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Landmark ruling in drug case helps level the playing field: Lawyers

Landmark ruling in drug case helps level the playing field: Lawyers

Source: Straits Times
Article Date: 22 Feb 2021
Author: K.C. Vijayan

The issue of disclosure is an increasingly important feature of criminal trials as there is an “inherent disparity in the balance of power between the prosecution and the defence”.

In a landmark ruling last year involving a drug trafficker who was sentenced to hang, the top court held that prosecutors are duty-bound to disclose statements of material witnesses who are not called by the prosecution, regardless of whether their statements support or undermine the case for the defence.

Writing about the impact of the case in the Singapore Academy of Law's SAL Practitioner earlier this month, two lawyers argued that the Court of Appeal's ruling "effectively removed prosecutorial oversight over what was or was not helpful to the defence".

"These are promising early signs in achieving a criminal justice system where the defence team is treated as an equal partner," added the co-authors, lawyers Andre Jumabhoy and Priscilla Chia.

Their article, titled "Levelling the playing field in criminal proceedings", drew on their experience in arguing Muhammad Nabill Mohd Fuad's appeal before the apex court.

In the case, Nabill had been convicted in the High Court in 2018 of two charges of possessing 63.41g of heroin and 2,251.9g of cannabis for trafficking.

Before the Court of Appeal, Mr Jumabhoy and Ms Chia did not dispute that Nabill possessed the heroin and knew what it was.

They argued that the sole issue was whether he possessed the drug for trafficking.

On the second charge, Nabill claimed that he did not know he had cannabis, nor did he intend to be trafficking in cannabis.

The court set aside the first capital charge and convicted him on a reduced charge of drug possession, to which he admitted, and acquitted him of the second charge as his defence had rebutted the presumption of knowledge.

The court sentenced Nabill to eight years' jail instead for drug possession.

The court, in reviewing the proceedings, was troubled by the prosecutors' failure to disclose to the defence the statements of four people, all of whom were material witnesses who could have confirmed or contradicted Nabill's defence.

In its decision grounds, the court said that the prosecution is duty-bound to disclose a statement of a material witness to the defence, regardless of whether it was favourable, neutral or adverse to the accused person.

"In directing that the prosecution disclose such statements, the court recognised that it was not for the prosecution to determine whether a statement was helpful to, or undermined, an accused person's case," said the authors in their article.

They added that the issue of disclosure is an increasingly important feature of criminal trials as there is an "inherent disparity in the balance of power between the prosecution and the defence".

They pointed out that the prosecution is backed by various investigation agencies which exercise statutory powers, but the same cannot be said of the defence.

"The authorities are first on the scene and are able to not only secure evidence, but also to interview witnesses whilst events are still fresh in their minds. Inevitably, it will be months, if not years, before an accused person is charged with an offence. During the investigation, the defence has no access to the information in the prosecution's possession," the authors added.

"The defence's instructions are limited to the recollection of the accused, who may or may not be aware of what evidence advances his defence."

The authors said that the Nabill ruling reaffirms the important roles that both the prosecution and the defence play in criminal proceedings.

"If the consequence of more disclosure is that a greater number of defendants are acquitted as a result of having access to material that assists in their defence, that is not something our criminal justice system should fear,' they said.


CHALLENGING FOR DEFENCE

The authorities are first on the scene and are able to not only secure evidence, but also to interview witnesses whilst events are still fresh in their minds. Inevitably, it will be months, if not years, before an accused person is charged with an offence. During the investigation, the defence has no access to the information in the prosecution's possession. The defence's instructions are limited to the recollection of the accused, who may or may not be aware of what evidence advances his defence.

LAWYERS ANDRE JUMABHOY AND PRISCILLA CHIA, in their article, noting that the issue of disclosure is an increasingly important feature of criminal trials as there is an "inherent disparity in the balance of power between the prosecution and the defence".

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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