The Criminal Procedure Code 2010 (the "new CPC") incorporates the most significant amendments to the Code in recent times.1 This article explains the framework and practical implications of one key amendment – the introduction of a framework for discovery in criminal law.

Before and after

Discovery, the process of obtaining legally relevant information from opposing parties before trial, is a familiar concept in civil litigation. A perennial bugbear of criminal defence lawyers in Singapore has been its previous unavailability in criminal matters, save in High Court prosecutions where the prosecution is required in a preliminary inquiry to lay bare before trial almost all of the evidence it intends to rely on to prove the charge at trial.

Without a formal framework for discovery in criminal matters in the Subordinate Courts, the scales were tipped heavily in favour of the prosecution. Defence counsel would often be required to prepare for trial without knowing the specific evidence against their clients.

Of particular concern was the fact that the defence was sometimes taken by surprise in the midst of trial when the prosecution adduced previously withheld police statements given by the defendants, in order to impeach the credibility of the defendants on inconsistencies.

In addition, the defence would generally not be allowed access to the police statements of witnesses giving incriminating evidence against their clients.

Under the new CPC, the prosecution may now have to exchange relevant information and documents with the defence before trial. The new criminal discovery process automatically applies to all High Court cases and the majority of offences tried in the District Court where defendants claim trial to the charges against them.2 Such defendants are free to opt out of this process, but only at an early stage before the first criminal case disclosure conference ("CCDC").3 Whether a defendant should opt out of this process is a matter that should be carefully considered by his lawyer. In this regard, his lawyer's criminal practice experience is crucial in making an informed and strategic decision.

Under the criminal discovery process, information valuable to defendants will primarily be provided in the case for the prosecution, a document which must set out the following in relation to the charges proceeded with:-

  1. the facts of the case;
  2. a list of witnesses;
  3. a list of documentary evidence supporting the charge; and,
  4. any police statements of the defendant which the prosecution intends to rely on at trial.

A failure to serve the prescribed case for the prosecution could lead to the court ordering a discharge not amounting to an acquittal.4 After receiving the case for the prosecution, the defence must set out in the case for the defence a similar set of information, including specific objections to any issue of fact or law stated in the case for the prosecution.5 The case for the defence must also be served on all co-accused persons who also claim trial to the charge(s) in question.

Finally, the prosecution must provide the defence with all documentary evidence listed in the case for the prosecution, the defendant's criminal record and, crucially, all other statements recorded by the police from witnesses or the defendant himself.6 Previously, the defence would almost never have access to statements recorded from witnesses, so it was nearly impossible to impeach the credibility of prosecution witnesses.

CCDCs will be held to monitor each step of the criminal discovery process. If a case is lacking in material details, or either party advances an argument at trial that is inconsistent with its previously filed case, the trial court may draw adverse inferences against the party at fault.7

Practically speaking

The timelines in the new CPC for each stage of criminal discovery mean that it will take a minimum of around 15 weeks from the date that a defendant is first charged in court to the completion of criminal discovery and for the matter to be then fixed for trial. Extensions of time can be sought from the court by either party at any stage.8 Defendants who desire a speedy resolution of their cases should thus be mindful of the lengthiness of the criminal discovery process.

While pre-trial legal costs may now be higher because of the additional work required under the criminal discovery process this may not necessarily result in higher legal costs overall. Any increase in pre-trial legal costs may be offset by the cost savings that accrue when a case is concluded at a pre-trial stage or when the progress of a trial is expedited. Defence counsel can use materials disclosed in the criminal discovery process to craft better informed and more persuasive representations to the prosecution in seeking a withdrawal or reduction of charges. Balancing out the information asymmetry will allow parties to prepare for and conduct a trial on more equal footing. The real issues of contention can also be distilled from a comparison of the respective cases so that precious trial time need not be spent on undisputed matters. Shorter trials would translate to significant savings because less resources are expended by the parties and the judiciary.

Criminal discovery will be of particular benefit to defendants who are put on trial only years after giving statements to the police. In most such cases, the defendants (and similarly, the prosecution witnesses) are left with hazy memories of the incidents. The long lapse in time may even have altered their recollections of events. Whilst prosecution witnesses often had the benefit refreshing their memories from earlier recorded police statements in the possession of the prosecution, defendants have never enjoyed the same opportunity – until now. This new entitlement could greatly reduce the incidence of inconsistencies between defendant' police statements and their court testimonies, which might occur solely due to lapses of the defendants' memories over time.

Nonetheless, criminal discovery neither relieves the prosecution of its burden to prove the admissibility of the statement nor absolves an accused person from his burden to explain inconsistencies between his admitted statements and his defence, particularly in relation to confessions or material admissions made to the police. The principles relating to the admissibility and weight of evidence of previously given statements will continue to apply.

There is one provision in the new CPC that may give cause for concern. Either side is allowed to call witnesses or produce exhibits at trial even if these were not disclosed in the criminal discovery process as long as "prior notice" is given in writing to the court and the other parties to the case.9 This provision could potentially provide a backdoor for parties to spring tactically withheld information on each other at the last minute. However, it is likely that the courts will take a dim view of such behaviour and may even draw adverse inferences against the party in question, especially if it cannot properly explain why such witnesses or evidence were not disclosed in its case filed earlier.

Conclusion

The criminal discovery process in the new CPC is a very useful tool for defendants who wish to contest the charges against them. However, it can be a double-edged sword as they will also have show their hand to the prosecution before trial and face a minimum delay of nearly four months before their cases are fixed for trial. It is thus imperative for defendants to seek timely legal advice in order to make an informed and strategic decision as to whether to opt in or out of the criminal discovery process. If they choose to do so, having an experienced defence counsel prepare the case for the defence and analyse the evidence furnished by the prosecution can reap substantial benefits, whether in expediting a resolution of the matter before trial or enabling the defendants to put up a more robust defence in court.