DISCOVERING THE RIGHT TO CRIMINAL DISCLOSURE

Citation(2013) 25 SAcLJ 548
Date01 December 2013
Published date01 December 2013

Lessons from Civil Procedure

The amendments to the Criminal Procedure Code (Cap 68, 1985 Rev Ed) and subsequent case law developments have created a patchwork of rules governing the disclosure obligations of parties in criminal cases. This article argues that parties have thereby been endowed with a right that is exercisable in the courts to access the material to which the law says they are entitled. However, there are currently no proper procedural mechanisms in place for parties to make interlocutory applications to obtain such material. This article examines the competing values and ideals of a criminal discovery regime, and suggests that concepts such as further and better particulars and specific discovery can be adapted from the rules of civil procedure to create an overarching framework that can regulate applications to the court for access to materials prior to trial.

I. Introduction

1 On 2 January 2011, the amendments to the Criminal Procedure Code1 (“CPC”) came into force, and with it the advent of a regime of criminal discovery that, for the first time, required the Prosecution to disclose materials to the Defence prior to trial. Division 2 of Pt IX and Div 2 of Pt X of the CPC prescribe a structured and formal system of pre-trial discovery, known as criminal case disclosure (“the CCD regime”), that applies to cases in the High Court and a significant number of cases tried in the Subordinate Courts.

2 The documents that were identified as requiring exchange under the CCD regime were focused on those that would be used at trial.2 The Court of Appeal supplemented this in the cases of

Muhammad bin Kadar v Public Prosecutor3 (“the first Kadar judgment”) and Muhammad bin Kadar v Public Prosecutor4 (“the second Kadar judgment”) (collectively referred to as “the Kadar judgments”) by holding that the Prosecution owed an additional duty in common law to disclose certain types of material that would not be used at trial (“unused material”).5 More recently, the High Court granted a petition in Li Weiming v Public Prosecutor6 for further particulars relating to the summary of facts provided by the Prosecution under the CCD regime.

3 This potent combination of legislative amendment and case law development has led to the emergence of a broad-ranging criminal discovery process that changes significantly the landscape of criminal litigation and practice. Discovery, in the context of criminal procedure, encompasses not just the exchange of documents per se, but of facts and information as well. We have truly, as one Member of Parliament put it, “moved out of the dark ages”.7

4 This sea change is certainly to be welcomed. Yet, the developments have been somewhat piecemeal. The CCD regime focuses primarily on material that is to be used at trial, and as highlighted above, applies only to cases in the High Court and certain cases in the Subordinate Courts. The common law duty of disclosure as laid down in the Kadar judgments (“Kadar discovery”), on the other hand, applies to unused material and seems to apply to all cases.8 Further, no link has yet been drawn between the discovery of documents and the discovery of facts and information in the form of particulars, as espoused by the court in Li Weiming v Public Prosecutor.9 Perhaps because of its relative youth and immaturity, the criminal discovery landscape lacks an organised procedural framework.

5 The importance of having such a framework is not to be underestimated. Hitherto, the concept of pre-trial disclosure has been generally foreign to criminal litigation. It is therefore crucial for the courts to understand the procedural principles and rules that apply when hearing applications relating to these matters at the pre-trial stage. From the point of view of the parties, both the Prosecution and the Defence need to understand their obligations in order to understand

how to fulfil them. They must also know what they are entitled to so that they can seek the court's assistance to obtain it from the other party. Further, from a broader perspective, it is important for the criminal legal system to have clear and precise bright line rules to govern the exchange of information and documents prior to trial as this promotes certainty and predictability not just for the court and the parties, but for future litigants and other users of the court system.

6 Bearing this in mind, this article seeks to build on the CCD regime and case law to construct a procedural scheme to regulate applications to the court for pre-trial disclosure. Central to this schematic is the idea that a legal duty has now been placed on the parties in respect of criminal disclosure.10 At the same time, it is clear that the court has the power to compel parties in criminal proceedings to disclose documents.11 The logical and jurisprudential corollary of this phenomenon is that the parties have a corresponding legal right to those documents, even though the legislation and case law have not articulated as such. Flowing from this, procedural mechanisms must be put in place at the pre-trial stage to give practical effect to the exercise of those rights and specifically to govern how parties can seek the material to which they are entitled from the courts. Such mechanisms must be calibrated to take into account the fact that the accused's right must be a qualified one as a balance has to be struck between the accused's rights to defend himself and the public interest in the effective prosecution of wrongdoers.

7 To this end, it is suggested that a page be borrowed from the developed system of civil procedure. The civil justice process has developed an intricate and comprehensive set of procedural rules to regulate interlocutory applications. In particular, it will be argued that the established mechanisms of further and better particulars12 and specific discovery13 in civil litigation can be transposed into the context of criminal procedure to regulate applications to the court for pre-trial disclosure in situations where documents or information to which a party is entitled has not been provided by the opposing party. It would, however, be inappropriate to import these procedural mechanisms in a wholesale fashion, as modifications are necessary to take into account the unique features of criminal law and litigation.

II. Developments in criminal discovery: Surveying the landscape

A. The CCD regime

8 It would be apposite to first catalogue the criminal discovery developments that have emerged thus far. Under the CCD regime, the court monitors the exchange of documents prior to trial through the mechanism of criminal case disclosure conferences (“CCDC”).14 It is first incumbent on the Prosecution to file and serve its Case for the Prosecution, which must contain:15

  1. (a) the charge which the Prosecution intends to proceed with at trial;

  2. (b) a summary of facts in support of the charge;

  3. (c) a list of the names of the witnesses for the Prosecution;

  4. (d) a list of the exhibits that are intended by the Prosecution to be admitted at the trial; and

  5. (e) any statement made by the accused at any time and recorded by an officer of a law enforcement agency under any law, which the Prosecution intends to adduce in evidence as part of the Case for the Prosecution.

9 Next, the Defence must file and serve the Case for the Defence, which must include:16

  1. (a) a summary of the accused's defence to the charge and the facts in support of the defence;

  2. (b) a list of the names of the witnesses for the Defence;

  3. (c) a list of the exhibits that are intended by the Defence to be admitted at the trial; and

  4. (d) if objection is made to any issue of fact or law in relation to any matter contained in the Case for the Prosecution —

    1. (i) a statement of the nature of the objection;

    2. (ii) the issue of fact on which evidence will be produced; and

    3. (iii) the points of law in support of such objection.

10 Once the Case for the Defence has been served on the Prosecution, ss 166, 196 and 218 of the CPC prescribe that the Prosecution must within two weeks serve on the accused copies of:

  1. (a) all other statements given by the accused and recorded by an officer of a law enforcement agency under any law in relation to the charge or charges which the Prosecution intends to proceed with at the trial;

  2. (b) the documentary exhibits referred to in the Case for the Prosecution; and

  3. (c) the criminal records of the accused person, if any.

11 Two aspects of this scheme stand out. First, as one commentator has noted, the Prosecution is required to disclose all statements made by the accused in relation to the charge, while the accused is only required to disclose information beneficial and relevant to his case.17 Second, other than the accused's statements, the documentary evidence to be disclosed is very much tied to the Prosecution's case. Unlike Kadar discovery, the CPC-mandated statutory regime does not require the exchange of “line of inquiry” documents.18

B. The Kadar judgments

12 In Muhammad bin Kadar v Public Prosecutor,19 two accused persons, one Muhammad bin Kadar (“Muhammad”) and one Ismil bin Kadar (“Ismil”) were charged with murder in the High Court. Ismil gave statements to the police in relation to the murder, in which he initially denied knowledge of the offence but later admitted murdering the victim on his own. Subsequently, Muhammad gave statements that both accused persons were at the scene of the crime. Ismil then made further statements to the effect that Muhammad was present at the crime but only assisted in robbery, and not the murder. Ismil subsequently filed a notice of alibi before the commencement of trial stating that he was home at the time of the murder.

13 During the trial, the Prosecution provided the Defence with a statement by the victim's husband, who was present at the scene of the crime. It transpired that the victim's husband had...

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