Acquittal Means Innocence

I read with great interest the article “Acquittal does not mean Innocent”, by Mr Alexander Woon, published in the December 2021 issue of the Law Gazette.

https://lawgazette.com.sg/feature/acquittal-does-not-mean-innocent/

This idea periodically surfaces in various contexts, despite clear judicial prounouncments to the contrary. Mr Woon makes, in pursuit of his central theme, the following contentions:

(a)?????????That the meaning of an acquittal is inherently ambiguous;

(b)?????????That we need to make a distinction between the legal and practical consequences of an acquittal:

(c)??????????That change is needed because members of the public may form the wrong conclusion that an acquittal must mean that the prosecution was wrongly brought or that the complainant was lying; and

(d)?????????That courts, in acquitting, can and should distinguish between cases where guilt is simply not proven and cases where guilt is actually disproved.

The underlying basis of Mr Woon’s argument is that while acquittal means legal innocence, it may nonetheless encompass factual guilt.

“Acquitted means innocent” is the bedrock of our criminal justice system. Prosecutors must and should accept the finding and effect of acquittal, without qualification. Mr Woon, quite ingeniously, attempts to argue that making a distinction between acquittal where guilt is not proven and acquittal where guilt is disproved is somehow a reform to assist acquitted persons.

Mr Woon justifies his novel approach on the basis of the Evidence Act definitions of ‘proved’, ‘disproved’ and ‘not proved’. Mr Woon’s reliance on the Evidence Act is quite misplaced. The definitions of ‘proved’, ‘disproved’ and ‘not proved’ are intended to and can be applied easily to findings on particular facts. However, on the question of guilt and innocence, the entire factual matrix interplays with the applicable law and the defined elements of an offence. The court can find some facts proved (or even admitted), find that there is simply not enough evidence to make a safe finding or others, and find that still others are disproved.

Mr Woon’s approach and underlying assumptions are dangerous. The idea of courts making a distinction between guilt not proven and guilt disproved has no basis in the reality of the criminal justice system.

There are three fundamental problems with Mr Woon’s approach. The first is that it ignores the real and practical question of the “presumption of guilt”. The second is that there is no equality of arms between the prosecution and the defence. The third is that a finding of ‘not proven’ will unfairly taint a factually innocent acquitted person who is unable to disprove the case against him.

In the 1996 Singapore Law Review lecture, then Attorney General Mr Chan Sek Keong, gave a masterful lecture on the Singapore model of criminal process, which is essentially patterned on the Crime Control model. One aspect of the Crime Control model is faith in the investigative and administrative screening process by the Prosecution such that only the probably guilty are charged and the probably innocent are screened out.?Mr Chan stated that

“According to Packer, the key to the operation of the [crime control] model is the presumption of guilt. This is not the opposite of the presumption of innocence which is the polestar of the due process model. Once a determination is made that there is enough evidence of guilt, which may take place as early as the timer of arrest, he is to be treated as probably guilty.

If there is confidence in the reliability of informal, administrative fact-finding activities that take place in the early stages of the criminal process, the remaining stages can be relatively perfunctory.

The presumption of guilty is an expression of that confidence.??….?“

The above approach is well ingrained in prosecutors and, as an accepted part of our jurisprudence, and is, unavoidably, often at the back of the minds of some courts. Hence, to get an acquittal, the accused has to displace the presumption of guilt that is inherent in the operation of the crime control model.

Accused persons plead guilty in the vast majority of cases. Presumption of guilt, presumption of innocence and the meaning of an acquittal does not come into play. Cases that go to trial are a minority and are outliers. Amongst such cases, an acquittal occurs in a minority of cases, and is even more of an outlier. In such outlying cases, the ‘presumption of guilt’ has been displaced. There is no reason to then argue that these are cases of factual guilt but legal innocence, in some vain attempt to validate the presumption of guilt. Acquittal of the factually guilty may occur, but those exceptions do not justify devaluing the vindication that an acquitted person is entitled to.

I now deal with the inequality of arms. The police have broad investigative powers. They can seize evidence and interview witnesses. The Prosecution has access to the full investigation papers and can direct further investigations. Witness statements can be used in lieu of sworn testimony, where a witness departs from his statement. Accused persons can be convicted on statements alone; even the retracted confession of a co-accused who chooses to remain silent and cannot even be cross-examined. Statements are not currently video recorded and judges have to rely on second hand evidence of what an accused actually admitted to in a police station. On the other hand, the defence counsel really has no ability to prove or disprove anything; although Kadar and Nabill and other recent judgments of the Court of Appeal have improved matters. Cases such as Parti Liyani have shown shortcomings in the system. The crime control model is predicated on the need to protect society and the broad powers of the police is the price we, as a society, have agreed to pay. However, there is a trade-off that Mr Woon does not appreciate. This inequality of arms is balanced by making the prosecution prove its case beyond a reasonable doubt.

I have always found it somewhat disconcerting that while prosecutors and ex-prosecutors frequently push the idea that acquittals may just be guilty persons who got off, they almost never admit that the wrong person may have been charged.?Mr Woon should read Zainal bin Kuning & Ors v Chan Sin Mian Michael & Ors [1996] 2 SLR (R) 858.

Mr Woon’s suggests that defence counsel can and should somehow work towards “disproving of guilt”; to vindicate their clients in the eyes of the public. Mr Woon’s suggestion will not be taken seriously by anyone who has done defence counsel work. We have no resources or legal investigative powers and have to deal with the “presumption of guilt”. Getting an acquittal is hard enough and trying to disprove guilt (or in other words prove innocence) to satisfy the court of public opinion is simply not practical. Mr Woon’s idea that his proposal works in favour of accused persons in unrealistic and frankly quite absurd. With the unequal positions occupied by the Prosecution and the Defence, the proposal will favour the rich and powerful accused persons who can level up, and leave the poor and less educated to labour under the taint of “not proven”, even when they are acquitted.

Suggestions that an acquitted person may nonetheless be guilty invite the counter suggestion that convicted persons may be innocent. This undermines confidence in our criminal justice system. Once the verdict is out and all processes are over, including appeals, respect for the system requires that the verdict is accepted. All sides should explain how the system works to the public.