Sunday, August 31, 2008

Just a sorry excuse?

Aug 31, 2008

All kinds of claims are made in mitigation pleas but the jury's out on who should ensure that whatever is presented is not made up

By Mavis Toh

Faced with jail time or a heavy fine, a person convicted of a crime may say anything to get a lighter sentence.

In mitigation pleas, a thief may claim his elderly parents are sick and that he is the sole breadwinner.

A serial molester may say it was the tremendous stress at work or depression that drove him to prey on young girls.

While mitigation is an essential part of the criminal court process, little appears to be done in court to check on the authenticity of the claims.

A mitigation plea is made by a defence counsel after his client has been convicted, in a bid to reduce the expected severity of a sentence.

Last month, Attorney-General Walter Woon tried to put the responsibility of checking the facts laid out in mitigations on defence counsel - to hold them accountable for the claims they make to plead for a lighter sentence.

In arguing before the Court of Appeal for life imprisonment to be imposed on Aniza Essa, a woman who plotted with her teenage lover to kill her husband, Professor Woon said the judge who jailed Aniza for nine years relied too heavily on her mitigation that she was a battered wife and was suicidal.

He suggested to the Court of Appeal that the trial judge, Justice Chan Seng Onn, should have questioned the veracity of those claims if he was going to rely on them in his sentencing.

But Judges of Appeal Andrew Phang and V.K. Rajah both pointed out that it would be wrong of the judge to do this as he should remain a neutral party.

Then the defence should be responsible, said Prof Woon.

But Chief Justice Chan Sek Keong said that if the defence had to prove its mitigation in all cases, whole families may need to go into the witness box to testify.

'When the prosecution keeps quiet on everything, it will be very difficult for the court to take it upon itself to say I don't accept this or that,' said CJ Chan.

He said the court would reserve judgment on the case till a later date.

In a mitigation plea, lawyers typically zero in on three areas: the offence, the offender and the sentencing norms.

The circumstances under which the offence was committed are crucial. For instance, was the accused abused, brainwashed or suffering from depression? Was he having family problems?

Character references from family, bosses and religious leaders are common. Some even get their MPs to write in on their behalf. Recently, for example, Shin Min Daily News' news editor Lim Hong Eng produced a letter from Law Minister K. Shanmugam pleading for leniency to be shown in her case. She had knocked down a motorcycle, killing the pillion rider. She was eventually sentenced to 18 months in prison but is making an appeal.

Lawyers also state whether their clients are first-time offenders and whether they were quick to make restitutions after the arrest.

Reference to similar past cases is also made, to give the judge an idea of how previous offenders were sentenced.

Lawyer Amolat Singh said most lawyers would exhibit documents such as medical reports to back up their claims, especially when it is a point that the judge is going to give considerable weight to.

But when it comes to character references, things can get tricky.

A lawyer who is a former district judge, who declined to be named, said it is hard to prove the 'offender aspect' because a lot of it is very 'personal'.

Mr Singh agreed.

'Sometimes, clients tend to exaggerate,' he said. 'If an offender says he's a filial son who gives half his salary to his mother, his mother is not going to contradict him even if it's false.'

A lawyer, who declined to be named, said that when no evidence is available to prove an important claim, he may even get his client to make a statutory declaration.

'If he says he was suffering from depression when he committed the crime but he wasn't seeing a psychiatrist, I would get him to make a declaration. At least there's some backing up,' he said.

In 2005, a man who was shot twice by a Cisco guard when he was trying to rob a Maybank branch in Bukit Timah the year before reduced several people in the courtroom to tears when he described the desperate circumstances that drove him to attempt the robbery.

In mitigation, Brian Khoo's lawyer highlighted his client's financial woes. He described the numerous power cuts in his flat and said the jobless Khoo was 'driven to desperation'.

But a check by The Sunday Times after the court case showed that the Khoos had never had their power cut and even received constant help from colleagues and neighbours, who gave food and money.

The claims made by the robber's lawyers were never challenged in court. He was sentenced to 41/2 years in jail and nine strokes of the cane. The maximum sentence was 10 years' jail and at least three strokes of the cane.

Veteran lawyer Peter Low, a former Law Society president, said that in most cases, neither the judge nor the prosecution questions the claims made in mitigations.

'Lawyers know the perimeters they should stay within, and most of the time we do back up what we claim in documents,' he said.

Yet, lawyers noted the difference a strong mitigation can make to an accused's sentence.

Association of Criminal Lawyers president Subhas Anandan said that judges, too, are human and a good mitigation can move them to reduce a sentence.

'If the sentence guideline is between six and 12 months, a good mitigation can give you a six-month jail term, and an exceptional one may even earn you five months,' he said.

But he added: 'Sometimes, when the prosecution disagrees and when we're not in a position to prove our claim, then we will - and must - take that claim out.'

In Aniza's case, her lawyer Mr Noor Marican responded to Prof Woon's arguments by saying that he did in fact make changes to parts of the mitigation that the prosecutors were unhappy with.

But the key points which Prof Woon was disputing at the appeal stage - Aniza's suicidal tendencies and the abuse she suffered at the hands of her husband - had not been called into question, said Mr Marican.

Mr Anandan pointed out that at times, if a mitigating factor is being challenged, a judge may even step in to tell both sides that he is not going to give that factor much weight anyway so they 'don't have to fuss over it'.

So if the mitigation is an important part of a criminal hearing, whose duty is it to verify the information used in mitigation?

Most defence lawyers and academics interviewed on this issue agreed with CJ Chan, saying the responsibility ought to fall on the prosecution to disprove mitigatory claims.

'Where the prosecution is suspicious of any fact alleged, it is free to ask for time to investigate the truth of the allegation,' said National University of Singapore criminal law lecturer Michael Hor.

Lawyers added that if the defence is to prove the claims made, there would be a 'hearing within hearing', prolonging the court sessions.

At times, when the prosecution and defence do not agree on the points in a case, a judge can also call for a newton hearing. This is a hearing held to resolve disputed points and ascertain the correct basis for sentencing.

In Aniza's case, Prof Woon said the judge could have called for a newton hearing if he was going to put much weight on her claims that she was abused and suicidal.

Lawyers said that newton hearings are rare in Singapore.

But as officers of the court as well, defence lawyers also have a duty to present to the court factors which are truthful.

How far do defence lawyers go to check on the claims made by their clients?

Mr Anandan said lawyers must be careful and should never include a mitigating factor they have doubts about.

'If I have doubts, I will ask my clients to produce evidence. Lawyers cannot put in a point under the guise of 'oh I didn't check',' he said.

'I won't put in such a point, I won't speculate.'

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[So if the defence puts up mitigating circumstances, and the prosecution needs time to disprove them, the process will be extended. And if the prosecution disproves the mitigation pleas, would the defence then be subject to perjury charges? They should to avoid frivolous and patently false pleas or claims.]

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