 at p 122; supra n 10 the “Digest” at xii-xiii; supra n 32, Stephen at pp 181-82. 63 Wigmore regarded this passage as authority for the proposition that the law did in fact furnish a test for relevancy, “ a very fundamental error” on Wigmore’s part: supra n 31 at p 694. 64 Cushing, CJ’s formulation might be called the “weak” version of this type of legal relevancy. Stephen’s elaborate formulation in the IEA is the “strong” version. It is possible that they are not versions of the same thing, but different things altogether. However, as both operate to admit evidence which can be described as facts which by precedent and authority have so often been admitted that they are admitted as relevant in the instant case without reference to their logical probity, I have treated them as being of the same class.

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therefore, the best evidence of what may be properly called common-sense, and thus to acquire the authority of law. It is for this reason that the subject of the relevancy of testimony has become, to so great an extent, matter of precedent and authority, and that we may with entire propriety speak of its legal relevancy.65

Stephen’s doctrine of relevancy goes well beyond the definition of legal relevancy given by Cushing, CJ, who appears to be doing no more than deciding as a matter of law what facts are logically probative. Stephen too looked to authority and precedent to determine whether a fact was relevant, but he concluded that facts determined by authority to be inadmissible were not “relevant” regardless of their logical probity.66 Stephen treated certain inadmissible evidence, such as hearsay evidence and similar fact evidence,67 for example, as being irrelevant. He referred to them as “facts which are apparently relevant but are not really so.”68 Neither of these types of evidence was relevant, he says, “within the definition of relevancy given in ss 6-11”,69 by these words indicating that the IEA definition of relevancy was something different than the general meaning.70 Only facts declared relevant in Part I of the Indian Evidence Act could be proved and these facts were, in effect, all those which the established negative rules did not exclude. Facts declared relevant in the Evidence Act will for the most part be logically probative, although, as James has indicated,71 relevance is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a proposition sought to be proved.72 On the other hand, not all logically probative evidence is in the Evidence Act declared to be relevant.

65 (1876) 57 NH 245 at 288. 66 Supra n 10 Stephen’s “Digest” at ix: The great bulk of the Law of Evidence consists of negative rules declaring what, as the expression goes, is not evidence. The doctrine that all facts in issue and relevant ot the issue, and no others, may be proved, is the unexpressed principle which forms the centre of and gives unity to all these express negative rules. 67 Supra n 1 at p 122. See also supra n 10, the “Digest” at xii-xiii; supra n 32 at pp 181- 182. 68 Ibid. 69 Ibid. 70 Supra n 1 at pp 123-24 Stephen expressly recognizes that hearsay may be relevant in the logically probative sense while at the same time being “not relevant within the meaning of the Evidence Act”. 71 Supra n 31 at p 690. 72 Stephen recognized this, and many of the sections in Part I of the IEA declaring facts to be relevant, for example, ss 7 and 8, do so with reference to their relation to other facts.

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The concept of relevance developed in the “Digest” is basically the same as that underlying the extensive and comprehensive definition in the Indian Evidence Act, but it differs to the extent that a difference is compelled by the converse paradigms of admissibility in the “Digest” and the Act. Article 2 of the “Digest” provides: Evidence may be given in any proceeding of any fact in issue, and of any fact relevant to any fact in issue unless it is hereinafter declared to be deemed to be irrelevant, and of any fact hereinafter declared to be deemed to be relevant to the issue whether it is or is not relevant thereto. Provided that the judge may exclude evidence of facts which, though relevant or deemed to be relevant to the issue, appear to him too remote to be material under all the 73 circumstances of the case.

Stephen intended in the “Digest” to “represent the existing law exactly as it stands”.74 The paradigm of admissibility therein reflected the common law paradigm expressed by Thayer, that is, that all logically relevant evidence was admissible which was not expressly excluded, but with this distinction: logically relevant facts deemed irrelevant were not admissible and, rather curiously, any fact deemed to be relevant to the issue was admissible whether it was or was not logically probative thereof. This qualification to the Thayer paradigm, which of course was then not yet articulated, reflects Stephen’s use of the first of the two species of legal relevancy, and is consistent with the concept of relevancy found, for the most part, in the Evidence Act. The second kind of legal relevancy is embodied in the Evidence Act to a lesser extent than the first. Logically relevant evidence may be of so little probative value as not to justify the expense and time involved in receiving it.75 Logically relevant evidence which is of sufficiently high probative value as to overcome this hurdle has been described as being “legally relevant”.76 In this aspect of it, legally relevant evidence is said to have a “plus value” beyond a bare minimum of probative value.77 On occasion Stephen demanded of a fact that it should have a plus value greater than the bare minimum.

73 An extensive criticism of this Article was made in The Solicitor’s Journal (Sept 9 1976) Vol XX at p 869. 74 Supra n 10 at vi. 75 Supra n 32 Wigmore at chapter 28, pp 409-10; supra n 31 at p 701. 76 Supra n 32, 1 Wigmore chapter 28, pp 409-10. See also Black’s Law Dictionary (3rd edn) West Pub Co, St Paul; the fifth edition of “Black’s” no longer gives under the heads of “relevancy evidence” or relevancy” a definition of legal relevancy. 77 EW Cleary et al McCormick on Evidence (1984) West Pub Co, St Paul at p 548; supra n 32 Wigmore at chapter 28, pp 409-10. Supra n 27 at p 176, Cross says that evidence must be “sufficiently relevant” to be admissible; this terminology is retained in the 6th edition (1985) at p 58.

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In the first edition of the “Digest” Stephen gave the following definition of relevant: A fact is relevant to another fact when the existence of the one can be shown to be the cause or one of the causes, or the effect or one of the effects, of the existence of the other, or when the existence of the one, either alone or together with other facts, renders the existence of the other highly probable, or improbable, according to the common course of events (my emphasis).78

This use of the qualification “highly” to modify “probable, or improbable” is reminiscent of s 1179 of the Evidence Act, which, as we have seen, provides: Facts not otherwise relevant are relevant(2) if by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable.

There is probably not much to gained here by further analysis of s 11; it is sufficient to recognize that Stephen was not prepared to admit all logically probative evidence.80 Section 11 was obviously designed as a catch-all, but with a mesh sufficiently wide to allow facts of a bare, or even somewhat greater, probative value to slip through. As with relevance itself, “plus value” is not an inherent attribute of an item of evidence. And, as it will not always be evident outside of the context of the entirety of evidence produced in the trial and the full argument made whether the plus value threshhold is achieved, the propriety of excluding evidence for want of legal relevancy in this sense is questionable. CONCLUSION Stephen’s concept of relevance and that of Thayer is more than a difference in nomenclature.81 It reflects Stephen’s fundamental misconception of the principles underlying the rules of admissibility of evidence. Relevance is not, as we have seen, an inherent attribute of any fact, and it is probably not possible, and is certainly not useful, to provide as a basis of admissiblility a set of propositions which purport to cover every situation where one fact is related in a logically probative way to another. It is all the more difficult if from this set is excluded a number of propositions which belong in it, like hearsay statements or evidence of similar facts, but which by authority and precedent are otherwise not admissible.

78 Supra n 10 “Digest” at xii. 79 Supra n 1 at pp 122-23: Stephen discusses s 11 in some detail. 80 James demonstrates that the term “legal relevancy” in this sense is not susceptible of a useful definition; see (1941) 29 Calif LR 689 at p 701. 81 Cf supra n 32 Wigmore at chapter 12, pp 298-99.

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Stephen’s basic error82 was that he set out as a series of formal rules of evidence the fundamental presupposition of a rational system of evidence that only logically probative evidence is admissible.83 His doing so has been described variously as a “bold attempt”84 and a “splendid mistake”85 . The novelty of his approach is acknowledged but not so its validity. I have attempted here to describe Stephen’s concept of relevance and the way in which it is embodied in the Evidence Act. I have, I believe, demonstrated that it is fundamentally different from the currently accepted and, I suggest, theoretically sound approach to the admissibility of evidence. The unique paradigm of admissibility in the Evidence Act is not useful nor is it used by the courts.86 Furthermore, Stephen’s paradigm in the Evidence Act has been disregarded by Parliament. In 1976 a number of provisions adopted from the “Eleventh Report” of the Criminal Law Revision Committee in the United Kingdom were inserted in the Evidence Act.87 Among them, s 35(1)88 provides: In be be in

any proceedings a statement contained in a document produced by a computer shall admissible as evidence of any fact stated therein of which direct oral evidence would admissible, if it is shown that the conditions mentioned in subsection (2) are satisfied relation to the statement and computer in question.

Section 35 declares not that certain documents produced by computer are “relevant”, but rather, that they are “admissible”. Yet, as we have seen, s 5 of the Evidence Act restricts the evidence which may be given in any suit or proceedings to evidence of facts in issue and such other facts as are declared in the Act to be relevant, and of no others.89 82 W Twining Theories of Evidence: Bentham and Wigmore (1985) Stanford University Press, Stanford, California at p 7. 83 Supra n 3 at pp 264-65. Thayer describes the modern approach to evidence as a rational system in contrast to such non-rational systems as trial by battle, compurgation or ordeal. “What was formerly ‘tried’ by the method of force or the mechanical following of form”, he says at p 199 “is now ‘tried’ by the method of reason.” See generally supra n 17 and ibid at chapter 1. 84 Supra n 17 at p 236. 85 F Pollock “Review of Thayer’ (1898) 15 LQR 86. Elsewhere Pollock wrote, “Rules of evidence exist, not to tell us what facts logically tend to proof, but to limit, for various reasons of policy, (1) the logically relevant facts that may be proved at all,... The Indian Evidence Act attempts to combine a code of law with a dogmatic treatise on the logic of proof, and fails, not from any want of ability in its author, but because the task is impossible”: (1897) 13 LQR 223. 86 In fact, not only is evidence not admitted according to the paradigm of the Evidence Act, often it is not excluded according to the provisions of the Act: see, for example, Poon Soh Har & Anor v PP [1977] 2 MLJ 126 (Court of Criminal Appeal) and Teo Koon Seng v R [1936] MLJ Rep 9 (Appellate Criminal Jurisdiction, Singapore). 87 By the Evidence (Amendment) Act 1976 (No 11 of 1976). 88 Adopted from clause 35 of the Draft Bill in the 11th Report. 89 A similar incongruity of language is found now in s 122(7), which section was also inserted by the Evidence (Amendment) Act 1976, in which the term “relevant” in the sense of logically probative is used.

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No one would reasonably expect a court to reject computer produced documents otherwise admissible under s 35 merely because they are not declared by that section (or elsewhere) to be relevant. But if a court were faced with an argument for exclusion on this ground, could it avoid a conclusion that Parliament has rejected the paradigm of admissibility in the Evidence Act, with the consequence that the validity of the entire Act is questionable, this paradigm being the foundation of it? In a recent article I suggested that as the English law of evidence is the child of the jury system, and as the jury has been abolished in Singapore, the Singapore courts and Parliament ought to make a bold attempt to establish an indigenous law of evidence based on Singapore’s novel situation: that is, that of a jurisdiction with a common law tradition of evidence and adjudication, but without a jury system.90 It is clear that the Singapore courts cannot do this on their own since theoretically, though it is not always their course in practice, these courts are bound to apply the Evidence Act. The Act reflects the English rules of evidence of 1870 or so.91 But as well as codifying a number of anachronistic rules and compelling their present application, which is the most serious objection, the Evidence Act is also obsolete in so far as its theoretical underpinning is, as I hope to have shown, invalid. Cross is reported to have said that he was working for the day that his subject was abolished.92 My own goals are, as they must be, somewhat more modest. I have written this with an intent to hasten the day that the Evidence Act is studied only by historians and considered by the courts not at all. Robert Margolis*

90 (1988) 9 Sing LR 103. 91 Supra n 1 at p 2. The English rules of that time were for the most part rules of exclusion which prevented evidence of facts from going to the jury 92 Supra n 82 at p 10. *

Lecturer, Faculty of Law, University of Hong Kong.