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AG: An acquitted person may be 'not guilty' in law, but 'guilty' in fact.

©The Straits Times, Singapore (Used by permission)
by K.C.Vijayan, Law Correspondent

• A question of guilt and innocence
• Firm 'no' to compensation for acquittals

Law Minister reiterates that 'not guilty in law' does not mean 'innocent'

A MAN is charged with a crime. After a trial, he is acquitted and goes free. Does that mean he is innocent?

Not necessarily.

Witnesses may have changed their evidence, or a technicality may have got in the way. What this amounts to: The prosecution is unable to convince the judge that the man had done the deed.

And once there is any reasonable doubt as to an accused's guilt, duty requires that the judge acquit him.

Law Minister K. Shanmugam told Parliament yesterday: 'It is entirely possible for a person to have committed acts which amount to a crime and yet, there may be no conviction. I emphasise this: No serious lawyer will question this possibility.'

He was responding to two lawyer-MPs, who wanted him to clarify the position of the Attorney-General on the subject of acquittals. The issue has been up in the air since mid-May, when Attorney-General Walter Woon stated that an acquitted person may be 'not guilty' in law, but 'guilty' in fact.

Two months later, Appeal Court Judge V. K. Rajah weighed in on the issue. He did not refer to what the Attorney-General said, but made it clear that such comments could undermine confidence in the courts' verdicts and the criminal justice system, which is based on the doctrine of 'innocent until proven guilty'.

Not so, said Mr Shanmugam.

He described the presumption of innocence as an 'important and fundamental principle' which the Government is 'absolutely committed to upholding'.

'There is no intention to question or qualify that principle in any way. I am surprised that any doubt should at all have arisen about this.'

The Government has no intention of encroaching on the functions of the courts either, he added. 'It is for the courts, and the courts alone, to exercise judicial power and decide the question of guilt, in a trial.'

The Attorney-General's position is similar to that of his predecessor, Mr Chan Sek Keong, now the Chief Justice, Mr Shanmugam said.

CJ Chan had pointed out in a lecture in 1996 that the trial process was designed to prove guilt, not innocence.

Quoting from the lecture, Mr Shanmugam reported the then Attorney-General as saying that the presumption of innocence amounts to saying an accused person is 'legally innocent'.

'It is simply an expression that in a criminal trial, the prosecution is obliged to prove its case beyond reasonable doubt,' said Mr Shanmugam.

The system in places such as England and Scotland is similar. In fact, Scotland has a third verdict - 'not proven' - besides 'guilty' and 'not guilty'. While 'not guilty' is a positive declaration of innocence, 'not proven' implies that guilt has not been conclusively proven.

Even as he stuck to his guns, Mr Shanmugam cautioned against jumping the other way. 'Just as a person acquitted may not necessarily be innocent, he may well also be, in fact, innocent.'

Lawyers The Straits Times contacted said the concepts of legal innocence and factual guilt have always been there, and agreed with Mr Shanmugam that accused persons may sometimes go free.

Association of Criminal Lawyers Singapore president Subhas Anandan said he had defended clients in the past who were acquitted for one reason or other, but whom he felt were guilty in fact.

'An accused person is not going to bother if he is factually guilty. All he wants is to be be able to walk away free.'

The reverse also applies: where a person is factually innocent but legally guilty. 'This happens where the accused wants to plead guilty to a lesser charge and end the case... because his interest is to walk away as quickly as possible.'

 A question of guilt and innocence

THE Attorney-General caused a stir when he said in an article on May 8 and later in a Forum Page letter on May 14 that a person who has been acquitted of a crime may, in fact, be guilty of it. He said this when asked whether people who have been acquitted by the courts should be compensated by the State.

Although Appeal Court Judge V. K. Rajah did not refer to the Attorney-General's position, he broached the subject in his written findings, made public on July 11, in acquitting a teacher of molestation.

It was not helpful, the judge said, to raise questions of factual guilt once a person has been acquitted. Doing so, he added, would undermine the court's 'not guilty' verdict and 'stand the presumption of innocence on its head'.

Firm 'no' to compensation for acquittals

THE answer was unambiguous: The Government has no intention of compensating those who have been acquitted of crimes.

But lawyer-MPs charged on nevertheless, suggesting that compensation might be justified in some cases.

Mr Alvin Yeo (Hong Kah GRC) asked: 'Could I ask whether the minister is prepared to consider a system of compensation for defendants who are in fact acquitted and whom they consider factually innocent?'

Mr Christopher de Souza (Holland- Bukit Timah GRC) levelled in with this scenario: What if an accused person has to go through the whole criminal justice process, right up to the Court of Appeal, to be vindicated? Does he have to pay costs?

Law Minister K. Shanmugam replied that allowing for compensation would fundamentally change the criminal justice system.

He doubted that the public would approve compensating all who have been acquitted, since some might really be guilty of crimes.

In other countries, getting compensation requires an acquitted person to prove his innocence - the burden of proof passes on, so to speak.

Singapore, he said, is not considering this, adding: 'This raises a variety of policy issues.'

As for costs, that was for the courts to decide, and that decision is final, Mr Shanmugam said.

Mr Sin Boon Ann (Tampines GRC) then asked if an accused person deserved some compensation if the decision to prosecute was 'flippant' and based on 'sloppy' investigation.

Mr Shanmugam's retort: 'I think whatever our prosecution in Singapore is accused of, it's usually not accused of flippant prosecutions.'

He noted that the Attorney-General does not take on a case 'on behalf of himself', but to protect the public interest, and that he does so only after studying police investigations on the case.

'Do we want to impose a further layer of caution by telling him that if he gets his decision wrong, he has got to pay costs?'

He added that those who think they have been prosecuted maliciously can file a civil claim.

'That is where we have set the bar, and we are not looking at changing that.'

Similarly, an acquitted person who might be upset that some people have questioned his innocence can sue for defamation, he said.

But lawyers, while acknowledging that criminal law demands a higher standard of proof, point out that they themselves face the issue of costs in civil suits for poor decisions made. The question, then, is why prosecutors should be exempt from paying compensation.

Former Law Society president Peter Low said: 'I don't think we should excuse them in appropriate cases where culpability is established and responsibility should be accepted.'

Drew & Napier director Tan Hee Joek said compensation should be considered for certain acquittal cases. Exceptionally long trials, for example, can result in an acquitted person being ruined financially.

'In such cases, his victory would be Pyrrhic, and at the end of the day, the high legal costs would have done him in.'

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