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Admissibility of Fresh Evidence in a Criminal Trial – Opening Pandora’s Box: Public Prosecutor v Mohd Ariffan bin Mohd Hassan [2018] 1 SLR 544

S Chandra Mohan & Rennie Whang

(2019) 31 SAcLJ 336

The Court of Appeal has had occasion to revisit the rules as to the admissibility of fresh evidence at a criminal appeal. In Public Prosecutor v Mohd Ariffan bin Mohd Hassan [2018] 1 SLR 544, the court approved the three conditions of non availability, relevance and reliability articulated in the English case of Ladd v Marshall [1954] 1 WLR 1489 and further held that these conditions continue to apply “in an unattenuated manner” to applications by the Prosecution to admit further evidence in a criminal appeal. The court thus refused the Prosecution’s application to admit affidavits from witnesses whose evidence could have been obtained with reasonable diligence. However, rather surprisingly, it allowed in part a report from a psychologist, prepared for the appeal and essentially to rebut the findings of the trial judge as to the credibility of the complainant. This note considers the implications of such a modification of the condition of non availability of evidence and the consequence of permitting fresh evidence merely to rebut findings of fact that a trial judge makes on the evidence before him.