TOC editor and contributor fail in court bid to have police statements produced in trial

The applications by TOC editor Terry Xu (left) and writer Daniel De Costa were dismissed for procedural and jurisdictional reasons. PHOTOS: ST FILE, KELVIN CHNG

SINGAPORE - The editor of The Online Citizen (TOC) and a contributor to the website have failed in their bid to have their recorded police statements produced in their ongoing criminal defamation trial.

The applications by TOC editor Terry Xu and writer Daniel De Costa were dismissed by Chief Justice Sundaresh Menon on Thursday (March 18) for procedural and jurisdictional reasons.

The pair had taken their case to the High Court after their applications seeking disclosure of their statements were dismissed by two district judges.

The prosecution resisted this, arguing that the applications to the High Court were "procedurally defective", among other things.

In his written judgment, the Chief Justice agreed. "It was clear to me that the applications before me were, in substance, interlocutory appeals that were barred," he said.

Generally, interlocutory orders - which are made by a court while a case is still in progress and are not meant to be final - are not appealable.

The Chief Justice added that the applications failed to meet the necessary conditions to invoke the High Court's revisionary jurisdiction to examine errors made by the lower courts.

He said he agreed with the conclusion reached by the lower courts - that the prosecution was not obliged to disclose the statements - even though he did not agree with the reasoning.

Unlike the district judges, the Chief Justice found that the statements were part of the "unused material" the prosecution could be obliged to disclose.

Unused material refers to evidence that the prosecution has but does not intend to rely on at trial.

However, the Chief Justice held that the prosecution's disclosure obligations had not been triggered since there was no indication that the police statements would assist the defence or weaken the prosecution's case.

In Singapore's case law, the prosecution is obliged to disclose to the defence any unused material that is relevant to the guilt or innocence of the accused.

The pair are being tried over an e-mail letter penned by De Costa that allegedly defamed Cabinet members.

De Costa is said to have sent that and other inflammatory material from the e-mail account of his friend. The letter was then published by TOC.

De Costa faces one charge each of criminal defamation and of unauthorised access to computer materials. Xu faces one charge of criminal defamation.

However, the proceedings have been delayed by a number of interlocutory applications brought by the duo.

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