Public Prosecutor v Nurashikin bte Ahmad Borhan [2003] 1 SLR 51
High Court — Magistrate’s Appeal No 15 of 2002
Yong Pung How CJ
8, 16 October 2002

Theft — Whether judge has right to hold prosecution witness not credible where testimony is inconsistent with demeanour in court — Whether a party can cross-examine their own witness — Whether an adverse inference can be drawn where the defendant fails to call a material witness

Hui Choon Kuen (Deputy Public Prosecutor) for the appellant.
Respondent in person.

The respondent was charged with committing the offence of theft in a dwelling under s 380 of the Penal Code (Cap 224). The respondent and her friend (‘Natasha’) were shopping at a departmental store where they selected two items from the shelf. A sales assistant (the prosecution’s sole witness) testified that she saw the respondent hold on to the two items as the respondent moved away from the shelf. However, the sales assistant’s evidence was inconsistent with regard to whether she had seen the respondent place the unpaid items in the bag.

The sales assistant and her colleague detained the respondent and Natasha as they were about to leave the store and found the two items in the respondent’s bag. The respondent stated that she had replaced the items on the shelf and it was possible the items may have accidentally fallen into her bag. Alternatively, someone might have placed it there without her knowledge.

The trial judge held that the prosecution had not proven the case beyond a reasonable doubt and acquitted the respondent. The prosecution appealed.

Held, allowing the appeal:

The judge was entitled to hold the sales assistant to be not a credible witness based on her demeanour in court and the inconsistencies in her evidence. Due weight was to be given to the trial judge’s assessment of the veracity and credibility of the witness, in view of her having the benefit of observing the demeanour of the particular witness.

There were also no satisfactory explanation for the inconsistencies in the sales assistant’s evidence. The judge was entitled to reject the evidence that it was not Natasha but the respondent who was holding on to the items. The judge was justified in not drawing any conclusions on whether the respondent or Natasha was holding on to the items when they left the shelf.

There was also no reasonable explanation as to how the same items that the respondent was browsing earlier could have ended up in her bag, other than that she had placed them there herself. Without supporting evidence, the respondent’s explanation of how the items may have ended up in her bag without her knowledge would be hard to believe.

If it was the respondent argument that it was Natasha who had placed the items in her bag, then she should have called Natasha as a witness and applied to court to cross-examine her. Under s 156 of the Evidence Act (Cap 97), the court may permit a party to cross-examine his own witness to elicit favourable evidence in circumstances when that witness might have been called by the opposing party, but was not called. The respondent had failed to call Natasha as a witness despite she being the only person who could have rebutted the prosecution’s case. In light of the above, an adverse inference should have been drawn against the respondent under illustration (g) of s 116 of the Evidence Act.