Case Summaries

Norasharee bin Gous v Public Prosecutor [2021] SGCA 42 Criminal Motion No 16 of 2018

SUPREME COURT OF SINGAPORE

21 April 2021

Case summary

Norasharee bin Gous v Public Prosecutor [2021] SGCA 42
Criminal Motion No 16 of 2018

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Decision of the Court of Appeal comprising Sundaresh Menon CJ, Andrew Phang JCA and Tay Yong Kwang JCA (delivered by Tay Yong Kwang JCA):

Outcome: The Court of Appeal dismisses the application.

Pertinent and significant points of the judgment

  • The defence witness’ testimony was not compelling as it was inconsistent in several material aspects and was materially discrepant with the applicant’s account of events. There was also nothing demonstrably wrong in the Court of Appeal’s earlier decision to accept testimony given by the applicant’s co-accused. The application to re-open the appeal was therefore dismissed.

  • All counsel were reminded to be temperate in their use of words in court proceedings, whether in affidavits, in cross-examination or in submissions.

Background to the appeal

1        This was an application to re-open the appeal that was concluded in Norasharee bin Gous v Public Prosecutor and another appeal and another matter [2017] 1 SLR 820 (“Norasharee CA”).

2        The applicant, Norasharee bin Gous, was charged with abetting, by instigation, one Mohamad Yazid bin Md Yusof (“Yazid”) to traffic in not less than 120.90g of diamorphine. The trial judge accepted Yazid’s testimony that he had met the applicant on 23 October 2013 and had been instructed to collect the drugs from a Malaysian courier the following day: Public Prosecutor v Mohamad Yazid Bin Md Yusof and others [2016] SGHC 102. On 1 June 2016, the trial Judge convicted the applicant and sentenced him to the mandatory death penalty. The conviction and sentence were subsequently upheld in Norasharee CA on 10 March 2017.

3        More than a year later, on 10 July 2018, the applicant took out the present application seeking to re-open the appeal in Norasharee CA by adducing further evidence in support of an alibi defence. In the application, the applicant sought to rely on the testimony offered by a former colleague (“Lolok”) with whom he used to work at Marina Keppel Bay as freelance boat cleaners. He also claimed that his former counsel, Mr Amarick Gill (“Mr Gill”) had failed to carry out his instructions to call Lolok as a witness for trial.

4        The Court of Appeal heard the application and remitted the matter to the trial Judge to receive the evidence of Lolok but did not accept that the applicant had instructed Mr Gill to call Lolok as a witness. The Court of Appeal accepted Mr Gill’s explanations and saw no reason to question Mr Gill’s decision not to call Lolok as a defence witness. The Court of Appeal’s decision to remit the matter was based on the possibility that there was a misunderstanding as to the facts relating to what Lolok did or did not say to Mr Gill.

The remittal hearing

5        The trial Judge concluded that the alibi defence was an afterthought on the applicant’s part and that the applicant did meet Yazid at VivoCity on 23 October 2013. His decision was based on the following:

          a. Lolok’s evidence was internally inconsistent, especially on matters which he would have been expected to be familiar with given his experience working at Marina Keppel Bay for at least eight years;

          b. there were material discrepancies between Lolok’s account and the applicant's account of the events which transpired in 2013;

          c. Mr Gill’s unshaken evidence that Lolok had informed him that he had told the CNB that he was not with the applicant at the material time. Mr Gill was therefore of the view that it would be “dangerous” to call Lolok as a witness and had apprised the applicant accordingly. There was no evidence to show why or how Mr Gill could have misunderstood what Lolok had conveyed to him;

          d. The defence claimed that there was a logbook on board the vessel that Lolok and Norasharee worked together on. It was asserted that the logbook contained a record of an argument between Lolok and the applicant on 23 October 2013 and that it helped Lolok to recall the events that transpired on an otherwise “uneventful day”. It was used to explain why Lolok remembered that day so clearly and to buttress his credibility. No such logbook was produced and the owner of the vessel denied the existence of such a logbook.

6        The trial Judge also rejected the applicant’s other arguments, namely that the Prosecution and Central Narcotics Bureau (“CNB”) had failed to conduct proper investigations or disclose relevant information and that Yazid’s testimony (which had secured the applicant’s conviction) ought to be re-examined in the light of such investigative failures and the introduction of the alibi defence:

          a. The way in which the CNB and the Prosecution dealt with the applicant’s case did not result in any miscarriage of justice. Neither of them was aware of the significance of the applicant’s employment details and/or his relationship with Lolok because Lolok did not tell the CNB that he was with the applicant on the day in question. Lolok was first mentioned only at trial when the applicant was testifying in his evidence-in-chief.

          b. There was no need to re-examine the veracity and the weight of Yazid’s evidence as it had already been analysed in comprehensive detail in Norasharee CA.

The court's ground of decision

7        The court agreed with the trial Judge that Lolok’s evidence was not compelling. It was inconsistent in several material aspects, and there were various material discrepancies between Lolok’s and the applicant’s accounts regarding the events on 23 October 2013: (at [22])

8        The court agreed with the trial judge that it was unclear from Lolok’s evidence what the contents of the logbook were and that there were varying, inconsistent accounts of the contents of the logbook. These cast significant doubt on the existence of the logbook and the entry which Lolok allegedly made therein: (at [24]).

9        The applicant’s new counsel conceded that the logbook could only prove that Lolok and the applicant were working on board the vessel on 23 October 2013 but could not prove that they were together at VivoCity: (at [25]).

10      The court held that there was no miscarriage of justice as there was nothing demonstrably wrong with the decision at the trial or the decision in Norasharee CA.There was objective evidence in VivoCity’s carpark records and in Yazid’s phone records which supported Yazid’s testimony that he met the applicant on 23 October 2013 and had been instructed to collect the drugs from a Malaysian courier the following day. Lolok’s belated and unreliable testimony was incapable of raising any credible alibi defence for the applicant: (at [26]).

11      The court found that the applicant’s allegations against Mr Gill’s conduct of the trial and the appeal were completely unfounded and unfair. If Mr Gill had gone against the applicant’s clear instructions to call Lolok as a defence witness at the trial, it would be bizarre that the applicant decided to retain Mr Gill for his appeal against conviction: (at [28]).

12      The court also found that the criticisms directed against the Prosecution and the CNB were unjustified. Echoing the trial Judge’s observations, the court         noted that when the CNB approached Lolok in 2015, he did not inform the CNB that he was with the applicant at VivoCity at the material time. The Prosecution and the investigating officers were therefore not aware of the significance of the applicant’s employment details or his relationship with Lolok before the trial. Accordingly, there was no apparent necessity for the CNB to investigate any alibi defence involving Lolok. There was no notice of alibi filed either and the Prosecution did not know about any alleged miscommunication between Mr Gill and Lolok: (at [35]).

Observations on the choice of words in cross-examination and submission

13      The court urged all counsel to be temperate in their use of words in court proceedings, whether in affidavits, in cross-examination or in submissions. The court cautioned against sensationalizing facts or legal issues: (at [37]).

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

 

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