Prosecution’s failure to call material witnesses to rebut accused’s defence saves accused from death penalty

Prosecution’s failure to call material witnesses to rebut accused’s defence saves accused from death penalty

The Court of Appeal has overturned the conviction of a death-row inmate on two capital drug trafficking charges on Tuesday (31st March) morning, finding that the Prosecution’s failure to call material witnesses to rebut his defence effectively undermined their own case.

Instead, Muhammad Nabill bin Mohd Fuad will only have to spend 8 years in prison for a single charge of possession of 63.41g of diamorphine simpliciter, the imprisonment term being backdated to his remand on 27th January 2016.

His appeal against the drug trafficking charges, which concerned the same amount of diamorphine and 2,251.90g of cannabis respectively, was heard in August last year and judgment was reserved.

In reserving judgment then, the Court of Appeal – comprising Chief Justice Sundaresh Menon, Judge of Appeal Judith Prakash and Judge of Appeal Steven Chong – had directed the parties to file further submissions on the following question:

“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?”

Nabill, who was a methamphetamine addict, lived together with his wife Mashitta, his cousin Sufian and a domestic helper in his flat at the material time. His supply of methamphetamine originated from his friend, one Faizal. On the night before Nabill’s arrest, Faizal brought a red trolley bag to the flat, which was placed in the storeroom by the helper while Nabill was apparently asleep and had no knowledge of such.

Nabill’s account was that on the next day, he saw several packets of diamorphine laid out on the bed in the bedroom occupied by Sufian, as well as the red trolley bag (which he thought contained cigarettes) in the storeroom. He asked Faizal and Sufian to come to his flat and “clear the stuff” and both men agreed. Later that night, Nabill was arrested by the officers from the Central Narcotics Bureau (CNB), who seized the diamorphine from the wardrobe in the bedroom and the red trolley bag containing cannabis, as well as forty cartons of cigarettes.

Nabill was convicted and sentenced to death on both charges by Judicial Commissioner Audrey Lim in November 2018, after she disbelieved his account and find that he was not a mere courier. She also disagreed with the Defence’s contention that statements recorded from Mashitta, Sufian, Faizal and the helper by the CNB should have been disclosed by the Prosecution to the Defence.

As CJ Menon took 20 minutes to read out his oral summary of the judgment, Nabill’s family and relatives present at the gallery were elated at the outcome of Nabill no longer facing the death penalty.

In essence, the Court of Appeal agreed with the parties that the Prosecution is under an obligation to disclose a material witness’ statements, i.e. witnesses that can be expected to confirm or contradict an accused person’s defence, and such obligations continued all the way until the proceedings against an accused person (including appeals) had been disposed of.

The court also held that while there was no legal duty on the part of Prosecution to call material witnesses, there may be circumstances where the failure on the Prosecution’s part to call such witnesses might mean that it has failed to discharge its evidential burden to rebut an accused person’s defence.

The Prosecution would not need to call such witnesses if there were other evidence it could rely on, or the accused person’s case was patently or inherently incredible to begin with.

In Nabill’s case, the Prosecution’s failure to call Faizal and Sufian as witnesses despite both men being in CNB’s custody, meant that Nabill’s account was effectively unrebutted, and that he had rebutted the presumptions under the Misuse of Drugs Act (presumption of trafficking under section 17 in relation to the diamorphine, and presumption of knowledge under s 18(2) in relation to the cannabis).

Nabill’s DNA found on the diamorphine packets can also be reasonably explained by two other possibilities: firsly, that he had placed the diamorphine packets laid out on the bed into the box which he then placed in the wardrobe.

One of the officers handling the drugs at that time, though wearing gloves, might not have been wear a mask at that time, giving rise to his DNA spotted on the drugs; by parity of reasoning, Nabill’s saliva could also have spreaded to the diamorphine packets as his contemporaneous statements were recorded there.

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