Criminal Procedure, Evidence and Sentencing

Citation(2000) 1 SAL Ann Rev 143
Published date01 December 2000
Date01 December 2000
CRIMINAL PROCEDURE
Impeachment
The procedure

The established Muthusamy procedure to impeach a witness is unnecessary where the person sought to be impeached is the accused. This was decided by the Court of Appeal in Loganatha Venkatesan & Ors v PP[2000] 3 SLR 677. The procedure set out in the oft-cited case of Muthusamy v PP[1984] MLJ 57 is that when a witness”s testimony in court departs from his previous statements, the party seeking to impeach him is required to underline in red the portions in the witness”s statements that are inconsistent with his testimony in court. Thereafter, the underlined portions are shown to the judge, who must then decide whether the inconsistencies are material. Only if the judge finds that the inconsistencies are material, will he then allow the party seeking to impeach the witness to show the statement to the witness and seek his explanation on the inconsistencies. If. on the other hand, the judge finds that the inconsistencies are not material, he will disallow the application to impeach the witness and the witness cannot be cross-examined on the inconsistencies.

During Loganatha”s trial in the High Court, the prosecution sought to impeach the third appellant with her statements to the police recorded under s 121 of the Criminal Procedure Code (Cap 68, 1985 Ed) (“CPC”) which were inconsistent with her testimony in court. The Muthusamy procedure was followed and having found that there were material discrepancies, the trial judge allowed the prosecution to cross-examine the third appellant.

The Court of Appeal held that it was unnecessary to go through the Muthusamy procedure of underlining the inconsistent parts of the witness”s statement and seeking the court”s ruling that the inconsistencies were material before obtaining permission to cross-examine the witness with the statement. The accused”s statements were admissible under s 122(5) of the CPC. The prosecution was entitled to use the accused”s statements in cross-examination and for the purpose of impeaching her credit. There was no need for the prosecution to apply for the court”s permission to use the statement since s 122(5) does not require any such permission to be sought.

The Court of Appeal pointed out that Muthusamy dealt with a situation involving the impeachment of a witness who was not the accused and the case was also decided before the present s 122(5) of the CPC came into existence. As such, the cumbersome and slow process set out in Muthusamy need not be used where the person sought to be impeached was the accused. The Court of Appeal was also fortified in its conclusions based on the fact that the procedure laid down by Taylor J in Muthusamy was nowhere found in ss 147(1), 147(2) and 157 of the Evidence Act (Cap 97, 1997 Ed).

The procedure to impeach a witness who is not the accused remains unchanged, ie the procedure laid down in Muthusamy still applies.

Making a ruling

Two cases considered the issue whether a trial judge must necessarily make a ruling on whether the credit of a witness is impeached each time an impeachment exercise is carried out.

In Loganatha Venkatesan & Ors v PP (supra), it was argued by the prosecution on appeal that the trial judge should have made a ruling that the third appellant”s credit was impeached upon her failure to give a credible explanation for the discrepancies between her testimony in court and her statements to the police, while the defence contended that the absence of such a ruling showed that her credit was not impeached. The Court of Appeal held that there was no requirement that a trial judge must, at any stage of the trial, make a ruling on whether the credit of a witness was impeached. All that was required was that the trial judge must consider the discrepancies and the explanations given by the witness for the purpose of an overall assessment of the witness”s credit. The Court of Appeal noted that while Yong Pung How CJ had stated in Kwang Boon Keong Peter v PP[1998] 2 SLR 592 that “it is apt for the Court to make a ruling on the impeachment proceedings at the close of the case together with the rest of the evidence tendered”, no rule was laid down in that case that the court had to make such a ruling. Even if such a rule was laid down in that case, it was not an immutable rule in the evaluation of evidence. The decision of the Court of Appeal comprising of the Chief Justice together with 2 other Judges of Appeal was delivered on 15 August 2000.

In a later decision of the High Court in Yusofbin A Samad v PP[2000] 4 SLR 58, the Chief Justice held that the failure to make a ruling on the impeachment proceedings by the trial judge was a procedural irregularity. The trial judge should have made a ruling on the impeachment following Kwang Boon Keong Peter v PP. Nevertheless, the procedural irregularity was minor and had not prejudiced the appellant in this case.

The decision of the Court of Appeal in Loganatha Venkatesan was equivocal on whether a ruling must be made by a trial judge every time impeachment proceedings are conducted. The High Court in Yusof has taken the position that a ruling on the impeachment must be made, if not at the end of the impeachment exercise, then at the close of the case together with the rest of the evidence tendered. However, failure to make such a ruling may be of no consequence if s 396 of the CPC applies. What is clear from both cases is the need to consider the discrepancies and the explanations proffered in the overall evaluation of the witness”s evidence.

Meaning of “previous inconsistent or contradictory statement”

In PP v Heah Lian Khin[2000] 3 SLR 609, the respondent had claimed trial in the District Court to charges of receiving information communicated in contravention of the Official Secrets Act (Cap 213, 1985 Ed). The principal prosecution witness had earlier pleaded guilty to one charge of communicating information to the respondent in breach of the Official Secrets Act. During the trial, the principal prosecution witness claimed that he was unable to remember that he had communicated the information to the respondent despite being shown his statement previously given to the Corrupt Practices Investigation Bureau (“CPIB”). The appellant then sought to impeach the witness and to admit his previous statement given to the CPIB under s 147(3) of the Evidence Act (Cap 97, 1997 Ed). The application was disallowed by the district judge on the basis that the provision only applied when a witness gave a different version in court. Where a witness said he could not remember, no such version was before the court. The respondent was acquitted at the close of the prosecution”s case without his defence being called.

On appeal, it was held that the words “previous inconsistent or contradictory statement” in s 147(3) of the Evidence Act need not be restricted to a situation where two substantive opposing versions of an event are given. Inconsistent testimony is given if a witness fails to give a version materially similar to his previous statements - this includes a situation where a witness claims not to remember even after being shown his statements to refresh his memory. There need not be absolute oppositeness; rather the court has to compare the oral evidence with the previous statement to assess the overall impression created as a whole to see if they are compatible, congruent or consonant in substance, spirit or form. It is open to a trial judge to form his own conclusion that a witness who claims not to be able to remember is deliberately lying and is refusing to testify as to his true recollection.

The Chief Justice held that such a construction would also accord with a purposive interpretation of s 147(3) of the Evidence Act, one of the objects of which was to prevent the artificial exclusion of a possible source of evidence. The phrase “previous inconsistent or contradictory statement”

must necessarily encompass a witness who had deliberately lied and falsely claimed that he was unable to recall the facts. Otherwise, there would be an obvious loophole in s 147(3) allowing a witness to escape cross-examination on his previous statement so long as he claimed to have no recollection of the facts. The correct approach should have been for the District Judge to assess whether the witness”s refusal to testify as to the recollection was a deliberate lie.

The appeal was allowed and the case was remitted to the District Court for the accused to be called upon to enter his defence.

Need to hold a voir dire

It is commonly encountered in the course of an impeachment exercise that when confronted with their previous inconsistent statements, witnesses will challenge the voluntariness of those statements. If it is a statement of an accused person, it is settled that a voir dire must be held to determine the voluntariness of the statement since that is a pre-requisite to its admissibility under s 122(5) of the CPC or s 24 of the Evidence Act.

Where it is a statement of a witness who is not an accused person, the position seems less certain. In PP v Heah Lian Khin (supra), the Chief Justice considered this issue and noted that there was no legal requirement to prove the voluntariness of a witness”s statement before it could be admitted. Voluntariness or the lack thereof would only go to the weight to be attached to the statement. However, in the absence of full argument, the Chief Justice was unwilling to disturb the accepted practice in the Subordinate Courts of conducting a voir dire to ascertain the voluntariness and admissibility of a witness”s statement. Be that as it may, the Chief Justice made a distinction between a mere witness and a witness who was an accomplice of the accused (whether he had been dealt with or not charged as yet). The latter type of witness would have been in the same position as an accused person at the time his statement was recorded and would be exposed to the same dangers...

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