Criminal Procedure, Evidence and Sentencing

Date01 December 2020
Citation(2020) 21 SAL Ann Rev 486
Published date01 December 2020
Publication year2020
AuthorWONG Woon Kwong LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Senior Director and Senior State Counsel, Crime Division, Attorney-General's Chambers. Sarah SHI BA (Oxon) (Hons), BCL (Oxon); Advocate and Solicitor (Singapore); Senior Deputy Director, Prime Minister's Office, Communications Group (Strategy Unit).
I. Prosecution's duty of disclosure

15.1 A recent string of cases has given renewed emphasis to the Prosecution's role as ministers of justice. This role entails an “overarching duty of fairness”,1 obliging the Prosecution to ensure that only the guilty are convicted. To this end, the Prosecution must place all relevant material before the court to assist it in its determination of the truth.2

15.2 As prosecutions are brought in the public interest,3 the adversarial nature of the trial process applies in an attenuated form in criminal trials, where it is “generally unnecessary for the Prosecution to adopt a strictly adversarial position”.4 Instead, the wider considerations of public interest are paramount, “even at the expense of obtaining a conviction”, and litigation strategy must give way to these considerations.5

15.3 Calibrating the balance between fairness to an accused person against the adversarial nature of the criminal trial process is a live issue, and the court has not shied away from relooking this balance where it deems this necessary. For instance, the additional disclosure obligations

introduced in Muhammad Nabill bin Mohd Fuad v Public Prosecutor6 (“Nabill”) were in pursuit of achieving a more satisfactory balance.7

15.4 The seeds of the recalibration of the Prosecution's role — from advocates to ministers of justice — were planted in Muhammad bin Kadar v Public Prosecutor8 (“Kadar”). Kadar laid down an obligation on the Prosecution to disclose any unused material that is:

(a) likely to be admissible and might reasonably be regarded as credible and relevant to the guilt or innocence of the accused; and

(b) likely to be inadmissible, but would provide a real chance of pursuing a line of inquiry that leads to material in (a) above.

15.5 These seeds were nurtured in Nabill, which expanded on the scope of the Prosecution's disclosure obligations in respect of material witnesses9 who are not called by the Prosecution.10 In Nabill, the statements of four material witnesses were not disclosed to the Defence, and the Prosecution did not call these witnesses to rebut the defence. Although the Prosecution resisted disclosure of these witness statements under Kadar, as they neither undermined its case nor strengthened the Defence's case, the statements were found disclosable under the additional disclosure obligations laid down in Nabill.

15.6 The Court of Appeal reasoned that an accused person ought to have access to all relevant information in order to make an informed choice about whether to call a material witness. While the Defence has a right to call a material witness, it will be at a “distinct disadvantage” (vis-à-vis the Prosecution) in deciding whether to do so, if it is unaware of what the witness had previously said in his statements.11 Further, the Defence might face “insurmountable” difficulties in eliciting self-incriminating evidence from a material witness.12

15.7 To enable the accused to make an informed choice, the Nabill disclosure obligations are deeper — though narrower — than the Kadar obligations; narrower in that it covers only statements of material witnesses, whereas Kadar covers all unused material; but deeper in the following two aspects:




Disclosure of unused material that is favourable to the accused. There is no obligation to disclose unused material which is neutral or adverse to the accused.13

Disclosure of statements of material witnesses that are not only favourable to the accused, but also those which are neutral, or even adverse to the accused.14


Prima facie credible and relevant to the guilt or innocence of the accused person.

No such threshold.15

The court explained that the Prosecution's burden to disclose statements of material witnesses would not be onerous, given that most cases would feature a limited number of such statements.16

15.8 Beyond the scope of disclosure, another key issue is the timing of disclosure. In Nabill, the Prosecution argued that material witnesses' statements should be disclosed only after the accused testifies. This would prevent the accused from: (a) tailoring his defence to bring it in line with the witness's account; or (b) influencing the witness to give evidence favourable to the Defence's case, or otherwise retracting or neutralising his evidence.17 This argument was in line with the High Court's observations on evidence tailoring in Tay Kok Poh Ronnie v Public Prosecutor.18 The High Court had noted that that once defence witnesses finish giving evidence, there would be no basis to deny disclosure of the accused's statements, as the Defence could not tailor evidence at this stage of the proceedings.19

15.9 The Court of Appeal rejected this argument, holding that material witnesses' statements should be disclosed before the trial and before the accused person gives evidence.20 In this way, the timelines for disclosure under Kadar and Nabill are synchronised, that is, simultaneous disclosure with the case for the Prosecution (if the statutory disclosure regime applies), or at the latest, before the trial begins (if the statutory disclosure regime does not apply).21

15.10 The court further recognised that given the continuing obligation of disclosure,22 supplementary disclosure pursuant to both Kadar and Nabill could take place after the commencement of trial.

(a) As regards Kadar, if a prosecution witness's statement is inconsistent with his testimony at the trial, that statement ought to be disclosed for the Defence to use in cross-examination and impeachment as appropriate.23

(b) As regards Nabill, if the relevance of a particular material witness's evidence becomes apparent only after the accused person has testified at the trial, that witness's statement should be disclosed to the Defence at that juncture.24

In other words, while disclosure should generally take place pre-trial, the Prosecution should reassess its disclosure obligations as and when new information comes to light.

15.11 The rationale for pre-trial disclosure is that the Defence needs such statements in order to decide which witnesses to call, and to assess of the strength of its case.25 Providing the Defence with all the relevant information before the trial enables it to develop a defence strategy best suited to assist the court in arriving at the truth.26

15.12 Further, even where the Prosecution assesses its disclosure obligations in good faith, it may not always fully appreciate the defence that the accused is running or intends to run, and may thus inadvertently fail to disclose statements that might support the defence.27 This transpired

in Lim Hong Liang v Public Prosecutor28 (“Lim Hong Liang”) and Public Prosecutor v Wee Teong Boo29 (“Wee Teong Boo”), where the Prosecution did not disclose certain materials to the Defence. The courts have thus cautioned that where there is any doubt as to whether a particular piece of evidence should be disclosed, the Prosecution should err on the side of disclosure.30

15.13 In Lim Hong Liang, the Prosecution had initially argued, at both the trial and appeal, that a statement by one Edwin was neutral and did not meet the threshold for Kadar disclosure. At trial, an alleged co-conspirator, one Lim De Mai Ron, had said in his own statement that Edwin would support Ron's testimony that the accused was involved in a conspiracy to attack the victim. Edwin had been offered to the defence as a witness but was not called to the stand. On appeal, the accused brought a criminal motion to place Edwin's statement before the High Court for consideration, but did not apply to adduce it as fresh evidence.

15.14 After the Court of Appeal issued its decision in Nabill, the Prosecution accepted that the trial prosecutors had made a “genuine error” in assessing that Edwin's statement was neutral, and accepted that it was disclosable under both Nabill and Kadar. As the Prosecution accepted that there was a breach, the court turned its attention to the effect of non-disclosure.

15.15 The court held that non-disclosure could result in three main potential consequences:

(a) The conviction may be overturned if the failure to disclose amounts to a material irregularity occasioning a failure of justice or renders the conviction unsafe.31 This may happen where:

(i) doubt is cast on the integrity of the prosecution process in view of misconduct or suppression of evidence. In such cases, the inadmissibility or otherwise of the non-disclosed evidence is not material and need not be addressed; or

(ii) the non-disclosed evidence, upon being found admissible, shows that the Prosecution's case

was not made out beyond a reasonable doubt.32 The non-disclosed evidence will have to satisfy the criteria for admissibility in Ladd v Marshall.33 The High Court found itself bound by Kadar in coming to this conclusion, as the Court of Appeal had held in that case that the “usual rules and procedures for the adducing of fresh evidence in appellate proceedings would be applicable”.34 Even so, the High Court expressed reservations about this conclusion, noting that a party arguably should not be hampered by Ladd v Marshall in adducing undisclosed material evidence on appeal, and questions of admissibility should not bar the court from looking holistically to decide whether a conviction is safe.35

(b) A retrial may be ordered after the court weighs the circumstances of the case, balancing the need to ensure justice by not allowing those guilty to escape by way of a technicality against the need to ensure fairness to the accused.36

(c) Depending on the circumstances of the case, the court may draw an adverse inference against the Prosecution. This will be a case specific assessment, and in certain cases, the court may not need to look at the non-disclosed statement for the truth of its contents, and may only...

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