Monday, April 25, 2005

Suspects are Guilty...Otherwise They Wouldn't Be Suspects!

Having read the recent controversy over the Shanmugram Muguretsu, I feel compelled to add my 0.02. Especially after I've seen an excellent series of articles by Gilbert Koh, here, here and here.

Let me now state that I've got the utmost respect for Gilbert Koh. If nothing else, his articles show a depth of experience as a trial lawyer I -definitely- don't have, and explain a complex area of law extremely well. He justifies the status quo position extremely well. I agree with many of the things that Gilbert says...in isolation.

(You can see a "BUT" coming don't you?)

My apologies in advance if I offend. This post is not written to whack Gilbert's articles good good, nor to offend. This post is to point out the flaw in the operation of presumptions in Singapore.

Presumption of Death

I'm a moderate conservative. In principle, I support a country's right to impose the death sentence. I'm also all for tough crime-control legislative models, and consequently, I've no problems with Singapore using presumptions to establish guilt in hard-to-detect situations.

What I do have a problem with is the fundamental fact that presumptions are a convenience. And this particular convenience kills.

Let me explain. Under Singapore law, there is what's called a double presumption. The law presumes that when drugs found in a person's possession, the person knows the exact nature of what in his possession. The law further presumes that a person possessing drugs beyond a certain quantity (dependent on the type of drug) is presumed to be trafficking the drug.

Let's take Gilbert's second example, to wit:

"Suppose I am caught with a large suitcase of illegal drugs. One kilogram of heroin, three plastic bags of cannabis and 1,000 Ecstasy pills. And one million dollars hidden in a secret suitcase compartment."

Now, think about what happens if I just -happen- to be found holding this, cos it looks really similar to my bag and I just hauled it off the luggage belt by mistake.

Gilbert goes on further to say:

"You see, there is a remote possibility that I am not a trafficker. Perhaps I only bought the drugs for my own personal consumption, not for trafficking. I bought them in bulk and intended to consume them myself over a long time. As for the million dollars, it was all my own money, earned from my amazing luck in the stock market. Yes, I like to carry all my money in my suitcase. Of course it would be a good idea to hide it in a secret compartment!"

That's absolutely right. Except that the "This isn't my luggage" excuse is going to sound lame - even if it is the absolute truth. What happens then?

Singapore - Home of the Hard-Core

There's another presumption that I find disturbing under Singapore law. There's a provision under the Criminal Procedure Code that allows the police to take a statement from you after you've been charged. This statement has powerful legal effect - there's a presumption of adverse inference if the accused subsequently clams up or contradicts his earlier statement.

There are justifications for this - the police must be allowed to take the strongest evidence possible, and very often, this will be found in what the accused did/did not say in his initial statement, before he has a chance to fabricate an alibi.

What I find disturbing is the fact that this statement is not released to the accused's lawyers until the eve of the trial and that a lawyer is not allowed to be present during the taking of this statement. The police and prosecution essentially has its way with the accused before the defence even has a chance to breathe.

My greatest difficulty here is the erosion of the only effective legal defence against said statement - that the statement was obtained out of coercion. Case law has held that forcing the accused to sit on an ice block while blasting him with air conditioning is not coercion. It's also not coercion to deprive accused of food and drink for 9 hours.

I'm fairly sure that after this sort of treatment I'd have admitted to anything, even to things I didn't do. Especially if I wasn't advised on the consequences of my admission.

Conclusion

My point here is not to show that presumptions are per se bad. My point is that certain presumptions drafted under Singapore law are drafted or interpreted in a kiasu way. It captures more than what is necessary. It erodes safeguards to allow the convenience greater operation than is originally intended. Can we really afford to take shortcuts like this?

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5 comments:

ivan said...

you've touched upon one of the main gripes of criminal defence lawyers... nice one...

Mythical said...

on a distant but related aspect, look at the Apr 25 entry on sententia.blogspot.com

Edan Bernardino said...

Hm. With regard to the statement/fabricate point, it might be helpful to read what Gilbert has said about this. Look in the comments at:

http://www.blogger.com/comment.g?blogID=11699574&postID=111442784697724732

You'll have to scroll down yourself.

I'm not saying I agree with him (I'm in favour of giving the accused a little more leeway) but the picture he paints is not wholly unacceptable.

"statement is not released to the accused's lawyers until the eve of the trial and that a lawyer is not allowed to be present during the taking of this statement. "

Are you sure? Are you talking about the S122(6) EA statement? I'm frankly unsure on both points, but I would tend to think that a lawyer should be allowed to be present, and that the statement should be released during the usual time that both sides exchange documents?

Anthony said...

Edan,

Yes, I'm talking about the s122(6) statement.

I'm fairly sure that (i) the statement is not released right up to the point the trial begins and (ii) the lawyer is not present during the taking of the statement.

I recall in my first year of practice there being some talk of releasing the s122(6) statement earlier on in the course of discovery, but I've not heard anything from it since.

And no, I'm not saying the Gilbert's points about presumptions are wholly unacceptable. My misgivings are that -while- presumptions generally operate the way Gilbert describes, they may -also- operate in the manner that I've described. That's my main gripe.

Edan Bernardino said...

I suppose I should check ;)


Provided that (i) the statement is not released right up to the point the trial begins and (ii) the lawyer is not present during the taking of the statement; I fully agree with the points you made, with perhaps a slight gloss on (ii), that the lawyer must be disallowed from being present; (rather than it being generally true that a lawyer is not present).

I am aware that in most cases the accused is not represented at all, and I think this should not be the case, but that problem is more resource rather than policy based, and hence is rather more difficult to change.

Or perhaps all lawyers should volunteer for pro bono criminal defence. ;)