PAUSI BIN JEFRIDIN v PUBLIC PROSECUTOR

1 CA/CM 32/2023 (“CM 32”), CA/CM 45/2023 (“CM 45”), CA/CM 46/2023 (“CM 46”), CA/CM 47/2023 (“CM 47”), CA/CM 48/2023 (“CM 48”), CA/CM 49/2023 (“CM 49”), and CA/CM 50/2023 (“CM 50”) (collectively, the “Seven Criminal Motions”) were criminal motions brought by several of the appellants in CA/CA 30/2022 (“CA 30”). CA 30 was an appeal against the decision in HC/OS 188/2022 (“OS 188”), which was a civil action brought by 12 plaintiffs, all of whom were prisoners awaiting capital punishment (“PACPs”). That action arose after it was disclosed by the Attorney-General (the “AG”) that certain correspondence belonging to each of the plaintiffs had been released by the Singapore Prison Service (the “SPS”) to the Attorney-General’s Chambers (the “AGC”). The plaintiffs brought civil proceedings for a declaration that the actions of the SPS and the AG, in giving, receiving and/or requesting these documents were ultra vires. The plaintiffs also sought damages for, among other things, infringement of copyright and breach of confidence.

2 The General Division of the High Court made certain orders which were appealed against in CA 30. In the course of hearing CA 30, it emerged that the appellants were further seeking to impugn the validity of their convictions on account of these disclosures. Because it was clear that this was not something the Court of Appeal exercising its civil jurisdiction could deal with in CA 30, the court granted the appellants permission to bring criminal motions seeking relief under the criminal law to the extent that such motions arose from the disclosures. The court gave permission for the applicants to address in the Seven Criminal Motions the implications which the Disclosed Correspondence may have had on the propriety of the applicants’ convictions and/or appeals.

3 The central contention of the applicants’ Seven Criminal Motions arising out of the Disclosed Correspondence was that the Disclosed Correspondence was illustrative of a practice by the AGC that breached the fundamental rules of natural justice due to a breach of prosecutorial disclosure obligations, which tainted the legitimacy of their criminal convictions and appeals. The applicants alleged that the Prosecution would have gained an unfair advantage through informational asymmetry and/or advance notice of what the applicants would be arguing in their criminal proceedings.

4 While the court did not grant permission to the applicants to raise other issues completely unconnected to the Disclosed Correspondence, the applicants also raised other arguments in the Seven Criminal Motions that did not arise out of the Disclosed Correspondence. Among other things, the applicants argued variously that:

a. the Disclosed Correspondence was evidence that the Prosecution must have committed other breaches of its disclosure obligations during the applicants’ respective trials and appeals;

b. other material (unrelated to the Disclosed Correspondence) which would have been beneficial to them in their respective trials or appeals had not been disclosed by the Prosecution in those proceedings;

c. there were changes in the law between the time of the applicants’ appeals and the present application which would have materially affected the outcome of their cases; and

d. there were other new pieces of evidence in their respective criminal cases which would have materially affected their convictions and/or sentences.

5 The Seven Criminal Motions were heard alongside CA/CM 22/2023 (“CM 22”), which was filed by Mr Pausi bin Jefridin (“Mr Pausi”). Mr Pausi was a co-accused who was tried together with Mr Roslan bin Bakar (“Mr Roslan”), the applicant in CM 48. In CM 22, Mr Pausi sought permission under s 394H(1) of the CPC to review his conviction and sentence.

6 The Court was satisfied that none of the Disclosed Correspondence could have potentially affected the applicants’ criminal proceedings in relation to their convictions and/or sentences: at [23].

7 First, in all but one of the Seven Criminal Motions (CM 47 being the exception), disclosure of the relevant correspondence had taken place after both the applicants’ convictions and appeals had concluded. It followed that it was impossible that the Prosecution could have gained any form of advantage in the criminal proceedings at trial or on appeal of the applicants above, since it could not have possibly utilised information gained from correspondence which was disclosed to it only after those proceedings had concluded. Therefore, in respect of these applications, the Disclosed Correspondence could not have affected or undermined the integrity of the convictions or appeals therefrom: at [24]–[26].

8 Second, even if the Disclosed Correspondence had been forwarded to the AGC by the SPS prior to the relevant criminal proceedings, which, as noted above, was not the case, these could not have affected the propriety of the applicants’ criminal proceedings. The nature of the letters which formed the Disclosed Correspondence was such that there could have been no conceivable advantage which the Prosecution would have obtained: at [28]–[32].

9 To the extent that some of the applicants’ letters to the Singapore courts contained requests with reasons for their cases to be reviewed, the applicants could not have had any legitimate expectation that such correspondence would be confidential. Justice cannot be expected to unfold in shadows; litigation cannot be conducted by way of ex parte communications. Rather, criminal litigation demands the presence and participation of both the Prosecution and the Defence, and not whispered exchanges between one party and the court: at [32].

10 Though the Disclosed Correspondence in the case of CM 47 involved a letter which was disclosed after the conclusion of the applicant’s trial but prior to the hearing of his appeal against his conviction and sentence, this fact had been made known to the applicant’s counsel as well as the Court of Appeal prior to the hearing of his appeal. In any case, the contents of the letter were irrelevant, since it concerned an aspect of the evidence which the Court of Appeal had expressly noted was irrelevant or immaterial to the issues in the case: at [33]–[37].

11 Though it was unnecessary to consider the other arguments raised by the applicants unrelated to the Disclosed Correspondence since permission had not been granted by the court to raise issues unrelated to the Disclosed Correspondence, the court also considered these other arguments: at [40].

12 The court considered the statutory regime in the CPC which allowed for criminal review applications. The following could be gleaned from the statutory regime:

a. First, s 394K(1) of the CPC makes clear that an applicant is not permitted to make more than one review application in respect of any decision of an appellate court. This statutory bar applies even if a subsequent permission application is made on a different basis from the first. However, it may be appropriate for an applicant to bring two separate review applications – and not be barred by s 394K(1) – if the decisions regarding his conviction and sentence are separate in substance: at [43]–[44].

b. Second, s 394K(2) of the CPC prevents an applicant from making a review application where there has been a “related civil application” made by the same applicant and where the court has either reserved judgment in that related civil application or delivered judgment in that related civil application. This is to prevent an applicant from bringing a review application that is essentially duplicative of a related civil application: at [45]–[47].

c. Third, for permission to be granted for a review application to be made, an applicant must show a legitimate basis for the exercise of the court’s power of review. This would require showing that the material the applicant will be relying on in the review proper is almost certain to satisfy the requirements under s 394J of the CPC. Under s 394J(2) of the CPC, an applicant must satisfy the appellate court that there is sufficient new material (being evidence or legal arguments) to conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made. This would require showing that: (i) the material has not been canvassed at any stage of the said criminal matter; (ii) the material could not have been adduced in court earlier even with reasonable diligence; and (iii) the material is compelling, in that it is reliable, substantial, powerfully probative and capable of showing almost conclusively that there has been a miscarriage of justice in the said criminal matter. Where the material relied on consists of legal arguments, it must be based on a change in law that arose after the conclusion of all proceedings relating to the criminal matter in which the earlier decision was made. In order to demonstrate that there has been a miscarriage of justice, the earlier decision must either be demonstrably wrong or tainted by fraud or breach of the rules of natural justice: at [48]–[53].

13 The court also considered that s 394J(1)(b) of the CPC makes clear that the statutory regime does not affect the inherent power of an appellate court to review, on its own motion, an earlier decision of the appellate court. While these are two independent avenues, in the absence of new material emerging after the dismissal of a prior review application, the court should not ordinarily exercise its inherent power of review: at [54]–[56].

14 The court found that, to the extent that CM 32, CM 48 and CM 49 were premised on arguments unconnected with the Disclosed Correspondence, they would have been barred by s 394K of the CPC, either because of prior criminal review applications (in the case of CM 48) or because of related civil applications having been filed previously (in the case of CM 32, CM 48 and CM 49). On the facts, there was no question of any new material in CM 32, CM 48, and CM 49 emerging after the dismissal of the respective prior review applications to warrant an exercise of the court’s inherent power of review: at [58]–[60].

15 The argument that the Prosecution allegedly failed to disclose documents pursuant to its disclosure obligations under Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”) could be dismissed based on the applicants’ failure to satisfy any of the three requirements in s 394J(3) of the CPC: at [62] and [64].

16 The applicants’ argument that that there was a change in law in the case of Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984 (“Nabill”) was a non-starter as there was no evidence that the Prosecution had in fact breached its obligations to disclose the statements of material witnesses: at [63]–[64].

17 The applicants argued that the close temporal proximity between the decision in Harven and the timing of the SPS’s forwarding of the Disclosed Correspondence to the AGC suggested that the latter was triggered by the former, out of the apparent concern that similar challenges might be raised in other cases where the AGC knew that it had breached its Kadar obligations. There was no basis to this argument, since it was not the case that the court in Harven found a breach of the Kadar obligation; neither was this the basis for the appellant’s acquittal there. Any alleged connection between Harven and the cases underlying the Seven Criminal Motions was also not supported by evidence: at [65].

18 In relation to the purported new evidence or arguments in each of the Seven Criminal Motions unrelated to the Disclosed Correspondence, the court found that they did not rise to the level of being sufficient material on which this court could conclude that there had been a miscarriage of justice, as required under ss 394J(3)(c) and 394J(5) of the CPC: at [66].

19 Mr Pausi’s application in CM 22 was not barred under s 394K(1) since his earlier criminal review application was an application to review a different decision of the appellate court than the one which Mr Pausi sought to review in CM 22. However, Mr Pausi’s application in CM 22 was barred under s 394K(2) of the CPC, since he had made various related civil applications. CM 22 therefore failed on this ground alone: at [73]–[75].

20 There was no evidence that the Prosecution had breached its Nabill disclosure obligations by failing to disclose the statement of a material witness named Yusof. Based on Mr Pausi’s defence at trial, Mr Pausi did not know Yusof and did not meet Yusof. Yusof was, therefore, not relevant to his defence and would not have been able to confirm or contradict his defence: at [77].

21 In relation to the fresh evidence that Mr Pausi relied on, these did not disclose a basis for granting permission as the requirements for permission to be granted were not satisfied. Mr Pausi’s application was, therefore, wholly without merit: at [78]–[87].

22 The court therefore dismissed the Seven Criminal Motions and CM 22: at [88].