GIL v PUBLIC PROSECUTOR

Facts

The applicant, GIL, was convicted after a trial in the District Court of outrage of modesty under s 354(2) of the Penal Code. The Prosecution's case was that during a sleepover on 27 February 2021, while his daughter and her 12-year-old friend sat under a duvet on a bunk bed designing outfits on a phone application, he slipped his hand under the duvet and touched the victim. On appeal in HC/MA 9043/2024, he argued that data from his Amazfit smartwatch showed he was asleep at around 1.57am, when the victim said the offence occurred, and that s 116A(1) of the Evidence Act 1893 required the court to presume that data was accurate. The High Court judge disagreed and dismissed the appeal in GIL v Public Prosecutor [2024] SGHC 287.

In Criminal Motion No 42 of 2024, the applicant sought permission under s 397(1) of the Criminal Procedure Code 2010 to refer to the Court of Appeal a question on whether s 116A(1) presumes only accurate communication of an electronic record or also its accuracy and reliability. He claimed a conflict of judicial authority with Super Group and Telemedia.

Issues

1. Whether there was a conflict of judicial authority on the interpretation of s 116A(1) of the Evidence Act
2. Whether the Judge's determination of the question affected the outcome of the case

Holding

The Court of Appeal dismissed the application for permission to refer the question on 7 March 2025, finding no conflict of judicial authority and that the answer to the question had not affected the outcome. It made no order as to costs.

Reasoning

On the first issue, the court looked to the parliamentary debates and the Explanatory Statement for the 2012 amendment and concluded that s 116A(1) presumes that a device in working order accurately produced or communicated the electronic record, not that the content of the record is true. It read Telemedia Pacific Group Ltd v Credit Agricole (Suisse) SA (Yeh Mao-Yuan, third party) [2015] 1 SLR 338 as applying the presumption and then weighing the evidence as a whole, and Super Group Ltd v Mysore Nagaraja Kartik [2019] 4 SLR 692 as using it to admit email headers whose reliability still had to be assessed. Both were consistent with the Judge's reading. Applied here, the presumption covered at most the raw heart rate and step count recorded by the watch, not its conclusion that the wearer was asleep. The court rejected a proposed distinction between data produced by a machine and data from human input: a machine's analysis is not more reliable for being automated, and no evidence was led on how the watch detected sleep. The presumption does not dispense with or shift the burden of proving reliability.

On the second issue, which was not strictly necessary once there was no question of public interest, the Judge had made clear that even if the watch data were accepted, it would only show the victim was mistaken about the exact time. On the applicant's own evidence he was in the bedroom from about 11.27pm to 1.03am, and the victim's evidence remained credible. The outcome would not have changed, so the requirement in s 397(1) was not met.

From the judgment