Case Details
- Citation: [2016] SGHC 170
- Title: Public Prosecutor v BAU
- Court: High Court of the Republic of Singapore
- Date of Decision: 25 August 2016
- Case Number: Criminal Case No 6 of 2016
- Coram: Woo Bih Li J
- Plaintiff/Applicant: Public Prosecutor
- Defendant/Respondent: BAU
- Counsel for Prosecution: Wong Kok Weng and Soh Weiqi (Attorney-General’s Chambers)
- Counsel for Accused: S K Kumar (S K Kumar Law Practice LLP)
- Legal Areas: Criminal Law — Statutory Offences; Criminal Law — Offences
- Statutes Referenced: Children and Young Persons Act; Criminal Procedure Code; Evidence Act
- Key Statutory Provisions Mentioned in Extract: Children and Young Persons Act s 7(a); Penal Code s 376A(1)(b) and s 376A(3); Evidence Act s 161; Evidence Act s 156; Criminal Procedure Code (Cap 68, 2012 Rev Ed)
- Judgment Length: 18 pages, 8,712 words
- Cases Cited: [2016] SGHC 170 (as per metadata); Tan Yock Lin, Criminal Procedure (LexisNexis, Looseleaf Ed, 2010); Sarkar, Law of Evidence in India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia and Singapore (LexisNexis, 16th Ed, 2007)
Summary
Public Prosecutor v BAU [2016] SGHC 170 arose from allegations of sexual offending against a minor, involving multiple charges under the Children and Young Persons Act (indecent acts with a child) and the Penal Code (sexual penetration of a person under 16). The complainant, referred to as “V” (PW1), was 13 years old at the time she made police statements. When she later testified in court, she professed difficulty remembering material events and declined to give substantive evidence, despite having previously provided detailed accounts to the police.
The High Court (Woo Bih Li J) addressed two important evidential questions that frequently arise in sexual offence prosecutions involving young complainants: first, whether the prosecution could rely on the complainant’s earlier police statements to refresh her memory under s 161 of the Evidence Act; and second, whether the prosecution could cross-examine its own witness under s 156 after the complainant declined to read or meaningfully engage with the statements. The court adopted a purposive approach to s 161, holding that it is not confined to situations where the witness personally requests to refresh memory, and that the “writing made by himself” requirement does not exclude statements recorded by police officers and signed by the witness.
What Were the Facts of This Case?
BAU faced four charges arising from 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, V, was the child of BAU’s stepfather relationship and was then about 13 years old. The first and second charges alleged indecent acts with a child under s 7(a) of the Children and Young Persons Act: (1) kissing V on the mouth, and (2) licking her vagina. The fourth charge also alleged an indecent act: brushing BAU’s penis against V’s groin area until ejaculation. The third charge alleged sexual penetration with a finger into V’s vagina with her consent, framed as an offence under s 376A(1)(b) and punishable under s 376A(3) of the Penal Code, because V was under 16 years of age.
V was the first and main witness for the prosecution. She admitted that she had made a police report dated 2 August 2012 (marked Exhibit “P1”) about being molested by BAU. However, in court she said she could not remember whether the contents of the report were true. She also stated she could not remember material events on 26 and 27 July 2012, even though the alleged offences were said to have occurred on 27 July 2012. This lack of memory created a practical evidential problem: the prosecution needed to elicit reliable testimony from V, but V’s inability to recall undermined the usual narrative evidence expected from a complainant.
To address this, the prosecution applied under s 161 of the Evidence Act to adduce two statements V had made to the police, for the purpose of refreshing her memory. 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. V was 13 years old when she gave her first statement. The court accepted that the first statement was sufficiently contemporaneous to satisfy s 161(1), given the gravity of the alleged acts and the detailed account V gave in that statement.
Although the second statement was recorded about 48 days after the alleged transactions and about 42 days after the first statement, the court considered more than mere time lapse. It took into account V’s age, the nature of the transactions, the fact that V had already given a detailed account in the first statement, whether she was asked to read the first statement and whether she wished to amend it when giving the second statement, and V’s demeanour in court. Importantly, the defence did not challenge the prosecution’s application under s 161(1) on the ground of lack of contemporaneity for the second statement.
What Were the Key Legal Issues?
The first key issue concerned the proper interpretation and scope of s 161 of the Evidence Act. Specifically, the defence raised two points: (a) whether s 161(1) is confined to situations where the witness himself requests to refresh his memory from the document, given that the provision uses the phrase “A witness may … refresh his memory”; and (b) whether the document must be in the witness’s own handwriting, since s 161(1) refers to “any writing made by himself”.
The second key issue concerned the prosecution’s ability to cross-examine V after she declined to read the statements and declined to give substantive evidence. The prosecution applied under s 156 of the Evidence Act, which provides that the court may, in its discretion, permit the person who calls a witness to put questions that might be put in cross-examination by the adverse party. The question was whether the circumstances justified the court’s exercise of discretion, particularly where the witness’s refusal to engage with the statements could be characterised as hostility, suppression, or simply inability to remember.
How Did the Court Analyse the Issues?
On the s 161 interpretation, Woo Bih Li J emphasised that the court should take a purposive approach. 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. The court reasoned that it would be unrealistic to confine the provision only to cases where the witness himself initiates the request to refresh memory. In many trials, the time between the alleged transaction and the witness’s testimony may be significant, and a witness may not remember not only the events but also the existence or contents of the document that could refresh memory.
Accordingly, the court held that s 161(1) is not confined to situations where the witness personally requests to refresh memory. Either side may apply to permit the witness’s memory to be refreshed. This approach reflects the practical reality of criminal trials, where the prosecution may need to address a witness’s claimed inability to recall, especially in cases involving vulnerable complainants. The court also observed that the defence did not address the possibility that the witness might not remember the document’s existence or contents; rather, the defence’s submission assumed that the witness would control whether to use the document.
The court then addressed the second interpretive point: the meaning of “any writing made by himself” in s 161(1). The defence argued for a literal reading, contending that a police statement recorded by an officer would not fall within s 161(1), even though s 161(2) allows the witness to refer to a statement made by another person if the witness read it within the relevant time and knew it to be correct. The prosecution relied on commentary (Tan Yock Lin, Criminal Procedure) suggesting that a police statement may still be treated as a statement made by the witness for the purpose of refreshing memory, particularly where the witness made the statement at the police’s recording process and signs it.
Woo Bih Li J accepted the purposive reasoning and rejected a strict handwriting requirement. The court noted that s 161(1) was enacted at a time when statements were often in the witness’s own handwriting. With modern technology and standard police recording practices, that assumption is no longer accurate. The court held that there was no reason to confine s 161(1) to statements in the witness’s own handwriting. A statement recorded by someone else but signed by the witness should be equally caught by s 161(1). The court was careful to distinguish between the admissibility of the statement for memory refreshing and the separate question of voluntariness or accuracy, which would be addressed under other evidential rules.
At the same time, the court stressed that it remained for the prosecution to prove that the statements were indeed recorded by someone else in accordance with the Criminal Procedure Code. The court’s decision to allow the application under s 161(1) was therefore premised on the expectation that the prosecution would adduce evidence establishing that the statements were properly recorded and were statements of V. After the application was allowed, the prosecution produced the originals of the statements and made certified true copies available. However, V declined to read the contents of the statements, stating that it was a long time ago and that she did not wish to refresh her memory from either statement.
This led to the s 156 issue. The prosecution applied to cross-examine V under s 156. Woo Bih Li J considered the submissions on whether V was hostile. The prosecution argued that V’s evidence showed hostility, while the defence argued she was not hostile merely because she did not wish to refer to the documents. The court agreed with the view that the discretion under s 156 is broad and not dependent on a strict requirement of hostility or adverseness. The court referred to commentary (Sarkar) indicating that the discretion is absolute and must be exercised carefully to avoid circumventing the general rule that a party may not cross-examine its own witness.
Woo Bih Li J’s assessment of V’s conduct was central. The court found that V had chosen not to give substantive evidence during examination-in-chief for reasons best known to herself and not because she could not truly remember. The court reasoned that if V truly could not remember, she would have considered the contents of the statements to refresh her memory. The court also characterised V’s decision not to give substantive evidence as potentially suppressing the truth. Even if the label of “hostile” were contested, the court held that the circumstances warranted the exercise of discretion in favour of allowing cross-examination under s 156.
After cross-examination, V still declined to give meaningful evidence. She did agree that she had given a detailed statement to the police on 2 August 2012 which she signed (Exhibit “P2”). The extract provided does not include the remainder of the judgment, including the court’s final findings on the substantive charges, but the evidential rulings on s 161 and s 156 are clearly part of the court’s framework for determining what weight could be placed on the police statements and how the court should proceed where a complainant does not engage with the evidence.
What Was the Outcome?
The provided extract focuses on the court’s rulings on evidential applications under ss 161 and 156 of the Evidence Act. Woo Bih Li J allowed the prosecution’s application to refresh V’s memory using her earlier police statements, and subsequently allowed the prosecution’s application to cross-examine V under s 156 after V declined to read the statements and did not provide substantive testimony.
While the remainder of the judgment is truncated in the extract, the practical effect of the court’s decisions is clear: the prosecution was permitted to use the complainant’s earlier statements to address claimed memory failure and to test her evidence through cross-examination, thereby enabling the trial to proceed on the basis of the available evidential record rather than being derailed by the complainant’s refusal to engage.
Why Does This Case Matter?
Public Prosecutor v BAU is significant for practitioners because it clarifies the scope of s 161 of the Evidence Act in the context of sexual offences involving minors. First, it confirms that s 161(1) is not limited to situations where the witness himself requests to refresh memory. This is particularly important where a complainant—especially a child—may be reluctant, traumatised, or simply unable to appreciate the evidential utility of the document at the time of testimony.
Second, the case provides a modern, purposive interpretation of “writing made by himself”. It recognises that police statements are commonly recorded by officers and then signed by the witness, and it rejects an overly literal approach that would exclude such statements from s 161(1). This helps ensure that evidential mechanisms remain functional despite changes in recording practices and technology.
Third, the decision underscores that s 156 discretion is not mechanically tied to a formal finding of hostility. Where a witness refuses to give substantive evidence and does not engage with memory-refreshing documents, the court may permit cross-examination by the party who called the witness. For prosecutors and defence counsel alike, the case illustrates how courts may evaluate demeanour, conduct, and the plausibility of claimed memory loss when deciding whether to allow cross-examination.
Legislation Referenced
- Children and Young Persons Act (Cap. 38, 2001 Rev. Ed.), s 7(a)
- Penal Code (Cap. 224, 2008 Rev. Ed.), s 376A(1)(b) and s 376A(3)
- Evidence Act (Cap. 97, 1997 Rev. Ed.), ss 161 and 156
- Criminal Procedure Code (Cap 68, 2012 Rev. Ed.)
Cases Cited
- [2016] SGHC 170 (as per metadata)
- Tan Yock Lin, Criminal Procedure (LexisNexis, Looseleaf Ed, 2010)
- Sarkar, Law of Evidence in India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia and Singapore (LexisNexis, 16th Ed, 2007)
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.