by MP for Aljunied GRC, Sylvia Lim
The Court of Appeal judgment in Muhammad bin Kadar v PP [2011] 3 SLR 1205 was a welcome breakthrough in our journey towards a more balanced criminal process. The judges squarely addressed an issue I had first canvassed 5 years ago at MinLaw’s COS, which fell on deaf ears then. Due to the vast State powers in investigations and gathering evidence, the prosecution should rightly be under a duty to disclose to the defence before trial relevant evidence gathered, even if the prosecution does not intend to use it, especially if it is helpful to the defence.
After the judgment, the prosecution got worried and took out an application to clarify its scope, in particular whether the prosecution was under a duty to go through all evidence gathered by investigators in order to disclose it. The Court of Appeal clarified that it was not under such a duty, and needed only to disclose evidence which the prosecution was itself aware of.
This unfortunately may give rise to some potential for miscarriages of justice if the processes between the police and the prosecution are not tightened up. There should not be a situation where the police shield the prosecutors from relevant evidence gathered, resulting in prosecutors not being aware of it and accordingly being under no duty to disclose it. This would defeat the purpose of the judgment.
The Kadar case noted that in the UK, there is a Disclosure Manual guiding police on what they should disclose to the prosecution. This document is publicly available for scrutiny at the website of the Crown Prosecution Service. The British police designate disclosure officers to go through the evidence and prepare schedules of unused evidence to be disclosed to the prosecutor.
On 9 Jan 2012, the Minister for Law updated the House that Prosecutors had been briefing investigators on the requirements laid down in Kadar. Can Ministry tell us what the duties of disclosure are between the police and the prosecution? Will there be a detailed document published for public scrutiny?