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Parti Liyani case raises some critical questions that review must address

Parti Liyani case raises some critical questions that review must address

Source: Straits Times
Article Date: 28 Sep 2020
Author: Harpreet Singh Nehal

From police investigation to prosecution, to the judicial role, something went seriously wrong. A review must address any systemic weaknesses.

The Parti Liyani case has caused significant public disquiet. It has focused our minds on issues of criminal justice in a way no recent case has. Clearly, something went seriously wrong. An internal review is being conducted at the Attorney-General's Chambers (AGC) by Deputy Attorney-General Hri Kumar Nair. Law and Home Affairs Minister K. Shanmugam is expected to make a ministerial statement in Parliament shortly.

Errors appear to have occurred at every level of the system, from the initial police investigation to the prosecutors' decision to charge Ms Parti, an Indonesian domestic worker accused of stealing from her employer, prominent business chief Liew Mun Leong; to the handling of the case at trial and the lower court's finding of guilt.

These were highlighted and corrected only in the High Court's appeal judgment. Given the chain of errors, any review should not be unduly restricted, nor mistakes attributed solely to individual lapses. The case presents an important opportunity to assess and address any systemic weaknesses.

The questions below are neither comprehensive nor intended, in any way, to disparage the excellent work that the police, prosecutors and State Courts judges undertake daily to protect and advance the public interest on our behalf. Their efforts are to be lauded. However, where mistakes occur in the administration of justice, we should not shy away from asking uncomfortable questions. That is essential if we are to strengthen public trust in the system. It is in that spirit that this commentary is penned.

POLICE INVESTIGATIONS

The High Court's judgment details the defects in the evidence gathering. The police delayed five weeks before attending at the scene to catalogue the alleged stolen items. The items were not taken into police custody until one and a half years later. Ms Parti was questioned by the police in a mix of English and Malay, notwithstanding that her native language is Bahasa Indonesia. Some of her interviews were conducted using unclear photographs instead of the actual physical items.

This raises a number of questions.

Was the evidence gathering in this case consistent with police protocols?

If yes, might evidence similarly collected in other cases be equally compromised so as to make any convictions in those other cases equally unsafe?

Will the police conduct a full review of other cases where evidence might have been equally compromised and disclose this to defence counsel to permit an opportunity to reopen those cases?

On the other hand, if protocols were not followed in Ms Parti's case, what were the precise reasons the police did not do so? Do the reasons disclose any systemic flaws?

Were the prosecutors from the AGC made aware of the flaws in the evidence-gathering process? If not, why not? If yes, how did they address these serious shortcomings in deciding to charge Ms Parti?

PROSECUTORIAL DISCRETION TO CHARGE

In this case, the prosecution, having assessed the evidence, decided to charge Ms Parti, notwithstanding the flaws in the evidence gathering and the explanations Ms Parti gave in her police statements. A candid review must fairly consider if there were errors made in the AGC's decision to charge Ms Parti.

Among other questions: Did Ms Parti's explanations in her police statements raise any doubts in the prosecution's mind as to the truth and correctness of all the Liews' allegations?

If not, why not? Given the wide-ranging concerns raised by High Court Justice Chan Seng Onn about the serious shortcomings in the prosecution's case, shouldn't such doubts have been evaluated in the first place by the relevant tiers of officers within AGC entrusted with deciding whether to charge Ms Parti?

If some doubts about the Liews' allegations were in fact considered, how were these doubts resolved in favour of a decision to charge Ms Parti over all the nearly 150 items she is alleged to have stolen?

The answers may well shed light on aspects of internal processes within the police and AGC which require improvement, including possibly the need to address systemic unconscious bias when faced with complaints, among others, from ostensibly credible corporate and establishment-type figures and conversely, when dealing with less articulate accused from less privileged backgrounds.

While the AGC is not legally obliged to give any reasons for its prosecutorial decisions, it is hoped that given the significant public interest in this case, it will make public its full review, including (it is hoped) answers to these questions. Transparency is a key coefficient in building trust in the system.

PROSECUTION'S CONDUCT AT TRIAL

A court application has been filed to initiate disciplinary proceedings over the prosecution's conduct at trial.

The prosecution appears to have withheld important information when it presented its case that Ms Parti had stolen a DVD player. Her defence was that her employer no longer wanted the DVD player as it was "spoilt". At trial, the prosecution conducted a demonstration to show the DVD player was working.

In actual fact, the DVD player was not fully functioning. The prosecution did not disclose this fact, either to the defence or to the trial judge. On appeal, the prosecution conceded that the difficulties with the DVD player already existed at the time of the earlier trial.

Justice Chan observed in his judgment that if the prosecution had known of this defect, it should have fully disclosed this as the trial judge "could be misled into thinking the DVD player was in good working condition when questions were (and unfairly) put to Parti on the basis that the DVD player was still in good working condition after an incomplete demonstration of its important functionalities during the trial".

Prosecutors act in the public interest. As the courts have emphasised, prosecutors are "ministers of justice". They owe a duty to the court and the wider public to ensure that only the guilty are convicted. Their duty is not to secure convictions at all costs. Whether or not this duty was breached in Ms Parti's case will be assessed in the process now before the courts.

THE JUDICIAL ROLE

The High Court judgment highlights some fundamental errors in the lower court's judgment - the burden of proof was in one instance, reversed and wrongly placed on the defence instead of the prosecution, expert evidence by the defence was ignored, and the defence was unfavourably commented on for conduct that was allowed for the prosecution. These errors were corrected on appeal.

Judicial officers will, no doubt, carefully study the appeal judgment. The broader issue that is raised, and which should be addressed, is the current officer rotation policy between the State Courts' judiciary and the AGC.

It is not unusual in Singapore for prosecutors and State Courts judges to rotate appointments between departments and between their respective divisions as part of their career progression. In fact, soon after convicting Ms Parti, the district judge left the courts to assume her appointment as Deputy Senior State Counsel at the AGC's civil division.

In 2014, the Prime Minister announced a restructuring of the legal service to introduce two separate career paths - discrete "legal" and "judicial" tracks for middle-rank officers to allow greater specialisation. Junior officers, however, would still rotate between the legal and judicial branches to broaden their experience. The integrated path would also remain for senior officers.

A broader review of the Parti Liyani case should consider:

•whether in the short term, criminal trials in the State Courts should be presided only by mid-ranking officers on the dedicated judicial track

•limiting junior officers not yet on the judicial track to preside only over civil cases and sentencing in criminal cases where accused persons have pleaded guilty

•in the longer term (sooner rather than later), ceasing rotations of officers between the State Courts' criminal justice division and the AGC's crime division for all levels of seniority. Rotations involving other divisions can continue.

A system in which decision makers (that is, State Courts judges) may rotate appointments as part of their career development in an organisation which appears daily before them (that is, the AGC) is not ideal.

THE LIEWS

The appeal judgment has raised some questions about the Liews' motive in filing their police report. The challenge for the AGC now is to rigorously investigate the Liews and charge them if the totality of the evidence justifies this.

Equally, if the evidence against the Liews raises doubts, the AGC must resist the very real public pressure and publicly explain its decision not to charge them. How well and openly the AGC manages this task will determine if public confidence in our system is enhanced or diminished.

Ultimately, how deep and meaningful any eventual reforms will be will depend on how rigorous and candid the various internal reviews are. The more probing and uncomfortable the questions, the more credible the eventual review findings will be, and the greater the potential national benefit.

Whatever systemic changes we effect, we owe a debt of gratitude to the dogged determination of a humble foreign domestic worker and her pro bono lawyer. They have inspired us. They have showed us what it means not to give up in the quest for truth and justice.

Harpreet Singh Nehal is a Senior Counsel and managing partner of Audent Chambers LLC.


Ultimately, how deep and meaningful any eventual reforms will be will depend on how rigorous and candid the various internal reviews are. The more probing and uncomfortable the questions, the more credible the eventual review findings will be, and the greater the potential national benefit.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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