This Side of the Fence: #1 – The Charge

In this monthly series, we walk through our work with accused persons, especially those facing the death penalty.

Perspectives from a Criminal Defense Lawyer in Capital Trials

The day that we get assigned is one of the toughest. The only thing we have is the charge – and sometimes, not even that.

If the appointment came through the family, we might know a bit about the person: what he was like to them, his previous criminal history (if any) and what he may have told them about the alleged offence. We might also gather their motivations behind approaching us, or his motivations as seen through their eyes. Sometimes, he is innocent and the distraught family will pay anything to hear a lawyer say he can and will get him off. Sometimes, he is factually guilty and the family knows it. They just want the best for him, as would any family in difficult circumstances. Justice in every case does not necessarily always mean meting out the harshest punishment possible.

And sometimes, we just don’t know. The law is not always as clear and transparent as it should be. Certain criminal laws that have existed since civilised society existed are intuitive: murder or theft. But certain others that were enacted for “public policy” reasons are less so. Do drug traffickers truly deserve to die any more than someone who has taken a life, regardless of their station? Are consensual sexual relations between two adult males really any of the state’s business?

What is criminal today may not have been criminal in the past, and vice versa. How far do we want or need the state to intervene in the affairs of private individuals, where no harm is caused to anyone else? And even if so, what role should the particular mitigating circumstances of each individual offender play in the criminal justice process, if at all?

If the appointment came through the Legal Assistance Scheme for Capital Offences (LASCO)¹, we would know even less. The family may have abandoned him, or he might be a foreigner whose family might have no means of travelling here, or who may not even know of his plight.

The charge tells us what the offence is, when and where it was allegedly committed, and how. The same set of facts can give rise to several different charges. A man guilty of murder under section 300 of the Penal Code can also be guilty of culpable homicide under section 299, or voluntarily causing grievous hurt under section 322. Different legal consequences would follow.

Who decides which section to prefer? The Attorney-General on behalf of the state, exercising prosecutorial discretion in all his wisdom. Thus, two people who have done exactly the same act may have very different fates. One may be sent to the gallows, whilst the other may be permitted to walk free amongst us after serving his time. Our legal system permits this.

Getting charged with a capital offence is only the start of a very long process. Investigations are thorough. Scene photographs are taken. Exhibits are collected and analysed. Phone records are combed. Witnesses and family members are interviewed. This investigative phase of the process typically lasts months.

Where is the (alleged) offender during this time? Locked up in Changi Prison Complex. Our Criminal Procedure Code does not allow those facing offences punishable with death or imprisonment for life to be released on bail. Thus is struck the balance between the presumption of innocence and the protection of the public.

This means that the charge a person faces when he is arrested and remanded may very well be, and very often is, different from that which he eventually faces at trial. Particulars change as investigations reveal more details. Sometimes, the charge is reduced to a lesser section as evidence emerges, or the attitude towards prosecution changes.

On the bright side, charges are usually only reduced, and not escalated. The prevailing prosecutorial attitude is: slap the offender with a heavy holding charge first so that he can be held in police custody without possibility of bail, and to encourage him to cooperate with investigations. The details can be fine-tuned later.

This is not to say that there is anything wrong with this approach.

It is only to say this: the charge that we as defense counsel get upon initial assignment may not tell us a whole lot about the case or about the approach that we will need to take when it eventually gets to trial two, maybe three, years down the road. And at this point in time, we don’t have anything else.

The full story must come from the client.

This article is written by Chooi Jing Yen and was first published on Asia Law Network.

1. A scheme administered by the Supreme Court to ensure that no individual facing capital punishment is denied legal representation, even if he may be impecunious.