Oct 16, 2006
Prosecutors to reveal all in proposed new law
Defence lawyers will have access to evidence against their clients before cases go to trial
By Ben Nadarajan
STATE prosecutors will soon be compelled to reveal all the evidence they have against an accused person before the case goes to trial.
The Straits Times understands the law is set to be changed to make it compulsory for prosecutors to share their evidence with defence lawyers.
This will settle the regular complaints from lawyers that they are handicapped at trials because they are not fully apprised of all the evidence early enough.
According to sources, Law Minister S. Jayakumar sent a letter to the Law Society a few months ago, giving his in-principle agreement to such a change.
The minister's letter was in response to a policy paper submitted a year ago by the society's Criminal Practice Committee, headed by veteran lawyers Peter Low and Chia Boon Teck.
Both the Law Ministry and Law Society declined to confirm the change, which could also be enacted without a change in legislation.
The Attorney-General's Chambers could change its practice guidelines instead, and effectively usher in the new procedure.
One of the committee's concerns was the uneven playing field in the area of disclosure of evidence.
As it stands now, prosecutors do not have to show their hand until the trial begins, giving lawyers little time to prepare counter arguments for cross-examination.
This does not happen in High Court trials, where all relevant statements and documents are revealed to defence lawyers before the trial during a preliminary inquiry.
In civil cases, both parties are also required to furnish all relevant information sought by the other side.
Lawyers have asked for a similar practice to be adopted in matters before the Subordinate Courts, which handle about 95 per cent of all cases.
In particular, they want copies of documents like police statements obtained from the accused and witnesses.
While criminal lawyers appear to have got their way on this matter, another request, for early access to their clients, has fallen through.
Police do not allow defence lawyers to see their clients until investigations are over, a process which can take weeks, or sometimes even over a month.
Lawyers argue that this infringes an accused person's right to counsel.
When the issue came up in Parliament last year, Home Affairs Minister Wong Kan Seng defended the practice, saying that allowing accused persons instant access to lawyers could hinder or compromise investigations.
It is understood that the authorities are satisfied that there are checks in place to ensure that an accused person is not held in remand for longer than necessary.
Nevertheless, a study is under way to determine whether prisoners claiming trial are kept in lock-up for too long.
When informed of the change, the president of the Association of Criminal Lawyers, Mr Subhas Anandan, welcomed the 'long overdue' move.
Describing the job of a defence lawyer now as a boxer fighting blindfold, Mr Subhas said sharing information with the defence was a given in countries like the United Kingdom, the United States and Australia.
'In these countries, if the prosecution does not give everything to the defence, it is grounds for a mistrial. Here, we don't even get our own client's statement to the police.'
He repeated the call for earlier access to counsel, saying clients needed to be informed that they had the legal right not to say anything incriminating to the police.
Law lecturer Michael Hor said early access to counsel might detract from the police force's efficiency in solving crime, but would mean a 'significant increase in the legitimacy of the process'.
He added: 'The reality is that once incriminating statements are successfully extracted, any sort of defence at the trial is unlikely to succeed.'
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