Case Summaries

Public Prosecutor v Mohd Ariffan bin Mohd Hassan


14 February 2018

Case summary

Public Prosecutor v Mohd Ariffan bin Mohd Hassan
Criminal Motion No 24 of 2017


Decision of the Court of Appeal (delivered by Chief Justice Sundaresh Menon):

CoA sets out guidance on the principles governing the adduction of further evidence on appeal in the context of criminal appeals.

1           This was an application by the Prosecution to adduce further evidence in its appeal against the trial judge’s acquittal of the respondent on five charges involving allegations of serious sexual offences. The central issue in the application was whether the conditions for the adduction of further evidence on appeal as set out in the case of Ladd v Marshall [1954] 1 WLR 1389 (“Ladd v Marshall”) ought in any way to be modified in the context of criminal appeals.

Background facts

2           The respondent was charged with the offences of rape, aggravated outrage of modesty and sexual assault by digital penetration against the complainant, who was between the ages of 15 and 16 at the time of commission of the alleged offences. The Prosecution claimed that on two separate occasions, the respondent drove the complainant in a red prime mover to a forested area and raped her at the back of the cabin of the prime mover. According to the Prosecution, the respondent also committed digital-vaginal penetration of the complainant on two occasions while they were in the flat where they lived together with the complainant’s family. These events came to light only gradually. The complainant first confided in her boyfriend sometime in 2010. In 2011, the complainant informed her mother of certain aspects of the sexual abuse after having been pressured by her boyfriend to do so. The full extent of the respondent’s alleged wrongdoing only came to light after the complainant revealed her experiences to her sister, who informed the complainant that she had similarly been subjected to unwanted sexual advances from the respondent. They decided to inform their brother about the respondent’s conduct. Their brother then lodged a police report.

3           The respondent contested all five charges at trial and denied that he had ever sexually assaulted or raped the complainant. He claimed that he had never driven the prime mover in which the rape was alleged to have occurred. At trial, Mr Sim, the owner of the company that employed the respondent, testified under cross-examination that an employee named “Idris” had been assigned to drive the prime mover during the material period. It is not disputed that this was the first time that the existence of “Idris” was made known to the Prosecution.

4           The High Court judge (“the Judge”) acquitted the respondent of all five charges against him. The Judge noted Mr Sim’s evidence that “Idris” drove the prime mover between 2009 and 2011 and would sleep in the vehicle after work instead of going home. He found that there were no reasons to account for the complainant’s failure to promptly complain to her boyfriend and family members about the sexual assaults. He also observed that when she eventually broke her silence, her accounts were “contradictory and inconsistent” despite the fact that she had ample time to recall the forms of abuse that she had suffered. The Judge concluded that these and other matters had a negative impact on the complainant’s credibility.

5           The Prosecution appealed against the acquittal and, at the same time, also filed an application to admit further evidence pursuant to s 392 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). The further evidence consisted primarily of an affidavit by Idris’ son, as well as an expert report by Ms Ng Pei Yu, Vivienne, who is the Chief Psychologist at the Ministry of Social and Family Development. The Prosecution sought to adduce the affidavit of Matin, who is Idris’ son, in order to rebut Mr Sim’s evidence regarding Idris. In his affidavit, Matin explained that he had never seen his father drive a red prime mover and that Idris did not have a habit of sleeping in prime movers. The Prosecution’s purpose in seeking to adduce Ms Ng’s expert report was to enable it to address certain mistaken conceptions of rape victims that it claimed the Judge held, and which became apparent only after the Judge had issued his grounds of decision.

Decision of the court

Approach to assessing applications by the Prosecution to admit further evidence on appeal

6           The Court of Appeal began by addressing the fundamental dispute between the parties concerning the approach to be taken where it is the Prosecution, as opposed to an accused person, that seeks to adduce further evidence on appeal. Further evidence will not ordinarily be admitted at the hearing of the appeal but this may be permitted where certain conditions laid down in the seminal decision in Ladd v Marshall are satisfied. The previous jurisprudence of the court established that these requirements may be attenuated where the application was brought by the accused person. The question presented in this appeal invited consideration of whether those requirements ought in any way to be modified – whether by way of attenuation or enhancement – when it is the Prosecution that makes such an application. ([35])

7           The Court of Appeal held that unlike applications by accused persons, the conditions set out in Ladd v Marshall should continue to apply in an unattenuated manner to applications by the Prosecution to admit further evidence in a criminal appeal. The simple but compelling reason for this difference in treatment is that the justifications for attenuating the Ladd v Marshall conditions in assessing applications by accused persons simply do not apply where the applicant is the Prosecution. First, there is an obvious need to avoid the considerable prejudice that would be suffered by an accused person who is wrongfully convicted or who receives a manifestly disproportionate sentence relative to his culpability. The law strains against and works doubly hard to prevent any erroneous deprivation of liberty. The second reason for assessing applications by accused persons more leniently than those by the Prosecution is the disparity of resources between the Prosecution and accused persons generally. The Prosecution works in tandem with the police, which has wide-ranging powers to collect any evidence it deems necessary. The Prosecution also has the discretion to decide when charges should be brought against an accused. 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, and conversely, justifies a comparatively more accommodating attitude in relation to attempts by accused persons to admit new evidence on appeal. Finally, the Court of Appeal highlighted that an accused person defending criminal charges experiences a strain and anxiety that is difficult for those who have not endured a similar ordeal to imagine. In the court’s view, fairness demands that sufficient recognition be accorded to the nature of this experience and its likely effect on the accused’s ability to fully and soundly consider the nature of the evidence he will need at trial. For these reasons, the Court of Appeal held that a more accommodating attitude toward applications by accused persons is amply justified. ([56]–[61])

Refinements to Ladd v Marshall

8           The Court of Appeal also introduced two refinements to the approach in Ladd v Marshall in the context of criminal appeals. The first pertained to the requirement that the evidence “could not have been obtained with reasonable diligence for use at the trial”, also known as the condition of non-availability. The Court of Appeal held that when an appellate court determines whether the requirement of non-availability has been satisfied, it should also turn its mind to the issue of whether the evidence sought to be admitted on appeal was reasonably not thought to be necessary at trial. If a party ought reasonably to have been aware, either prior to or in the course of trial, that the evidence would have a bearing on its case, and that party fails to make a sufficient attempt to adduce the evidence at trial, this should militate against permitting the party to subsequently have that evidence admitted on appeal. But where it was reasonably not apprehended that the evidence would or could have a bearing on the case at hand, a different result should ensue. The Court of Appeal explained that the inquiry as to whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process. ([68]–[69])

9           The second refinement concerned the need to bear in mind the implications of allowing an application to adduce further evidence on the course of the proceedings and the position of each party. The Court of Appeal held that this requires the court to look ahead to the likely consequences of a decision to admit the fresh evidence. Put another way, it is relevant for the court to consider the proportionality of allowing the application and admitting the further evidence. This requires the court to assess the balance between the significance of the new evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional proceedings, on the other. The Court of Appeal emphasised that where evidence that favoured the respondent at the trial would no longer be available at the further proceedings (whether this is a retrial or some other type of proceedings) to be ordered if the new evidence were admitted, and it would be necessary for this evidence to be re-examined or led again at the further proceedings in light of the new evidence, this would weigh heavily against allowing the application. ([72]–[75])

Application to the facts

10          The Court of Appeal found that Matin’s evidence failed to meet the condition of non‑availability. There was no evidence to show that the Prosecution or the investigation team had made sufficient enquiries to ascertain the identity of the drivers of the prime mover during the relevant period. If such investigations had been conducted, the existence of Idris would likely have surfaced much earlier. Further, even assuming that the Prosecution would not have known of Idris’ existence had it exercised reasonable diligence prior to trial, it was undeniable that the Prosecution became aware of Idris’ existence when Mr Sim was cross-examined. Despite the obvious importance of the evidence disclosed, the Prosecution chose not to seek an adjournment for further investigations before closing its case. ([82]–[83])

11           In relation to Ms Ng’s expert report, the Court of Appeal found that the requirement of non-availability was satisfied in relation to certain parts of the report. The court held that the issue of whether the complainant’s delay in her disclosure of the alleged abuse to her boyfriend and family members and her reluctance to report the matter to the police negatively impacted her credibility was not a live point of contention at trial. Counsel for the Defence confirmed that the Defence had not sought to make any such argument in its closing submissions at the trial below; nor did it now seek to do so on appeal. In the circumstances, the Court of Appeal found that the Prosecution could not reasonably be expected to have considered at trial that it would be necessary to adduce an expert report dealing with how rape victims tend to approach the disclosure of sexual abuse and in particular to address the forensic significance of delays in making such disclosure. Consequently, the parts of the expert report which concerned victims’ disclosure of sexual abuse, including the reasons for delays in the disclosure of child sexual abuse, satisfied the condition of non‑availability. The Court of Appeal further held that the requirements of relevance and reliability were met in relation to these sections of the expert report. ([94]–[96])

12           Finally, the Court of Appeal rejected the Prosecution’s submission that a retrial would be necessary if these parts of the expert report were adduced on appeal because the Judge’s findings on delay “infected” his assessment of all the other factual claims made by the complainant. The Court of Appeal found that the Judge’s reasoning did not show that his findings on the delayed disclosure marred his view of the complainant’s credibility to such an extent that it compromised his assessment of all the factual allegations that the complainant made. Further, the Defence had confirmed that it would not require any cross-examination in respect of the expert report as long as the parts which were admitted did not extend to the expert’s assessment of the position in relation to the complainant in this case. ([101]–[102])

13           For these reasons, the Court of Appeal dismissed the Prosecution’s application to admit Matin’s evidence and its related affidavits, but allowed in part the application to admit Ms Ng’s expert report. ([104])

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.