Apex court deliberates over impact of fresh psychiatric evidence on Nigerian’s drug trafficking conviction

Two additional judges join trio to review their previous decision; Court of Appeal to decide which side bears the burden of proving accused person's motive to lie

Three years ago, a Nigerian facing the death penalty and his legal team made legal history in Singapore, by successfully persuading the Court of Appeal to reopen a concluded criminal appeal and to review its own decision for the first time.

This was done on the basis that there was fresh psychiatric evidence suggesting that the court had occasioned a miscarriage of justice, by wrongly reversing the acquittal of 35-year-old Ilechukwu Uchechukwu Chukwudi on a capital charge of drug trafficking upon the Prosecution’s appeal.

As it turns out, the latest twist to the saga three years on may not yield a final answer to Ilechukwu’s guilt or innocence, when the Court of Appeal – with the original trio now flanked by two additional members – struggles with approaching the impact of the fresh evidence on Ilechukwu’s case, and even mulls over whether the Prosecution’s appeal should be reheard, shortly before the conclusion of the four-hour long review hearing on Friday (12th June).

About the case:

Ilechukwu arrived in Singapore on 13th November 2011, and had passed a luggage bag to one Hamidah binte Awang at a bus stop in Clarke Quay, which was eventually found to contain 1,963.3g of methamphetamine. The next morning, officers of the Central Narcotic Bureau arrested Ilechukwu in his hotel.

Ilechukwu told a number of lies in his various statements to the officers, which included a contemporaneous statement recorded in a pocket diary (“the pocketbook statement”), a cautioned statement and a long statement. At the trial, Justice Lee found that notwithstanding the lies, Ilechukwu had successfully rebutted the presumption of knowledge as to the nature of the drugs in the luggage, under section 18(2) of the Misuse of Drugs Act.

The Court of Appeal – comprising Judges of Appeal Chao Hick Tin (now Senior Judge), Andrew Phang and Tay Yong Kwang, in reversing the acquittal and finding Ilechukwu guilty of drug trafficking upon the Prosecution’s appeal in 2015, held that there were no innocent explanation for Ilechukwu’s lies which “tipped the scales”, that Justice Lee had erred in not drawing an adverse inference against Ilechukwu, and therefore the presumption had not been rebutted. The matter was then sent back to the trial judge for sentencing.

In the course of procuring psychiatric evidence for the purpose of Ilechukwu’s defence of diminished responsibility during sentencing, Mr Eugene Thuraisingam, who represented Ilechukwu from his trial right up to the review hearing, filed an application to the Court of Appeal for the Prosecution’s appeal to be reopened and reheard, relying on a psychiatric report issued by Dr Jaydip Sarkar, who was the Prosecution’s expert witness at the material time, which suggested an innocent explanation for Ilechukwu’s lies.

The Court of Appeal – comprising the same trio – allowed the application in part in August 2017, as Dr Sarkar’s report satisfy the requirements under the Kho Jabing test for reopening of concluded criminal appeals, and ordered that further psychiatric evidence to be received and explored further by the High Court, following which there will be a further hearing for the Court of Appeal to review its own decision. Four psychiatrists were called as expert witnesses to testify at the remitted hearing as a result; Dr Sarkar, Dr Ung Eng Khean and Dr Munidasa Winslow testified for Ilechukwu while Dr Christopher Cheok testified for the Prosecution.

Justice Lee, in a written judgment in July last year, found that Ilechukwu suffered from post-traumatic stress disorder following the massacre which occurred in his hometown Wukari at five years of age, and that while Ilechukwu did not suffer a fresh episode of PTSD upon arrest in 2011, he did suffer from certain post-traumatic stress symptoms (PTSS) during the recording of each of the three statements in which he lied. However, no findings were made by the judge as to how these symptoms had indirectly caused Ilechukwu to lie in his statements.

The review was originally scheduled to be heard on 25th March this year by the initial trio who found Ilechukwu guilty and subsequently reopened the appeal. However, two days before the scheduled hearing, the court had requested for further submissions on, among others, the issue as to who should bear the burden of proving the accused person’s motive of telling lies in a case where there is a rebuttable presumption for drug offences.

Owing to the complexities in this case as a result of these issues and the findings made by the trial judge, two additional members – Chief Justice Sundaresh Menon and Judge of Appeal Judith Prakash – joined the panel of initial trio to review the correctness of the apex court’s earlier decision against Ilechukwu.

The arguments made and the judges’ comments:

One of the key concerns raised by CJ Menon and Justice Phang centred on what Justice Lee meant, when he said “[he] was unable to make a finding” or “[he made] no findings” as to how PTSS had indirectly caused Ilechukwu to lie in his statements. Against this, Mr Thuraisingam – together with assisting counsel Ms Jerrie Tan, Mr Suang Wijaya and Mr Johannes Hadi – supported the Judge’s decision, pointing out that the experts themselves agreed that there is no direct link between PTSD and lying; at the very most there is a reasonable possibility that the symptoms caused Ilechukwu to lie in his statements.

Deputy Public Prosecutors Kristy Tan, Uni Khng and Zhou Yihong, on the other hand, launched a root-and-branch attack by criticising the evidence given by the Defence’s experts and certain parts of Justice Lee’s reasoning.

However, CJ Menon and Justice Phang pointed out to DPP Tan that the trial judge had found all four psychiatric experts to be honest and non-partisan. They also noted that Dr Sarkar had provided a clear articulation as to how the PTSS were likely to have led Ilechukwu to overestimate of [the] threat to his life, thus “prompt[ing] him to utter unsophisticated and blatant falsehoods in order to save his life”, whose opinion Dr Winslow and Dr Ung agreed.

Turning to the burden of proving the accused person’s motive of telling lies, Mr Thuraisingam argued that it falls squarely on the Prosecution, as the presumptions under the MDA, whether relating to possession or knowledge, are not general presumptions of “guilty until proven innocent” and therefore does not presume any other fact.

DPP Tan, in reply, submitted that there is no need for the Prosecution to prove that the lies were made out of realisation of guilt as the rebuttable presumptions themselves already presumed the element(s) required for there to be drug trafficking, and the only legal burden is therefore on the accused person to rebut the presumptions.

CJ Menon and Justice Phang, once again echoing each other, had to say that the trial judge, in acquitting Ilechukwu at first instance, had already taken into account the lies when finding that the presumptions had been rebutted. They remarked that they would be back to “square one” (i.e. the same position as that of the trial judge) once the psychiatric evidence is taken into account to show that it is possible Ilechukwu lied not out of realisation of guilt.

Towards the end of the hearing, Justice Chao and Justice Prakash asked for the parties’ opinion on how the court should approach the findings made by the Court of Appeal trio when it reversed Ilechukwu’s acquittal without the benefit of psychiatric evidence.

“If we think that the original Court of Appeal would not have decided the matter in the way it decided, should we just go back to square one and dismiss the [Prosecution’s] appeal, or set aside those findings and have a rehearing of the whole appeal?”

DPP Tan’s response was that the findings should not be lightly disturbed, but the court may nevertheless review those findings if the fresh evidence did impact them, and they would stand by the court’s decision should they order a rehearing of the Prosecution’s appeal.

Mr Thuraisingam, on the other hand, highlighted that the court is exercising its inherent power to correct a miscarriage of justice at the material time, and there were no compelling reasons for the appeal to be reheard at the present stage.

The Court of Appeal has reserved judgment and will give its decision on a date to be fixed.

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