Muhammad Nabill bin Mohd Fuad v PP [2020] SGCA 25: A photo of the Singapore Court of Appeal. (Photo credits: Straits Times)

CASE SUMMARY

In our earlier article on Muhammad Nabill bin Mohd Fuad v PP [2020] SGCA 25, we discussed the Court of Appeal (“CA”)’s examination of the ambit of the prosecution’s duty of disclosure. Here, we discuss another aspect of the decision, that relating to excessive judicial interference in the conduct of a criminal trial.

The issue of excessive judicial interference (the “Issue”) was raised squarely by the accused as a ground for overturning the trial judge’s (“Judge”) decision to convict him. The crux of the accused’s grievance was that the Judge “did not merely ask clarificatory questions, but instead engaged in long and sustained bouts of questioning, and her interventions were at times at crucial points which interrupted counsel’s line of questioning.” In other words, the Judge “descend[ed] into the arena” and ‘[took] over the conduct of the questioning of witnesses” thereby creating the impression that her vision had been “clouded by the dust of the conflict”.

The remarks of the Court of Appeal are instructive.

THE CA’S DECISION

First, in delivering the Court of Appeal’s decision, Chief Justice Sundaresh Menon made clear that an allegation of excessive judicial interference is a different concept from that of bias in that (at [164]):

“… [T]he resolution of a complaint of excessive judicial interference depends not on appearances or what impressions a fair-minded observer might be left with, but rather on whether the reviewing court is satisfied that the manner in which the challenged tribunal or judge acted was such as to impair its ability to evaluate and weigh the case presented by each side.”

Therefore, while judges are fully entitled “to pose questions to witnesses and counsel in order to understand and clarify the evidence and the issues in dispute”, the concept requires the court not to descend into the arena.

Second, the Court of Appeal emphasised that this ground is established only in a situation where it is an “egregious one” such that the reviewing court can say that (at [166]):

“… the court below has in fact acted in a manner that has resulted in actual prejudice to the relevant party; the relevant inquiry is not whether a fair-minded person would reasonably suspect or apprehend that the court below was biased. Actual prejudice could, for instance, arise if a judge intervenes in the proceedings to such an extent that it prevents a party from presenting its case.”

After a thorough review of what transpired during the trial, the court concluded that while the Judge did pose a fair number of questions, she had done so for the purpose of ensuring that she had understood the evidence correctly. Thus, the allegation of excessive judicial interference was not made out (and therefore, not a valid ground for overturning the convictions). However, owing to the importance of the Issue, the court provided guidance as to the the applicable principles which ought to guide a judge’s conduct in the specific context of criminal proceedings. The emphasis on “criminal proceedings” is due to the fact that (at [169]) “the implications of excessive judicial interference on an accused person’s life and liberty may be severe.”

Guidelines for judges in the conduct of criminal proceedings

The CA raised 6 non-exhaustive points to be borne in mind at all time. It made clear (at [181]) that “we have every confidence that trial judges in all our courts apply them each and every day in each and every case that they try. Nonetheless, we think a reminder to all those involved in criminal proceedings – judges, prosecutors and defence counsel – would not be out of place.”

(1) Judges must not “fill in the gaps” in the prosecution’s case

First, given that the burden lies on the prosecution to prove its case against the accused beyond reasonable doubt, it is for the prosecution, and not the judge, to fill in any gaps in the prosecution’s case. As such, a judge should not ask questions that would reasonably be seen as having the effect of filling for the prosecution gaps in its case. The court endorsed Lee Seiu Kin J’s observations in Ng Chee Tiong Tony v Public Prosecutor [2008] 1 SLR(R) 900 (“Ng Chee Tiong Tony”) as follows at [22]:

“… [W]hile it is entirely proper for a trial judge to ask questions to clarify an unclear answer, or even to establish a crucial point (which I should add must be done with circumspection and in a neutral manner), what was done in the present case went past that. It is the duty of the Prosecution to bring out the evidence to prove its case; it is not the judge’s duty to do so, and certainly not to take over the cross-examination to make up for any shortfall in the conduct of the case by the prosecutor. And it is certainly not for a trial judge to test the credibility of a witness by sustained questioning. …”

(2) Judges must not require the accused to give advance notice of his case before the prosecution has established a prima facie case

Given the strict rule of procedure which requires the prosecution to prove a prima facie case first before the defence can be called, a judge should therefore not ask questions of the Defence which would require the accused person to give advance notice of his case before he is called to give his defence. In this regard, the Court of Appeal took issue with one aspect of the Judge’s conduct at the trial, which must be noted.

While defence counsel was cross-examining a prosecution witness on a particular fact, the Judge asked defence counsel to take the accused’s instructions on that factual issue. The Court of Appeal was of the view that while the Judge was undoubtedly entitled to pose that question, the timing could have been better given that at that stage, the prosecution had not closed its case and thus not established a prima facie case against the accused. The Judge was in effect asking the accused to give advance notice of his case. Nonetheless, the Court of Appeal made clear that the accused did not suffer any prejudice from this. 

(3) Judges must refrain from pursuing lines of enquiry not pursued by the prosecution

Unlike the prosecution, the court does not have access to all the information that the police or other investigating authorities will have gathered over the course of the investigations. If the prosecution does not pursue any lines of inquiry with its witnesses or advance certain case theories, it may have good reasons for so doing. Thus, the judge should, for this reason, ordinarily refrain from exploring other lines of inquiry.

(4) When the accused is giving his evidence-in-chief, Judges must exercise considerable restraint in intervening at this stage

Unlike a civil trial, an accused person does not give his evidence in advance in the form of an affidavit. There are thus 2 reasons why a judge should exercise restraint at the stage.

  • It is not a judge’s role to cross-examine an accused person. Rather, it is the prosecution’s role to do so after the accused person has finished giving his evidence-in-chief.
  • An accused person should have the opportunity to give his account in the way that he would like his evidence to come out, “elicited through questions from [his] own advocate”, without constant interruptions that may prevent him from doing so. The accused must thus be given the opportunity to provide his full account in the manner that he chooses to do so
(5) Judges must be mindful of the fact that witnesses, particularly, an accused person, tend to enter the witness box in a nervous state

The Court of Appeal’s point is that as a result of his or her nervous state, the accused may want to present himself to the judge in an as agreeable manner as possible so as not to upset him or her or to appear impolite. In this regard, the CA quoted the following passage from a judgment of the English Court of Appeal:

“It is a fundamental principle of an English trial that, if an accused gives evidence, he must be allowed to do so without being badgered and interrupted. Judges should remember that most people go into the witness-box, whether they be witnesses for the Crown or the defence, in a state of nervousness. They are anxious to do their best. They expect to receive a courteous hearing, and when they find, almost as soon as they get into the witness-box and are starting to tell their story, that the judge of all people is intervening in a hostile way, then, human nature being what it is, they are liable to become confused and not to do as well as they would have done had they not been badgered and interrupted.”

The CA also made reference to the following passage of the judgment of Lee Seiu Kin J in Ng Chee Tiong Tony:

“… [I]t is well known that witnesses often respond differently to a judge as compared with cross-examining counsel. As Lord Greene MR pointed out in [Yuill] at 20:

[A]s everyone who has had experience of these matters knows, … the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel.”

(6) Judges should refrain from asking leading questions generally

The reason is that in so doing, the judge may inadvertently be helping a party with the direct examination or cross-examination of a witness, especially a material witness.

CONCLUDING REMARKS

The CA’s guidance will prove invaluable to all parties involved in the conduct of criminal trials:

  • As a high standard (“egregious”) must be met before a case of excessive judicial interference is made out, those contemplating such an argument will think long and hard before doing so.
  • Judges who observe the 6 points will reduce the chances of such an allegation being made against them on appeal.    

To read the full judgement, click here.