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Justice Vincent Hoong: Keynote Address delivered at the Criminal Justice Forum
Criminal Justice Forum
“Navigating the Sensitivities of Cross-Examining Complainants in Sexual Offence Cases”
Keynote Address
Wednesday, 2 July 2025
Justice Vincent Hoong
Presiding Judge of the State Courts
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.
3. As we begin this conversation, the reflection I hope to spark is a simple but pressing one – how do we, collectively, ensure that cross-examination remains a tool for the pursuit of truth, without wielding it as an instrument of harm? By the end of this address, I hope to persuade you that this is not a question for judges alone, but a shared responsibility that rests equally with the Bench, the Bar, the Prosecution and every participant in the criminal justice system.
4. I now turn to consider these issues in greater detail.
The Central Tension: A Dual Imperative
5. Our criminal justice system is built upon a dual imperative; one that assumes particular significance in trials involving sexual offences.
6. me begin with a fundamental point. The obligation to ensure that the accused has a fair trial is not a mere aspiration. It is a guarantee implicitly enshrined in the Constitution of the Republic of Singapore,(1) and one that finds practical expression in many of our procedural rules. At the heart of this guarantee is the accused person’s right to challenge the evidence brought against him. Cross-examination lies at the very core of this process. It is not merely a procedural formality – it is the principal tool by which the defence tests the reliability, consistency and credibility of a witness’s account.
7. When conducted within proper bounds, robust cross-examination is not only legitimate, it is essential. It ensures that the defence can put forward its case fully and fairly and that the trial process functions as it should – as a search for the truth, underpinned by fairness on all sides.
8. The court must therefore be vigilant. It must not place unwarranted restrictions on cross-examination. To do so risks undermining the accused person’s right to a fair trial.(2) If defence counsel is hamstrung in advancing his case, due process is compromised, and with it, the integrity of the trial itself.
9. However, the second imperative is no less critical. It is the recognition that the very process of a criminal trial – and in particular, cross-examination – can itself risk compounding the trauma suffered by complainants in sexual offence cases. These are, after all, crimes of a uniquely intrusive and deeply personal nature. It is neither novel nor controversial to acknowledge that recounting such experiences in court may, for many complainants, be as distressing as the initial violation itself.
10. This concern has informed a range of legislative and judicial interventions, some of which I shall touch on shortly. But the underlying principle bears emphasis. While cross-examination is a vital tool in testing the veracity of evidence, it can become a second site of harm if conducted without appropriate sensitivity. It is therefore incumbent upon us, as judges and counsel, to approach this process with care, precision and a heightened awareness of its potential impact.
11. The challenge of course, lies in harmonising these dual imperatives without compromising the integrity of either. The right to cross-examine cannot be diminished to the point that the accused is denied a fair trial. Equally, the right to cross-examine does not entitle defence counsel to subject complainants to unnecessary distress or indignity. Reconciling these imperatives is not an easy task. However, the legitimacy of our justice system and the public’s trust and confidence in it, rests on how well we hold these principles in balance.
Singapore’s Approach to Balancing the Dual Imperatives
12. Singapore’s response to this challenge is multifaceted and evolving - drawing on a combination of legislative safeguards, judicial guidance and institutional reform.
Legislation
13. At the legislative level, the permissible scope of questioning in such cases is carefully circumscribed. The Evidence Act prohibits questions that are indecent or scandalous unless they are relevant to the facts in issue.(3) However, questions that are intended to insult or annoy, or which are “needlessly offensive in form”, are absolutely forbidden even if they may have some bearing on the issues before the court.(4) The Evidence Rules expressly bar defence counsel from asking a complainant about his or her sexual behaviour or physical appearance unless permitted by the court.(5) These restrictions exist to ensure that complainants are not subjected to distressing questions that are irrelevant to the case.(6) They reflect a clear and deliberate policy objective – to ensure that cross-examination is conducted fairly and remains focused on matters properly in issue.
Judicial Guidance
14. Judicial guidance in recent years has both reinforced and elucidated these legislative safeguards. Our courts have consistently stressed that cross-examination, while central to the adversarial process, must be conducted with focus, restraint and respect. In sexual offence trials, how that function is exercised becomes as critical as the outcome it seeks.
15. Most recently in Thangarajan Elanchezhian v Public Prosecutor, the High Court observed that the heightened sensitivities involved when a complainant in a sexual offence case gives evidence make it imperative for cross-examination to be conducted with greater care.(7) In this context, Chief Justice Sundaresh Menon took the opportunity to emphasise the importance of judges assuming an active supervisory role in managing the giving of evidence by complainants in such cases. This duty is grounded on a broader commitment to procedural justice – ensuring that the trial process is fair, balanced and properly attuned to the sensitivities and vulnerabilities of those who appear before the court.
16. Crucially, Chief Justice Menon explained that a judge’s duty to manage these sensitivities begins well before the trial commences and is undertaken through active case management at the pre-trial stage. This includes convening a pre-trial conference with counsel to identify the key issues in dispute.(8) It also presents an important opportunity for the judge to remind counsel of the heightened sensitivities in sexual offence cases, and of their professional responsibilities in conducting cross-examination.(9)
17. Crystalising the broad areas of contention early in the process serves several important purposes. It helps to focus the parties’ preparations for trial, including their approach to examining and cross-examining the complainant. It also enables the judge, when the trial is underway, to intervene and exclude lines of questioning that are either completely irrelevant to the issues identified at the pre-trial stage or are unwarranted or inappropriate.(10)
18. While pre-trial case management lays the foundation for a focused and respectful approach to cross-examination, the judge’s role does not end there. The responsibility to safeguard the fairness and integrity of the proceedings continues into the trial itself and becomes especially acute when the complainant takes the stand. At trial, the judge must actively assess the permissibility of each question or line of questioning as it is posed to the complainant of a sexual offence. The judge must be satisfied that the questions do not contravene the statutory prohibitions in the Evidence Act and Evidence Rules, and that they are within the bounds of reason in terms of their manner, duration and focus.(11)
19. Whether certain questions or lines of questioning fall foul of the guidance in Thangarajan ultimately requires a contextual and holistic assessment of all the circumstances. For example, the mere fact that a question touches on matters such as delayed reporting or the complainant’s conduct after the incident does not, in itself, render it impermissible. However, the court must be vigilant to the risk that such questions – particularly where they rest on stereotypical assumptions about how a ‘real’ victim ought to behave – may unfairly erode the complainant’s credibility or inflict undue psychological harm.
20. The court must therefore scrutinise whether a question is genuinely probative of the issues in dispute, or whether it merely perpetuates prejudicial myths and misconceptions. Questions that reinforce outdated notions – such as the expectation of immediate reporting, visible emotional distress or physical resistance – may appear neutral on their face but, in context, can cross the line into being gratuitously harmful, irrelevant or demeaning. It is the judge’s task to discern and draw that distinction with care and vigilance.
21. Ultimately, it falls to the court to maintain the delicate balance of ensuring that cross-examination remains firmly directed to its proper purpose. That is, the elicitation and testing of relevant evidence in a manner that is rigorous but measured, respectful and consistent with the court’s overarching duty to ensure a fair trial.
Institutional Reform
22. Beyond the legislative safeguards and judicial pronouncements I have just outlined, the Singapore judiciary has also introduced several important institutional measures to enhance the management of cases involving sexual offences. Since January 2025, all cases involving sexual offences in the General Division of the High Court and selected sexual offence trials in the State Courts, are assigned to a Specialist List of experienced Judges and District Judges who will be specially trained to hear such cases. The Chief Justice articulated the rationale for this initiative in his response at this year’s Opening of the Legal Year, stressing that “these cases require careful handling because of the impact the trial process can have both on complainants as well as on accused persons.” (12)
23. Additionally, the courts have introduced a pilot initiative involving the use of enhanced pre-trial checklists for sexual offence trials. These checklists are designed to promote early engagement between the court and counsel by encouraging parties to proactively identify, at the outset, the key legal and factual issues likely to arise at trial. They also require counsel intending to raise questions about the complainant’s physical appearance or sexual behaviour to indicate this at the pre-trial stage. This, in turn, enables judges to set clear parameters for the conduct of the trial with a view to ensuring that cross-examination of the complainant remains relevant and free from objectionable lines of inquiry.
24. Taken together, the legislative safeguards, judicial guidance and institutional measures outlined reflect a conscientious effort to address the complex and delicate issues that arise in sexual offence cases. They underscore a sustained commitment to ensuring that such trials are conducted with rigour, fairness and sensitivity.
The Approach Accords with International Practice
25. This is not unique to Singapore. Indeed, it aligns with broader international practice. Across a range of jurisdictions, similar approaches have been adopted to strike a careful balance between the rights of the accused and the need to protect complainants from unnecessary trauma. For instance, statutory protections such as rape shield laws in the United Kingdom, Canada, Australia and New Zealand, strictly limit questioning about a complainant’s prior sexual history or personal attributes unless specific legal thresholds are met. These jurisdictions also employ pre-trial procedures to determine the admissibility of sensitive evidence and to set boundaries on questioning in advance.(13)
26. These developments signal a growing international consensus: that cross-examination in sexual offence trials must be guided by relevance and conducted with restraint, and that procedural fairness and the dignity of witnesses are not opposing objectives, but mutually reinforcing principles.
The Role of Counsel and Ethical Duties in the Cross-Examination of Complainants in Sexual Offence Cases
27. I have touched on the important role that judges play in managing the cross-examination of complainants in sexual offence trials. However, the fair and sensitive conduct of such proceedings is a responsibility that extends beyond the court to include counsel. This brings me to the final part of my address.
28. The ethical obligations of counsel conducting cross-examination are informed by provisions in the Evidence Act(14) which I have already mentioned, as well as the Legal Profession (Professional Conduct) Rules.(15) Rule 12(5) of the Professional Conduct Rules provides that an advocate and solicitor shall not make any statement, or ask any question, which is scandalous, is intended or calculated to vilify, insult or annoy a witness or any other person, or is otherwise an abuse of the function of the legal practitioner. While these duties are owed to the witnesses who are the subject of cross-examination, they form an integral part of counsel’s overarching duty to the court and to the administration of justice.(16)
29. These ethical obligations must also be understood in light of the broader purpose of cross-examination itself. As I observed most recently in GHI v Public Prosecutor, cross-examination is not an opportunity for theatricality nor for an advocate to demonstrate a flair for antagonistic or aggressive, repetitive and oppressive questioning. Its purpose is not to harass, abuse or cause unnecessary discomfort to a witness. It should never be a platform for personal attacks or insulting or annoying remarks under the guise of questioning. As officers of the court, counsel should always be mindful of the importance of ensuring the appropriateness and relevance of any question or submission that he or she is making, especially where this seeks to impugn the character or integrity of a person who is not only not on trial, but is in fact the alleged victim of the crime in question.(18)
30. Thus, to cite some examples, questions that impugn the complainant’s morality,(19) rely on harmful stereotypes(20) and victim-shaming tactics,(21) attempt to link the complainant’s attire or appearance to the accused’s “temptation” or “motive” to molest,(22) or suggest that the sexual assault could have been avoided if the complainant had not parted her legs,(23) have no place in our courts. Questions about a complainant’s clothing, lifestyle or prior relationships are rarely, if ever, relevant to the facts in issue in sexual offence cases. Such lines of inquiry often rest on outdated stereotypes or misconceptions that a person’s manner of dress, personal choices or past conduct somehow make them more likely to have consented, or less worthy of belief.
31. We would do well to remember that the courtroom is not a battleground, and the witness stand is not an arena for humiliation. There is no honour in extracting testimony through degradation, nor is there skill in exploiting the emotional vulnerability of a witness. In sexual offence cases, such an approach risks re-traumatising the complainant.
32. Yet, this does not mean that robust advocacy must be sacrificed. On the contrary, it is entirely possible to challenge the reliability and credibility of a witness in a way which is measured, respectful and upholds the decorum of the court. Cross-examination that is true to its purpose, prioritises the pursuit of truth while preserving the dignity of all involved. It is focused, structured and relevant. It challenges inconsistencies and clarifies ambiguities without perpetuating antediluvian stereotypes or harmful myths. We must constantly ask, “is this question necessary? Is it fair? Does it illuminate the facts in issue or merely cast aspersions?”
33. It is important to appreciate that respectful advocacy is not a sign of weakness, but the hallmark of professionalism. The dignity with which counsel conducts cross-examination speaks not only of their commitment to their client, but also to their fidelity to the values of the profession and their broader responsibility to the justice system. This critical balance - between thorough examination and respectful treatment of witnesses – affirms a fundamental truth at the heart of a just trial process; that the pursuit of justice should never compromise the dignity of the individuals who participate in it.
Conclusion
34. In closing, I return to the question with which I began. How do we, collectively, ensure that cross-examination remains a tool for the pursuit of truth, without wielding it as an instrument of harm? In the context of sexual offence trials, this question is neither rhetorical nor abstract. It is a real challenge; one that shapes how justice is administered in some of the most grave and sensitive cases that come before our courts.
35. The reflections I have offered today point to a shared responsibility. One that is jointly borne by the Bench, the Bar and the Prosecution. It is a responsibility that extends beyond mere compliance with procedural rules. It speaks to the deeper values that we, as a legal community, choose to uphold.
36. At the heart of this responsibility is the recognition that justice in these cases is not a zero-sum game. It does not compel us to choose between fairness to the complainant and fairness to the accused. Rather, it demands that we safeguard both. It calls upon us to ensure that all parties are treated with equal measures of fairness and dignity and that the truth is pursued with unwavering integrity, clarity of purpose and sensitivity.
37. This delicate equilibrium is not achieved by chance. It requires deliberate, active and principled management by the trial judge. It demands thoughtful preparation and ethical discipline from counsel. It requires those of us who serve within the criminal justice system to recognise that fairness and dignity are not competing ideals in tension. They are in fact, mutually reinforcing pillars upon which our justice system rests. I leave you with this thought.
38. Finally, it is fitting that I close this evening’s address with the launch of a publication that engages with the ideals we have been reflecting upon. The commitment to fairness, clarity and sensitivity in the adjudication of sexual offences must be supported not only in practice, but also through thoughtful scholarship. It is with this in mind that a new book on the law on sexual offences in Singapore has been published.
39. To echo the words of the Chief Justice in his foreword, the book fills a gap in our academic literature and is noteworthy for both the breadth and depth of its coverage. It addresses key areas - from the principles of consent and capacity to evidential and procedural issues, to the law on specific sexual offences and the principles of sentencing for such offences.
40. Let me take this opportunity to commend the authors, Mr Kevin Ho and Mr Hairul Hakkim, for the tremendous work that has gone into producing this book. It stands as a valuable resource and an important contribution that will serve the legal community well and support our collective efforts to administer justice in this important area of the law.
Thank you very much.
(1) Article 9(1) of the Constitution provides a foundational guarantee that no person shall be deprived of his life or personal liberty save in accordance with the law. This has been interpreted by the courts as encompassing “procedural rights aimed at securing a fair trial”. See Tan Seng Kee v Attorney-General and other appeals [2022] 1 SLR 1347 at [254].
(2) Thangarajan Elanchezhian v Public Prosecutor [2024] SGHC 306 (“Thangarajan”) at [56]
(3) Section 153 of the Evidence Act
(4) Section 154 of the Evidence Act
(5) Sections 3 and 4 of the Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules, read with s 154A of the Evidence Act
(6) Singapore Parliamentary Debates, Official Report (19 March 2018) vol 94 (Indranee Rajah, Senior Minister of State for Law) and Thangarajan at [76]
(7) Thangarajan at [52]
(8) Thangarajan at [60]
(9) Thangarajan at [61]
(10) Thangarajan at [64]
(11) Thangarajan at [65] to [74]
(12) Chief Justice’s Response delivered at the Opening of The Legal year 2025, www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon—response-delivered-at-the-opening-of-the-legal-year-2025
(13) See for instance, United Kingdom: sections 41 to 43 of the Youth Justice and Criminal Evidence Act 1999 prohibits evidence or questions about the complainant’s sexual behaviour unless leave is granted, and specific conditions are met. Australia: sections 293 and 293 of the Criminal Procedure Act 1986 (NSW) impose strict limits on questioning about a complainant’s sexual experience or reputation. Section 293 bars any reference to a complainant’s sexual reputation while section 294 prohibits evidence or questioning about sexual experience (with persons other than the accused) unless the court grants leave, which is only permitted where the evidence is substantially relevant and its probative value outweighs any prejudicial effect. See also, sections 341 to 343 and 349 of the Criminal Procedure Act 2009 (Victoria). New Zealand: section 44(2) of the Evidence Act 2006 requires courts to hold a pre-trial hearing to determine whether evidence or questions about a complainant’s sexual experience may be admitted. Section 44AA further mandates that leave must not be granted unless the evidence is of such direct relevance to a fact in issue that excluding it would be contrary to the interests of justice. Canada: section 276 of the Criminal Code RSC 1985 restricts the use of evidence about a complainant’s sexual history in sexual offence cases, allowing it only in narrowly defined circumstances – i.e. the judge must be satisfied that the evidence is relevant to an issue at trial and that its probative value outweighs its potential prejudice. A voir dire must be held to determine the admissibility of such evidence.
(14) Sections 140 to 154A of the Evidence Act
(15) Law Society of Singapore v Wong Sin Yee [2018] 5 SLR 1261 at [25] to [35]
(16) Thangarajan at [75] and Wong Sin Yee at [35]
(17) GHI v Public Prosecutor [2024] SGHC 220 at [73] and [77]
(18) Public Prosecutor v Ong Jack Hong [2016] 5 SLR 166 at [23]
(19) In Public Prosecutor v Ong Jack Hong [2016] 5 SLR 166, the offender committed an offence of sexual penetration of a minor under s 376A(1)(a) of the Penal Code 2008. On appeal, defence counsel suggested that the complainant had not been traumatised as she had prior sexual relations with her boyfriend. Chief Justice Menon observed (at [23]) that submissions “directed at the morality of the victim” were “seldom helpful in the context of sexual offences.”
(20) Thangarajan at [70] – [72]
(21) In Public Prosecutor v BNO [2018] SGHC 243, the offender faced charges under s 354(2) and s 376(1)(b) of the Penal Code for touching the nine-year-old complainant’s penis before causing him to penetrate the offender’s mouth without the former’s consent. The defence engaged in victim-shaming tactics to portray the complainant as a hyper-sexualised boy who had fabricated or imagined the sexual acts due to his alleged “familiarity with sexual matters”. See [195] of the judgment.
(22) In Public Prosecutor v Xu Jiadong [2016] SGMC 38, the offender faced a charge of outrage of modesty under s 354(1) of the Penal Code for allegedly brushing his forearm against the victim’s breasts. During cross-examination, defence counsel stared inappropriately at the complainant’s breasts, asked her to stand up and then sit down as he wanted to show a correlation between her attractiveness – whether “she [was] wearing a very low cut [top] with a very voluptuous breast protruding out” and “breast size” – and the “temptation” or “motive” to molest. See [99], [101] and [109] of the judgment.
(23) In Public Prosecutor v BDA [2018] SGHC 72, the offender faced several charges including one of rape under s 375(1)(a) of the Penal Code. During cross-examination, defence counsel stated that the best way the complainant could have forestalled penetration “was not to open the door, shut the gate, lock”. He explained this to mean that the complainant “could have easily avoided penetration by simply not allowing penetration to occur” and that if she had just crossed her legs and “shut the gates”, “there would be a no entry point”. See [73] of the judgment.
2025/07/03
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