FEATURE

Equality of Arms — The Need

for Prosecutorial Discovery

 

This paper examines and addresses the present woefully inadequate state of prosecutorial pre-trial discovery in

criminal trials in Singapore, advocates the introduction of acceptable common standards of discovery

and makes proposals to that end for a fair trial, an essential component of which is advance

material disclosure. This paper was presented at a seminar,

‘A Cry for Criminal Discovery’ organised by the

Law Society on 22 July 2005.

 


Introduction

I cannot help but comment on the general title of the subject for today’s seminar — ‘A Cry for Criminal Discovery’. It suggests a desperate call for a reform of the present law and practice of disclosure of case material to the defence and in the possession and control of the prosecution. I understand from criminal law practitioners that they are anxiously hoping this seminar can contribute to the hastening of that much overdue process. However, in the short time allocated to me on my topic I can at best only give you an overview of the subject. I shall explain the principle of trial fairness and state the law and practice of criminal discovery in some common law systems and Singapore. I shall then identify some essential proposals for the much-needed introduction of a meaningful pre-trial criminal discovery in Singapore subject to recognised exceptions in the 
public interest.

 

Principle of Fairness

In the Middle Ages one of the most peculiar judicial institutions was the trial by combat to settle a dispute both civil and criminal. It was thought to be a civilised substitute for war and the ‘wager of battle’ proved the righteousness or superiority of one of the parties. Generally, the laws dictated that the armour and weapons be equal so that as far as possible parity between the parties was maintained. In early criminal cases, though, a well-to-do complainant was permitted to choose his weapon and he invariably chose an expensive one, forcing a poorer accused to do likewise, thus driving him into debt and despair even before the combat began. Nevertheless, Justices of the Peace were at hand to ensure that the duels proceeded  fairly and equally.

 

The modern criminal trial in common law countries is a product of the adversarial system and therefore continues to be combative. The prosecution has immense resources. It controls information gathered from the accused after his arrest and witnesses, and through the aid of technology and scientific means and from other sources. The information gathered can overwhelm any effort made by an accused to defend himself with his lack of similar resources. The prosecution’s reluctance to share its information with the accused before the trial has slowly but surely led to the realisation of the need to place the accused and his counsel on equal footing, or nearly so, with the prosecution in the court room in respect of the information. This is to enable the accused to understand his case and for him to respond effectively where possible to establish his innocence. The progress to pre-trial disclosure and discovery of material evidence against or for the accused and the obligation on the prosecution to make such disclosures is now found in varying degrees in many countries in statute, constitutional law and common law. Where law is lacking, the prosecution is in practice flexible in providing pre-trial discovery.

 

In England, for instance, rapid legal developments from the second half of the 20th Century have cast a statutory duty on the prosecution, augmented by the Attorney General’s Guidelines. The Guidelines are directory and issued to all prosecutors and professional agencies that prosecute to disclose in advance witness statements, case documents and other specified materials, subject to exceptions, in both committal proceedings and in the more serious summary trials where the proceedings can be tried either way, ie by way of committal or summarily. The details of the requirements and disclosures to be made are found in the following key enactments and Guidelines:

 

The Attorney General, in his Foreword to the updated Guidelines which were issued only after consultation with the legal profession and other relevant interests, boldly stated:

 

Disclosure is one of the most important issues in the criminal justice system and the application of proper and fair disclosure is a vital component of a fair criminal justice system. The golden rule is that fairness requires full disclosure should be made of all material held by the prosecution that weakens its case or strengthens that of the defence. [Emphasis added.]

 

The International Criminal Court for the former Yugoslavia (ICTY) which is trying war crimes committed in that former state and the newly formed permanent International Criminal Court (ICC) prescribe a disclosure regime under their respective Rules of Procedure and Evidence (RPE) which have been formulated by a plenary session of the judges of each of those courts and amended from time to time. There is a very substantial disclosure of witness statements, documentary exhibits, expert and other reports in ICTY rr 66–69; ICC rr 76–79. The ‘equality of arms’ concept was examined in the ICTY in the case of Prosecutor v Dusko Tadic and given full support. The Appeals Chamber clarified the scope of the principle of the concept. The Chamber said the concept did not mean material equality of possessing the same financial resources and/or personal resources as the prosecution but that it simply obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case (emphasis added). Further, Article 6 of the European Convention on Human Rights guarantees fair trial with its essential component of material disclosure. The principle of fair or flexible pre-trial disclosure is also adhered to in other common law countries, namely, Canada, Hong Kong, New Zealand, the United States, and Australia, with slight variations in individual state practices.

 

In the leading Canadian case of Stinchcombe v Her Majesty The Queen [1991] 3 SCR 326 decided in the Supreme Court of Canada, the Crown took a statement from a witness after he had given favourable testimony for the appellant at the Preliminary Inquiry. Subsequently, during the trial, the appellant learned that Crown agents had taken a statement from the witness but decided not to call him and instead offered him to the defence. The appellant requested for the statement which was refused by the prosecution and the trial Judge. The principle basis of refusal was that at that stage it was not possible to determine whether the statements would have been material to the defence if produced at the trial; that the defence could tailor its evidence and that in any case there was no duty on the prosecution to disclose.

 

On appeal, in a most compelling judgment on pre-trial criminal discovery, Sopinka J (p 333) traced the history of attempts to reform the law on disclosure through the Law Reform Commission’s working paper issued in 1974 and the Marshall Commission Report of 1984: Disclosure by the Prosecution, and observed that since nothing had been done by legislators for a long time since there was resistance from the prosecution bar for a mandatory practice and the defence bar, in respect of reciprocal disclosure of an accused’s defence, towards the enactment of a comprehensive law making disclosure mandatory, it appeared to him that the legislature had left the development of the law in this area to the courts. Sopinka J then quoted approvingly from the Marshall Commission’s Report 1984 Vol 1 pp 242–244:

It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless whilst those in favour are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by this court but not a valid reason for absolving the Crown of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence. In Boucher v The Queen [1955] SC, Rand J states at 
pp 23–24:

 

‘It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel has a duty to see that all available legal proof of the facts is present: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’

 

I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. 
[Emphasis added.]

 

Sopinka J later went on to observe that the obligation on the prosecution was not absolute but was subject to discretion, reviewable by the court. Again, it is instructive to hear the words of Sopinka J on the considerations affecting this discretion:

 

As indicated earlier, however, this obligation to disclose is not absolute. It is subject to the discretion of counsel for the Crown. This discretion extends both to the withholding of information and the timing of disclosure. For example, counsel for the Crown has a duty to respect the rules of privilege. In the case of informers the Crown has a duty to protect their identity. In some cases serious prejudice or even harm may result to a person who has supplied evidence or information to the investigation. While it is a harsh reality of justice that ultimately any person with relevant evidence must appear to testify, the discretion extends to the timing and manner of disclosure in such circumstances. A discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to be gained from the civil side of the practice is that counsel, as officers of the Court and acting responsibly, can be relied upon not to withhold pertinent information. Transgressions with respect to this duty constitute a very serious breach of legal ethics. The initial obligation to separate ‘the wheat from the chaff’ must therefore rest with Crown counsel. There may also be situations in which early disclosure may impede completion of an investigation.

 

Delayed disclosure on this account is not to be encouraged and should be rare. Completion of the investigation before proceeding with the prosecution of a charge or charges is very much within the control of the Crown. Nevertheless, it is not always possible to predict events which may require an investigation to be reopened and the Crown may have some discretion to delay disclosure in these circumstances.

The discretion of Crown counsel is, however, reviewable by the trial judge. Counsel for the defence can initiate a review when an issue arises with respect to the exercise of the Crown’s discretion. On a review the Crown must justify its refusal to disclose, inasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule.

 

It will be seen from the above discussion that the bedrock principle of equality of arms, in respect of a criminal trial which is grounded in common law, is the concept of fairness. The accused has a right to a fair trial in an adversarial system that is held in public on the basis of open justice. The participants expect it. The public expects it. Fair disclosure in turn is unarguably an inseparable part of a fair trial.

 

Criminal Discovery: Law and Practice in Singapore

With the background I have given I now turn to the law and practice of criminal discovery in Singapore. The law provides for full discovery of facts in all civil disputes. However, in criminal trials, discovery of documents by the prosecution is dependent on whether an accused is tried in the High Court or by way of summary proceedings or trial in the Subordinate Courts consisting of the District and Magistrates’ Courts. The High Court under its original jurisdiction hears cases on an indictment of an accused by a Magistrate in consequence of committal proceedings by way of a Preliminary Inquiry. The cases heard are generally under the Penal Code and are the ones punishable with death or life imprisonment or offences punishable with more than 10 years’ imprisonment and as prescribed more particularly in Schedule A, Column 8 of the Criminal Procedure Code, as well as other specific laws.

 

Under s 150 of the Criminal Procedure Code (Cap 68), which has been in the statute book since colonial times, the defence is entitled to be served the full record of the committal proceedings, including all depositions taken from witnesses. These depositions are an edited version of the investigative statements taken by the police or other empowered agencies from witnesses, including an accused. The editing is normally done to exclude inadmissible and irrelevant content. The record forms the basis of the prosecution’s case against the accused in the High Court although the prosecution can adduce further evidence in respect of undisclosed material at the trial. In other words, the Public Prosecutor has the discretion to decide what witness statements and documents should form the basis of the committal proceedings.

 

No legislation exists for the provision of a similar criminal discovery in summary cases other than the compendious s 58 and s 180(m) of the Criminal Procedure Code for production of documents and other things as criminal trials in the lower courts were simple and short in the old days. Routine disclosure by the prosecution following a request has all along been restricted in summary trials to the following rudimentary documents:

 

I would now like to highlight the substantive and on-going tussle between defence lawyers representing accused persons both in the High Court and summary trials. The tussle has been going on quietly for more than a generation now. It surprisingly involves the refusal by the prosecution before trial to supply to an accused his own statement recorded through questioning during investigations and pursuant to s 121(1) of the Criminal Procedure Code. Often, in serious crimes, the statement is taken over several days or weeks after the crime. It is colloquially known as the long statement. It is admissible under s 121(5) of the same Code should the prosecution wish to adduce it in evidence or any part of it.

 

Whether the long statement is given to the defence can be the result of at least five different ad hoc scenarios: (i) occasionally, when unreservedly incriminating, it may be served and revealed at the committal stage of the trial before a Magistrate. If it is revealed it will form part of the committal record; (ii) it may be served and revealed to the defence on the first day of the trial because the prosecution has decided to use the statement as part of the prosecution case to be introduced in evidence through the recorder of the statement, normally the Investigating Officer for some incriminatory content; (iii) sometimes it is disclosed in whole to impeach or contradict the testimony of an accused after the close of the prosecution case and after the accused has testified in examination-in-chief and when the prosecution is cross-examining him; (iv) sometimes only a paragraph is disclosed  in court to impeach or contradict the testimony in court whilst the accused may have said some thing else, in say 35 other paragraphs that sheds light and negatives the long paragraph; (v) often the long statement is not disclosed at all. In the last four scenarios the prosecution will have perceived that it will gain some tactical advantage for itself with the surprise element of an 11th hour disclosure.

 

Advance disclosure of the long statement is extremely important to defence counsel so that he may know exactly what the accused has told the police so as to be able to advise the accused. Without advance pre-trial disclosure and sight of this statement, it is impossible to say that an accused is going into trial having given full instructions to his counsel or with equal armour. It is equally impossible to say that an accused should know exactly what he has said in his statement, knowing the fragility of memory and the professional expertise with which statements are taken. As for a cautioned statement, it is invariably very short and snappy going generally to the admission or denial of the charge as an accused is generally left to say what he wants without interruption. It is recorded under s 122(6) of the Criminal Procedure Code and after the charge is read to an accused. Defence counsel may rely on it if it is exculpatory, but if the devil is in the detail then it is in the long statement.

 

Conviction of an accused, no matter how serious the charge is, can be solely based on an unsworn long statement if adduced in evidence by the prosecution or if sprung in evidence after the accused’s defence is called, to materially contradict an accused’s oral testimony at his trial. The long statement may amount to a confession showing the guilt of an accused in respect of the charge of which he is being tried. If it is believed by the court and proved to be voluntarily made, then under s 147(3) of the Evidence Act (Cap 4), on the application of the prosecution, it can be effectively  substituted as his evidence in place of his sworn testimony in court. The fear of this happening is in the mind of every defence counsel when he goes to trial where no advance discovery of the long statement is made to the defence.

 

So far, no reported case has been fully argued on an application for advance pre-trial discovery in Singapore and there is no comprehensive judgment in relation to such criminal discovery. There are, however, a few judgments to which I would like to draw your attention, where the law is set out piecemeal.

 

In Kulwant Singh v PP [1986] SLR 23, an application to the High Court was made for advance disclosure of the long statement under s 58 of the Criminal Procedure Code. The section is in general terms and deals with an application by way of summons to the hearing court for the police to produce a document or thing for any investigation, inquiry or trial. The court held that the document was a public document under ss 76 and 78 of the Evidence Act and for a public document to be disclosed a person must have a right conferred on him by law enabling him to have access to it. Further, s 58 of the Criminal Procedure Code under which the application was made only allowed a judge who was hearing the case to grant or refuse production of the document. The particular judge in the High Court was not the judge hearing the case and further the judge found that the case had yet to go before the examining Magistrate for the committal hearing. The judgment has been characterised as ‘excessively narrow’ by Tan in his authoritative textbook Criminal Procedure, Part IV [1655]–[1760].

 

In Tan Kee Khoon v PP [1995] 3 SLR 724 at 737 and Tan Kok Poh Ronnie v PP [1996] 1 SLR 185 at 196–197, the appeals by the appellants were to the High Court following their convictions before a District Court. In the first case, in which the appeal was dismissed, a Sergeant with the Commercial Crime Division had applied orally and without success to the trial Judge in the District Court to sight some investigation papers to recollect certain facts and details. He raised this matter on appeal but the High Court decided that an application to produce under s 58 of the Criminal Procedure Code had to be formally made and he had to make out a case for ‘the necessity and desirability of the production of the documents’. The reason that he could not remember certain things and needed the papers to refresh his memory did not alone ‘demonstrate necessity and reliability’.

 

In Ronnie Tan, the second case, the appeal was allowed. The appellant had raised the question of the trial District Judge not having allowed him access to his long statement after his evidence had already been recorded at the trial. The Chief Justice held that the appellant was entitled at that stage to view his long statement on the basis that the ‘defence witnesses’ had finished giving evidence. There was as such no longer any basis for denying the defence sight of the long statement as the defence could not tailor its defence at that stage. Further, the accused was entitled to avail himself of the opportunity under s 159 of the Evidence Act of corroborating his testimony in court as it could be a ‘relevant’ and ‘pivotal’ piece of evidence especially in a case where the prosecution’s evidence was limited by its main witness to a bare allegation against an accused. If disclosure was not allowed in such circumstances it would not be conducive to a fair trial.

 

In PP v Ng Beng Siang & Ors [2003] 4 SLR 627at 629, three accused faced capital charges of trafficking in drugs in the High Court. Certain long statements made by the accused implicating themselves were admitted in evidence. There were other long statements of the accused which the prosecution did not tender in evidence or disclose to the defence. In the United Kingdom, this material is referred to as ‘unused material’ and would normally be  supplied to the defence. Counsel for the defence applied to the court at the trial to see the unused long statements, arguing that they should be supplied to the defence. In the end, counsel for the prosecution and defence resolved the matter between themselves and the statements were supplied. Nevertheless, Kan J, in his judgment, dealt with the issues raised, boldly. He summarised the prosecution’s objections as:

(a) there was no obligation on the prosecution to disclose the long statements;

 

(b) that the statements were retained so that they could be used to impeach an accused’s credit if he were to depart from them;

 

(c) that they are not furnished because an accused may tailor his defence according  to his statements; and

 

(d) that the statements may be supplied if an accused disclosed his defence first.

 

The learned judge’s prudent response to these submissions is instructive (p 627):

 

49 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.

 

50 ... 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.

 

51 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.

 

52 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.

 

53 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.

 

54 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.

 

55 Against this background, 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.

 

To the above judicial observations I would simply add by way of answer to the prosecution’s objections set out earlier:

(i)  that Parliament itself has made a radical provision by way of as s147(3) of the Evidence Act (Cap 97) for any previous police statement recorded from the accused to be effectively substituted in evidence in place of his testimony if he should resile from such previously made statement and contradict it materially. This process is far more potent in its effect than the parallel provision for impeachment and is preferred over impeachment by the prosecution, as is any practitioner’s experience. An accused will have to think twice in the light of this provision to materially depart from his previous long statement, and must provide a good reason if he does so, even if it is disclosed to him way in advance of the trial.

 

(ii) as for tailoring his testimony to match that of his statement if it is disclosed in advance, Sopinka J in the Canadian Supreme Court case of Stinchcombe referred to earlier (and which had not been cited before Kan J) summarily dismissed such a submission put by the Crown thereby saying:

 

I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.

 

     Another reason is that prosecution 
witnesses, just before a trial, are allowed to refresh their memory by revisiting their statements which are given under less stressful conditions than under which accused persons give statements (and often late at night). An accused, all the more so, should be allowed to have the same facility.

 

(ii) Let’s also not forget that the courts have been very successful in developing procedures for assessing oral testimony to distinguish the honest from the dishonest. The principles of law to be applied in the assessment of tailored testimony, if there is one, will approximate, amongst others, to those that relate to the reception or rejection of cautioned statements. Exculpatory portions of cautioned statements and similar testimony in court are regularly rejected by the courts as ‘self serving’ where this can be discerned from the surrounding evidence. But on the other hand the court can come to the conclusion that the long statement is corroborative of the testimony of an accused as has been stated earlier in the case of Tan Kok Poh, Ronnie v PP; and

 

(iii) in respect of an accused disclosing his defence as a condition of the prosecution disclosing the accused’s long statement or other material, there is no common law obligation for the accused to reveal his defence, as is well recognised. Such an obligation arises only under statutory law and is already provided for in s 123(1) of the Criminal Procedure Code — that an adverse inference will be drawn against an  accused if he fails to mention material facts in his defence but later asserts them in his testimony at the trial. The silence or failure goes further. It can amount to corroboration of the prosecution’s case through the adverse inference. It is very rare in the circumstances for an accused not to reveal his defence. The prosecution, therefore, will be cognisant of an accused’s defence from the onset.

 

Proposals

So what should the legal fraternity in Singapore do in respect of criminal discovery?

 

It has been increasingly recognised in other common law countries and civil jurisdictions that criminal discovery is a crucially important duty of the prosecution. The defence under our present system in Singapore plays a reactive role with the prosecution controlling information and not revealing it to the defence in advance. Such a system has an unhealthy surprise element as a weapon in the prosecution’s arsenal to be used against the defence at the trial, which can contribute to errors or a miscarriage of justice. The accused needs to know in advance the full case which will be made against him, so as to be able to give an answer to the best of his ability. We can learn and understand much from the procedures for discovery in civil cases. It is always complete. Refusal to discover in civil cases as every litigant knows can result in a dismissal of a suit. No one has ever said that discovery in civil cases has been abused with one or the other party tailoring his evidence. We cannot maintain weaker safeguards in the criminal area than those in the civil forum. To do so in an area where the ultimate punishment is incarceration and caning makes little sense.

 

I believe the solution lies in the following key questions which I have attempted to answer briefly and to which all of you can contribute with your learning 
and experience:

 

(i) How much should the prosecution disclose by way of the evidence it proposes to call?

The short answer is, to use the words of the UK Attorney-General, all material held by the prosecution that weakens its case or strengthens that of the defence. The prosecution is only a repository of such information which is the property of the public to be used so that justice is done. The judge should be the final arbiter of such evidence. The prosecution’s obligation to disclose plays an essential role in safeguarding the integrity of our criminal trials. In other words, in Singapore’s context, the disclosure should include the edited or conditional long statement or statements of the accused recorded by the police and, if the defence so requires, the original unused statements of the accused for verification to remind himself of what he has said; statements of witnesses, if relevant and not called to testify for the prosecution; the exculpatory content of any statement or any material from any source which will enable an accused to explain his case; previous convictions of any material witness as they can go to his credibility; all relevant documents and reports, expert and scientific, which have a material bearing on the case and are likely to advance the defence case. It should not be for the prosecution to answer that a duty of disclosure will be discharged by the frankness of a police officer or a witness when he testifies in court and whose witness statements or other relevant documents are not disclosed. Such a duty cannot be left to chance as was observed in the Devlin Report: 1976 HC 338. Devlin was a respected law lord. I would like to stress that Kan J, in his 2003 judgment in Ng Biang Seng & Ors, to which I have drawn your attention, has exposed the weakness of all the traditional arguments of the prosecution for a non-disclosure of an accused’s previous long statements and, it is hoped, put them to rest. Sopinka J’s dicta in the earlier Canadian case holds the same position, more completely and forcefully expressed.

 

(ii) What about other material or sources known to the prosecution which may lead to discovery of evidence relevant to the defence?

Yes. They should be disclosed on the principle of fairness.

(iii) What exceptions should be made in the public interest?

Exceptions should be made in respect of an assertion by the prosecution of public interest immunity or related sensitivity or that which is upheld by the court. Some examples of exceptions are the retention of confidentiality of documents and information relating to the highest level of government policy and integrity of the security services; informer identity or his information where such information will reveal his identity and where the prosecution has a reasonable belief that to reveal a witnesses statement may lead to his intimidation.

 

(iv) Should the same disclosure principles as in the High Court apply to summary trials in the Subordinate Courts?

It would be an unreasonable expectation to apply the same principles of disclosure as outlined earlier in all summary trials because of their very nature and numerous number. However, the jurisdiction of the District Courts has over the last 30 years been increased progressively so that the judges there now hear complex cases of corruption, fraud, drug cases, criminal negligence and generally white collar criminality for which sentences of up to seven years can be imposed or more where there is a previous record. The disclosures as proposed should only apply with some flexibility to serious cases being tried in a District Court and which sanction a punishment of three or more years but most certainly in all complex, and potentially long trials. Advance serving of witness statements on an accused in High Court trials for decades has not had any adverse criticism that it undermines the prosecutorial process. A similar procedure for the more serious cases in the District Courts should not similarly cause any concern.

 

I would further add that my experience has been that advance disclosure of an accused’s previous long statement to the defence (as well as the witness statements) may well work to the benefit of the prosecution as an accused may throw in the towel early on his counsel’s advice and enter a plea of guilty. Such a course is beneficial to the public interest. Further, such disclosures may well speed up the disposal rate of those cases where an accused claims trial and has made statements with material inculpatory content but either cannot remember the details or does not want to admit them to his counsel.

 

In the Privy Council case of Ian Vincent v The Queen [1993] 1 WLR 862, an appeal from Jamaica, involving trial before a summary Resident Magistrate’s Court, although the appeal was dismissed because it was found that the appellant was not unfairly prejudiced as no advance witness statements were given to him, it was held per curiam (Lord Templeman, Lord Lane, Lord Ackner, Lord Goff and Lord Woolf) (p 871D-E):

 

The Director of Public Prosecutions of Jamaica may like to consider whether or not to promulgate a general practice which requires, in the absence of special circumstances, the disclosure of witnesses’ statements, or giving the defence a statement of the nature of the evidence which will be relied on by the prosecution, before trial to assist the defendant in the preparation of his defence.

 

In England in offences triable either way, ie summarily or on indictment, on a defence request, the prosecution is obliged to furnish witness statements to the defence if the accused elects trial summarily. [Emphasis added.]

 

(v) When should criminal discovery be made by the prosecution?

Timing is important. Fairness dictates that disclosure be made in advance and when hearing dates are taken or before the pre-trial hearings begin for preliminary issues to be resolved. By then the investigation should be long over. The concept of fair trial dictates that the defence has a reasonable time to muster its own witnesses, reflect upon the case and prepare for the trial. The period must also depend on the complexity of the case. It must be remembered that the prosecution has had a long head start.

 

(vi) Should any sanctions be imposed on the prosecution for failure to disclose?

Yes.  There should at least be a stay of proceedings until discovery is made or a discharge granted to the accused. The latter happened in the Euro Bank Corporation Case [2002] CILR 15, in the Cayman Islands, where a mole operated in the bank. Certain evidence relating to his activities was destroyed and there was also a pact to keep certain other matters secret even if it meant misleading the court.

 

(vii) Finally, should the solution be legislative, judicial or should our A-G in his discretion formulate guidelines which can be uniformly and predictably applied to ensure a fair trial?

Introduction of comprehensive legislation in respect of criminal discovery in Singapore would be the preferred option as in the United Kingdom for a transparent and uniform criminal discovery based on considered standards and to foster a culture 
of disclosure.

 

A further reason is that legislation is already in place in respect of an obligation by the defence to disclose its defence. Under s 123 of the Criminal Procedure Code, an accused can be penalised by adverse inferences for not divulging or omitting any material particulars in his cautioned statements in respect of which an accused proposes to rely in court. The long statement is similarly regarded. Under s 27 of the Prevention of Corruption Act (Cap 241) (PCA), an accused is legally obliged to give information under the Act even though it may incriminate him, under pain of sanctions. These are exceptional provisions not found in other common law jurisdictions. There is also the defence duty to disclose an alibi (s 155  CPC). There should, therefore, be a reciprocal obligation on the prosecution to provide discovery of these statements and other related evidence so that an accused can refresh his memory and brief his counsel and take advice as the trial will only take place many months later.

 

On the other hand, any judicial pronouncement in lieu of legislation should, when the opportunity arises, be comprehensive as that made in Sithcombe’s case by the Supreme Court in Canada — which jurisdiction like Singapore also inherited the common law. A comprehensive statement of the law as in Sithcombe’s case will make for reasonable predictability and compliance by the prosecution. Grey areas or areas on which there is disagreement to disclose can be left to the court’s subsequent interpretation and determination after a balancing exercise is conducted between the public interest and the individual’s right to fairness.

 

In the absence of legislation or comprehensive judicial guidance or pending these, the Attorney-General should, under the discretionary power vested in him in relation to prosecutions, formulate and publish general directory guidelines for criminal discovery after consulting and getting input from the practising bar. In this regard, the per curiam dicta of the Committee of the Privy Council, composed of many of the ablest judges, and addressed to the Attorney-General of Jamaica, as quoted earlier, can serve as a cue.

 

Conclusion

I would like to conclude by saying that there is a global movement for better criminal discovery for the defence. The European Union for instance is moving ahead to unify certain minimum standards of discovery amongst its 25 member states: Framework Decision 28.4.2004 (2004 308 final, p 3 para 8). Singapore’s criminal justice system, known for its excellence, should keep abreast of global developments in respect of criminal discovery so as to remain a first 
amongst equals.

 

 

Amarjeet Singh, SC

KhattarWong

E-mail: amarjeetsingh@khattarwong.com