Source: Wikipedia

The prosecution has an obligation to disclose accused persons’ statements to the defence if such statements could help the defence’s case or weaken that of the prosecution, the High Court ruled on Thursday (18 Mar).

District Judges Christopher Tan and Ng Peng Hong had, in separate instances, dismissed TOC chief editor Terry Xu and contributor Daniel Augustin De Costa’s applications to have the prosecution disclose their statements that were recorded under Section 22 of the Criminal Procedure Code (CPC).

The statements were taken during investigations regarding the case, which stemmed from a letter submitted to TOC by Mr De Costa.

In the letter published on TOC on 4 September 2018, Mr De Costa commented that there has been “multiple policy and foreign screw-ups, tampering of the Constitution, corruption at the highest echelons and apparent lack of respect from foreign powers” in Singapore “since the demise of founding father Lee Kuan Yew”.

Mr Xu and Mr De Costa were charged on 12 December under Section 499 of the Penal Code for criminal defamation, following investigations in Nov 2018.

In a written judgement released on Thursday, Chief Justice Sundaresh Menon ruled that while the district judges’ rulings had reached “the correct result” in his view, there was a “misapprehension” in terms of the term “unused material” in Muhammad bin Kadar v Public Prosecutor — the case that gave rise to what is known as ‘the Kadar obligation’.

The Kadar disclosure obligation, based on the Court of Appeal’s ruling in the namesake murder case, stipulates that the prosecution is legally bound to disclose two kinds of unused material, namely:

  • Unused material which is likely to be admissible and might reasonably be regarded as credible and relevant to either the guilt or innocence of the accused; and
  • Unused material which is likely to be inadmissible, but may open up a real (not fanciful) chance of pursuing a line of inquiry leading to material that is likely to be admissible, might reasonably be regarded as credible, and may be relevant in proving the guilt or innocence of the accused.

CJ Menon in his judgement on Thursday observed that based on the reasoning behind the decision in Kadar, used material would cover material that is part of the prosecution’s “affirmative” case instead of its “responsive” case.

The material cannot continue to be “in limbo” between the “used” and “unused” categories simply based on when the prosecution decides to confirm that such material will not be included in the prosecution’s responsive case, he said.

“Such a view would cut against the tenor of the disclosure obligations established in Kadar and would potentially denude the disclosure obligation of much of its significance,” the Chief Justice elaborated.

Judge Tan’s reasoning behind rejecting Section 22 statements being classified as “unused”, said CJ Menon, appeared to “tilt the balance in favour of the Prosecution’s interest in retaining the potential” to use the Section 22 statements for certain purposes.

Such purposes include cross-examination or impeaching defence witnesses, which may result in the defence being prevented from having “actual access” to evidence “that might potentially be important” to establish the accused person’s innocence.

Dismissing the application, however, CJ Menon opined that in the case at hand, the Kadar disclosure obligations had not been triggered, as there was no indication that the Section 22 statements would assist the defence’s case or weaken that of the prosecution.

“There was no material before me to cast doubt on the Prosecution’s assessment and its consequent assertion that the statements were not disclosable at this stage, and there was, therefore, no basis for displacing the working presumption that the Prosecution was in compliance with its obligations,” he reasoned.

CJ Menon also ruled that it was “difficult to consider whether injustice, much less material injustice” had taken place in the present case, as the criminal defamation proceedings are still at an early stage, particularly taking into account that the prosecution has not closed its case at this point.

Referencing the earlier “trial by ambush” arguments put forth by both Mr De Costa’s and Mr Xu’s lawyers, the Chief Justice said that he was “not convinced” that such would amount to any form of injustice, as anything relevant in their Section 22 statements would have concerned matters that were already known to both of them.

It would be, henceforth, be “unclear” as to how the prosecution’s withholding of their Section 22 statements would prejudice their case, said CJ Menon.

The Chief Justice also noted that the prosecution had confirmed that it will release the statements to Mr De Costa and Mr Xu in due course.

In the event that they are wrongly convicted as a result of their statements being withheld by the prosecution earlier, the two men could raise the issue at the appeal stage, he added.

There could even be a retrial if it is proven upon appeal that the prosecution’s withholding of Mr De Costa and Mr Xu’s Section 22 statements was due to the statements potentially being evidence that would “undoubtedly weigh against the Prosecution”, the Chief Justice added.

In general, however, an accused person’s statements may not necessarily fall under the category of “unused evidentiary material” within the ambit of the Kadar disclosure obligations, said CJ Menon.

He reiterated that such is because the accused person “would almost invariably have known of his earlier statements and would have known of the underlying facts that were or could have been covered in those statements”.

However, the Chief Justice stressed that there are exceptions to the above, such as in a situation where an accused person had suffered some form of memory loss due to a medical condition.

Decision of District Judges to dismiss De Costa’s previous applications failed to follow Court of Appeal’s ruling in Kadar: De Costa’s lawyer

Mr De Costa’s lawyer M Ravi argued in Feb that the District Judges’ rulings were made in contravention of the Court of Appeal’s decision in Kadar.

He submitted that the decision of the two District Judges who dismissed his client’s previous applications for the disclosure of his Section 22 statement was in breach of the stare decisis doctrine.

Under stare decisis, a lower court is bound to follow the principles used by a higher court when deciding cases with similar facts.

Mr Ravi highlighted Judge Tan’s reasoning in dismissing Mr De Costa’s first application, in which the judge stated that the accused’s statement cannot be affirmatively classified as unused “until after the accused has given his testimony” and it has been assessed that the statement is “not going to be used for cross-examination”.

“With respect, once an accused person’s statement was not adduced into evidence as part of the Prosecution’s case — that is, that it was not intended to be introduced as evidence throughout the process prior to the Prosecution closing its case — it would have already fallen into the category of “unused material” as set out in Kadar,” he submitted.

Prosecution ought to err on the side of disclosure, according to case law: Xu’s lawyers

Mr Xu’s lawyers, Remy Choo and Priscilla Chia argued that “the mere fact that the prosecution has not decided whether it will be relying on” Mr Xu’s Section 22 statement “should not exclude the statement from being considered an unused material”.

“Otherwise, there can potentially be a universe of unused material that will only be disclosed at the end of the trial on the basis that the Prosecution needs to continuously evaluate whether it may have to rely on the unused material, depending on developments at trial.

“This will prejudice accused persons, who will be prevented from relying on such materials for the conduct of their Defence,” they submitted.

Mr Xu’s lawyers argued in the alternative that even if the Court finds that the statement does not fall under the prosecution’s Kadar disclosure obligation, their client’s Section 22 statement ought to be disclosed pursuant to Section 6 of the CPC.

Background on criminal defamation case

Mr Xu and Mr De Costa were investigated on 20 November 2018 under Section 499 of the Penal Code, which states that “whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person”.

Both were subsequently charged on 12 December under the same Penal Code provision at State Courts the following day under Section 500 of the Penal Code for criminal defamation.

Mr De Costa was alleged to have sent an email titled “PAP MP apologises to SDP” on 4 September 2018 from [email protected], with the intention of having the contents of that email to be published on TOC using the pseudonym of “Willy Sum”.

Mr De Costa was additionally charged for committing an offence under the Computer Misuse Act of Singapore.

The offending article was taken down under the orders of IMDA on 18 Sep 2018.

On 20 November 2018, the police seized electronic devices from Mr De Costa’s and Mr Xu’s respective residences under court orders.

Mr Xu was subjected to an eight-hour interview with the police on the day itself, while Mr De Costa was interviewed at a later date.

Under Section 500 of the Penal Code, those found guilty of criminal defamation may be subject to a maximum sentence of two years’ imprisonment or a fine or both.

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