PP v Mohd Ariffan: Adducing Fresh Evidence on Appeal in Sexual Offence Case
In Public Prosecutor v Mohd Ariffan bin Mohd Hassan, the Court of Appeal of Singapore considered the Prosecution's application to adduce further evidence on appeal against the trial judge's acquittal of Mohd Ariffan on charges of sexual offences. The court addressed the conditions for admitting fresh evidence, particularly the non-availability requirement from Ladd v Marshall, and the proportionality of admitting such evidence. The court dismissed the application to admit affidavits related to one witness but allowed in part the application to admit an expert report, specifically section 7 and paragraphs 5.3.4 and 5.5.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
The Prosecution's application to admit the affidavits of Matin, Superintendent Chua, and Assistant Superintendent Jaga was dismissed. The application to admit the evidence of Ms. Ng was allowed in part. Ms. Ng's affidavit, section 7, and paragraphs 5.3.4 and 5.5 of the expert report are admitted as further evidence in this appeal.
1.3 Case Type
Criminal
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore Court of Appeal considers adducing fresh evidence on appeal in a sexual offence case, focusing on Ladd v Marshall conditions.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Applicant | Government Agency | Application Allowed in Part | Partial | Charlene Tay Chia of Attorney-General’s Chambers Hri Kumar Nair of Attorney-General’s Chambers Crystal Tan of Attorney-General’s Chambers Michael Quilindo of Attorney-General’s Chambers |
| Mohd Ariffan bin Mohd Hassan | Respondent | Individual | Application Partially Dismissed | Partial | Sadhana Rai of Law Society’s Criminal Legal Aid Scheme |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Sundaresh Menon | Chief Justice | Yes |
| Andrew Phang Boon Leong | Justice of the Court of Appeal | No |
| Judith Prakash | Justice of the Court of Appeal | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Charlene Tay Chia | Attorney-General’s Chambers |
| Hri Kumar Nair | Attorney-General’s Chambers |
| Crystal Tan | Attorney-General’s Chambers |
| Michael Quilindo | Attorney-General’s Chambers |
| Sadhana Rai | Law Society’s Criminal Legal Aid Scheme |
| Abraham S Vergis | Providence Law Asia LLC |
4. Facts
- The respondent was charged with multiple sexual offences against the complainant.
- The trial judge acquitted the respondent of all charges.
- The Prosecution appealed against the acquittal and sought to admit further evidence.
- The further evidence included affidavits related to a witness named Idris and an expert report on rape trauma.
- The trial judge's decision was based on the complainant's credibility and inconsistencies in the evidence.
- The Defence argued that the further evidence could have been obtained with reasonable diligence.
- The Prosecution argued that the need for the further evidence only became apparent after the trial judge's decision.
5. Formal Citations
- Public Prosecutor v Mohd Ariffan bin Mohd Hassan, Criminal Motion No 24 of 2017, [2018] SGCA 10
6. Timeline
| Date | Event |
|---|---|
| Ladd v Marshall case was decided. | |
| Respondent began a relationship with the complainant’s mother. | |
| First Charge: Respondent allegedly touched and kissed the complainant’s breasts. | |
| Fifth Charge: Respondent allegedly raped the complainant. | |
| Third Charge: Respondent allegedly penetrated the complainant’s vagina with his finger. | |
| Complainant confided in her boyfriend. | |
| Sixth Charge: Respondent allegedly raped the complainant. | |
| Complainant told her mother about some aspects of the sexual abuse. | |
| Complainant spoke with her sister. | |
| Idris passed away. | |
| Complainant's brother lodged a police report. | |
| Mr. Sim was cross-examined and mentioned Idris. | |
| Prosecution closed its case. | |
| Criminal Appeal No 19 of 2017 filed. | |
| Ms. Ng's expert report was dated. | |
| Hearing date. | |
| Hearing date. | |
| Judgment reserved. |
7. Legal Issues
- Admissibility of Fresh Evidence on Appeal
- Outcome: The court clarified the application of the Ladd v Marshall conditions for admitting fresh evidence, emphasizing the need to consider whether the evidence was reasonably thought to be unnecessary at trial and the proportionality of admitting the evidence.
- Category: Procedural
- Sub-Issues:
- Non-availability of evidence at trial
- Relevance of evidence
- Reliability of evidence
- Proportionality of admitting evidence
- Assessment of Complainant's Credibility
- Outcome: The court considered the impact of the complainant's delay in reporting the alleged abuse on her credibility, and the relevance of expert testimony on the typical behavior of rape victims.
- Category: Substantive
- Sub-Issues:
- Delay in reporting sexual assault
- Inconsistencies in statements
- Corroboration of evidence
8. Remedies Sought
- Conviction of the Respondent
- Admittance of Further Evidence
9. Cause of Actions
- Aggravated Outrage of Modesty
- Sexual Assault by Digital Penetration
- Rape
10. Practice Areas
- Criminal Law
- Appeals
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Ladd v Marshall | English Court of Appeal | Yes | [1954] 1 WLR 1489 | England and Wales | Established the three conditions for the admission of fresh evidence on appeal: non-availability at trial, relevance, and reliability. |
| Iskandar bin Rahmat v Public Prosecutor and other matters | Court of Appeal | Yes | [2017] 1 SLR 505 | Singapore | Affirmed the principles governing the admission of fresh evidence in a criminal appeal as set out in Soh Meiyun. |
| Soh Meiyun v Public Prosecutor | High Court | Yes | [2014] 3 SLR 299 | Singapore | Addressed the requirement of non-availability and suggested a less stringent application in relation to accused persons. |
| Juma’at bin Samad v Public Prosecutor | Court of Criminal Appeal | Yes | [1993] 2 SLR(R) 327 | Singapore | Referred to the three requirements in Ladd v Marshall as non-availability, relevance, and reliability. |
| Rajendra Prasad s/o N N Srinivasa Naidu v Public Prosecutor | Court of Criminal Appeal | Yes | [1991] 1 SLR(R) 402 | Singapore | Determined that the approach articulated in Ladd v Marshall should be applied to guide the court’s discretion under s 55(1) of the Supreme Court of Judicature Act. |
| Mohammad Zam bin Abdul Rashid v Public Prosecutor | Court of Appeal | Yes | [2007] 2 SLR(R) 410 | Singapore | Highlighted the need for sensitivity to the fact that the application was made in the context of criminal proceedings, where the standard of proof is higher than that in civil proceedings. |
| Public Prosecutor v Development 26 Pte Ltd | High Court | Yes | [2015] 1 SLR 309 | Singapore | Addressed applications under s 392(1) made by the Prosecution and balanced the interest in ensuring the correct substantive outcome against the need for finality in litigation. |
| Public Prosecutor v Kong Hoo (Pte) Ltd and another appeal | High Court | Yes | [2017] 4 SLR 421 | Singapore | Suggested that a stricter approach should apply where it is the Prosecution that is making such an application. |
| Kho Jabing v Public Prosecutor | Court of Appeal | Yes | [2016] 3 SLR 135 | Singapore | Stated that the cost of error in the criminal process is measured not in monetary terms, but in terms of the liberty and, sometimes, even the life of an individual. |
| Public Prosecutor v Li Weiming and others | High Court | Yes | [2014] 2 SLR 393 | Singapore | Discussed the introduction of the criminal case disclosure procedures in 2014. |
| Ng Chun Hian v Public Prosecutor | High Court | Yes | [2014] 2 SLR 783 | Singapore | Example of remitting the matter to the trial judge to convene a Newton hearing. |
| AOF v Public Prosecutor | Court of Appeal | Yes | [2012] 3 SLR 34 | Singapore | Focused on the requirement that a complainant’s evidence be “unusually convincing” in circumstances where there is no corroborative evidence. |
| Kwan Peng Hong v Public Prosecutor | High Court | Yes | [2000] 2 SLR(R) 824 | Singapore | Emphasised the need for caution in relying solely on the evidence of the complainant to ground a conviction. |
| Khoo Kwan Hain v Public Prosecutor | High Court | Yes | [1995] 2 SLR(R) 591 | Singapore | Observed that although s 159 of the Evidence Act had “the effect of elevating a recent complaint to corroboration, the court should nevertheless bear in mind the fact that corroboration by virtue of s 159 alone is not corroboration by independent evidence”. |
| R v Stafford | English Court of Appeal | Yes | (1969) 53 Cr App R 1 | England and Wales | Public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time will generally be admitted by this court when verdicts are being reviewed. |
| R v Jordan | English Court of Appeal | Yes | (1956) 40 Cr App R 152 | England and Wales | It was only in “the most exceptional circumstances, and subject to what may be described as exceptional conditions, that the court is ever willing to listen to additional evidence”. |
| R v Perry and Harvey | English Court of Appeal | Yes | (1909) 2 Cr App R 89 | England and Wales | The court will not allow the introduction of the additional evidence if it was actually considered by counsel at the trial but rejected because it was thought to be unnecessary or inappropriate or of doubtful assistance to the defence. |
| Rodolpho de los Santos v R | Privy Council | Yes | [1992] 2 HKLR 136 | Hong Kong | If defending counsel in the course of a case made a decision or took a course which later appeared to have been a mistake or unwise, that, generally speaking, has never been regarded as a proper ground of appeal. |
| Dennis Reid v The Queen | Privy Council | Yes | [1980] AC 343 | Unknown | Any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. |
| Chong Joon Wah v Tan Lye Thiang | Court of Appeal | Yes | [1991] 2 SLR(R) 277 | Singapore | Even apart from the principles laid down in Ladd v Marshall, the costs of litigation require that some semblance of proportion must be maintained, and the Court of Appeal would be reluctant to order a new trial when the amount at stake is so small and the proceedings in court have already taken so long. |
| Public Prosecutor v Mohd Ariffan bin Mohd Hassan | High Court | Yes | [2017] SGHC 81 | Singapore | Trial judge's decision to acquit the respondent of all five charges. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 57 r 13(2) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) s 354A(1) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 354A(2)(b) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 376(2)(a) | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 375(1)(a) | Singapore |
| Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 392(1) | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) s 116 | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) s 159 | Singapore |
| Criminal Procedure Code s 11(1) | Singapore |
| Criminal Procedure Code s 20 | Singapore |
| Criminal Procedure Code ss 21 and 22 | Singapore |
| Criminal Procedure Code ss 34 and 35 | Singapore |
| Criminal Procedure Code ss 157–171 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Fresh evidence
- Appeal
- Ladd v Marshall
- Non-availability
- Relevance
- Reliability
- Proportionality
- Credibility
- Sexual offences
- Expert report
- Delay in disclosure
- Miscarriage of justice
15.2 Keywords
- Criminal appeal
- Fresh evidence
- Sexual assault
- Rape
- Credibility
- Expert testimony
- Singapore
- Court of Appeal
17. Areas of Law
16. Subjects
- Criminal Law
- Criminal Procedure
- Evidence
- Appeals
- Sexual Offences