Speech during 2nd Reading of the Criminal Justice Reform Bill & Evidence (Amendment) Bill on 19 March 2018 by Patrick Tay, MP for West Coast GRC

CRIMINAL JUSTICE REFORM BILL

Mr Speaker, I rise in support of the Criminal Justice Reform Bill. I’m supportive of the proposed revamp ofthe criminal procedural rules. It is laudable that efforts are undertaken to move our criminal justice system toward a more progressive and balanced one. I have some queries which I would like to raise in relation to some of the changesproposed under the Bill:

(a) Video-recorded Statements

The move to allow video-recorded statements heeds the longstanding calls from the legal fraternity and fellow colleagues for the use of video recording by law enforcement officers when taking statements from accused persons and witnesses.

The use of video-recorded statements aims to better safeguard the rights of accused persons in the process of taking their statements, go some way toward protecting the officers who are taking the statements against baseless accusations that they had coerced or threatened the witness and help to reduce the court time spent on unmeritorious challenges as to the voluntariness of the statements given in the police interviews.Video-recorded statements can also help to reduce the trauma faced by vulnerable victims of crime in having to recount their ordeal repeatedly through the investigation process by using the video-recorded statements as their oral evidence-in-chief in court.

With the introduction of this new mode of taking of statements, how are our police officers being equipped to take video-recorded statements? What training is in place to prepare our police officers and other support persons involved in the interview process, such as forensic specialists andinterpreters, for this new mode of taking statements?

Would a set of guidelines or practice directions be put together to assist the police officers in achieving the intending outcomes of video-recorded statements? In putting this set of guidelines together, reference can be made to other jurisdictions’ experience in the taking of video-recorded statements. In 2016, the Australian Royal Commission into Institutional Responses to Child Sexual Abuse conducted an evaluation of alternative measures used in eliciting evidence from complainants of child sexual abuse, such as through pre-recorded police interviews. It was found that technological problems associated with the use of pre-recorded interviews could impact the trial, delay proceedings, extend trial times and at times, cause distress to complainants. These technological problems include low audio clarity and image clarity and the failure to capture images of the complainant that allowed for an adequate assessment of demeanour, such as by omitting an image of more than just the complainant’s face, or by placing the camera at such great distance from the complainant that facial expressions were not adequately displayed. We can take reference from these findings and implement measures to ensure that such technological issues are mitigated or where possible, overcome.

The Australian Royal Commission also found that one of the concerns among the legal practitioners who were interviewedin the study, was the quality of police interviews, which were described as suggestive (at times), cluttered with irrelevant details and prone to omitting important evidential details. It was recommended that there was a need to adopt better guidance and address issues in skill development and quality assurance, to improve police interview practices. In the same vein, we can do more to prepare our police officers to enhance the quality of police interviews.

I would also like to seek clarification on the experience of the police officers who take statements which can be used as evidence. For example, under the current Criminal Procedure Code, statements taken pursuant to Section 258(1) of the Criminal Procedure Code shall be used in evidence if it is made to a police officer below the rank of sergeant. This has been the rule for some time where, in the past, sergeants were less likely to be fresh hires and would have had accumulatedmore experience in the force before rising to the rank of sergeant. Today, most of the new hires enter the force as sergeants or at a higher rank. Would it be timely to review this rule to ensure that the officers who are taking statements possess adequate experience in the taking of statements for use as evidence?

(b) Safeguards to Ensure Security of Video-Recorded Statements

The Ministry has also shared that copies of the video-recorded statements will not be made available to the defence due to the risk of the recordings being posted online or sold on the black market. What safeguards are being put in place to ensure that the security of these video-recorded statements isnot compromised such as through hacking or illicit recording of the video-recorded statements?

(c) Use of Screens in Courtroom

The Bill allows vulnerable witnesses to use a screen in court while giving evidence on the stand to prevent him from being seen by the accused. Once again, we can take a leaf from other jurisdictions’ experience in the use of screens in the courtroom. The Australian Royal Commission in their 2016 study gathered feedback on the use of screens in the courtroom and found that some defence counsel and judges were of the view that the use of screens was unfair to the accused as he was not able to see the witness who was giving evidence against him. Some stakeholders also found the use of screens to be ineffective in reducing the witness’ stress as the witness was still aware of the proximity of the accused and in some instances, the accused could still be seen by the witness when the accused moved. Also, due to the layout of the courtroom, the witness would often still be seen by the accused as they had to walk past the accused to get to the witness box. Some courtrooms also did not utilise well-designed and purpose-built screens, as a result, the use of ascreen was viewed as a negative experience for the witness, making the court process more complex, and at times unintentionally blocking the view of other members of the court. It would be useful if a set of guidelines or practice directions be put together on the use of screens in the courtroom to ensure that it is able to achieve its intended purpose.

(d) Strengthening of the Bail Regime

The amendments to strengthen the bail regime are welcome. This is especially in light of the recent case of Chew Eng Han who attempted to flee Singapore while he was out on bail. I would like to ask the Ministry for statistics on the frequency of bail granted in the past 5 years and the incidence of absconding over the same period. For those who had absconded, were they later apprehended and what happened to these accused persons or convicted persons?

I also note that under the Bill, the court will now be allowed to grant bail in extradition cases if special circumstances apply. Under the current bail regime, bail cannot be granted at all for extradition cases. I would like to ask the Minister for the rationale behind this change and to seek clarification on what special circumstances are required for bail to be granted in such cases?

(e) Establishing a Criminal Procedure Rules Committee

I am supportive of the establishment of the Criminal Procedure Rules Committee which is conferred the power to prescribe court-related procedural rules to keep the court process nimble and up-to-date. Besides the 13-members identified in the Bill, I would like to propose that the Committee should also regularly seek inputs from the social science and technology experts to review the criminal procedural rules and identify ways to enhance the robustness and fairness of our criminal justice system.

(f) Regulating Psychiatric Expert Evidence

In respect of having a court-administered panel of psychiatrists to ensure that evidence given by psychiatrists in court is competently arrived at and objective, I would like to ask the Minister what selection criteria will be applied toassess if a psychiatrist should be appointed to the panel? What safeguards are in place to ensure that the selection criteria donot inadvertently cause the composition of the panel to lack diversity of views which are within the limits of objective opinion?

Are there plans to provide this panel of psychiatrists with training to enable them to better understand court processes and the role they play in adversarial proceedings, to enable them to be able to perform their role more competently?

(g) Expanding the Community Sentencing Regime

The Bill seeks to expand the eligibility for Mandatory Treatment Orders (MTO) to include offenders who commit certain prescribed offences carrying up to 7 years’ imprisonment from the current 3 years’ and the maximum duration of MTO sentences increased from 24 to 36 months. Amendments will also allow the court to order the offender to reside at the Institute of Mental Health for a specified duration of in-patient treatment as a condition of the MTO.

I would like to ask the Minister to share statistics of the number of MTO sentences meted since its introduction in 2010 and the types of offences to which the MTO has been applied. How many offenders have failed to comply with the conditions of their MTO sentences? How many offenders re-offend or cause harm to themselves or others during their MTO sentence due to their mental condition?

I would also like to ask the Minister what community-based support does the offender receive during the course of the MTO and what safeguards are put in place to ensure that the victims of these offenders are protected while the offender is allowed to remain in the community to seek treatment. For example, in a recent case where a woman was given a 2-year MTO for harassing her neighbour, the offender continued to harass her neighbours on a daily basis by verbally abusing them and throwing urine and rubbish at her neighbours’ premises. It was reported that such harassment has gone on for years. In such cases, what can be done to ensure that the victims do not continue to be harassed by the offender as theoffender seeks treatment? There is a need to provide a support system to ensure that the victims of these offenders are not overlooked as well.

(h) Deferred Prosecution Agreements

With regards to the introduction of Deferred Prosecution Agreements (DPAs), certainty and transparency must be ensured so that DPAs are not perceived as a way for corporations to game the system. In the United Kingdom, DPAs were introduced in 2014 and prior to that, the Serious Fraud Office and the Crown Prosecution Service had published a code of practice for the use of DPAs. The code provides guidance on factors that the prosecutor may take into account when deciding whether to enter into a DPA. I would like to ask the Minister if a similar code will be published in Singapore?

Under the Bill, a DPA only comes into force when the High Court approves the DPA by making the relevant declaration. Upon the High Court making a relevant declaration, the Public Prosecutor must give public notice of the following (unless the Public Prosecutor is prohibited from doing so), (a) the DPA to which the relevant declaration relates; (b) the relevant declaration; (c) the reasons given by the High Court for its decision to make the relevant declaration, if any. Would the Minister consider making public, the reasons given by the High Court in cases where the High Court does not make a relevant declaration? This will help to ensure consistent and transparent application of the DPA tool. This will also affordguidance on what cases are best suited for DPA and to provide corporations with more certainty in the management of their affairs.

EVIDENCE (AMENDMENT) BILL

Mr Speaker, I support the Evidence (Amendment) Bill. Child abuse and sexual offences are particularly traumatic offences and victims are often afraid to come forward to report the offences due to a variety of reasons ranging frombeing unable to make sense of what has happened to them, fear of the perpetrator, fear of judgment and being subject to further humiliation and shame, fear that they would be blamed for their predicament, fear that they would not be believed and the fear of having to recount and relive the experience repeatedly in the course of investigation and in the adjudication process. In adversarial proceedings, we can, and must ensure that the victim of the offence is, as far as possible, protected from being re-victimised in the cross-examination process.

The Ministry of Law has shared that the amendment to the Act seeks to restrict the defence from asking complainants questions or adduce evidence concerning their sexual history or activities, including their appearance or behaviour, other than those to which the charge related, without the leave of the Court. Such leave will only be granted if it would be in the interests of justice to allow the question to be asked or the evidence to be adduced.

I am supportive of this move and would like to suggest some ways in which the scope of the amendment could be expandedon.

Offences Listed in First Schedule

First, the Bill defines “child abuse offence” and “sexual offence” to mean any offence specified in the First Schedule. In addition to the sections of the Children and Young Persons Act (Cap. 38), Penal Code (Cap. 224) and the Women’s Charter (Cap. 353) listed in this First Schedule, should Sections 366 and 367 of the Penal Code (Cap. 224) be included in the First Schedule as well, given that these sections also deal with offences of a sexual nature (refer to Annex A for the sections).

Besides child abuse and sexual offences, should certain criminal intimidation offences under Section 506 of the Penal Code (Cap. 224) or harassment offences under the Protection from Harassment Act (Cap.256A) also be treated in the same manner, in particular, where the criminal intimidation imputes unchastity to a woman or where harassment is sexual in nature? Could the presiding judge be given flexibility to decide to apply similar restrictions on cross-examination to these cases, even though they are not offences listed in the First Schedule?

Guidelines for Child Abuse and Sexual Offences

Second, a set of practice directions or guidelines should be formulated to set out the approach prosecutors and defence counsel should take in handling child abuse and sexual offences. The guidelines would serve as a guide to help prosecutors and defence counsel put the amendment into practice without diminishing the right of the accused to a fair trial. I understand that the Law Society is working on a set of guidelines of best practices for examination of children and victims of sexual offences and is aiming to issue theguidelines this year. In particular, I hope that this set of guidelines would instruct defence counsel to refrain frommaking baseless submissions that disparage the character, integrity or morality of the victim or premise their case theoryon unsubstantiated myths and stereotypes to attempt to shift the blame to the victim.

The Crown Prosecution Service (CPS), the principal public prosecuting agency for conducting criminal prosecutions in England and Wales, has developed a set of Guidelines on Prosecuting Cases of Child Sexual Abuse and have identified a list of myths and stereotypes which should be challenged in Court.

(Footnote of what these myths are and not in speech : These myths and stereotypes include: Myth 1: The victim invited sex by the way they dressed or acted. Myth 2: The victim drank alcohol or used drugs and therefore was available sexually. Myth 3: The victim did not scream, fight or protest and so it cannot be sexual assault. Myth 4: The victim did not complain immediately so it was not sexual assault. Myth 5: A victim in a relationship with the alleged offender is a willing sexual partner. Myth 6: A victim who has been sexually assaulted will remember events consistently. Myth 7: A victim who has been sexually assaulted should behave or react in a certain way post-assault. Myth 8: Parents should know what is happening to the victim and be able to stop it.)

These myths and stereotypes have been relied on by some defence counsel in representing accused persons in sexual offences before the Singapore courts.

In defending his client accused of outrage of modesty, defence counsel in Public Prosecutor v Xu Jiadong [2016] SGMC 38asked the complainant to stand up in Court to assess her “attractiveness” and suggested to the Court that he would have to know the complainant’s breast size and whether she had been wearing low cut attire on the day of the incident. The judge found that the defence counsel’s line of questioningwas indecent, scandalous and intended to insult or annoy the victim. Not only were the questions offensive, I find itregrettable that the defence’s case was premised on misogynistic stereotypes that the complainant’s looks and dressing had, in some manner, induced the accused to outrage her modesty. This is an example of the type of myths and stereotypes which should not be perpetuated.

In the case of Public Prosecutor v BLV [2017] SGHC 154, the defence counsel sought to rely on the complainant’s ability to keep her composure at the time of interviews by the medicalassessors and the complainant’s good performance in school to indicate her lack of credibility as regards the occurrence of the alleged sexual abuse by her father.

In Ng Jun Xian v Public Prosecutor [2016] SGHC 286, the Court found that it was wholly unnecessary for defence counsel to specifically highlight that the victim was older, was sexually experienced or that she was calm when she was examined by the doctor.

More recently, in defending the accused who was charged with the rape of his biological mother, defence counsel made the argument that the complainant could have “shut the gates” by crossing her legs. The prosecutor submitted that this line of argument was premised on the antediluvian notion that a woman could resist a rapist if she really wanted to and there was no room for such statements in the 21st century, both in the court and outside of it.

While the prosecutors and judges had intervened in theaforementioned cases, the complainants had already been unduly subject to unnecessary lines of questioning and assertions while being put on the stand. The set of guidelines should draw reference from these cases and set out best practices for defence counsel to adopt in formulating their case theory, to refrain from subjecting the victims to such unnecessary lines of questioning and assertions where such assertions do not mitigate or justify the accused’s conduct or diminish the complainant’s credibility.

In respect of cross-examining child witnesses, the Law Society has come up with some draft guidelines on the approach that defence counsel should take when doing so. Some of these guidelines include adjusting the pace of questioning to the child’s needs, making sure that the child understands the questions posed and ensuring that the defence counsel’s tone of voice and body language are neutral.

Besides these guidelines, the set of guidelines should also include best practices on how defence counsel should shape their cross-examination strategy in respect of child witnessesor witnesses of lower intellectual abilities, bearing in mind the general rule of practice which has been affirmed by the Court of Appeal in BMD v Public Prosecutor [2015] SGCA 70, that the evidence of such a witness is generally not taken at face value as such witnesses may find it difficult to distinguish between reality and fantasy and between results of observation and results of imagination (albeit calibrated to the particular circumstances of the witness). Defence counsel should be sensitive to this general rule of practice and the particular circumstances of the witness and calibrate their cross-examination questions accordingly so that they do not inadvertently badger the witness and subject the witness to undue stress in addressing these inconsistencies.

The guidelines should also include best practices on how the defence counsel should put their case to victims in child abuse and sexual offences. It should be explained to the victims that in the course of cross-examination, defence counsel will put their case to them and the questions posed may be upsetting to them as they seek to make out the elements of the accused’s case. On the defence counsel’s part, care should be taken toformulate questions to suit the witness’ level of understanding, such as through the use of short and simple questions, given that the language used conventionally by counsel in putting their cases tends to be complex and certain classes of vulnerable witnesses may be highly susceptible to suggestion. The aim of the defence counsel should be to elicit the most accurate evidence that the vulnerable witness is able to give rather than to confuse or confound the witness to give an impression of a lack of credibility.

ANNEX A

Section 366 of the Penal Code

Kidnapping or abducting a woman to compel her marriage, etc.

Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or to a life of prostitution, or knowing it to be likely that she will be forced or seduced to illicit intercourse, or to a life of prostitution shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine or to caning.

Section 367 of the Penal Code

Kidnapping or abducting in order to subject a person to grievous hurt, slavery, etc.

Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt or slavery, or to non-consensual penile penetration of the anus, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine or to caning.