Appeal or Tried Again?

The right of appeal against final orders made by the Subordinate Courts and the High Court in criminal proceedings is statutory. Articles 9(1) on due process and 12(1) on equal protection of the Singapore Constitution (‘the Constitution’), however, require the appellate procedure be not violated. Article 11(2) further protects persons from being tried again for the same offence. This article considers the question whether it is proper for appellate courts to convict and sentence respondents like a trial court when an appeal is heard, having regard further to the principle of issue estoppel.

Introduction

Two appeals by the prosecution against orders of acquittal made by a District Court in 1999 and the High Court in 2005 resulted in the respondents being convicted and sentenced by the appellate courts. The High Court did so after partly allowing the appeal against 18 orders of acquittal. The Court of Appeal set aside the acquittal on the murder charge and the conviction on the lesser charge of voluntarily causing hurt in the course of a robbery, and convicted the respondents of murder punishable with a mandatory sentence of death.

The question is whether it is proper for superior courts hearing appeals, where the superior courts quash orders of acquittal to convict and sentence respondents or appellants like trial courts, when art 11(2) of the Constitution requires persons who have been convicted or acquitted of an offence not be tried again for the same offences except where a conviction or acquittal has been quashed and a retrial ordered by the superior court.

The High Court Appeal

In PP v Asok Kumar and Anor [1999] 4 SCR 388 the prosecution’s case was that out of a single act or series of acts, one of three offences was committed. The charges were not in the alternative but one of three offences ie corruption, cheating or criminal breach of trust had been committed. Eighteen charges 
were preferred.

The learned District Judge acquitted the accused, finding as a fact that the money had been paid in consideration for certain services rendered. The prosecution appealed against the 18 orders of acquittal and on appeal before the High Court, pressed for a conviction on all 18 charges. The High Court, a ‘superior court’ within the meaning of art 11(2) of the Constitution, did not order a retrial.

The central issue of fact that was tried and determined at the court below was whether any one of three offences had been committed. The appellate court was required to review the facts and satisfy itself that the decision of the learned District Judge was not ‘horribly wrong’.

The High Court after stating that it was aware of the sanctions against allowing appeals against a finding of fact and noting that in framing the charges, the prosecution was pressing for the mandatory imposition of consecutive sentences, amended the charges to a single charge of criminal breach of trust and then convicted and sentenced the respondents to imprisonment like a trial court, no doubt relying on s 256 of the Criminal Procedure Code (‘CPC’).

Section 245 of the CPC provides for an appeal against acquittal by a District Court or Magistrate’s Court by the Public Prosecutor. At the hearing of the appeal, the court may where it considers that there is no sufficient ground for interfering, dismiss the appeal or may, inter alia:

1   in an appeal from an order of acquittal, reverse the order and direct that further inquiry shall be made or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law 
(s 256).

The words ‘according to law’ in s 256 echo the words ‘in accordance with law’ in art 9(1) of the Constitution. It is submitted that s 256 in the CPC is ‘existing law’ and must be construed with modifications, adaptations, qualifications and exceptions, as may be necessary, to bring it into conformity with the Constitution as required by art 162 of the Constitution so that there is due process, equal protection and compliance with art 11(2) and that appellate proceedings do not take on the semblance of a trial court.

The learned editors of the Halsburys Laws of Singapore have said that chapter XXVII of the Criminal Procedure Code entrenches the fundamental principle of justice already enshrined in the Constitution of Singapore that a person who has been convicted or acquitted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a superior court (see Halsburys Laws of Singapore vol 8(2) p 123). We must now turn to the proceedings that took place at the murder trial before the High Court.

The Murder Trial

In PP v Lim Poh Lye & Anor [2005] 2 SLR 130; [2005] SG HLB, three men, Lim, Koh and Ng planned a robbery. The plan involved abducting the victim, forcing him to sign some cheques in his car and then running away after cashing the cheques. Knives were taken to threaten and force the victim to sign the cheques. Everything went according to plan but when the cheques were presented at the bank, the bank officer insisted on verifying the cheques with the drawer. Whilst waiting for the bank to verify the cheques, the victim, held in the car, made several attempts to escape from the car. To prevent the victim’s escape, Lim stabbed the victim’s legs. The victim subsequently died from excessive bleeding from one of the stab wounds.

Koh and Lim subsequently surrendered. The two accused were charged with murder under s 302 read with s 34 of the Penal Code (Cap 224). Under s 34, when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

The trial judge followed the Court of Appeal’s decision in Tan Chee Hwee’s case [1993] 2 SLR 657 where the Court of Appeal had held that the death caused by ‘asphyxia due to strangulation’ was not murder because the court had to determine guilt by having regard to the subjective intention or purpose of the act when an act is done with the intention of causing bodily injury.

The Court of Appeal in Tan Chee Hwee’s case found (as a fact) that the accused only intended to stop the maid from screaming and struggling, and not to silence her forever. The Court of Appeal said: 

This strongly suggests to us that even at that critical moment Tan could not have formed the intention to strangle the maid with the cord of the electric iron as a means of “silencing her forever”. In the circumstances we are driven to the conclusion that the injury which was in fact caused to the maid around the neck, in all probability, was not intentionally but accidentally or unintentionally caused. [emphasis added]

 The trial judge applying the subjective test of the Court of Appeal in Tan’s case said: 

Tan Chee Hwee, therefore, applies only in very special circumstances, namely, that the intended action (strangulation in that case, stabbing in this) was inflicted for a specific non-fatal purpose. In either case, the resulting injury, although of a different nature, might have varying degrees of severity. In one there might be bruising or a discomfort of choking of a transient nature, and in the other, varying degrees of puncture with bleeding and pain … 

and recorded his finding in the following terms: 

I find that the general act intended by Lim was to cause stab wounds to Bock’s legs to prevent him from escaping. The evidence of witnesses amply showed that Bock had made at least two determined attempts to escape. The principle enunciated in Tan Chee Hwee seems applicable to the facts before me. Suffice to say that it is not necessary to draw distinctions on the broad facts between Tan Chee Hwee and the present, for example, that the act of strangulation and the act of stabbing caused injuries of a completely different nature. … The two causes of death (asphyxia and haemorrhage) could, of course, be the result of murder. But, as Tan Chee Hwee shows, in certain factual circumstances, they might not be. The intended act of strangulation in one case, and the intended act of stabbing in the other, were found (as a finding of fact) to accompany the intention of preventing the victim from crying for help or escaping, and no more. If any difference can be ascertained, it would be an extremely fine one, and I would be loath to attach any significance to such in a capital case. I find, therefore, that the severing of Bock’s femoral vein was not intentional, but, in the language of Tan Chee Hwee, accidental. 

The trial judge further found support for the approach he took in an Indian Supreme Court case. He said: 

In the Indian case of Harjinder Singh Alias Jinda v Delhi Administration [1968] 2 SCR 246, the accused was convicted of murder when he stabbed the deceased in the thigh, and in so doing, severed the artery. On appeal, the Supreme Court of India accepted that when the accused stabbed the deceased in that case, he (the accused) did not aim “the blow at this particular part of the thigh knowing that it would cut the artery” (at 250). The present case before me is similar in that respect, but it is the rare and special circumstances (inflicting harm to prevent escape) similar to Tan Chee Hwee that has the greater significance. I find therefore that Lim was not guilty of murder as charged. 

The trial judge had highly persuasive authority to support his reasoning since the Supreme Court of India did not follow its earlier decision in Virsa Singh v State of Punjab AIR 1958 SC 465 in Harjinder Singh’s case. The trial judge in Lim’s case acquitted the accused of murder, reduced the charge to offence of voluntarily causing hurt in the course of committing robbery, an offence under s 394. The Public Prosecutor appealed.

Court of Appeal

The Court of Appeal has ruled that the trial judge had erred in his appreciation of the decision in Tan Chee Hwee. The conviction on the lesser charge was set aside. The court then convicted the respondents of murder under s 302 read with s 34 of the Penal Code which carries with it the mandatory death penalty. Here again, the respondents did not stand before the Court of Appeal on a charge of murder. The presumption of innocence was now supported by an order of acquittal. There was no trial before the Court of Appeal. The respondents were convicted and sentenced to death by the Court of Appeal without a trial, when it should have ordered a retrial. The trial was before another judge. 

The word ‘quash’ in art 11(2) is a word that has been defined in different ways. In short it means:

1   to overthrow;

2   abate;

3   vacate;

4   annul;

5   make void.

The Court of Appeal set aside the conviction of the High Court. ‘Set aside’ means:

1   to reverse;

2   vacate;

3   cancel;

4   annul;

5   revoke a judgment, order etc.

The fact that the Court of Appeal used the words ‘set aside’ instead of ‘quash’ does not alter the fact that the court in law quashed the acquittal and conviction on the lesser charge. The Court of Appeal was therefore obliged to order a retrial by law. 

The question is whether the Court of Appeal can properly convict the respondents on the original charge of murder when art 11(2) of the Constitution which embodies the rule against double jeopardy reads: 

A person who has been convicted or acquitted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was convicted or acquitted. 

The Court of Appeal did not have before it a conviction for murder. That was not the final judgment that was being reviewed. It did not have before it a ‘tentative, informal or incomplete’ court ruling but a firm and final decision. It had before it persons who had once been tried by a court of competent jurisdiction for the offence of murder and acquitted of that offence. There is a constitutional prohibition against being tried again for the same offence, except where the acquittal has been quashed and a 
retrial ordered. 

The right guaranteed by the double jeopardy clause protects persons from being tried again for the same offence, until after the acquittal has been quashed and a retrial ordered. The respondents had a right not to be placed in double jeopardy. The respondents before the Court of Appeal were not required to defend themselves against a charge of murder. They had good reason to believe that they were not guilty of the charge of murder.

The Appeal

Section 44(3) of the Supreme Court of Judicature Act (Cap 332) empowers the prosecution to appeal against the acquittal or against a sentence imposed by the High Court. Sentencing is distinguishable from either a conviction or an acquittal. Parliament can provide for governmental appeal of a sentence where the judge has misconstrued the sentencing law and failed to impose an appropriate sentence required by law. 

Sentencing decisions are ordinarily distinguished from decisions as to guilt or innocence in the application of the double jeopardy clause. In the American case North Carolina v Pearce, 365 US 711 896 SCt 2072 23 LEd 2d 656 (1969), the court held that the implied acquittal doctrine did not apply to a judge’s decision to sentence the defendant to less than the maximum sentence in connection with a conviction later overturned. Accordingly, when a defendant’s initial conviction was reversed on appeal, and he was subsequently retried and reconvicted, and sentenced to a higher term of incarceration than had been imposed on the original conviction, the higher term was not barred by the double jeopardy clause (although it could violate 
due process). 

American courts have held that traditional double jeopardy standards applied to one type of sentencing decision – that made by a jury in a capital sentencing proceeding. The courts have noted that where the jury’s determination not to impose the death penalty came after a trial-type hearing in which it focused on special factual standards (aggravating and mitigating factors) governing the imposition of that penalty, that determination was comparable to a trial acquittal as to that sentence. In the case before the Court of Appeal in Singapore, the respondents were sentenced to terms of imprisonment and strokes of the cane but the trial judge had focused on the special factual standards, aggravating and mitigating factors and the law, before deciding not to impose the death penalty. The Court of Appeal appears to have further not considered the fact that India has done away with the mandatory death sentence. The broad interpretation of s 300(c) of the Penal Code in India is reasonable. It is not reasonable in Singapore where the punishment of death is a mindless mandatory sentence. 

The position would have been different if a retrial had been ordered. In a retrial, a trial judge is not constitutionally precluded from imposing a new sentence whether greater or less than the original sentence provided it is not greater than the prescribed sentence at the time it was committed. We must now consider the effect of an order of acquittal.

Verdict of Acquittal

The effect of a verdict of acquittal pronounced by a competent court on a lawful charge after a lawful trial is not completely stated by saying that he cannot be tried again for the same offence except where the acquittal has been quashed and a retrial ordered by a court superior to that by which he has been acquitted. To the constitutional provision against double jeopardy in art 11(2) must be added the plea of previous acquittal in s 239 of the Criminal Procedure Code (Cap 68), which may be pleaded with any other plea before a trial court. Section 239 reads: 

239. —(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 172 or for which he might have been convicted under section 173 or 174.

(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 170(1).

(3) A person convicted of any offence constituted by any act causing consequences which together with that act constituted a different offence from that of which he was convicted may be afterwards tried for that different offence if the consequences had not happened or were not known to the court to have happened at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may notwithstanding the acquittal or conviction, be subsequently charged with and tried for any other offence constituted by the same acts which he may have committed if the court by which he was first tried was not competent to try the offence with which he is subsequently charged. [my emphasis] 

Illustration (b) to s 239 which relates to the offence of murder reads: 

(b) A is tried upon a charge of murder and acquitted. There is no charge of robbery; but it appears from the facts that A committed robbery at the time when the murder was committed; he may afterwards be charged with and tried for robbery. 

Illustration (b) makes it abundantly clear that where a man is tried upon a charge of murder and acquitted, he may be tried again for another distinct offence but not on a charge of murder even by the Court of Appeal. Illustrations (a), (c), (d) and (e) further clarify the principle involved, to discourage appellate courts becoming trial courts.

Issue Estoppel

To the constitutional provision in art 11(2) and s 239 of the CPC must be further added that the maxim res judicata pro veritate accipitur (a matter decided or passed upon by a court of competent jurisdiction is received as evidence of truth) is no less applicable to criminal than to civil proceedings. Notwithstanding the provisions of the Constitution, the CPC and the settled principle binding the parties, the Court of Appeal after noting that the judge had acquitted the respondents of murder and convicted the respondents on the lesser charge of robbery with hurt punishable under s 394 of the Penal Code, set aside the conviction of the respondents on the lesser charge of robbery and convicted the respondents on the original charge of murder under s 302 read with s 34 of the Penal Code, which carries with it not only the mandatory death penalty but raises the further question as to whether the respondents have also lost the right of appeal against a death sentence and the right to equal protection of the laws.

Double Jeopardy

It was not open to the respondents to plead the previous acquittal under s 239 CPC before the Court of Appeal in the prescribed form: 

The accused says that by virtue of section 239 of the Criminal Procedure Code he is not liable to be tried, … 

because the respondents were in an appellate court and not before a trial court. They were entitled to assume that the Court of Appeal would construe all powers conferred on it by the Supreme Court of Judicature Act subject to art 11(2). (See arts 4 and 162 of the Constitution). The Court of Appeal has not given any reasons for having decided to convict the respondents when they did not stand charged with murder. It is not clear if they were given an opportunity to respond to any charge and or call witnesses before the Court of Appeal stepped into the shoes of a trial court and convicted the respondents.

Trial Level Protection

Sections 239 and 240 of the CPC are designed as a trial level protection, to protect a person against being twice put in jeopardy for the same offence of which he was acquitted. Appellate courts are accordingly required to order a retrial to get around the rule against double a jeopardy or being tried again. The plea of previous acquittal does not protect a person where the prosecution appeals because the appeal does not subject the respondent to a second jeopardy in its constitutionally defined sense before the appellate courts. The High Court, where it sits as a superior court hearing appeals from the Subordinate Courts, must also abide by art 11(2); there would be double jeopardy if the appellate court takes on the trappings of a trial court and convicts and sentences appellants as if it is a trial court. It is useful to note the powers of a Court of Appeal when hearing civil and criminal cases. 

Section 37(5) of the Supreme Court of Judicature Act (Cap 322) empowers the Court of Appeal with the discretion to:

1   draw inference of facts;

2   give any judgment;

3   make any order which ought to have been given or made, and make such further or other orders as the case requires in its civil jurisdiction.

The powers of the Court of Appeal in criminal cases are different. Section 54(2) empowers the court to:

1   confirm, reverse or vary the decision of the trial court;

2   order a retrial;

3   remit the matter with the opinion of the Court of Appeal to the trial court might have exercised (ie subject to section 239) [my observation];

4   make such order in the matter as it may think just;

5   may by such order exercise any power which the trial court might have exercised.

The powers in s 54 cannot be exercised in favour of all or any of the respondents or parties, although the respondents or parties have not appealed from or complained against the decision. In this case, the respondents who were acquitted of murder and convicted of the lesser offence neither appealed the conviction nor complained against their acquittal on the murder case. 

The powers in s 54 (Cap 322), unlike the powers in s 37, however, cannot be exercised without having regard to the constitutional provisions in arts 5, 9(1), 11(2), 12(1) and 162. The Court of Appeal appears to have done so. Sections 212 to 219 of the CPC deal with ‘judgment’ in criminal trials. Section 54 does not empower the Court of Appeal hearing criminal appeals to give any judgment, like a trial court. 

It is also useful to note that the Court of Criminal Appeal in Lim Ah Poh v PP [1992] 1 SLR made it clear that an appellate court will not disturb findings of fact unless they are clearly reached against the weight of evidence. Further, an appellate court, when examining the evidence, is required always to bear in mind that it has neither seen nor heard the witnesses and has to pay due regard to the trial judge’s findings and the reasons therefor. 

The Court of Appeal in Lim’s case appears not to have kept in mind that the court had not seen or heard the accused and the very careful findings and reasons for these findings. The court had powers to interfere with the sentence for an offence under s 394 but not convict and sentence the respondents for an offence under s 302 of the Penal Code.

Res Judicata

In the Malaysian case of Sambasivam v PP [1950] AC 458, the appellant was tried on 2 March 1949. The trial was before a judge and two assessors. The appellant was tried on two charges under the Emergency Regulations of Malaysia for carrying a firearm and being in possession of 10 rounds of ammunition respectively. The judge and assessors found the appellant not guilty on the second charge. The judge disagreed with the not guilty verdict of the assessors on the first charge of carrying a firearm and ordered a retrial. Sambasivam was acquitted on the second charge. A retrial was ordered on the first charge. 

At the second trial, the prosecution inter alia, relied on a statement, alleged to have been made by the appellant, if accepted as the truth went to prove him guilty of the charge of being in possession of ammunition, of which he had been acquitted at the first trial, as clearly as it proved him guilty of the offence of carrying a firearm the subject of the second trial. At the retrial on 21 March, on the first charge the appellant was found guilty and sentenced to death. The Court of Appeal of Malaysia dismissed his appeal and the matter went up to the Privy Council. The Privy Council after stating: (p 478) 

… the weighing of evidence is essentially a matter for the trial court and it is not the practice of their Lordships’ Board, in the exercise of its criminal jurisdiction, to usurp this function or to interfere with a verdict reached after a satisfactory trial merely on the ground that evidence sufficient to permit of the verdict ought not to have prevailed, … 

did not depart from their practice. The difficulty of assessing evidence at a distance from the scene was recognised. Their Lordships then added and said: 

But there is one feature of the present case which must now be mentioned and which, though it bears directly on the weight to be accorded to the statement under discussion, involves an important principle of the criminal law to such an extent that, in the opinion of the Board, the conviction appealed from ought not to be allowed to stand. 

The Privy Council then spelt out the doctrine of res judicata: (p 479) 

The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that, it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata pro veritate accipitur is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other. [my emphasis]

India

The Supreme Court of India in Pritam Singh and anor v The State of Punjab 1956, AIR SC 415, followed Sambasivam’s case. The appellant had been acquitted of a charge under the Arms Act for possession of a revolver. There was a subsequent prosecution of the appellant for an offence under s 302 of the Penal Code. The possession of the revolver was a fact in issue in the second case which had to be established by the prosecution. 

The court held that the finding in the former trial on the issue of possession of the revolver constituted an estoppel against the prosecution not as a bar to the trial and conviction for a different offence, but as precluding the accepting of evidence to disturb the finding of fact. 

The Supreme Court of India following the decision of the Privy Council in Sambasivam’s case said: (p 422) 

The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of that revolver … . The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged.

That fact was found against the prosecution and having regard to the observations of Lord MacDermott quoted above (ie Sambasivam’s case) could not be proved against Pritam Singh Lohara in any further proceedings between the Crown and him. 

The Supreme Court of India then spelt out the duties of an appellate court in the following terms: (p 424) 

Both these witnesses were, after due consideration of the circumstances and the criticisms levelled against their evidence, believed by both the courts below and it is not for us to re-weigh or to re-appreciate their evidence and come to a contrary conclusion. Hearing the appeal on special leave, we should not lightly interfere with the appreciation of the evidence by the courts below and we do not see anything in the circumstance of this case which would compel us to do so. 

It would appear that the Court of Appeal in Singapore re-weighed and re-appreciated the evidence and came to a contrary conclusion after the trial judge had carefully weighed and appreciated the evidence of witnesses before him and given good reasons for his decision. 

The Supreme Court of India had occasion to refer to estoppel and autre fois acquit in Lalta and others v The State of UP AIR 1970 SC 1381, when it considered issue estoppel and autre fois acquit and said: (p 1383) 

The Indian Section 403 [which corresponds to s 239 of the Singapore CPC] embodies in statutory form the accepted English rule of autre fois acquit.

 

The question is whether where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of s 403(2), Criminal Procedure Code. The distinction between the principle of autre fois acquit and the rule as to issue-estoppel, in other words, the objection to the reception of evidence to prove an identical fact which has been the subject-matter of an earlier finding between the
same parties. 

It is useful to note how the murder case was presented at the trial stage in Singapore. Choo Han Teck J said: 

The learned Deputy Public Prosecutor … presented the case on the basis of s 300(c). The evidence does not seem to suggest otherwise. From Dr Tan, we know that the injury … stab wound no 2 was sufficient in the ordinary course of nature to cause death. The person who intentionally caused “stab wound no. 2” must, therefore, be guilty of murder. But the case is not that simple. 

After carefully considering the law and weighing the evidence, the learned judge spelt out his finding: 

I find that the general act intended by him was to cause stab wounds to Bock’s legs to prevent him from escaping. 

A finding was made on an issue of fact after a proper trial by a competent court. The finding constitutes an estoppel or res judicata against the prosecution. Issue estoppel was not raised before the Court of Appeal or before the High Court in Asok Kunar’s case.

Australia

An English case was cited by a distinguished Australian judge Dixon J in the Australian case of The King v Wilkes, 77 CLR 511. He said: (p 518) 

Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue-estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright, J in R v Ollis, (1900) 2 QB 758 which in effect I have adopted in the foregoing statements … . There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue-estoppel should not apply. Such rules are not to be confused with those of res judicata which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation. [my emphasis] 

The Court of Appeal in Singapore had before it a record of a finding by a court on the intention behind inflicting ‘stab wound no 2’. It was against the prosecution involving an important issue, namely ‘stab wound no 2’. It was raised again in the proceedings before it. The allegation by the prosecution that it was murder and not the lesser offence was inconsistent with the acquittal on the charge of murder in the proceedings before Choo Han Teck J. 

The ordinary rules of issue estoppel should have applied in the proceedings before the Court of Appeal. The court, however, convicted the respondents of murder, notwithstanding the judicial determination to the effect that there was no liability for murder. A new liability was substituted without a retrial. 

The High Court of Australia considered the validity of a conviction for rape after an acquittal for murder in the case of Marz v The Queen 96 CLR 62: (p 68–69) 

The question at issue was the validity of a conviction for rape after the accused had been acquitted on the charge of murdering the woman during the commission of the act.
 

In a unanimous judgment allowing the appeal of the accused, the High Court said:
 

“It is a negation in the alternative upon which, so long as the verdict stood in its entirety, the applicant was entitled to rely as creating an issue-estoppel against the Crown. He was entitled to rely upon it because when he pleaded not guilty to the indictment of murder the issues which were thereby joined between him and the Crown necessarily raised for determination the existence of the three elements we have mentioned and the verdict upon those issues must, for the reasons we have given, be taken to have affirmed the existence of the third and to have denied the existence of one or other of the other two elements. It is nothing to point that the verdict may have been the result of a misdirection of the judge and that owing to the misdirection the jury may have found the verdict without understanding or intending what as a matter of law is its necessary meaning or its legal consequences. The law which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the processes of reasoning by which the finding was reached in fact; it does not matter that the finding may be thought to be due to the jury having been put upon the wrong track by some direction of the presiding judge or to the jury having got on the wrong track unaided. It is enough that an issue or issues have been distinctly raised and found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other.” [my emphasis]

The Issue

When the respondents pleaded not guilty, the issues joined between the respondents and the prosecution necessarily raised for determination, the existence of the elements in s 300(c) of the Penal Code. The learned judge decided the absence of an element in s 300(c). 

At the highest, the prosecution could argue that the verdict may have been or was the result of a misdirection of the judge sitting alone as a judge of facts and law and that as a result of misdirecting himself on the law, a finding was made which as a matter of law should result in an order for a retrial, if issue estoppel is not accepted. 

Issue estoppel is not concerned with the correctness or incorrectness of the finding which amounts to an issue estoppel. The trial judge found as a fact that the stab wound was inflicted to prevent Bock from escaping. It was distinctly raised and found. In the subsequent litigation between the parties before the Court of Appeal, that finding of fact bound 
the parties.

Section 239 and Issue Estoppel

Section 239 of the Criminal Procedure Code does not preclude the application of this rule of issue estoppel. It was contended on behalf of the respondent that the decision of the Indian Court in Pritam Singh’s case, AIR 1956 SC 415 was based on the observations of the Judicial Committee in Sambasivam v Public Prosecutor, and that the decision in Pritam Singh’s case required reconsideration because the principle could have no application to India where the principle of autre fois acquit is covered by a statutory provision viz s 403, (our s 239 of Criminal Procedure Code) which must be taken to be exhaustive in character. The court did not accept this contention because it had already pointed out that s 403 of the Indian Criminal Procedure Code does not preclude the applicability of the rule of issue estoppel. The rule is in accordance with sound principle and supported by high authority.

When Issue Estoppel Arises

In Masud Khan v State of Uttar Pradesh, AIR 1974 SC the court spelt out when issue estoppel arises and said: 

Issue estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. … The principle of issue estoppel is simply this; that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law.
 

Supreme Court of America

The Supreme Court of America recognised the doctrine of collateral estoppel as an aspect of double jeopardy in Ashe v SWENSON 397 US 436 90 SCt 1189, 25L Ed 2D 469 (1970). In Ashe’s case four masked men armed with weapons robbed six men engaged in a poker game in the basement of a home. Three men were arrested while they were walking away not far from an abandoned car. The petitioner was arrested by another officer some distance away. He was charged with robbing an initial victim in the single multi-victim robbery. He was acquitted on the ground that he had not been present at the robbery, and could not subsequently be prosecuted on a charge of robbing the next victim. The collateral estoppel doctrine was recognised as an aspect of double jeopardy. The doctrine bars prosecution on a second offence where the defendant was previously acquitted on a factually related offence where that acquittal was based on a factual element that is also an essential element of the second offence. If the first prosecution results in an acquittal, collateral estoppel may bar a second prosecution on the related charge. 

The court said that the effect of the collateral estoppel doctrine is to prevent the prosecutor from ‘treating the first trial as no more than a dry run for a second prosecution’ on the related charge. Justice Stewart who delivered the opinion of the court said: 

“Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this court’s decision more than 50 years ago in United States v Oppenheimer, 242 US 85, 37 SCt 68, 61 L Ed 161 [1916]. As Justice Holmes put the matter in that case, “It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.” As a rule of federal law, therefore, ‘[i]t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of “mutuality” or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government’s evidence as a whole although not necessarily as to every link in the chain.’ [my emphasis] 

Touching on the application of the rule he added: 

The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame, and viewed with an eye to all the circumstances of the proceedings.” Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal. [my emphasis] 

Justice Stewart pointed out that the single rationally conceivable issue in dispute was whether the petitioner was one of the robbers. The single rationally conceivable issue in dispute at the trial before Justice Choo Han Teck was whether or not it was the simple case presented to him by the Deputy Public Prosecutor or whether ‘stab wound 
no. 2’ was inflicted to prevent Bock from escaping. 

The Singapore Court of Appeal in Lim’s case said: (p 37) 

… The trial judges, entire thesis would appear to be that was no intention to sever Bocks’ femoral vein, a case under section 300(c) was not made out. 

An issue of ultimate fact was determined by a valid and final judgment of Justice Choo Han Teck. The finding of fact cannot again be litigated between the same parties in any future litigation except as provided for in art 11(2) and subject to the principle issue estoppel and the plea in bar in s 239 of the CPC. Appellants and respondents are not in ‘jeopardy’ before an appellate court because it is not a ‘trial court’. Respondents are not ‘tried again’ as constitutionally defined in art 11(2). Final appellate courts review cases and disown an appetite to convict and sentence appellants and respondents.

Constitutional Guarantee

Justice Stewart further considered the question whether the corresponding constitutional guarantee in our art 11(2) which appears in the Fifth Amendment of the United States Constitution  (1791) in the following terms: 

… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; … 

and said: 

The ultimate question to be determined, then, in the light of Benton v Maryland, is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is. For whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to “run the gauntlet” a second time. 

Chief Justice Burger, however, dissenting said: 

The collateral estoppel concept – originally a product only of civil litigation – is a strange mutant as it is transformed to control this criminal case. In civil cases the doctrine was justified as conserving judicial resources as well as those of the parties to the actions and additionally as providing the finality needed to plan for the future. It ordinarily applies to parties on each side of the litigation who have the same interest as or who are identical with the parties in the initial litigation. Here the complainant in the second trial is not the same as in the first even though the State is a party in both cases. Very properly, in criminal cases, finality and conservation of private, public, and judicial resources are lesser values than in civil litigation. Also, courts which have applied the collateral concept to criminal actions would certainly not apply it to both parties, as is true in civil cases, ie, here, if Ashe had been convicted at the first trial, presumably no court would then hold that he was thereby foreclosed from litigating the identification issue at the second trial. 

But in Simpson v Florida 4031S, 384, 91 SCt, 1801, 29 L Ed 549 (1971), the court said that ‘mutuality’ is not an ingredient of the Ashe rule. The defendant’s conviction at his first trial (reversed on appeal for failure to instruct the jury on a lesser included offence) did not estop him from claiming that the State failed to prove his identity at the second trial.

England

Blackstone in his commentaries Book IV (1759 ed) said that the pleas of autrefois acquit and autrefois convict were grounded on the: (p 329) 

… universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.

In the English cases of Queen v Ollis (1900) 2 QB 758 the matter was put more simply. Wright J said: (p 768) 

The real question is whether this relevant evidence of the false pretence on July 5, or 6 ought to have been excluded on the ground that it was part of the evidence given for the prosecution at the former trial, at which the prisoner was charged with having obtained money from Ramsey on that false pretence, and was acquitted of that charge. 

Lord Morris in Connelly v Director of Public Prosecutor [1964] AC 1254 said that in his view both principle and authority establish the following principles: (p 1305) 

Apart from the principles of Lord Morris, Lord Hailsham in Reg v Humphrys [1977] AC 1 summarised the doctrine in so far as it applies in English law in a case where the prosecution was given leave to appeal on the following point of law of general interest namely: 

Where in a trial on indictment there is a single issue between prosecution and defence and the defendant is acquitted, is evidence tending to show that the defendant was guilty of that offence admissible in a subsequent prosecution of the defendant for perjury committed during the first trial?

Lord Hailsham summarised his long opinion as follows: (p 40) 

The universal maxim is enshrined in our Constitution as a fundamental right in art 11(2). Issue estoppel is a principle of law in Singapore. At the very least, the prosecution had a duty to draw the court’s attention to the doctrine of issue estoppel in criminal proceedings as spelt out by the House of Lords in Reg v Humphrys [1977] AC 1: (p 40)

The doctrine in criminal proceedings is aimed at the need to prevent double jeopardy and not at the need to effect finality in litigation. It is thus aimed at verdicts rather than issues, and though issues may sometimes be isolated and examined to see whether there has in fact been a danger of inconsistent verdicts and thus a double jeopardy (and where there is, the second prosecution is prohibited), where there is no such double jeopardy involved in the case the prosecution is not prohibited from adducing evidence or making assertions the incidental effect of which is to cast doubt on a previous verdict. [my emphasis]

Court’s Duty

His Lordship spelt out the duty of the court: (p 40) 

... it is the duty of the court to apply the double jeopardy rule against the Crown not as a matter of discretion but as a matter of law where it is satisfied in substance that all the prosecution is doing is trying to get behind the original verdict by re-trying the same evidence. But where the prosecution by calling additional evidence which it could not have had available using reasonable diligence at the time of the first trial is in substance as well as in form putting the accused in jeopardy not for the original alleged misdemeanour of which he has been acquitted (or convicted) but for his crime against justice committed by perjuring himself at the first trial, there is no double jeopardy and the prosecution is entitled to adduce the evidence and make the assertions necessary to achieve its purpose whether or not the effect is to give rise to the inference that the previous verdict of acquittal was insupportable, or the previous conviction and punishment right. [my emphasis]

Conclusion

The pleas of autrefois acquit and convict embodied in s 239 of the CPC do not depend on an issue being determined in an earlier trial but the result of that trial. The result of the trial before Choo Han Teck J is a verdict of acquittal. The acquittal was quashed by the Court of Appeal. The Court of Appeal was required by law to order a retrial, not convict the respondents and sentence them to death.

‘Issue estoppel’ has the effect of preventing the party estopped from calling evidence to show that the subject of the ‘issue estoppel’ is incorrect by calling evidence because there is no issue in the subsequent proceedings to which the evidence would be relevant. It is a particular application of the general rule of public policy that there should be finality in litigation.

 Issue estoppel applies in criminal law, modified by the distinctive character of criminal as compared with civil litigation, and does not recognise an appetite in appellate courts to convict and sentence appellants and respondents by final courts of appeal because there is no right of appeal from their decisions. The rule against double jeopardy as enacted in ss 239 and 240 of the CPC is part of our colonial heritage. The rule against double jeopardy as embodied in art 11(2) of the Constitution is a fundamental right and applies in circumstances where the pleas in ss 239 and 240 of the CPC are not available. The wider application is seen in the Indian, Australian and American cases and in the principles summarised by the House of Lords. 

It is submitted that art 11(2) of the Singapore Constitution requiring a retrial to be ordered by the Court of Appeal prevents the Court of Appeal from acting like a trial court to convict and impose a higher sentence. A trial court sentences an accused person, after convicting him in the sentencing phase of a trial after hearing submissions on mitigation. A trial court is subject to the provisions of s 239 of the CPC and must, where a retrial has been ordered, satisfy itself that a superior court has quashed the acquittal before trying the person before it when s 239 is pleaded. The big question that must be asked and answered is ‘Have the respondents in this case a right of appeal against the death sentence imposed by the Court of Appeal?’ 

KS Rajah, SC

Harry Elias Partnership

E-mail: ksrajah@harryelias.com.sg