The Role and Duties of State-assigned Counsel

The Honourable Judicial Commissioner Chan Seng Onn enlightens defence counsel on their ethical responsibilities, and stresses on the need for justice, honesty and the consideration of public interest when discharging one's duties. His Honour also provides a clear and concise checklist of essential pre-trial tasks for defence counsel, tips on cross-examination and desirable courtroom etiquette, and reminds us of the dire consequences of being found negligent while acting in criminal cases.

Public Interest and Fairness

There are a number of significant pronouncements on the roles and duties of defence counsel, deputy public prosecutors ('DPPs') and judges. Vincent Ng JC in PP v Lee Eng Kooi [1993] 2 MLJ 322 said:

Public interest consideration demands that criminals be apprehended, rightly charged, fairly tried, justly convicted and appropriately sentenced. It is only through an interplay of good law officers, honest but able DPPs, ethical lawyers and competent magistrates and judges that these essential links in the administration of justice and maintenance of law and order is ensured for society, a shortfall in any of these links hardly serves the public interest.

These requirements of the public interest should not merely be regarded as lofty ideals. Instead, they must be turned into reality and adhered to in practice. The public interest demands it.

More recently in Sharma Kuman v PP [2000] 6 MLJ 282, Abdul Wahab J described the role of counsel in the following terms:

The true role of counsel as an officer of the court is to point, to a court having to decide upon a serious matter as a charge of any criminal offence always is, the way to justice, not as some may think, to stand in the way of justice. ... Justice must always remain the humble duty of all parties, the counsel, the prosecutor and the court alike.

Doing justice is thus not the sole responsibility of the court. DPPs as well as defence counsel must embrace and support that noble goal and objective.

Parties appearing in court ought to bear in mind that the judge, in discharging his judicial functions, owes no duty of care to them. His is a public duty to administer justice in accordance with his oath of office. Every judge has taken the solemn oath that he will faithfully discharge his judicial duties, and will do right to all manner of people after the laws and usages of the Republic of Singapore without fear or favour, affection or ill-will to the best of his ability, and that he will preserve, protect and defend the Constitution of the Republic of Singapore.

With regard to the duties of the DPP, Judge David QC in R v George Maxwell (Developments) Ltd [1980] 2 All ER 99 had this to say:

A prosecution ... is brought in the public interest to punish an offender, and not, except indirectly, to compensate the victim. ... Traditionally, Crown counsel owes a duty to the public and to the court to ensure that the proceeding is fair and in the overall public interest. ... By tradition and in accordance with etiquette prosecuting counsel adopts a role of impartiality, and his duty, as is well understood, is not to open to the jury evidence the admissibility of which may be in question, not to attempt an identification of the defendant in circumstances unfair to him, not to cross-examine on speculative or unverified suggestions. These are but some of the constraints on prosecuting counsel which are well understood and which are vital to ensure a fair trial and to protect the public interest.

Should anyone believe that the DPP has to achieve a conviction at all cost and by whatever means possible, then he is sadly wrong. The DPP is always required to act fairly. He cannot be influenced by any ulterior or personal motives in his prosecution. Defence counsel's role on the other hand is to promote and fearlessly protect the accused's best interest by all proper and lawful means.

Halsbury (4th edn) vol 3 para 475 succinctly sums up the duties of defence counsel in criminal cases as follows:

• When defending a client on a criminal charge, a barrister must endeavour to protect his client from conviction except by a competent tribunal and upon legally admissible evidence sufficient to support a conviction for the offence with which his client is charged.¹
• A barrister is under a duty to defend any person on whose behalf he is instructed on a criminal charge irrespective of any belief or opinion which he may have formed as to the guilt or innocence of that person.²

Assisting the Court in the Administration of Justice

In other words, defence counsel must remember that he is the effective mouthpiece of the accused to help him put his best case forward based on admissible evidence and the law. Counsel must nevertheless remember that his paramount obligation is to assist the court in the administration of justice. He must not interfere with its proper and efficient administration.³ He should do nothing that would prejudice the administration of justice or otherwise diminish public confidence in the legal profession. Honesty and integrity are the hallmarks of the legal profession. It follows then that counsel must never deceive or mislead the court. Neither should he try to deceive or mislead a witness, the DPP and any other person involved or associated with the court proceedings.⁴ He must always act in good faith in accordance with the code of conduct set out in the Legal Profession (Professional Conduct) Rules 1998, which is an excellent and comprehensive codification of the existing rules of practice.

Rule 54 of the Legal Profession (Professional Conduct) Rules 1998 makes clear that:

Subject to these Rules, an advocate and solicitor shall conduct each case in such a manner as he considers will be most advantageous to the client so long as it does not conflict with the interests of justice, public interest and professional ethics.

In preparing for hearing, counsel must never coach the accused or his witnesses on their evidence or worse, falsify evidence or devise facts to advance the accused's case.⁵ During court proceedings, counsel should refrain from advancing submissions or propositions known to be contrary to the law.⁶ Reserving contentious matters and issues to be sprung as surprises at the appeal is wrong.⁷ Decisions and legislative provisions favourable or unfavourable to the accused's case ought to be brought to the court's attention.⁸

It is not infrequent that defence counsel is faced with conflicting duties. In such a situation, his duty to the court must always take precedence. Hardie Boys J in giving judgment of the Court of Appeal in R v McLoughlin [1985] 1 NZLR 106 explained how the conflict might be resolved. He said:

It does happen from time to time that a barrister will find himself unable or unwilling to act in accordance with his client's wishes. They may, for example, be incompatible with his duty to the Court or with his professional obligations; or he may consider that compliance would be prejudicial to his client's best interests. Should such a circumstance arise, then he must inform the client that unless the instructions are changed he will be unable to act further ... But certainly counsel may not take it upon himself to disregard his instructions and to then conduct the case as he himself thinks best.⁹ It is basic in our law that an accused person receives a full and fair trial. That principle requires that the accused be afforded every proper opportunity to put his defence to the jury ...

How is counsel to defend an accused who has confessed his wrongdoing? Halsbury (4th edn) vol 3 para 475 states that a confession will impose strict limitations on how the defence may be conducted. One cannot call evidence known to be false having regard to the confession. One cannot suggest that some other person is guilty. Basically, counsel must not set up an affirmative case inconsistent with the confession.¹⁰

When an accused person decides to plead guilty, counsel has certain responsibilities. The judicial commissioner in PP v Thiruselvan s/o Nagaratnam in Criminal Case No 38 of 2000 said:

In my opinion, counsel advising accused persons pleading guilty in a court of law have a duty to confirm with their clients that whatever material facts in the SOF that their clients are admitting to are factually accurate and true, and their admissions to the SOF are completely voluntary. If not, they are to advise their clients to qualify the SOF accordingly. If for some reason their clients are unable to articulate their qualifications to the SOF read out and interpreted to them in court, counsel have to assist by pointing out to the court parts of the SOF that their clients wish to qualify and they should state unequivocally that their clients' admissions to the SOF are involuntary if that were to be the case. The court will then have to decide whether to accept the plea of guilt and to convict accordingly based on the SOF as qualified. Counsel's responsibilities assume even greater importance where the SOF implicates another person in a commission of a serious offence.

The statement of facts admitted by an accused without qualification may subsequently be admitted under section 147(3) of the Evidence Act at the trial of his accomplice. Thus, an accused should be advised never to implicate another co-accused falsely in the statement of facts.

I would also like to remind defence counsel of other ethical responsibilities. There should be no double standards for briefed and assigned cases. The fact that an honorarium and not full fees is paid for an assigned case by the State should make no difference whatsoever. The intensity of trial preparation and quality of advocacy in court for an assigned case should be of no lesser standard than a briefed case. Not only is it professionally embarrassing to be found lacking in competence or in pre-trial preparation, it jeopardises the interest of the accused and may well prejudice his fair trial. Lack of preparation is tantamount to a serious dereliction of professional duty. Therefore, once an assignment is accepted, both the assigned counsel and his assistant assigned counsel must put in their best effort. Anything less is unacceptable.

The Conduct of the Trial

Coming to the trial proper, perhaps I should highlight a few 'don'ts':

• Do not fall asleep, whether fully or partially, or be inattentive. 'For a lawyer to slumber during unspecified portions of such a trial must create a presumption of prejudice.' - David Pannick QC in an article in The Times, 14 November 2000.
• Do not be discourteous. It is impertinent to ask the judge to record your objection, mutter audible comments, sigh loudly, slam the files, stare, show disgust, displeasure or dissatisfaction in any form. Counsel sometimes unconsciously display such unbecoming behaviour when a ruling or decision is adverse to them.
• Do not use the court as a stage to show off to clients.
• Do not interrupt a witness, opposing counsel or the judge.
• Do not shout at witnesses during cross-examination or be discourteous to them.
• Do not ask or put questions which are merely scandalous, or intended or calculated only to vilify, insult or annoy either a witness or some other person.¹¹
• Do not ask long-winded or confusing questions.
• Do not be repetitive just to emphasise a point.
• Do not discuss evidence with a witness under cross-examination.¹²
• Do not create confusion. Often this comes about when counsel himself has not properly done his getting up or has not prepared his case well. Should the confusion of issues be deliberate to mask a weak case, then it amounts to improper conduct.
• Do not distract, eg twirling the pen, rapping fingers on the table, wearing very short skirts.
• Do not shake one's head unnecessarily. No amount of shaking of the head when opposing counsel is submitting will have any effect except to distract. Only a sound argument or rebuttal will make the difference.
• Do not rush the questions in cross-examination. Watch the pen of the judge and that of the opposing counsel. No purpose is served if the judge is not given sufficient time to record the evidence.
• Last but not least, do not make enemies. Be professional and not personal.

Sometimes counsel forget that a witness should only testify to relevant facts within his personal knowledge. Hence, counsel should not adduce from a witness: (a) his views of the evidence of other witnesses; (b) his opinions unless he is an expert witness; (c) his comments on the law; and (d) what the intentions, thoughts and views of another person were. Nor is it the function of a witness to review his own evidence or the evidence of anyone else. Re-examination is not another opportunity for examination-in-chief. Re-examination must only be directed towards explaining or clarifying matters referred to in cross-examination, which have been left unclear, ambiguous or susceptible of multiple interpretations, or which the witness has not been given sufficient opportunity to explain or justify. It is wrong to re-examine on a matter not raised in cross-examination in order to remedy the failure of raising that matter during examination-in-chief.

Do remember to put the essential and material part of the accused's case that concerns a particular witness in cross-examination. If not, it may be taken as undisputed. Evidence not cross-examined on may be assumed to be unchallenged and accepted, unless inherently improbable.

On occasions, I do find that counsel may not be aware of the subtle difference between a question put to a witness and a suggestion made to him. Justice Mahadev Shankar in an article 'Putting and Suggesting in Cross-examination' published in [1984] MLJ xi said:

... when matters are 'put' in cross-examination by defence counsel it is implied that positive evidence will be called to prove the matters put. On the other hand where all that is done is to 'suggest' to a witness that a fact is not so, then what is meant is that the assertions of the witness are inherently incredible but that no positive evidence will be called to contradict the statement.

I have come across counsel merrily putting facts to witnesses in cross-examination seemingly without instructions. The facts put were not substantiated by the accused's testimony and in fact what was put differed in some material points. Putting facts without clear and proper instructions is dangerous. It invites adverse comment and affects the credibility of the accused's later testimony.

It is important to remember that suggestions and put questions in cross-examination that are denied do not amount to evidence. One has to call positive evidence to prove facts. Effective questions in cross-examination are short, sharp and pointed. There should not be too many questions within a question. Similarly, there should not be too many parts in a put question. Remember to have a relevant time frame and a relevant context when framing a question so that the question is put in its proper perspective. The witness cannot then claim to be confused or thinking of some other context when answering the question.

Perhaps I may venture to give some tips on cross-examination:

• Focus on the ingredients of the offence and the essential part of the prosecution's case.
• Focus precisely where to plant the reasonable doubt and then concentrate on the areas that would help create or fortify that reasonable doubt.
• It is important to size a prosecution witness up correctly. Is he prone to exaggeration? Does he have a clear memory? Does he answer without due consideration and hence is likely to make mistakes? Is he generally stubborn in holding on to his position?
• Always be polite to a witness. Win his confidence as in a poker game. Use one's wit all the time. Raising one's voice at a witness will get nowhere except to irritate the court.
• Always use common sense, logic, and rational thinking in envisaging what is likely to have happened. It is pointless to imagine the impossible and the fanciful and then phrase questions along those lines.
• Going into detail usually flushes out a fabrication.
• Pay attention to body language, eg swallowing of saliva, some unexpected change or breakdown in the tone of voice, and any body language which shows any hedging or discomfort. Look straight into the eyes of a witness. Watch his eye and body movements and his facial expressions. Pay utmost attention to the answers given. Often, counsel in cross-examination would keep looking at his own notes and documents, or meticulously take down the answers when he should be concentrating on the witness in the witness box.
• Open a few fronts simultaneously in cross-examination. The witness must not know the real thrust and direction of the cross-examination. Just as in war, one has to probe and explore the perimeter of the enemy's frontline to look for vulnerable points. One has to distract the enemy, do flanking, and not try to mount a direct assault unless it is unavoidable. Always have a plan to close the escape routes and funnel the enemy into a designated killing zone. In other words, questions to rule out the escape possibilities must be asked first before driving home the killer question to show up the witness to be lying. To succeed in war, there must be good intelligence. Similarly, counsel needs to do pre-trial investigation work, fact finding and getting up.
• When desperate, try some fishing expeditions. They are sometimes (not always) useful as one might catch fish from time to time, though rarely.
• As stated above, short, sharp questions are far more effective. Avoid double negatives in a question as they can be confusing to a witness. The problem can be compounded with interpretation. Avoid long recitations before questions. Avoid open questions with no context, no reference points and no time frames. Select words to give the most impact and effect but do not annoy and irritate. Pronouns like 'they, he' in answers must be quickly clarified to ensure that the person or persons referred to are precisely identified. Do not ask open-ended or vague questions. They only create opportunities to nullify the damaging answers secured earlier in cross-examination. But where a question is simple, short, pointed and precise, and a damaging answer is given, no amount of re-examination is likely to undo the damage. Otherwise a witness can readily wriggle out on the basis that the question is unclear, vague or has been interpreted by him in a different way. In other words, a damaging answer to an imprecise question can be easily explained away.
• For cross-examination during a voir dire, cell drawings, arrangements in a building, a table of movement times and sequence of events are useful. Do remember that there is no need for any exaggeration (eg of assaults or threats) to render a statement inadmissible due to involuntariness.

A quick checklist of essential pre-trial tasks for defence counsel is provided below:

• Ensure that there is no conflict of interest when representing the accused.
• Take detailed instructions from the accused and other potential witnesses.
• Make without prejudice representations to DPP. Be aware that facts stated in representation may open up fresh areas of investigation by the police.
• Request for the statements of accused and the CRO 60 from the DPP. The CRO 60 would indicate if evidence of good character might be safely adduced.
• Check with the DPP if they are offering any witnesses to the defence. Sometimes, the DPP may have witnesses whose evidence is inconsistent with the prosecution's evidence. The court cannot impose on the prosecution the role or function of both prosecution and defence. Therefore, do interview these witnesses offered. Gems of evidence may lie hidden to be discovered.
• When ascertaining the possible defences:

1. think through the ingredients of the offence;
2. consider where the weak spots in the prosecution's case might be and where the prosecution will have most difficulty in proving;
3. explore all possible legal defences, procedural defences, substantive defences;
4. disregard fanciful or implausible defences; and
5. check if there is any alibi. (If so, serve notice of particulars as required by section 182 of the Criminal Procedure Code.)

• Leave no stone unturned in considering all the evidence, in particular the prosecution's evidence. Seemingly innocuous evidence may be the foundation of an acquittal.
• Check the voluntariness of statements or confessions. Call for station diaries, lock-up diaries, movement records, investigators' diaries. Look for discrepancies.
• Consider if expert witnesses are required. Having the expert witness beside you to assist in your cross-examination of the prosecution's expert is recommended. But do check with the Registrar for payment of the services and attendance at trial of the expert.
• Consider whether there are other supporting witnesses.
• Check all the exhibits required.
• Work closely with and give clear instructions to assisting counsel, who can help with the note taking, legal research, submissions and the court computerised litigation support system at trial.

I personally believe that spending some time giving basic legal advice to an accused is well worth the trouble, unless of course the accused is of such a low level of intelligence that he is unable to comprehend. I would suggest the following:

• Before taking any instructions, it is important to win the confidence and trust of the accused, who may well think that an assigned counsel, being paid by the State, will naturally be in cahoots with the DPP to fix him up.
• Disabuse the accused of advice received from the legal eagles in the prison.
• Explain the charge he is facing, the ingredients of the offence, and what defences there are in law for the offence in question. Sometimes an accused may not apprise counsel of certain relevant facts simply because he is not aware that such a defence is available or useful evidence exists in his favour. Counsel's duty is to fish out those defences and all relevant evidence in support.
• Explain very simply the trial procedures.
• Go through the prosecution's evidence against him so that he knows what he is facing. Tell him what you see are the weak and strong points of the prosecution's case. Explain the prosecution's burden to prove beyond reasonable doubt and the accused's burden to raise only a reasonable doubt.
• Explain briefly how the court will assess the credibility of his testimony. Tell him that there is no need for him to exaggerate during a voir dire about his treatment by the police or the CNB. Telling the truth without embellishments is far more convincing. Inform him that the court will look for objective evidence and corroboration from impartial witnesses.
• Explain that his testimony during a voir dire should be confined to the involuntariness of his statements. He should not wander into areas in relation to his defence to the charge.
• The effect of put questions and suggestions by DPP must be made clear to the accused.
• Defence counsel must remember to explain the options available to the accused before he makes any decision with regard to:

(a) his plea of guilt; and
(b) his remaining silent.

A failure to do so may well result in a miscarriage of justice. It is the responsibility of the accused to decide these matters for himself. The duty of counsel is to assist him to make up his mind by setting out the pros and cons of each course of action and the consequences, in particular the risks of remaining silent when adverse inferences may be drawn and the presumptions in the Misuse of Drugs Act are operative.

• Clarify with the accused all the perceived inherent incredibilities, discrepancies and embellishments in his instructions.

Finally, it is useful to know when defence counsel may be found liable in negligence when acting in a criminal case. In Arthur JS Hall v Simons [2000] 3 All ER 673, a decision of seven Law Lords, the House of Lords held unanimously that there is no immunity from suit for advocates in respect of civil proceedings and by a slim majority of four to three, also for criminal proceedings. A collateral civil challenge to a subsisting criminal conviction would ordinarily be struck out as an abuse of process, but the public policy against such a challenge would no longer bar an action in negligence by a client who had succeeded in having his conviction set aside. It is comforting for defence counsel to note that the court had said that the mere performance by an advocate of his duty to the court, to the detriment of his client, could never be called negligent, and there would be no possibility of the court holding an advocate to be negligent if his conduct was bona fide, dictated by his perception of his duty to the court.

The Honourable Judicial Commissioner Chan Seng Onn¹³

Endnotes:

1 See Rules 73 and 60(b) of the Legal Profession (Professional Conduct) Rules 1998.
2 See Rule 72.
3 See Rule 55(b) and (c).
4 See Rule 56.
5 See Rule 60(f).
6 See Rule 60(e).
7 See Rule 60(d).
8 See Rule 60(c).
9 See Rule 59.
10 See Rule 74.
11 See Rule 61.
12 See Rule 62.
13 This article was originally prepared for the Dialogue with Assigned Counsel, organised by the Law Society, on 28 April 2001. These views and observations are, of course, extra-judicial. His Honour has since assumed his appointment as Solicitor General in the Attorney General's Chambers.