Epistemic Justifications

The abolishment of the similar fact exclusionary rule might be more in-line with Singapore's criminal justice system. Though Singapore is a constitutional democracy, it is seen as less "liberal" than other constitutional democracies, especially on the subject of an accused person's rights16. According to our political leaders and other government officers, Singapore officially adopts a consequentialist approach to the legal process, especially the criminal process and, by extension, to the trial and rules of evidence17. These views contain an assertion that community safety and security interests should override individual rights.

What this means is that the Singapore court would probably place a higher priority on the determination of the truth, or rather more specifically, the safety and security of the community at large, as compared to fairness to the accused. Furthermore, there are signs that this is indeed the direction that we are headed towards. This can be seen in the case of Wong Kim Poh18: "In a criminal trial without a jury, as in all such trials in Singapore, the wrongful admission of evidence of the bad character or disposition of the accused does not necessarily mean that the judge or judges have been adversely influenced by such evidence.

We must bear in mind that judges are trained to assess evidence objectively. " In short, given the premium we seem to place on determining the truth and the implicit trust we have in our judges, we might have more in common with civil law jurisdictions than one might think. In fact, the Singapore criminal justice system has been referred to by the Privy Council19 as 'a system of justice in which the court itself is invested with what are in part inquisitorial functions'. III. Is Abolishment the Way to Go?

However, conventional thinking in evidence utilises a three-dimensional, inter-related structure, as expressed by the oft-cited dictum of Knight Bruce VC in Pearse v Pearse20: "The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means ... Truth, like all good things, may be loved unwisely - may be pursued too keenly - may cost too much.

" In short, the normative structure must embrace the epistemic (seeking to know the truth), the moral (subject to acceptable notions of fairness and justice) and the economic (subject to costs and resources)21. It is, likely to be an untidy compromise among them22. In this light, perhaps the abolishment of the similar fact exclusionary rule would be too drastic a measure. No country has as of yet abandoned the rule for bench trials23. The underlying rationale of the rule is still very much relevant today. This will be looked at in the following three categories.

Here, the key question is: how does the rule impact on the probabilities of getting the facts right in the end? The rule is assessed based upon its contribution to the frequency of correct outcomes produced by the trial system. All similar fact evidence has some probative value. As such, in the interests of finding the truth, it would seem best for us to accept the evidence as relevant. However, such evidence has to potential to be prejudicial. This has been taken to mean that the evidence is capable of leading the fact-finder away from the truth24. Here, two major factors are commonly cited.

First is the danger that the fact-finder will treat the evidence as more damning than it actually is. This is termed as cognitive error25. Second is the danger that evidence of the accused bad character will sway the fact-finder unduly against him. This is termed as the risk of emotivism26. Hence, where the prejudicial effect is seen to outweigh the probative value, it would be best to exclude such evidence for this would be the most conducive to the desired outcome27. B. Moral Justification Other than the consequential effect of the rule, Ho Hock Lai also proposed a moral dimension to the law regarding similar fact evidence.

This approach focuses on the process of deliberation rather than the outcome of the fact finding. Justice must not only be done in finding the correct facts and applying the right law, the judge must show an empathic care for the parties in the process28. Regarding similar fact evidence, one might be tempted to conclude that the accused is the sort of person likely to have committed the crime since he is the sort of person who tends to commit this type of criminal act under certain conditions29. The aged maxim, "a leopard never changes his spots" comes to mind.

Here, the injustice of reaching this sort of conclusion lies in a public characterisation of the accused that denigrates an essential aspect of his dignity as a free individual. As such, the law, through the exclusionary rule, upholds justice by enjoining this offensive characterisation30. In so doing, the moral authority31 of the courts is maintained. C. Practical Considerations In addition, there might be wider systemic benefits to be had from excluding evidence of the accused unsavoury past. For instance, it may force the police to conduct more thorough investigations32.

Similarly, the prosecution and judges would be forced to prepare or consider cases more carefully33. While it is true that probative value and prejudice can still be dealt with at the end of the day when the judge weighs the evidence, without an exclusionary phase to underline the need for caution, there would be greater opportunity for prejudice to seep into the subconscious undetected34. IV. Alternative Reforms The similar fact evidence exclusionary rule still retains relevance both in ascertaining the truth and in maintaining the moral authority of the courts, even in a bench trial environment.

Furthermore, the rule also serves some practical functions in ensuring the effectiveness of our criminal justice system. Thus, perhaps the similar fact evidence exclusionary rule isn't so much 'redundant' as it is not entirely compatible with our existing system. 35. Hence, rather than doing away with the rule entirely, I shall propose some alternative reforms to the EA so as to better allow the rule to fulfil its function in the bench trial system of the Singapore. A. Pre-trial Conference (PTC)

This proposal would require the prosecution to reveal at a PTC any similar fact evidence that it proposes to adduce at the trial. The judge conducting the PTC should weigh prejudicial effect of the evidence against its probative value. If he or she should find that the former outweighs the latter, he or she should rule against the admission of the evidence at the trial and assign the case to be tried by another judge, who will not get to hear of the evidence at all. The reform that is required would need to empower the PTC judge to make both of these directions.

There have been some concerns raised regarding the practicality of this solution. At this preliminary stage, the prosecution may not be sufficiently prepared to submit on the evidence that it will produce at the trial. The judge too may not have sufficient knowledge of (or feel sufficiently familiar with) the facts of the case to make a ruling at that point. Also, reassigning cases may overtax court resources. It is submitted that while these are issues that should be addressed, they are not insurmountable. The court could allow the prosecution more time to submit its evidence.

Judges should be more than capable to properly address this evidential issue, even at the preliminary stage, since the admissibility of evidence is separate from the main substantive of the case at hand and an utter familiarity with the facts is not yet required. However, of more significance are other limitations which apply to the exclusionary rule as a whole36. In focusing on admissibility, the need for safeguard after the evidence has been admitted is overlooked. The difficulty of balancing the probative and prejudicial effects of similar fact evidence is also not addressed.

These problems cannot be solved by the implementation of the PTC alone. B. Duty to Enunciate Here, it would perhaps be prudent to look at the civil law jurisdictions and how they handle the issue of similar fact. To address Zuckerman's point, we could apply this approach to Singapore, not as a replacement to the current exclusionary rule, but rather as an additional safeguard. Under such a regime, the trial judge may be imposed with the duty to indicate his awareness of the risk of prejudice and this should be expressed in writing, say, in the notes of evidence or the grounds of judgment37.

This would mean that we treat prejudice not only as a matter going to admissibility but also as a matter which engenders a judicial duty to take special care to avoid. Even so, it is acknowledged that this measure cannot totally remove the danger of it seeping into the subconscious undetected. Nonetheless, it is submitted that such is an impossible task and the best that one can do is to acknowledge the existence prejudice and attempt to work around it38.

In fact, the same would apply regarding the carrying out of the Boardman balancing test. To an extent, this would help to guard against the subconscious influence of prejudice both at the PTC and trial stage. V. Conclusion The similar fact evidence exclusionary rule does not seem directly relevant in Singapore's bench trial system. This is not so much because the principles that the rule embodies are obsolete. Rather it is because of a reluctance to adapt the law of evidence to the modern context.

To this effect, other than outright abolishment, the implementation of the PTC, coupled with the additional tier of protection provided by the imposition of a duty on judges to indicate their awareness of the risk for prejudice, would probably achieve a greater balance between the three normative principles espoused earlier39. It is hoped that this would help Singapore achieve a more just criminal justice system. 1 (Cap 97) 2 [1894] AC 57 3 [1975] AC 421, this approach was subsequently broadened in DPP v P [1991] 2 AC 447. 4 Some have faithfully adhered to the Act, taking care not to mention the common law.

Others have followed the twists and turns of the common law, almost as if pretending that the Act does not exist. Still others eclectically quote the Act, Makin and Boardman, all with approval. 5 Hor Michael, Similar Fact Evidence in Singapore - Probative Value, Prejudice and Politics, [1999] 0 SJLS 48 p. 57. It is true that many of the early cases do not "seem" to assess probative value or prejudice, and speak only of relevance (see Tan Meng Jee [1996] 2 SLR 422, 433). Nonetheless, the pre-Boardman cases often masked calculations of probative value behind the language of relevance; probative value was probably assessed implicitly.

6 Ibid, at p. 56. It is likely that Boardman-style calculations of probative value were envisaged by Stephen. For example Explanation 1 to section 14 requires that the evidence be relevant to a particular and not only to a general state of mind. This can only be a clear reference to the probative value of the evidence in question. This can also be seen in Illustration (o). Similarly, section 15 predicates admissibility of similar fact evidence as being part of a series of similar occurrences. This bears striking resemblance to the Boardman test of "striking similarity".