Case Details
- Title: PUBLIC PROSECUTOR v BAU
- Citation: [2016] SGHC 170
- Court: High Court of the Republic of Singapore
- Date: 25 August 2016
- Judges: Woo Bih Li J
- Criminal Case No: Criminal Case No 6 of 2016
- Plaintiff/Applicant: Public Prosecutor
- Defendant/Respondent: BAU
- Legal Areas: Criminal Law; Statutory Offences; Sexual Offences Involving Minors; Evidence
- Statutes Referenced: Evidence Act (Cap 97); Children and Young Persons Act (Cap 38); Penal Code (Cap 224)
- Key Evidence Provision Discussed: Section 161 and Section 156 of the Evidence Act
- Cases Cited: [2016] SGHC 170 (as provided in metadata)
- Judgment Length: 34 pages, 9,154 words
- Hearing Dates: 16–19, 23–26 February; 31 March; 10–11 May; 1 June 2016
- Decision Date: 25 August 2016 (Judgment reserved)
Summary
Public Prosecutor v BAU ([2016] SGHC 170) concerned allegations of sexual abuse of a 13-year-old child by her stepfather. BAU faced four charges: two counts of committing indecent acts with a child under s 7(a) of the Children and Young Persons Act (Cap 38), and one count of sexual penetration of a minor under s 376A(1)(b) and punishable under s 376A(3) of the Penal Code (Cap 224). The fourth charge was again an indecent act with a child under s 7(a) of the Children and Young Persons Act.
The High Court’s decision turned not only on the substantive allegations but also on evidential rulings regarding how the prosecution could deal with a complainant who could not (or would not) recall key events in court. The complainant, “V”, had previously made police statements soon after the alleged incidents. When V testified in 2016, she said she could not remember whether her earlier police report was true and could not remember material events on the relevant dates. The prosecution applied to refresh her memory using two earlier statements, raising important questions about the scope of s 161(1) of the Evidence Act and whether the “writing made by himself” requirement prevented reliance on police-recorded statements.
The court adopted a purposive approach to s 161(1), holding that the provision was not confined to situations where the witness personally requests to refresh memory, and that the “writing made by himself” language should not be read literally to exclude statements recorded by police officers and signed by the witness. The court also addressed the prosecution’s subsequent application under s 156 of the Evidence Act to cross-examine its own witness, emphasising the breadth of the court’s discretion and the need to avoid circumventing the general rule against cross-examining one’s own witness.
What Were the Facts of This Case?
BAU was charged in relation to events alleged to have occurred on 27 July 2012 at about 2.15 p.m. at an address that was redacted in the judgment. The complainant was a child, “V”, who was then about 13 years old. The allegations were that BAU, who was V’s stepfather, committed multiple sexual offences against her in a single episode.
Under the first charge, BAU was alleged to have committed an indecent act with a child by kissing V on the mouth. Under the second charge, BAU was alleged to have committed an indecent act with a child by licking V’s vagina. The third charge alleged that BAU sexually penetrated V’s vagina with his finger, with V’s consent, and that V was a person under 16 years of age. The fourth charge alleged that BAU committed an indecent act with a child by brushing his penis against V’s groin area until he ejaculated.
V was the first and main prosecution witness (PW1). She admitted that she had made a police report dated 2 August 2012 (Exhibit “P1”) about being molested by BAU. However, when she testified in court years later (in 2016), she said she could not remember whether the substance of that report was true or not. She also said she could not remember any material events on the relevant dates, even though the charges were based on what allegedly happened on 27 July 2012.
Because V’s in-court testimony did not provide substantive recall of the alleged incidents, the prosecution sought to refresh her memory. It applied under s 161 of the Evidence Act to adduce two statements V had given to the police. The first statement was recorded on 2 August 2012 at 5.30 a.m. by Station Inspector Irwan Sumarto. The second statement was recorded on 13 September 2012 at 4.33 p.m. by Staff Sergeant Norazmin Yap. The prosecution’s objective was to enable V to regain memory of the transactions described in those statements, so that she could give the best evidence available.
What Were the Key Legal Issues?
The case raised evidential questions under the Evidence Act, particularly concerning the proper interpretation and application of s 161(1) when a witness does not recall the relevant events. The first issue was whether the prosecution could use s 161(1) to refresh the complainant’s memory when it was the prosecution—not the witness—who requested to refresh memory using the earlier statements.
The second issue concerned the meaning of the phrase “any writing made by himself” in s 161(1). The defence argued for a literal reading: that a police statement recorded by an officer would not be a “writing made by” the witness, and therefore could not be used under s 161(1). The prosecution, by contrast, argued that the provision should be interpreted purposively to include statements recorded by police officers and signed by the witness, especially given modern practices where witness statements are often not handwritten by the witness.
A further issue arose after the court allowed the s 161(1) application: whether the prosecution could cross-examine its own witness under s 156 of the Evidence Act. V declined to read the contents of the statements and said she did not wish to refresh her memory from either statement. The prosecution contended that V was hostile, while the defence submitted that she was not hostile merely because she did not wish to refer to the documents. This required the court to consider the scope of the discretion under s 156 and the extent to which it could be exercised to permit cross-examination of one’s own witness.
How Did the Court Analyse the Issues?
The court began by addressing the prosecution’s application under s 161(1) to refresh V’s memory. The court noted that s 161(1) permits a witness to refresh memory by referring to a writing made by himself at the time of the transaction or so soon afterwards that the court considers it likely the transaction was at that time fresh in his memory. Section 161(2) further allows a witness to refer to a writing made by another person and read by the witness within the relevant time, provided the witness knew it to be correct when reading it.
On contemporaneity, the court accepted that the first statement (recorded on 2 August 2012, about six days after the alleged incidents on 27 July 2012) was sufficiently contemporaneous under s 161(1). The court considered V’s age (she was 13 at the time of giving the statement), her intelligence and demeanour in court, and the fact that there was no dispute about the contemporaneity of the first statement. The court found that V was likely to remember the alleged transactions, given their gravity, and that the first statement contained a detailed account.
For the second statement (recorded on 13 September 2012, about 48 days after the alleged incidents and 42 days after the first statement), the court acknowledged that the lapse of time was longer. However, it emphasised that contemporaneity is not determined by time alone. The court considered multiple factors: V’s age; the nature of the transactions; the fact that V had already given a detailed account in the first statement; whether V was asked to read the first statement and whether she wanted to amend it when giving the second statement; and V’s demeanour in court. Importantly, the defence did not challenge the s 161(1) application for lack of contemporaneity, which reinforced the court’s acceptance of the second statement as sufficiently contemporaneous on the facts.
The more novel and contested aspects were the two specific points raised by the court: (1) whether s 161(1) is confined to situations where the witness himself requests to refresh memory, given the wording “A witness may … refresh his memory”; and (2) whether the document must be in the witness’s own handwriting, given the phrase “writing made by himself”. The court held that a purposive approach was required. The purpose of s 161(1) is to allow a witness to refresh memory from a document so that the best evidence may be given in the interests of justice, subject to the safeguards in the provision. If a witness says he cannot remember what happened, it may also be unrealistic to assume he can remember whether the document exists or what it contains. The court therefore rejected a narrow reading that would require the witness to initiate the request.
On the “writing made by himself” point, the defence argued that a police-recorded statement was not a writing made by the witness. The court rejected that literal approach. It reasoned that s 161(1) was enacted at a time when statements were often handwritten by the witness, but modern technology and practice mean statements are frequently recorded by others and then signed by the witness. The court saw no reason to confine s 161(1) to handwritten documents. It held that a statement recorded by someone else but signed by the witness should be equally caught under s 161(1). The court also observed that voluntariness or accuracy of the statement is a separate matter, not determined by whether the witness personally wrote the statement.
Nevertheless, the court emphasised that it remained for the prosecution to prove that the statements were indeed statements recorded by someone else in accordance with the Criminal Procedure Code (Cap 68). The court’s acceptance of the s 161(1) application was therefore premised on the prosecution’s ability to establish the proper recording of the statements. After the court allowed the application, the prosecution produced the originals and made certified true copies available. However, V declined to read the contents of the statements and did not wish to refresh her memory from either statement.
At that stage, the prosecution applied under s 156 of the Evidence Act to cross-examine V. Section 156 provides that the court may, in its discretion, permit the person who calls a witness to put questions to him which might be put in cross-examination by the adverse party. The court addressed the competing submissions on whether V was hostile. The prosecution argued that V’s evidence showed hostility; the defence argued that V was not hostile simply because she did not wish to refer to documents. The court agreed with the defence’s broader point that hostility is not a statutory prerequisite for the exercise of discretion under s 156. It held that the discretion is wide, and while it must be exercised carefully, it is not constrained by a requirement that the witness be hostile or adversarial.
In doing so, the court relied on commentary (including Sarkar’s discussion of the equivalent provision) to explain that the discretion is independent of hostility, though it should not be used liberally to circumvent the general rule that a party may not cross-examine his own witness. The court also noted that a witness may be considered hostile if he prevaricates or suppresses the truth, but the key point was that s 156 is discretionary and not strictly dependent on a formal finding of hostility.
Although the provided extract truncates the remainder of the judgment, the reasoning up to this point shows the court’s approach: it treated the evidential provisions as tools to achieve justice while maintaining safeguards, and it refused to adopt overly technical readings of the Evidence Act that would undermine the purpose of memory-refreshing and controlled cross-examination.
What Was the Outcome?
The extract provided does not include the final “Conclusion” section or the ultimate verdict. However, the court’s evidential rulings are clear: it allowed the prosecution’s applications to refresh V’s memory under s 161(1) using both police statements, interpreting s 161(1) purposively to include police-recorded statements signed by the witness and to permit applications even when the witness does not initiate the request. It also accepted that the prosecution could seek leave to cross-examine under s 156, recognising the breadth of the court’s discretion and the need to avoid improper circumvention of the general rule against cross-examining one’s own witness.
For practitioners, the practical effect of these rulings is significant. They determine what evidence can be placed before the court through memory-refreshing and how the prosecution may respond when a complainant’s in-court testimony is unhelpful due to lack of recall or unwillingness to engage with prior statements.
Why Does This Case Matter?
Public Prosecutor v BAU is a useful authority on the interpretation of s 161(1) of the Evidence Act in the context of sexual offences involving minors, where complainants may be reluctant, traumatised, or unable to recall events years later. The court’s purposive reading clarifies that s 161(1) is not limited to situations where the witness personally requests to refresh memory. This matters because witnesses—especially children—may not understand the procedural mechanism or may be unwilling to engage unless prompted by the court or prosecution.
The decision is also important for evidence practice because it addresses the “writing made by himself” language. By holding that police-recorded statements signed by the witness can fall within s 161(1), the court aligned the provision with contemporary statement-taking practices. This reduces the risk of technical objections that could otherwise exclude memory-refreshing documents merely because they were not handwritten by the witness.
Finally, the court’s discussion of s 156 reinforces that the discretion to permit cross-examination of one’s own witness is broad but must be exercised carefully. For prosecutors, it provides a framework for responding to uncooperative or non-recall witnesses. For defence counsel, it highlights that objections should focus on the proper exercise of discretion and the safeguards against misuse, rather than relying solely on formal labels such as “hostile” or “not hostile”.
Legislation Referenced
- Evidence Act (Cap 97): s 161; s 156
- Children and Young Persons Act (Cap 38, 2001 Rev. Ed.): s 7(a)
- Penal Code (Cap 224, 2008 Rev. Ed.): s 376A(1)(b); s 376A(3)
- Criminal Procedure Code (Cap 68, 2012 Rev. Ed.) (referenced in relation to proof of statement recording)
Cases Cited
- [2016] SGHC 170 (Public Prosecutor v BAU) (as provided in metadata)
Source Documents
This article analyses [2016] SGHC 170 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.