Debated in Parliament on 29 Nov 2022.
Order for Second Reading read.
Mr Speaker, Sir, on behalf of the Minister for Law, I beg to move, “That the Bill be now read a Second time”.
The Government has made important changes to the criminal justice system in recent years, towards a more progressive, balanced and modern criminal justice system that delivers just outcomes and protects society from crime. What we are putting forward before you today are measures to provide a process for post-appeal applications in capital cases.
Post-appeal applications in capital cases are applications that are filed by a prisoner awaiting capital punishment, or PACP, after all avenues of appeal have been exhausted. Normally, given that all appeals have been exhausted, there will be no further applications possible. These amendments provide a process for making such applications.
Let me first explain the context of such post-appeal applications.
Today, capital cases are governed by a rigorous process with multiple safeguards.
First, all persons facing capital charges are offered free legal representation under the Legal Assistance Scheme for Capital Offences, at trial and on appeal.
Second, capital trials can only be heard in the General Division of the High Court, or HC. The accused can only be found guilty of a capital charge if the Prosecution leads evidence and proves its case at trial, even if the accused does not contest the charge.
Third, where the HC imposes capital punishment, the accused is entitled to appeal to the Court of Appeal, or CA, against both the conviction and sentence. Even if the accused does not appeal or withdraws his appeal, the CA must still review the case and satisfy itself as to the correctness, legality and propriety of the conviction and sentence.
Fourth, even after the CA has confirmed the conviction and sentence, the PACP may apply for the case to be reviewed under Division 1B of Part 20 of the Criminal Procedure Code 2010, or the CPC, if the strict criteria for reviewing a concluded case are met.
Under our justice system, a person facing a capital charge has ample opportunity to raise any issues in relation to the charge and the sentence, and to have those issues considered by the Courts at the appropriate time. Our system allows justice to be done, where there are genuine issues to be dealt with. After the CA confirms the conviction and sentence, the PACP may also submit a petition to the President for clemency.
Finally, where the avenues of appeal have been exhausted, the lawfully imposed sentence will be carried out.
In recent years, there have been several instances where PACPs filed last-minute applications in capital cases, after all avenues of appeal have been exhausted. We are introducing this Bill to set out a process for such post-appeal applications in capital cases, to provide more clarity on the applicable court procedure for all parties involved. In the course of finalising the Bill, we consulted the Bar extensively, and took into consideration their feedback, in arriving at the final version of the Bill.
I will now go through the key amendments in the Bill.
Clause 2 introduces a new procedure in the Supreme Court of Judicature Act 1969, or SCJA, for post-appeal applications in capital cases, or PACC applications. A PACC application is an application that meets two criteria.
First, the application was made by a PACP after the relevant date, which is either (a) the date when the capital sentence was imposed, upheld or confirmed by the CA, or (b) if there was an earlier application for permission to make a PACC application, or an earlier PACC application, by the PACP that has been decided, the date of the most recent decision. This makes clear that the new procedure applies to applications filed by a PACP after the appeal in the capital case has concluded or the capital sentence has been confirmed.
Second, either (a) the application is for a stay of execution of the capital sentence, or (b) the determination of the application calls into question, or may call into question, the propriety of the conviction of, the imposition of the capital sentence on, or the carrying out of the capital sentence on, the PACP. PACC applications do not include review applications under the CPC. Review applications are applications to review an earlier decision of an appellate court and will continue to be governed by a separate procedure under the CPC. A PACP must obtain the CA’s permission before he may file a PACC application. The procedure to apply for the CA’s permission is set out under the new section 60G of the SCJA.
In deciding whether to grant permission, the CA is to consider four matters.
First, whether the intended PACC application is based on material that could not have been adduced in Court before the relevant date, even with reasonable diligence.
Second, whether there was any delay in applying for permission after the material was obtained, and the reasons for the delay.
Third, whether the prescribed supporting documents have been filed within the prescribed time. These will include supporting affidavit(s) by the PACP’s counsel, or by the PACP, if he is unrepresented. The affidavit is to state, among others, the grounds for the application and the reasons for not filing the application earlier.
Fourth, whether the intended PACC application has a reasonable prospect of success.
Even if these four matters are not satisfied, the CA will have the discretion to grant permission for the application if it thinks fit. If permission is granted, the PACC application must then be made to the CA, and fixed for hearing, within the prescribed periods. The applicable procedure at this stage is set out under the new section 60H of the SCJA. Having the CA directly hear PACC applications provides a streamlined procedure for such applications, while still allowing these applications to be ventilated before the apex court.
If there is already an application for PACC permission, or a PACC application, pending determination, the PACP cannot make a subsequent application for PACC permission or PACC application unless the PACP has obtained the permission of the coram dealing with the pending application. This is provided for under the new section 60I of the SCJA. This ensures that the coram hearing the pending application is fully apprised of all the relevant circumstances or issues that the PACP wishes to raise and is able to deal with the matter holistically.
When a PACP files any application or action in a Court other than the CA, the new section 60J of the SCJA allows the CA to determine whether the application is, or the action contains, an application for PACC permission or a PACC application. If it so determines, the CA can deal with the application or action accordingly. This reduces any potential delay to proceedings. In line with the procedure for PACC applications, which must be made to the CA, the new section 60L of the SCJA provides that a stay of execution of a capital sentence may only be granted by the CA.
The new section 60M of the SCJA provides that the CA may decide whether to make a finding that there has been an abuse of process in (a) a relevant application or (b) any other application or action in order to delay or frustrate the carrying out of the capital sentence. The finding may be made on the CA’s own motion or upon the application of the Attorney-General or Public Prosecutor. This is in line with the CA’s current powers to make findings of abuse of process.
In deciding whether to make a finding of an abuse of process, the CA may take additional evidence, and may inquire into and take into account whether the prescribed matters for the making of a PACC application or a review application have been satisfied.
Lastly, clause 3 provides for amendments to the CPC. These are primarily consequential amendments to align certain aspects of the procedure for review applications with the new procedure for PACC applications in clause 2.
Clause 3(a) also provides that a capital sentence may be carried out, unless (a) the President has ordered a respite; (b) the CA has granted a stay of execution; or (c) there is a pending application for permission to apply for a stay of execution, or an application for a stay of execution, that meets the specified criteria.
This amendment will provide clarity for all parties on when the sentence may be carried out. It also provides statutory protection to PACPs by prohibiting the carrying out of the capital sentence – even without a stay of execution – where there is a pending application for permission to apply for a stay of execution, or an application for a stay of execution that meets the specified criteria. The amendments will provide greater clarity and guidance on the process and considerations which PACPs and their counsel should have regard to when making post-appeal applications. The amendments also do not affect access to justice. PACPs are not prevented from filing their applications and ventilating their arguments in Court. Sir, on behalf of the Minister for Law, I beg to move.
*Question proposed. (proc text)]
Mr Pritam Singh.
Mr Speaker, the death penalty and the collateral criminal justice processes can be highly emotive matters, particularly after an appeal against the death penalty fails. But the varied considerations do not just include the rights of the condemned prisoner. There are other stakeholders in the criminal justice process. These include the rights of victims, the demand for fairness in the judicial system and the desire that Singapore remains safe for all.
For a prisoner awaiting capital punishment, the arguments are not academic discussions of principle but, literally, a matter of life and death. Prior to the introduction of this Bill, and after the Government indicated that it was considering introducing post-appeal procedures for capital cases, I authored an op-ed in our local press on the mandatory death penalty. One point I made was to leave the matter of late applications to the Courts and allow cost orders to be the appropriate sanction. My concern was that the legislative changes proposed would either significantly curtail or prohibit post-appeal applications. If this Bill was meant to close off the possibility of new evidence being heard or new legal arguments being made in post-appeal applications in capital cases, or PACCs, the Workers' Party would vote against this Bill.
Because of the irreversibility of the death penalty, lawyers should not be unduly fettered from advancing arguments to ensure that justice is done and their clients are saved from the noose. But I note that new material in the form of evidence and legal arguments are not prohibited by the proposals before the House today. The Court of Appeal is to be empowered under the Bill to take new evidence. While this Bill may appear to some as putting a spanner in the works for lawyers who wish to file PACCs, in my view, it serves to regulate the process better and does not close off defences not heard at trial. As a matter of principle, I do not see this Bill as hampering legal counsel who represent their clients dutifully.
The regulation of the PACC process has come into focus arising from the reality of vexatious applications. When I say, "come into focus", I am not talking only about the sterile procedural aspects of PACCs. The point here is that PACCs cause profound human effects. One cannot discount the reality of these applications taking their toll on the prisoner, their spouses, their children, their parents, their extended families and their friends. If the hopes created by PACCs are reasonably achievable hopes, natural justice demands that we do not close any door to them.
However, in cases of vexatious applications, which have a zero chance of success, then the hopes are wickedly false, if the lawyers are aware of that fact. While these prisoners are persons who have been convicted of crimes and who have exhausted their avenues of appeal, we must do right by them as that reflects what we want to be as a society. If I can sum it up in one word, what most of us want in the system is fairness.
Fairness must be a guiding principle in scrutinising all procedures relating to the death penalty. Of course, some may argue that it is not fair at all for the state to take the life of any person. But that is not the discussion for today. The mandatory death penalty is in our statutes for now. That may change as society or circumstances change. Our purpose today is to look at a sliver of the process and consider the just and fair handling of PACCs.
In the interest of achieving a fair process for PACCs, I have a few clarifications about the Bill. My first clarification relates to the statement made by the MinLaw spokesman and quoted The Straits Times of 7 November. The spokesman said, and I quote, "The proposed amendments will clearly set out the process for such applications and the Court will have discretion to allow challenges, even if they do not comply with this process".
May I ask the Senior Parliamentary Secretary what is this discretion referred to here and what is its extent? Is the spokesman merely referring to the provisions in the proposed section 60J, under which the Court of Appeal may treat an application in another Court as a PACC application? If not, could the Senior Parliamentary Secretary clarify?
My second clarification concerns the proposed section 60J(7) which provides the matters the Court of Appeal must consider in deciding whether to grant an application for PACC permission. In particular, the matter for consideration in section 60G(7)(d) is whether the PACC application has a reasonable prospect for success. I would like to confirm if the legislative intent is for para (7)(d) to set a threshold standard or is section 60G(7)(d) merely one of four factors which must be considered but which may be overriden by other considerations at the discretion of the Court of Appeal judge?
Mdm Deputy Speaker, if it is meant to be a threshold standard, it could set a high bar that may prevent the applicant from even making a meritorious main application under section 60H. As such, I would like to clarify if the threshold standard required here is that of an arguable case and if this would represent the legislative intent insofar as section 60G(7)(d) is concerned?
If section 60G(7)(d) is not meant to be a threshold standard but merely a consideration which could possibly be disregarded if an arguable case comes before the Court, I would suggest that this be confirmed in the Senior Parliamentary Secretary's round-up speech.
My third clarification concerns the phrase "even with reasonable diligence" used in the proposed section 60G(7)(a), section 60G(15)(c) and more than once in section 60M. May I ask the Senior Parliamentary Secretary what is the intention in using the word "even" in the phrase "even with reasonable diligence"? My reading is that the use of the word "even" suggests that reasonable diligence is being compared with a higher standard, say due diligence. Is that the intention? If so, then to the extent that it endeavours to set a reachable standard, I do not object to it. If the Senior Parliamentary Secretary can clarify this, then, should the Bill be passed, it would make clear to the Court of Appeal the legislative intent is to set a lower standard than that of due diligence.
The use of the term "reasonable diligence" brings me to my fourth clarification. The proposed section 60G(15) provides that where there has been abuse of process, the Court of Appeal, I quote, "must not" grant the application for PACC permission. This is unless evidence or legal arguments are presented that were not adduced before the finding of abuse of process and evidence or legal arguments could not even with reasonable diligence have been adduced in Court before the finding. The phrase used is "must not", which can only mean that the Court of Appeal judge has no discretion in the matter.
Here, Madam, there is a need to distinguish between the prisoner and the lawyer representing that prisoner. It is possible to conceive of a situation where the lawyer who made the prior application, which was an abuse of process, was not thorough enough in raising evidence or legal arguments that were reasonably available. The prisoner then changes lawyers and the new, more diligent lawyer then raises the evidence and legal arguments which were available previously but not raised.
In such a possible scenario, based on the Bill before us, due to section 60G(15)(d), the Court of Appeal must not grant the application for PACC permission. In such a scenario, it would appear that the Court of Appeal will have no discretion to take into consideration such a situation. May I ask the Senior Parliamentary Secretary whether such a scenario was considered when the Bill was drafted and if it was, how does it relate to the proposed section 60G(15) (d)?
The remedy against the lawyer who did not raise the arguments could be a personal cost order. But the prisoner should not be unfairly prejudiced. May I ask the Senior Parliamentary Secretary why the words "must not" were used? Is it necessary to remove the Court of Appeal's discretion in this case?
Mdm Deputy Speaker, all my clarifications seek to promote fair outcomes for all parties, which I am sure is also the intention of the Government. I look forward to hearing the Senior Parliamentary Secretary's responses. Subject to the replies to my queries, I support the Bill.
Mr Louis Ng.
Madam, this Bill will introduce a new process for post-appeal applications in capital case (PACC) to safeguard our Court processes.
The new provisions will clarify the procedures for PACCs and the factors that the Court has to consider in granting permission.
Given the serious nature of capital cases, it is critical that due process is in place to ensure that meritorious applications by prisoners awaiting capital punishment are heard. Such processes and the grounds for any decisions must be clear and transparent.
I have three points of clarifications.
My first point is on the powers of the Court of Appeal to take additional evidence. A number of provisions in the Bill allow the Court of Appeal to take additional evidence. These situations include where the Court of Appeal is considering an application for permission to make a PACC application, is hearing a PACC application, is considering whether an application is a PACC application and is determining if there is an abuse of process.
Can the Senior Parliamentary Secretary clarify whether the Court’s power to take additional evidence is exercisable only of the Court’s own motion or whether a party can apply for the Court to exercise its power to take additional evidence?
Can the Senior Parliamentary Secretary also share on what grounds or in what circumstances will the Court exercise its power to take additional evidence?
If it is open to a party to apply to Court to take additional evidence, can the Senior Parliamentary Secretary clarify on what grounds can the application be made by a party?
My second point is what the standard of reasonable prospect of success entails. The Court is required to consider whether the PACC application has a reasonable prospect of success in deciding whether or not to grant an application for PACC permission.
To provide more clarity on what constitutes a “reasonable prospect of success”, can the Senior Parliamentary Secretary share how this standard compares to the other standards articulated by the Court?
My third point is on the meaning of abuse of process. Under section 60G(15)(c), the Court of Appeal must not grant an application for PACC permission if the applicant is found to have abused the process of court.
The Court of Appeal also has the power to make a finding of abuse of process. In the case of Syed Suhail bin Syed Zin vs Attorney-General, the Court found that while the defence counsel brought the review application to acquit Syed of the death penalty, this was by itself insufficient to find a collateral purpose amounting to an abuse of process. The Court observed that more would be needed to suggest that the intended outcome is in itself an abuse of process. Can the Senior Parliamentary Secretary clarify what factors the Court should consider if determining an application is an abuse of process?
Madam, notwithstanding these clarifications, I stand in support of the Bill.
Leader.
PAPERCUTS