Prosecutorial Disclosure in Singapore – Explained

20 December 2020

Disclosure of Evidence in Criminal Proceedings

1. Introduction

In the wake of the recent parliamentary speech made by Leader of the Opposition, Mr Pritam Singh, on Motion on Singapore’s Justice System, touching on the Prosecution’s duty of disclosure and propose that its common law disclosure obligations be codified in the Criminal Procedure Code, Mr Singh spoke on the significant cases of 2020, including Public Prosecutor v Wee Teong Boo [2020] SGCA 56 (“Wee Teong Boo”), which stated:

…the Court of Appeal ruled that the Prosecution did not make available to the Defence, documents that would have established clear and material inconsistencies in the Prosecution’s evidence. The Court of Appeal decided that the delay in disclosing one document in particular prejudiced Dr Wee, even as the Prosecution ran the argument that the document in question was irrelevant to the case.

In Wee Teong Boo, the Court of Appeal restated the Prosecution’s obligation to disclose material as this can assist the Court in determining the truth. The court reminded the Prosecution of its overarching duty of fairness, in addition to a duty to the Court and the public to ensure that only the guilty are convicted.

To this, Minister for Home Affairs and Minister for Law, Mr K Shanmugam responded In Response to Parliamentary Motion on the Criminal Justice System:

…we are going to put it out in statute – what is appropriate what is fair, how do you framework it, which are the cases and principles you take in. It is being discussed with various stakeholders.

In light of the foregoing, Suang Wijaya was approached by Lianhe Zaobao for his views on the Singapore legal framework governing disclosure in criminal proceedings.

2. What Are the Obligations for the Defence and the Prosecutor in Disclosure of Evidence?

The Defence generally does not owe an obligation to disclose any evidence. This is consistent with the accused’s right to remain silent at trial.

As for the Prosecution, there are broadly three legally binding frameworks for disclosure:

a. Under the Criminal Case Disclosure Conference (“CCDC”) framework, subject to certain conditions being met, the Prosecution must disclose the following evidence:- (a) the accused’s investigation statements; and (b) exhibits (such as documents, CCTV footage, items of crime, etc), that the Prosecution intends to rely on at trial against the accused.

b. Under Muhammad bin Kadar and another v PP, the Prosecution must disclose any evidence that may support the accused’s case or weaken the Prosecution’s case.

c. Under Muhammad Nabill bin Mohd Fuad v PP, the Prosecution must disclose all previous investigation statements of witnesses, whom the Prosecution do not intend to call to testify at trial (“uncalled material witnesses”), and who are able to support or weaken the accused’s “story” of what happened.

The last point that the courts have not decided on is whether the Prosecution must disclose all previous investigation statements of witnesses whom the Prosecution intend to call to testify at trial (“Prosecution witnesses”).

3. How Does the CCDC Regime Work?

The CCDC judge will give the Prosecution timelines to make disclosure required under the CCDC framework to the Defence.

4. When Prosecution Must Disclose Evidence That May Be Favourable to the Defence’s Case or Unfavourable to the Prosecution’s Case

The Prosecution must disclose such evidence as soon as the Prosecution becomes aware that it is under an obligation to disclose such evidence.

Also read: The Extent of an Accused Person’s Right to Statements and Disclosure of Evidence in Criminal Proceedings: Are the Current Rules Fair?

5. When Prosecution Must Disclose Statements of Uncalled Material Witnesses to the Defence

In Nabill, the Prosecution must disclose such statements as soon as the Prosecution becomes aware that these uncalled witnesses are able to support or weaken the accused’s “story” of what happened.

6. The Limitations of the Current Disclosure Framework

The most significant limitation is that, currently, the Prosecution does not have a duty to disclose all investigation statements of Prosecution witnesses. The Prosecution only has a duty to disclose investigation statements of uncalled material witnesses.

Suang was quoted in Lianhe Zaobao as follows:

Often, only the Defence can fully appreciate whether Prosecution witnesses’ statements will be favourable to the Defence. There have also been some published cases in which the Prosecution has breached its disclosure duty under Kadar. Any breach, even if accidental, can potentially result in a serious miscarriage of justice. There should be a simple, clear-cut rule that says that the Prosecution must disclose all and any Prosecution witnesses’ investigations statements.