Guilt & Innocence in The Criminal Legal System

ST July 12, 2008
Judge: No question of 'factual guilt' after acquittal
Justice V.K. Rajah takes issue with Govt's position on guilt and innocence
By K. C. Vijayan

A HIGH Court judge has taken issue with the Government's position that people acquitted of crimes may not necessarily be innocent.

Judge of Appeal V.K. Rajah said it was a cornerstone of the justice system that a person is presumed innocent until proven guilty, and it was for prosecutors to prove guilt beyond a reasonable doubt.

He said: 'If the evidence is insufficient to support the prosecution's theory of guilt, and if the weaknesses in the prosecution's case reveal a deficiency in what is necessary for a conviction, the judge must acquit the accused and with good reason: it simply has not been proved to the satisfaction of the law that the accused is guilty, and the presumption of innocence stands unrebutted.

'It is not helpful, therefore, for suggestions to be subsequently raised about the accused's 'factual guilt' once he has been acquitted.'

To do so, he added, would be to undermine the court's not-guilty finding. It would also 'stand the presumption of innocence on its head, replacing it with an insidious and open-ended suspicion of guilt that an accused person would be hard-pressed to ever shed, even upon vindication in a court of law.'

His remarks on acquittal, innocence and guilt came near the end of his written judgment explaining why he acquitted former teacher William Ding, 36, of molesting several schoolboys.

While he did not say so, his comments appear directed at the position taken by the Attorney-General's Chambers (AGC) in The Straits Times on May 8 and May 14.

The AGC was quoted in the first article as saying that a judge was bound by law to acquit a person if the prosecution could not prove its case beyond a reasonable doubt.
'This means that if there is any reasonable doubt, the accused gets the benefit of it. It does not mean that the accused was innocent in the sense that he did not do the deed,' its spokesman said.

The AGC later wrote to the Forum Page and said that the nuance of an acquittal was often not clearly appreciated by the public.

'(The accused person) may be guilty in fact, but innocent in law because the evidence was not there,' its spokesman said.

That position took many, including lawyers, by surprise. Lawyer N. Sreenivasan wrote to the Forum Page saying such a view was of 'grave concern'.

'If the prosecution, with the full resources of the police, the power to interrogate accused persons, interview witnesses, seize evidence and rely on various presumptions, cannot prove a case beyond reasonable doubt, then the prosecution should not cast any cloud on the acquittal of the accused,' said Mr Sreenivasan.

Ahh, this brings back memories. Once upon a time, I was a Deputy Public Prosecutor, so I'm well-acquainted with the matters discussed above. Let me explain the issues with a simple, narrative example.

Suppose an old woman, Mrs Lee, is walking down a quiet street late at night. Suddenly, Ah Beng comes up from behind and tries to snatch her gold chain. Mrs Lee screams for help. Luckily, two passers-by are nearby.

Kumar, a foreign construction worker, shouts loudly at Ah Beng who gets frightened and decides to run away. George, a big burly tourist from Canada, chases after Ah Beng and manages to catch him. Mrs Lee quickly dials 999, and two police officers arrive in five minutes.

Ah Beng is charged with attempted robbery. This looks like a very simple, clear-cut case, the kind that would be assigned to a newbie DPP, just for his very first solo court trial.

However, in the months between the offence and the actual trial, a few things happen.

Mrs Lee has a stroke. She becomes paralysed, and unable to speak properly.

Kumar gets sacked by his boss in Singapore and goes back to his little village in rural India where he will raise chickens for a living. The entire village has only one telephone, which usually does not work. Kumar is no longer contactable.

George's holiday comes to an end and he flies home to Canada. The police can contact him, but he's very busy with his family and career. "Will you fly back and testify in the trial in September?" asks the police.

"Don't be ridiculous," says George, "I already did you a big favour in catching the guy, the rest is up to you." And he promptly hangs up the phone.

At the trial, the judge finds Mrs Lee to be an unreliable witness because the judge cannot understand her slurred speech. Now paralysed, Mrs Lee cannot even hold a pen and write out her responses.

No evidence is available from Kumar, because the legal rules of evidence would require him to be physically present in court, to tell the judge what happened. And Kumar is just not there.

For the same reason, no evidence is available from George

The prosecution's only admissible evidence comes from the two police officers who had arrived on the scene that night, to see Mrs Lee, Ah Beng, Kumar and George.

Ah Beng's defence was that he was in a big hurry that night to meet his girlfriend. He was running down the dark street and accidentally bumped into an old woman, who thought he was trying to rob her.

Ah Beng further claims that George and Kumar arrived on the scene only a few minutes later, while Ah Beng was still trying to explain to Mrs Lee that he wasn't a robber. George and Kumar misunderstood the situation and pounced on him.

Mrs Lee cannot rebut this, because she cannot talk. George and Kumar cannot rebut this either, since they are not present in court.

(Correctly) presuming Ah Beng to be innocent, and (correctly) assessing the evidence available to him, the judge (correctly) declares that the prosecution has failed to prove its case beyond reasonable doubt.

Ah Beng is acquitted. He happily walks out of court a free man.

Ah Beng had 2 previous convictions for robbery, and in each case the modus operandus was similar - both his earlier victims were women walking alone in quiet streets at night. This was another fact which the rules of evidence forbade the prosecution from telling the judge, during the trial.

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The general idea goes like this. A crime happens, and the investigation process yields a lot of evidence that X did it. However, for technical or logistics reasons, some of the evidence cannot be presented in court to the judge, or has to be presented in some greatly reduced form.

Based on the evidence actually available to him, the judge then proceeds to acquit X of the offence.

I do agree with VK Rajah that it is unhelpful for the prosecution to raise suggestions about the accused's factual guilt after he has been acquitted. It simply isn't very constructive.

The only purpose it serves is to defend the AGC's own public image - vis a viz the public's comments like "Oh, how could AGC even have charged this poor innocent person in the first place" etc.

Well, perhaps image defence was all that Walter Woon wanted to do, in this particular case. But from this perspective, VK Rajah's statement is also in the interests of defending the image - of the courts.

Clearly it isn't very good for the courts' reputation if the general public starts believing that a man isn't necessarily innocent just because the judge says so, or that a man isn't necessarily guilty just because the judge says so. Then people will start saying, "Well, what is the use of having judges then?"

The heart of the matter, the real essence, is something a bit too subtle for the man in the street. In the end, we just have to accept that the criminal legal system is imperfect. Criminal law is simply not a maths question capable of exact solutions.

Some factually guilty persons may be found legally innocent. Some factually innocent persons may be found legally guilty. Real life is too complicated for such things to never happen. The system has to constantly work towards minimising such risks and occurrences, that is all.

How good a job is the system currently doing? That's another kind of question. I shall not comment, since I've left that particular system behind me. Nowadays my legal playground is the financial derivatives industry across Asia.