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
- Judgment Reserved: Yes
- 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
- Statutory Framework Referenced: Children and Young Persons Act; Criminal Procedure Code; Evidence Act
- Key Statutes Referenced: Children and Young Persons Act (Cap. 38, 2001 Rev. Ed.); Penal Code (Cap. 224, 2008 Rev. Ed.); Evidence Act (Cap. 97, 1997 Rev. Ed.); Criminal Procedure Code (Cap 68, 2012 Rev Ed.)
- Key Provisions Discussed: Evidence Act s 161; Evidence Act s 156; Children and Young Persons Act s 7(a); Penal Code s 376A(1)(b) and s 376A(3)
- Witness of Fact: V (PW1), alleged victim and complainant
- Reported Evidence Items Mentioned: Police report dated 2 August 2012 (Exhibit P1); statement recorded 2 August 2012 at 5.30am by Station Inspector Irwan Sumarto; statement recorded 13 September 2012 at 4.33pm by Staff Sergeant Norazmin Yap; Exhibit P2 (detailed statement signed by V)
- Length of Judgment: 18 pages, 8,712 words
- Cases Cited: [2016] SGHC 170 (as listed in metadata)
Summary
Public Prosecutor v BAU concerned allegations of sexual offences against a child, including indecent acts and sexual penetration. The complainant, V, was 13 years old at the time she gave police statements in 2012. When she testified years later, she professed inability to remember material events and was reluctant to engage with the contents of her earlier statements. The prosecution sought to refresh her memory using two police statements under s 161 of the Evidence Act and then sought leave to cross-examine her under s 156 when she declined to give meaningful substantive evidence.
The High Court (Woo Bih Li J) addressed two important evidential questions: first, whether s 161(1) is confined to situations where the witness personally requests to refresh memory, and second, whether the “writing made by himself” requirement excludes statements recorded by police officers and not in the witness’s own handwriting. The court adopted a purposive approach and held that s 161(1) is not so confined, and that the document need not be in the witness’s own handwriting; a statement recorded by another person but signed by the witness can fall within s 161(1). The court further exercised its discretion under s 156 to permit cross-examination because the circumstances indicated suppression or prevarication rather than genuine inability to remember.
What Were the Facts of This Case?
The accused, 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 extract. The complainant, V, was then a 13-year-old child. 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 V’s vagina. The third charge alleged sexual penetration with a finger into V’s vagina, with consent, under s 376A(1)(b) and punishable under s 376A(3) of the Penal Code. The fourth charge alleged another indecent act: brushing the accused’s penis against V’s groin area until ejaculation.
V was the first and main witness for the prosecution. She admitted that she had made a police report dated 2 August 2012 (Exhibit P1) about being molested by her stepfather, BAU. However, when she testified in court years later, she said she could not remember whether the contents of the police report were true. She also said she could not remember material events on 26 and 27 July 2012, even though the charges were alleged to have occurred on 27 July 2012.
Given V’s apparent lack of recall, the prosecution applied under s 161 of the Evidence Act to adduce two statements made by V 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 not to treat the statements as independent substantive evidence in the first instance, but to refresh V’s memory so that she could give the best evidence available in court.
At trial, the court accepted that the first statement was sufficiently contemporaneous for the purposes of s 161(1). The first statement was made about six days after the alleged transactions. The court also accepted that the second statement, though made about 48 days after the alleged events and about 42 days after the first statement, was still sufficiently contemporaneous when considered in context. The court considered V’s age, the nature of the allegations, the fact that she had already given a detailed account in her first statement, whether she was asked to read and amend her first statement when giving the second statement, and V’s demeanour in court.
What Were the Key Legal Issues?
The first key issue concerned the proper interpretation of s 161(1) of the Evidence Act. The defence argued that s 161(1) should be read literally and confined to situations where the witness himself requests to refresh memory from the document, because the provision uses the phrase “A witness may … refresh his memory …”. The defence also contended that the phrase “any writing made by himself” meant that the writing must be made by the witness personally, implying that a police-recorded statement not in the witness’s own handwriting should not fall within s 161(1).
The second key issue arose after the court allowed the prosecution’s s 161 application. Although the prosecution produced the originals of the statements and made certified true copies available, V declined to read the contents of the statements. She said it was a long time ago and she did not wish to refresh her memory from either statement. The prosecution then applied under s 156 of the Evidence Act to cross-examine V. The issue was whether the court should exercise its discretion to permit cross-examination, and whether the circumstances justified treating V as hostile or, at minimum, as a witness whose conduct warranted cross-examination to test her evidence.
How Did the Court Analyse the Issues?
On the s 161(1) interpretation, the court began by reaffirming that the Evidence Act should be interpreted purposively. The purpose of s 161(1) is to allow a witness to refresh memory from a document so that the court can receive the best evidence, subject to the safeguards built into the provision. The court reasoned that if a witness truly cannot remember what happened, it may also be unrealistic to assume the witness can remember whether the document exists or what it contains. In that scenario, restricting s 161(1) to instances where the witness personally requests to refresh memory would undermine the provision’s purpose.
The court therefore rejected the defence’s narrow reading. It held that s 161(1) is not confined to a situation where the witness himself requests to refresh memory from the document. Either side may apply for permission to refresh the witness’s memory from a document. This approach is consistent with the practical reality that trials may occur long after the events in question, and memory may lapse to varying degrees. The court emphasised that the prosecution’s application was appropriate where the witness’s inability to recall prevented meaningful testimony without the aid of earlier statements.
On the meaning of “any writing made by himself”, the court addressed the defence’s literal argument that a police statement recorded by an officer would fall outside s 161(1). The defence’s position was that s 161(1) requires the witness’s own writing, while s 161(2) deals with references to writings made by other persons, provided the witness knew them to be correct when reading them. The court, however, adopted a purposive approach and noted that s 161(1) was historically enacted in a context where statements were often in the witness’s own handwriting. With modern technology and recording practices, that assumption no longer holds.
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 under s 161(1). The court was careful to distinguish between admissibility for memory-refreshing purposes and questions of voluntariness or accuracy. Those latter matters remain relevant to the weight and reliability of the statement, but they do not determine whether the statement can be used to refresh memory under s 161(1). The court also added an important evidential caveat: it remained for the prosecution to prove that the statements were indeed statements recorded by someone else in accordance with the Criminal Procedure Code. The court’s allowance of the s 161 application was on the premise that such proof would be established.
After the court allowed the s 161 applications, the prosecution produced the originals and certified true copies. Yet V declined to read the statements. This led to the s 156 application. The court analysed the scope of s 156 and the discretion it confers. Section 156 allows the court, in its discretion, to permit the calling party to put questions to the witness that might be put in cross-examination by the adverse party. The defence argued that V was not hostile merely because she did not wish to refer to the documents. The prosecution submitted that V’s evidence showed hostility.
The court agreed with the general principle that the discretion under s 156 is broad and not dependent on a strict requirement of hostility or adverseness. It cited commentary suggesting that the discretion is absolute and independent of hostility, while also warning that the discretion must be exercised carefully to avoid circumventing the general rule against a party cross-examining its own witness. The court further considered whether V’s conduct amounted to prevarication or suppression of truth. It concluded that V had chosen not to give substantive evidence for reasons best known to herself and not because she could not truly remember. The court reasoned that if she genuinely could not remember, she would have considered the contents of the statements to refresh her memory. By contrast, her refusal to engage with the statements suggested suppression rather than genuine forgetfulness.
Accordingly, the court exercised its discretion to permit cross-examination under s 156. Even then, V 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, but the reasoning up to that point demonstrates the court’s approach to evidential management in child sexual offence cases where the complainant’s trial testimony may be unreliable due to memory lapse, reluctance, or other factors.
What Was the Outcome?
Based on the extract, the court’s immediate outcome was procedural and evidential: it allowed the prosecution’s applications under s 161(1) of the Evidence Act to refresh V’s memory using the two police statements, and it subsequently allowed the prosecution’s application under s 156 to cross-examine V when she declined to give substantive evidence. These rulings were central to enabling the trial to proceed with the evidence framework necessary to test the complainant’s account.
The extract does not include the final determination on conviction or acquittal, nor the court’s ultimate assessment of the charges. However, the court’s evidential rulings indicate a willingness to apply a purposive interpretation of the Evidence Act to ensure that memory-refreshing mechanisms and cross-examination discretion are not defeated by rigid technical readings, particularly where the complainant is a child and the trial occurs long after the alleged events.
Why Does This Case Matter?
This case is significant for practitioners because it clarifies two interpretive points about s 161(1) of the Evidence Act. First, it confirms that s 161(1) is not limited to situations where the witness personally requests to refresh memory. Second, it confirms that the “writing made by himself” requirement does not exclude police-recorded statements that are signed by the witness and not written in the witness’s own handwriting. These holdings are practically important in modern criminal trials where statements are commonly recorded by officers and then signed by the witness.
For prosecutors and defence counsel alike, the decision provides guidance on how to structure applications to refresh memory when a witness claims lack of recall. It also underscores that contemporaneity is assessed contextually, not merely by counting days between the alleged events and the statement. The court considered the witness’s age, the nature of the allegations, whether earlier detailed accounts existed, and the witness’s demeanour. This approach supports more nuanced arguments about whether a statement is sufficiently contemporaneous for s 161(1).
Finally, the case illustrates the court’s approach to s 156 discretion in circumstances where a witness refuses to engage with memory-refreshing documents. The court treated refusal to give substantive evidence as potentially indicative of suppression rather than mere inability to remember. Practitioners should take note that s 156 is not a mere formality; it is a meaningful tool to test testimony where the witness’s conduct undermines the reliability of their in-court evidence.
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 156 and 161
- Criminal Procedure Code (Cap 68, 2012 Rev Ed.)
Cases Cited
- [2016] SGHC 170 (as listed in the provided 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.