TANGARAJU S/O SUPPIAH v PUBLIC PROSECUTOR

Facts

Tangaraju s/o Suppiah was convicted of abetting, by conspiracy, the trafficking of 1017.9g of cannabis, which the courier Mogan Valo was to deliver to him, and received the mandatory death sentence. The trial judge found that he used the phone number that coordinated the delivery on 6 and 7 September 2013, relying on the evidence of Mogan and of Suresh (the applicant's childhood friend, arrested at the McDonald's outlet where the handover was to take place) and on the applicant's own admission that he used the second number, which Mogan said belonged to the same person as the first. The Court of Appeal dismissed his appeal in CCA 38 on 14 August 2019.

On 7 November 2022 he filed Criminal Motion No 25 of 2022, later amended into an application under s 394H of the Criminal Procedure Code 2010 for permission to review that decision. He relied on Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984, decided on 31 March 2020, on the Prosecution's duty to disclose statements of material witnesses, arguing that the statements of Mogan, Suresh, Shashi (Suresh's friend, who had the car) and Salina (Mogan's girlfriend), and the phone records for both numbers, should have been disclosed. A single judge of the Court of Appeal heard the application.

Issues

1. Whether the undisclosed statements of Mogan, Suresh, Shashi and Salina were sufficient material showing a miscarriage of justice
2. Whether the non-disclosure of the phone records engaged the change in the law in Nabill
3. Whether there was a legitimate basis for the court to review the concluded appeal

Holding

The court dismissed the application summarily under s 394H(7) without setting it down for hearing, finding no legitimate basis to review the concluded appeal in CCA 38.

Reasoning

A change in the law is not a licence to reopen concluded appeals. The new material must be compelling enough to show almost conclusively a miscarriage of justice, meaning the earlier decision was demonstrably wrong.

Mogan and Suresh testified for the Prosecution, and Nabill expressly left open whether statements of material witnesses who are Prosecution witnesses must be disclosed. In any event CCA 38 had already considered the absence of their statements, found no breach of the Prosecution's Kadar obligations, and held that the other evidence supported the conviction.

Shashi, who could not be located, was a material witness, so under Nabill his statements should have been disclosed. But the trial judge had already considered that his evidence might contradict Suresh's and found the conviction safe, and the point was raised in CCA 38, where the conviction was upheld on objective evidence and Mogan's evidence linking the applicant to the first number. Non-disclosure therefore could not show the decision was demonstrably wrong.

Salina was not a material witness: being beside Mogan during one call did not mean she could confirm or contradict the defence, and there was no evidence she knew who the applicant was. CNB officers had overheard the later calls.

The phone records fell outside Nabill, which concerns statements of material witnesses not called by the Prosecution. In any case the investigating officer testified that the call records were no longer available when she applied for them, so there was nothing to place before the court.

From the judgment