Author: Mathavan Devadas
Contact: [email protected]
UNUSED MATERIAL
The CPC amendments which came into force on 14 February 2025 have sought to codify the common law position on unused material.
At section 221A(1) of the CPC “unused material” is now defined as any material
A “material witness” is defined in the Code as any witness (other than a prosecution witness) who may confirm or contradict, in material respects, an accused person’s defence as may be set out in (a) the accused person’s statement or statements to the relevant law enforcement agency, (b) the Case for the Defence; or (c) the accused’s testimony in court (see s221A(2)). The Court of Appeal has held that a “material witness” is a witness who can be expected to confirm or, conversely, contradict an accused person’s defence in material respects (see Muhammad Nabill bin Mohd Fuad v PP [2020] 1 SLR 984).
In Muhammad Nabill bin Mohd Fuad v PP, the Court of Appeal held that the Prosecution ought to be under a duty to disclose a material witness’s statement to the Defence (‘the additional disclosure obligations’). There were two reasons that justified the imposition of the additional disclosure obligations. First, the Prosecution might, despite acting in good faith, fail to disclose statements which might tend to support the defence. Second, an accused person ought to have access to all relevant information in order to make an informed choice in deciding whether or not to call a material witness. For the purposes of the additional disclosure obligations, it did not matter whether the statement was favourable, neutral, or adverse to the accused person. The additional disclosure obligations did not require the Prosecution to carry out a prior assessment of whether the statement was prima facie credible and relevant to the guilt or innocence of the accused person. The Court of Appeal also held that the Prosecution has no duty to call a material witness. However, in appropriate circumstances, the Prosecution’s failure to call a material witness might mean that it had failed to discharge its evidential burden to rebut an accused person’s defence. In this regard, the Prosecution would not need to call material witnesses if it were satisfied that it could rely on other evidence to discharge its evidential burden, or if the accused person’s defence was patently and inherently incredible to begin with. The Prosecution’s failure to call a material witness might entitle the court in certain circumstances to draw an adverse inference6 that the evidence of that material witness would have been unfavourable to the Prosecution, if the Prosecution was unable to satisfy the court that it had good reason not to call that witness.
In Roshdi bin Abdullah Altway v PP and another matter [2022] 1 SLR 535, the Court of Appeal held that If the prosecution was in any doubt as to whether a witness was material it should generally err on the side of disclosure.
The term “unused material” first surfaced in earnest in Muhammad bin Kadar v PP [2011] 3 SLR 1205, where the Court of Appeal held that the prosecution must disclose unused material that is likely to be admissible and might reasonably be regarded as credible and relevant to the guilt or innocence of the accused; and any unused material that is likely to be inadmissible but would provide a real (not fanciful) chance of pursing a line of inquiry that leads to material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused. The High Court has subsequently sought to define the term as any material which was part of the prosecution’s affirmative rather than responsive case (see Xu Yuanchen v PP and another matter [2021] 4 SLR 719).
In English law it has long been the case that the prosecution is obliged to make available to the defence any material not led in evidence in the prosecution case, and which may assist the accused person, see on this Reg v Preston and others [1994] 2 AC 130. In Reg v Mills [1998] AC 382, the House of Lords approved of the statement that “where the prosecution have taken a statement from a person whom they know can give material evidence but decide not to call him as a witness, they are under a duty to make that person available as a witness for the defence……the duty should normally be performed by supplying copies of the witness statements to the defence or allowing them to inspect the statements and make copies”. In Reg v Stinchcombe69 CCC (3d), the Supreme Court of Canada seemed to go further when it held “ …..the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done…..”. See also Linton Berry v The Queen [1992] 2 AC 364, where the Privy Council held that where a prosecution witness’s evidence was a departure from his deposition, it was the duty of the prosecution to give the defence a copy of the statement in advance of the trial. In Regina v H and others [2004] 2 AC 134, the House of Lords held that “Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, should be disclosed to the defence”.
The new amendments (see s221B(1)) now require the prosecution to serve the following materials on the defence:
With respect to the case disclosure process, the prosecution is required to serve on the defence any unused material in relation to the charge or charges at the same time that the Case for the Prosecution is served on the defence (see s221B(3(a)). Where the case where the Case for the Defence has been served on the prosecution must then serve any statement of any material witness that relates to the charge or charges, two weeks after such service (see s221B(3)(b)(i). Where the Case for the Defence is not served, the statement of any material witness should be served after the accused has testified in court or has elected not to testify in court(see s221B(3)(b)(ii). A transcript (if any) of any other statement given by the accused and recorded, in the form of an audiovisual recording should be served after the accused has testified in court or has elected not to testify in court (see s221(3)(c).
Where the criminal case disclosure process does not apply, the prosecution should serve any unused material in relation to the charge or charges prior to the commencement of the trial (see s221B(4)(a). Any statement of any material witness, any written statement made by the accused at any time and a transcript of any other statement given by the accused person and recorded, in the form of an audiovisual recording should be served after the accused has testified in court or has elected not to testify in court (see s221B(4)(b).
The prosecution has a continuing obligation to serve, as soon as reasonably practicable, any unused material, or statement of any material witness, that relates to the charge or charges which might surface before the end of the trial (see s221D(1)). In this respect see also Muhammad Nabill bin Mohd Fuad v PP , where the Court of Appeal were of the view that the Prosecution’s additional disclosure obligations continued until the proceedings against the accused person (including any appeal) had been completely disposed of, if the relevance of a particular material witness’s evidence only became apparent after the accused person had testified at the trial, then that witness’s statement should be disclosed to the defence at that juncture.
Should, however, any material witness be identified after service of all unused material the prosecution is under no obligation to record a statement from that witness (see s221D(2).
CASE DISCLOSURE
Under s163(3) of the CPC an accused person can now be cross-examined on the failure to file a Case for Defence and the court can draw inferences from such failure.
If the prosecution does not comply with any of the case disclosure provisions, a discharge not amounting to an acquittal can be ordered (see s162(2)).
The High Court case disclosure provisions have now been amended to also permit the court to draw inferences from the failure to comply with the respective provisions (see s221(1)).
Similarly a discharge not amounting to an acquittal can be ordered if the prosecution fails to comply with any of the provisions (see s221(2)).
Contact: [email protected]
UNUSED MATERIAL
The CPC amendments which came into force on 14 February 2025 have sought to codify the common law position on unused material.
At section 221A(1) of the CPC “unused material” is now defined as any material
- in the prosecution’s possession, other than any written statement made by an accused and recorded by an officer of a law enforcement agency under any law; or any other statement given by the accused and recorded, in the form of an audiovisual recording, by any law enforcement agency;
- that the prosecution does not include either in the Case for the Prosecution or in a notice to call witnesses; or does not intend to adduce in evidence at the trial;
- that is likely to be admissible and is prima facie credible and relevant to the guilt or innocence of an accused person; or likely to be inadmissible, but would provide a real (not fanciful) chance of pursuing a line of inquiry that leads to material relevant to the guilt or innocence of an accused person; and
- that either tends to undermine the prosecution’s case; or support the accused’s defence.
A “material witness” is defined in the Code as any witness (other than a prosecution witness) who may confirm or contradict, in material respects, an accused person’s defence as may be set out in (a) the accused person’s statement or statements to the relevant law enforcement agency, (b) the Case for the Defence; or (c) the accused’s testimony in court (see s221A(2)). The Court of Appeal has held that a “material witness” is a witness who can be expected to confirm or, conversely, contradict an accused person’s defence in material respects (see Muhammad Nabill bin Mohd Fuad v PP [2020] 1 SLR 984).
In Muhammad Nabill bin Mohd Fuad v PP, the Court of Appeal held that the Prosecution ought to be under a duty to disclose a material witness’s statement to the Defence (‘the additional disclosure obligations’). There were two reasons that justified the imposition of the additional disclosure obligations. First, the Prosecution might, despite acting in good faith, fail to disclose statements which might tend to support the defence. Second, an accused person ought to have access to all relevant information in order to make an informed choice in deciding whether or not to call a material witness. For the purposes of the additional disclosure obligations, it did not matter whether the statement was favourable, neutral, or adverse to the accused person. The additional disclosure obligations did not require the Prosecution to carry out a prior assessment of whether the statement was prima facie credible and relevant to the guilt or innocence of the accused person. The Court of Appeal also held that the Prosecution has no duty to call a material witness. However, in appropriate circumstances, the Prosecution’s failure to call a material witness might mean that it had failed to discharge its evidential burden to rebut an accused person’s defence. In this regard, the Prosecution would not need to call material witnesses if it were satisfied that it could rely on other evidence to discharge its evidential burden, or if the accused person’s defence was patently and inherently incredible to begin with. The Prosecution’s failure to call a material witness might entitle the court in certain circumstances to draw an adverse inference6 that the evidence of that material witness would have been unfavourable to the Prosecution, if the Prosecution was unable to satisfy the court that it had good reason not to call that witness.
In Roshdi bin Abdullah Altway v PP and another matter [2022] 1 SLR 535, the Court of Appeal held that If the prosecution was in any doubt as to whether a witness was material it should generally err on the side of disclosure.
The term “unused material” first surfaced in earnest in Muhammad bin Kadar v PP [2011] 3 SLR 1205, where the Court of Appeal held that the prosecution must disclose unused material that is likely to be admissible and might reasonably be regarded as credible and relevant to the guilt or innocence of the accused; and any unused material that is likely to be inadmissible but would provide a real (not fanciful) chance of pursing a line of inquiry that leads to material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused. The High Court has subsequently sought to define the term as any material which was part of the prosecution’s affirmative rather than responsive case (see Xu Yuanchen v PP and another matter [2021] 4 SLR 719).
In English law it has long been the case that the prosecution is obliged to make available to the defence any material not led in evidence in the prosecution case, and which may assist the accused person, see on this Reg v Preston and others [1994] 2 AC 130. In Reg v Mills [1998] AC 382, the House of Lords approved of the statement that “where the prosecution have taken a statement from a person whom they know can give material evidence but decide not to call him as a witness, they are under a duty to make that person available as a witness for the defence……the duty should normally be performed by supplying copies of the witness statements to the defence or allowing them to inspect the statements and make copies”. In Reg v Stinchcombe69 CCC (3d), the Supreme Court of Canada seemed to go further when it held “ …..the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done…..”. See also Linton Berry v The Queen [1992] 2 AC 364, where the Privy Council held that where a prosecution witness’s evidence was a departure from his deposition, it was the duty of the prosecution to give the defence a copy of the statement in advance of the trial. In Regina v H and others [2004] 2 AC 134, the House of Lords held that “Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, should be disclosed to the defence”.
The new amendments (see s221B(1)) now require the prosecution to serve the following materials on the defence:
- any unused material in relation to the charge or charges to be, or that are, proceeded with at the trial;
- any statement of any material witness that relates to the charge or charges to be, or that are, proceeded with at the trial;
- any written statement or transcript of a statement recorded in audiovisual form made by the accused person at any time in relation to the charge or charges proceeded with at the trial, which the prosecution did not adduce in evidence at the trial at any time before the accused has completed his or her testimony in court or has elected not to testify, whichever is applicable.
With respect to the case disclosure process, the prosecution is required to serve on the defence any unused material in relation to the charge or charges at the same time that the Case for the Prosecution is served on the defence (see s221B(3(a)). Where the case where the Case for the Defence has been served on the prosecution must then serve any statement of any material witness that relates to the charge or charges, two weeks after such service (see s221B(3)(b)(i). Where the Case for the Defence is not served, the statement of any material witness should be served after the accused has testified in court or has elected not to testify in court(see s221B(3)(b)(ii). A transcript (if any) of any other statement given by the accused and recorded, in the form of an audiovisual recording should be served after the accused has testified in court or has elected not to testify in court (see s221(3)(c).
Where the criminal case disclosure process does not apply, the prosecution should serve any unused material in relation to the charge or charges prior to the commencement of the trial (see s221B(4)(a). Any statement of any material witness, any written statement made by the accused at any time and a transcript of any other statement given by the accused person and recorded, in the form of an audiovisual recording should be served after the accused has testified in court or has elected not to testify in court (see s221B(4)(b).
The prosecution has a continuing obligation to serve, as soon as reasonably practicable, any unused material, or statement of any material witness, that relates to the charge or charges which might surface before the end of the trial (see s221D(1)). In this respect see also Muhammad Nabill bin Mohd Fuad v PP , where the Court of Appeal were of the view that the Prosecution’s additional disclosure obligations continued until the proceedings against the accused person (including any appeal) had been completely disposed of, if the relevance of a particular material witness’s evidence only became apparent after the accused person had testified at the trial, then that witness’s statement should be disclosed to the defence at that juncture.
Should, however, any material witness be identified after service of all unused material the prosecution is under no obligation to record a statement from that witness (see s221D(2).
CASE DISCLOSURE
Under s163(3) of the CPC an accused person can now be cross-examined on the failure to file a Case for Defence and the court can draw inferences from such failure.
If the prosecution does not comply with any of the case disclosure provisions, a discharge not amounting to an acquittal can be ordered (see s162(2)).
The High Court case disclosure provisions have now been amended to also permit the court to draw inferences from the failure to comply with the respective provisions (see s221(1)).
Similarly a discharge not amounting to an acquittal can be ordered if the prosecution fails to comply with any of the provisions (see s221(2)).
21 June 2025
