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Introduction

1. Good evening. I am delighted to be invited by the Professional Affairs Committee's Criminal Justice Working Group to address you on a subject that touches on some of the deepest tensions in our criminal justice system, and one that continues to evolve legally, culturally and ethically – "Navigating the sensitivities of cross-examining complainants in sexual offence cases". Few areas of advocacy present as many challenges, or as many responsibilities, for both counsel and the court.

2. This evening, I will explore three main themes –

a. First, I will frame the central tension that arises in the cross-examination of complainants in sexual offence cases – reconciling the right to a robust defence with the need to ensure that complainants are treated with dignity and respect.

b. Next, I will review the legislative, judicial and institutional measures Singapore has adopted to address this tension – touching on key statutory provisions, leading judicial decisions and recent reforms.

c. Finally, I will examine the role of defence counsel, focusing on the ethical and professional duties that must guide cross-examination in sexual offence trials.

I will also offer some observations on the permissible boundaries of such questioning.

Introduction

The laissez-faire or freedom of contract doctrine allows the parties to enter into agreement based on their own free will and choice. This principle is reflected in the right to contract with anyone they choose, without coercion or external pressure. A contract that is entered into freely and voluntarily is generally enforceable by courts, except in cases involving undue influence, fraud, duress, misrepresentation, or when the contract contravenes criminal law. In the contest of employment law, the relationship between the employer and employee is based on a contract and hence, the general principles of contract law govern employment contracts. While the doctrine of freedom of contract is duly recognised, it must equally be appreciated that workers are generally placed in a disadvantaged position owing to the inherent inequality of bargaining power between the parties. Accordingly, labour legislation has been enacted to safeguard workers against victimisation, unfair labour practices, and various forms of exploitation.

The apex court rules that transactions premised on gambling activities are against public policy and are illegal, null, and void.

A gambling debt is not legally enforceable in Malaysia on grounds of public policy, the Federal Court has ruled. In delivering the unanimous judgment of the court, Justice Nordin Hassan noted that the government had repeatedly and firmly voiced its stance against gambling in Parliament on grounds that the public derives no benefit from it.

Globally, there is an unfettered right of access to court proceedings by the public, which is consilient with the principle of open justice as it is regarded as an essential tenet of any justice system to guarantee public confidence, independence, and accountability in the administration of justice. In Malaysia, Section 15 of the Courts of Judicature Act 1964 states that all civil and criminal matters shall be deemed to be open and accessible to the public. Journalists are often keen to report on cases that are newsworthy and those that garners public interest wherein they act as an intermediary between the public and the courts.