Case Note

AuthorS Chandra MOHAN LLB (Hons), LLM (Singapore), PhD (London); Advocate and Solicitor (Singapore); Adjunct Associate Professor of Law, School of Law, Singapore Management University. Rennie WHANG BA (University of Pennsylvania); Juris Doctor Candidate, Singapore Management University.
Publication year2019
Citation(2019) 31 SAcLJ 336
Published date01 December 2019
Date01 December 2019
I. Introduction

1 The principles governing the admissibility of fresh evidence in a criminal appeal are fairly well settled. The law on taking additional evidence in a criminal appeal is governed by s 392(1) of the Criminal Procedure Code1 (“CPC”), which states that “in dealing with any appeal under this Part, the appellate court may, if it thinks additional evidence is necessary, either take such evidence itself or direct it to be taken by the trial court”. Apart from conferring the power to take additional evidence, the provisions of the CPC do not explain how this should be exercised. The courts have, therefore, turned to English cases for guidance in determining when further evidence would be considered “necessary” as required under s 392(1) of the CPC. In Singapore, the courts are guided by the three conditions articulated by Lord Denning in Ladd v Marshall,2 bearing in mind the higher burden of proving guilt in a criminal case.3 These three conditions of non-availability at trial, relevance and reliability were further examined by the Court of Appeal in Public Prosecutor v Mohd Ariffan bin Mohd Hassan (“Mohd Ariffan”).4 The Court of Appeal affirmed these three conditions as they apply to an application by the Prosecution to admit new evidence and further clarified the analysis to be done under the first condition. Most significantly, in what is believed to be the first for a case here, the application to admit new evidence was granted in order to rebut findings of fact that the trial judge had made in his grounds of decision. This note focuses on the apparent qualification of the first condition of non-availability. First, it will examine the basis for such a qualification and the desirability of doing so in an application by the Prosecution. It will then discuss problems with its application in the instant case, arguing that this may be tantamount to opening Pandora's box for the future use of fresh evidence in criminal appeals.

II. Facts and the decision

2 In Mohd Ariffan, the respondent had been charged with committing rape and other sexual offences against the complainant, who was 15 to 16 years old at the material time. The offences came to light only gradually, with the complainant first telling her boyfriend about the alleged offences – said to have taken place from March 2009 to early 2011 – sometime in 2010, and subsequently telling her mother about some aspects in 2011 and revealing the details more fully to her siblings in December 2012. The first information report to the police was made in December 2012.

3 In respect of the rape charges, the respondent was accused of having driven the complainant in a prime mover to a forested area and having raped her at the back of the cabin of the prime mover. At the trial, the accused's employer testified that it was not the accused but another employee named Idris bin Mohamed who had been assigned to drive the prime mover at the material time. The Prosecution was apparently not previously aware of the existence of Idris. The trial judge subsequently acquitted the respondent on all five charges against him, finding that the evidence by the respondent and his employer at the time contrasted with a description by the complainant which was “confusing”; and “real doubt” was cast on the Prosecution's case regarding the identity and use of the prime mover.5 Further, the trial judge found, inter alia, that the complainant's delay in informing others of the alleged offences, her reluctance to report the matter to the police, and the “contradictory and inconsistent” information she eventually gave had a “negative impact on her credibility”.6 Overall, her testimony did not stand up to the requirements for an “unusually convincing” account where no other evidence was available in order to prove the Prosecution's case beyond a reasonable doubt.7

4 The Prosecution appealed against the acquittal and also filed an application to admit further evidence on appeal, pursuant to s 392 of the CPC. The additional evidence in question consisted of three affidavits by Idris's son and two police officers, designed to rebut evidence by the respondent's employer in respect of Idris. The Prosecution also sought to admit at the appeal parts of an “expert report” by the chief psychologist at the Ministry of Social and Family Development, who opined that delays in disclosure, as well as inaccuracies and inconsistencies in accounts, were “highly realistic” characteristics of a victim's psychological response to rape.8 This was intended to address what the Prosecution considered were mistaken conceptions of rape victims which had influenced the judge, as seen in his judgment.

5 Regarding the admissibility of further evidence, the Court of Appeal held that the three conditions in Ladd v Marshall should continue to apply in an “unattenuated manner” to such applications by the Prosecution, even though it had been previously held that “a less restrictive” approach should be used in considering the first condition of non-availability for an accused person – it being “less paramount than

the other two conditions”.9 This was because the arguments for attenuation with regard to an accused person's application did not apply to applications by the Prosecution. These arguments were:

(a) the need to avoid considerable prejudice that might be suffered by an accused person who is wrongfully convicted or receives a sentence manifestly disproportionate to his culpability;

(b) the disparity of resources between the Prosecution and accused persons and the Prosecution's control over the commencement of the criminal litigation process, by which time it would have had the opportunity to ensure that evidence gathered “is in a satisfactory state”; and

(c) the “harrowing nature” of an accused person's experience in defending criminal charges, which may impact his ability to consider the nature of the evidence needed for trial.10

6 The Court of Appeal subsequently made two modifications to the Ladd v Marshall requirements. First, it held that an appellate court, in considering the first condition of non-availability, should consider not only whether the evidence was physically available and so could have been obtained with reasonable diligence at trial but also whether the evidence was reasonably not thought to be necessary at trial. This was as “counsel cannot be expected to consider things that, objectively and reasonably, would not have been thought to be relevant to the case”.11 Such a consideration of what was reasonably thought necessary should entail “consideration of the issues a party would reasonably have become aware either before or during the course of trial”.12 Overall, then, such a consideration was said to be “essential … to ensure fairness and due process”.13 Second, the Court of Appeal held that the court should, in an application to admit fresh evidence, further consider the proportionality of allowing its admission, weighing the significance of the new evidence against the need for swift conduct of litigation and any prejudice which might arise from additional proceedings.14 As will be argued later in this note, the Court of Appeal's approach in allowing the Prosecution's admission of part of an expert report in the present case may well militate against these very principles.

7 On applying the Ladd v Marshall requirements, the Court of Appeal, quite rightly, declined to admit the three affidavits relating to the evidence of Idris's son, holding that they did not meet the requirement for non-availability. In the court's view, there was no evidence to show that the Prosecution or the investigation team had made sufficient enquiries to ascertain the identity of the driver of the prime mover. The identity of Idris would likely have surfaced much earlier had this been done. Additionally, the Prosecution could have, during the trial, sought an adjournment for further investigations instead of closing its case.15 The Court of Appeal was of the view that as the Prosecution had made a “conscious decision” in the latter regard, it could not presently accept that the evidence could not have been obtained with reasonable diligence.16

8 However, in relation to certain paragraphs in section 7 and two paragraphs in section 5 of the expert's report, the Court of Appeal held that, as the issue of the complainant's delay in disclosing the alleged abuse and her reluctance to report the matter to the police was “not a live point of contention at trial”, the Prosecution could not “reasonably be expected to have considered at trial that it would be necessary to adduce an expert report dealing with how rape victims tend to approach the disclosure of sexual abuse”, and evidence relating to the issue accordingly satisfied the requirement of non-availability.17 These were also found to be relevant to issues in the appeal and were considered reliable, given the expert's “extensive learning and clinical experience”.18

III. Analysis
A. Desirability of the qualification to the “non-availability” requirement

9 It is submitted that the addition of a separate qualification of what is “reasonably thought necessary” to the first condition of “non-availability” in Ladd v Marshall is both ambiguous and unnecessary. Indeed, the courts have previously proceeded on the basis that such a requirement is already bound up in an assessment of reasonable diligence. For example, in Mohammad Zam bin Abdul Rashid v Public Prosecutor,19 where the appellant sought to avoid a term of life imprisonment, the Court of Appeal appeared to suggest that defence counsel should reasonably have thought of necessary affidavits

attesting to family or other support, which he sought to produce only post-sentencing. This was because, on the available facts, the Defence “knew that the mitigating factor was the lack of impulse control by reason of the appellant's mental condition” and was thus “aware of the prognosis and...

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