Muhammad Nabill bin Mohd Fuad v PP [2020] SGCA 25: Shedding light on prosecution’s obligation. (Photo credits: Addictionresource.net)

CASE SUMMARY

In the case of Muhammad Nabill bin Mohd Fuad v PP [2020] SGCA 25, he accused faced 2 charges under the Misuse of Drugs Act for having in his possession substantial quantities of the drugs, diamorphine and cannabis, for the purpose of trafficking ( “the Diamorphine Charge” and “the Cannabis Charge”). The drugs were found in his flat (“the Flat”).

The trial judge (“the Judge”) convicted him of both charges and imposed the death penalty on him. On appeal, the Court of Appeal (“the CA”) (a) set aside his conviction on the Diamorphine Charge and replaced it with a charge of possession (to which the accused pleaded guilty and was sentenced to 8 years’ imprisonment), and (b) overturned the conviction on the Cannabis Charge.

It is not the purpose of this article to examine in any great detail the exact reasons for the CA’s decision. Instead, our focus will be on an issue which the CA described as being “of central importance” which it raised during the appeal pertaining to the prosecution’s disclosure obligations. It emerged that at the trial, the prosecution refused to provide the defence with certain statements made by witnesses, which may have the effect of either confirming or contradicting in material respects the accused’s defence. To compound matters, neither were those witnesses called as prosecution witnesses. The CA described such witnesses as “material witnesses” and we adopt the same terminology here. The CA requested parties to submit on the following question:

In its decision, the CA concluded that (a) the prosecution is under a duty to provide the statements in issue, and (b) in the absence of an ulterior motive, the prosecution is not under a legal duty to call those witnesses but it runs the risk that the court may hold that as a result thereof, the prosecution has not discharged its evidential burden and/or the court may draw an adverse inference against the prosecution. As will be seen, it was the prosecution’s failure to call the material witnesses which ultimately proved fatal to its case.

The relevant facts and the trial below

The accused lived in the Flat with his wife (“Mashitta”), his domestic helper (“the Helper”) and his cousin (“Sufian”). Sufian occupied one of the bedrooms (“Bedroom 1”). When the CNB raided the Flat, they found the diamorphine in Bedroom 1 and the cannabis in a trolley bag in the storeroom.     

At the trial, the accused denied the 2 charges. Among other things, he testified that:

  • Sufian and he would smoke methamphetamine in the Flat with one Faizal in Bedroom 1.
  • Faizal was the accused’s supplier of the methamphetamine.
  • The trolley bag belonged to Faizal.
  • The night before the CNB raid, Faizal had left the trolley bag with the Helper who then placed it in the storeroom. This happened while the accused was asleep in the Flat.
  • The following day (the day of the CNB raid but before it occurred), at about 2 pm, the accused saw some packets of the diamorphine in Bedroom 1. He suspected that it was Sufian who had placed the packets in the room.
  • He had a row with Mashitta who was angry with him for allowing others to come to the Flat to “do drugs”.   
  • At about 4 pm, he called Faizal and Sufian and told them to “clear the stuff”. They agreed to do so. Faizal told him that the trolley bag contained contraband cigarettes.

The police and/or CNB took statements from Faizal, Sufian, Mashitta and the Helper (“the 4 Witnesses”). However, at the trial, the prosecution refused to provide their statements to the defence on the ground that they were neutral to the issue of the accused’s guilt in that they neither undermined nor strengthened the Defence’s case. In so doing, the prosecution relied on the CA’s earlier decision in Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”) which dealt with the prosecution’s obligations.

The Judge rejected the accused’s defence and convicted him of both charges.

The appeal

At the hearing, the CA was “troubled” by the prosecution’s refusal to provide the statements of the 4 Witnesses to the defence and by its decision not to call them as prosecution witnesses to rebut the accused’s defences. This was particularly important as, among other reasons, the call records of the accused’s phone (which were not available at the trial) were produced and they corroborated his evidence that he had called Sufian and Faizal before the CNB raid. It was in those circumstances that the CA requested parties to make submissions on Question.

THE CA’S DECISION

The duty to provide the statements of material witnesses

The CA first discussed whether the prosecution was, over and above its Kadar obligations, under any additional obligation to make available to the defence the statements of material witnesses. In answering this in the affirmative, the CA gave the following reasons:

  • First, the prosecution may, without any bad faith, wrongfully assess the relevance of any evidence to the defence that was being run in deciding not to provide them to the defence. The CA made clear that “it would be an intolerable outcome if the court were deprived of relevant evidence that might potentially exculpate the accused person simply because the Prosecution made an error in its assessment of the significance of certain evidence.”
  • Second, “an accused person ought to have access to all relevant information in order to make an informed choice in deciding whether or not to call a material witness”. While “the Defence always has the right to call a material witness, it is at a distinct disadvantage in deciding whether or not to do so when it is not aware of what the witness has previously said in the course of the investigations into the offence alleged against the accused person.”
  • Third, in the circumstances of the present case, the accused faced a dilemma on whether to call Faizal as his witness to corroborate his testimony that he had called the latter on the day in question in light of the fact that Faizal had given his statement to the authorities. The reason was that “in deciding whether or not to call Faizal as a defence witness, the [accused] would have had to consider the risk that Faizal’s statements might contradict his defence and likely end up being used to undermine his credibility as a witness, all of which might ultimately harm his case at the trial.” In the CA’s view, “leaving an accused person in a situation where he chooses not to call a material witness because of the dangers arising from his not being aware of what that witness has previously said in his statements to the investigating authorities does not reflect a satisfactory balance between ensuring fairness to the accused person on the one hand, and preserving the adversarial nature of the trial process on the other…..The court’s fundamental objective in criminal trials is to arrive at a just outcome through a fair process. This is what our decision in this case seeks to advance.”

The CA made clear that this additional disclosure obligation differs from the prosecution’s duty under Kadar in 2 important respects:

  • Where the additional disclosure obligation is concerned, it does not matter whether the statement in question is: (a) favourable (b) neutral; or (c) adverse to the accused person.
  • The additional disclosure obligation does not require the prosecution to carry out a prior assessment of whether a material witness’s statement is prima facie credible and relevant to the guilt or innocence of the accused person.

The CA flagged the issue of whether the prosecution’s additional obligation to provide the statements is applicable where that witness is called as a prosecution witness. As that was not the case here, the CA decided to leave that question open for another time. However, “if a prosecution witness has provided a statement that is inconsistent with his testimony at the trial, we see no reason why that statement ought not to be disclosed to the Defence as part of the Prosecution’s Kadar obligations. The Defence ought to have that statement for the purposes of cross-examination and impeachment of the witness’s credit if appropriate.”

Whether the prosecution is under a duty to call a material witness 

The CA ruled that as a broad proposition, the prosecution is under no such duty “provided that there is no ulterior motive and the witness, who is available to, but not called by, the Prosecution, is offered to the Defence”.

However, the CA made clear that while the prosecution retains the discretion to decide on which witnesses to call, its failure to call a material witness may in appropriate circumstances come with a price in that the court may:

  • Find that the Prosecution has failed to discharge its evidential burden to rebut the defence advanced by an accused person; or
  • Draw an adverse inference that the evidence of a material witness who could have been but was not called by the Prosecution would have been unfavourable to the Prosecution.

Applying the above principles to the instant case

The fact that the prosecution did not call Sufian, Faizal and the Helper as prosecution witnesses was instrumental in the CA’s ultimate decision to acquit the accused as it meant that the prosecution had not discharged the evidential burden of showing that the accused’s following account was not credible (at [135]):

  • He did not know that Faizal would be bringing the trolley bag to the Flat.
  • When Faizal arrived at the Flat, he was asleep, and Faizal was let in by the Helper, who took the trolley bag from Faizal and kept it in the storeroom.
  • Although phone calls were made from and received on his iPhone at the time, he was supposedly asleep, his iPhone was in Bedroom 1 then and Sufian could have been using it.
  • He discovered several packets of diamorphine on the bed in Bedroom 1 the following afternoon whereupon he had a row with his wife. He also discovered the trolley bag in the storeroom that same afternoon.
  • He then called Faizal and Sufian asking them to remove the trolley bag and the drugs from the Flat, and they agreed.

In light of the aforesaid, the CA concluded that the accused has rebutted the presumption that he was in possession of the diamorphine for the purpose of trafficking and that he knew that the trolley bag contained cannabis.

CONCLUDING REMARKS

This decision is welcome for 2 reasons:

  • First, the CA has clarified that the prosecution’s disclosure obligations extend to statements of persons interviewed which can be expected to confirm or contradict in material respects the accused’s defence. In this regard, it does not matter whether the statements are neutral, adverse or favourable to the accused. This is an extension of what was held in Kadar (though it is limited to material witnesses (as defined)).We will however have to wait and see if the CA applies this principle in a situation where those persons are called as prosecution witnesses.
  • Second, the CA has made clear that while it is the prosecution’s prerogative to decide who its witnesses are, it does so at its own peril as its decision may ultimately result in the accused’s acquittal.       

To read the full judgement, click here.