Criminal Procedure, Evidence and Sentencing

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).
Publication year2021
Date01 December 2021


I. Disclosure obligations revisited

15.1 The scope and extent of the Prosecution's disclosure obligations continued to be put in issue in 2021. In 2020, additional disclosure obligations were introduced in Muhammad Nabill bin Mohd Fuad v Public Prosecutor1 (“Nabill”) in pursuit of achieving a more satisfactory balance between ensuring fairness to the accused person on the one hand and preserving the adversarial nature of the trial process on the other.2 These additional disclosure obligations required the Prosecution to disclose to the Defence statements furnished to the police by a “material witness”. A “material witness” was defined in this context as a person “who can be expected to confirm, or conversely, contradict an accused person's defence in material respects”.3 These statements ought to be disclosed when the Prosecution files and serves the Case for the Prosecution (if the statutory criminal case disclosure regime (“the CCD regime”) applies), or at the latest, before the trial begins if the CCD regime does not apply.

15.2 In Roshdi bin Abdullah Altway v Public Prosecutor4 (“Roshdi”), the Prosecution invited the Court of Appeal to reconsider its holdings in Nabill in respect of the definition of a “material witness”, and sought guidance as to the process of identifying “material witnesses”, the potential

consequences of any breach of its additional disclosure obligations, and whether the Prosecution has a positive duty to conduct further investigations once a witness had been identified as “material”:

(a) First, the Prosecution argued that the definition of “material witness” should be narrowed to cover only a witness whom the accused person identified as the “true culprit” responsible for the offence.

(b) Second, the Prosecution proposed that the Defence should bear the “duty” of first identifying persons whom it considered “material witnesses” by naming such persons and explaining why they were material. The Defence should generally make this identification at the pretrial stage within a reasonable time upon its receipt of the Prosecution's list of witnesses. Where a witness could only be identified as “material” as a result of the accused person's evidence at trial, the onus should be on the Defence to (i) notify the court that the person was a material witness; (ii) explain why the witness was material; and (iii) clarify why the identification was not made earlier. Finally, if there was any dispute as to the “materiality” of a witness, the parties should apply to the court for a ruling on the issue.

(c) Third, the Prosecution sought clarification that it did not have a legal duty to conduct further investigations and to record further statements from a witness where a new “material witness” was identified.

(d) Fourth, the Prosecution invited the Court of Appeal to clarify the consequences that would flow from a breach of the Prosecution's additional disclosure obligations.

15.3 The Court of Appeal did not accept the Prosecution's proposed redefinition of a “material witness”. It reiterated the two key rationales for imposing the additional disclosure obligations on the Prosecution — First, it would be an intolerable outcome for the court to be deprived of relevant evidence that might potentially exculpate the accused person simply because the Prosecution erred, despite acting in good faith, in assessing the significance of certain evidence. Second, the accused person ought to have access to all relevant information in order to make an informed choice in deciding whether or not to call a “material witness”, and it would not reflect a satisfactory balance between ensuring fairness to the accused person and preserving the adversarial nature of the trial process if the Defence were to be unaware of what a “material witness” had previously said in the course of police investigations.5 Both

of these rationales are generally engaged whenever there is a witness who can be expected to materially confirm or contradict the accused person's defence, and not just to witnesses who may be the “true culprit”.6

15.4 The Court of Appeal also rejected the proposals for the Defence to bear the duty of identifying persons whom it considered “material witnesses”, observing that their effect would be to transform what was meant to be a disclosure obligation borne by the Prosecution into a duty falling upon the Defence to outline its case prior to trial, which would be incongruent with the adversarial position that an accused person occupied in criminal proceedings in relation to the Prosecution.7 At the same time, however, the Court of Appeal highlighted that the “materiality” of a witness is assessed only by reference to such defences as the accused person may have disclosed at each stage of a criminal proceeding, and does not require the Prosecution to speculate as to any defences that have not been identified by the Defence.8 Given this, the Court of Appeal did not think there were substantial difficulties for the Prosecution to comply with its additional disclosure obligations, and set out the general process of identifying “material witnesses” as follows:9

(a) At the pretrial stage, the Prosecution should disclose the statements of witnesses whom it thinks are “material” based on the accused person's statements (as well as the Case for the Defence, if and when one is filed). If the Prosecution has any doubt as to whether a witness is “material”, it should generally err on the side of disclosure. However, the Prosecution is not required to speculate on the accused person's intended defence at trial, and the additional disclosure obligations are only limited to defences which can reasonably be discerned from the information the Prosecution has.

(b) Once the Prosecution has made its initial disclosures, the Defence can decide (although it is under no duty to do so) whether it wishes to notify the Prosecution of any additional witnesses whom it also considers to be “material”. Where the Defence does so, it must explain to the Prosecution (and/or the court, if necessary) why the additional witnesses are “material”, either by reference to the defences already mentioned in the accused person's statements, and/or the defences which the accused person intends to raise at trial.

(c) Once trial begins and in any subsequent appeal, it is incumbent upon both the Prosecution and the Defence to identify any new “material witnesses” at the earliest opportunity. The “materiality” of such witnesses will be ascertained by reference to defences which the accused person may have raised in his statements, as well as any new defences which he runs at trial.

(d) In the event that a dispute arises as to the “materiality” of a witness, either party can apply to the court for a ruling.

15.5 As regards the other clarifications sought by the Prosecution, the Court of Appeal made it clear that it did not impose a legal duty on the Prosecution or law enforcement agencies to conduct further investigations — however, if the Prosecution chose not to pursue any further investigations, it would take the risk that it would be found to have failed to discharge its evidential burden in respect of the facts that had properly come into issue.10 The consequences that would flow from a breach of the Prosecution's additional disclosure obligations would also necessarily depend on all the facts at hand, and it would not be helpful or necessary to attempt a comprehensive discussion of the potential consequences that might result.11

15.6 A noteworthy point made by the Court of Appeal was that the Defence should, in fairness, give the Prosecution an opportunity to respond before putting any allegation of a breach of the Prosecution's additional disclosure obligations before the court. After all, such allegations could amount to an accusation of professional misconduct against the deputy public prosecutors who had conduct of the matter, and this would also give the court a full picture of the facts in order to assess any alleged breaches. The Court of Appeal emphasised that any allegation that the Prosecution dishonestly or knowingly withheld evidence that it ought to have disclosed to the Defence should never be made lightly, as a basic rule of professional conduct. Practitioners should be mindful of this caution sounded by the Court of Appeal when alleging a potential breach of disclosure obligations by the Prosecution.

15.7 At the same time, the specific contours of the Prosecution's disclosure obligations remain unresolved. The Court of Appeal expressly left open the issue of whether the Prosecution's additional disclosure obligations extend to the statements of a “material witness” who is also a prosecution witness. Whilst the rationales for imposing the additional disclosure obligations12 would not apply in such a scenario, it could also

be argued that extending the additional disclosure obligations as such would ultimately flow from the fundamental premise that all relevant material should be placed before the court to assist it in its determination of the truth, and that it would conduce to the administration of justice (in possibly encouraging the early disposition of cases) for such “material witness” statements to be similarly extended to the Defence.

15.8 Sundaresh Menon CJ's coda on the breadth of the Kadar disclosure obligation, set out in Xu Yuanchen v Public Prosecutor13 (“Xu Yuanchen”), is instructive. In Xu Yuanchen, Menon CJ (sitting in the General Division of the High Court (“High Court (General Division)”)) noted that a statement recorded from an accused which the Prosecution did not intend to rely on at trial as part of its affirmative case would appear to fall within the universe of “unused material” in Muhammad bin Kadar v Public Prosecutor14 (“Kadar”). At the same time, Menon CJ observed that the accused person's own statements, being a form of evidence that emanates...

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