Apex court allows expert report, rejects rebuttal testimony for prosecution's appeal in rape case

SINGAPORE - The courts will not lower the bar in assessing attempts by the prosecution to admit fresh evidence in criminal appeals, unlike how it has relaxed the criteria for accused people.

The Court of Appeal said this on Wednesday (Feb 14) in a written judgment on an application by the prosecution to admit additional evidence to support its appeal against the acquittal of a man on charges of rape and other sexual offences.

In April last year, the 57-year-old man was cleared of all sexual offences against his lover's daughter, who claimed that he drove her to a forested area in Punggol in a prime mover and raped her when she was between 15 and 16 years old.

However, the man said he had never driven the vehicle, and his employer testified that the prime mover was driven by someone named Idris, who died before the trial.

The trial judge also found that there were no reasons for the girl's failure to promptly tell her family and boyfriend about the sexual assaults, and that when she eventually broke her silence, her accounts were "contradictory and inconsistent".

The alleged offences were said to have taken place between 2009 and 2011 but fully came to light only towards the end of 2012.

The prosecution filed an appeal against the acquittal, and also applied to introduce two sets of evidence - a sworn statement from Idris' son to rebut the employer's testimony, and an expert report from a senior government psychologist to address the trial judge's "misconception of what is typical rape victim behaviour".

Defence counsel Abraham Vergis of Providence Law Asia resisted the prosecution's bid.

On Wednesday, the apex court - comprising Chief Justice Sundaresh Menon and judges of appeal Andrew Phang and Judith Prakash - rejected the rebuttal evidence but allowed the psychologist's report to be used for the appeal, which will be heard at a later date.

At the heart of the case is whether an appeal court should adopt a different approach when assessing such applications by the prosecution, as opposed to an accused person.

Ordinarily, an appeal court will not consider new evidence unless three conditions are met: the evidence was not available during the trial; the evidence is relevant; the evidence is reliable.

These criteria were laid down in the seminal English Court of Appeal case of Ladd v Marshall in 1954, which has been adopted by the Singapore courts in civil appeals.

Past cases in Singapore have established that these criteria may be relaxed in the context of an accused person seeking to admit further evidence for a criminal appeal.

The courts here have favoured a more liberal approach in cases where the accused is appealing against conviction, meaning that the fresh evidence would go towards exonerating a convicted person. The condition of "non-availability" has also been regarded as "less paramount" than the criteria of relevance and reliability.

In the current case, the apex court considered whether the prosecution should be given the same "lenient" treatment when it seeks to admit new evidence.

The court concluded that while a "more accommodating attitude" towards applications by accused people is justified, the conditions set out in Ladd v Marshall should continue to apply "in an unattenuated manner" to applications by the prosecution.

Explaining why, the court said that first, there is a need to avoid the prejudice that an accused person would suffer if he is wrongfully convicted or receives a disproportionate sentence. "The law strains against and works doubly hard to prevent any erroneous deprivation of liberty," said the court.

The second reason is the disparity of resources between the prosecution and accused people in general. The prosecution works with law enforcement agencies, including the police, which has wide-ranging powers to collect evidence to build a case against an accused person, the court noted.

"This forms the basis for a reasonable expectation that the prosecution is in possession of all the evidence it deems necessary to make its case by the time of trial," said the court.

Finally, the court recognised that the "harrowing" experience of defending criminal charges is likely to have an effect on the accused's ability to "fully and soundly consider the nature of the evidence he will need at trial".

In the current case, the court found that the evidence of Idris' son failed to meet the condition of non-availability. The court noted that the prosecution became aware of Idris' existence during the trial, but chose not to seek an adjournment for further investigations.

As for the psychologist's report, the court found that it satisfied all three conditions.

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