Parity and Proportionality in Adduction of Fresh Evidence in Criminal Appeals: Ladd v Marshall Revisited
The recent Court of Appeal decision in Public Prosecutor v Mohd Ariffan bin Mohd Hassan  1 SLR 544 brought much needed clarity to the principles engaged when adducing fresh evidence in criminal appeals. In particular, due regard has been given by the Court of Appeal to the practical consequences of their application in terms of parity and proportionality. This articles maps out the contours of these principles as identified and applied by the Court of Appeal.
In Public Prosecutor v Mohd Ariffan bin Mohd Hassan,1  1 SLR 544 (Mohd Ariffan CA). the Prosecution applied 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 three conditions for adducing further evidence on appeal as set out in the case of Ladd v Marshall  1 WLR 1389 (Ladd v Marshall) (ie, the non-availability of the evidence at trial; its relevance to the result of the case; and its reliability )2 The Ladd v Marshall test has been adopted in criminal appeals to ascertain if the further evidence is “necessary” within the meaning of section 392(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (CPC); the three conditions of the test being the non-availability of the evidence at trial, its relevance to the result of the case and its reliability. ought in any way to be modified — whether by way of attenuation or enhancement- when it is the Prosecution, as opposed to an accused person, who makes such an application.
The Court of Appeal (CA), comprising of Chief Justice Sundaresh Menon, and Judges of Appeal Judith Prakash and Andrew Phang, also considered:
- Whether the condition of non-availability should be understood to include evidence that, although physically available at trial, was reasonably not thought to be necessary at that time; and
- Whether the court, in deciding such an application to adduce further evidence on appeal, should consider the likely procedural consequences of admitting the further evidence and the potential prejudice that might be occasioned to the Respondent if this were done, and weight this against the justification advanced in support of the application.
In allowing the appeal in part, the CA provided critical guidance on the principles governing Ladd v Marshall conditions in criminal appeals, and specifically held that the Prosecution would not be afforded the same measure of leniency as the accused in the context of a fresh evidence application.
Crucially, in so holding, the CA gave judicial recognition to the diverse difficulties, disadvantages and disparities that an accused person faces during criminal proceedings. These are of course the grim realities that are daily experienced by accused persons (and those representing them), but their full implications on the conduct of criminal defence may not have been fully recognised or understood until now. This aspect of the CA’s decision is therefore of standalone significance.
The Respondent faced five charges 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. He contested all five charges.
He was accused of first molesting the complainant in March 2009, when she was 15 years old, restraining and molesting her in a red prime mover (Prime Mover) parked in a forested area in Punggol. He was also alleged to have raped her in the Prime Mover in the same area in 2010 and 2011. On two separate occasions in June 2010, he was also alleged to have digitally penetrated the complainant in a flat, which they shared with the complainant’s mother and two siblings.
The alleged events only came to light gradually, starting from 2010. After the complainant informed her brother in 2012 that she had been sexually assaulted by the Respondent, her brother lodged a police report. The delay in the complainant’s disclosure of the offences featured in the grounds of decision,3Public Prosecutor v Mohd Ariffan Bin Mohd Hassan  SGHC 81 (Mohd Ariffan HC). and in the appeal.
The Respondent denied any wrong doing. He claimed, among other things, that he had never driven the Prime Mover, whether with or without the complainant. At trial, Mr Sim Hock Beng, a Prosecution witness and the owner of the Prime Mover (Mr Sim), testified under cross-examination that one “Idris” had been assigned to drive the Prime Mover “most of the time” between 2009 and 2011. Mr Sim also stated that Idris would drive and sleep in the vehicle, and not go home because he was tired from his work. Mr Sim’s evidence also featured prominently in the application to adduce further evidence as the Prosecution was taken by surprise by the existence of Idris.
The High Court judge presiding in the matter, Senior Judge Kan Ting Chiu (SJ Kan), acquitted the Respondent of all five charges against him.
In reaching this decision, he noted, among other things, Mr Sim’s evidence on Idris4Mohd Ariffan HC at —. and also found that the complainant’s evidence was not unusually compelling or convincing. Several factors were cited in support of this finding. 5Ibid at —.
First, there was a long period of silence between the offences and the complaint lodged in 2012 for which there were no reasons to account for. She had ample time to recover from any distress or embarrassment that she may had experienced and confide in members of her family or her boyfriend.
Further, her testimony, when she did break her silence, was also found to be contradictory and inconsistent as he had told her mother that she was molested, but told her brother, sister and boyfriend that she was raped.
The Application to Adduce Evidence on Appeal
The Prosecution appealed against the acquittal and filed an application to admit further evidence on appeal pursuant to section 392 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).
First, the Prosecution sought to admit the evidence of Idris’s son, Mr Matin, in order to rebut Mr Sim’s evidence regarding Idris. In his affidavit, Mr Matin explained that (1) he had never seen his father drive a red prime mover; (2) Idris did not have a habit of sleeping in prime movers and always returned home to spend time with Mr Matin’s sister; and (3) Idris would only park his prime movers near the family home in Tampines.
The Prosecution also sought to admit an expert report by Ms Ng Pei Yu, Vivienne, (Ms Ng) who is the Chief Psychologist at the Ministry of Social and Family Development. Ng’s expert opinion addressed misconceptions about rape victims in general, and applied these findings to the complainant to conclude that her behaviour, specifically her delay in reporting, was “highly realistic”.
The Deputy Attorney-General, Mr Hri Kumar SC appeared before the CA at the hearing to argue, inter alia, that6Mohd Ariffan CA at —:
- A “less restrictive approach” to the requirements in Ladd v Marshall, prioritising relevance and reliability would be “more… consonant with section 392 [of the] CPC”, which only requires that the additional evidence be considered “necessary”.
- There is “no principled basis to apply different standards or criteria to applications made by the accused or the Prosecution” given that the criteria of non-availability was meant to address evidence which is in the possession of parties but which parties have chosen not to adduce.
- Mr Matin’s evidence could not have been obtained with reasonable diligence at trial because the first time that the Prosecution heard about Idris was only when Mr Sim, their witness, took the stand at trial.
- The expert report was not available at trial because it was only necessitated by SJ Kan’s reasoning in his grounds of decision, and that the expert report is relevant because it would directly contradict SJ Kan’s misconceptions of “typical rape victim behaviour” which may have influenced his assessment of the complainant’s credibility.
The Respondent argued that:7Ibid at —.
- The requirement of non-availability is less stringently applied in relation to accused persons because of the drastic ramifications that a wrongful conviction can have for an accused person. In contrast, the principle of finality must carry greater weight where the desire is to secure a conviction.
- Mr Matin’s evidence could have been obtained with reasonable diligence had the investigation team not failed to secure obviously relevant evidence in the first instance.
- Ms Ng’s evidence could also have been obtained with reasonable diligence as the Prosecution should have known that such expert opinion on the nature of a rape victim’s evidence would be a relevant fact in a rape trial. Alternatively, the Respondent would not object to the admission of Ms Ng’s general opinion, but maintained his objection to Ms Ng’s specific opinion as applied to the complainant whom Ms Ng had never interviewed.
The Court of Appeal’s Decision and Analysis
The Ladd v Marshall Conditions — Including the Condition of Non-Availability — Are to Apply in an Unattenuated Manner to Applications by the Prosecution to Admit Further Evidence on Appeal.
The CA held that the Ladd v Marshall conditions are to apply in an unattenuated manner to applications made by the Prosecution because the justifications for attenuation for accused persons did not apply to the Prosecution.8Ibid at .
The first justification for assessing applications to adduce evidence on appeal by accused persons more leniently is to avoid any erroneous deprivation of liberty.9Ibid at .
The accused person suffers considerable prejudice where he is wrongfully convicted or receives a manifestly disproportionate sentence relative to his culpability. The CA observed that the cost of error in the criminal process is measured not in monetary terms but in terms of the liberty and even the life of the individual.
The consequences of error are suffered not merely by the accused but by society as a whole and it is important to guard against it to maintain the moral legitimacy of the criminal justice system.
The second justification is the need to address the resource disparity between the Prosecution and the accused including the flexibility accorded to the Prosecution to choose when and how to proceed with the matter.10Ibid at —.
The CA observed that the Prosecution, which works in tandem with law enforcement agencies, has the powers of these agencies at its disposal to collect evidence and statements deemed necessary for the bringing of charges, and the conduct of its case. This gives rise to an asymmetry of information between the Prosecution and the accused person.
The CA also noted that with the introductions of prescribed timelines for criminal case disclosure in the CPC, the defence would only have a limited duration to prepare its case, while the Prosecution would have had the lead time prior to the pressing of charges to prepare its case.
The CA recognised that given the above, the accused person may not have as full an opportunity to deliberate on his litigation strategy and gather the evidence he wishes to be put before the trial judge.
Attenuating the Ladd v Marshall conditions for accused persons would ensure greater parity.
The third justification is the need to accord sufficient recognition to the harrowing experience of being subject to criminal prosecution and its likely effect on the accused’s ability to fully and soundly consider the nature of the evidence he will need at trial.11Ibid at .
An accused person labouring under mental and emotional distress must determine how to run his case at trial and the evidence required to establish it. The Prosecution, however, suffers from no such personal distress. It is only fair that the accused person be treated more leniently when deciding whether further evidence from an accused person should be adduced on appeal.
Refinements to the Ladd v Marshall Conditions
The CA made two refinements to the Ladd v Marshall conditions which affect whether further evidence may be adduced, and, if so, the type of further proceedings to be ordered.
First, it was held that in assessing the criteria of non-availability, the court should also turn its mind to whether the evidence was reasonably not thought to be necessary at trial. The CA held that counsel cannot be expected to consider things that, objectively and reasonably, would not have been thought to be relevant to the case.12Ibid at .
Secondly, a proportionality analysis was introduced to the test. A court considering an application to adduce further evidence must consider the likely procedural consequences of admitting such evidence and the potential prejudice that might be occasioned to a respondent if this were done, and weigh this against the justification advanced in support of the application.13Ibid at .
The CA considered that there were two reasons why such consequences should feature in the court’s consideration of whether evidence should be admitted. First, the need for the expeditious conduct and conclusion of litigation; and second, the prejudice that might be occasioned to a respondent in the application.
In order to assess these consequences, the court is required to assess the balance between the significance of the new evidence, and the need for swift conduct of litigation together with any prejudice that might arise from the additional proceedings.
Lastly, the CA opined that if the application to adduce further evidence is allowed, the court should generally only order such additional proceedings as are necessary to address the issues raised by the new evidence for reasons of economy and efficiency. This means the court must, with the assistance of parties, identify with as much precision as possible, the witnesses who are to be recalled and the particular issues on which their testimony is required in light of the new evidence.14Ibid at .
Application of the Ladd v Marshall Conditions in this Matter
Having clarified the application of the Ladd v Marshall conditions, the CA then applied it to the facts before it.
The CA declined to admit Mr Matin’s evidence. It held that Mr Matin’s affidavit failed to meet the criteria of non-availability for two reasons. First, the existence of Idris would have surfaced earlier had investigations been more thorough. Secondly, the Prosecution became aware of Idris in the course of Sim’s cross-examination and yet did not seek an opportunity to conduct further investigations and obtain evidence before closing its case. The CA therefore rejected the Prosecution’s argument that the evidence could not have been obtained with reasonable diligence.15Ibid at —.
The CA only allowed a limited section of Ms Ng’s report relating to her general observations on delays in reporting sexual assaults, which the Respondent did not object to.
The CA found that the complainant’s delay in disclosing the abuse, and in reporting the matter to the police was not a live point of contention at trial, and 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.
The CA therefore found that parts of the expert report, which discussed various characteristics of victims’ disclosure of sexual abuse in general, including reasons for delays in the disclosure of child sexual abuse, satisfied the condition of non-availability. They were also found to be relevant to deciding on appeal whether the complainant was “unusually convincing”.16Ibid at —.
The rest of Ms Ng’s expert report did not satisfy the Ladd v Marshall conditions. Large swathes of Ms Ng’s expert report on the general symptoms of trauma suffered by victims of sexual abuse, their psychological responses before and during rape, misconceptions about rape victims and scientific research on the effect of emotions on memory, were found not to meet the criteria of non-availability as they concerned issues that the Respondent had raised in the trial below.17Ibid at .
The CA also agreed with the Respondent’s argument that the sections of Ms Ng’s expert report which pertained to the specific application of the expert opinion to the complainant did not satisfy the condition of reliability as Ms Ng had not interviewed the complainant and her opinion in this regard was therefore largely theoretical.18Ibid at .
Necessity of a Retrial
Having decided on the parts of Ms Ng’s expert report that were admissible, the CA had to determine if further proceedings were necessitated and, if so, whether this outcome and its implications for the Respondent would be disproportionate to the justification for admitting the new evidence.
The Prosecution argued for a retrial, contending that SJ Kan’s finding on the delay by the complainant in reporting the offences “infected” his assessment of all other factual claims made by the complainant, and was pivotal to his finding on her credibility in toto.
Conversely, the Respondent strongly objected on the ground that this would result in a disproportionate outcome given that it would not be placing any reliance the complainant’s delay in reporting the offences.
The CA rejected the Prosecution’s argument. It observed that SJ Kan’s finding on credibility had turned not only on the complainant’s delay but on a multitude of factors including Mr Sim’s evidence and the internal inconsistencies of the complainant’s testimony. The CA also noted that the Respondent had indicated it would not be cross-examining Ms Ng on the sections which were allowed to be adduced. As such, the CA found that no further proceedings were necessary, and the consequences of allowing the admission of this evidence cannot be said to be disproportionate to the benefits of doing so.19Ibid at .
The CA has provided much needed clarity and refinement on the Ladd v Marshall conditions in criminal appeals. The courts will assiduously scrutinise any piece of fresh evidence put forward and will also consider the broader impact of allowing such evidence to be admitted. This proportionality requirement will require parties to be more circumspect in making applications to produce fresh evidence.
The Respondent was represented under the Criminal Legal Aid Scheme by Abraham Vergis (Providence Law Asia LLC) and Sadhana Rai (CLAS Advocate, Law Society Pro Bono Services).
|↑1|| 1 SLR 544 (Mohd Ariffan CA).|
|↑2||The Ladd v Marshall test has been adopted in criminal appeals to ascertain if the further evidence is “necessary” within the meaning of section 392(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (CPC); the three conditions of the test being the non-availability of the evidence at trial, its relevance to the result of the case and its reliability.|
|↑3||Public Prosecutor v Mohd Ariffan Bin Mohd Hassan  SGHC 81 (Mohd Ariffan HC).|
|↑4||Mohd Ariffan HC at —.|
|↑5||Ibid at —.|
|↑6||Mohd Ariffan CA at —|
|↑7||Ibid at —.|
|↑8||Ibid at .|
|↑9||Ibid at .|
|↑10||Ibid at —.|
|↑11||Ibid at .|
|↑12||Ibid at .|
|↑13||Ibid at .|
|↑14||Ibid at .|
|↑15||Ibid at —.|
|↑16||Ibid at —.|
|↑17||Ibid at .|
|↑18||Ibid at .|
|↑19||Ibid at .|