Destroying and Tampering With Evidence in Singapore
In any civil lawsuit or criminal case, evidence plays an important role. A lack of credible evidence would make it difficult to litigate a case, and this could be a motivating factor for a party to destroy or tamper with evidence.
This article will explore two main questions with respect to destruction and tampering with evidence in Singapore:
- If you have the suspicion that the other party would destroy evidence, what can you do to prevent this from happening?
- If evidence has already been destroyed or tampered with, how may the other party be held accountable?
What Constitutes Destroying and Tampering With Evidence?
In a bid to cover his/her tracks, a person may be tempted to destroy or tamper with evidence which may be detrimental to him/her during trial.
Examples of destroying evidence include:
- Smashing an electronic device, such as a laptop computer storing data
- Deleting documents
As drastic as it may sound, swallowing a memory card constitutes an act of destroying evidence as well.
Back in 2016, a man who had insulted the modesty of a woman was charged for destroying evidence after he swallowed his phone’s memory card with the intention of preventing it from being used as evidence.
This was after he had used his mobile phone to take an upskirt video of a commuter on the bus. The phone’s memory card was never found.
On the other hand, tampering with evidence involves a party altering or making modifications to the record/documents of evidentiary value, or fabricating false evidence to mislead the court on a matter. These may include:
- Editing a video to show a different version of events
- Adding a false entry into an account book
Do note that a claim that evidence has been tampered with must not merely be speculative. Rather, the party alleging such tampering must provide proof of it, such as obtaining and producing expert evidence, to support such a claim.
In one case for example, the appellant’s lawyer had alleged that the prosecution’s late disclosure of a video was prejudicial, as the video could have been edited. However, this claim failed due to the lack of proof.
What to Do If You Suspect that the Other Party May Destroy Evidence
For civil lawsuits
If you are involved in a civil lawsuit and have a genuine suspicion that the other party may destroy incriminating evidence in his possession, you may consider applying for an Anton Piller order.
What is an Anton Piller order?
An Anton Piller order is a search order issued by the court to prevent another party from destroying incriminating evidence. With this order, you will be allowed to enter the other party’s premises to search for, seize and retain items such as documents or records that may be relevant to the trial, or to prevent such items from being destroyed or tampered with.
When will an Anton Piller order be granted?
There is, however, an extremely high threshold to be met before the court will grant an Anton Piller order. Specifically, the applicant must show that obtaining an Anton Piller order is necessary in the interests of justice. In assessing whether to grant an Anton Piller order, the court will be guided by the following factors:
- Whether there is an extremely strong prima facie case. This means that the claim intended to be brought to court must be “extremely strong”. For instance, if you intend to bring a claim against a party for misappropriating company funds based on certain dubious transactions, the court must be convinced that the facts of and supporting documents for the claim establish a strong cause of action.
- Whether the damage would be serious if the Anton Piller order was not granted. The materiality of the evidence to the case will be considered in assessing this requirement. In one case for instance, the judge decided that the destruction of hard copy documents containing bank transaction data, being evidence of the other party’s misappropriation of funds, would lead to serious damage if the Anton Piller order was not granted against the other party.
- Whether there is a real possibility that the other party would destroy relevant evidence. The court may infer this if the conduct of the other party appears untrustworthy such that they may readily destroy evidence. For instance, where the other party had previously destroyed company data in a laptop, or deleted some documents, there is a real possibility that other evidence may also be destroyed. On the contrary, a mere speculation that the other party may destroy evidence is insufficient.
- Whether the effect of the Anton Piller order is proportionate to the legitimate object of preserving the evidence. Even after satisfying the requirements above, the court must be convinced that the harm caused to the applicant by not granting the order will outweigh the harm caused to the defendant by granting the order. For instance, if a company relies greatly on investors’ funding, granting an Anton Piller order may damage the reputation to the company in question, thereby affecting investors’ confidence. Such potential damage will have to be assessed against not allowing the applicant to obtain and potentially preserve certain evidence. If the court is of the view that the applicant’s case is merely speculative, then perhaps the Anton Piller order will not be granted as the harm to the defendant, if the order was granted, would greatly outweigh the harm that the applicant would suffer if the order was not granted.
In any case, time is of the essence. In order to prevent potential destruction of evidence, you will need to act fast.
For criminal cases
In the context of a criminal case, there are a few possible ways in which the police may intervene and prevent the accused person(s) from destroying and tampering with evidence. While these powers of investigation lie with the police, you may, as a victim, consider making a police report about the alleged tampering or destroying of evidence to kickstart investigations.
Generally, the police may issue an order to a person(s) for the production of documents or other things which are considered necessary for investigation, trial or proceeding.
Beyond that, the police may also do searches with or without a search warrant where the circumstances call for such searches.
What is a search warrant?
A search warrant grants one or more police officers, or any authorised persons, to search and seize things, goods, documents, property or persons, in the conduct of an investigation in connection to an offence.
If obtained and executed in time, the search warrant may aid in preventing the destruction and tampering with evidence by the accused person(s). This is because it allows the police officer to, among other activities:
- Enter the place specified under the search warrant with such assistance as required;
- Search the place in the manner specified in the warrant;
- Seize any goods, property or documents found in the place searched which are reasonably suspected to be stolen, unlawfully obtained, forged, false or counterfeit;
- Convey the seized goods before the court.
Search with warrant
The police may apply to court to obtain a search warrant in situations where:
- A person may not comply with a court order to produce certain documents or things
- A search is required for the purposes of investigation, trial or other criminal proceedings
- It is not known who possesses that document or thing
Search without warrant
In relation to preserving evidence, the Criminal Procedure Code empowers the police to also search a place without warrant where:
- A police officer is investigating an arrestable offence, and has reason to believe that the suspect will not produce or may destroy evidence that is necessary for investigation
- A police officer of sergeant rank or above has reason to suspect and believe that a particular place contains stolen property, and that such property is likely to be removed by the time a search warrant is obtained.
Legal Consequences of Destroying and Tampering With Evidence
Adverse inference and/or striking out
Where a person has already destroyed or tampered with evidence, he/she will face legal consequences.
For one, the court may draw an adverse inference against that person. This means that the court may presume that the evidence, had it been produced in its original form, is unfavourable to them.
Further, in civil lawsuits, the court may even strike out the party’s claim/defence. This is regardless of whether the evidence is destroyed before or during the proceedings.
Persons may also face penalties for destroying or tampering with evidence, whether this happened as part of civil or criminal proceedings.
Where a person is found to have destroyed document(s) or electronic record(s) with the intention of preventing the material from being used as evidence in court, he/she may face an imprisonment term of up to 2 years and/or be fined.
On the other hand, where a person is found to have intentionally given or fabricated false evidence for use in any stage of judicial proceedings, he/she may face a heavy imprisonment term of up to 7 years and be fined.
Note that this includes investigations directed by the court, even if such investigations do not actually take place in court.
If the fabrication of evidence was for other purposes not related to use in judicial proceedings, the offender may expect an imprisonment term of up to 3 years and be fined for fabricating evidence.
What if the evidence has already been destroyed or tampered with?
Generally, the court would inspect only documents or records that are produced as primary evidence, meaning that they should be the original document or record.
Unfortunately, where evidence has been destroyed or tampered with, it also means that you will not be able to present them as primary evidence in court.
Admitting of secondary evidence
Even when primary evidence is no longer available, not all hope is lost. This is because where the original document or record has been destroyed or tampered with, the court may permit and admit secondary evidence, which is evidence that has been reproduced from the original or substituted from the original.
These may include:
- Photograph(s) of an original;
- Copies made from the original, such as a photocopy of the original document;
- Oral accounts of the contents of a document by a witness
The discussion above highlights the ways in which you can prevent the loss of evidence, such as by applying for an Anton Piller in civil cases.
Alternatively, a police report may also be lodged to draw attention to the offence(s) and kickstart investigations. Ultimately, a party who tampers with or destroys evidence should expect to be held accountable and be punished for their actions.
Understandably, preserving evidence is a matter that can be challenging to deal with by yourself, especially where the evidence lies in the hands of the other party and is thus not within your reach.
It is thus ideal to engage a lawyer who will be able to provide you with immediate advice on taking the appropriate action decisively and swiftly, so as to protect your interests.
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