TRI

The Law of Reviewing Concluded Criminal Appeals – A Comparative Commentary

1. Introduction

As keenly recognised by the Singapore Court of Appeal (“SGCA”) in Kho Jabing v Public Prosecutor [2016] 3 SLR 135[1] (“Kho Jabing”), “Truth and finality are both vital, and their competing demands must be held in balance”. Indeed, where intuition should have it that criminal appeals heard by the highest court of the land are to be final, it is now a matter of fact that these concluded appeals may be reviewed, or informally termed “reopened”, if it serves the pursuit of truth. In this article, we will review the law on   the review of concluded criminal appeals in Singapore, the systems adopted by other jurisdictions in dealing with similar matters and examine the success of Singapore’s system.

2. The Law of Reopening in Singapore

Historically, the SGCA has consistently held that it lacked jurisdiction to reopen and reconsider the merits of a concluded criminal matter,[2] as the court’s jurisdiction ceases after the conclusion of an appeal. However, in Yong Vui Kong v Public Prosecutor [2010] 2 SLR 192 (“Yong Vui Kong”), Chan Sek Keong CJ rejected the argument and suggested that the SGCA has inherent jurisdiction to reopen a concluded criminal matter[3]. Chan CJ suggested that since the Supreme Court Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) did not provide that the court’s jurisdiction ends after hearing an appeal, there is no reason why it should not exercise the judicial power vested in it by Article 93 of the Singapore Constitution to correct a miscarriage of justice. This was later affirmed by the SGCA in Kho Jabing, clarifying that when the court exercises this power of review, it is acting within the scope of its statutorily-conferred appellate jurisdiction, which is not completely exhausted merely by the rendering of a decision on the merits of the appeal.[4]


The SGCA has consistently emphasised finality as being an integral aspect of justice. Thus, to protect the integrity of the judicial process as well as to prevent any damage to public confidence, the SGCA has notably set a high standard for  reviewing concluded criminal appeals. Pursuant to the SGCA’s recommendation[5], Parliament codified the requirements set out in Kho Jabing into Sections 394F-394K of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), through the enactment of the Criminal Justice Reform Act 2018 (No. 19 of 2018).


As a preliminary threshold requirement, prior to the appellate court hearing the review application, leave must be sought from it. This can be granted or refused summarily[6]. Furthermore, only one review application may be filed for any decision[7], and a rejected leave application would be considered a failed review application for the purposes of this limit[8] For a review application to be successful, the appellate court must be satisfied that there is sufficient material (either evidence or legal arguments) on which it may be concluded that there has been a miscarriage of justice with respect to the decision sought to be reviewed[9].


For the material to be deemed sufficient, the material must satisfy all the following requirements – (1) the material must not have been canvassed at any stage of the criminal matter, (2) even with reasonable diligence, the material could not have been adduced earlier and (3) the material is compelling, in terms of being reliable, substantial, powerfully probative and capable of showing miscarriage of justice almost conclusively[10]. If the material consists of new legal arguments, it must arise from a change in the law that arose after the proceedings for the criminal matter has concluded[11]. Notably, raising new legal arguments involving constitutional points does not automatically entitle an applicant to a review of his concluded appeal. It would have to depend on the merits of the constitutional argument and whether the argument would affect the outcome of the case.[12]


For the court to conclude that there has been a miscarriage of justice, the earlier decision must be demonstrably wrong – which means that it must be apparent, based only on the evidence tendered in support of the review application and without further inquiry, that there is a powerful possibility that the earlier decision is wrong[13]. Alternatively, it must be shown that the earlier decision was tainted by fraud or a breach of the rules of natural justice, compromising the integrity of the judicial process[14]. If the review is with regard sentencing, for a decision on sentencing to be “demonstrably wrong”, it must be shown that the decision was based on a fundamental misapprehension of the law or of the facts, such that the decision is blatantly wrong on the face of the record[15].


However, these requirements do not impinge on the inherent jurisdiction of the appellate court to review its earlier decision on its own motion if the appellate court finds that justice demands it.[16] Regardless, it is likely that the requirements under s394J will have to be met for most review applications to be successful given that the invocation of the court’s inherent jurisdiction relates back to the principles for reviewing concluded appeals enunciated Kho Jabing.[17] These principles are essentially the same as the requirements for review set out in s 394J. The inherent jurisdiction of the appellate court, therefore, simply provides flexibility to grant review in the rare situation where the requirements under the CPC are not met. This ensures that there will be no risk of injustice as in clearly deserving cases, a clear miscarriage of justice may be corrected at the court’s discretion regardless of statutory requirements.[18]


3. Other Jurisdictions

In the United Kingdom, a Criminal Cases Review Commission (“CCRC”) was established to refer cases that merit review to an appellate court after exhausting all avenues of appeal. The CCRC is an independent, non-departmental statutory body empowered with investigative capabilities. Previously, cases seeking review had to be referred through the Home Secretary, and the Home Secretary had the discretion to exercise his powers to refer investigations and choose whether to refer cases to an appeals court or recommend a Royal pardon[19]. However, as the executive was reluctant to be seen as usurping the power of the judiciary, too much caution was exercised in the referrals[20]. The CCRC was set up after several high-profile cases – the Birmingham Six and Guildford Four – drew criticism over the lack of avenues for victims of miscarriage of justice to make their case[21].


For the CCRC to exercise its power, there must be a real possibility that the court will overturn the criminal conviction or reduce a sentence, and new evidence not reasonably available to be adduced at trial.[22] The new evidence must have been admissible at appeal. For instance, entirely new evidence such as a psychiatric report made after the trial itself would not be accepted as it would be inadmissible at appeal[23]. The CCRC also has a special legal power to order and obtain documents from public bodies[24]. The CCRC can apply to the Crown Court to order private bodies to produce documents[25] and can appoint investigating officers to undertake inquiries[26].

This approach in establishing an independent review body has gained traction in other common law jurisdictions, with New Zealand also implementing a Commission on 1 July 2020[27]. There have been talks in Australia about establishing a similar Commission[28]. In Canada, a public consultation is currently underway on the potential establishment of a similar Commission[29].

4. Commentary

Should Singapore adopt a similar CCRC system? There are advantages and disadvantages between establishing a separate CCRC versus relying on the appellate  court itself to consider the merits.


The CCRC provides a more structured approach and stronger government support in the processing of potentially meritorious cases. Case managers are empowered with legal powers to further probe and investigate cases. In comparison, in Singapore, there is no structured system provided by the Government for the processing of review cases. The applicant would have to conduct his own further investigations to exonerate himself. Furthermore, while the applicant may apply to court for the production of relevant documents, this would entail further legal proceedings and associated costs. .


However, this structured system means that the CCRC, which is technically not a part of the judiciary, has the discretion on the reference of cases, and there is no independent avenue for criminal review. While it is possible to seek judicial review over the CCRC’s decision, the courts will be slow to intervene, as long as the view is not irrational.[30] This is problematic as, Article 93 of the Constitution vests judicial power in Singapore in the Courts. Having an independent body vested with similar if not the same power may be contrary to the tenets of Constitutional Supremacy and the Rule of Law in Singapore.


Ultimately, if the underlying reason for why the CCRC system was set up was due to a lack of avenues for victims of miscarriage of justice to make their case,[31] the question that needs to be answered is whether Singapore’s law of reopening provides an adequate avenue for said victims. A survey of case law suggests that there is no reason why a CCRC-like system should be adopted locally. In the recent case of Gobi a/l Avedian v Public Prosecutor [2020] SGCA 102, the SGCA was satisfied that the requirements for reopening were met and eventually the SGCA allowed the appeal primarily due to a change in the legal position in respect of the doctrine of wilful blindness that was effected by the Court in Adili Chibuike Ejike v Public Prosecutor [2019] SGCA 38. Similarly, in Ilechukwu Uchechukwu Chukwudi v Public Prosecutor [2020] SGCA 90, the SGCA found that the requirements for reopening were met and subsequently set aside the previous conviction of the applicant on a drug trafficking charge in the light of the fresh evidence, which arose out of exceptional circumstances, i.e., an opinion proffered by the Prosecution’s psychiatrist instead of the Applicant’s own appointed psychiatrist.[32]  These cases illustrate that while the bar has been set high for reopening concluded criminal appeals[33], it is not impossible to plead a successful case, and the system remains adequate for an applicant seeking to make a meritorious case following a concluded appeal. The present law of reopening in Singapore is one that delicately balances the need to protect the integrity of the judiciary and to prevent an abuse of process while ensuring that recourse is given to such applicants.

5. Conclusion

It has been said that “the test of a country’s justice is not the blunders which are sometimes made, but the zeal with which they are put right”.[34] While this article does not seek to allege that the court has made a “blunder”, it is suggested that the latter part of the quote is of relevance. This article is concerned with whether the present avenues made available to applicants who seek to reopen a concluded criminal matter is adequate – In reviewing the law as it stands and surveying the law in other jurisdictions, it is opined that it is indeed adequate.


Written by:
Annabel Kwek* (Research Director for The Recourse Initiative)
Kayleigh Lim* (Assistant Research Director for The Recourse Initiative)
Chua Kang Le (Assistant Research Director for The Recourse Initiative)

*All opinions or views expressed in this article are those of the authors and do not represent those of The Recourse Initiative or the National University of Singapore


References

[1] Kho Jabing at [48]

[2] See for e.g. Vignes s/o Mourthi v Public Prosecutor (No. 3) [2003] 4 SLR 518 at 521.

[3] Yong Vui Kong at [12]-[16]

[4] Kho Jabing at [77]

[5] Kho Jabing at [134]

[6] S394H of the CPC

[7] S394K of the CPC

[8] Mohammad Yusof bin Jantan [2021] SGHC 148 at [12]-[13]

[9] CPC s 394J(2)

[10] CPC s 394J(3)

[11] CPC s 394J(4)

[12] Kho Jabing at [

[13] CPC s 394(6)

[14] CPC s 394(5)

[15] CPC s 394J(7)

[16] CPC s394J(1)(b)

[17] Mohammad Yusof bin Jantan v Public Prosecutor [2021] SGHC 148 at [14].

[18] See for e.g., ibid.

[19] Richard Noble and David Schiff, “The Criminal Cases Review Commission: Reporting Success?”, Mar 2001, Vol 64, No. 2 280 at 282

[20] Ibid at 283

[21] Ibid at 281

[22] The Criminal Appeal Act 1995 (c 35) (UK) s 13

[23] R v Criminal Cases Review Commission, ex parte Pearson [1999] 3 All ER 498 at 518

[24] Supra note 16 s 17

[25] Ibid s 18A

[26] Ibid s 20

[27] Ministry of Justice, New Zealand, “Criminal Cases Review Commission”, <https://www.justice.govt.nz/justice-sector-policy/key-initiatives/criminal-cases-review-commission/>, accessed 31 Jul 2021

[28] Nino Bucci, “Forensic Examination: the case for a criminal review commission in Australia” 17 Jul 2021, <https://www.theguardian.com/law/2021/jul/18/forensic-examination-the-case-for-a-criminal-review-commission-in-australia>, accessed 31 Jul 2021

[29] Department of Justice, Canada, 31 Mar 2021 <https://www.canada.ca/en/department-justice/news/2021/03/minister-of-justice-and-attorney-general-of-canada-takes-important-step-toward-creation-of-an-independent-criminal-case-review-commission.html>, accessed 31 Jul 2021

[30] R (Charles) v Criminal Cases Review Commission [2017] EWHC 1219 (Admin) at [65]

[31] Supra note 17

[32] [2020] SGCA 90 at [182]-[184]

[33] Kho Jabing

[34] Quoted in “The Criminal Appellate System in Singapore” (1995) 16 Sing L. Rev 319.

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