Hearsay

1. CHEAT SHEET

Does the evidence go towards showing the existence of any fact in dispute or relevant fact?
o Starting point is that the issue at trial must be identified
o If the evidence is irrelevant to the issue at trial, then it is strictly speaking inadmissible no
need to even consider the hearsay rule
o Conversely, if its relevant (see s 5 to 11), its presumptively admissible
Was the statement made out of court? If so, is the maker of the statement called as a witness?
o If the statement wasnt made out of court or if the maker of the statement is called as a
witness hearsay rule does not apply
What is the purpose of tendering the statement
o Statement is not hearsay if:
The making of the statement itself is the fact in issue (Choo Pit Hong);
The statement is indicative of a fact in issue (Woodhouse);
The statement is of legal significance by virtue of the rules of law, such that the
statement is tendered to show the constitution of legal acts, irrespective of the
truth or contents of the statement (Keimfarben);
Statement can be admitted as direct and primary evidence of the state of mind of
the maker or recipient of the statement to show the state of mind or of body or
bodily feeling when such existence is in issue or relevant (PP v Subramaniam,
Ratten)
o Statement is hearsay if it is used to prove the TRUTH of the facts of the statement. If it is
hearsay is it:
An express assertion by statement (R v Gibson);
An express assertion by conduct (Chandrasekera);
An implied assertion (Teper v R); or
A negative assertion (R v Patel);
An implied assertion by conduct? This is a dodge one because s 32A of the EA
only covers verbal statements since it only includes protest, greeting, and verbal
utterance, which evinces clear statutory intent to exclude conduct
If it is hearsay, does it fall under the exceptions to the hearsay rule?
o Does anything from s 17 40 apply?
o Does res gestae apply?
o Can we argue that the statement is circumstantial evidence? (Ratten, Kearley)
o Can we argue that the statement is real evidence?
COUNTER: these ways of evading the HSR should recede in importance now that
the amended EA has a more lenient scheme for HSE

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2. RATIONALE

Fundamental rule of evidence that the evidence thats adduced to prove a fact must be reliable
o Locus classicus is testamentary evidence - witness testifies as to what he himself directly
perceives, rather than what other persons have perceived and recounted to him
Per Lord Normand in R v Teper, HSE is not delivered on oath cannot be tested
by cross-examination, and the light which his demeanour would throw on his
testimony is lost
o As such, the rule against hearsay avoids the introduction of unreliable out-of-court
assertions and ensures that only the best evidence is put before the court
Why? Because the truthfulness and accuracy of out of court statements cannot be
tested by xx
Additionally, the light which the speakers demeanour would throw on his
testimony is also lost
Effect of the hearsay rule - hearsay evidence is only admitted pursuant to one of the variety of
statutory exceptions which require specific conditions relating to:-
o The nature of the statement - because of a particular situation, the statement has an
element of reliability;
o The reason for the absence of the maker - therefore this is the best available evidence;
There are ancillary requirements regarding proof (the form in which the statement is
presented), or reliability (there are opportunities for the other party to challenge the
veracity of the statement/the maker).

Rationale for Hearsay Rule

o Axiomatic that a court should have access to the best available sources of evidence. Via the
forensic tools available in a common law trial for assessing the credibility of a witness the
oath, the demeanour of the witness, xx of the witness, and external evidence relevant to
the witness credibility the court can estimate how much reliance to place on a witness
testimony.
o However, the court and the witness cannot verify the truth of the facts in another persons
out of court statement
Witness not legally obliged to account for someone else's testimony under oath
lacks a vital safeguard
Deprives the opposing party of the right to confront or challenge a witness who
gives evidence against them during xx. This in turn compromises the truth-seeking
process, because xx is an important means of challenging the probative value of a
testimony, and has an additional process value of reinforcing the legitimacy of the
adjudication in the eyes of the parties and the public.
Furthermore, per the Ned Stark argument, a face-to-face confrontation with
ones accusers is part of what society owes its citizens as rational creatures
with the capacity to give and receive justice, before it can legitimately
convict them of a criminal offence and impose just punishment
o Furthermore, two main ways it could go wrong: -
No way to ascertain whether the statement made is a fabrication, a mistake, an
exaggeration since the speaker is not testifying, the court doesnt get the chance to
examine him;

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 Error in transmission from the witness to the speaker.
o Therefore compromises the courts ability to assess the value of the evidence

A . Basis of Hearsay Rule In The EA

Past consensus was that the common law exclusionary rule either applies independently or through
s 62
o S 62 requires that oral evidence be direct witness can only testify what he has perceived
himself
o However, s 62 clearly doesnt encapsulate the entirety of the hearsay rule and it is a facet of
the HSR at best.
It doesnt distinguish between assertions that are tendered as evidence of the facts
referred to (hearsay), and assertions which are relevant by virtue of having been
made (not hearsay);
S 62 is also in the proof section and not in the admissibility section;
Finally, s 62 only concerns oral evidence, and doesnt affect assertions made in
documents or made via conduct
This was criticised by Rajah JA in Lee Chez Kee, who stressed that to argue that the exclusionary
HSR existed within or independently of the EA [implies] the existence of something beyond
the intention of [Stephen] (at [66])
o Particularly, importing HSR into SG via s 62 [confuses] a mode of proof with the type of
proof (at [73])
o However, Rajah JA himself fails to provide an alternative solution for reconciling EA with the
exclusionary hearsay rule as understood in common law, and the 2012 amendments also
fail to define either the term hearsay or the phrase statements of relevant fact in s 32,
which is generally considered an exception to the hearsay rule.
However, no ones really going to argue that there therefore isnt a HSR in SG Prof Chin Tet
Yung in his 2014 article suggests that hearsay issues should be analysed in two steps (1) Is the
evidence hearsay evidence at common law, and (2) If so, does it fall under one of the exceptions
under the EA

v Case Law
Lee Chez Kee v PP [2008] SGCA 20
Facts
A and 2 accomplices robbed V at his house. At Vs house, he punched and stabbed V.
o A claimed that he thought V was still alive when he left the house
o Crucially, post-mortem examination revealed that the cause of Vs death was
strangulation by electric cord
Accomplices were both unavailable to testify at As trial, and P sought to rely on
statements made by one of the accomplices at the time of his arrest

/held/
HSE is defined at common law as referring to statements made out of court
adduced to prove the facts contained therein (at [64])
However, it is not accurate to define the HSR as an exclusionary rule in the EA given
that our EA was intended to be inclusionary (at [66]).
o To argue that the exclusionary HSR existed within or independently of the

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 EA [implies] the existence of something beyond the intention of [Stephen]
(at [66])

The TYL/HHL argument is that the EA may not explicitly define hearsay, but it contains an implicit
acknowledgement of the HSR, because HSE is perceived as being a statement of relevant facts,
and is as such an irrelevant fact, as opposed to a statement, which is itself, declared by the EA
as being a relevant fact. This is evinced by an absence of any general provisions making
statements of relevant facts themselves relevant facts.
Consequently, where exceptions to hearsay are intended to be relevant, the HSE is admissible
specifically as a relevant fact; The EA therefore gives effect to the common law exceptions to the
hearsay rule.

B. Definition of Hearsay

Per PP v Subramaniam: Evidence of a statement made to a witness by a person who is not himself
called as a witness is hearsay and is inadmissible when the OBJECT of the evidence is to
establish the TRUTH of what is contained in the statement
o Not hearsay when the evidence is proposed to establish not the truth of the statement, but
the fact that it was made
Per Lee Chez Kee: The assertions of a person made out of court (whether orally or in documentary
form or in the form of conduct) tendered to prove the facts which they refer to are inadmissible,
unless they fall within the scope of the established exceptions
There is no definition of hearsay in the EA, which only determines when a statement made out of
court is relevant or irrelevant

v Statements as Facts in Issue making the statement is an element of the charge

Out of court statements that are simultaneously facts in issue can be tendered as evidence to show
their occurrence, but not as evidence of the facts they refer to
o E.g. criminal or tortious actions such as defamation, criminal libel, extortion, sedition,
conspiracy or breach of restraint of trade (?), where the words were uttered themselves may
constitute the criminal or tortious act
I.e. I will admit this evidence for proof that you said bad shit about LKY, and not
proof that LKY fucked Margaret Thatcher (which goes to the contents of the
statement)
Per PP v Subramaniam evidence of threats was adduced to prove that threats
were made, but not that the threats were true
Choo Pit Hong Peter v PP [1995] 1 SLR(R) 834 (SGHC Yong CJ) Statement constitutes Fact In
Issue; Not Hearsay
Facts
A was a remisier charged with intentionally giving false evidence to officers from the
Commercial Affairs Department while being bound by s 193 of the Penal Code to
state the truth
o A allegedly told them that he had met and verified the particulars of 29 of his
alleged clients when he had not
o At trial, A alleged that the statements he had given the CAD officers were
made as a result of threats & inducements

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 /held/
As statements to the CAD did not infringe the hearsay rule as they constituted the
crime which he had been charged
Regardless of whether the statements were confessions, the statements are not
evidence to prove the two charges of giving false evidence
Any challenge to the admissibility of the statements was misconceived even if they
were made as a result of ITPs, making the statement constituted the fact in issue
(admissible under s 5)

v Statement indicative of a fact in issue making the statement is a relevant fact

Statements may be tendered if their making, rather than the facts that they contain, is indicative of
the facts in issue i.e. Irrespective of whether its true, the fact that it was made is a relevant fact
Woodhouse v Hall (1980) 72 Cr App Rep 39 (CA) Statement Indicative of Facts in Issue; Not
Hearsay
Facts
An officer went undercover to a brothel which was disguised as a massage parlour
Tendered evidence that while he was on the premises, several ladies made offers of
sexual services, which the trial judge held was inadmissible as HSE

/held/
Donaldson LJ held that the evidence was wrongly excluded as hearsay
o The mere fact that evidence of a witness includes evidence as to words
spoken by another party who has not been called as a witness is in itself no
objection to admissibility, as words spoken are just facts, as much as any other
action by a human being.
o Question of hearsay only arises when the words spoken are relied on
testimonially, in this case, we only rely on the fact that they were spoken
o In this case, the relevant issue is whether the ladies made these offers, so the
fact that the words were spoken was relevant to this fact in issue
Evaluation
o If you contrast this case to Peter Choo, the evidence isnt the very making of
the statement, they are only relevant because they impliedly assert that the
police can obtain sexual services from women on the premises

v Legally Operative Words

The existence of a statement may have legal significance, such that the purpose of adducing such
statements would be to show the constitution of the legal acts, irrespective of any underlying
subjective intention
o E.g. An email concluding a contract or a trust is admissible, because on an objective
viewpoint, we assess whether a offer/acceptance exists because its an objective reasonable
man test. It doesnt really matter whether its true because thats not what were relying on

Keimfarben GmbH & Co KG v Soo Nam Yuen Legally Operative Words; Not Hearsay
Facts
Issue in dispute was the price of paints at the first auction date

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 o To prove the value of the paints, Df adduced evidence of a letter from a 3P
coy offering to buy the paint and fixing the maximum unit prices that they
were agreeable to

/held/
This evidence is inadmissible hearsay Df was relying on the letter to establish the
truth of its contents, the market value of the paints
However, the maker of the offer was not present in court to confirm that on this date,
he genuinely was willing and able to purchase paints at that price

v Statements that reveal state of mind or physical state

It is not hearsay when the statement is relied on as direct and primary evidence of the state of
mind of the maker or the recipient of the statement, and not the truth of the statement, where the
existence of a state of mind, body, or bodily feeling is directly in issue or relevant at trial.
Such statements can be admitted under s 14:
o 14. Facts showing the existence of any state of mind, such as intention, knowledge, good
faith, negligence, rashness, ill-will or good-will towards any particular person, or showing
the existence of any state of body or bodily feeling, are relevant when the existence of any
such state of mind or body or bodily feeling is in issue or relevant.

PP v Subramaniam [1956] 1 MLJ 220 (PC on appeal from Malaya) Statement Reveal State of Mind;
not hearsay
Facts
A was found with three pouches of live rounds of ammunition, and claimed that he
had been forced by terrorists to operate with them, and would have killed him if he
didnt comply
Issue was whether the As evidence of threats from the alleged terrorists and his
conversations with them is admissible

/held/
Evidence is admissible
o Evidence of a statement made to a witness by a person who is not himself
called as a witness is not hearsay if it is adduced to establish the fact that the
statement was made (which A did perceive), as opposed to the truth of
the statement
o PC determined that the evidence should be admitted because the purpose of
tendering the statements was not to prove factual content (that they would
have killed A), but rather to show As state of mind (that he believed that
they would have killed him)
o As statement is therefore relevant to the defence of duress, as duress
depends on how A reacted to the threat, and not on whether the threat was
true or whether it would be carried out

R v Ratten [1972] AC 378 (PC) Statement Reveal State of Mind; not hearsay
Facts
A was convicted for the murder of his wife, but his defence was that the gen had

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 discharged accidentally while he was cleaning it
To rebut that defence, P called evidence from a telephone operator testified that she
had received a telephone call 3 minutes before the shooting from As house, and a
female voice answered, was hysterical and sobbing, and said get me the police
Was the operators evidence hearsay

/held/
Per Lord Wilberforce, the evidence was not hearsay and was admissible as evidence of
a relevant fact Vs state of mind
o The mere fact that Ws evidence includes evidence of words spoken by
another who is not called is not an objection to its admissibility. Words
spoken are facts just as much as any other action by a human being. If the
speaking of the words (and not the contents) is a relevant fact, and W can give
evidence that they were spoken
o Operators evidence that the voice was hysterical and sobbing, and that the
caller desired for the police to be called was relevant as showing that V was in
a state of emotion or fear relevant to the defence of accident
Crucially, on As argument that the evidence was tendered as evidence of an assertion
by V that she was being attacked by A, with the effect that it was hearsay, their
Lordships thought it was right to deal with As submission on the assumption that there
is a hearsay element to the evidence, and went on to find that even if the evidence
was hearsay, it would be admissible under the doctrine res gestae
o Suggests that its difficult to tell when evidence of a state of mind may contain
an implied assertion

R v Blastland [1986] AC 41 (HL) Statement Reveal State of Mind; not hearsay provided relevant
Facts
Case of murder and buggery of a boy - A admitted to the charge of buggery, but
sought to tender statements from a passerby M who made statements indicating
knowledge that the boy had been murdered even before anyone discovered the body
SUSPICIOUS

/held/
HoL held that Ms state of mind was not directly in issue on a prosecution of A
o While statements made to a witness by a 3P are no excluded by the HSR if
they are adduced solely to prove the state of mind of either the maker of
statement or the person who the statement was made to, the principle only
applies when the state if mind in question is either itself directly in issue, or
directly and immediately relevant to an issue arising at trial
o The issue at trial is whether A had buggered and murdered the boy - M
knowing that the boy was murdered is neither in issue or relevant to the issue
What was relevant wasnt what M knew, but how M knew it, which is a
matter of pure speculation which As statements has no probative
value regarding
Lord Griffiths in Kearley said that it is settled law that A cannot prove in evidence a
confession to the same crime made by a 3P who isnt a witness hearsay
o However, if A wished to call witnesses to say that M told them a boy was

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 murdered, this is admissible as proving Ms knowledge, and knowledge is a
state of mind
o But its a strange state of affairs if M confesses, we cannot adduce the
evidence, but if he merely hints that he committed the murder, we can adduce
it under this exception

Can take Blastland to stand for two things:

o [1] The mental or physical state must itself be directly in issue at trial Ms mental state was not
in issue how he had the knowledge was relevant;
o [2] The statement must be directly relevant in considering the state of mind or physical state
As evidence was not probative as to how M knew the boy was dead

3. ASSERTIONS THAT CONSTITUTE HEARSAY

A. Intended Assertions by Statement or Conduct

If a statement is made by a maker with an intention to convey a fact, which is precisely the fact that
the court is asked to believe, it would constitute a statement of relevant facts under s 32 asserts
the truth of what was said

v Oral assertions
R v Gibson Ps testimony that an unidentified woman pointed at As house and said that paerson
who threw the stone went in there was held to be admissible, as it was adduced to prove the truth
of what the woman said
o Dennis: the court is asked to assume that the statement was true despite not being in the
position to assess the unidentified womans reliability as a reporter of the events
R v Sparks A, a white man, was convicted of indecent assault of a young girl. TJ refused to allow
the Defence to call the girls mother to testify that about an hour an a half after the incident, her
daughter told her a coloured boy had assaulted her.
o On appeal, TJs decision not to admit the evidence was upheld the purpose of producing
the statement was to prove the facts stated that a coloured boy, and not A had
committed the act

v Assertions by Conduct
o Chandrasekera Ws testimony as to Vs nod of assent to the question of whether it was A
who cut her throat was held to constitute statements, written or verbal, of relevant facts
under s 32 of the Ceylon Evidence Ordinance

v Implied Assertions
Implied assertions are statements or conduct that are not intended by the speaker to assert the
fact that the evidence is tendered to prove, but nonetheless implied the makers belief in the
existence of the fact the evidence is tendered to prove

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 o Essentially, the court treats the implied statement/conduct as equivalent to an express
assertion of the fact to be proved

Should implied assertions fall within the hearsay rule?

NAY
o Implied assertions are generally accepted to be more reliable than express assertions
because they are frequently unintended, such that the maker has no usually has no
intention to deceive in respect of the facts implied by his statement or conduct. Hence, the
risks of manufactured or fabricated evidence are significantly lessened.
There is therefore no compelling systemic reason for applying the HSR to such
evidence
Additionally, considering the abolition of the jury trial in Singapore, there is no
danger that a jury may place undue emphasis on such an assertion. By taking into
account all relevant actors, the court is in a more favourable position to accord the
appropriate weight to such evidence
o In fact, implied assertions arguably should not be treated as hearsay, but as evidence upon
which the court may draw the appropriate inferences based on a careful examination of the
circumstances, such as whether the inferences drawn are supported or contradicted by
other evidence.
This provides a much more flexible process for determining the truth of the facts
then the hearsay rule, and arguably enables the adjudication process to become
more accurate
This is the view proffered by Minister of Law K Shanmugam during the Second
Reading of the Evidence (Amendment) Bill: What we are doing now is to give the
courts the discretion to sieve through the evidence to see which part should be
allowed if the judge believes that to be in the interests of justice in the particular
case. We should not approach the cases and the evidence as a series of technical
hurdles for the prosecution to jump. We must also remember that there is an
interest of society in allowing relevant evidence, and that the judge is best placed
to decide on what is relevant
YAY
o Implied assertions may be more unreliable than express assertions, because they are based
on perceptions that cannot actually be verified unless the maker of the statement or
conduct is in court (Majority in Kearley)
The maker of the statement may have mistaken the identity or misunderstood the
situation, the witness may have misheard or misunderstood the maker, or the court
may have drawn the wrong inference altogether
E.g. she may just call her fuckboi daddy
Implied assertions may just introduce additional elements of ambiguity or
imprecision, further increasing the danger of unreliable evidence at court
What is the Singapore position?
o There is a distinction between assertions implied in statements and assertions implied in
conduct only assertions implied in statements are inadmissible hearsay
In s 32A, only verbal statements fall within s 32(1), which governs the exception to
the HSR. By purposely excluding conduct and including on protests, greetings and
verbal utterances, it is suggested by Chinty that the Legislature clearly intended for

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 implied assertions by conduct not to be caught by the hearsay rule in the first
place.
Considering Rajah JAs judicial direction in Lee Chez Kee, and the structure of the
EA, such evidence is arguably admissible under s 8(2), which admits evidence of the
conduct of the party or his agent, which is relevant to a fact in issue or a relevant
fact.
Therefore, evidence of As conduct is relevant if the conduct influences or
is influenced by any fact in issue or relevant fact
Chinty says that such a position is untenable the statement hello X is
excluded, but the conduct of waving to X is not

Implied Assertions by Statements

Wright v doe d Tatham (1837) 112 ER 488 Third party statements made out of court which imply
an opinion or statement on the matter at issue is inadmissible hearsay
Facts
Issue was whether a testator was mentally competent to make a will
Person who claimed the wills validity sought to prove the testators mental
competency at the time of making the will by adducing certain letters written by 3Ps to
the testator, for the purpose of showing that the writers (who were all dead) must have
assumed that he was sane as seen from the style of their language

/held/
Letters are inadmissible for the purpose of proving that the testator was mentally
competent because they were tendered to prove the writers implied assertions
concerning the testators sanity
o The question is whether the contents of the letters are evidence of the fact
that the party seeks to prove
o The fact sought to be proven was the testators mental competence, which
was proven based on the truth of the contents of the letters, which the writers
are not on oath to testify to
o Proof of a particular fact or opinion implied by a 3P is inadmissible in all cases
where a statement of that fact or opinion not of oath would be of itself
inadmissible
Examples of other implied assertions:
o If the family of the testator took precautions in his absence as though he were
a lunatic;
o If he was elected to some high and responsible offence;
o If a physician permitted the will to be executed by the testator;
o On a question of seaworthiness, if the captain, after examining every part of
the vessel, embarked on it with his family

Supported by Teper v R [1952] (PC from British Guiana)

Facts
A was charged with setting fire to his shop maliciously and with an intent to defraud.
P wanted to adduce evidence from a police constable for the purposes of
identification constable said that he heard an unidentified woman shouting your

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 place is burning and you going away from the fire, and saw a black car being driven
away from the direction of the fire by a man resembling A

/held/
Evidence was inadmissible the rule against the admission of hearsay evidence is
fundamental, and since the woman was not a witness truthfulness and accuracy of the
womans words could not be tested by cross examination, and the light which
demeanor threw on a testimony was also lost
Not the best evidence if it is not delivered under oath
Dennis: This is very weak evidence, youre asking the court to rely on the judgment of
an unidentified woman in an excited crowd at night who had caught the glimpse of a
man who may have been A

Walton v R [1989] HCA 9 The statement hello daddy by a child over the phone amounted to an
implied assertion that the child was speaking to its father. Mason CJ held that the possibility of
fabrication was so unlikely that the admission could not be regarded as improper - the hearsay rule
is less rigorous in its application to implied assertions than it is in the case of express assertions.
It is for the trial judge to decide whether or not a particular implied assertion is of a kind to which
the rationale underlying the hearsay rule would be relevant
Facts
A was charged with the murder of his wife
o [1] Three witnesses testified that the wife told them that she was going to
meet A
o [2] Another witness testified that prior to the murder, the wife spoke to
someone on the phone and arranged a meet the caller at the Town Centre
and told her son M, daddys on the phone express assertion
o [3] M spoke on the phone sating Hello, daddy

/held/
[1] Court held that this was admissible as original evidence of Vs state of mind trial
judge took care to advise the jury that this evidence was only admissible as evidence
that V intended to meet Df, and not for the further proposition that she actually met Df
[2] Ditto, because the testimony was otherwise merely hearsay assertions concerning
the identity of the caller
[3] The interesting part
o The majority held that the words uttered by the boy were mere hearsay, and
strictly speaking inadmissible.
The value of what the boy said lay in the truth of the implied assertion
that the person he was speaking to on the phone was in fact his
daddy
o However, Mason CJ was of the opinion that the objection made to the
admissibility of the testimony that the boy said hello daddy is based on the
assumption that the statement contains an implied assertion as to the
identity of the caller, and this assertion amounts to an inadmissible hearsay
Implied assertion an assertion inferred from a statement or from
conduct, generally not deliberately intended by the author
While it is necessary to apply the same rules regarding admissibility to

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 both implied and express assertions, where an assertion is not made
directly by words or actions but is derived by implication from those
words or actions, there will be depending of relevant circumstances
of the case, often be special considerations relevant to the
determination of admissibility
o Hearsay rule should not be applied inflexibly
Where the dangers which the rule seeks to prevent are not present or
are negligible in the circumstances of the case, there is no basis for a
strict application of the rule
Equally, where the trial judge is of the opinion that the dangers are
outweighed by other aspects of the case lending reliability &
probative value to the impugned evidence, the judge should not
exclude the evidence due to a rigid & technical application of the
HSR while it must be borne in mind that there are often
considerable dangers that justify the existence of the rule, especially in
the field of implied assertions, there will be occasions where the
circumstances will combine to render the evidence sufficiently
reliable for it to be considered and evaluated, notwithstanding
that strict application of the HSR renders it inadmissible
Rule App:
o Factors favouring admission - the extreme unlikelihood of concoction on the
part of the child
The unlikelihood of concoction would often be a factor of sufficient
weight to justify admission of the evidence for purposes of evaluation
o Factors that do not favour admission lack of opportunity to xx the child
o Therefore with implied assertions, HSR is less rigorous for TJ to decide
whether or not a particular implied assertion is of a kind to which the rationale
underlying the HSR would be relevant
If yes judge may determine that it would be dangerous to admit the
HSE, and ordinary HSR + exceptions apply
Would include almost all express assertions, because they
lend themselves readily to a suspicion of concoction
But if assertion is made by implication, on the balancing of competing
considerations, the court can use a less strict approach in very rare
cases
EA is archaic as a code does it allow for such a discretion, even if none of the
exceptions are triggered

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R v Ratten [1972] AC 378 (PC) Statement revealed state of mind; not hearsay
Facts
A was convicted for the murder of his wife, but his defence was that the gen had
discharged accidentally while he was cleaning it
To rebut that defence, P called evidence from a telephone operator testified that she
had received a telephone call 3 minutes before the shooting from As house, and a
female voice answered, was hysterical and sobbing, and said get me the police
Was the operators evidence hearsay

/held/
Did wifes request involve an implied assertion that she was about to be attacked by
her husband or was the statement admissible as original evidence to show her state
of mind (i.e. not to assert that he was about to attack her, but to show that there was a
sobbing & hysterical woman)?
o See above?

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R v Kearley [1992] 2 AC 228 (HL) - P sought to adduce evidence of certain telephone calls made to
As house. The callers requested to speak to A, and asked to be supplied with drugs
Majority evidence was not admissible to show the callers state of mind or beliefs, which is
irrelevant. Evidence is also not admissible to show that A was a drug supplier since they
were all impliedly asserting that he was a drug dealer (hearsay)
Minority the calls and visits were circumstantial evidence showing that A established a a
market for the supply of drugs
Facts
Small quantity of drugs found in As house insufficient to charge him with trafficking
The Police remained on premises for several hours for the purposes of securing more
evidence:
o Answered numerous telephone calls from callers asking for Chippie (As
nickname) to supply the usual;
o Visitors also came to the house asking for Chippie to sell them drugs
o These callers and visitors were not called to testify, but the officers gave
evidence of their conversations with the callers and visitors to show that A was
a supplier of drugs, and therefore guilty of traffickings

/held/
Issue: Did the statements carry an implied assertion that K was a supplier?
Majority
Lord Bridge: first question is whether the fact that the request for drugs was made is in
itself relevant to the issue of whether A was a supplier
o The fact that words were spoken may be relevant if they reveal the state of
mind of either the speaker or the person to whom the words were spoken, if
the state of mind is in issue or relevant to a matter in issue
On facts whether people think hes a supplier is not relevant to
whether hes a supplier
Sole possible relevance of the words spoken is because they impliedly
assert that A is a supplier. If the speakers had expressly said on the
phone that Chippie supplies his drugs, this would clearly be hearsay
Question is whether the words impliedly asserting a relevant fact can
be admissible cited Wright v Doe d Tatham, Blastland, its a clear
no, evidence of words spoken by a person not called as a witness
which assert a relevant fact by necessary implication are
inadmissible as hearsay just as evidence of an express statement
made by the speaker asserting the same fact would be
o Next question is whether, if evidence that the officer heard one person
request drugs from A is inadmissible as HSE, is the evidence admissible if P
tenders evidence relating to the plurality of such requests made at the same
place and on the same day?
The proposition is without authority while the probative value of a
plurality of requests is high, it is clear that the probative force of the
HSE in particular circumstances has never afforded a ground for
disregarding the HSR strict application
While Bridge appreciated the arguments in favour of limiting the
operation of the HSR for implied assertions, he was of the opinion that

14
 any change should come from Parliament, and not from the courts
However long overdue we may feel an overhaul of the
hearsay rule in criminal cases to be, we should not be deluded
into thinking that we can achieve it piecemeal
Lord Ackner: Each of the requests for drugs was evidence of the state of mind of the
person making the request but this is irrelevant and therefore inadmissible
o Argeed that this is an implied assertion the object of tendering the evidence
would be to establish the truth of what is contained in the statement by way of
necessary implication, which is precisely what the rule prohibits
o Agreed that any relaxation of the HSRs application must be achieved via
legislation
Lord Oliver: Each request for drugs is probative of the state of mind of the caller
o But this is not a fact in issue irrelevant/inadmissible
o Evidence only probative of fact in issue (Dfs intention) with regards to:
The fact that the callers asked for the usual by necessary
implication, this is a statement that A has supplied drugs to these
callers in the past; - hearsay
Calls/visits import the belief or opinion that A was willing and able to
supply them with drugs if, at trial P wanted to adduce evidence from
a witness that he believed the drugs would be supplied (c/f evidence
that the drugs were supplied) its inadmissible because its a mere
statement of opinion thats unsupported
A fortiori, same inadmissible belief cannot be inferred from a
reported statement
o Agreed that the multiplicity of calls did not make the evidence admissible
this would go to weight & reliability, and not admissibility
Minority: Lord Brown-Wilkinson
Evidence should be admissible on the basis that there was such a large number of
callers and visitors that it gave rise to a clear inference that A set up a drug
market accessible to the public no longer hearsay evidence, it was
circumstantial evidence at this point
As pointed out by HHL, the problem is that circumstantial evidence is really a
conclusion rather than an argument where should be draw the line of when the
number of callers can establish a market? If there isnt so many, is it still safe to draw
the inference?
o Significantly, Kearley isnt even the law in the UK
o Per s 115(3) whether an implied assertion is admissible depends on its purpose

v Implied Assertion by Conduct should application of the HSR extend to include

implied assertions by conduct?
UK Position
Implied assertions by conduct are inadmissible like cases of implied assertion by statement, the
assertion cannot be challenged in court
However, there are no cases that have actually considered implied assertions by conduct, we only
have the examples given by Parke B in Doe d Tatham

15
 o Defined as evidence with reference to the matter in issue in each case (and are) mere
instances of hearsay evidence, mere statements, not on oath, but implied in or vouched by
the actual conduct of persons by whose acts the litigant parties are not to be bound
o Examples:
The supposed conduct of the family or relations of a testator, taking the same
precautions in his absence as if he were a lunatic;
His election, in his absence, to some high and responsible office;
The conduct of a physician who permitted a will to be executed by a sick testator;
The conduct of a deceased captain on a question of seaworthiness, who, after
examining every part of the vessel, embarked in it with his family;
Rupert Cross argued that a distinction should be drawn between implied assertions in statements
and by conduct implied assertions by conduct are arguably more reliable that those made by
statement, as this follows a conventional understanding that deeds speak louder than words
o Would a Captain take his family on a ship if he wasnt sure that it was seaworthy?
o Although Pinsler says this depends on the circumstances of the case could be that the
Captain was searching for stowaways rather than checking up on the seaworthiness. The
reliability of an implied assertion is therefore not always guaranteed considering the
intention and the perception of the maker cannot be verified
SG Position
[1] The EA doesnt distinguish between express and implied assertions in statements. The general
consensus is that despite the absence of an expressly defined rule against hearsay in the EA, the
common law exclusionary rule should apply independently or through s 62 of the EA
[2] However, since s 17 40 which set out the exceptions to the HSR make no reference to implied
assertions, it is arguable that there was no need to have an explicit EA provision admitting implied
assertions because implied assertions by statement are not intended to be hearsay at all.
o Sensible position an implied assertion is normally unintended, so the dangers of
deception and concoction are lower;
Furthermore, since Singapore has abolished the jury trial system, it is arguable that
judges are well-equipped to draw their own inferences on the basis of the
circumstances in which the assertion was made
In any case, the court reserves the statutory discretion to exclude relevant HSE
where it is just to do so. Hence, the danger of unjustly prejudicial evidence not
being excluded is less pronounced.
[3] However the newly amended s 32A, which sets out an exception to the HSR, arguably does
cover implied assertions by oral statement
o A statement not intended to convey the fact that the court is asked to believe (not an
express assertion) and which does not directly state the fact but suggest it by necessary
implication (an implied assertion) should fall within s 32 by virtue of s 32A, which equates
any protest, greeting, or other verbal utterance implying any fact, with a statement
of such a fact
o By the same logic, there is no need to define implied assertions of a verbal statement as
being admissible under the exception if it were not already assumed that such evidence
constituted HSE under the HSR implicitly acknowledged by the EA
o However, the position seems to be different for implied assertions by conduct (not a
protest, greeting, or other verbal utterance) which is not covered by s 32A Chinty

16
 argues that the Legislature quite clearly intended that implied assertions by conduct are not
caught by the HSR in the first place
Also makes sense risk of concoction even lower since the author probably did not
intend to convey the fact that the statement is relied upon to prove since no
representation of the fact was intended at all
From a policy point of view as well if HSR is extended to implied assertions by
conduct, it would be extraordinarily wide since arguably any evidence that
describes what other people are doing would be caught under the hearsay rule

v Negative Hearsay
Negative assertions are situations in which the absence of anything stated may amount to an
assertion (Patel)
o This arises in situations where there are omissions in the records, and there is a school of
thought that feels that negative hearsay should be treated more leniently because:
Its in a record;
Its harder for someone to prove a negative than a positive
o On the other hand the argument (as put forth by Roberts & Zuckerman) is that negative
assertions should be inadmissible because an inference from the absence of an entry
presupposes that the record is complete, correct, and reliable that the record is not
lying when it is silent. Therefore when the author of the record is not called as witness, the
inference must run through an assumption, wholly unsubstantiated in evidence, that
accurate and complete entries have been made with each entry in the record
Arguably, the SG position is that negative hearsay is inadmissible at court
o The newly amended s 32, which sets out an exception to the HSR, arguably covers negative
assertions, as the adducing evidence of an absence of any information about a fact in
circumstances where, if the fact were true, some information or record would
ordinarily be present, is tantamount to an express statement that the fact is untrue or did
not occur, and must be treated alike. A negative assertion therefore should qualify as a
statement of relevant fact under s 32
This view is also consistent with the proposition that the application of the hearsay
rule is dependent on the purpose for which the evidence is sought to be tendered
o While the common law cases of Patel and Shone accept that negative hearsay is admissible
if an officer responsible for compilation and custody [of the records were] called to give
evidence of the method of compilation (at 96)
However, in Singapore, negative hearsay falling under s 32 should only be
admissible if it satisfies a limb of s 32, even if a witness called is familiar with
compilation method.
Therefore, even if theres a witness willing to testify the evidence is hearsay and
is prima facie inadmissible
R v Patel [1981] 1 All ER 94 (CA)
Facts
A was charged with assisting the illegal entry of Ashraf into the UK
P called an immigration officer to give evidence that Ashrafs name was not in the
Home Offices immigration records of legal entrants

17
/held/
Bristow J: CoA held that the officers evidence & immigration records were
inadmissible, unless the officer who compiled and had custody of the records testified
as to their effect
The records cannot therefore speak for themselves in criminal proceedings, and an
officer responsible for their compilation and custody should have been called to give
evidence that the method of compilation & custody is such that if Ashrafs name is
not there, he must be an illegal entrant

R v Shone (1983) 76 Cr App Rep 72 (CA)

Facts
A was charged with received stolen car springs
The stock clerk & manager testified that:
o The stock records reflected receipt of the springs;
o There was no indication in the records that the springs were sold or otherwise
disposed of

/held/
Leonard J: This evidence was not hearsay, and admissible
o The clerk & the manager were entitled to explain the significance of the
absence of entries on the card
o This was direct evidence on the basis of which the jury was wntitled to
conclude that the springs were stolen
However, both cases merely focus on the guarantee of the reliability of the record,
and do not actually address the issue of whether a negative assertion is hearsay

David Chua v DBS Bank [2015] 5 SLR 231 SG interpreting Shone

Facts
Pf opened a fixed deposit account with Df bank and received a fixed deposit receipt
2 months later opened another fixed deposit account and received another receipt
o Put both these receipts in a safe deposit box also maintained by Df
o In 2012 retrieved the receipts and asked Df to confirm the amount due to
him under each receipt, but Df was unable to find any trace in one of the
account on the banks records
o Banks argument was that the account was closed in or before 1985 it had
no direct evidence of, so Df relied on the lack of any trace of the account on
its records, and on Pfs own conduct over the years as circumstantial
evidence that the account had been closed.

/held/
Evidence was admitted pursuant to s 171 of the EA mode of proof of entries for
bankers books
o However, the probative strength of the negative hearsay is determined by
whether the party relying on the negative hearsay can show that its
systems and procedures for keeping those records sufficiently rigorous &
robust
Probative value of negative hearsay generally higher in industries such as banking,

18
 owing to the rigour & robustness of their record keeping systems

B. Other Ways of Circumventing the Hearsay Rule

v Circumstantial Evidence
Lord Brown-Wilkinson in Kearley
o The fact that many callers and visitors believed that K was a drug supplier is not hearsay
because there was such a large number of callers and visitors that it gave rise to a clear
inference that A set up a drug market accessible to the public no longer hearsay
evidence, it was circumstantial evidence at this point
Ratten
o The fact that V made a phone call requesting for the police is not hearsay because it is used
to show that the wife was in a state of fear, which is relevant to rebut the defence that
shooting was accidental

R v Ratten [1972] AC 378 (PC) Statement revealed state of mind; not hearsay
Facts
A was convicted for the murder of his wife, but his defence was that the gen had
discharged accidentally while he was cleaning it
To rebut that defence, P called evidence from a telephone operator testified that she
had received a telephone call 3 minutes before the shooting from As house, and a
female voice answered, was hysterical and sobbing, and said get me the police
Was the operators evidence hearsay

/held/
PC held that:
o Evidence of the operator was circumstantial evidence from which the
inference of relevant facts can be drawn. The evidence adduced to show Vs
mental state is relevant as showing that V was in a mental state of fear
rebuts As defence that the shooting was an accident;
o Even if the evidence was hearsay, it was admissible as res gestae
Courts finding that the operators statement was mere circumstantial evidence and
therefore was not hearsay can be criticised
o Reasoning was that the court is not interested in any assertion made by the
woman as to why she was frightened, but only interested in knowing she was
afraid
o However:
Can an inference that she was frightened really be drawn if we dont
look at her words at all?
Inference that she was scared of husband could not be drawn from the
call alone no evidence establishing husbands identity at all
o In fact, court arguably hesitant in concluding this isnt HSE also looked at
the reasoning of res gestae

19
 R v Lydon (1987) 87 Cr App R 221 (CoA)
Facts
A, one Sean Michael Lydon, was convicted of robbery raised the defence of alibi
o About one mile from the scene of the robbery, there was a gun and two
pieces of rolled paper on which someone had written Sean rules and Sean
rules 85
o Ink of similar appearance & composition to that on the paper was found on
the gun barrel

/held/
CoA held that evidence relating to the paper was properly admitted as
circumstantial evidence
o References were not hearsay because they involved no assertion as to the
truth of the contents of the paper not tended to show that Sean ruled
anything

v Real Evidence
Real evidence concerns tangible objects produced before the court for direct perception by the
trier of fact
o While HSE comes in the form of assertions tended to prove facts which they refer to, real
evidence is ex hypothesi not hearsay because the judge draws the inference directly
o Issue: does the evidence assert the fact it is tended to prove (HSE) or can the trier of fact
draw the inference directly?
R v Rice [1963] 1 QB 857 (CCA
Facts
A was charged with the conspiracy to commit fraud with several persons,
including M
Ps case turned on whether A took a plane from London to Manchester with
another conspirator P wanted to adduce evidence that a used ticket found in
a repository of tickets used for that flight showed As and Ms names

/held/
Winn J: Not hearsay
o The ticket was admissible as circumstantial evidence from which the
jury may draw from it, including the fact that A was on the flight
o The relevance of that ticket in logic and its legal admissibility as a
piece of real evidence both stem from the same root, viz, the balance
of probability recognised by common sense and common knowledge
that an air ticket which has been used on a flight and which has a
name upon it has more likely than not been used by a man of that
name
Problem with this case is that it relies on a statement contained in the ticket
(the name, date and the destination) of relevant facts (whether A flew to
Manchester on the day in question), and the ticket would only be real
evidence if the ticket itself, and not the assertions contained in it, were
relevant e.g. if the issue was the age, condition, size or nature of the

20
 tickets, it would be real evidence, because the court could observe the ticket
and draw these inferences without relying on the contents of the ticket
o Appears to be an implied assertion
However, Dennis argues that since the airlines practice of collecting used
tickets in a file was established, it would be legitimate to conclude that the
name of the ticket was most likely to be the name of someone who used it.
The background generalization that underpins this conclusion is that things
bearing marks of identification that are found in certain places are likely to
have been in the physical control of a person with that identity who took
them there
o There is a difference between using a document for a hearsay
purpose, and using a document as a thing for the purpose of
identifying a particular person at a particular place and time
Pinsler: Rice specifically is a tough case because the inferences which can be
drawn from the circumstances coincide with the details on the ticket itself
o Essentially, the courts argument is that the ticket isnt being relied
upon for its substantive assertion, but as a document simply bearing
a particular name which in the circumstances, entitles the trier of
fact to draw the necessary inferences
o As per Winn LJ: the balance of probability recognised by common
sense and common knowledge that an air ticket which has been used
on a flight and which has a name on it has more likely than not been
used by the person of that name
In SG, this is under s 32(1)(b) of the EA concerning statements in the course of
trade, business, profession or other occupation

PP v Ang Soon Huat [1991] 1 MLJ 1 (HC)

Facts
A was charged with trafficking heroin.
P needed to prove that the quantum was more than 15 grams, and adduced
computer printouts of the results of chromatograph and spectrogram tests

/held/
Computer printouts of results of scientific testing was admissible as real
evidence
The court drew a distinction between the situation in which the computer
printouts are nothing more than a regurgitation of information fed in and
tendered without any accompanying oral evidence would constitute
hearsay
o C/f situation where the computer not only records but also processes
& calculates info fed into it, and there is accompanying oral evidence
to confirm these matters printouts would constitute real evidence

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 v Photofits & Police Sketches
Whether photofits or police sketches constitute hearsay evidence is unclear in Singapore. The
English common law does not treat photofits or police sketches as hearsay evidence (R v Percy
Smith, R v Cook), and likens them to photographs (R v Cook)
However, the better view is that such evidence constitutes hearsay because it is an assertion by the
police artist of a relevant fact As identity which was perceived by the witness, and not the
police artist
o Pinsler agrees, and argued that a photograph, unlike a sketch or a photofit, does not
involve human assertion. A photograph is real evidence in a true sense because the court is
invited to observe it, and then draw the necessary inferences, and the reliability of the
camera can be established by evidence
o However, given the lack of local jurisdiction on this point, assuming that the sketch and
photofit does not contravene the hearsay rule, such evidence may be admissible under s 9
as being relevant to show identity

R v Percy Smith [1976] Crim LR 511 police sketch is not hearsay

Facts
A sketch of A had been made by a police officer in accordance with the
description of him that was provided by a young girl, who had seen him near
the scene of the crime
D objected to the sketch on the basis of hearsay

/held/
Police sketch was not HSE it was the assertion of the witness, who used her
memory to direct the sketching of the hand of the officer
No need to rely on any conversation between witness & officer to link her to
the sketch its effectively a statement made by her, the person who perceived
A

R v Cook [1987] QB 417 photofit is not hearsay

Facts
V of robbery and indecent assault described her attacker to a police officer,
who pieced together a photofit picture from her description
At trial, D submitted that a photofit is not a photograph, and is no more than
an assertion by the officer of a relevant fact the identity of the robber which
he did not perceive, and should be inadmissible as evidence of hearsay

/held/
Likened the photofit to a photograph both are manifestations of the seeing
eye, translated onto paper through the medium of the officers drawing skill.
The officer is merely doing what the witness could do if she possessed the
requisite skill
o When he is drawing, he is akin to a camera, albeit without the clarity of
a photograph which a camera automatically produces
o However, since photographs are automatically not subject to hearsay,
photofits are similarly not subject to the HSR

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 4. APPROACHES TO THE HEARSAY RULE IN THE EA

The human world, its a mess but, the Chinty approach should be used:
[1] Does the statement constitute hearsay under the common law exclusionary rule?
o What are the facts that the statement is tendered to prove?
o Does it have relevance as non-hearsay evidence?
[2] Is the statement admissible via any exceptions under the statute

Para

As a preliminary issue, there is some contention regarding the basis for the hearsay rule in Singapore.
As per Rajah JA in Lee Chez Kee at [75], for the common law hearsay rule to exist within or
independently of the EA would be inconsistent with the EA, which renders admissible evidence that, in
common law would be treated as hearsay, so long as it is legally relevant under s 32 or any other
provision. Strictly speaking, common law rules inconsistent with the provisions of the EA should be
repealed. This casts doubt over Soon Peck Wah, which imported the common law hearsay rule on the
basis of s 62.
However, it is submitted that this is not a significant issue considering Rajah JA in Lee Chez Kee also
conceded that both the common law & the EA ways of identifying hearsay will always nearly provide
the same result (at [?]), and that no injustice has been caused by the different approaches (at [?]).
Furthermore, Lee Chez Kee also failed to provide any solutions to reconcile the EA with the common
law exclusionary rule.
Additionally, given the number of local decisions adopting the common law exclusionary rule (PP v
Subramaniam, Soon Peck Wah, Saga Foodstuff), it is submitted that courts should still take the common
law rule into consideration and enter into analysis with regards to whether the statement adduced is
hearsay, despite Lee Chez Kee being principally correct that a fact should be prima facie admissible
once it satisfies s 6 16.
On application of a hybrid approach that combines both common law and statute, this analysis will
consider (1) whether the evidence in question is hearsay evidence per the common law hearsay rule,
and (2) if so, whether th evidence should nevertheless be admissible under s 32 of the EA

A. Preliminary Issues

v MULTIPLE HEARSAY
On the facts of the case, the evidence of _______ is a case of multiple hearsay, as the fact was
perceived by ___, and communicated from ___ to ____.
While the wording of s 32(1)(_) appears to only cover first-hand hearsay, s 32(1)(b) provides that
multiple hearsay is permitted with regards to statements made in the course of trade, business,
profession or other occupation.
o The exception includes a statement made in a document that is, or forms part of, a record
compiled by a person acting in the ordinary course of trade, business, profession or other
occupation based on information supplied by other persons, which indicates that the
compiler of the record could be different from the supplier of the information, and that the
information can be supplied by other persons
However, the 2012 amendments did not include a general provision as to whether multiple hearsay
would be acceptable in relation to the other hearsay exceptions.

23
 o In Hearsay Reforms: Simplicity in Statute, Pragmatism in Practice?, Associate Professor Chin
Tet Yung suggests that the fact that there is no special provision for multiple hearsay could
suggest that it may be regarded as a matter of weight rather than admissibility
It is submitted that such a reading of the EA would be logically sound considering
judges are arguably well-equipped to draw their own inferences on the basis of the
circumstances in which the assertion was made and conveyed to the final supplier
of the evidence.
In any case, the court reserves the statutory discretion to exclude relevant HSE
under s 32(3) where it is just to do so. Hence, the danger of unjustly prejudicial
evidence not being excluded is less pronounced.

v Logically relevant
Under s 32(1), the statements must contain logically relevant facts to be admissible

B. S 32(1)(a) Dying Declarations

Section 32(1)(a) provides that when the statement is made by a person as to the cause of his death, or as
to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of
that persons death comes into question; such statements are relevant whether the person who made
them was or was not at the time when they were made under expectation of death, and whatever may
be the nature of the proceeding in which the cause of his death comes into question.

S 32(1)(a) is much wider than its common law equivalent, which was only applicable for murder charges,
and had to be made with a settled, hopeless expectation of death before the statement could be
admissible (Bedingfield)
Per common law, the dying declaration must be sufficiently related to Ws death, and therefore a mere
expression of fear & suspicion are not within the scope of the section (Pakala Narayana Swami)
o The shorter the time span between the statement and the facts contained in the statement, the
closer the connection between the statement and the circumstances of the transaction (Yeo
Hock Cheng)
o Yeo Hock Cheng was a case where V told her father 9 days before her murder that A had
threatened to kill her if she told her father that they had slept together. Due to the lapse of 9
days and the fact that in the intervening period, the relationship between her and A had
apparently improved because he had promised to marry her, the statement was held to be too
remote to be admitted
o However a statement that V made to her sister on the day of the murder that she was going
to meet A and that he told her to dress like a man was admissible under this provision
Generally, the court would require proof of the exact words uttered by V, especially if there is a written
record of his statement (Toh Lai Heng police officer recoding a dying declaration in his own words
inadmissible)
o However, if the witness had no opportunity to record the statement in writing but is able to
recall substantially what was said, he may be permitted to relate those words (Ong Her Hock)
The usefulness of s 32(1)(a) is much limited with the enactment of s 32(1)(j), and this substantial overlap
between the provisions was conceded by Minister for Law K Shanmugam in the Second Reading of the
Evidence (Amendment) Bill. However, s 32(1)(a) was still retained because there is a substantial body of
case law under this provision, and it would be lost if the provision was deleted.

24
 C. S 32(1)(b) Ordinary Course of Trade, Business, Profession, or
other Occupation

The rationale of this provision is that business records are admissible as evidence because they are
prima facie reliable. This is because such records are likely to be accurate since they are compiled
by persons who are disinterested (Thomas LJ in Horncastle), and compiled with regularity.

Section 32(1)(b) provides that when the statement was made by a person in the ordinary course of trade,
business, profession or other occupation and in particular when it consists of
(i) any entry or memorandum in books kept in the ordinary course of a trade, business, profession or
other occupation or in the discharge of professional duty;
(ii) an acknowledgement (whether written or signed) for the receipt of money, goods, securities or
property of any kind;
(iii) any information in market quotations, tabulations, lists, directories or other compilations
generally used generally used and relied upon by the public or by persons in particular occupations; or

(iv) a document constituting, or forming part of, the records (whether past or present) of a trade,
business, profession or other occupation that are recorded, owned or kept by any person, body or
organisation carrying out the trade, business, profession or other occupation, and includes a statement
made in a document that is, or forms part of, a record compiled by a person acting in the ordinary
course of a trade, business, profession, or other occupation based on information supplied by other
persons;

S 32(1)(b) should apply whether the statement is written or oral or otherwise per Press Automaton,
a case under the old s 32(b), a surveyors verbal inspection report was admitted as it was made in
the ordinary course of business

v Evaluation of the new s 32(b)

YAY
The scope of the exception has expanded significantly
o Title of the old s 32(1)(b) was amended from made in the course of business to encompass
statements made in the course of trade, business, profession, or other occupation
o While the exception was previously restricted to just s 32(b)(i) & (ii), s 32(b)(iii) & (iv) have
since been added
o Chinty argues that increasing the scope of the exception to capture the gamut of
commercial & professional activities is justified given the diversity of organisations in
modern society
Provides for multiple hearsay for business records
o See above
o This removes the limitations under the old law set out in Vaynar Suppiah & Sons, which held
that the old s 32(b) only applied to reports made in the course of business which were
prepared first-hand by a person with knowledge of the truth of the contents of the report
o However, the absence of an express requirement under s 32(b) that the compiler & the
persons who supplied the information included in the business record must have personal
knowledge of the information means that multiple hearsay to an unlimited degree may be
admitted s 32(3)

25
 NAY
The precise ambit of the provision is unclear regarding whether the provision expands to non-
commercial occupations
o While s 117(2) of the UK Criminal Justice Act 2003 contains the additional phrase or as the
holder of a paid or unpaid office, s 32(1)(b) does not, and applying the interpretation
canon of ejusdem generis to the section, trade, business, profession, or other occupation
arguably only includes commercial activities
o Logically speaking, it can be argued that while professionals in commercial firms keep
proper records and are likely to be acting under a legal or professional duty to do so and
have no motive to falsify facts or opinions contained in the documents, records kept in
non-commercial organisations are likely of a lower degree of reliability
E.g. Grassroots organisations, charities
Crucially in the case of police records, is there a motive or unconscious bias to
falsify records?
Would police records allow unreliable hearsay evidence to be inadmissible
per the case of Teper, would the evidence that the woman said your
place is burning and you going away from the fire be admissible if the
officer in question had written the statement down as a record made in the
course of occupation?
Arguably, no too unreliable
In fact, this approach is arguably better instead of a strict rule, you have a
broader exception + discretion
Not clear whether the provision is restricted to only documentary hearsay
o Chinty argues that the tenor of the provision suggests that the exception only covers
documentary statements since all the particular statemenst referred to in the provisions are
examples of documents rather than oral statements. Hence, the provision should be read
ejusdem generis and limited to documentary hearsay
o However, old case law says otherwise see above

C. S 32(1)(c) Declaration Against Interes

Section 32(1)(c) provides that when the statement is against the pecuniary or proprietary interest of the
person making it, or when, if true, it would expose him or would have exposed him to a criminal
prosecution or to a suit for damages.

Firstly, it must be shown that the declarants statement is against his pecuniary or proprietary interests,
or that what he says, if true, would expose him to criminal prosecution or to a suit for damages (Sintra
Merchants)
o Sintra Merchants was a case where HC found the witness affidiavit to admissible under this
provision, as there was nothing that could be considered against his pecuniary/proprietary
interest/exposed him to any dire consequences from anyone
Secondly, it must be shown that the declarant was conscious that what he said was against his own
interest (Velstra)
o Velstra no evidence that declarant realised that he was, in making the statements, opening
himself up to civil and criminal liability

26
 D. S 32(1)(d) Statement concerning a public right, custom, or matter
of public or general interest

E.g. If the issue is whether there is a public right of way over certain land, can adduce statement to this
effect
E.g. Books admitted to prove opinions of deceased authors on old marriage customs in China (Wong
Kai Woon)
No longer need to prove that the maker of the statement is available

E. S 32(1)(e) Statement concerning relationship

Statement of a relevant fact is admissible when it relates to the existence of any r/s by blood, marriage,
or adoption, as long as certain conditions are satisfied
Conditions: -
o Maker of statement must have some special means of knowledge;
o Statement was made before the dispute arose
o No longer need to prove that the maker of the statement is available

F. S 32(1)(f) Statement concerning relationship between persons who

are now deceased

Essentially s 32(1)(e) with a more confined scope of deceased persons

o Both concern r/s by blood, marriage, or adoption
o Both must be made before the dispute arose
However: -
o (f) is concerned with formal or official statements no need for special means of knowledge
o Limited to statements in a will or deed or family pedigree or upon any tombstone, family
portrait or other thing on which such statements are usually made
o And must be concerned with relationship between two dead persons

G. S 32(1)(g) Statement of right or custom pursuant to s 13(a)

S 13(a) provides that where there is a question as to the existence of any right or custom, any
transaction by which the right or custom was created, claimed, modified, recognised, asserted or
denied or which was inconsistent with its existence is relevant
o E.g. documents proving that the land has been mortgaged to the bank

H. S 32(1)(h) Declaration of Feelings

S 32(1)(h) declares relevant statements of fact made by a number of persons expressing feelings or
impressions on their part relevant to the matter in question
However, there is uncertainty regarding the scope of the provision HHL thinks its just for the
results of surveys
o Does the provision contemplate a minimum number of persons?
o Do all the statements need to be made at or about the same time?
o Do all the persons who made the statements have to be identified?
o Do all of them have to be unable to attend court?

27
 However, Pinsler says that this section likely excludes circumstances where the situation would allow
for reasoned reflection and the opportunity for concoction & distortion
Per the case of Saga Foodstuffs, this section codifies the common law exception of res gestae,
which allows the admission of what persons who are not called as witnesses said in reaction to an
event or thing, as it presented itself to them in circumstances which exclude the opportunity of
reasoned reflection and the possibility of concoction, to prove the truth of what was stated
o Saga Foodstuffs is a trademark case, where results of a market survery research was
admitted to establish the level of awareness of the Pfs get-up and the degree of confusion
between the Pfs and Dfs get-ups under s 5, because the results were tendered for the
purposes of showing the extent to which certain beliefs or opinions were held by the public
(circumstantial evidence), and not to prove the truth or the validity of the opinions in
question did not even offend the hearsay rule

I. S 32(1)(i) Compelling witnesses who refuse to testify

Admits a statement which is made by a person who, being compellable to give evidence on behalf of
the party desiring to give the statement in evidence, attends or is brought before the court, or
refuses to be sworn or affirmed, or is sworn or affirmed but refuses to give any evidence
All witnesses in Singapore who are competent are generally compellable under s 120 (with the
exception of the Co-Accused, under s 122(2))
Two possible scenarios: -
o Compellable witness who refuses to be sworn;
o Compellable witness who is sworn & affirmed, but then refuses to testify.
Operative idea is that the statement replaces the testimony the declarant would have otherwise had
given, had he been willing. Therefore this provision doesnt cover potential witnesses who are out
of jurisdiction and arent willing to return to SG to testify
Rationale - when a witness refuses to testify, his previous statement is the best available evidence

v S 147(3) (5)
S 147(3) (5) is used to supplement s 32(1)(i), which is primarily used for when the witness stays
silent
o C/f s 147(3), where a witness is xxed on his prior inconsistent statements (which is
technically hearsay), those statements are admissible as evidence of the facts stated
o S 147(4) & (5) also create another route for admission of previous statements to refresh the
witness memories through their earlier statements

J. S 32(1)(j)(i)-(iv) Person Unavailable as Witness

Admits a statement if witness is unavailable due to:

o (i) Witness dead/unfit because of his bodily or mental condition to attend as witness;
o (ii) Despite reasonable efforts to locate him, he cannot be found whether within or outside
Singapore;
o (iii) He is outside Singapore and it is not practicable to secure his attendance;
o (iv) Despite being competent but not compellable to give evidence on behalf of the party
desiring to give the statement in evidence, he refuses to do so
Different from other provisions

28
 o Does not depend on specific factual scenario;
o Underlying principle is that the witness statement is the best evidence in the face of his
unavailability
o Unlike (i), need strict proof of unavailability
Problem is that (j) is the broadest exception only thing you have to prove is unavailability of the
maker of the statement as a witness
o If you can prove that, then any statement is a relevant fact
o Is there an absence of safeguards?
In Lee Chez Kee, A was charged with murder, Prosecution adduced confession of
an accomplice which incriminated as the accomplice had been put to death prior to
As trial
Pinsler says it possible that under the current s 32(1)(j), this statement would be
admissible since the accomplice was dead, and the provision doesnt include the
words subject to the rules of law governing the admissibility of confessions

S 32(1)(j)(i)
o Considered a much more straightforward route of admitting a dead persons statement than s
32(1)(a), which requires proof that the statement is sufficiently related to As death

S 32(1)(j)(ii)
Per Teo Wai Cheong, subsection (ii) requires reasonable efforts, and the words cannot be found
imports a requirement that the party seeking to rely on it must be able to show that he acted with
due diligence in attempting to find the witness ([29]-[31]).
o Therefore, the party seeking to find the witness would ordinarily be expected to communicate
with the other side for the purpose of discovering the possible location of the witness, steps
taken to find him, and to invite any comments or suggestions from that party (at [32])
o Pinslers suggested factors for determining whether the party seeking to adduce the evidence
had made reasonable efforts in finding the witness:
The ease or difficulty in locating the person (including any potential delay which could
have an impact on the timing of the trial);
The significance of the evidence to the party;
The expense & other resources involved in making the necessary arrangements; and
The partys ability to take such measures
o Chinty in Hearsay Reforms suggested that in criminal cases, considering the possibility of
conviction, there arguably should be more rigorous measures taken to secure the availability of
a witness at trial. Since A faces a charge that would involve the loss of liberty or property or
reputation, it is difficult to justify a balancing test between costs and the nature of the offence

S 32(1)(j)(iii)
Overlaps with j(ii)
Subsection requires impracticability in securing the witness attendance; requires evidence that
reasonable steps were taken by the party concerned to persuade the maker of the statement to
testify at trial (Pacific Marine at [42])
o Under this subsection, the party seeking to adduce the evidence must meet two cumulative
requirements:
[1] Witness outside SG

29
 [2] Not reasonably practicable to secure his attendance
o Per Gimpexs citation of Cross and Tapper on Evidence at [99], in assessing reasonable
practicality, the court is impliedly assessing the likely effectiveness of taking normal steps to
secure the attendance of the witness, and taking into consideration factors such as
The importance of the evidence;
The degree of prejudice to the defence if the evidence is admitted;
The expense & inconvenience involved in securing attendance.
o In summary, the second requirement involves a determination of whether the costs of securing
the attendance of the maker of the statement will be proportionate to the amount of the claim,
and the significance of the evidence (Society Des Produits)
o If makers evidence could have been arranged through live video-link, this may also be taken
into account (Society Des Produits, Wan Lai Ting)
Gimpex was a case where Df wanted to rely on a report to show that the coal delivered was of
satisfactory quality, and appealed against the TJs decision to refuse admission of the report on the
basis it was HSE. One of the arguments put forth by the Df was that the report was admissible
under s 32(1)(j)(iii) since the report was prepared by witnesses who were not in Singapore, and it
was impracticable to secure their attendance at trial. However, Df had failed to satisfy the second
requirement of (iii) that it was not practicable to secure attendance of the witnesses, as they had
failed to adduce any evidence of how the compilers of the report were previously contacted, and
what efforts have been made to contact them (at [101])
However, while the report was not admissible under s 32(1)(j)(iii), it was admissible
under s 32(1)(b)(iv) because non-availability of the witness could be proven, even if it
could not be proven that it would be impractical to secure attendance

S 32(1)(j)(iv)
Concerns the statement of a competent but non-compellable witness
o This only applies to the accused (either for himself or for co-A)
Per s 122(3), A is competent to give evidence on behalf of himself and any person
jointly charged with him, but shall not be compellable to do so

K. S 32(1)(k) Admissions of Hearsay Evidence by Agreement

If parties agree, hearsay evidence is admissible

o Safeguard under s 32(6), if A is unrepresented, he cannot make such an agreement unless at
the time the agreement is made, A or any of the Co-A is represented by an advocate
Additionally, the provision does not provide that the agreement has to be made with
counsel, and the previous safeguard provided under the CPC that an agreement
cannot be made without counsel has been removed
Arguably, this means that an unrepresented A can be bound by his agreement as long
as one Co-A is represented.
Chinty argues that such a literal interpretation of the provision is contrary to the spirit &
intent of the exception if an agreement cannot be valid in the case of one
represented A, it should not be valid in they case of any unrepresented A. Arguing
otherwise would be against the very idea of legal representation and the adversarial
trial

30
 Additionally: the accused persons interests may not coincide, and it would be
very damaging to A because co-As counsel may not intervene if the admission
of the statement is in Co-As advantage, even if it severely prejudices A. In such
a situation, would s 32(3) discretion exclude the evidence?
o The section does not specify what constitutes agreement for the purposes of the section
would a mere lack of objection at trial to the admission of the HSE sufficiently amount to an
implied agreement?
IMPT: courts do not have the power to create exceptions to the hearsay rule beyond the scope of
the EA at (Goldrich Venture at [129])

5. SAFEGUARD TO S 32 EXCEPTIONS

The two main justifications for the HSR are as follow:

o (1) Inability of the tribunal of fact to weigh & assess HSE propery without the usual tests &
safeguards of reliability oath, xx, the opportunity to assess the witness demeanour;
o (2) Admission of HSE is antithetical to the notion of confronting your accuser
Hence, s 32 contains provisions that act as safeguards against two main concerns of the HSR:
o (1) S 32(3) acts as a safeguard against the unreliability of the HSE by allowing the judge to
exclude evidence in the interests of justice;
o (2) S 32(4) acts as a safeguard against not knowing your accuser by requiring the party who
intends to rely on HSE to give advance notice of his intent to rely on HSE
The notice must include the name of the maker of the statement & his address, if
applicable

A. S 32(2) Oral Statements Reduced to Writing

2) For the purposes of paragraph (a), (c), (d), (e), (f), (g), (h), (i) or (j) of subsection (1), where a person [1]
makes an oral statement to or in the hearing of another person who, [2] at the request of the maker of the
statement, puts it (or the substance of it) [3] into writing [4] at the time or reasonably soon afterwards,
thereby producing a corresponding statement in a document, the statement in the document shall be
treated for the purposes of those paragraphs as the statement of the maker of the oral statement.

Requirements
o [1] Person makes an oral statement to or in the hearing of another person who
o [2] At the request of the maker of the statement,
o [3] Puts it (or the substance of it) into writing
o [4] At the time or reasonably soon afterwards, thereby producing a corresponding
statement in a document
Effects
o When the statement is adduced as evidence, the statement is not taken to be made by the
writer who reduced the statement into writing, but by the supplier of the information
o S 32(2) originated from the draft Bill of the Criminal Law Revision 11th Report on Evidence
(1972), and was intended to be a clarificatory section that appeared to allow multiple
hearsay only in documentary evidence, and required all oral evidence to be at least first-
hand hearsay

31
 Rationale
o As the person converting the oral statement into writing does so at the request of the
maker, he is effectively acting as a conduit or channel for the original information. As such,
the statement that is written down is effectively the supplier of the informations statement.
Without this section the writing is arguably second hand (multiple) hearsay, as the
authors statement is being repeated by another person in a document adduced to
prove the truth of its contents
To date, no cases have been brought under this section since its introduction in 1976

B. S 32(3) Discretion to Exclude in the Interests of Justice

(3) A statement which is otherwise relevant under subsection (1) shall not be relevant if the court is of the
view that it would not be in the interests of justice to treat it as relevant

Under s 32(3), Singapore is adopting an exclusionary rather than inclusionary discretion.

Per Gimpex, s 32(3) does not distinguish between criminal and civil proceedings. However, from a
practical point of view, given the availability of pre-trial conferences, discovery, and other pre-trial
devices in civil cases, it is unlikely that there will be many cases where it will be necessary to exercise
this discretion for civil cases.
As set out by Minister of Law Shanmugam during the Second Reading of the Evidence (Amendment)
Bill, the residual discretion under s 32(3) ensures that the expanded exceptions under s 32(1) are not
abused. This discretion is distinct from, and in addition to the courts inherent jurisdiction to exclude
evidence on the basis that its prejudicial effect overwhelms its probative effect
Application
Under s 32(3), a court has the discretion to exclude hearsay evidence in the interests of justice
o As a preliminary point, it is unclear when this discretion will be triggered. In ANB and Wan Lai
Ting the courts treated s 32(3) as equivalent to the exclusionary discretion grounded in the
courts inherent jurisdiction by assessing the admissibility of hearsay evidence on the ground of
its probative value and prejudicial effect. Conversely, the Court of Appeal in Gimpex laid down
a multi-factoral approach that seeks to balance the significance of the evidence in terms of its
probative value or importance to one or more of the issues against any factors that may militate
against its admission, of which prejudice is merely one of factors militating against admission.
However, considering Gimpex is the most recent case and is a CA case, its approach should be
adopted
o At [35]: Real issue is not whether admissible evidence might somehow be converted into
inadmissible at the courts choosing, but whether admissible evidence should nevertheless be
excluded because of other countervailing factors that outweigh or override its value to the
case
o They also took Pinslers factors which they called based on good sense and having due regard
to the purposes of admitting HSE in order to promote the objectives of the trial process (at
[106])
General test: admissible evidence may be excluded if it does not justify the
disadvantages that would result from its admission, such as:-
Danger of unreliability or other harm that may compromise fair adjudication
(Do the circumstances in which the statement was made raise concerns about
its truthfulness?);

32
 Additional costs (E.g. HSE is not necessary because it duplicates facts that was
already inferred from something else);
Delay in the proceedings (Additional time is needed to adduce evidence or
proceedings must be postponed);
Distraction of the court and/or the parties (Where the evidence raises collateral
issues requiring undue attention);
Tendency to confuse or its misleading effect (Where there are doubts about
reliability & good faith);
Lack of reliability;
Prejudice (Evidence would be substantively unjust or procedurally oppressive)
The less significant or probative the statement, the less forceful the countervailing
factors would need to be to justify exclusion
Particularly if the HSE has limited probative value, such evidence should
properly be excluded. The party that seeks to rely on HSE must be able to
show that there were safeguards applied to the evidence that would ensure a
minimal degree of reliability
o While CoA cautioned at [108] that it was not necessary for all the factors to be strictly
considered in every case, the court acknowledged that Pinslers factors had a sufficient degree
of generality that could be applicable to a range of situations
o In Gimpex, the court excluded admissibility of the Sucofindo Report due to the Defendants
failure to produce evidence sufficiently assuring the court that the Report had a minimum level
of reliability:
Sucofindo was willing to make alterations to its report at the request of the Dfs (who
obviously wanted the change because it suited them) without regard to what was the
true position;
Found that the confusion as to the dates on the Report (see [45] above) shows
sloppiness on the part of Sucofindo in its preparation;
Unclear when the samples were obtained, and what category of coal they were
obtained from
o In Gimpex, the court did not exclude the admissibility of the Intertek Report despite conceding
that the Report considered an inadequate number of samples. Considering the Reports
significance and probative value as evidence of the quality of the coal discharged, the
countervailing factors against admission did not outweigh the benefit that would have been
gained by admission.

v Evaluation
As argued by Chinty in Hearsay Reforms, the problem with the s 32(3) discretion is that it iis phrased
in the highest generality
o This is Ivans point from Y1 you may as well just say it has to be exercised well. Of course
courts should act in the interests of justice, and without qualification arguably authorises a
judge to act carte blanche in accordance to his view of what the phrase means
Judges may be reasonably differ on what the interests of justice are in each case
Such an unfettered discretion is inherently contradictory to the rule of law, and
cannot have been intended by the legislature
o Due to the generality, it is difficult to appeal against the exercise of such judicial discretion

33
 Appellate courts are generally reluctant to overturn decisions based on discretion,
a problem exacerbated by the vague phrasing of s 32(3)
o TJs may eschew exercising such a discretion in view of the vagueness of s 32(3), and
instead seek to rely on determining the weight of the evidence under s 32(5)
While this may appear to be the safer option, it would render the discretion an
otiose power
Additionally, the judicial role in the admissibility and weight stages differ greatly
Admissibility judge is primarily concerned with arguments based on the
interpretation of rules or principles or policy extraneous to cogency, suh as
probative value, and prejudice
Weight sole issue is cogency, and any matter extraneous to cogency id
irrelevant
Therefore, it would be wrong on principle to admit evidence that should be
excluded, on the ground that the judge decided to give it little or no weight

v Cases

Columbia Asia Healthcare Sdn Bhd and another v Hong Hin Kit Edward and another
Facts Df submitted that that the court should reject the invoices & various Statements of Hours as
the maker of the documents was not called to give evidence
/held/ Not disputed that s 32(1)(b) allows business records to be admissible in evidence even
though the maker of the document does not give evidence
o On the facts of the case, it is not disputed that the invoices are documents that form
part of the records of Kusnandar, which is a profession of lawyers (wtf who taught you
English)
o Come within s 32(1)(b)(iv)
Is it in the interests of justice to do so?
o Contention wasnt that the invoices were fabricated, but that they were sent w/o
supporting material to show the nature & extent of work done and time taken to carry
out the work
o Court admitted the invoices provide reliable info on how much Kusnandar charged
for work done in respect of the MEC charge, however whether the info was enough
to assist in determination of reasonableness of the charges is another matter

Gimpex Ltd v Unity Holdings Business Ltd and others and another appeal [2015] SGCA 8 (s 32(1)(b) of the
EA)
Facts Df wanted to rely on the Sucofindo Report to show that the coal delivered was of satisfactory
quality
Pf wanted to rely on the Inspectorate and Intertek Report to show otherwise
Trial judge refused to admit all reports on the basis that they were HSE since the individuals
tasked with preparing them were not called forth as witnesses to testify the truth of the
contents
/held/ Df argued that the Sucofindo Report is admissible under s 32(1)(b)(iv):
CoA held at [90] that the current s 32(1)(b) expressly includes a statement made in a document
that is, or forms part of, a record compiled by a person acting in the ordinary course of a trade,

34
 business, profession, or other occupation based on info supplied by other persons
o Regardless of whether the person making the report had personal knowledge of the
info required to make the report, it can be admissible
o In fact, amendments clearly intended to expand the scope of existing exceptions,
especially the exception for statements made in the course of a trade, business,
profession or other occupation at [92], cited the Consultation Paper written in
relation to the Bill
Parliamentary intention behind the 2012 amendment of s 32(1)(b) was clearly
to remove technical limitations to the scope of the business statement
exception and allow the court the discretion to admit all business records
produced in the ordinary course of business which appear prima facie
authentic
With s 32(1)(b), the real extension is that the scope of the provision is also
applicable to statements/documents based on information supplied by other
persons (at [94]), citing Pinsler:
Under s 32(1)(b)(iv) multiple hearsay to an unlimited degree may be
admissible since there is no express requirement that the compiler &
the persons who supplies info in the record must have personal
knowledge of the info
Alternatively, Df tried to argue the report is admissible under s 32(1)(j)
o Plain reading of the provision reveals that there are two cumulative requirements:
Witness outside SG
Not practicable to secure his attendance
o Citing Cross & Tapper, not practicable refers not to inability to attend, but inability to
secure evidence
Can be satisfied by recalcitrance of witness outside the country;
Requires an assessment of the likely effectiveness of taking normal steps to
secure the attendance of the witness, considering:
[1] Importance of the evidence;
[2] Degree of prejudice to the defence if evidence is admitted;
[3] Expense & inconvenience involved in securing attendance
o In this case, evidence was inadequate to prove that the evidence is admissible under s
32(1)(j) no evidence of how the compilers of the report were previously
contacted, and what efforts have been made to contact them
Courts jurisdiction under s 32(3)
o Gives courts a residual discretion to exclude HSE in the interests of justice to balance
the potential increase in the admission of HSE due to the 2012 Amendments
introducing more flexible exceptions to the HSR
o With s 32(1)(b) in particular
Expanded scope dispenses with requirement for the maker of the statement to
have personal knowledge of the facts contained in the statement;
Or that direct oral evidence of the facts must have been admissible
Cites Pinslers raising of the possibility that admissible records under s 32(1)(b)
may be unreliable
o On Pinslers analysis of s 32(3):
Real issue not whether previously admissible evidence (under s 5) can

35
 somehow be converted to inadmissible evidence at the pleasure of the court,
but whether admissible evidence should nevertheless be excluded because
other countervailing factors outweigh or override the value it adds to the case
General test: admissible evidence may be excluded if it does not justify the
disadvantages that would result from its admission, such as:-
Danger of unreliability or other harm that may compromise fair
adjudication;
Additional costs;
Delay in the proceedings;
Distraction of the court and/or the parties;
Tendency to confuse or its misleading effect;
Lack of reliability;
Prejudice
The less significant or probative the statement, the less forceful the
countervailing factors would need to be to justify exclusion
o Particularly if the HSE has limited probative value, such evidence should properly be
excluded
Therefore party that seeks to rely on HSE must be able to show that there
were safeguards applied to the evidence that would ensure a minimal degree
of reliability
o While the Sucofindo report undoubtedly had significant importance for Dfs case, this
must be weighed against the fact that it was unreliable and had a tendency to confuse
or mislead ultimately not admissible as per the courts discretion since the court had
serious concerns regarding its reliability

Pf argued that Intertek Report was admissible under s 32(1)(j)

Argued that no one from Intertek was willing to give evidence before a Singapore court,
therefore the report is admissible
o CoA found that the email chain did prove that Pf attempted to procure the attendance
of witnesses at trial, but they refused the request admissible under s 32(1)(j)(iv)
Should court exercise discretion to exclude the report
o Df argued that the report was unreliable considering the number of samples of coal
taken for analysis was grossly inadequate
o However, court found that other than the number of coal samples, there was no proof
of any other unreliability in terms of the report being tampered with etc.
o Still admissible, although sample size would go to weight of the evidence

SIC College of Business and Technology Pte Ltd v Yeo Poh Siah and others [2015] SGHC 133 [20]
(unreliability a ground for exercising discretion to exclude)
Facts Appellant contended that the key piece of evidence relied upon by the Judge was the
Printout, which was extracted from the Appellants system & provided by Koo
o However, Koo was not called to give evidence challenged that report was HSE
/held/ Judge considered Supramaniams document, which corroborated the report, but found that
they were all derived from the same source the Appellants accounting software
o Therefore cannot be said that the Document is corroborative of the facts stated in the
printout thats like saying a partial photocopy of a book corroborates the truth of the

36
 contents of the book
o Citing Wan Lai Ting v Kea Kah Kim, the court did not admit the report at [54], highly
prejudicial for a party to rely on evidence that the maker of the statement can testify
to but chooses not to do so, may give rise to the possibility that the party was
trying to prevent the maker from being xx because the evidence cannot survive xx

Bumi Geo Engineering Pte Ltd v Civil Tech Pte Ltd [2015] 5 SLR 1322; [2015] SGHC 261
/held/ Generally, HSE renders inadmissible a document adduced to establish the facts it refers to
in the absence of direct evidence of the facts contained therein (Pinsler)
o Direct evidence evidence of someone who has a personal knowledge of the facts
o S 32(1)(b) is an exception to the HSR because the rationale is that a statement or
entry made in the ordinary course or routine of business or duty may be presumed
to have been done from disinterested motive and may therefore be taken to be
generally true (at [104], citing Sarkers Law of Evidence)
o However, must be in the course of business
Which means it must be within the course of transactions performed in ones
habitual relations with others, as a material part of ones mode of obtaining a
livelihood (Sarkars)
o In this case table was prepared for the purposes of litigation, and theres no
evidence that the info in the table was extracted from any document prepared in the
ordinary course of business inadmissible

Public Prosecutor v Sutherson, Sujay Solomon [2016] 1 SLR 632; [2015] SGHC 292 (s 32(1)(j) (iii)).
Facts An issue that arose during trial was the admissibility of the HAS report which detailed the DNA
profile of A and was intended to be used to establish his presence at the scene of crime
Analyst preparing the report had testified during the committal hearing, but had subsequently
left HAS to return to Hong Kong, and did not avail herself to testify during trial
Prosecution argued that the report was not HSE, could still be admitted under s 32(1)(j)(iii)
/held/ On the facts of the case
o Analyst had resigned, so when the IO sent a reminder to her email address with HAS
regarding the upcoming trial, she didnt reply
o He also tried to call her on the first day of trial, and still failed to reach her
discovered that she had left SG
o Finally managed to contact her in HK, but she cited personal reasons and refused to
return to SG to testify, even though IO informed her that her travel expenses would be
paid and that she would be given subsistence allowance
On the law as per Gimpex, two requirements of s 32(1)(j)(iii):
o Witness must be outside SG;
o Not practicable to secure his or her attendance cited Gimpex (which cited Tapper)
this requirement refers to inability to secure attendance, implies an assessment of the
likely effectiveness of taking normal steps to secure the attendance of the witness,
which is considered in relation to:-
Importance of evidence;
Degree of prejudice to defence if admitted;
Expense & inconvenience involved in securing attendance
In this case, it wasnt practicable to secure her attendance:-

37
 o IO had already acted with considerable expedition;
o Took reasonable steps to secure her attendance managed to get in touch with her,
informed her that her cost of return would be borne by the State
o However, she made it clear that she had no interest in returning to SG
Should court exclude the report anyway in the interests of justice (s 32(3))?
o Cited Gimpex do countervailing factors outweigh the benefits of having the evidence
admitted?
o Also cited Gimpexs opinion that courts should not normally exercise their
discretion to exclude evidence admissible under the EA
o In this case, A did not allege impropriety in the testing process or preparation of report
Prosecution even arranged for another analyst to testify as to the DNA
profiling procedure adopted by HAS & explain how to read the report
Court concluded that there was no reason to refuse its admission

C. S 32(4): Notice Requirements

S 32(4) of the EA requires that the party who intends to admit HSE under s 32(1) to give advance
notice of his intent
S 32(4) Requirements
o a) The party has previously served a notice in writing on each of the other parties of his
intention to introduce the evidence;
o b) The notice must state on which of the grounds in section 32(1) of the Evidence Act it is
claimed that the statement is admissible;
o c) In the case of a statement not made in document, the notice must state the manner in
which it was made (whether orally or otherwise) and must also state
(i) The time and place at which the statement was made;
(ii) The name of the maker of the statement and (unless he is dead) his address, if
known;
(iii) If the maker of the statement is dead, the date of the death of the maker, to the
best of the information and belief of the party serving the notice;
(iv) The name and address of the person who heard or otherwise perceived the
statement being made; and
(v) He substance of the statement or, if it was made orally and the actual words
used in making it are material, the words used; and
o d) In the case of a statement made in a document, the notice must contain or have
attached to it a copy of that document or the relevant part of that document and, if the
information is not readily apparent from the document or the relevant part of the
document, must also state
(i) The matters mentioned in paragraph (c)(i), (ii) and (iii);
(ii) If the maker of the document is different from the maker of the statement, the
name of the maker of the document and (unless he is dead) his address, if known;
and
(iii) If the maker of the document is dead, the date of the death of the maker, to the
best of the information and belief of the party serving the notice.

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 A failure to comply with the notice provisions would mean that evidence cannot be given under s
32(1), with the exception of statements admitted by agreement under s 32(1)(k)
o This means that cases such as Teper (the unidentified woman shouting your shop is
burning down) cannot comply with the notice requirements because the maker of the
statement cannot be identified

D. S 32(5) Assignment of Weight

S 32(5) of the EA states that were a statement is admitted in evidence under s 32(1_, the court shall
assign such weight as it deems fit to the statement
After admitting HSE, the court may give it little weight because:
o Unreliability (Multiple hearsay, unreliable witness etc.);
o Prejudicial value is high (e.g. Using Co-As confession against A);
It should be noted that s 32(5) appears to give the judge the liberty to assign weight as he deems
fit. This appears to be a true discretion, and is unlikely to be overturned unless he acted in an
irrational or biased way
o CoA in Gimpex recognised that there is a there is a fine line between a decision not to
admit hearsay evidence under s 32(3), and a decision to admit hearsay evidence and accord
it less weight under s 32(5)
o However, it is not desirable to leave admit evidence that should be inadmissible, and then
apportion it little or no weight
The safeguard of weight should complement rather than replace the safeguard of
admissibility;
Furthermore, the apportionment of weight is a finding of fact which an appellate
court is unlikely to disturb, as opposed to admissibility which is a finding of law
Factors taken into consideration in s 4(2) of the UK Civil Evidence Act (Bear in mind, its civil
evidence, so you can cite the factors but maybe dont say where its from)
o (1) The reasonableness or otherwise of producing the actual witness;
o (2) Contemporaneity between original statement and occurrence of the matters stated;
o (3) Whether the evidence involves multiple hearsay;
o (4) Any motive to conceal or misrepresent matters;
o (5) Whether the original evidence was an edited account, or was made in collaboration
with another or for a particular purpose; and
o (6) Whether the circumstances in which the hearsay was adduced was such to deprive the
judge of assigning it its proper weight.

6. RES GESTAE

Even if the court decides that ___s evidence fails to fall within the hearsay exception, it may be
possible to argue that the evidence is nevertheless admissible under the doctrine of res gestae
Under the inclusionary common law doctrine of res gestae, a fact, statement of fact, or opinion
which is so closely associated in time, place and circumstances with some act, event, or state of
affairs in issue that it can be said to form part of the same transaction as the act or event is in itself
admissible

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 o Since res gestae is a doctrine of inclusion, it actually render admissible that which is
excluded as hearsay, opinion, or evidence
Rationale
o Adjudication will be much more effective if the court is able to assess the facts in issue in
light of the immediate circumstances from which the facts in issue spring, including the
conduct & statements of the relevant parties at or about the time of the occurrence of the
facts in issue
o Additionally, if the evidence were spontaneous, it would be less likely to be fabricated and
more likely to be true
Is this in line with our EA?
o The problem is, its been applied as though it is, even though under s 2(2), common law
rules are repealed to the extent they are incompatible with the EA
o Arguably, the res gestae doctrine is incompatible with the hearsay rule in the EA under s
32(1) a statement of a relevant fact is only a relevant fact under any of the subsections of s
32(1)
Even under s 6(1), facts admissible if they occur at the same time & place, or at
different times & places
Illustrations also indicate that the HSE doesnt have to be from the same
transaction:-
(a) If A is accused of murder of B by beating him, then whatever A or B said
or did so shortly before or after it as to form part of the same transaction
is a relevant fact;
(c) If A sues B for libel, letters between the two relating to the subject out of
which the libel arose are relevant, even if they do not contain the libel itself
HHL: PROBLEM S 6-11 TELLS US WHEN A FACT IS RELEVANT, AND NOT
WHEN THE STATEMENT OF A RELEVANT FACT IS ITSELF RELEVANT
THEREFORE EVEN IF IT WAS PROVEN THAT THE FACT CONTAINED
IN THE STATEMENT IS RELEVANT UNDER S 6 -11 (E.G. WHAT A/B
SAID IS A RELEVANT FACT), IT MUST STILL BE PROVEN THAT THE
STATEMENT ITSELF IS RELEVANT UNDER S 32(1)
o However, its just been applied anyway, so go with it

E. Application of Res Gestae

There are two conflicting approaches under the doctrine of res gestae:
The contemporaneity approach as seen in cases like Bedingfield and Allapitchay which requires
exact contemporaneity;
o Bedingfield - An exclamation made by V while rushing out of the house with her throat cut
was in question. The statement was "see what Bedingfield has done to me". It was held
inadmissible as the transaction in question, i.e. the girl having her throat cut, was over by
the time she made the statement, so it was not part of the transaction.

o Allapitchay - Case involved an attack on a stallholder at Telok Ayer market. The statement
in question was Vs cry of Mohamed has stabbed me, When some of the stallholders went
to help him, he repeated that Mohamed had stabbed him, and that Hassan and Haja
Mohideen were with him. CoA cited Bedingfield, and ruled that these statements were not

40
 res gestae they were not part of the same transaction since it was made after the three
persons who allegedly committed the crime had run away.

The reliability approach, as seen in cases like Ratten and Andrews, which does not require strict
contemporaneity and considers whether circumstances give rise to the possibility of concoction &
fabrication
o Ratten as per Lord Wilberforce, the test for res gestae should not be the uncertain one
of whether the making of a statement was in some sense part of the event or the
transaction. This would be difficult to establish since external matters such as time lapses
between the events & the speaking of words (or vice versa), and also difficult to decide
whether changes in location would be decisive criteria.
Conversely, a more certain test is whether the statement was clearly made in
the circumstances of spontaneity or involvement with the event that the
possibility of concoction could be disregarded.
Therefore the evidence is admissible if the drama leading up to the climax
has commenced & assumed such intensity & pressure that the utterance
can safely be regarded as a true reflection of what was actually
happening
Accordingly, the evidence would not be admissible if the evidence was
made by way of narrative of a detached prior event so that the speaker
was so disengaged from it that the speaker was able to construct or
adapt his account
Therefore on the facts of the case, PC held that the statement get me the police
please was HSE, but could be admitted as part of res gestae because it was made
minutes before she was shot and therefore likely to be free of concoction
o Andrews A was convicted of aggravated burglary & manslaughter. He was identified by V,
who was able to proceed downstairs to the flat below and ask for help after being stabbed
and inform the police of the attackers identity before dying
HoL took into account the TJs opinion that the injuries V sustained were of such a
nature that it would drive out of his mind any possibility of him being activated by
malice. Therefore, HoL held that these statements were res gestae because there
was no possibility in the circumstances of any concoction or fabrication of
identification, and thus inadmissible.
Case also stands for the point that if the maker of the statement has merely made a
mistake as opposed to deliberately fabricating the facts narrated in the statement,
this only affects the weight and not admissibility of the statement
In SG, Chi Tin Hui appeared to endorse the more flexible common law test by determining that
the oral statements of A to a CNB Officer in response to the his questions immediately after As
arrest could form part of the res gestae
o At [27], even though CoA did not cite Ratten, it held that the oral statements were
clearly made by A in circumstances of spontaneity, even though the transportation of
drugs transaction clearly ended as soon as A was arrested & handcuffed
o Pinsler says arguably, CTH doesnt even satisfy the Ratten test despite everything we
know about the propriety of our police force, there is no absolute guarantee that there
was no falsehood or embellishment of evidence in the interest of securing the
conviction

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