One matter which I am assisting my boss was fixed for decision today on whether the prosecution had established a prima facie case against our client. My boss had asked me earlier during trial whether our client will get an acquittal or otherwise. While I agreed with him that our client had a strong case, I did tell him that our opinion doesn't count because I seemed to feel that the Judge (as learned as he may be) was not going to be on our side. So when today came, I hoped against hope that my gut feeling will be proven wrong. Alas, the Judge wanted to prove that my hunch was right. He ordered for our client's defence to be called based on what he called as brief reasons (and those which we call as ridiculously absurd grounds). In fact, we wondered whether the Judge had the time to read our submission as none of the grounds we raised were touched in the 20 minutes-odd reading of his brief reasons. Instead, it seemed as if we would be much better off in being silent throughout the trial as the judgment was, if I may point it out, an adoption of the prosecution's arguments in toto.
Our client chose to give sworn evidence, namely testifying from the dock. Any accused person has the right, once his or her defence is called, to choose from three alternatives. He or she could either elect to remain silent, give unsworn evidence i.e. written statement or the path that our client had chosen. Our client's choice which was made with legal advice would necessarily mean that he will be subjected to a gruelling procedure of examination-in-chief (EIC) by us, cross-examination by the prosecution and re-examination (Re) by us if necessary. Had he chosen to give unsworn evidence, he does not need to endure the whole EIC,cross and Re but he must be advised that unsworn evidence will not hold as much weight as sworn evidence.
Being the defence team also means the right to request that the prosecution makes available, witnesses which were not called during the prosecution's case. We had argued that the failure to call several key individuals would raise an adverse inference against the prosecution under section 114(g) of the Malaysian Evidence Act. While I had learned of this 'adverse inference' during my university days, never did it come alive or 114(g) becoming a section that easily roll s off my tongue as much as what I've experienced while assisting my boss in trials. A layman may understand from the meaning of the words 'adverse inference' itself. But from the legal perspective (or at the very least, my own humble opinion), adverse inference is an argument that one raises before the Court against the prosecution on the assumption that had they produced the individuals concerned, the testimonies would not have been in the prosecution's favour. Yet, this argument never found favour with the learned judge. Instead, the judge looked the other way and held that two of the witnesses which were called by the prosecution (whom we had submitted as unreliable witnesses out to save their own necks and are in every sense of the word, accomplices) had proven by way of their evidence of our client's guilt. It is interesting to note that while the judge was mindful of the fact that the evidence of one accomplice could not corroborate another accomplice, he literally forgets that principle the next second and stated that evidence given by the two witnesses mentioned earlier were corroborated by, among others, other witnesses (which we had pointed out as fellow accomplices too).
During the entire period which the brief reasons were read out by the Judge, I found myself writing them down but I could not understand a single word at all. All I understood was that an act of injustice has been carried out. How could there be a prima facie case when we have pointed out the gaping holes in the prosecution's case? Why is one man burdened with rebutting the statutory presumptions when the presumptions had been in itself, rebutted by the material contradictions in the evidence of the prosecution's witnesses? I thought those two questions, if they had been answered in the first place, were enough to acquit our client. Unfortunately, I am just a lowly defence counsel and am not the learned judge. Perhaps that's where the difference lies.
The defence is now scheduled to proceed for hearing in the upcoming months. And given the judiciary's direction for speedy disposal of cases, the judge has even fixed two Saturdays for hearings. Seriously, hearings on Saturdays?! And this is what we get from a judiciary which may have good intentions to clear the backlog in cases but fail to appreciate a fundamental element in any legal proceeding. The Court is there to ensure that justice is served and not to go all out in notching up points in their Key Performance Index. Cases (each as individual and distinct as they could possibly be) are not to be likened to factory products which must be processed and shipped out according to the fixed schedule. Due to KPIs, trials are going at full speed with requests for adjournment rarely being entertained as well as without care on whether the counsel is adequately prepared. I am not sure whether the judiciary is aware of this (or it has become a fact easily forgotten given their high standing) but a day remains at 24 hours max. Even if we forgo our sleeping hours, we will still be rushing from pillar to pillar (and possibly dying) in our efforts to meet their demanding deadlines for filing of submissions and other miscellaneous stuff. Lawyers need time to prepare for their clients' matters especially when it involves freedom of liberty. And that can't be compromised for this KPI rubbish.
Any idealistic law student (and I was previously one of them) will tell you that justice delayed is justice denied. As a litigation lawyer, I now have the opportunity to bear witness that justice hurried is justice buried. I'm very afraid that the lady of justice with her eyes blindfolded may just not be able to see that those appointed to serve justice may be the very tool that allows injustice.
Our client chose to give sworn evidence, namely testifying from the dock. Any accused person has the right, once his or her defence is called, to choose from three alternatives. He or she could either elect to remain silent, give unsworn evidence i.e. written statement or the path that our client had chosen. Our client's choice which was made with legal advice would necessarily mean that he will be subjected to a gruelling procedure of examination-in-chief (EIC) by us, cross-examination by the prosecution and re-examination (Re) by us if necessary. Had he chosen to give unsworn evidence, he does not need to endure the whole EIC,cross and Re but he must be advised that unsworn evidence will not hold as much weight as sworn evidence.
Being the defence team also means the right to request that the prosecution makes available, witnesses which were not called during the prosecution's case. We had argued that the failure to call several key individuals would raise an adverse inference against the prosecution under section 114(g) of the Malaysian Evidence Act. While I had learned of this 'adverse inference' during my university days, never did it come alive or 114(g) becoming a section that easily roll s off my tongue as much as what I've experienced while assisting my boss in trials. A layman may understand from the meaning of the words 'adverse inference' itself. But from the legal perspective (or at the very least, my own humble opinion), adverse inference is an argument that one raises before the Court against the prosecution on the assumption that had they produced the individuals concerned, the testimonies would not have been in the prosecution's favour. Yet, this argument never found favour with the learned judge. Instead, the judge looked the other way and held that two of the witnesses which were called by the prosecution (whom we had submitted as unreliable witnesses out to save their own necks and are in every sense of the word, accomplices) had proven by way of their evidence of our client's guilt. It is interesting to note that while the judge was mindful of the fact that the evidence of one accomplice could not corroborate another accomplice, he literally forgets that principle the next second and stated that evidence given by the two witnesses mentioned earlier were corroborated by, among others, other witnesses (which we had pointed out as fellow accomplices too).
During the entire period which the brief reasons were read out by the Judge, I found myself writing them down but I could not understand a single word at all. All I understood was that an act of injustice has been carried out. How could there be a prima facie case when we have pointed out the gaping holes in the prosecution's case? Why is one man burdened with rebutting the statutory presumptions when the presumptions had been in itself, rebutted by the material contradictions in the evidence of the prosecution's witnesses? I thought those two questions, if they had been answered in the first place, were enough to acquit our client. Unfortunately, I am just a lowly defence counsel and am not the learned judge. Perhaps that's where the difference lies.
The defence is now scheduled to proceed for hearing in the upcoming months. And given the judiciary's direction for speedy disposal of cases, the judge has even fixed two Saturdays for hearings. Seriously, hearings on Saturdays?! And this is what we get from a judiciary which may have good intentions to clear the backlog in cases but fail to appreciate a fundamental element in any legal proceeding. The Court is there to ensure that justice is served and not to go all out in notching up points in their Key Performance Index. Cases (each as individual and distinct as they could possibly be) are not to be likened to factory products which must be processed and shipped out according to the fixed schedule. Due to KPIs, trials are going at full speed with requests for adjournment rarely being entertained as well as without care on whether the counsel is adequately prepared. I am not sure whether the judiciary is aware of this (or it has become a fact easily forgotten given their high standing) but a day remains at 24 hours max. Even if we forgo our sleeping hours, we will still be rushing from pillar to pillar (and possibly dying) in our efforts to meet their demanding deadlines for filing of submissions and other miscellaneous stuff. Lawyers need time to prepare for their clients' matters especially when it involves freedom of liberty. And that can't be compromised for this KPI rubbish.
Any idealistic law student (and I was previously one of them) will tell you that justice delayed is justice denied. As a litigation lawyer, I now have the opportunity to bear witness that justice hurried is justice buried. I'm very afraid that the lady of justice with her eyes blindfolded may just not be able to see that those appointed to serve justice may be the very tool that allows injustice.
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