As it is almost a year since the Public Defender’s Office (“PDO”) has been set up, I filed a PQ asking for an update on its operations. I also sought an understanding on how the PDO deals with cases involving alleged crimes that may be viewed by the public as being morally repugnant. Minister Shanmugam replied stating that PDO has taken up 303 cases to date. He also mentioned PDO will undertake cases which may be viewed as involving morally reprehensible offences, so long as the accused passed the means and merits tests. My PQ and his answer are set out below.
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Mr Murali Pillai asked the Minister for Law (a) whether an update can be provided on the cases undertaken by the Public Defender’s Office (PDO) since it commenced operations on 1 December 2022; and (b) how does the PDO deal with cases involving alleged crimes that may be viewed by the public as being morally repugnant in assessing whether to provide legal aid.
The Minister for Law (Mr K Shanmugam): Mr Speaker, Sir, my reply will also address written Question No 10 in the Order Paper for today’s Sitting.
The Public Defender’s Office (PDO) was set up in December of 2022. So, we are now about 12 months into it. It is to provide criminal defence aid to persons facing non-capital charges and who cannot afford a lawyer. As of September 2023, the PDO has taken up 303 cases from applicants and has taken these to Court.
Eligible applicants receive representation from either the PDO or the Criminal Legal Aid Scheme (CLAS). With this co-delivery model, CLAS’ annual case load in 2023 is expected to be lower than 2022. Nonetheless, this has only been nine to 10 months, and we have to continue to monitor the situation.
Some of the applicants for criminal defence aid face charges for minor offences, like shop theft or mischief, and so on. But some others face more serious, non-capital charges — unlicensed moneylending, drug trafficking or sexual assault against vulnerable victims and so on.
We have to ensure that aid is rendered to those who are deserving and each application for criminal defence aid is subjected to means and merits tests: the means test, in terms of economic means; and the merits test, in terms of having some bases for the defence.
The precise framework is set out. I am not seeking to set that out; I am using short-hand terms here.
These assessments are not based on the nature of the alleged offences or the moral reprehensibility of the applicant. The means test, as I said earlier, is to ensure that aid is given to those who are unable to afford legal fees. The merits test assesses whether the applicant will benefit from legal representation or has reasonable grounds to defend or appeal his case in Court.
Sometimes, the PDO comes across cases, which many would consider to be highly reprehensible. It can relate to sexual assault, child abuse or family violence. The nature of the crime can cause public outrage or concern. But the PDO cannot refuse to handle these cases. That is not the test. The test is not one of moral reprehensibility. The test is whether the person qualifies under the means test and the merits test. It has to handle the cases, so long as they are assessed to have legal merit.
One example is a recent Court of Appeal matter involving an accused person who pleaded guilty to sexually penetrating his own younger sister. I think almost all right-thinking members of society would say that it is completely unacceptable, reprehensible. He had committed the offences when he was between the age of 15 and 17 years. He was initially sentenced to 18 years in prison and 16 strokes of the cane. He applied to PDO for aid to appeal against his sentence. Aid was granted as he had fulfilled the means test criteria and PDO assessed that there was merit to the appeal on the ground that the sentence given by the lower Court was excessive. The Court of Appeal agreed and his sentence was reduced by two years.
This scenario sometimes arises in other jurisdictions as well. You have the case of Police Constable Andrew Harper in the United Kingdom. A uniformed officer. He chased a group of teenagers who were trying to escape after stealing a bike. He was dragged by the car which was driven by one of the teenagers and he died. There was widespread public sympathy for him and outrage over the fact that he died. The three teenagers received legal aid. The Court found them guilty of manslaughter instead of murder.
In another case in New Zealand, a family of five was mass murdered, and David Bain, who was the only survivor, was accused of the murder. There were mixed views over his innocence. This case has been described as, and I quote, “the most widely discussed and divisive in New Zealand’s criminal history”. After 13 years, he was acquitted of all charges. Without legal aid, he might have remained behind bars until today.
As I explained in my Ministerial Statement in April last year, the provision of legal aid cannot depend on public outrage against the alleged offender or sympathy for the victim. With the PDO, we will assess each case based on its own merit and those who have a meritorious case but cannot afford a lawyer will be provided access to legal advice and representation to defend their case in court. This is how we can try to ensure that access to justice is available to more.
Mr Speaker: Mr Murali Pillai.
Mr Murali Pillai (Bukit Batok): Mr Speaker, Sir, I am glad to note from the hon Minister for Law’s response that PDO has employed a principled stance in defending accused who have been accused of committing morally reprehensible offences. This is actually in line with the ethos of lawyers in the Criminal Bar. I recall the words of the late Mr Subhas Anandan, known as one of the doyens in the Criminal Bar, and he said that everybody deserves a fair trial, including those who have been accused of committing heinous crimes.
Sir, my question is in relation to the dealings of the PDO officers with such persons. Sometimes, PDO officers may deal with requests on the part of such accused person to put certain lines of questions to vulnerable victims. And PDO officers, based on their assessment, they may not want to take up such lines. For example, cross-examining a vulnerable victim in relation to the person’s sexual background and so on.
How do we protect PDO officers in these circumstances? Because what we do not want also, is to have an allegation made against such a PDO officer and he has to deal with it in the disciplinary setting.
Mr K Shanmugam: Thank you, Sir. I would say the framework of the law is clear. What you can ask, what you cannot ask in cross-examination, lawyers will know. The PDO is led by a very senior lawyer who will give guidance to the more junior lawyers. And ultimately in Court, there is the prosecution and there is a Court, which controls proceedings.
I think the line to be crossed in terms of misconduct, is quite far; there are a number of safeguards. I do not believe that our PDO officers feel that they have to pull back from proper questioning, or be particularly concerned that questions they ask will be considered beyond the pale, in terms of correct and proper discharge of a lawyer’s duties in court.
But, in any event, I will pass on the Member’s feedback to the Chief Public Defender.
Mr Speaker: Mr Pillai.
Mr Murali Pillai: Mr Speaker, Sir, may I just clarify, my concern was less in relation to the PDO officer being able to discharge his duties in cross-examination, more in relation to him refraining from taking the instructions from the accused in putting certain positions during cross-examination and that may lend him in an invidious position, when after the fact, the accused who may then be convicted, saying that he has not been given a fair defence. That is the point I was trying to raise.
Mr K Shanmugam: I think the answer to that is: it is a situation faced by all lawyers who practise. What do you think is the right defence or the right case to put forward? What is relevant? What is not relevant? These are assessments and it depends on training and skill. By and large, legal service gets very good officers who apply to join. PDO gets very committed officers and it depends on training.
I think the whole approach for PDO officers and agency officers and prosecution: you do your duty without fear or favour.