DISCLOSURE IN CRIMINAL PROCEEDINGS: DEVELOPMENTS AND ISSUES AHEAD

• Author: CHEN Siyuan LLB (National University of Singapore), LLM (Harvard); Associate Professor of Law, Yong Pung How School of Law, Singapore Management University.
• Publication year: 2022
• Citation: (2022) 34 SAcLJ 51
• Published date: 01 March 2022
• Date: 01 March 2022

I. Establishing the context

1 A freshly minted criminal law practitioner in Singapore today may not appreciate how much the local criminal justice landscape has changed in just the last decade or so,1 particularly with regard to the Prosecution's disclosure obligations. There were no less than three milestones that contributed to this change. First, the current Criminal

Procedure Code2 was enacted in 2010 to replace the previous Code. This legislation was described as a “new chapter in the continuing evolution of Singapore's criminal justice process.”3 Pertinent for present purposes are Parts IX and X of the statute, which introduced a series of provisions pertaining to disclosure obligations of the Prosecution.4 Before the current Criminal Procedure Code was enacted, there were examples of attempts by defence counsel to obtain from the Prosecution copies of an accused's statements to the police5 or a witness's statement to the police6 that were rejected by our courts.7 The reasoning was similar in such cases: there was no clear statutory basis to obligate the Prosecution to provide these statements, and there was also no clear statutory basis for the courts to make an order compelling disclosure.8 This state of affairs was, arguably, consistent with the sentiment that Singapore was more of a crime control jurisdiction than one that prioritised due process.9

2 The second and third milestones in how the rules on criminal disclosure have developed were in the form of judicial decisions. In 2011, the Court of Appeal in Muhammad bin Kadar v Public Prosecutor10 (“Kadar”) declared that under the common law, the Prosecution has a duty to disclose to the accused material it does not intend to use as part of its case at trial as early as possible. Specifically, this would include material (a) likely to be admissible and that might reasonably be relevant to the guilt or innocence of the accused, and (b) material likely to be inadmissible but would provide a real chance of pursuing a line of inquiry that would

lead to material in (a).11 In Kadar, there were statements by a witness at the crime scene that were only disclosed by the Prosecution 18 months into the trial. The statements assumed great importance because the Prosecution's case was that both the accused persons being tried were at the crime scene, but in the statements, the witness consistently stated that he only saw one perpetrator at the crime scene. The creation of the said common law duty prompted the Prosecution to file a criminal motion to clarify the scope of the obligation. The Court of Appeal's response was that in fulfilling the Kadar obligation, the Prosecution need not search for additional material outside the Prosecution's knowledge.12 It also said that where material fell within the disclosure regime under the Criminal Procedure Code, it would be disclosed within the timelines provided, as any common law duty of disclosure cannot depart from statutory law.13

3 In 2020, the apex court in Muhammad Nabill bin Mohd Fuad v Public Prosecutor14 (“Nabill”) expanded the scope of the common law duty of disclosure. There, there were three witnesses not called by the Prosecution even though their evidence would have had either materially confirmed or contradicted the version of events raised by the accused, who had been charged with drug trafficking. It was held that statements of these witnesses ought to have been disclosed by the Prosecution before the trial began.15 Unlike the Kadar obligation, the Prosecution would not be required to carry out a prior assessment of whether the statement was prima facie credible and relevant to the guilt or innocence of the accused.16 This was in part due to the fact that different prosecutors acting in good faith might arrive at different conclusions as to what and when should be disclosed.17 However, the Court of Appeal left open the question of whether the Prosecution was also required to disclose statements of material witnesses called by the Prosecution to testify.18 The court also held that there was no duty on the Prosecution to call material witnesses to testify, though not doing so may have ramifications in proving its case beyond a reasonable doubt.19

4 The purpose of this article is twofold. First, it surveys the relevant developments in criminal disclosure since the enactment of the current Criminal Procedure Code. Secondly, it considers some of the issues that may lie ahead. In so doing, it also examines developments in several major common law jurisdictions, as well as the wider trends in our criminal justice landscape. The former is important because these jurisdictions tend to formulate their rules in a way that can be said to give greater expression to due process ideals, and provide a useful point of comparison. It is also important to be apprised of the latter because if, for instance, there is an unmistakable march towards greater due process in other constituent parts of the system, it would be reasonable to assume that criminal disclosure would follow suit accordingly.

5 Before proceeding, however, one overarching question is whether the Prosecution's duty of disclosure in criminal proceedings would, and should, eventually be aligned with our rules of discovery in civil proceedings.20 During the parliamentary debates concerning the enactment of the Criminal Procedure Code, it was already envisioned that our criminal procedure rules were indeed meant to develop over time, and the disclosure rules were no exception. In introducing the bill, the Minister for Law said that the “procedure to be adopted for administration of justice is an area where there are diverse and often contentious viewpoints. This is an evolutionary process, and we will have to continue to be open to amending our criminal procedures to meet changing norms.”21 The Court of Appeal in Public Prosecutor v Li Weiming has similarly remarked that the statutory disclosure framework is not meant to be self-executing, and progressive development by the courts would be necessary in some instances.22 The court added that the framework has contemplated access to information as a right that the courts ought to be able to enforce.23 The question, therefore, is not whether the disclosure rules were meant to evolve, but whether they should evolve further from what they are now.

6 Our rules on civil discovery essentially favour maximum disclosure and minimum surprise with respect to matters such as issues,

witnesses, and documents.24 This is made clear in, inter alia, O 24 r 1(2) of the Rules of Court,25 which states that documents that a party would rely on or that could adversely affect or support any party's case are subject to discovery.26 But while the comparison with the rules of discovery in civil proceedings is a natural one, the Minister for Law did make the following point during the same parliamentary debates:27

The procedure that is set out must be fair … it should not be a system that leans towards conviction regardless of innocence or guilt. But it should also not be a system which gives the offender every possible technicality to escape conviction … Disclosure is familiar to lawyers operating within the common law system. In civil proceedings, the timely disclosure of information has helped parties to prepare for trial and assess their cases more fully. Criminal cases can benefit from the same approach. However, discovery in the criminal context would need to be tailored to deal with complexities of criminal practice, such as the danger of witnesses being suborned.

7 Given the paramountcy accorded to the purposive treatment of any statutory law in Singapore,28 this passage alone would seem to militate against any conclusion that the embracement of greater due process over crime control would ever result in an obligation of uninhibited disclosure on the part of the Prosecution.29 However, if anything, the Court of Appeal in Nabill, in holding that statements of material witnesses can be ordered disclosable, has shown that starting points established in parliament do not remain static and set in stone. As would be seen, in the final analysis, whether our current rules should evolve any further — to be aligned with civil discovery or otherwise — would have to be viewed through the lens of potential prejudice, if any, occasioned on the Prosecution's conduct of cases (and the ideals of our criminal justice model for the matter).

One must keep in mind too that whereas discovery in civil proceedings typically envisions an equal burden on both parties, this is not so for criminal proceedings because, as seen below, accused persons are subject to limited disclosure obligations as compared to the Prosecution. If criminal disclosure is to be aligned with civil discovery, the scope of what needs to be disclosed on the part on the accused necessarily increases vis-à-vis the Prosecution.

II. The framework created by the Criminal Procedure Code

8 To identify some of the issues that lie ahead in our criminal disclosure regime, it is necessary to first take stock of what the current regime entails. We begin our survey with the Criminal Procedure Code. The provisions pertaining to disclosure that were introduced in 2010 were not insubstantial. Preliminarily, it should be noted that the criminal case disclosure procedure under the Code does not apply to all offences. It only applies to offences tried in the General Division of the High Court,30 offences set out in a written law specified in the Second Schedule of the Criminal Procedure Code and which the Public Prosecutor has designated the General Division of the High Court to try,31 and offences that are to be tried in a District Court if they are specified in the Second Schedule of the Criminal Procedure Code.32 In 2018, an amendment was made to broaden the range of offences caught by the Second Schedule.33 The idea was to capture even more major criminal offences.34...