Prosecution’s duty to disclose unused witness statements thrown into question in drug trafficker’s appeal

“Where a witness has had a statement taken from him by the police or the CNB, and where the defence mounted by an accused person can be expected to be either confirmed or contradicted by that witness, is there a duty on the part of the Prosecution either to call that witness to testify, or to make available to the Defence copies of that witness’ statements?”

This troubling legal question arose during the hearing of an appeal by death-row convict Muhammad Nabill bin Mohd Fuad on Monday (19th August), where the Court of Appeal – comprising Chief Justice Sundaresh Menon, Judge of Appeal Judith Prakash and Judge of Appeal Steven Chong – has reserved judgment.

The court has also directed counsel for both parties – Mr Andre Jumabhoy and Ms Priscilla Chia for Nabill, and Deputy Public Prosecutor Lau Wing Yum for the Prosecution – to file further written submissions on the aforementioned question by 1st October 2019.

Nabill was arrested by officers from the Central Narcotics Bureau (CNB) as he was leaving his flat on 27th January 2016, together with his wife Mashitta and his friend Khairul.

The CNB officers searched the flat, where a box holding ziplock bags of diamorphine were found in a foldable wardrobe of the bedroom, save for one packet of diamorphine found on the bed. Contraband cigarettes and a red trolley bag containing cannabis were also found in the storeroom.

Nabill faced two charges of having in his possession 63.41g of diamorphine and 2,251.90g of cannabis respectively for the purposes of trafficking. After a 4-day trial in August last year, Judicial Commissioner Audrey Lim found him guilty of the charges and sentenced him to death in November last year.

On appeal, Nabill’s defence remained that the diamorphine and cannabis does not belong to him. In his statements to the CNB, he initially claimed that one Danish had brought the drugs to the flat, only to then subsequently claim that one Faizal was the person who brought those drugs instead while he was asleep.

Faizal had been arrested and kept in CNB’s custody while investigations were ongoing against him; CCTV footage retrieved from the lift as well as DNA evidence showed that Faizal did in fact brought the red trolley bag, containing diamorphine and cannabis, to the flat.

In relation to the red trolley bag, Nabill claimed that he had asked Faizal to retrieve it from his flat and Faizal obliged; at that point, he did not know that there were drugs inside the bag as Faizal assured him it contained contraband cigarettes.

Nabill also claimed that his cousin Sufian might have taken out the diamorphine from the red trolley bag and laid them on the bed, triggering an argument between him (Nabill) and Mashitta, such that he had to keep them away in a box and put it inside the wardrobe.

As to the presence of Nabill’s DNA on one of the diamorphine exhibits suggesting that he may have repacked the drugs, Mr Jumabhoy pointed out that the DNA from a CNB officer was found on it, and according to that officer, he could not recall if he had put his gloves or mask on when unpacking the exhibits for photographing.

By parity of reasoning, Mr Jumabhoy suggested that there could be other possible causes for the presence of Nabill’s DNA that does not point to his guilt.

Nabill’s lawyers at the trial below, as well as Mr Jumabhoy on appeal, had also argued that the unused statements of various witnesses recorded by CNB – such as those of Mashitta, Faizal and Sufian – should have been disclosed by the Prosecution, in accordance with the principles laid down by the Court of Appeal in the 2011 case of Muhammad bin Kadar v Public Prosecutor.

DPP Lau, in response, forcefully maintained the point that the Prosecution took a holistic assessment of the statements and were of the view that those statements would not be beneficial to the Defence.

The judges, however, were troubled by the fact that Nabill’s testimony about Faizal’s coming to retrieve the red trolley bag and his assurance, was not squarely challenged by the Prosecution, despite Faizal being in CNB’s custody and potentially being able to rebut Nabill’s testimony.

Justice Chong also pointed out that even if Faizal had been offered to the Defence as their witness, if the Defence could not have access to his statements to the CNB, it would have been difficult for the Defence to treat him as  a hostile witness and to undermine his credibility should his evidence become unfavourable to Nabill.