Anita Damu v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 30 September 2019
• Neutral Citation: [2019] SGHC 233
• Plaintiff Counsel: R S Bajwa (Bajwa & Co) and Sarindar Singh (Singh & Co)
• Docket Number: Magistrate’s Appeal No 9358 of 2018
• Date: 30 September 2019
• Hearing Date: 19 July 2019
• Subject Matter: Evidence,Criminal Procedure and Sentencing,Accused of unsound mind,Expert evidence,Newton hearings,Admissibility of evidence
• Published date: 03 October 2019
• Defendant Counsel: Tan Zhongshan, Jarret Huang & Seah Ee Wei (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 233
• Year: 2019

Sundaresh Menon CJ: Introduction

The evidence of psychiatric experts is often of considerable value when the court is confronted with the issue of an accused person’s mental state, such as when a diagnosis of a mental illness at the time of the offence would negate any mens rea, or reduce the accused person’s culpability for the offence. As I recently noted in Kanagaratnam Nicholas Jens v Public Prosecutor [2019] SGHC 196 (“Kanagaratnam”) (at [1]), such reports are often crucial because they can have a real impact on an accused person’s life and liberty. As with all domains that fall outside the court’s area of expertise, the court rightly places significant weight on the evidence of psychiatrists. However, it must always be noted that the responsibility to adjudicate on the issues that are before the court is the court’s alone, and it is incumbent on the court to satisfy itself that any expert evidence it is invited to accept is first, relevant and admissible, and then, coherent and resting on sound premises.

The question of the relevance and admissibility of psychiatric evidence took centre stage in the present appeal. Expert evidence invariably comes in the form of opinion evidence. As a general rule, a court is concerned with factual evidence rather than with matters of opinion. One well-established exception to this is in relation to expert evidence. But to avail of this exception, it should first be determined whether it is appropriate at all to admit such expert evidence, having regard to the precise issue that is before the court. The Evidence Act (Cap 97, 1997 Rev Ed) (“Evidence Act”) sets out in broad terms when such evidence may be adduced. I examine those circumstances more closely later in this judgment. But what is clear is that at least as a general rule, such evidence will not often be relevant or even admissible to resolve what, in substance, are purely matters of observable fact, the resolution of which do not raise a question of scientific or technical expertise. In my judgment, this became a point of importance in the present case because the main dispute between the parties was not whether the appellant suffered from a mental disorder, as to which expert psychiatric evidence would have been relevant, but whether she in fact experienced auditory hallucinations at the time of the offences, as to which the position might well be different. This, to my mind, at least had the potential to substantially undermine the relevance of the psychiatrists’ opinions, given that the appellant did not herself give any evidence of having experienced such hallucinations at the material time; and indeed given that what she did admit, seemed to be quite to the opposite effect. Unfortunately, this was a nuance that appeared not to have been fully appreciated or explored by the learned District Judge, the Prosecution and the Defence in the hearing below. This gave rise to a number of important issues, including in particular as to how justice should be done in the circumstances. I address these issues in this judgment.

Background facts The proceedings below

I begin with the salient facts. The appellant in HC/MA 9358/2018/01 (“the appellant”) pleaded guilty and was convicted of four charges under ss 323 and 324 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) punishable under s 73(2) of the Penal Code, as well as one charge under the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed). In brief, the appellant had committed various acts of abuse against her domestic helper (“the victim”), including scalding the victim by pouring hot water on her back, placing a hot iron on her hands, and failing to provide the victim with adequate rest. She also consented to four other charges, involving other acts of abuse, being taken into consideration for the purposes of sentencing. According to the statement of facts, which the appellant accepted without qualification, the appellant committed these offences for various reasons arising out of her frustration or anger with the victim: for example, she splashed hot water on the victim because the victim ate a longan without the appellant’s permission and denied having done so; she burned the victim’s hands with an iron because the victim was doing work slowly and the appellant was “furious” with her; and she would poke the victim with a bamboo pole when the victim made a mistake doing her chores or was caught sleeping inside the toilet.

After the appellant was duly convicted, she tendered by her counsel a mitigation plea which asserted that she was suffering from a mental illness at the material time that significantly affected her culpability at the time of the offences. Specifically, it was asserted that the appellant suffered from Major Depressive Disorder (“MDD”) with psychotic features, and that the appellant experienced auditory hallucinations which made her commit the offences. The reports of two psychiatrists, Dr Lim Cui Xi (“Dr Lim”) and Dr Calvin Fones (“Dr Fones”), were appended to the mitigation plea in support of this assertion. The appellant’s counsel, however, was at pains to emphasise that there was no intention to qualify the plea. Rather, the assertion being advanced was that the appellant’s culpability was significantly diminished because there was, allegedly, a causal link between the appellant’s mental illness and her offending. The Prosecution promptly took the point that it was disputing the assertion that the appellant experienced auditory hallucinations when she committed the offences in question, and that the appellant should be made to testify at a Newton hearing:

[DPP] Yang:	Your Honour, we know the basis of the---or the position which the defence is taking in terms of their mitigation, and actually there is a substantial dispute as to the factual basis of their position. I understand their position to be that she was labouring---the accused was labouring under the influence of voices at the material time of the offence. Prosecution is disputing whether that is correct and, secondly, even if that is so, we are disputing the extent to which these voices affected her self-control and her actions.
…
Yang:	… [F]or the record, if there was indeed to be a Newton hearing as to this issue, as to whether she heard voices, I think it would be proper for the accused to testify on the same. But we’ll leave it to my learned friend as to---

The appellant’s counsel took the position at the hearing below that a Newton hearing was not necessary, primarily on the basis that the evidence of both psychiatrists were consistent. The appellant’s counsel however wished nonetheless to call Dr Fones as a witness “to further clarify some aspects of his report”. The Prosecution on the other hand maintained that a Newton hearing was necessary because the main point of contention between the parties was not whether the appellant was or was not suffering from MDD, but whether in fact she experienced and acted under the influence of the claimed auditory hallucinations at the time of the offences:

Yang: Yes, Your Honour. We’re asking you for a Newton hearing because we dispute that the accused had heard voices at the time of the offences. Both the psychiatrists’ diagnoses that she had heard voices were based on self-reports from the accused. However, based on what she had told the police initially and even the differences between what she told Dr Fones and Dr Lim, which I hope to elucidate later during the questioning of Dr Fones, we say Your Honour should find that she did not even hear these voices. And that is why a Newton hearing is needed. It is not for Your Honour to decide just between Dr Fones’ and Dr Lim’s reports as per the extent in which the major depressive disorder with mood-congruent or just psychotic features have affected her actions, but if there was even such psychotic features in the first place. [emphasis added]

In fact, the Prosecution made it abundantly clear that the Newton hearing was necessary only because of the allegations of auditory hallucinations and not on account of the diagnosis of MDD:

Court:	For the purpose of the Newton hearing, you have to be very specific as to what is the purpose of the Newton hearing. If you’re talking about the major depressive disorder---
Yang:	Yes.
Court:	---is that disputed between the parties? If it is not, then you’re only talking about the auditory hallucinations.
Yang:	Only talking about the auditory hallucination, Your Honour.
Court:	Only talking about that, right?
Yang:	Yes. So if---
Court:	So---yes.
[emphasis added]

Having heard the parties’ submissions on whether a Newton hearing was necessary, the District Judge was of the opinion that he should first allow the psychiatrists to give evidence and defer the decision as to whether the hearing should be converted into a Newton hearing until he had heard what each psychiatrist had to say, because it might not ultimately be relevant to determine whether the appellant actually heard voices.

Dr Fones was thereafter called to give evidence, and was examined by the appellant’s counsel and cross-examined by the Prosecution. Midway through the cross-examination of Dr Fones, both parties made further submissions on whether the hearing should be converted into a Newton hearing. The appellant’s counsel maintained that a Newton hearing was not necessary, because both psychiatrists agreed that the appellant had experienced auditory hallucinations. The District Judge eventually accepted the Prosecution’s submission that since what was in dispute was “the factual occurrence of auditory hallucinations” and that would ultimately have a bearing on the appellant’s sentence, a Newton hearing...