Loyarberjurus

hanya untuk yang berjurus sahaja

Friday, July 10, 2009

THE ACCUSED; PRESUMED INNOCENT OR PRESUMED GUILTY?





One of the occupational hazard of becoming a criminal lawyer is you are associated with the so called crooks or criminals. When I was a deputy public prosecutor, it was always in my perception that 99.9% of those arrested and subsequently charged were the bad guys, the condemned or the unforgiven.

Nevertheless, throughout my career as a dpp, i did came across with OKTs who appered not to be crook alike. Once when I was in Sungai Buloh prison visiting client; I heard somebody shouting from the cells; "Tuan Ariff, sihat kaaa". It turn out to be one of the accused that I had succesfully prosecuted and dumped him to jail. Luckily he had no hard feelings toward me!

When I changed side (some say from the dark side-you decide) to be a private practitioner, I realised that there are actually so many categories of accused person. Being in "2 alam" realy helped me to appreciate these "crook's" background.

Firstly, there are definitely a category of really bad guys who are charged in court. For this type of accused; I concur with the general perception (or prejudice?) to them. They are more often than not already presumed guilty when they are charged. I consider them to represent 50 % of the people charged.

Nevertheless the other 50 % represents those type of accused normally unnoticed by public at large unless you are involved with representing them. One of it is those who actually commit the crime but it is not because they are bad. It is contributed to various factors from peer pressure, family breakdown, exposure to bad habits to inability of the government to provide for job and a better life for citizens.

There are also some people charged in court just because they were at the wrong place at the wrong time. Some are just following the real crooks to a certain place and caught together and some just happened to be close or related to the bad guy or was at the crime scene for a totally different reason yet charged together under the powerful binding section of 34 Penal Code (common intention) or worse by section 149 Penal Code (common object). It normally happends in cases involving raids such as drugs cases.

Also another category is a person who commit the actus reus but actually has no mens rea. Can't believe it? I once have a case whereby a housewife was charged for stealing in a hypermarket while she was sick (kena buatan orang) and cannot remember anything. that she has done . But hey, do people recognise all these "excuses"?. Some accused may also be tricked or persuaded to carry a contraband by others without having knowledge of its content, while the real culprit gets way from any prosecution.

There are also accused who are totally innocent and are charged in court just because they did not bother to make a police report while their opponent did so. This normally happens in case of rivalry in business, marriage and even politics (a lot i tell you).

The are also some accused who are charged in court for events that he did not pre-meditate it. A simple example is someone who is charged for causing death in an accident under Section 41(1) Road Transport Act.

Last but not least there are categories of accused who are made to be the" blacksheep" by a "victim" to cover somebody else's wrong. Normally it is rampant in sexual offences.

Hmmm looks like there are a lot of categories of accused and for me its simple; as we were not at the crime scene let's not judge the book from its cover. Even in Islamic law, it is better to acquit 9 bad guys than to convict one innocent guy.

3 comments:

  1. Nice comment about various kind of accused person existed in reality. Just wanna ask you one thing (perhaps you can post it as another new topic in this blog) Why majority always think that when a dpp opt to be a practitioner he is said as "transform from the darkside"...is it really bad to be in the service?....-aku yang masih dpp-

    ReplyDelete
  2. Dear gsgaqua, nice question that you put forward there. Insyaallah i will try to answer in in the next post. Thank you my friend.

    ReplyDelete