Ismil bin Kadar and Statement-Taking Procedure
When 37-year-old Ismil bin Kadar was arrested for the simple theft of mobile phones in May 2005, he had a history of drug abuse, and had done his share of time behind bars.[1] But he probably did not expect to become entangled with a murder that his brother had committed on that very same day. Ismil subsequently found himself convicted for that offence and sentenced to death, only to have his conviction overturned more than two years later, in one of the most intriguing—and, in the words of V K Rajah JA, who delivered the judgment of the Court of Appeal, “extraordinary”[2]—cases in recent years.
Ismil’s case has piqued the interest of members of the legal community, human rights groups[3] and society at large, for a number of reasons. One of these reasons is that this case has once again brought into question the procedural law involving the interrogation of suspects by the police. In particular, Ismil’s case highlights the need to reconsider introducing the practice of video recording of police interrogation of suspects.
Ismil bin Kadar – A comparison between the High Court and Court of Appeal Judgments
After a sensational trial involving startling twists and turns, Mr Ismil bin Kadar (“Ismil”) was acquitted of all charges by the Court of Appeal this July. While much attention had been focussed on the manner by which the statements were taken by Senior Station Investigator (SSI) Zainul from Mr Ismil in a police car, and the delay in disclosure by the Prosecution to the Defence of the statement taken from the deceased’s husband, considerably less attention was given by local media to the High Court judgment.
This article will briefly compare the different emphasis placed by the Court of Appeal and the High Court on the significance of particular pieces of evidence relating to physical condition of Mr Ismil when the statements were taken by SSI Zainul on 7 May 2005. The aim is to highlight how a different emphasis on particular facts can lead to radically different conclusions, and how this may thus lead to a wrongful conviction.
Dining Behind Bars
On Saturday, Jing Heng and I went for an event held by the Yellow Ribbon Project, called “Dining Behind Bars”. They hold this once every quarter to raise awareness about the rehabilitation efforts carried out by SCORE, the prisons, and other organisations. We arrived at Changi Prison, went through several layers of security, took a tour of the prison bakery, digital media station and one of the housing units, then were treated to a delicious 5-course lunch in a beautiful tearoom, accompanied by live performances by a band of inmates (literally). It was very impressive.
Why we care
By most accounts, Singapore has a low crime rate. The nation is rather safe, and compared to many cities where crime is more prevalent, Singapore can be held up as a shining example of effective law enforcement. Our law enforcement agencies have come a long way from reigning in criminal elements when Singapore was a fledgling state, to maintaining peace and order in the modern day. It would not be unfair to say that they might even be under-appreciated for what their effects in promoting and effecting a more safe and just society. Why then do some of us concern ourselves with criminal justice issues, debating the reasons, motivations and actions of not only accused persons but the investigations and the legal process too? Might it appear that such actions are being overly harsh and critical?
Circumstances
When we think of criminal law issues or news, sometimes we tend to look at them from a distance and associate them with what is wrong with society; the “darker” side of life. Many, if not all of us, are sometimes guilty of making conclusions based on headlines alone. Gang violence? Must be some juvenile delinquents. Family violence? Must be an alcoholic. Drug trafficking? Must be a junkie trying to make a buck.
These stereotypes may turn out to be true to some extent in some cases, but when we look at these ‘criminals’ from a distance and accept these simple stereotypes, sometimes we may miss the real picture; one that is much more complicated than it seems at first. We may miss the under-privileged youth’s troubled childhood and broken family that makes him join a gang. We may miss the severe addiction and anger management problems. We may miss the uneducated drug mule exploited by cartels.
None of this makes the crime they commit not a crime, or change the fact that they should be held accountable, but in my opinion it should go a small way in changing how we perceive those guilty of crimes, and how society (and even the law?) treats them. I personally think these sort of mitigating circumstances do reduce the moral culpability of the accused, however there is sure to be dispute as to what extent they actually do. Some will argue that whatever situation one is in, a person always has a choice. Others will counter that there are circumstances that, on a deeper level, make a person more likely to want to commit a crime.
How does the law take mitigating circumstances into account? Defenses like duress and necessity which are provided for in the penal code excuse the accused when he has no real choice but to commit the act, due to extreme circumstances like a threat to his life.
But what about other circumstances like those mentioned earlier that have more of an indirect effect? One obvious way the law considers these is in the sentencing of the accused. A specific example could be that of English and Australian courts’ growing acceptance of Battered Woman Syndrome, not as a defense per se, but as a mitigating factor or as an element constituting another defense like private defense or provocation.
One contentious example is the “Rotten Social Background” defense, which has been argued for by lawyers and academics, but never accepted as an outright defense. Its proponents argue that an accused’s terrible childhood and upbringing can desensitize him to criminal behaviour and limit his ability to make the right decision. They also argue that our society has long recognized both the effects of nature and nurture on the character and behaviour of human beings. Since the law does take nature into account (for example abnormalities of mind and mental defects), why not nurture?
On the other hand, opponents again argue that the person always has a choice. Furthermore, that allowing such a defense would create huge uncertainty in the law, allowing for abuse, as all and sundry would claim to have a rotten social background.
Perhaps it would not be practical for our courts to recognize such a defense. It may undermine the certainty of the law and its ability to control crime rates. But it is my opinion that such utilitarian ends have to be balanced with moral ends as well, however contentious they are. Even if the law cannot take such “indirect” mitigating circumstances into account, maybe society should. Maybe we as a society can be more forgiving and look at those guilty of crimes as people who have made mistakes, rather than condemning them.
Martin Luther King Jr once said, “toughness begets toughness”. Was he being too idealistic?
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Discretion in Law Enforcement
Why is it that individuals or organisations are sometimes investigated but not prosecuted in court? And when they do make it to court, it’s for a lesser charge than initially expected. For instance, the capital charge of murder can be reduced to the lesser charge of culpable homicide not amounting to murder, or manslaughter as it is informally known. Drug traffickers may be charged with possessing an amount of controlled drugs that just falls shy of attracting the death penalty. All of these decisions are made even before proceedings enter a court, if they even reach that stage. How does this work?
The primary investigators in Singapore come under the umbrella of the Ministry of Home Affairs. The Singapore Police Force, investigates the bulk of crime through its various departments like the Commercial Affairs Department and Criminal Investigation Department. The Internal Security Department handles serious issues concerning national security. Usually, most aspects of investigation like fact-finding, questioning of witnesses and matters of evidence are conducted at this stage, following which the investigators may decide to forward the case to the Attorney General’s Chambers (AGC), the principal legal advisor to the government. However, the matter may not even reach the AGC if the investigators are not satisfied that there is a case to answer.
The AGC functions as the organisational extension of the Attorney-General’s role as the Public Prosecutor. Under Article 35(8) of the Constitution, the Attorney-General has powers to institute, conduct or discontinue any proceedings for any offence. A relatively new option is a conditional warning where the offender is let off for but if another offence is committed in future that person faces being charged for both offences.
The main point of contention, is how much discretion is available at each stage. There may be insufficient evidence to proceed. The accused may appear deserving of another chance. Other factors may come into play. Whatever the reasons, they are seldom made public. There is no a duty to disclose them. There is no option for judicial review of this discretion, and thus it raises questions of consistency. In issues that attract and divide the public interest, like sensational cases of homicide or sexual assault, the discretion exercised on whether to prosecute, and which charge to pursue is bound to arouse debate.
Practically, the legal system cannot prosecute every case investigated. The costs of investigation, legal proceedings and administering sentences may be prohibitive and take away resources from other areas. Thus a degree of discretion prevents the system from being clogged up. However, it is also in the public interest to provide transparency and accountability for actions. Should more be done to reveal information on what goes on behind the scenes?
Or should it rightfully remain behind the curtain of discretion?
Crime Control vs Due Process
Crime control and due process. These are the two great competing aims of any criminal justice system. What do they mean, and how does it concern you?
In this article, our focus is on how the crime control and due process models compete in the administration of criminal justice in Singapore.
Crime Control:
The crime control method seeks to deter crime as much as possible by enforcing strict punishments. Singapore subscribes enthusiastically to this model, contending that it worked well in Singapore’s turbulent past where secret societies, drug traffickers and gangs sought a foothold in society. History tells us that Singapore’s use of the crime control model helped clamp down if not eradicate some of those criminal elements. It is well known that some of our laws still carry tough punishments, especially those that affect the sanctity of life.
Due Process:
The due process model observes the rights of accused persons throughout the processes of investigation, interrogation and other procedural measures. A clear example are the “Miranda Rights” (commonly and simplistically known as the “right to remain silent”) in the United States and several other jurisdictions. The accused has every right to keep quiet until he/she has access to a lawyer. In Singapore, that right does exist, but the court can draw adverse inferences against an accused who keeps silent, on the basis that innocent men have nothing to hide. Remaining silent in Singapore is therefore seldom a viable option.
Balancing Crime Control and Due Process:
Crime control promotes higher conviction rates in the short term. But with through these convictions and the enforcement of their punishments, the courts hope that they will serve as a deterrent for would-be criminals in future. This way, there may in fact be fewer convictions in future, because individuals are deterred by the court’s strict enforcement of the law. In other words, there will be fewer convictions in the long term simply because there are fewer crimes committed. Indeed, this has resulted in a relatively crime-free society and promotes an environment that is abhorrent of criminal elements. However, the stronger the deterrent, the less forgiving it becomes.
Offering the due process model instead seeks to preserve individual rights in lieu of deterrence. There may be fewer convictions in both the short and long term, but that does not mean there is less crime. Under the due process model, accused persons will have their individual rights fully protected regardless of the severity or direness of the crime (for example, in a kidnapping case, time is of the essence in extracting information). This inevitably leads to slower trial processes, and accused persons may be acquitted on legal technicalities without regard to their actual guilt or not. While that seems bad from a prosecutorial perspective, the due process model champions an individual’s rights, and is extremely important in protecting the truly innocent (or the falsely accused).
In this regard, would you prefer to have extra protection, like rights to have interrogations recorded, Miranda rights and others, or would you prefer to retain the existing model, with a view to certain tweaks where desired. Singapore’s system of preferring efficiency in criminal justice may be a bitter pill to swallow for advocates of pro-accused rights, but perhaps in the Asian context it is ultimately the better one. It may be the lesser of two evils; a choice between a rock and a hard place, call it what you will. Many things that we take for granted now have been furnished thanks to the efforts of our forebears. If it ain’t broke, why fix it?
But is it broken?
Contributing to the Law
Meet Student A, who spent his term break holidays interning at 2 law firms, while participating in pro bono activities too. And now meet Student B, who mainly stayed at home. Which one contributed more to the law?
No prizes for saying that A would be the winner. But consider this, what if B actually contributed too, just by caring about the law? He may not have suited up and manhandled cases and bundles of evidence like a pro, but the smallest contribution can be just as important too. What if I tell you now that B spent time keeping up with the daily newsfeed, broadsheets, twitter, RSS feeds and all. Suppose something caught his eye and got him thinking, and he speaks to someone about it. They tell others about it, so on and so forth. Apart from remotely resembling a multilevel marketing approach, our friend B has sparked an interest, an idea. Ideas, that when harnessed correctly, bring the law closer to the people and vice versa. Perhaps, through the grapevine, someone picks up on what B said and decides to visit the pro bono clinic which A (remember him?) is helping at for advice.
Does B’s contribution seem so miniscule now? Perhaps next time round A will be the one sitting pretty at home while B gleefully takes up the vacant internship slot A left behind? Which one contributed more to the law? You decide.
The Presumption of Innocence
We have all heard the phrase “innocent until proven guilty”. But what does it really mean?
It refers to the presumption of innocence, a long held principle in criminal law. In a criminal trial, the prosecution has the burden to prove that the accused is guilty. For the accused to be convicted of a crime, the prosecution has to present evidence showing that the accused is guilty beyond a reasonable doubt. If the prosecution fails to do so, or if the defence manages to raise a reasonable doubt in the judge’s mind as to the accused’s guilt, the accused should be acquitted. Effectively, the courts will assume that the accused is innocent, until the prosecution proves he is guilty.
However, this may not always be the case in practice. There are certain instances in Singapore’s criminal law where the burden of proof is passed onto the defence. In other words, the defence has to prove the accused is innocent. In this context, the accused is actually “guilty, until proven innocent”. The clearest examples of this are found in cases involving the Misuse of Drugs Act (MDA).
The MDA sets out some presumptions against the accused. For example, section 17 states that if an accused had a certain amount of a drug in his possession, he is presumed to have had it for the purpose of trafficking. Section 18(2) states that an accused in possession of a drug is presumed to know the nature of the drug. These presumptions turn the burden onto the defence to prove that the accused did not intend to traffic the drug or that he did not know the nature of it.
Proponents of the crime control model as is prevalent in Singapore argue that such provisions increase efficiency in convicting those who are actually guilty of crimes, that it is a means to the end of helping make Singapore drug-free. They also argue that those who are innocent or at least have some excuse that makes them not as morally culpable will be able to prove as such by bringing the relevant evidence.
On the other hand, critics will argue that the genuinely innocent are often unable to bring evidence to prove their own innocence. This, along with other factors, may result in them being wrongfully convicted. These critics contend that such presumptions are unfair to the accused, especially when the crime carries a mandatory death sentence, which drug trafficking does, when the amount is over a certain weight.
What do you think? Should an accused always be presumed to be innocent until he is proven guilty?