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On Nov. 29, parliament voted to amend the law on legal applications made by persons facing capital punishment, after they have exhausted the avenues of appeal.

The new rules require these persons to obtain the permission of the Court of Appeal before making a post-appeal application. Requests for such permission must state why the application was not filed earlier, among other requirements.

We asked criminal lawyer Sunil Sudheesan to explain the impact of these new rules — and the implications for lawyers — in layman terms.

Sudheesan heads the criminal department at Quahe Woo & Palmer LLC, and has worked on numerous capital cases in his 17-year career as a criminal lawyer. He outlines the appeal process in such cases, and his experience with legal applications after the appeal is concluded.

He also explains why courts sometimes need to hear new legal applications even after the appeal, and why he thinks the new rules do not prevent these applications from being heard, nor discourage lawyers like him from taking on such cases.

By Sunil Sudheesan

What is the appeal process in a capital case?

It's quite straightforward. We take on a High Court capital trial, we complete the trial, then we argue the appeal and we lodge a clemency petition.

That takes a long period of time.

Trial

From the day the person is charged in court to the day the trial completes is sometimes two to three years. So that's your trial phase. After your trial phase, you will file your notice of appeal upon conviction and sentencing, you have 14 days for that.

And then the judge will write his or her grounds of decision — that can take a few months, sometimes three to six months, depending on the situation, and the complexity of the case.

Appeal

Then the grounds of decision come out, and what lawyers have to do is file something called the petition of appeal. You have 14 days for that as well.

Thereafter, the High Court will prepare the record of proceedings and other required documents. And the Court of Appeal will fix a date for a hearing.

At your Court of Appeal hearing, you argue for half a day to one day, depending on complexity, and more if need be.

So that's your standard appeal process.

From trial to end of appeal, it can take a total of three, four, or even five years.

Clemency

After appeal, assuming the appeal is dismissed, and the death penalty is maintained, what happens then is the clemency process.

Clemency will be considered by cabinet and the president and if clemency is rejected, they will give a timeframe for the death penalty to be carried out.

So this is what is envisaged as the entire lifespan of the criminal matter, in a capital case.

Are legal applications commonly made after the appeal process has concluded?

You have only one appeal, from the High Court to the Court of Appeal.

If we come on board as the lawyers at the appeal stage, that's where you throw in all your arguments and appeals — at the appeal stage.

In my 17 years of practice, including my time working with the late Subhas Anandan, I've only filed one legal application post-appeal, because the criminal process already gives you a whole span of time to make applications after the appeal has been concluded.

Usually, your timeframe for preparing all these kinds of [post-appeal] arguments dovetails together with your clemency petition.

From my reading of the new rules, there is no impediment to these things being done, although these post-appeal applications will now need to go through new procedural safeguards.

If post-appeal applications are rare, why do we need new rules?

What has happened in recent times is that there are last-minute applications being filed just before a person is scheduled to hang.

There will be, obviously, some meritorious ones.

But we have seen that the bulk of the applications are unmeritorious.

I think it probably seems to the Court of Appeal, and it seems to lawyers like us, that sometimes people are filing these applications at the last minute just to delay the execution, which is not what the court is for.

The impact of this is that people are given last-minute hope. And I'm sure they're thinking that this last-minute hope is being very brutally extinguished by the court — but that's because it's an unmeritorious argument.

To have a last-minute application rejected, and then to suddenly be faced with the immediate execution of the death penalty, that is a cruel thing for accused persons, in my mind.

So what kind of applications will be affected by the new rules?

I think this bill came about to at least establish parameters. It doesn't really affect the reasonable or diligent lawyer.

The new rules are to curb what the Court of Appeal has called "abuse of process".

Over the last few years, we've seen a few of these kinds of cases where there's no merit to their argument. And they file it at the last minute.

The point right now is whether these accused persons can say whatever they need to say.

In my opinion, they can, because in the appeal, you can make all the necessary legitimate legal applications.

Post-appeal, you can do it as well.

My question is, does it need to be made the day before the hanging? Do you need to wait until clemency is rejected and the execution date is fixed, and then the day before, you file your application?

So the new rules spell out what you need to do if you want to raise these kinds of arguments. And basically the rules are to sieve out the wheat from the chaff.

What kind of applications will still be allowed under the new rules?

I see the usefulness of having a post-appeal application in certain circumstances.

Sometimes what happens is that post-appeal, fresh evidence comes up that can materially affect the outcome of the case.

Fresh evidence is one of the simple grounds for us to raise to the Court of Appeal.

This new system [of rules] is no impediment, you [simply] explain why there is fresh evidence that's available.

Let's say suddenly you get a confession from somebody else that says "I was the one who did this and that".

Nobody's going to blame you for making a last-minute application in that case, because this fellow maybe had a bite of conscience at the last minute, and then comes forward.

That's when you have to move quickly. And because it's fresh, the application usually will go through.

Of course, you still need to meet the threshold of whether this fresh evidence should be admissible or not.

The new rules require the Court of Appeal to look into whether an application has a "reasonable prospect of success". What does that mean?

Lawyers have been trying for the longest time to unpack the meaning of the word "reasonable".

I'm one of those "feeling" kind of lawyers. If something feels wrong, that's where I try and couch something as a reasonable argument. We have a general sense of what the law requires, and we evaluate the evidence.

It's very easy to give you the stark examples. In a murder case somebody comes forward and says, "I did it instead of that person." That's quite straightforward. So that clears the bar quite easily.

Then, you go down the continuum. A fresh person coming to say he did it. A fresh witness coming to say somebody else did it, a recording comes in from Malaysia from someone saying he's the true culprit that has run away, but he's not going to come back to Singapore.

Or, somebody in prison says he did it, but during the time of the offense, he was in prison. That's fresh evidence, but of no merit. Or, a person who has paranoid delusions, says that he committed it.

So as a lawyer, you have to weigh that kind of evidence and see how "reasonable" the chances of success are.

Aside from cases where new evidence comes up, when might a post-appeal application be needed?

Sometimes, fresh eyes see fresh issues.

Usually it's the trial lawyer that carries on with the appeal. But sometimes, post-appeal, people go and look for different lawyers. Or, post-trial, they will look for different lawyers.

As a result, there are legitimate applications to be filed in the Court of Appeal, or legitimate arguments to be raised.

My experience has been that the Court of Appeal will always listen to legitimate arguments.

That's a necessary part of the system, because you can't stop people from changing lawyers.

But the question is what these new lawyers are telling these accused persons.

If there is a diligent, sincere effort to put forward a new argument because the earlier lawyers made a boo-boo, then you go for it.

But if you're raising arguments without firm grounds, that's intellectually dishonest of the lawyer to run such a case.

Have you declined to take on cases without "firm grounds"?

We have had accused persons come in after their appeal was dismissed.

They say "I want to do this, I want to do this", and they would have raised the issues to their appeal lawyer and their appeal lawyer chose not to argue these points.

For them to come to a fresh lawyer asking to argue these points post-appeal, I'd say, "No way. These are all not new points."

And I'll be straight with the fellow, and I'll tell them "I think it's an abuse of process."

For the accused person, when you have no hope, somebody comes along and tells you, "You can do this, this, this and this," you will grasp at anything, right?

The easiest thing to sell is hope. And sometimes, quite a cruel thing, if it's not sincere.

Does the possibility of "abuse of process" disincentivise lawyers from representing accused persons on death row? For example, cost orders can be made against lawyers.

Many of the LASCO lawyers, they run the trial and carry on with the appeal.

[Editor's note: The Legal Assistance Scheme for Capital Offences (LASCO) provides free legal counsel for those charged with offences involving the death penalty. Currently, there are around 200 volunteer lawyers who are LASCO Counsel.]

On appeal, that is your platform to argue all these points.

Let's talk about a constitutional argument. One portion of your appeal arguments could be dealing with constitutional points. You have a fresh argument to raise, in addition to what the court previously ruled on [after the initial trial].

During the appeal, that's your opportunity to argue it. And they can say, look, that is not meritorious, and they can rule out that ground. You don't get any cost order for that. Because you're filing your appeal. That's your legitimate right.

On appeal, you can make as many unmeritorious arguments as you want, you can raise all your constitutional issues there — if you want.

I think it is foolish to run unmeritorious arguments, but there is nothing stopping lawyers from raising all the arguments they deem worthy. The point is that the proper forum for all these arguments is the appeal itself.

There's nothing stopping you, while on appeal, to run all that. That is the proper forum for everything to be ventilated.

So I wouldn't say there's a disincentive for lawyers to act for accused persons on death row.

There is a disincentive for unmeritorious, last-minute applications to be filed.

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