High Court judge spells out appropriate conduct for defence lawyers cross-examining sex offence victims

SINGAPORE: A High Court judge on Thursday (Aug 29) released a judgment spelling out what the appropriate conduct of lawyers cross-examining victims of sexual offences should be, along with how shielding measures to protect such victims should be applied.
The judgment explained Justice Vincent Hoong’s reasons for dismissing the appeals against his conviction and sentence for a tutor who was given 14 months’ jail for molesting a 10-year-old student at a tuition centre.
He was given another two months’ jail in lieu of caning.
Justice Hoong noted that the victim in the case was questioned about her attire at the time of the molestation.
He said the practice of asking victims what they wore is acceptable if it sheds light on how the offence was committed.
“For example, the line of questioning may confirm whether the touching was above or under clothes, whether there was skin-on-skin contact and or how there came to be such skin-on-skin contact,” said Justice Hoong.
Such questions are necessary, he said. However, the enquiry becomes objectionable when it is premised on or leads to the submission that the victim’s attire had in some way invited the sexual assault.
“For example, any line of questioning which invites the implication that the victim had encouraged unwanted attention because she was dressed provocatively must be rejected,” said Justice Hoong.
He also noted that there was no prolonged cross-examination of the victim, which lasted half a day.
While there were some comments that could be phrased better to the young victim, the questions put to her were generally relevant and put in a measured way, and she was given the opportunity to clarify her answers at multiple points, said the judge.
“It should be borne in mind that the purpose of cross-examination is not to cause unnecessary discomfort to, harass or abuse a witness,” he said.
“In cases of sexual offences especially, unwarranted questioning of the victim’s credibility, delving into irrelevant personal history or insinuating blame can not only re-traumatise the victim but also perpetuate harmful stereotypes about sexual violence,” said Justice Hoong.
This can dissuade other victims from coming forward for fear of being subjected to a similar ordeal, he said.
“It is too frequently overlooked that the purpose of cross-examination is to elicit evidence from the witness to support the cross-examiner’s case,” said the judge.
“While cross-examination is a means of ensuring that the evidence of a witness is properly tested when in conflict with the case of the party cross-examining, it is not designed to be an opportunity for theatricality nor for an advocate to demonstrate a flair for antagonistic or aggressive, repetitive and oppressive questioning.”
In this case, the prosecution applied for a shielding measure for the duration of the victim’s testimony on the basis that she was below 18 at the time.
The girl was 14 when she testified.
The defence objected to the application, submitting that a shielding measure implied that there had been “some sort of threat made to the victim” and that she was therefore frightened to see the appellant face to face.
A shielding measure refers to a way of allowing the witness to testify while in the same courtroom as the accused, but with a shield in place so that the witness need not look at the accused or have the accused look at him or her.
Justice Hoong said that an application for shielding measures does not necessarily imply that a threat was made to the victim.
Such an application may be made for specific categories of witnesses, including but not limited to an alleged victim of a sexual offence, or one that is below 18.
The judge cited the relevant section of the law which stated that a court can impose shielding measures if the witness is afraid of the accused, afraid of giving evidence in the presence of the accused, or if giving evidence in front of the accused will distress the witness.
The court can also impose shielding measures if the reliability of the witness’ evidence will be diminished by their fear or distress.
Justice Hoong said it is well-recognised that giving evidence can re-traumatise victims of sexual offences, and special measures like shielding help mitigate the trauma of testifying live in the same environment as the accused.
In Singapore, the Criminal Procedure Code provides that all alleged victims of sexual or child abuse offences will give testimony in a closed-door hearing unless they wish to testify in open court.
“The concept of shielding measures in legal proceedings brings to the fore complex questions about the presumption of innocence and the rights of the witness,” said Justice Hoong.
“Ultimately, the overriding aim is to ensure that justice is served whilst balancing the need to protect the witness and maintain the integrity of the judicial process, against the fundamental rights of the accused,” said the judge.
He said that a court that implements a shielding measure despite an objection should clearly explain its reasons for doing so, in the interest of transparency.
He said that parties should bear in mind that “effective cross-examination elicits evidence without aggressive, repetitive and oppressive questioning”.
“Ultimately, the pursuit of justice should never compromise the dignity of the individuals involved,” he said.