Singapore High Court holds Prosecution entitled to assert litigation privilege in criminal proceedings subject to exceptions

20 November 2019

The Singapore High Court in Public Prosecutor v Soh Chee Wen & Anor [2019] SGHC 235 has delivered the jurisdiction’s first decision on the Prosecution’s entitlement to assert litigation privilege. The court held that the Prosecution has the right to assert litigation privilege in criminal proceedings. However, the court highlighted three possible exceptions - the waiver exception, the fraud exception and the necessity exception.

The court considered that litigation privilege may extend to communications between prosecutors/investigators and witnesses (“communications”) in the preparation of conditioned statements and in the preparation of witnesses who are to give evidence in court. The court also set out how such communications should be treated in the course of trial.

Prosecution’s right to assert litigation privilege

The court held that the Prosecution has the right to assert litigation privilege in criminal proceedings. This was premised on the underlying rationale that the purpose of litigation privilege is to ensure the efficacy of the adversarial process. The court considered the general principle that litigants must be left to prepare their positions privately, without adversarial interference and without fear of premature disclosure. It was not disputed that any assertion of litigation privilege by the Prosecution is subject to the Prosecution’s duty of disclosure. 

Communications between prosecutors/investigators and witnesses may be covered by litigation privilege

The court held that for the Prosecution to assert litigation privilege over such communications, the Prosecution would have to show:

• the communications were made at a time when there was a reasonable prospect of litigation; and 
• the communications were made for the dominant purpose of litigation. 

The court also clarified that the litigation privilege would apply to oral communications as well.

Exceptions to litigation privilege 

The court set out the following exceptions to litigation privilege that Defence Counsel may raise:

• Waiver: Litigation privilege would not apply where it has been waived (including implied waiver). Expounding on the doctrine of implied waiver, the court considered the general principle that a party cannot rely on the advantageous aspects of privileged material to advance his case but claim privilege in respect of the less advantageous aspects. The court should subject all the circumstances of each case to objective inquiry to determine, taking into consideration what has already been revealed, whether fairness and consistency require disclosure. This is a fact-sensitive judgment that is made on a case-by-case basis.
• Fraud: The fraud exception would apply to litigation privilege in situations where a witness’s testimony is tainted by misconduct or abuse of process, such as witness tampering or witness coaching.
• Necessity: The Defence may invoke the necessity exception in situations where there is a need to rely on particular evidence for an accused person’s defence. In doing so, the Defence must show that in such a situation, the accused person’s interest outweighs the interest of the Prosecution claiming the privilege.

Approach that was to be adopted at trial

The court set out the following approach that parties were to adopt at trial:

• First, cross-examination should focus on the facts in issue. Where there is concern about a witness’s personal knowledge of the facts in issue and/or his credibility is at stake, the basis of the evidence he has given on the facts would be relevant. If it appears that that basis is rooted in communications during the witness interview/preparation sessions, then those communications would be relevant.
• Second, to object to cross-examination on the basis of litigation privilege, the Prosecution must establish that the conditions for asserting litigation privilege are satisfied in respect of the communications.
• Third, if Defence Counsel intends to contend that litigation privilege is not applicable, he must show that at least one of the exceptions applies.

Comment

The court’s observations in this case deal with the steps to be taken during a trial where the Prosecution asserts litigation privilege. These observations are equally important when preparing for trial.

It is now clear that the Prosecution is entitled to claim litigation privilege over pre-trial communications with its witnesses. It is therefore important for parties to assess whether the Prosecution is likely to assert privilege over evidence that is intended to be sought during the trial. Parties need to be prepared to ask the correct questions during the trial to either show that the communications are not covered by litigation privilege, or that any of the exceptions apply such that litigation privilege should not attach to the communications in question.