Beruflich Dokumente
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INSTRUCTIONS
- When a client instructs you, determine whether he is to plead guilty or claim trial to the allegation (charge)
against him.
- Client to be advised that he has a choice to plead guilty or claim trial to charge.
- If client chooses to plead guilty he should be advised of the punishment sentence. While court is not possible
to inform precisely what sentence he would receive, reference should be made to past precedents and
sentencing trends of the Courts so that client can have an idea of what kind of punishment he can expect.
- NEVER promise client what punishment he will receive.
Admission of queen’s counsel
- If accused wants QC admite to bar to defend him, to make application under section 21.1 LPA
- 3 stage test to satisfy
case contains issues of law and or fact of sufficient diff and complexity to req elucidation and/or
arg by QC – this does not in itself guarantee admission
persuad court tt circusmtnaces of case warrant court exg discretion in favour of admission
crim cases – section 21(1A) LPA – additional reqt – special reasons for admission eg isues of
constit significance
PREPARATION
1) Pleading Guilty
a. Make representations prior to plea, asking for either withdrawal, reduction of charges or asking for less charge
to be proceeded with.
b. Representations based on client’s instructions and personal circumstances, including offering an explanation
for why client did as alleged.
d) Accused has a right to have his defence properly and effectively placed before the Court. It is an integral part
of the Accused’s right to a fair trial.
Advising client on legal position, i.e., whether defence recognized in law
Ethics in Litigation: Issues raised by the Legal Profesion (Professional Conduct) Rules, 1998
o overriding principle to be applied to all circumstances of legal practice. This principle now
finds itself expressed in the LP (PC) Rules as the obligation ‘to maintain the rule of law and
assist in the administration of justice
o fundamental principle that an advocate and solicitor must represent his client to the best of his
ability12 and to endeavour to do his utmost in this respect13 subject to the obligations arising
from his role as an officer of the court14 is formulated by Rule 54 of the LP (PC) Rules
necessarily limited by his position as an officer of the court, which raises a separate set of
obligations relating to the system of justice as a whole
- Duty not to deceive or mislead
o Confidentiality: advocate and solicitor is under no duty to disclose to the court any convictions
which are not on record before the court, or to point out any errors or omissions in the record,
if such disclosure ‘would be to his client’s detriment’.
o See PR notes for ruless in general
e) If Counsel need to use information obtained from co-Accused which he acquired when dealing with the case,
Counsel should apply to discharge himself from acting for both Defendants.
Seet Melvin v The Law Society of Singapore [1995] 2 SLR 323 –
o charged with three others – prior to hearing other cld not speak eng, used seet as interpreter. Ie
counel receiving instructions fr both at same time. Prior to trial, allegations surfaced (after PI
– some coinfklicting evid). Counsel decided to discharge Melvin seet. All the accused persons
convicted
o held:
o (2) The issue of conflict of duties required the court to examine whether, by acting for Tan
and making such submissions as he did against his former client Seet, real mischief and real
prejudice resulted. Since T was not privy to any confidential information in relation to Seet’s
proposed line of defence, no real mischief or prejudice was occasioned.
o (3) Thangaveloo’s duty was to act in Tan’s best interests. He only owed a residual duty to
Seet, and this was the duty to respect the confidence reposed in him in relation to whatever
information had been gleaned from Seet during his period of retainer. There was nothing in
Thangaveloo’s submissions to indicate a breach of the duty of confidentiality or a
contravention of the rules of professional privilege.
o (5) Counsel had absolute control over the conduct of the case on his client’s behalf, and
unless it could be shown that he had acted contrary to his client’s interests, an allegation of
misconduct would be difficult to sustain. On the facts, there was no indication that T acted
contrary to Tan’s instructions, or made the submissions with the intent to mislead the court.
o
“Protection of Confidential Information Acquired from a Former Client: Are Chinese Walls
Adequate? [1999] 11 SACLJ 444 – see PR notes
TRIAL
- as Defence Counsel, you must put to the Prosecution witnesses every aspect of the Accused’s case
- a failure to do so will be treated as an acceptance of the Prosecution’s version, and you will not be allowed
in your closing submissions to attack the prosecution’s evidence or to put your client’s case. ‘Putting your
case’ means putting your client’s version of the disputed facts to the witness.
- Browne v. Dunn [1893] 6 R 67, HL: if you intend to impeach a witness you are bound, whilst he is in the
box, to give him an opportunity of making any explanation which is open to him; is essential to fair play and
fair dealing with the witness
• Lord Halsbury: “My Lords, I have always understood that it you intend to impeach a witness you are
bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to
him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is
essential to fair play and fair dealing with the witness.”
• Lord Hershell LC: … it seems to me to be absolutely essential to the proper conduct of a cause, where
it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his
attention to the fact by some questions put in cross-examination showing that that imputation is
intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged,
and then, when it is impossible for him to explain, as perhaps he might have been able to do if such
questions had been put to him, the circumstances which it is suggested indicate that the story he tells
ought not to be believed, to argue that he is a witness unworthy of credit. … it will not do to impeach
the credibility of a witness upon a matter on which he has not had any opportunity of giving an
explanation by reason of there having been no suggestion whatever in the course of the case that his
story is not accepted.
- R v. Bircham [1972]:
• On appeal to Court of Appeal (Criminal Division), it was held that it was unfair to F to suggest at a late
stage in the trial that he had done the stabbing
• If it had been put to him when he gave evidence he could have dealt with the suggestion, and his
counsel could have cross-examined B as to his record
• The conduct of counsel for B was wrong and it was the duty of the judge to intervene
• “Put” – positive evidence will be called to prove the matters put.
• “Suggest” – Assertions of witness inherently incredible, but no positive evidence will be called to contradict
the statement
- As noted in 10 Halsbury’s Laws of Singapore (2000) para 120.505: If the cross-examiner has adduced, or
intends to adduce, evidence, which in any respect contradicts the evidence of the witness being cross-
examined, he should put the contradictory facts to the witness so that the evidence of the witness is put in
contention (officially challenged), and the latter is given the opportunity to respond. If the cross-examiner
fails to put his case to the witness, the court is free to regard the witness’s evidence as undisputed regardless
of the nature of the cross-examiner’s case.
- It may be further noted that r 60(g) of the Legal Profession (Professional Conduct) Rules states: An
advocate and solicitor when conducting proceedings in Court — shall not by assertion in a speech make an
allegation against a witness whom he had an opportunity to cross-examine unless in cross-examination he
has given the witness an opportunity to answer the allegation …
- The ‘rule’ in Browne v Dunn is well-established as a flexible rule of practice. The mere failure to cross-
examine does not necessarily mean that adverse inferences will be drawn against the defaulting party: Liza
bte Ismail v PP [1997] 2 SLR 454. See also Wong Swee Chin v PP [1981] 1 MLJ 212; O’Connell v Adams
[1973] Crim LR 113, where it was held that there was no rule of evidence that a trier of fact must believe the
evidence of a witness merely because it was unchallenged.
Notes
- As for the extent to which a party should put it to a witness that his evidence is not accepted, Whitley J in
Velayuthan v R [1935] MLJ 277 held that it was not necessary to conduct the cross-examination in detail,
and that a few questions would generally suffice. Cf PP v Abdul Naser bin Amer Hamsah [1997] 1 SLR 73,
at p 383 below.
Notes
- A failure by the defence to put material aspects of its own case (as opposed to attacking the prosecution’s
case) to the prosecution witnesses during cross-examination may invite an inference of ‘recent fabrication’,
thereby undermining the credibility of its case: Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209; Ng
Chye Meng v PP [1994] 2 SLR 809; Gay Yun Lin v PP [1999] 1 SLR 547; Sim Yew Thong v Thomas Ng Loy
Nam [2000] 4 SLR 193.
- It is relevant to note that in the above cases where the Court drew an adverse inference of ‘recent
fabrication’ against the accused persons, they were all represented at the trial by counsel. Where an accused
is unrepresented, the rule in Browne v Dunn will probably not be applied too strictly against him. Being
unversed in the rules of criminal procedure, it would not be appropriate to expect a lay person to appreciate
the significance of the rule.
- Nevertheless, a failure on the part of the defence to put its case can never, by itself, relieve the prosecution
of its duty of establishing the charge against the accused beyond any reasonable doubt: Alcontara a/l
Ambross Anthony v PP [1996] 1 MLJ 209. In his article ‘Putting and Suggesting in Cross-examination’
[1984] MLJ xi (at pp xiii to xiv), Shankar J made the following observations in relation to a scenario where
the defence had failed to put its own case to prosecution witnesses during cross-examination: … it is an
inflexible rule that in the absence of any statutory provision to the contrary, the onus of proof is always upon
the prosecution and never shifts. It must follow from this that failure to cross-examine cannot result in a
reversal of the onus of proof. …… failure to cross-examine whilst the prosecution case is in progress will
not help the prosecution if at the close of its case its version of the facts is inherently incredible or for some
other reason does not amount to proof beyond all reasonable doubt of all the ingredients necessary to sustain
a conviction.
Notes
- The High Court accepted that a failure to cross-examine a witness may be remedied by recalling that witness
for questioning, especially where such omission had been inadvertent, following Reid v Kerr [1974] 9 SASR
367 and R v Wilson [1977] Crim LR 553. Although the trial judge had the discretion to do so under s 399 of
the Criminal Procedure Code (Cap 68, 1985 Ed), this discretion is to be exercised sparingly: see Mohammad
Ali bin Mohd Noor v PP [1996] 3 SLR 276.
e) Before an Accused is asked to enter a defence, the Prosecution must establish a prima facie case against the
Accused – S. 189(1) CPC
i. The Defence is then entitled to make a submission that the Prosecution has not proved its case beyond
reasonable doubt.
The landmark case with regards to his area of the law is Haw Tua Tau v PP [1981] 2 MLJ 49
Prosecution must first establish a prima facie case against the accused. Briefly, at the close of the
prosecution’s case, the trial judge will have to decide if there is some evidence (not inherently
incredible), which, if accepted as accurate, would establish each essential element in the charge.
Haw Tua Tau v PP [1981] 2 MLJ 49.
o Lord Diplock at p 52: At the conclusion of the prosecution`s case what has to be decided
remains a question of law only. As decider of law, the judge must consider whether there is
some evidence (not inherently incredible) which, if he were to accept it as accurate, would
establish each essential element in the alleged offence. If such evidence as respects any of
those essential elements is lacking, then, and then only, is he justified in finding `that no case
against the accused has been made out which if unrebutted would warrant his conviction`,
within the meaning of s 188(1). Where he has not so found, he must call upon the accused to
enter upon his defence, and as decider of fact must keep an open mind as to the accuracy of
any of the prosecution`s witnesses until the defence has tendered such evidence, if any, by the
accused or other witnesses as it may want to call and counsel on both sides have addressed to
the judge such arguments and comments on the evidence as they may wish to advance.
o Under s 189(1) of the CPC, at the close of the case for the prosecution, the court has to decide
whether the prosecution has made out a case, which, if unrebutted, would warrant a conviction
of the accused. In deciding this question or issue, the court ought not to consider whether the
possession has proved the guilt of the accused beyond a reasonable doubt.
o Lord Diplock said [in relation to s 189(1) CPC] at p 51: The crucial words in s [189(1)CPC]
are the words `if unrebutted`, which make the question that the court has to ask itself a purely
hypothetical one. The prosecution makes out a case against the accused by adducing evidence
of primary facts. It is to such evidence that the words `if unrebutted` refer. What they mean is
that for the purpose of reaching the decision called for by s [189(1) CPC] the court must act
on the presumptions (a) that all such evidence of primary fact is true, unless it is inherently so
incredible that no reasonable person would accept it as being true; and (b) that there will be
nothing to displace those inferences as to further facts or to the state of mind of the accused
which would reasonably be drawn from the primary facts in the absence of any further
explanation.
o evaluate whether shd make the submission
o court may inform u tt don’t want to hear submission or that it wants to hear ur submission – if the
latter – then to work on the inconsistencies etc and show tt chage nt proven
ii. The Prosecution can reply to this under Section 181 (c) CPC - person conducting Prosecution shall
have the right of reply on the whole case if the Accused or his advocate has summed up his case.
– The Judge must assess the veracity and accuracy of the evidence and consider whether the
Prosecution has proved the guilt of the Accused beyond reasonable doubt.
– Jagatheesan s/o Krishnasamy v PP [2006] SGHC 129 –
o Prosecution’s Case against accused for drug trafficking based solely on accomplice’s
testimony implicating accused.
– Sim Ah Cheoh v PP [1991] 2 MLJ 353
o At the close of the Prosecution’s case, the Trial Judge will have to decide whether there is
some evidence (not inherently incredible) which, if accepted as accurate, would establish
each essential element in the charge.
o Held - In a criminal trial there were two critical stages at which the court had to make a
decision. At the close of the prosecution case the court had to decide whether the
prosecution had made out a case, which if unrebutted, would warrant a conviction of the
accused. In deciding this question or issue, the court ought not to consider whether the
prosecution had proved the guilt of the accused beyond a reasonable doubt. At that stage,
what the court had to decide was whether the evidence adduced, which was not
inherently incredible and which, if accepted as accurate, would establish each essential
element in the alleged offence. If the court so decided it must call for the defence. At that
stage the court must keep an open mind about the veracity and accuracy of the evidence.
After the defence had been called the court must proceed to examine the evidence
adduced, assess the veracity and accuracy thereof and consider whether the prosecution
had proved the guilt of the accused beyond a reasonable doubt.
iii. In determining whether a prima facie case has been made out, regard must be given to Section 189 (1)
CPC –when case for the Prosecution is concluded, the Court, if it find that no case against the Accused
has been made which if unrebutted would warrant his conviction, shall record an order of acquittal or, if
it does not so find, shall call on the Accused to enter his defence.
– • Ng Theng Shuang v PP [1995] 2 SLR 36 – minimum evaluation of the evidence
– • PP v Sng Siew Ngoh [1996] 1 SLR 143
o The respondent Sng was charged voluntarily causing grievous hurt to the victim by
poking her eyes with his fingers, resulting in the permanent privation of her sight in the
right eye and for voluntarily causing hurt by biting and kicking the victim, as well as
spraying insecticide into her eyes. The district judge acquitted and discharged Sng for
want of a prima facie case. The prosecution appealed, arguing that the trial judge erred in:
(a) not admitting the statement of the victim; (b) failing to consider the evidence of the
eye specialist; and (c) failing to apply the proper test to determine whether there was a
prima facie case.
o Held, allowing the appeal:
• (1) Section 147 of the Evidence Act (Cap 97, 1990 Ed) (‘the Act’) provided a
general scheme governing cross-examination on previous statements. There was
thus no conflict between s 147(3) and s 122 of the Act as the latter made
reference to it. The victim’s statement could thus to relied on for the truth of the
facts contained in it.
• (2) In determining whether a prima facie case was made out, regard must be
had to s 189(1) of the Criminal Procedure Code (Cap 68) (CPC). It was
necessary to consider whether the evidence adduced of the primary facts at the
end of the prosecution’s case was so inherently incredible that no reasonable
person could believe it. In this case, the trial judge failed to apply the test
properly to the evidence of the eye specialist. That being the case, the elements
of the offence had been made out, and the evidence of the prosecution was such
that, if unrebutted, justified a conviction. Appeal allowed
– A failure to adduce evidence only affecting accuracy of evidence is not fatal to the Prosecution’s
case
o Public Prosecutor v Manit Wangjaisuk [1995] 1 SLR 326
• The respondent Manit and three others were jointly tried for murder committed
in the course of a gang robbery under s 396 of the Penal Code (Cap 224). The
case against the four accused was based primarily on statements made to the
police by Manit’s co-accused (the first, second and fourth accused). At the close
of the prosecution’s case, the trial judge held that the prosecution failed to make
out a case against Manit because the statements did not positively identify
Manit as one of the perpetrators of the offence. The judge held further that there
was no other evidence which sufficiently incriminated Manit in respect of the
charge against him. Accordingly, Manit was discharged and acquitted without
calling on his defence. The prosecution appealed, arguing that the statements by
Manit’s co-accused identified him as an accomplice, and that there existed other
evidence showing Manit’s involvement in the offence.
• Held allowing the appeal: (1) On the facts, the cautioned statements of the
second and fourth accused identified Manit as an accomplice in the offence.
Furthermore, there existed other evidence which showed his involvement.
Manit himself was identified by the fourth accused from photographs shown to
the latter by the police. The investigating officer’s failure to describe or produce
in court the photographs in question was a factor which affected only the
accuracy of the identification evidence.
– Similarly, the mere presence of discrepancies in the Prosecution case cannot, per se render its case
manifestly unreliable. What has to be considered is whether the inconsistencies are sufficiently
fundamental to nullify that part of the evidence which supports the charge.
o PP v Annamalai Pillai Jayanthi [1998] 2 SLR 165
• The accused was charged with abetting one Janice Marissa Hogan (Janice) to
employ one Santhi who allegedly acted in contravention of s 6(1) of the
Immigration Act (Cap 133). The district judge acquitted the accused at the close
of the prosecution’s case as the prosecution failed to adduce any evidence of
Santhi’s contravention of s 6(1) of the Immigration Act and that the evidence
adduced of the accused’s aid to Janice to employ Santhi was manifestly
unreliable, being full of contradictions and inconsistencies. On appeal, the
prosecution conceded that there was no evidence that Santhi contravened s 6(1)
of the Immigration Act but contended that the evidence of the accused’s
abetment of Janice’s employment of Santhi was not manifestly unreliable and
that the charge ought to have been amended to one of abetting by intentionally
aiding Janice to employ Santhi without a valid work permit contrary to s 5(1) of
the Employment of Foreign Workers Act (EFWA).
• Held, allowing the appeal: (1) The mere presence of several discrepancies in
the prosecution’s case could not, per se, render its case manifestly unreliable. It
was incumbent upon the trial judge to consider whether the inconsistencies were
sufficiently fundamental to nullify that part of the evidence which supported the
charge. (2) There was nothing to suggest that the evidence which was directly
relevant to whether the accused assisted Janice in her employment of Santhi had
been totally discredited in cross-examination, nor that other evidence had
rendered this part of the evidence completely unreliable. The discrepancies were
not material to the core question of whether the accused assisted Janice in
securing Santhi’s employment. They related only to the credibility of each
witness’ evidence, which was relevant only at the end of the entire case, when
all the evidence was to be assessed by the trier of fact.
– Read, “The Persistent Problem of the Prosecutor’s Prima Facie Burden”,[1997] 9 SACLJ 388,
Michael Hor
o problem of the prosecutor’s prima facie burden is likely to persist at two levels. Although
the minimum evaluation rule is the law in Singapore and Malaysia, the jurisprudential
debate concerning the choice between it and proof beyond reasonable doubt is likely to
continue, as the core of the difference of views is rooted in different conceptions of the
value of innocence and of the relationship between the State and the Individual. More
practically, we are slowly coming to the realisation that “minimum evaluation” is not a
pre-ordained standard, but a fluid one which may possibly encompass many levels of
scrutiny. There appears to be no reason to use different tests for direct and circumstantial
evidence, but what exactly is the proper level of scrutiny is a question which bears no
easy answer.
– The court has to consider the weight of the evidence. Discrepancies between Prosecution
witnesses’ testimonies will be considered, whether such discrepancies are material. Sarjit Singh
Rapati v PP [2005] 1 SLR 638
– Similarly, when at the close of the Prosecutor’s case, there are inconsistencies in witness’s
evidence, trial judge will have to consider whether mere presence of inconsistencies render
prosecution case manifestly unreliable. It will be incumbent upon Trial Judge to consider whether
inconsistencies sufficiently fundamental to nullify part of the evidence supporting the charge. See
PP v Annamalai Pillai Jayanthi [1998] 2 SLR 165.
– The totality of the Prosecution evidence must be considered:
f) calling of defence
- When Defence is called, Accused must be warned of Section 196 (2) CPC – “ … the Court, in determining
whether the Accused is guilty of the offence charged, may draw such inferences from the refusal as appear
proper.”
- 2 options: ->>
a. Accused can elect to remain silent
• An accused person may decide to remain silent when he is called upon to enter his defence: Section 122(3)
of the EA and Rule 79 Professional Conduct Rules.
– However before you advice your client, you must be satisfied that Prosecution has not proved their
case and that you have advised client to bring the matter to appeal.
– 1. Must never advise client to remain silent unless you are completely satisfied that Prosecution
has failed to prove the charge both in law and fact and you can support your argument(s) on
Appeal, despite the court’s ruling on the evidence.
o U must be satisfied that pros case is impossible
• Eg material witness not called
• Discrepancy in identification
• Inconsistencies
• And despite all this, court calls on u – u can then advise accused to be silent
– 2. Further, if you are satisfied, supported by medical evidence, that the Accused will not be able to
give evidence on his behalf.
o Get report etc and can present early to prosecution to review charge
– Whichever course you advise, the FINAL decision must be the client’s and/or his family, if he
is unable to give a decision himself.
• But lawyer has to a duty to explain to the accused that his failure to give evidence may result in adverse
inferences being drawn against him. Section 196(2) of the CPC
Pointer: should put the advice to the client in writing, as well as his election to remain silent, otherwise
he may deny it later.
• It does not necessarily mean that if an accused elects to remain silent, and does not call any evidence, a
conviction is inevitable.
• If the accused elects to remain silent and not call any evidence, the defence is entitled to make a submission
that the Prosecution has not proved its case beyond a reasonable doubt. The Prosecution has a right to reply
to the defence’s submission: Section 181(c), 191 CPC.
Addresses.
181. In summary trials under this Chapter —
(c) the officer or other person conducting the prosecution shall have the right of reply on the whole case if the
accused or his advocate has summed up his case.
Reply.
191. In all cases the counsel for the Public Prosecutor shall have the right to reply on the whole case, whether
the accused adduces evidence or not
• At this stage, the trial judge must proceed to examine all the evidence adduced at the trial, assess the
veracity and accuracy of the evidence and consider whether the prosecution has proved the guilt of the
accused beyond a reasonable doubt.
- If accused elects to give evidence, he or his counsel may state the facts or law on which he intends to rely
and make such comments as he thinks necessary on the evidence for the prosecution: s. 181 CPC
- Accused’s evidence shall be taken before that of other witnesses for the defence (s. 180(k)(ii) CPC) and he
may be cross-examined on behalf of any other person who is accused with him (s.180(k)(iii) CPC) before
the prosecution does so
- Accused may apply to the court to issue any process for compelling the attendance of any witness
- Court shall issue the process unless it considers that the application should be refused on the ground that it is
made for the purpose of vexation or delay or for defeating the ends of justice, in which case that ground
shall be recorded by the court in writing: s. 180(m)(i) CPC
- Defence’s responsibility to apply to the Chambers’ Magistrate at the Crime Registry of the Sub Courts for
issue of summonses to witnesses before the trial
• If the accused elects to give evidence, he must do so under oath or affirmation, and he must give evidence
from the witness box. An accused is not entitled to make any statement without being sworn or affirmed:
Section 196(1) CPC. Statements from the dock are not regarded as evidence.
• Before calling any evidence on behalf of an accused, the defence may make an opening speech stating the
facts or law on which the defence intends to rely, and may even criticise the Prosecution’s evidence: Section
181(b), 190(1) CPC.
Addresses.
181. In summary trials under this Chapter —
(b) when the accused is called upon to enter on his defence, he or his advocate may before producing his
evidence open his case stating the facts or law on which he intends to rely and making such comments as he
thinks necessary on the evidence for the prosecution, and if the accused gives evidence or witnesses are
examined on his behalf may sum up his case; and
Defence.
190. —(1) The accused or his advocate may then open his case, stating the facts or law on which he intends to
rely and making such comments as he thinks necessary on the evidence for the prosecution.
• Accused will be called to give evidence before any other witnesses and he must be told the effect if he
refuses to be sworn or affirmed: Section 180(k)(i) of the CPC (Subordinate Courts); Section 189(2) of the
CPC (High Court).
Defence.
190. —(3) If any accused person elects to be called as a witness, his evidence shall be taken before that of
other witnesses for the defence.
• Upon completion of his EIC, the Prosecution will cross-examine the accused, followed by a re-examination
of the accused by the defence Counsel. Re-examination is confined to matters raised in the cross-
examination, and defence Counsel is not allowed to raise any new matters without the leave of court. If such
leave is granted, the court will normally grant leave to the Prosecution to cross-examine on these new
matters as well: Section 140 of the EA.
(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not
be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if
new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-
examine upon that matter.
(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for
further cross-examination, and if it does so, the parties have the right of further cross-examination and re-
examination respectively.
Note:
Never ask the client a question to which you do not know the answer during the trial
Do not re-examine if there is no need to
Never re-examine unless you are clear as to what you want to achieve.
If the case is stood down for lunch in the middle of the EIC or cross examination NEVER HAVE LUNCH
WITH THE CLIENT as if the two of you are seen together having lunch and talking it may give the
impression to the Prosecution that you are coaching the witness.
• Where there are more than one accused, the accused is also liable to be cross-examined by Counsel for the
co-accused. Counsel for the co-accused will cross-examine the accused immediately after the EIC of the
accused. This is followed by cross-examination of the Prosecution, and re-examination by the Defence
Counsel.
o • The accused cannot refuse to answer any question unless he is entitled to refuse to answer
question byvirtue of section 122(4) of the Evidence Act or on the ground of privilege (see
CPC, s 196(4)).
– •The accused will then call his witnesses to testify who may be cross-examined by the prosecution and
reexamined by the accused.
– • When the accused has produced his evidence, he may make a closing submission or address concerning the
issues and the evidence. The prosecution would respond with its own submission.
– • If the defence wishes to address the court on a matter arising from the prosecution’s closing submission, he
should apply to the court for leave. The court may grant leave if it believes that this would be in the interest
of justice.
– •The court will record an order of acquittal if the accused is found not guilty and pass sentence if it convicts
him.
General points
– • If any of your witnesses cannot speak English, you should write to the trial court to inform that you require
the assistance of an interpreter for the trial. This is crucial for foreign interpreters.
– • If you are not sure whether your witness would be willing to turn up, you should apply at the Crime
Registry for a Summons to A Witness to be issued against that witness. A fee of $1 is payable at the
Crime Registry for every summons that is issued. A court process server will serve the summons on the
witness.
– • If the evidence comprises documents, you must make sure you have at least four copies of each
document: one (the original) for the court, one for the prosecution, one for the witness and one for yourself.
– • In criminal cases, documentary exhibits are tendered individually unlike in civil cases where the
documents are bound in a bundle. (unless court otherwise directs)
– • Please be punctual. If for some reason you will be late (say) you are held up in another Court, please call
the Court Officer to inform that you will be late and why.
– • There is a strict policy of no adjournments of trials in the absence of good reasons e.g. illness. If you or
your witness is unwell, a properly endorsed medical certificate in strict compliance with para 135 (Pt XV) of
the Subordinate Courts Practice Directions 2006 must be tendered.
Exhibits
– • Exhibits are marked in a sequential manner starting of with the charge(s) so that if there are two charges
they would be marked P1 and P2 and the first exhibit tendered would be P3 and so on.
– • Conditioned statements are marked sequentially as PS1, PS2 and so on.
– • With regard to witnesses, they are referred to by PW (prosecution witness) and DW (defence witness).
Numbers are assigned in ascending order in the sequence in which they are called.
– • In the case of a trial within a trial, the letter ‘T’ is included so that the prosecution witnesses will be
referred to as PWT1 and so on and the defence witnesses be DWT1 and so on.
Voir dire
– • Voir dire (trial within a trial) is necessary in order to determine the admissibility of the accused’s statement
if its voluntariness is in issue.
– • The trial within a trial is a separate proceeding within the trial. The evidence to be adduced at this separate
proceeding must relate only to the admissibility of the statement and, further, such evidence cannot be used
at the main trial.
– • An accused person has no right to examine witnesses or take any other role in a voir dire which concerns
thevoluntariness of a co-accused’s confession, even if the confession is used as evidence against the former
(Jasbir Singh v PP; Panya Martmontree).
d. Whatever the accused decides to do, it is still open to the defence to call witnesses on behalf of the accused to
give evidence.
ACCUSED’S DEFENCE
- Do not create a Defence for the Accused. The Defence must be based on client’s instructions and on facts
presented by client.
Alibi evidence
– Leave:
– • May not be adduced or relied on without the Court’s leave unless, before the end of the prescribed
period, notice is given to Prosecution prior to the commencement of the trial – Section 155 CPC (High
Court), Section 182 (1) CPC (Subordinate Courts)
– • Prescribed Period s182(1)
o High Court – 14 days after end of proceedings before Magistrate.
- only substantial difference between the procedure in HC and Sub Courts is in the definition of
“prescribed period”
• in HC: s. 155(9) CPC “prescribed period” means the period of 14 days from the end of the
proceedings before the examining Magistrate
• in Sub Courts: s. 182(9) CPC “prescribed period” means the period of 14 days from the
end of the proceedings before the Magistrate on the occasion that the accused is charged in
court for the first time with the offence in respect of which he is raising the defence of an alibi
- assertion that an accused was not at the scene of the crime, and could not remember where he was, was
evidence of denial only and not “evidence in support of an alibi”: Panya Martmontree & Ors [1995] 3 SLR
341 CA
• The four appellants were convicted under s 396 of the Penal Code (Cap 224) of murdering two
persons in the course of gang robbery. The only material evidence against them comprised the
statements of the first, second and fourth appellants. The third appellant argued that he could not
remember where he was, and that he could not to be implicated by the other appellants’ statements.
• Para 60 The next issue to be considered is the evidence of the third appellant that he was not in
Singapore during the material times. There was some question whether this amounted to evidence
in support of an alibi, or that it was simply a denial. If it was the former, leave of the court would
have been required under s 155(1) of the CPC as no notice had been given to the prosecution
within the prescribed period. At trial, it was held that the third appellant was simply saying that he
was not in Singapore. He did not know where he was so this was not evidence in support of an
alibi and thus did not require notice to be given under s 155(1) of the CPC. If this were all, then on
the plain words of s 155(9) which defines the phrase ‘evidence in support of an alibi’, this holding
was correct. Section 155(9) reads: ‘[E]vidence in support of an alibi’ means evidence tending to
show that by reason of the presence of the accused at a particular place or in a particular area at a
particular time he was not, or was unlikely to have been, at the place where the offence is alleged
to have been committed at the time of its alleged commission … .
• Para 61 If an accused does not remember that he was at a particular place or in a particular area
at a particular time, then that evidence would not be evidence in support of an alibi. The learned
judge agreed with that distinction as drawn in Vasan Singh v PP. He found that the third appellant’s
claim, relying on his passport, that he was not in Singapore was a denial only.
• Held: The third appellant’s defence that he was not in Singapore at the time, and could not
remember where he was, was evidence of denial only and not evidence in support of an alibi. The
judge was correct in regarding the passport as unreliable evidence in support of that denial.
• The Court has a discretion as to whether or not to allow the evidence to be adduced in the absence of
appropriate notice.
Criminal Procedure, Tan Yock Lin, Vol 2 Chapter XV, para 3451 & 3451.1
• “There is no automatic exclusion if no notice is given as prescribed. But where no notice has been given as
prescribed, leave of the court must be obtained to adduce the alibi evidence.1 Leave of court is also
necessary notwithstanding a notice but where the notice is a prescribed sense defective; First, where the
notice did not give the name and address of the alibi witness and the court is not satisfied that the accused,
before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name
and address would be ascertained; second, where after the accused subsequently discovered the missing
name or address or received other information which might be of material assistance in finding the witness,
he failed forthwith to give notice of his discovery; third, where after notification by the Public Prosecutor to
him of the inability to trace his alibi witness by the name or at the address given, he failed to give notice of
any such information which is then in his possession or of any such information which subsequently came
into his possession.2 But the court shall not refuse leave if it appears that no advocate has been instructed to
act for the accused at any time prior to the trial and if it is satisfied that the accused was not aware of the
provisions of Section 155 or 182, as the case may be.3
• In Singapore, the exercise of the court’s discretion to give leave to adduce alibi evidence despite the absence
of such a notice has been exhibited in several recent cases. Guided by the principle that verification of the
1
In PP v Kadir bin Awang [1989] 2 MLJ 33 no notice of alibi was served and as the DPP did not object to
the admissibility of the accused’s alibi evidence, the court allowed the evidence to be given by the accused.
2
Section 155(2)(b), (c), (d) & Section 182(2)(b), (c), (d)
3
Section 155(8) and Section 182(8). Note that if the PP or any investigating officer interviews an alibi
witness, the accused or his advocate has a right to be present.
accused’s alibi is the principle purpose of the alibi notice,4 the court will certainly deny leave in the case of a
deliberate attempt to subvert the notice requirement. Short of that, the accused’s explanation for the failure
to give the requisite notice may be crucial. If he claims that he omitted to give notice because he was unsure
of the willingness of his alibi witnesses to testify on his behalf, he will seldom succeed in obtaining
indulgence from the court. The reason is the simple one that he can always subpoena witnesses who are
competent to give evidence on his behalf. Certainly, an explanation of this sounds very lame when the
accused knew of the identity of the witnesses and of their whereabouts.5 However, leave applications tend to
be favourably regarded when alibi witnesses were unknown to the accused and their identities could not at
the relevant time have been discovered by him or his legal adviser acting with due diligence. The
seriousness of the charge is another factor to take into consideration when giving or denying leave to give
alibi evidence despite the absence of a notice.6 Leave to give alibi evidence is usually granted where the
accused himself desires to give the alibi evidence. The reason is that there is no danger of overrating his
evidence since he will also have to explain why he made no mention of his alibi evidence at the time of the
charge.7 But it does not follow at all that if the accused is given leave to give his own alibi evidence, he must
also be given leave to call alibi witnesses other than himself. The trial judge has an independent discretion
under Section 182(2) whether to allow other alibi witnesses to give evidence.8
- purpose of notice is to enable Prosecution to verify the accused’s account so that hey are able to challenge
the accused’s version of event if it is appropriate: Lee Choon Chee v Public Prosecutor [1996] 1 SLR 264
o The primary purpose of the statutory requirement of an alibi notice is to enable the prosecution to
verify the accused’s account so that the Prosecution is able to challenge the accused’s version of
the events if it is appropriate to do so. There may well be circumstances where it would not be
possible to provide the information at all or to do so within the prescribed period.
o Therefore, there remains a judicial discretion to allow alibi evidence to be adduced even when the
statutory provision has not been complied with. This discretion has to be exercised judiciously,
based on the facts and circumstances of each particular case.
4
Lee Choon Chee v PP [1996] 1 SLR 264 at 268.
5
Lee Choon Chee v PP [1996] 1 SLR 264 at 268.
6
Panya Martmontree v PP [1995] 3 SLR 317 at 357.
7
Panya Martmontree v PP [1995] 3 SLR 317 at 357.
8
Lee Choon Chee v PP [1996] 1 SLR 264 at 269.
• See Section 155(2) CPC and Garmaz s/o Pakhar v PP [1995] 3 SLR 703 for what the notice of alibi should
include.
Notice of alibi.
155. —(2) Without prejudice to subsection (1), on any such trial the accused shall not without the leave of the
court call any other person to give such evidence unless —
(a) the notice under subsection (1) includes the name and address of the witness or, if the name or address is
not known to the accused at the time he gives the notice, any information in his possession which might be of
material assistance in finding the witness;
(b) if the name or the address is not included in that notice, the court is satisfied that the accused, before giving
the notice, took and thereafter continued to take all reasonable steps to secure that the name or address would
be ascertained;
(c) if the name or the address is not included in that notice, but the accused subsequently discovers the name
or address or receives other information which might be of material assistance in finding the witness, he
forthwith gives notice of the name, address or other information, as the case may be; and
(d) if the accused is notified by, or on behalf of, the Public Prosecutor that the witness has not been traced by
the name or at the address given, he forthwith gives notice of any such information which is then in his
possession or, on subsequently receiving any such information, forthwith gives notice of it.
• Preferably, should interview all alibi witnesses before giving the Alibi Notice to the Prosecution.
- s. 155(4) CPC: any notice purporting to be given under this section on behalf of the accused by his advocate
shall, unless the contrary is proved, be deemed to be given with the authority of the accused
– • Notice cannot be retrieved. Notice may amount to a previous inconsistent statement against the
Accused which the Prosecution is entitled to use in its case.
• R v Bridgen [1973] Crim. L.R. 579
• R v Rossborough (1985) 81 Cr. App.R. 139.
• Syed Abdul Mutalip bin Syed Sidek and Anor v PP [2002] 2 SLR 405
– Procedure to follow:
o 1. record statement of client
o 2. interview witness
o 3. record statement fr tt witness and affirm fact so tt aibi evid relevant and useful for defece.
If not relevant, then don’t use
• warn the witness that he MUST have been with him, not merely trying to help him with
no valid reason
o 4. get statutory declaration (sworn before commissioner for oaths) from the witness so that he later
cannot turn ard and object to the statement
• if he does can discredit him
– If Defence have witness(es) must decide whether to call. If witness can help Defence case, must call.
o Adverse inference can be drawn by Court for failure to call witness: Evidence Act, s.116
illustration (g).
– When witness/accused is on stand, u shld not confer with ur accused!! Ethics of the profession
– If want to spek to client, shld get leave of court – he is now at service to court
– Carry urself well – distance urself fr witness/accused during trial
IMPEACHMENT
- Note:
o Accused may not understand the implications – explain to him
o Always have in mind the possibility of impeachment – warn the accused first so that he is prepared
o Inevitably, the accused will not be able to remember everything he said then, but try to get as much
information as possible as to what he said to the IO – probe them.
Where witness gives oral evidence which is contrary to a previous statement made by the witness, the party
cross examining the witness may impeach the credit of that witness.
• Can impeach your own witness – Section 157, Evidence Act
impeachment is, however, not confined to the adverse party, you may, with the leave of the court, apply
to impeach your own witness: s. 157 EA
but this is very seldom done by the defence
PP v Tan Kim Seng Construction Pte Ltd & Anor [1997] 3 SLR 158.
- The first respondent TKSC was charged with employing foreign workers without a valid permit, contrary to
s 5(1) of the Employment of Foreign Workers Act (Cap 91A, 1991 Ed) (‘the Act’). The second respondent,
who was managing director of TKSC was charged with neglect in permitting TKSC to employ the said
workers contrary to s 5(6) of the Act. The foreign workers stated that obtained work from one Ang, whom
they considered as their ‘boss’ and who paid their salaries. Ang himself testified that he was merely TKSC’s
sub-contractor. This testimony contradicted his prior statement that he had employed the workers on TKSC’s
behalf. The magistrate disbelieved Ang, and held that the prosecution failed to prove the case beyond a
reasonable doubt. The prosecution appealed.
- Held –
o On the evidence, Ang’s credibility was correctly impeached. While Ang’s statement could have
been used for the truth of the facts stated, little weight should have been placed on it considering
the context of the inconsistent portions.
- The introduction of the prior inconsistent statement
- Para 22 This was a statement recorded in October 1995, about a year after the material time. The
magistrate found that the statement was only inconsistent in parts and only allowed those parts into
evidence. The statement, in so far as it was possibly inconsistent with Ang’s testimony in court, was as
follows:
- 1 I want to amend para 1 of my previous statement on 2 October 1995 because I remember the facts
wrongly. I did not recruit ‘Wei Seng’ to work at the construction site at Tampines but I had employed him to
work another construction site at Lorong M. Besides recruiting ‘Wei Seng’, I also recruited ‘Ah Bee’ to
work at the construction site at Lorong M somewhere in mid-October 1994. The construction site is located
at Telok Kurau and is used for the construction of one block of four-storey private housing. …
- 3 At the construction site at Lorong M, my employer, ‘Jin Chen’ [the second respondent] had
subcontracted painting works at the said site from Sum Keong Construction Pte Ltd. My employer, ‘Jin
Chen’ had a written contract with Sum Keong Construction Pte Ltd. For the subcontract painting works at
the construction site at Lorong M, ‘Jin Chen’ did not further subcontract the painting works to any other
company or to any other person(s). The entire contract for the painting works at the Lorong M construction
site is handled by Tan Kim Seng Pte Ltd ……
- 5 After ‘Wei Seng’ and ‘Ah Bee’ had started working for two to three days, I told my employer, ‘Jin
Chen’, that there were two Malaysians that wanted to work at the Lorong M site. ‘Jin Chen’ told me to let
them work first and if they are found suitable for the job, he would try to apply work permit for them. … …
- 11 My employer, ‘Jin Chen’, gave me the authority to employ Singaporean and Malaysian workers.
However, if I recruit Malaysian workers, I have to inform ‘Jin Chen’ within a few days of their recruitment.
‘Jin Chen’ would then make the final decision as to whether to employ them further. I do not need to inform
‘Jin Chen’ whenever I recruit Singaporean workers.
- 12 I admit recruiting ‘Wei Seng’ and ‘Ah Bee’ on the behalf of my employer, ‘Jin Chen’ to work as
painter at the construction site at Lorong M without any valid work permits. Both ‘Jin Chen’ and myself
were aware that ‘Wei Seng’ and ‘Ah Bee’ were Malaysians when they were employed to work as painters at
the construction site at Lorong M.
- The prosecution’s contention was in essence that¶3, 5, 11 and 12 were materially contradictory in that they
might indicate, through the reference to the second respondent as Ang’s employer, a relationship between
Ang and him, and thus between him and the workers. The magistrate however, thought that only¶5 and 12
contained material contradictions. This court accepted that these paragraphs were contradictory, but so
was¶11. The magistrate thought it was not because no evidence of authority had been given by Ang. Though
that was true, Ang’s testimony was that there was no relationship of employment, and that no consultation
was made about the employment of the workers. Paragraph 11 stated that Ang was so employed, and that
authority was conferred through that employment. There were thus two conflicting versions of events. They
could not exist alongside each other. Hence they were contradictory. But as found by the magistrate,¶3 was
not contradictory as it dealt only with the relationship between the second respondent and the main
contractor.
- Para 23 By virtue of s 157, Evidence Act (Cap 97, 1990 Ed), Ang’s credit could be impeached by the
prosecution using the prior inconsistent statement, provided there was consent of the court. Such
impeachment would require that the contradictions materially affected the witness’ credibility. It did not
necessarily however mean that the whole of the witness’ evidence was rejected: Garmaz s/o Pakhar & Anor
v PP [1995] 3 SLR 701. Here the contradictions concerned the precise nature of the relationship between
Ang and the second respondent. It hinged on the use of the term ‘employ’ by Ang in his statement. However,
no explanation was given by Ang which indicated that the term was used in any other sense. Ang also
explained that he had made the statement in respect of another period of employment, but, given the
specificity of the reference to Telok Kurau, this could not be true. In view of all of this, the contradictions
were material and affected Ang’s credibility as a witness.
- Para 24 In addition to the impeachment of Ang’s credit, the prosecution sought to use the prior statement
for the truth of the facts stated. The use of prior inconsistent statements for the truth of the facts stated was
approved by this court in PP v Sng Siew Ngoh [1996] 1 SLR 143. The statutory basis for it is s 147 of the
Evidence Act …. Ang accepted that he made the statement.
- Para 25 That statement could be used for the truth of the facts stated in regard to: (i) Ang’s labelling of
the relationship; and (ii) The control exerted over Ang. However, (i) was not relevant. Though Ang used
the term ‘employer’ in his statement, and the indications were that Ang knew of the implications of the term,
all that such use went to show was that Ang labelled the relationship between him and the second respondent
as employment. This was not enough. The prosecution had to prove beyond a reasonable doubt that in
substance the relationship was indeed one of employment.
- Para 26 The statement was only useful then as evidence of control by the second respondent. In weighing
the evidence, consideration was given to s 147(5) as noted by this court in PP v Sng Siew Ngoh , at p 157:
“The dangers of falsification and inaccuracy, to which all out of court, evidence is prone, are recognised and
highlighted. So long as these are borne in mind, there is nothing inherently wrong in admitting inconsistent
statements for the truth of the facts stated contained in them.”
- II Factors to be considered
- Para 27 The contemporaneity of a statement with an incident is important for it guards against inaccuracy.
However, the degree of contemporaneity that is required will vary with the facts in question. The
recollection of the details of particular events, particularly where these occur quickly, is easily susceptible to
error with time. However, the recollection of the existence of a relationship, such as of employment, is not
so malleable.
- Para 28 Subsection (5) refers as well to the possibility of misrepresentation by the maker of the statement.
There can be little guidance on this; the court must be astute in weeding out such instances.
- Para 29 In addition to the above matters, which are explicitly referred to, the weight to be accorded to a
prior inconsistent statement will be affected materially by an explanation of the inconsistency, and why that
statement is an inaccurate representation of the facts.
- Para 30 Regard should be had to the context of the statement. Subsection (5) does not restrict
consideration to only the making of the statement, but requires consideration of all the circumstances
affecting its accuracy. Thus, the court must consider the context of the inconsistent portions, which requires
that the whole of the statement be examined. Reliance cannot be placed on a portion of a statement that is
taken out of context. In practice, it is necessary for the defence to be given a copy of the whole statement, so
that counsel may assist the court in putting the portion used in context.
- Para 31 Finally, the cogency and coherence of the facts to be relied upon has to be noted. An ambivalent
statement does not attract much weight.
- III The weight that should be accorded
- Para 32 In this appeal consideration had to be had of all the factors above as they applied generally as
well as specifically to certain paragraphs. Taking all the inconsistent portions together first, it was noted that
the magistrate found that the circumstances warranted that little weight should be attached to the statement
as it was made about a year after the incident in question, and was not contemporaneous with the occurrence
of the events. However, whether Ang was an employee of the respondents was a fact which could not have
been affected by difficulties in recollection. It followed that the passage of a year after the relationship ended
before the making of the statement could not have affected its accuracy. And no allegation of
misrepresentation was raised by Ang, nor was there any evidence of it.
- Para 33 Ang offered an explanation that the statement was made in respect of another occasion. Since this
reference raised issues of similar fact evidence if it was true, the admission of the statement would have had
to be measured against the likelihood of prejudice against the accused persons. The initial consideration
though had to be whether the statement was in fact in relation to the events which were the subject matter of
the charge. The statement contained several references to the site being at Lorong M, and to the period being
October to December 1994. In view of this, Ang’s explanation could not be accepted. Ang attempted a
further explanation, saying that all that he had meant to say in the statement was that he had requested the
second respondent to get work permits for the workers as he himself could not do so. But this went against
the literal meaning of the statement that he gave, particularly in¶12.
- Para 34 Turning then to specific paragraphs, in 5 of the statement, Ang stated that he informed the second
respondent that he had two workers. Allegedly, the second respondent instructed that they were to be tried
out first, and that he would seek permits for them if found suitable. This could have indicated that the second
respondent had some control over the employment of the workers. However, it could not go so far, for it
could have equally indicated only that the second respondent would have been willing to apply for permits
on Ang’s behalf. That this may be an offence was irrelevant in this appeal.
- Para 35 As for¶11, that disclosed that Ang had authority from the second respondent to recruit workers. If
true, this showed that the second respondent, and hence the first respondents as well, exerted some control
over the activities of Ang. However, the weight to be placed on this part was very much reduced by the
context from which it was taken. The evidence in the rest of the statement indicated that Ang was the one
who paid the workers and supervised them. There was no indication in the statement that Ang’s supervision
was under the control of the respondents. Thus any authority Ang had to recruit was largely negatived by the
absence of any evidence that Ang’s supervision of the workers was ultimately subject to the respondents’
control.
- Para 36 In view of the circumstances affecting the statement as noted above, the weight to be accorded to
the inconsistent parts concerning the control exerted over Ang by the second respondent was minimal. It was
noted that the prosecution submitted in court that the magistrate had wrongly considered that the statement
did not record what Ang said because Ang was in his view an easily confused person. In view of the findings
above, this was immaterial.
• All that is required for a witness’s previous statement to be admitted under Section 147 Evidence Act, is for
it to be proved that the statement was in fact made by the witness.
• After the previous inconsistent statement is admitted, the conflicting versions must be carefully explained to
the accused (preferably by the court), and he must be given a fair and full opportunity to explain the
difference between his oral evidence in court and his previous statement. But the court is not obliged to
make its ruling as to the witness’ credibility at the end of the impeachment exercise (Somwang
Phatthanasaeng v PP [1982] 1 SLR 850, Loganatha Venkatesan & Ors v PP [2000] 3 SLR 677)
• All that is required is that the court must consider the discrepancies and the explanations proferred by the
witness for the purpose of an overall assessment of his credibility. (Loganatha Venkatesan & Ors v PP
[2000] 3 SLR 677).
o Held, dismissing the appeal:
o (1) The trial judge was not required to treat Ravichandran’s evidence with caution, even if
he was an accomplice. All that s 116 illustration (b) of the Evidence Act (Cap 97) said was
that an accomplice might be presumed to be unworthy of credit and that his evidence might be
treated with caution. Whether or not the presumption applied depended on the circumstances
of each case and it was open to the trial judge to accept an accomplice’s evidence if he found
that it was reliable.
o (2) On the evidence before the trial judge, he was entitled to find Ravichandran’s evidence
reliable and to accept it. Material aspects of Ravichandran’s evidence on the conspiracy were
not disputed or were corroborated. Apart from Ravichandran’s testimony, the circumstantial
evidence was also consistent with the existence of a conspiracy. Hence, the trial judge’s
finding of a conspiracy was wholly supportable.
o (3) The discrepancies in the evidence of the eyewitnesses of the attack were not material and
were obviously due to a difference in their perception of an unexpected fast moving incident.
They were not witnessing the attack at the same point in time and each saw a different part of
the attack from different angles commencing from different times. The trial judge did not err
in relying on their evidence.
o (4) Venkatesan’s and Chandran’s explanations for their presence at the scene of attack at
the material time were inherently incredible in the circumstances. The trial judge was correct
in rejecting their explanations.
o (5) As Julaiha was an accused person and not a mere witness, the use of her police
statements was governed by s 122(5) and not s 122(2) of the Criminal Procedure Code
(Cap 68, 1985 Rev Ed). Under s 122(5), there was no need for the Prosecution to apply to
court for permission to use the statements made by Julaiha, whether for cross-examination or
impeaching her credit, so long as the statements were made voluntarily.
o (6) When the credibility of a witness was sought to be impeached, there was no requirement
that the trial judge must, at any stage of the trial, make a ruling on whether the credit of the
witness was impeached. The court was only required to consider the discrepancies and the
explanation proffered by the witness for the purpose of an overall assessment of his
credibility. An impeachment of the witness’s credit did not automatically lead to a total
rejection of his evidence and the court remained under a duty to evaluate the evidence in its
entirety to determine which aspect of it should be accepted or disregarded.
- impeachment of a witness’s credit does not automatically lead to a total rejection of his evidence:
• Impeachment of credit goes to the weight of the evidence, not to admissibility — The court must
carefully scrutinise the whole of the evidence to determine which aspect might be true and which
should be disregarded. (PP v Mohammed Faizal Shah [1998] 1 SLR 333, Kwang Boon Keong
Peter v PP [1998] 2 SLR 592). The court is entitled to reject certain parts of his evidence, while
still accepting others (Garmaz s/o Pakhar & Anor v PP [1995] 3 SLR 701)
• Where there is inconsistency in testimony, the Court is entitled to accept one part of testimony and reject
another part: Yeo Kwan
- “Previous Inconsistent Statements: Scope of s.147(3) of Evidence Act and its Applicability where the
witness does not testify to the facts mentioned in his previous statement [2001] 13 SACLJ 1
- “Prior Inconsistent Statements: Fairness, Statutory Interpretation and the Future of Adversarial Justice
[2002] 14 SACLJ 248.
RECALL OF WITNESS
- see section 399 CPC – court can at any stage of inq, trial etc can call witness even thgouh not summonsed/
recall or reexamine any witness if nec to ans qn
o judge may alow this application at close of ur case
o NOT in the course of hearng
o Must finish witnesses first
- s. 180(1) CPC provides that an accused person shall be allowed to recall and cross-examine any witness
present in the court or it s precincts
- If the charge has been amended after the commencement of the trial, then Section 167 of the CPC states that
the accused and the prosecution shall be allowed to recall any witness with reference to the new or altered
charge.
Recall of witnesses when charge is framed or altered.
167. Whenever a charge is framed or altered by the court after the commencement of the trial, the prosecutor
and the accused shall be allowed to recall or resummon and examine with reference to the new or altered
charge any witness who may have been examined.
- In practice, the court will allow the defence to recall any witness (whether he is within the precincts of the
court or not) if it can be shown that there are good reasons to do so.
• The Prosecution cannot recall rebuttal evidence to merely confirm its case.
• It is open to the Defence to call evidence to poke holes in the Prosecutions evidence. The
Prosecution cannot be allowed to call rebuttal evidence merely because the Defence appeared to
have succeeded in doing so. It is unfair to the Defence.
• • Evidence Act Section 140 (4)
Final Submissions
- • After all witnesses for the defence have been called, the defence will close its case.
- • Submissions would be given either orally or written (usually written). – 2 wks given to prepare final
submissions
- • The submissions will include the law, the evidence and the facts.
- • Both Prosecution and Defence will be allowed to exchange their submissions. Both parties will be
allowed to reply to the other’s submission. This will be the final reply.
- At next sitting, may submit submission or make oral reply
- On day of hearing may then make decision – it depends on how judge wants to mange the case- CCM
- After all the Defence witnesses have given evidence, the Defence will close its case with a closing
submission. This would include submissions on law, evidence and facts. Defence Counsel will invariably
want to criticise the Prosecution’s case on the basis that the Prosecution failed to prove its case beyond a
reasonable doubt and that the accused is entitled to an acquittal.
- In the case of a joint trial, the closing submission of the Defence Counsel is followed by the closing
submission of Counsel for the co-accused. The Prosecution will submit thereafter.
- Defence Counsel may, with the leave of court, reply to the Prosecution’s submission.
- Closing address differs according to whether heard before a Magistrate, DJ, HC Judge or Appeal Judge.
- Adopt the discipline of keeping neat notes throughout the trial – all the Q & As, arguments for the other
side, interventions by the Bench, whether helpful or unhelpful to the Counsel’s cause.
- Note that your notes are always subject to the court’s record – guided by his records. Judge will record the
evidence in a language that is readable.
- Note that nowadays, submissions are in writing – need to exchange.
- The judge may interrupt Counsel with points that are troubling him/her, so Counsel must be prepared for a
dialogue and to deal with those points.
- There is no obligation on the part of the defence to call any evidence: But note:
- Unless it bears the burden to prove a general or a specific defence in the Penal Code. Section 107 of the
CPC.
Burden of proving that case of accused comes within exceptions
107. When a person is accused of any offence, the burden of proving the existence of circumstances bringing
the case within any of the general exceptions in the Penal Code (Cap. 224), or within any special exception or
proviso contained in any other part of the Penal Code, or in any law defining the offence, is upon him, and the
court shall presume the absence of such circumstances.
Comments: Even if the defendant has failed to call a material witness, and there are gaps in his defence, the
court must still consider whether he has nevertheless succeeded in casting a reasonable doubt on the
prosecution’s case. (Para. 41 of the a/m case)
Acquittal or Conviction
• If the accused is acquitted at the end of the trial in the Subordinate Courts, he shall be released forthwith
provided that there are no other charges pending against him: Section 180(n)(i) CPC. The court then invites
the accused to step out of the dock signifying his release.
• If the accused is found guilty, the court records the conviction and before passing sentence (which may
either be forthwith or on a later date), the court invites the defence to mitigate on behalf of the accused.
Mitigation
- Plan beforehand – get bail amt ready – bailor ready – otherwise to spend night in dock
- • Find out the background of the Accused.
- • Financial impediment is no longer a strong mitigating factor.
- • Mitigating factors must be relevant to Accused and offence, include medical evidence, if necessary.
- Mitigation at the end of a trial is the same as a plea in mitigation following a plea of guilt. But restricted in
that you cannot say that your client is ‘remorseful and that he regrets his actions’.
- If already taken instructions from the client before the commencement of the trial, can present the plea in
mitigation from the instructions obtained. But if not, then can ask the court for the case to be stood down
and take client’s instructions on the mitigation from the dock or from the Witness Room.
- The objective of the plea in mitigation is to ensure that the sentence is passed by the court, which is
appropriate both in the circumstances of the offence and the circumstances of the accused.
- See also Rules 73,78 and 80 Professional Conduct Rules.
Mitigation plea
80. An advocate and solicitor shall not in a plea in mitigation make an allegation that is scandalous or calculated
to vilify or insult any person.
Sentence
• Duty of Counsel to ensure that the sentence passed by the court is not illegal or inappropriate (R v Brown
[1996] Crim LR 134; R v Bruley [1996] Crim LR 913, R v McDonnell [1996] Crim LR 914)
• Therefore must be ready to assist the court if called upon to do so (but see Rule 78 Professional Conduct
Rules). See also Rule 81 of the Prof. Conduct Rules.
• Must know the maximum penalty prescribed by law, whether a term of prison is mandatory, whether the
offence includes a fine (discretionary or mandatory), whether the offence includes caning, whether the
accused is above the age limit of 50 years – see Section 230-231 of the CPC.
• There is nothing in Section 233 to the effect that backdating may only be allowed where the period spent in
remand is less that or at least equal to the maximum custodial sentence prescribed for the offence: Mani
Nedumaran & Anor v PP [1998] 1 SLR 411.
• As a general rule, the period in which a convicted person has been out on bail is not taken into account in
backdating a sentence: Tang Kin Seng v PP [1997] 1 SLR 46.
• Similarly, the period in detention in a DRC is not given any allowance because such a centre is not gazetted
as a prison: Cheong Seok Leng v PP [1988] SLR 565.
If the client was found guilty, consider appeal – do not tell the client that he must appeal – advise him on the
various possibilities and let him make the decision.
If minimum sentence was given, do not appeal.
When imprisonment is mandatory, must let him know (see Rule 78 – be ready to assist court and advise
client).
- At close of Trial, if client is found guilty, advise client on merits of the case, both Prosecution and Defence
and shortcomings of Defence, if any.
- • What is important is whether the Prosecution have proved their case beyond reasonable doubt.
- • Prepare Notice of Appeal before sentence.
- • Ask client to prepare twice the bail amount – the usual increase in bail after your client is convicted.
- • Ask for payment by installments if fine is imposed or arrange to off-set cash bail against fine imposed.
- If going to file notice of appeal, prepare client for it
- PP’s right to apply for a stay of proceedings under s. 184 comes into existence upon the commencement
of a summary trial: Loh Siang Piow & Anor v PP [1998] 2 SLR 384
Facts
The appellants were charged for obtaining a loan from a prisoner in return for showing him favour. The
alleged offences occurred sometime in 1992 and the appellants were first charged in November 1996. The
prosecution successfully applied for a discharge of the appellants not amounting to an acquittal in August
1997, on the basis that they had lost contact with one of their material witnesses, Soh, since March 1997.
On appeal, the appellants argued that a discharge not amounting to an acquittal would have been prejudicial
to the first appellant, a Deputy Superintendent of Prisons, as he could have been interdicted indefinitely as
no disciplinary proceedings could be taken against him under the Public Service (Disciplinary Proceedings)
Regulations until the criminal proceedings had been determined.
Held, dismissing the appeal:
(1) The court’s jurisdiction to grant a discharge under s 184 of the Criminal Procedure Code (Cap 68) only
arose when the public prosecutor informed the court that he would not further prosecute the defendant upon
the charge. When the prosecution invoked s 184(1), it ought to inform the court of all relevant matters as
early as possible, eg, the difficulty of tracing a material witness and its intention as to the likelihood of
future prosecution of the accused on the charge.
(2) On the facts, granting a discharge not amounting to an acquittal was appropriate. Soh was a Singapore
citizen and the loss of contact was fairly recent and he had not left the country. It did not appear that the
prosecution had intended to leave matters suspended indefinitely.
(3) The prejudice to the first appellant might not have been as harsh as it seemed as the Public Service
(Disciplinary Proceedings) Regulations provided adequate protection and compensation to an officer who
had been interdicted but subsequently cleared of fault. However, it would be prejudicial to public interest in
allowing the appellants to be granted a discharge amounting to an acquittal, as public interest demanded that
crimes be prosecuted and criminals brought to justice. This was more so if the charge was of a serious
nature, as in this case.
- Court has no discretion as to the staying of all proceedings on a charge and as to the discharge of the
defendant from and of the same under s. 184(1) (Ranjit Kaur d/o Awthar Singh v PP [1999] 1 SLR 836)
Facts
The appellant was charged with criminal breach of trust under s 408 of the Penal Code. She was alleged to
have taken $26,188.50 from the school where she worked as a clerk. On the first day of the six-day trial, the
prosecution tendered amended charges and also informed the court that two days preceding the hearing, new
evidence that a much larger sum was involved had been found. The prosecution applied for an adjournment
pending further investigations into the other amounts. The application was denied and the prosecution
consequently applied under s 184 of the Criminal Procedure Code (Cap 68) (‘CPC’) for a discharge not
amounting to an acquittal, which was granted. The appellant appealed to the High Court, seeking an
acquittal.
(1) The offence in question was punishable by a maximum seven-year term of imprisonment. This fell
within the criminal jurisdiction of the District Court. It was within the High Court’s appellate jurisdiction,
having the same powers as the court below, to order an acquittal.
(2) Applications for discharge under s 184(1) of the CPC were made at the prosecution’s discretion, as
conferred by art 35(8) of the Constitution and by 335(1) of the CPC. Once such application was made,
s 184(2) gave the court an unfettered discretion to direct, in appropriate circumstances that the discharge
should amount to an acquittal.
(3) In considering whether to direct an acquittal, the prosecution’s intentions were not a conclusive factor.
The prosecution should indicate its intention to prosecute at some foreseeable point of time and substantiate
reasons for its inability to proceed immediately. The court ought to be informed of all relevant matters as
early as possible. It was necessary to balance the prosecution’s right to proceed at a later stage with the
prejudice to the accused in staying proceedings for an indeterminate period.
(4) In the present case, the accused received a discharge not amounting to an acquittal three months after
she was charged. There was no unconscionable delay on the prosecution’s part. Further, no grounds were
found to grant an acquittal.
- When court is so informed, all proceedings on the charge against the accused shall be stayed and he
shall be discharged from and of the same: s. 184(1)
- Such discharge shall not amount to an acquittal unless the court so directs: s. 184(2) CPC
- When the prosecution will not further prosecute the case, court may order a discharge amounting to
acquittal (DATA) or a discharge not amounting to acquittal (DNATA or DNAQ)
- But, the prima facie position under s. 184(2) is in favour of a DNATA: TS Video and Laser Ote Ltd v
Lim Chee Yong and another appeal [2002] 1 SLR 68
Facts
The appellants were charged for copyright infringement. At the trial, the respondent, who was prosecuting
them with authorisation from the Public Prosecutor, applied for a discharge not amounting to an acquittal
pursuant to s 184(2) of the Criminal Procedure Code (Cap 68) (‘the CPC’) as he could not procure the
attendance of a key witness. The appellants argued that they were entitled to a discharge amounting to an
acquittal.
The judge granted the application on the following grounds :– (a) the charges were serious and on matters
relating to public interest and public rights, (b) there were no improper motives behind the application, and
(c) the delay in prosecution would not be unconscionable. The appellants appealed.
Held, dismissing the appeal:
Section 184(2) created an initial presumption in favour of a discharge not amounting to an acquittal.
However, a judge had an unfettered discretion to grant, where appropriate, a discharge amounting to an
acquittal. In the result, there was no reason to interfere with the judge’s decision as he had carefully
considered all the relevant issues and competing interests before granting the application.
- Order of DNATA means that the accused can be tried again on the same offence without offending the
doctrine of autrefois acquit enshrined: Art. 11 Constitution; s. 239 CPC
- Discretion whether to order DATA or DNATA must be exercised judicially, taking into consideration all
relevant facts and factors placed before the court, including the intention of the prosecutor as to whether
it intends to proceed against the accused on the charge in future: Goh Cheng Chuan v PP [1990] SLR
671
Facts
The accused Goh faced two charges. The charges were mentioned in the subordinate courts on several
occasions before finally being set down for trial on 21 April 1980. On that date, prosecution proceeded
on one of the charges and Goh was acquitted. The second charge was set down for mention on 21 May
1986 but was twice adjourned on the prosecution’s application as a material witness was not available.
When the case came up for mention on 2 February 1987, the prosecution asked for a discharge not
amounting to an acquittal under s 184 as steps were being taken to trace the missing witness and that the
prosecution had every intention of proceeding with the charge. One of the complainants had since
passed away. The defence argued that the court had a discretion to direct a discharge amounting to an
acquittal and should do so in this case. The court ruled that it had no discretion in the matter and was
bound to order as requested by the prosecution. Goh appealed. In the course of his judgment, the District
Judge refused to follow a decision of the High Court on the ground that it was decided per incuriam.
Held, allowing the appeal:
(1) Section 184 of the Criminal Procedure Code (Cap 68) only came into effect if the prosecution
decided not to further prosecute the accused.
(2) In ordinary cases the order of discharge under s 184 did not amount to an acquittal, but this was
not because of any intention on the part of the prosecution but because of the wording of the section.
(3) Section 184 gave the court an unfettered discretion to direct in appropriate circumstances that the
discharge should amount to an acquittal, but it had to be exercised judicially, taking into consideration
all the relevant facts and factors placed before it. The prosecution’s future intentions were only one of
the factors that the court should consider in deciding whether the discharge should amount to an
acquittal or not. The decision whether to prosecute an accused on a charge and whether to continue it
once started was vested solely in the Attorney General as the public prosecutor. But once instituted, the
conduct of such proceedings was subject to the overall control of the court.
(4) Once the public prosecutor decided not to proceed further against the accused, he ought to inform
the court of all the relevant matters. The court would then exercise its discretion considering the public
interest in observing the right to proceed against the accused and the fairness to the accused person.
(5) It was not open to a court to invoke the per incuriam rule against a court of superior jurisdiction.
The district court was bound by the High Court’s decision, even if it was per incuriam.
- Prosecution’s intention to proceed against the accused in future is not a conclusive factor: Ranjit Kaur
d/o Awthar Singh v PP (2 above)
- Court has to consider both public interest
Constitution - Protection against retrospective criminal laws and repeated trials
11. —(1) No person shall be punished for an act or omission which was not punishable by law when it was
done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the
time it was committed.
(2) A person who has been convicted or acquitted of an offence shall not be tried again for the same offence
except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by
which he was convicted or acquitted.
CPC - Person once convicted or acquitted not to be tried again for offence on same facts.
239. —(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted
or acquitted of that offence shall, while the conviction or acquittal remains in force, not be liable to be tried
again for the same offence nor on the same facts for any other offence for which a different charge from the
one made against him might have been made under section 172 or for which he might have been convicted
under section 173 or 174.
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a
separate charge might have been made against him on the former trial under section 170 (1).
(3) A person convicted of any offence constituted by any act causing consequences which together with that
act constituted a different offence from that of which he was convicted may be afterwards tried for that
different offence if the consequences had not happened or were not known to the court to have happened at
the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may notwithstanding the acquittal
or conviction, be subsequently charged with and tried for any other offence constituted by the same acts which
he may have committed if the court by which he was first tried was not competent to try the offence with
which he is subsequently charged.
[238
The dismissal of a complaint or the discharge of the accused is not an acquittal for the purposes of this section.
Illustrations
(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal
remains in force, be charged upon the same facts with theft as a servant or with theft simply or with criminal
breach of trust.
(b) A is tried upon a charge of murder and acquitted. There is no charge of robbery; but it appears from the
facts that A committed robbery at the time when the murder was committed; he may afterwards be charged
with and tried for robbery.
(c) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again
for culpable homicide.
(d) A is tried and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for
the murder of B.
(e) A is charged and convicted of voluntarily causing hurt to B. A may not afterwards be tried for voluntarily
causing grievous hurt to B on the same facts unless the case comes within subsection (3).
Sub Court Practice - 53. Citation of written judgments and secondary authorities
Citation of written judgments
1(1) The neutral citation system
0(a) A neutral citation is a court-approved system of citation which is independent of the series of law reports or
other publications, and unique to each written judgment.
1(b) Each written judgment from a particular level of court is assigned a sequential number, starting from 1 at the
beginning of each calendar year.
1(2) Specific paragraph citations
1(a) Counsel will be required to make specific citations by referring to the paragraph number of the judgment,
and not to the page number of the judgment or report.
2(b) For consistency, square brackets will be used to denote paragraph numbers. The paragraph mark (¶) will no
longer be used.
2(3) Court designators
SGDC – Singapore District Court
SGMC – Singapore Magistrates’ Court
SGJC – Singapore Juvenile Court
SGSCT – Singapore Small Claims Tribunal
1(4) Application of the neutral citation system
The application of the system is as follows:
1(a) Cases reported in the Singapore Law Reports shall be cited using their Singapore Law Reports citations, in
priority to their neutral citations.
2(b) Unreported decisions shall be cited using their neutral citations.
1(5) Example and explanation
ABC Co Pte Ltd v XYZ Co Ltd [2003] SGDC 25, at [3], [8].
Year of the decision [2003]
Level of Court SGDC (Singapore District Court)
Sequential Number 25 (twenty-fifth written judgment
rendered by the District Courts in 2003)
Paragraph Number(s) Paragraphs 3 and 8 of the judgment
Citation of secondary authorities in court
1(6) Counsel are advised to be more circumspect in their use of secondary authorities such as textbooks, journals,
periodicals and other treatises. As far as possible, counsel should rely on primary authorities to support the
proposition of law argued for; and
2(7) If it necessary to cite secondary authorities, counsel should ensure that the material to be cited is directly
relevant to the case before the Court. Counsel are also reminded of their duty to ensure that such material is not
cited out of context. The following are specific guidelines for the citation of different types of secondary
authorities:
0(a) Textbooks that are generally recognised as leading textbooks in the relevant area of law may be readily cited
to the Court.
1(b) If counsel wish to cite academic articles in journals and periodicals in support of a particular proposition of
law, they should ensure that they are citing a statement, rather than a critique, of the law. Citation of academic
articles should be limited to those written by eminent authors of reputable standing. The articles should also have
been published in established journals and periodicals.
2(c) Legal opinions written by other counsel not having conduct of the case before the court should generally not
be cited as authority. Such legal opinions are considerably less authoritative than academic articles, as the views
expressed in these private opinions have not been subject to the rigorous scrutiny of editorship and public
critique.
(8) Counsel’s attention is drawn to Order 59 Rule 8 of the Rules of Court which gives the Court the power
to make an order for costs personally against errant advocates and solicitors, who have wasted or incurred
costs unreasonably or improperly. The Court will not hesitate to invoke its powers under Order 59 Rule 8
of the Rules of Court in cases where costs have been wasted due to counsel’s indiscriminate citation of
unnecessary and irrelevant secondary authorities.