Inside the Bar

Discovery and Fair Trials 

Note: This article is based on a talk given by the writer at a seminar conducted by LexisNexis of Singapore in August 2003.

This paper explores the troubling disjuncture between the principle and the practice of the law relating to discovery in criminal cases. On paper, the law and the discovery provisions protect fundamental liberties and ensure fair trials. In practice, however, these provisions are not always observed, unless insisted upon by the court and until now, only the High Court has insisted on the enforcement of discovery provisions. As a result, discovery is not a routine certainty in criminal trials conducted in the subordinate and district courts.

In particular, discovery and disclosure of the prosecution’s case such that the accused is fully appraised of the case the defence has to meet at trial, is crucial. In three recent cases, the courts have been critical of the prosecutorial practice of selectively disclosing only portions of an accused person’s statements to the police. In this paper, I will first set out the disclosure and discovery provisions in the Criminal Procedure Code (‘CPC’) (Cap 68) in the context of the fundamental law of the land, the Constitution. I will then examine the cases in which the judiciary has highlighted their rejection of the selective discovery prosecutors sometimes engage in. I will end by considering ways in which we might redress this undesirable state of affairs, so that there will no longer be a gap between the law on paper and the law in practice.

What is Discovery?

Discovery can be described as the formal and informal exchange of information between the prosecution and the defence. It is broad and detailed in civil proceedings. In such cases, the disputes are generally over property and money interests and the state is not usually one of the parties.

Criminal cases centre around life and liberty. It is reasonable to assume discovery should be greater, especially since Part IV of the Constitution, on ‘Fundamental Liberties’, touches on criminal law and procedure.

Common Law

In early common law, the accused in a felony case was not permitted counsel, could not appear as a witness on his own behalf and could not subpoena witnesses. He was also not entitled to inspection or disclosure of evidence in the control and custody of the prosecution.

The right to counsel is now enshrined in Art 9(3) of the Constitution. It is a fundamental right. It is more extensive than the right that the accused enjoyed under s 195 of the CPC, which is limited to a right to be defended by an advocate before any criminal court.

Article 9(3) of the Constitution reads:

Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice. [emphasis added]

If liberty is best safeguarded by the person arrested being informed of the grounds of his arrest as soon as may be, it is equally, if not more so, for a person in danger of losing his life or liberty, to be informed of the prosecution’s case at a trial so that the defendant can prepare his defence. This can only be done if there is discovery.

Witnesses

The accused can under the CPC apply to the court in summary trials to issue process for compelling the attendance of any witness for the purpose of examination or the production of any document and the court must issue process unless it considers that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice (s 180m(i) CPC). An accused person can elect to be a witness (s 190K(ii) CPC). The common law position was discarded when the CPC was enacted.

The question is whether there is an equally significant change with regard to:

Disclosure and Discovery in the CPC

The documents that can be obtained by way of a letter to the police or the prosecution are:

• (a) Information Report (s 115 CPC);
  (b) where it is impracticable to reduce the First Information Report into writing forthwith the police are required to make a note of the first information and record a fuller statement under s 121. The prosecution and the police generally refuse to supply the s 121 statements but make available the First Information Report (ss 115 (4) (copy to be supplied)). Any court can require the production of the report or note (ss 117(2) CPC). See also ‘Pinsler: Evidence, Advocacy and the Litigation Process’ at p 373;

When the prosecution refuses to supply and the court refuses to order the prosecution to supply the statements made by the accused, the defendant must consider whether there is a process to compel production of documents or attend pre-trial conferences blind as a bat equipped only with the jumbled version of events that accused persons are able to give.

Process to Compel Production

Chapter VI of the CPC is entitled ‘Process to compel the production of documents and other movable property and for discovery of persons wrongfully confined’. The title suggests that it was intended to depart from the common law position on discovery. Articles 9(1) and 162 of the Constitution empower the courts to construe provisions in the CPC to ensure that there is a proper discovery that will ensure fair trials.

Section 58 of the CPC sets out the procedure that is available both to the court and police officer to compel production. Unlike the police officer, the defence cannot issue a written order to the person in whose possession or power the document or thing is believed to be with requesting him to attend and produce it at the time and place stated. Production is to the court and not to the defence. This section was interpreted in Kulwant Singh v PP [1986] SLR 239. It was given a very narrow interpretation. The case must now be regarded as limited to the facts of that case, having regard to recent decisions to which reference is made later.

Procedure

The defence must modify Form I of the CPC and apply to the court to issue a summons. Where there is reason to believe that the person to whom a summons under s 58 has been issued will not produce the document, the court can be invited to issue a search warrant under s 61, adapting Form 8. The provisions of s 247 (procedure for appeal) and s 250 (appeal for special cases) can be invoked.

Although the Constitution enshrines the right against self-incrimination (see: ‘The Constitutional Right of Silence: Abridged?’ Singapore Law Gazette, May 2003) and the right to counsel (see ‘The Constitutional Right of Access to Counsel’ Singapore Law Gazette, August 2002) statements are rarely recorded in the presence of counsel.

Before any evidence is called for the defence, the court must tell the accused that he will be called upon to give evidence and must tell him in ordinary language what the effect will be if he refuses to give evidence (s 180(k)(i)). The accused is not compellable to give evidence on his own behalf (s 190(3)). More often than not accused persons are represented by legal practitioners in court and always allowed to consult counsel. This is not the position at police stations. The police do not always have regard to Art 9(3) when recording statements.

Whenever

Section 58 of the CPC starts with the word ‘whenever’. It is, therefore, not necessary that a trial should be pending before the court issues process for production of documents, under the wide powers given to the court.

Police officers issue orders whenever they consider any document necessary or desirable for the purposes of investigation or trial. The court’s powers cannot be restricted to the occasions stated in Kulwant’s case or be any less than the power a police officer enjoys. A possible abuse in applying the section has been safeguarded by the need to persuade a judicial officer.

Sections 58 and 61 of the CPC

Section 61 of the CPC can be invoked for a search warrant to be issued to search and inspect in accordance with the warrant where any court has reason to believe that a person to whom a summons has been issued under s 58 or a requisition under s 59(1) might not produce the document. Section 67 further empowers the court to impound any document or thing produced before it.

Another section that empowers the accused to apply for discovery in summary trials is s 180(m)(i) which sets out the procedure that must be followed by magistrate’s and district courts in summary trials in the following terms:

180(m)(i) if the accused applies to the court to issue any process for ... compelling the attendance of any witness ... or the production of any document or other thing, the court shall issue the process unless it considers that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice, in which case that ground shall be recorded by it in writing.

The relationship between s 180(m)(i) and s 58 and its related sections has not been judicially explored. Parliament, however, has spelt out the ‘abuse’ that would justify refusal of discovery.

Brady Doctrine

Most discovery occurs under the authority of statutes or court rules, but we now have a Constitution. The Constitution also requires disclosure of information by the prosecution.

In Brady v Maryland 373 US 83 [1962] the two accused were sentenced to death in separate trials. At Brady’s trial, counsel conceded Brady was guilty of murder in the first degree and asked the jury to return that verdict ‘without capital punishment’ (see ‘The Unconstitutional Punishment’, Singapore Law Gazette, August 2003).

Prior to the trial, counsel had requested the prosecution to allow him to examine Brady’s companion Boblit’s extra judicial statements.

The statements were shown to him but one statement in which Boblit admitted the actual homicide was withheld and did not come to his notice until after Brady had been tried, convicted and sentenced.

Brady’s application for a new trial based on the newly discovered evidence that had been suppressed by the prosecution was dismissed. The Court of Appeals held that suppression of the evidence by the prosecution denied the petitioner due process of law and remanded the case for a retrial on the question of punishment and not the question of guilt. The Supreme Court of America held:

that the suppression by the prosecution of evidence favourable to an accused upon request violated due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

‘[This principle] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly ... A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps stage a trial which bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.’ (p 393 ‘Criminal Law & Procedure’ 3rd ed Daniel E Hall JD EdD)

The Public Prosecutor

The Attorney General is vested with power exercisable at his discretion to institute, conduct or discontinue any proceedings for any offence, Art 35(8) of the Constitution. He is appointed from among persons qualified for appointment as a Judge of the Supreme Court for a very important reason. His deputies too wear the robes of a judge. The uniform of a policeman is not for them. They are ministers of justice.

The prosecutor is the representative of the State ‘whose interest in a criminal prosecution is not that it shall win the case, but that justice shall be done’, Berger v US 295 US 78 [1935].

The prosecution must therefore in my submission, look upon the question for discovery not so much as ‘crime controllers’ but as judges concerned with ‘fair trials’ and ‘due process’, ie trial according to law that is fair and not arbitrary.

Due Process

The concept of ‘due process of law’ developed in England as a part of the common law is that it is a judge-made law which changes and adapts as the needs of society call for it to change and adapt. ‘Due process of law’ was a changing concept in the law long before it was written into the American and Singapore Constitutions.

The framers of the Singapore Constitution wrote into the Constitution a principle of change and adaptation when they put into Art 9(1) the words ‘according to law’ and empowered the courts in Art 162 to construe ‘existing laws’ with modifications, adaptations, qualifications and exceptions to bring ‘existing laws’ into conformity with the Constitution.

The phrase ‘according to law’ in Art 9(1) of the Constitution must be given a broad meaning so that it imports due process of law as well as the rule of law. Due process of law embraces both procedural and substantive law and is a concept that refers to law in the sense of jus rather than lex and not limited to rules of natural justice as Lord Diplock would have it. ‘Due process of law’ does not only mean fair criminal procedures.

The courts of America, India and even the Privy Council refusing to follow Ong Ah Chuan’s case have all recognised and established the power in Art 9(1) (according to law or due process), Art 12(1) (equal protection) to protect an individual and his liberty against the oppressive laws of the State, (see ‘The Unconstitutional Punishment’, Singapore Law Gazette, August 2003).

Equal Protection

Equal protection of the laws, Art 12(1), is the constitutional provision which helped to eliminate racial, religious, sex and national origin discrimination in America. The modern cases involve the fair treatment not only of students in schools but also of prisoners and persons on welfare.

The equal protection concept demands that citizens be treated fairly when compared to each other.

Summary trials and trials before the High Court become a ‘suspect’ classification when persons liable to be punished up to 10 years in the case of High Court trials are supplied with the evidence of the prosecution’s case and denied even the statements of the accused in summary trials before district courts. Suspect classifications are invidious. It is unconstitutional unless there is an overwhelmingly strong justification to uphold them, Loving v Virgina 388 US 1 [1967].

The Supreme Court of America has noted that ‘in some circumstances it may be a denial of due process for a defendant to be refused any discovery of his statements to the police’, Clewes v Texas 386 US 707 [1967].

Kulwant’s Case

The application in Kulwant’s case was made to the High Court. The wrong procedure was adopted by the applicant to obtain pre-trial discovery and it resulted in all manner of matters being raised and discussed. This case, however, has long since been cited as good authority by the prosecution to refuse pre-trial discovery, but things are changing.

The First Shot

In Tay Koh Poh Ronnie v PP [1996] 1 SLR 185 the learned Chief Justice fired the first shot when counsel told him that the allegations made were in the s 121 statements and the trial court had allowed only one paragraph in the s 121 statement to be admitted that was acceptable to the prosecution.

The learned Chief Justice said at p 196:

... the entire statement had not been formally admitted and marked as evidence. This was somewhat confusing as the appellant had maintained during cross-examination that what he had said in the statements was the truth. One would have thought that the contents of the s 121 statement then became part of his testimony and the s 121 statement should have been admitted and marked.

Commenting on the prosecution’s refusal to let the defence have sight of the s 121 statements and on the denial of evidence to the defence the learned Chief Justice said:

What was even more inexplicable was that, at the end of the recording of the further evidence, defence counsel applied to have sight of the entire s 121 statement, and the application was opposed by the prosecution. In the end, only D10, consisting of a solitary paragraph, was admitted and marked. With the greatest respect, it seems to me that, once the defence witnesses have finished giving evidence, there is no longer any basis for denying the defence sight of the accused’s s 121 statement. There is no question of the defence tailoring evidence at his stage. All the material that would be required for the court to determine its relevancy, as mentioned in Kulwant v PP [1986] 2 MLJ 10, would also be before the court. If the defence wants to see the statement, I can see no reason why this should not be allowed. By s 159 of the Evidence Act (Cap 97, 1990 Ed), an accused’s s 121 statement may be used to corroborate his testimony. Hence, the defence is denied a relevant piece of evidence by the prosecution if it refuses at this stage to let the defence have the accused’s s 121 statement. Where the case involves a bare allegation by a prosecution witness against the bare denial of the accused, such evidence may turn out to be of pivotal importance. This cannot be conducive to a fair trial. [emphasis added]

The learned Chief Justice has made it plain that in an adversarial system the relevance of statements must be considered in the context of what is conducive to a fair trial.

He added:

... In any event, I was unable to accept the prosecution’s submission that the appellant must necessarily have known the crux of the prosecution’s case by November 1993. I was not prepared to draw the inference that the prosecution invited me to draw, as I could only refer to a single paragraph of the s 121 statement. It would have been a dangerous course to follow as the solitary paragraph could easily have been taken out of context. It was impossible to assess the weight to be attributed to this lone paragraph. I was also uneasy with the fact that the allegation that the appellant gave the money to Koh was never mentioned in the charge. [emphasis added]

The harm that can be done by lack of discovery was set out:

The district judge placed some weight on the fact that the appellant did not even deny the charge when he was invited to give his s 122(6) statement. In my view, the short answer would be that he had already made the denial in his s 121 statement, as even the single paragraph admitted showed. It would therefore be unfair to draw any adverse inference against the appellant merely because he did not make the same denial again in the s 122(6) statement. [emphasis added]

It is, therefore, clear that in the interests of a fair trial the prosecution should supply to the defence not only the s 122(6) statements but also the s 121 statements.

The Procedural Trap

Where any person is charged with an offence and notice is served under s 122(6) in the police station, where he is rarely represented:

  1. he may say anything to the charge if he wishes to do so;
  2. he is, however, advised to mention any fact on which he intends to rely in his defence in court so that the court when determining whether he is guilty may draw such inferences as appear proper.

Accused persons who are unrepresented and are not told that they may decline to state any fact or circumstance which would have a tendency to expose them to a criminal charge tend to make self-incriminating statements. Some of the statements amount to confessions. The legal provision for the recording of confessions (s 124 — power to record confessions) by magistrates is generally ignored by police officers to the prejudice of accused persons.

The learned Chief Justice further discussed the purpose of s 122(6) statements and said:

The purpose of s 122(6) of the Criminal Procedure Code (Cap 68) is to encourage accused persons to disclose their defence early. That being the case, it would be unwholesome to allow it to be used as a procedural trap for the unwary layman who is accused of a crime. It is unreasonable to expect him to know the legal subtleties between a long statement made to the authorities and a short statement. Hence, where an accused stands by his s 121 statement which was made before his s 122(6) statement, it is often, if not invariably, unfair to draw an adverse inference against him under s 123 of the CPC for not disclosing his defence again in his s 122(6) statement. Unless the s 121 statement is before the court, the court would not be in position in such a case to see what has or has not been said to the investigating authorities. It may be different where the defence does not wish to rely on the s 121 statement, but that is a separate matter. [emphasis added]

The defendant cannot decide whether or not to rely on his s 121 statement unless he is supplied with his statements early. The learned Chief Justice discussing inferences in the context of charges that are preferred in the s 122(6) statement said:

... an accused is only expected to say things in answer to the charge. Those are the terms of the s 122(6) notice. He is not expected to say anything in answer to some supposed or speculative charge which the prosecution could bring but has not. If the charge is badly drawn up, then the prosecution must reap what it has sown. The court may hold that an error in the charge is not material under s 162 of the CPC. The court may even alter the charge under s 163. However, it would be going much too far to expect an accused in his s 122(6) statement to answer a defective charge on the basis that there had been no error in the charge. An accused person should be entitled to take the charge as it was read to him. [emphasis added]

The Second Shot

The second shot was fired by Kan Ting Chiu J against the practice of using some statements of the accused that suits the prosecution and holding back the other statements over real or imagined abuses that can take place.

In PP v Ng Beng Siang & Ors [2003] 2 CLAS p 29 Kan Ting Chiu J looked at the question of the accused’s statements and Kulwant’s case afresh and said:

All the statements were admitted in evidence in the course of the prosecution’s case. There were other statements of the accused which the prosecution did not tender in evidence. Defence counsel informed me that they did not have them. The prosecutor confirmed that they were not supplied. Several reasons were given (i) that there was no obligation to do so, (ii) that the statements were retained so that they could be used to impeach an accused’s credit if he were to depart from them, (iii) that they are not furnished because an accused may tailor his defence according to his statements, and (iv) that the statements may be supplied if an accused disclosed his defence first.

The need to take a stand that is conducive to a fair trial was not considered relevant by the prosecution even after the Chief Justice had raised it in the case of Tay Koh Poh Ronnie v PP in 1996. The prosecution, no doubt reading the judicial signals of Kan Ting Chiu J, subsequently supplied the statements.

Kan J noted :

In the end, counsel for the prosecution and the defence resolved the matter between themselves and the statements were supplied. The circumstances of the resolution were not disclosed to me.

The question is whether the prosecution can be allowed to decide on discovery on a case by case basis or whether the prosecution should now be told to give discovery in all cases in the interests of a fair trial. Kan J, recognising the need for the accused to be supplied with statements and limiting Kulwant’s case, said:

An accused person’s access to his statements is a matter of some importance. When the issue is raised the same authorities are usually cited in argument — Kulwant v PP [1986] SLR 239 which dealt with an application for pre-trial discovery of statements rather than disclosure in the course of a trial, and Tay Kok Poh Ronnie v PP [1996] 1 SLR 185 where it was held that such statements should be furnished to an accused person after he has given his evidence. Having dealt with this issue on several occasions I believe that there is room for further consideration in this matter. [emphasis added]

Kan J then proceeded to give the matter further consideration and said:

The statements requested for were the accused’s own statements, not statements of the prosecution witnesses or of his co-accused. An accused person is obliged under s 32 of the Misuse of Drugs Act and s 121 of the Criminal Procedure Code to make them. These statements are often referred to as ‘investigation statements’, ‘s 121 statements’ or ‘long statements’. If an accused person has a good memory and if he is aware of the importance of such statements, there is nothing to prevent him from making a note from memory of the statements taken from him. He can recount at his trial what he remembers of his statements.

Legitimate Interest

The legitimate interest an accused has in his statements in the context of his right to counsel was then spelt out.

An accused has a legitimate interest to know and be reminded of what he has told in his statements, so that he can obtain proper advice thereon as to the course of action he should take, or he may wish to refer to them in his evidence. [emphasis added]

Kan J then put to rest the impeachment and tailored excuse put forward by the prosecution.

Should he be refused the statements so that they can be used to impeach his credit? In many cases where an accused who is refused his statements makes his defence no action is taken to impeach his credit. In my experience, impeachment applications are made in a small minority of such cases. Thus in the majority of cases, this reason for refusing the statements eventually does not stand.

That reason is also not applied consistently. In practice, the prosecution would furnish an accused person with cautioned statements recorded from him. Cautioned statements may be used for impeachment in the same way as investigation statements. If the former is furnished, there is no reason why the latter should not. [emphasis added]

Likewise, an accused may tailor his defence to his cautioned statements as he would his investigation statements, and if that is not a ground for refusing to furnish cautioned statements, it should not be a ground for refusing to furnish the investigation statements (emphasis added).

Kan J then put the prosecution to the sword and said:

There is another point to be considered. This is that when a reasonable request is made, it should be considered with an open mind. Unless there are reasons to believe that granting of a request will lead to abuse, it would be unreasonable to deny it on the ground that it may lead to abuse. [emphasis added]

Kan J then discussed the debate over making discovery a two-way street and said:

I am also uncomfortable about the requirement that the accused discloses his defence to the prosecution first if he wants to have his investigation statements. There is no obligation for an accused to disclose his defence to the prosecution. That position was abridged slightly by s 122 of the Criminal Procedure Code whereby an accused is warned and advised to state his defence after he has been charged, lest his defence be less likely to be believed if he withheld it till his trial. This was a limited change as the accused is not compelled to make a statement, and he is not liable to punishment if he elects not to give one.

Notwithstanding the above provisions in the law, accused persons are often exposed to interrogation that ignores the rights of individuals. Kan J raising important questions said:

... the request that an accused discloses his defence is a radical step which must be given serious consideration. Where is the authority for it? How is the defence to be disclosed — by counsel or a signed statement by the accused? How detailed must it be? What is the evidential nature of such a disclosure? If such requests are to become part of the prosecution practice, they should be clearly provided for by law, in the way that s 122 was enacted to enable cautioned statements to be recorded. It should not be left to be dealt with on an ad hoc basis.

Kan J then dealt with the question whether the defence must admit the statements when supplied and said:

Another issue was raised, whether statements should be admitted in evidence when they are supplied. Such statements would be admitted if the accused or the prosecution wants them to be admitted. If no one wants them, there is no necessity for such statements to be admitted in evidence for no purpose. This is how cautioned statements are dealt with, and the same practice should apply to investigation statements. If an accused who had received his statements decides not to introduce them in evidence, there is no reason to make him do it.

Kan J has contributed to the debate on discovery substantially but he has recognised that there is room for further development. His statement that ‘I believe that there is room for further consideration in this matter’ and the learned Chief Justice’s statement ‘This cannot be conducive to a fair trial in Ronnie’s case’ permit counsel and the lower courts to consider reasonable requests for discovery with an open mind, unless there are reasons to believe that granting of a request will lead to abuse. It is unreasonable to deny supplying the accused with all the statements made by him, even if he is disposed to tailor his defence, because the prosecution has the original statements and can use it in cross-examination to impeach his credit.

Inference is a Two-Way Street

Section 123 CPC empowers the court to draw inferences against the defence. The drawing of inferences is not a one-way street. The prosecution will generally impeach a lying accused especially in a case where the accused had made six statements, had no motive and the prosecution was relying on circumstantial evidence to prove a serious offence. The defence accordingly invited Woo Bhih Li J in PP v Soosainathan 2003 SGHC (unreported) to draw the inference that various statements given by the accused to the police on 15, 16, 17, 19 and 26 August and on 2 September 2002 after his s 122(6) statement was recorded were consistent with his oral evidence because the prosecution did not use any of the statements to impeach the accused’s credit or to show that he was inconsistent.

Prosecution Objects

The prosecution objected saying the contents of the statements were not before the court and that the defence’s submission was a bare submission, because it was possible:

Woo J after stating that he found the decision by Kan J in paras 45 to 56 (reproduced with comments earlier in this paper) in PP v Ng Peng Siang helpful said:

... before me, the prosecution has decided not to use the statements. If the defence had considered that these statements might have been helpful to the accused, then the defence should have requested the statements from the prosecution. If the prosecution should refuse the request, then the defence should have applied to the court to direct that such statements be made available to it. If the court should give such a direction, then it was for the defence to decide whether to use the statements or not after it received them. If the court should decline to give such a direction but left it to the prosecution to decide whether to let the defence have those statements, then it would be open to the defence to submit that an inference favourable to the accused should be dealt.

Woo J has now made it abundantly clear that the drawing of inferences on the statements of the accused is a two-way street and added at para 133:

... I would be inclined to encourage and, if necessary, direct any prosecution to let the defence have such statements in response to such a request or application unless, as Kan J said, there are reasons to believe that to do so would lead to abuse.

At para 134 of his judgment he said:

I was also of the view that in the case before me, the prosecution should have responded positively ... by offering to let the defence have the statements, even though there was no specific request for them ... leaving ... the defence to decide what use, if any, it would make of them, and then respond thereto. This would be preferable to relying on the three possibilities advocated to me. [emphasis added]

Woo J decided it would be unsafe for him to infer that every material aspect of the oral evidence could be found in the six statements recorded over the period of 15 August 2002 to 2 September 2002. It may be observed that in a murder case where the prosecution was relying largely on circumstantial evidence, it is not likely that the prosecution would have allowed an opportunity to impeach pass. It is also not clear why the judge did not direct the prosecution to make the statements available to the court and the accused to settle the issue conclusively, having regard to the number of statements recorded and the sentence of death that he had to pronounce on the accused.

Judges are no longer prepared to allow the prosecution to refuse to supply the statements made by the accused, regardless of whether the statements are going to be used as part of the prosecution’s case or otherwise.

Discovery and Fair Trials

The amount of discovery that should be allowed is the subject of much controversy. Limited discovery results in ‘trial by ambush’. This is not in the best interests of justice.

The purpose of a trial is to discover the truth and achieve justice. Unexpected evidence at the trial is costly, unfair and inefficient and defence counsel is forced into a position where they have to challenge the evidence on the ground that the statements were not voluntarily made by the accused or ask for adjournments to take instructions. Notice must be given if the accused intends to rely on an alibi to prevent surprising the prosecution. Elementary fairness requires the prosecution not to spring surprises on the defence.

The argument against expansive discovery is that it will be abused by the defence. Witnesses will be intimidated, the defence will be tailored hence the need for limited discovery. The First Information Report, a complaint and the charge are not sufficient to give notice of the prosecution’s case and avoid prejudice to the defendant. The prosecution does not upon request allow the defendant to inspect and copy all the written statements made by the defendant in its possession, including confessions made to the police. If the confessions or statements had been made to a magistrate under s 124 of the CPC a copy can be obtained from the courts. If the prosecution is relying on ‘oral evidence’, the substance of any oral statement made by the accused, the prosecution intends to offer in evidence is also not made available and notice is not given of that weapon of destruction and should be discoverable.Where the prosecution is relying on ‘“oral evidence’ (usually statements made by the accused to a police officer, before a written statement is recorded under section 121 of the C.P.C)., the substance of thee accused’s oral evidence made by the accused, which the prosecution intends to offer in evidence, should be made available by way of discovery so that to the defence so that the defence is not caught by surprise. This would be consistent with a fair trial.

Criminal Record of the Defendant

The word ‘antecedent’ is given a very broad meaning in Singapore. The argument that an accused should know his previous convictions does not have regard to the fact that the prosecution in Singapore is not averse to pressing for a heavy sentences in all manner of cases and mitigating circumstances that led to the commission of previous convictions may have to be pleaded before the sentencing court.After the court has found the accused guilty, it records a conviction. Sentence is passed according to law after the court is told about the previous convictions and antecedents of the accused and has heard all the mitigating circumstances.

The practice of limiting previous convictions and antecedents to those directly related to the charges on which the accused has been convicted is no longer followed. The prosecution is not adverse to press for a heavy sentence in all manner of cases and reference is made to convictions generally and the word ‘“antecedents’” is given a broad meaning.

Mitigating circumstances that led to the commission of previous offences may have to be pleaded afresh before the sentencing court.

The prosecution should therefore furnish as a matter of course, a copy of the defendant’s criminal record and antecedents on which it proposes to rely on to the defence as it would be of assistance in the preparation of the defendant’s case so that the accused can prepare his mitigation.

Preliminary Inquiries

When the accused has been committed for trial, the defence will be recorded by an examining magistrate making an inquiry preliminary to committal for trial, s 145 CPC. The magistrate can require the accused to give orally or in writing a list of the names of persons he wishes to be summoned to give evidence at his trial. The magistrate can further require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material.

If the accused wants to call further witnesses the Registrar or the officer-in-charge of the prison must be given a list accompanied by a concise statement of the facts to be sent to the Public Prosecutor. In all trials, the accused is required to give particulars of his alibi, s 155 and s 182 CPC.

Summary Trials and Trials Before the High Court

An accused is committed for trial before the High Court when a magistrate is satisfied that there is sufficient evidence to put an accused upon his trial.

A copy of the statements to be tendered in evidence are given to the defendant seven days before the hearing. The defendant is given time to prepare his defence. The defendant is also in a position to satisfy himself that the witness is giving evidence consistent with the statement made to the police.

The courts for the administration of criminal justice are:

(a) the High Court;
(b) district court;
(c) magistrate’s court.

District courts can try all offences for which the maximum term of imprisonment does not exceed 10 years. Magistrates’ courts’ jurisdiction extends to trying offences which does not exceed three years. The question is whether an accused person who can be deprived of his liberty up to 10 years and three years enjoys equal protection of the law under Art 12(1) and Art 9(1) when not supplied with the statements of the prosecution witnesses. The extended jurisdiction of district courts makes it necessary for the statements of all the prosecution’s witnesses and the accused to be made available so that there is no trial by ambush.

Conclusion

The courts have made it clear that they are open to persuasion and will protect liberty against unfair and unreasonable practices and procedures and where necessary bring them into conformity with the Constitution by construing existing laws with modifications, adaptations, qualifications and exceptions. It is my hope that, by highlighting the law, the practice and the responses of the High Court, the gap between principle and practice will close and the lower courts will be better placed to ensure the protection of fundamental liberties and fair trials.

KS Rajah, SC
Harry Elias Partnership
E-mail: ksrajah@harryelias.com.sg