Sanjay Krishnan v PP

• Judge: Sundaresh Menon CJ,Steven Chong JCA,Chao Hick Tin SJ
• Judgment Date: 09 March 2022
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 26 of 2021

Sanjay Krishnan

and

Public Prosecutor

[2022] SGCA 21

Sundaresh Menon CJ, Steven Chong JCA and Chao Hick Tin SJ

Criminal Motion No 26 of 2021

Court of Appeal

Criminal Procedure and Sentencing — Appeal — Adducing fresh evidence — Accused seeking to admit fresh evidence on appeal that he had decided not to adduce at trial with advice of counsel — Whether such fresh evidence admissible on appeal

Held, dismissing the application:

(1) To succeed in the application, Sanjay needed to fulfil the three requirements set out in Ladd v Marshall[1954] 1 WLR 1489 (“Ladd v Marshall”): first, that the evidence could not have been obtained with reasonable diligence for use at trial (the “non-availability” requirement); second, that the evidence would probably have an important, albeit not necessarily decisive, influence on the case (the “materiality” requirement); and third, that the evidence was reliable, although it did not need to be incontrovertible (the “reliability” requirement). The three requirements had to be applied “holistically”: at [11] and [20].

(2) Shankari's Affidavit failed the “materiality” requirement as the Photographs were not contemporaneous or clear, and did not support Sanjay's submission that it contradicted Dzulkarnain's statement: at [13].

(3) It was undisputed that the evidence in Sanjay's Affidavit was not only available to him at trial, but had been actively considered by him before he made a conscious decision with the advice of counsel not to adduce it. However, there was no explanation given for why this decision was made. Such applications would rarely be successful, and, as a first step, it was incumbent on the Defence to offer an explanation as to why the evidence was not adduced. Otherwise, the Defence could conduct its case in a manner incompatible with the principle of finality in proceedings, and the need to avoid any abuse of process: at [15] to [19].

(4) The materiality of Sanjay's Affidavit was marginal as it did not deal with the other reasons the Judge gave for not believing him, and there was no direct link between the fresh evidence and the outcome that the Judge arrived at: at [21] to [24].

(5) The fact that the potential consequence of the present case was the death penalty did not warrant a different approach to the admission of fresh evidence: at [25].

Case(s) referred to

Juma'at bin Samad v PP [1993] 2 SLR(R) 327; [1993] 3 SLR 338 (refd)

Ladd v Marshall [1954] 1 WLR 1489 (folld)

Miya Manik v PP [2021] 2 SLR 1169 (folld)

PP v Dzulkarnain bin Khamis [2021] SGHC 48 (refd)

PP v Mohd Ariffan bin Mohd Hassan [2018] 1 SLR 544 (folld)

Facts

The applicant, Mr Sanjay Krishnan (“Sanjay”), was arrested by Central Narcotics Bureau (“CNB”) officers on 23 February 2015 along with one Dzulkarnain bin Khamis (“Dzulkarnain”). At the time of his arrest, Sanjay was in possession of a box (referred to as “the SKP Box”) that was later found to contain 2375.1g of cannabis. During the course of investigations, a contemporaneous statement and cautioned statement were taken from Sanjay (“Sanjay's contemporaneous statement” and “Sanjay's cautioned statement”, respectively).

Sanjay claimed trial, in the course of which his position was that he thought that the SKP Box contained hunting knives and possibly illegal cigarettes. The trial judge (“the Judge”) rejected this contention for several reasons. One such reason was that Sanjay's position as to what he thought the SKP Box contained had evolved overtime. In particular, she noted that in Sanjay's cautioned statement, Sanjay only mentioned illegal cigarettes. Sanjay argued that the cautioned statement had not been recorded properly by the investigation officer, Senior Staff Sergeant Ranjeet s/o Ram Behari (“IO Ranjeet”). The Judge rejected this argument as she found that there was no reason for IO Ranjeet to not record Sanjay's statements properly. Sanjay was accordingly convicted of trafficking 2375.1g of cannabis and sentenced to death.

Sanjay appealed his conviction and sentence, and made an application to adduce fresh evidence on appeal. The fresh evidence consisted of two affidavits, one from Sanjay himself (“Sanjay's Affidavit”) and one from his former fiancé, Shankari d/o Danakodi (“Shankari's Affidavit”). Sanjay's Affidavit narrated an altercation that Sanjay had with IO Ranjeet prior to his cautioned statement being recorded. He argued that this showed that IO Ranjeet had a motive not to record his statement properly. Shankari's Affidavit contained three photographs (the “Photographs”) that, according to Sanjay, contradicted an investigative statement made by Dzulkarnain that implicated Sanjay.

The Prosecution opposed the application, arguing that both affidavits could have been adduced earlier with reasonable diligence, and that in any event, the evidence contained therein was not material to the outcome of the case.

Ramesh Chandr Tiwary (Ramesh Tiwary) andKavita Pandey (Leo Fernando LLC) for the applicant;

Mark Tay, Nicholas WuanandKeith Jieren Thirumaran(Attorney-General's Chambers) for the respondent.

9 March 2022

Sundaresh Menon CJ (delivering the grounds of decision of...