COVID-19 and Singapore Criminal Law

Disclosure of Prosecution Witnesses’ Investigative Statements by Suang Wijaya

Under Singapore criminal law, the prosecution does not have a general duty to disclose the investigative statements of witnesses whom the prosecution calls to give evidence. This article argues that the law should be re-visited, especially in the light of increasing delays to trials caused by the on-going COVID-19 pandemic.

A. Introduction

A prosecution witness confidently asserts that the accused committed the alleged crime. The criminal lawyer questions the witness on details surrounding the alleged crime. The witness protests that he cannot remember. The lawyer then tries to probe the witness further. This is met with a vigorous objection from the prosecution. The trial Judge agrees with the prosecution that the lawyer should move on from this area as the witness has already stated that he cannot remember.

Subsequently in closing submissions, the prosecution argues that the witness is credible. It is entirely understandable, says the prosecution, that the witness cannot recall numerous details surrounding the alleged crime. It has been many years since the events in question, after all. What ultimately matters is that the witness has consistently and confidently stated that the accused committed the crime.

Any criminal defence lawyer would no doubt have encountered some variation of this scenario. The longer the time gap between the alleged crime and the trial, the more persuasive the argument that a prosecution witness is unable to provide a full account of his version of the facts because of a genuine lapse in memory, not because his testimony is false to begin with.

B. Effects of gap in time between disputed events and trial

For many if not most criminal matters in Singapore, the gap in time between alleged crime and trial is three years or more. In May 2020, the State Courts Judiciary informed the criminal Bar that there are pending trials whose first tranches commenced in 2018 or even before. What this means is that witnesses in these trials will continue testifying this year and beyond on events occurring as early as 2015 or even before. Even more concerning, the COVID-19 pandemic has resulted in numerous trials being postponed, many of them by more than half a year.

Delays in trials reduce the reliability of witness testimony. In Sandz Solutions (Singapore) Pte Ltd and others v Strategic Worldwide Assets Ltd and others [2014] 3 SLR 562 (“Sandz Solutions”), the Court of Appeal explains at [50] that “a witness’s ability to recollect the material events and the accuracy of his recollections are inversely proportional to the length of time that has elapsed from the occurrence of the events to his appearance on the witness stand [emphasis in bold underline mine]”. The Court explains that, among other things, passage of time can give rise to the following:

a. The longer the lapse in time, the more a witness forgets details of what happened (Sandz Solutions at [50]).

b. An honest witness may unconsciously or half-consciously use his imagination to fill in details of events (Sandz Solutions at [51]).

c. An honest witness may use his general knowledge about what is typical for events of a given type to “reconstruct” his recollection (Sandz Solutions at [52]).

d. An honest witness may use his later experiences or hindsight to colour his recollection of the events (Sandz Solutions at [53]).

e. An honest witness may become susceptible to suggestion and misinformation, including from a co-witness (Sandz Solutions at [54] to [55]).

An honest witness may therefore innocently “recollect” non-existent matters. A dishonest witness, on the other hand, may feign inability to recall crucial details to mask the fact that his entire version of events is a lie. The longer the passage of time, the more “forgivable” the gaps and infirmities in a witness’s testimony. This is so, even if the testimony is based on innocent recollection of non-existent matters or worse outright falsehood. It is obvious from this that the process of relying wholly or substantially on witnesses’ oral testimony on matters long past poses a real risk of miscarriage of justice.

For this reason, the Court in Sandz Solutions at [56] stresses the importance of assessing a witness’s oral testimony against the totality of the evidence, including contemporaneous objective evidence (Sandz Solutions at [56]). However, in many criminal cases, there is simply no contemporaneous objective evidence to speak of. The ultimate question for a trial Judge often comes down to: given there is no other evidence against which a prosecution witness’s testimony can be assessed, do gaps and infirmities in the testimony point to unreliability on the witness’s part, or are these gaps and infirmities “forgivable” on account of passage of time?

C. A prosecution witness’s previous investigative statements

Given the potential loss of liberty or even life that may follow from the trial Judge’s decision on this difficult question, surely a defence lawyer should be equipped with most if not all material that sheds light on the reliability of a prosecution witness’s recollection (or alleged recollection) of the facts. Especially important are a witness’s previous statements, in particular investigative statements given to law enforcement authorities. Investigative statements are taken very shortly after the lodging of a police complaint. Investigative statements, unlike other out-of-court statements such as the first information report (ie, the “police report”) or communications to family and friends, are often both contemporaneous and comprehensive. Investigative statements are therefore a valuable snapshot of a witness’s recollection (or alleged recollection) of facts at a point in time far closer to the disputed events than the trial. If the witness gives oral testimony that is inconsistent with the contents of his investigative statements, or the witness falsely claims that he is unable to recall facts, an application can be made under Section 147(1) of the Evidence Act (Cap 97, 1997 Rev Ed) (the “Evidence Act”) for leave to cross-examine the witness on his previous inconsistent statement, and his credit may then be impeached under Section 157(c) of the Evidence Act (see Public Prosecutor v Heah Lian Khin [2000] 2 SLR(R) 745 at [55]). If on the other hand the witness gives credible oral testimony that does not contradict his earlier statements, and the defence lawyer having sight of the witness’s investigative statements is satisfied that this is so, there would simply be no basis for the lawyer to make any application under Section 147 of the Evidence Act.

Disclosing a prosecution witness’s investigative statements to the accused surely advances the administration of justice.

D. Imposing a duty on the prosecution to disclose all prosecution witnesses’ investigative statements

Despite this, it is not currently the law that the prosecution has a duty to disclose, as a class, all investigative statements of a witness whom the prosecution calls to give evidence. The Court of Appeal in its recent decision in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984 (“Nabill”) has left open the issue of whether such a duty should be imposed on the prosecution. The current position is that the prosecution does not have a duty to disclose any statement of a prosecution witness which is neutral or adverse to the accused’s case (Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”) at [113]). Where the prosecution does not disclose such a statement to the accused, the initial burden is on the accused to satisfy the court that there are reasonable grounds for believing that undisclosed statement is favourable to the accused (Lee Siew Boon Winston v Public Prosecutor [2015] 4 SLR 1184 at [184(a) to (b)]). In practice, this initial burden is almost insurmountable.

I respectfully argue that it is now time for our courts to impose on the prosecution a common law duty to disclose, as a class, all investigative statements given by prosecution witnesses. I say this for the following reasons:

a. Given the already lengthy and (as a result of COVID-19) increasingly lengthier time gaps between disputed events and trials, there is a heightened need to guard against miscarriages of justice arising from passage of time. As I have mentioned, most investigative statements have the advantage of being both contemporaneous and They are valuable snapshots of a witness’s recollection (or alleged recollection) of events at a far earlier point in time. A defence lawyer must be allowed to take a witness to task if there are material inconsistencies between the witness’s oral testimony and his investigative statements. A defence lawyer should also be allowed to take the witness to task for gaps and infirmities in the witness’s investigative statements, as these are much less forgivable in the light of the statements’ closeness in time to the disputed events.

b. In Nabill at [39] to [42], the Court of Appeal imposed on the prosecution a duty to disclose, as a class, all investigative statements of witnesses whom the prosecution does not intend to call, and who may be expected to support or contradict the accused’s case is material respects (in short, “uncalled material witnesses”). One of the reasons given for the imposition of this duty is the fact that the prosecution may in good faith inadvertently fail to disclose investigative statements tending to support the accused’s case (Nabill at [44]). Clearly, this risk of inadvertent non-disclosure exists for all investigative statements, whether of uncalled material witnesses or of prosecution witnesses. In AOF v Public Prosecutor [2012] 3 SLR 34 (“AOF”), a case involving alleged rape, the prosecution initially refused to disclose any of the complainant’s investigative statements, even when invited to do so by the Court of Appeal (AOF at [99] to [100]). It later transpired that the undisclosed investigative statements contained troubling discrepancies with the complainant’s oral testimony and (AOF at [152]). The accused in AOF was eventually acquitted on the basis that the complainant’s evidence was not unusually convincing. AOF is therefore a concrete illustration of how a good faith non-disclosure of a prosecution witness’s investigative statement may give rise to a real risk of miscarriage of justice. Such a risk cannot be tolerated.

c. In Nabill, another reason given for imposing a duty to disclose investigative statements of uncalled material witnesses was that, even if these statements do not contain material that directly advances the accused’s case, they are nevertheless of assistance to the accused in a broader sense (Nabill at [45] to [47]). A prosecution witness’s investigative statements, like those of an uncalled material witness, will usually be helpful to an accused person even if their contents are neutral or adverse. First, passage of time erodes an accused’s memory as much as it does other witnesses’. A prosecution witness’s investigative statements may jog the accused’s memory on facts or events which may not directly advance the accused’s case, but which may nevertheless be important for the accused. Secondly, such statements give an accused advance notice of the details of a prosecution witness’s likely evidence-in-chief. This allows the accused and his defence lawyer adequate time to make full preparations for challenging the witness’s testimony in cross-examination. In this regard, the Case for the Prosecution served during the Criminal Case Disclosure Conference (“CCDC”) process is woefully inadequate. During CCDC, the prosecution is only required to furnish a “summary of facts in support of the charge” (Section 162(1)(b) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (the “CPC”)). In practice, the first time an accused (and his defence lawyer) hears the granular detail of a complainant’s allegations is not during CCDC, but on the first day of trial when the complainant gives evidence-in-chief.

d. There can be no convincing objection to the imposition of such a duty. First, there is no evidence that witnesses are less likely to come forward if their statements are made available to accused persons. First information reports (ie, “police reports”) are routinely admitted into evidence in criminal trials. Since the Court of Appeal’s 2011 decision in Kadar, witness statements have been disclosed to accused persons if their contents tend to advance the defence case. Now, Nabill requires disclosure of all investigative statements of uncalled material witnesses. There is nothing to suggest that these disclosure obligations have deterred complainants or other witnesses from coming forward. Secondly, there is little basis to suggest that an accused will “tailor” his defence after having sight of a prosecution witness’s investigative statement. The scope for such “tailoring” of defence will be limited, given that the accused will have already given multiple statements to law enforcement authorities at the outset of investigations, often without access to legal advice. Thirdly, this duty will not impose an onerous burden on the prosecution or the law enforcement authorities.

e. Any concern of a floodgate of frivolous Section 147 applications is overstated. Accused persons (and their defence lawyers) do themselves no credit by taking out baseless applications. If such applications are taken out and dismissed by the trial Judge, this will likely harm the accused’s case as the trial Judge will have seen that the prosecution witness has given previous statements consistent with his oral testimony.

f. Such a duty is permitted by Section 6 of the CPC, which gives the courts broad powers to adopt “such procedure as the justice of the case may require”, so long as the procedure is consistent with the CPC or other law.

Most major common law jurisdictions have moved towards imposing such a duty on the prosecution:

a. In England and Wales, the common law rule was that the prosecution was obliged to disclose previous statements of prosecuting witnesses (R v Brown [1998] AC 367 at 376H). This common law rule has been narrowed by Section 3(1)(a) of the Criminal Procedure and Investigations Act 1996 (United Kingdom) (“CPIA”), which requires the prosecution only to disclose material which “might reasonably be considered capable of undermining the case for the prosecution… or of assisting the case for the accused”. However, it should be noted that the Attorney-General’s current position is that the material that will likely contain information meeting the Section 3(1)(a) test for disclosure includes “[a]ny previous accounts made by a complainant or any other witnesses” and “[i]nterview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects)” (Attorney General’s Guidelines on Disclosure issued in 2018 (“Attorney General’s Guidelines”), at [74(e) and (f)]). The Attorney-General has advised prosecutors to apply a “presumption that this material should be disclosed to the defence” (Attorney General’s Guidelines at [75]).

b. In Canada, the prosecution has a duty to disclose all relevant information, including witness statements, whether they are inculpatory or exculpatory (R v Stinchcombe [1991] 3 SCR 326 at 343 to 344).

c. In Australia, most states have enacted legislation requiring the prosecution to disclose all prosecution witnesses’ investigative statements (see Section 41(1)(d)(iv) of the Criminal Procedure Act 2009 (Victoria), Section 183(2)(a) of the Criminal Procedure Act 1986 (New South Wales), Section 590AH(e)(i) of the Criminal Code Act 1899 (Queensland), Section 42(1)(a) of the Criminal Procedure Act 2004 (Western Australia)).

d. New Zealand has similarly enacted legislation requiring the prosecution to disclose all prosecution witnesses’ investigative statements (see Section 13(3)(a) of the Criminal Disclosure Act 2008 (New Zealand)).

E. Conclusion

The following passage in the United States Supreme Court decision of Jencks v United States 353 US 657 (1956) at 667 eloquently expresses how passage of time can cause miscarriage of justice, and why it is vital that an accused obtains access to a prosecution witness’s previous statements:

“Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in the emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony”.

[emphasis in bold underline mine]

It is hoped that our courts will soon plug this gap in our criminal law, and pronounce a common law duty to disclose prosecution witnesses’ investigative statements.