Second Reading Speech by Senior Parl Sec, Mdm Rahayu Mahzam, on Post-Appeal Applications in Capital Cases Bill

29 Nov 2022 Posted in Parliamentary speeches and responses

Mr Speaker,

1. On behalf of the Minister for Law, I beg to move, “That the Bill be now read a Second time”.

I. Background

2. 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.

3. What we are putting forward before you today are measures to provide a process for post-appeal applications in capital cases.

4. 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.

5. Let me first explain the context of such post-appeal applications.

6. Today, capital cases are governed by a rigorous process with multiple safeguards.

a) First, all persons facing capital charges are offered free legal representation under the Legal Assistance Scheme for Capital Offences, at trial and on appeal.

b) 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.

c) 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.

d) 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.

7. 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.

8. After the CA confirms the conviction and sentence, the PACP may also submit a petition to the President for clemency.

9. Finally, where the avenues of appeal have been exhausted, the lawfully imposed sentence will be carried out.

10. 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.

11. 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.

12. I will now go through the key amendments in the Bill.

II. New procedure for post-appeal court applications by PACPs

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. In deciding whether to grant permission, the CA is to consider four matters:

a) 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.

b) Second, whether there was any delay in applying for permission after the material was obtained, and the reasons for the delay.

c) 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.

d) Fourth, whether the intended PACC Application has a reasonable prospect of success.

20. Even if these four matters are not satisfied, the CA will have the discretion to grant permission for the application if it thinks fit.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

III. Aligning the existing CPC procedure for review applications with the proposed procedure for PACC Applications

28. 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.

29. 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.

30. 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.

IV. Conclusion

31. 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.

32. The amendments also do not affect access to justice. PACPs are not prevented from filing their applications and ventilating their arguments in court.

33. Sir, on behalf of the Minister for Law, I beg to move.

Last updated on 29 November 2022