In a landmark case, the High Court has ordered two psychiatric reports on an accused to be withdrawn even though she had accepted the doctor's caution that they were subject to use in court.
The court held that the reports on Madam Rahimah Mohd Salim, which were done at her request and not because of a prosecution request or court order, were subject to litigation privilege.
"The context in which an expert report is produced is critical. I do not think her acceptance of the caution can amount to 'clear, informed and unequivocal' election to waive her right to litigation privilege," said Judge of Appeal Chao Hick Tin in judgment grounds released last week.
The court also ordered a retrial under a different judge as privileged material had been inappropriately disclosed.
Madam Rahimah, who is facing charges of dishonestly receiving and transferring stolen property, had sought the reports from the Institute of Mental Health (IMH) to assist in her defence. But she later decided not to use the reports and opted for a psychological report from Raffles Hospital instead.
Litigation privilege exists in documents or communications that are confidential and undertaken for the purpose of a pending or ongoing court case. It is meant to protect a party and enable the party to assess these documents or communications without fear of their disclosure to the other side.
Prosecutors had asked her to disclose the IMH reports last year but she declined, citing litigation privilege. The prosecutors then obtained a court order for the reports to be disclosed.
At a hearing, Dr Stephen Phang from IMH said he had warned Madam Rahimah that whatever he recorded of his assessment may be produced in court, and she had understood and agreed to his caution.
The district judge ruled in April that she had waived her litigation privilege and ordered the disclosure. The trial proceeded with Dr Phang testifying on the contents of the report.
Madam Rahimah, represented by TSMP Law lawyers Colin Liew and Niklas Wong on a pro bono basis, then appealed to the High Court to reverse the district court's disclosure order.
The prosecution team led by Deputy Chief Prosecutor Leong Wing Tuck objected, arguing that there was no serious injustice or palpable wrong to merit intervention by the High Court.
Judge of Appeal Chao disagreed.
He said the "entire circumstances" would have to be examined to ensure whether Madam Rahimah did waive her privilege. He set aside the disclosure order and ordered all privileged material to be struck off the record.
Responding to queries from The Straits Times, Mr Liew said it was the first time the court has considered and applied the concept of litigation privilege in criminal proceedings.
He said the court has "made clear that privilege is not waived simply because the patient was informed that the psychiatric assessment was not confidential".
He added: "The court has made clear that it will uphold privilege except in very exceptional cases, which is something that is likely to be welcomed by both criminal and civil litigators."