Costs in Criminal Cases Should Be Reviewed
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If Singapore is to be considered a 1st World country, then the innocent parties should not be made to bear the costs of their defence:
free, yet faced with a mountain of debt
It is high time that the law in Singapore on costs in criminal cases is reviewed
Thomas Koshy
On August 4 last year , when Jagatheesan Krishnasamy met Gunaprakash N Thuraisamy to collect on a loan, little did he know that Central Narcotics Bureau (CNB) officers were watching and waiting to bust Gunaprakash the moment he delivered ecstasy pills to an undercover CNB officer, who had arranged a trap purchase.
Following his arrest, Gunaprakash claimed that Jagatheesan had supplied the drugs. Seemingly on the strength of Gunaprakash's word alone, Jagatheesan was arrested — even though he was not the target of the CNB operation and was never seen with any drugs.
So began Jagatheesan's nightmare, which culminated in his being convicted and sentenced to five years' jail and 10 strokes of the cane for drug trafficking.
On May 26 this year, Jagatheesan's ordeal finally ended when the appeal court quashed his conviction.
He was a free man — but not before having served months of imprisonment and being saddled with debts of tens of thousands of dollars for legal costs.
Should Jagatheesan be left to bear the crushing burden of debt from legal costs?
Although the High Court, after hearing appeals from the Subordinate Courts, has the power to order the prosecution to pay costs to a person who is acquitted, that power is practically never exercised.
The situation is worse in the trial court. The law only allows recovery of costs by a person acquitted after a High Court or District Court trial if the prosecution was "frivolous and vexatious", making the right to costs practically illusory.
The provisions relating to Magistrate's Court cases are even more archaic. The maximum amount that can be recovered upon acquittal is $50.
It is anomalous that the Singapore courts routinely award costs to successful defendants in civil cases, but never to successful defendants in criminal cases.
On the other hand, the law does not place any constraints on the power of the courts to award costs to the prosecution on conviction — no $50 limit or requirement that the defence was "frivolous and vexatious", for example.
In some cases, the courts have awarded costs of tens of thousands of dollars to the prosecution upon conviction of the accused person.
"If the prosecution can get costs on conviction then even more so it is only right that an acquitted person should be entitled to costs. After all, what is sauce for the goose is sauce for the gander," said leading criminal lawyer Subhas Anandan, who acted for Jagatheesan.
The position in Singapore contrasts sharply with that in England. The law in England states that if a person is acquitted, the court should normally make an order of costs in his/her favour unless there are positive reasons for not doing so.
It would further the cause of criminal justice in Singapore if this approach were adopted here.
Currently, many who are charged are reluctant to spend on legal costs to defend themselves when even a win means losing their savings.
The outcome of a trial may be uncertain, but that they have to pay their lawyers is for sure. So, knowing that they have no prospect of recovering their legal costs may very well cause innocent persons to plead guilty.
A person should not have to choose between a wrongful conviction and personal bankruptcy. There is no cogent reason why a person found innocent should have to bear the costs of his defence.
The risk that a person can be wrongly charged cannot be altogether eliminated. The question is who should bear that risk.
Surely, it is more apt for the state to do so. Since more than 95 per cent of cases end up in convictions, it is only in a handful of case that the state would have to bear such costs.
Allowing an acquitted person costs would also signal to the prosecution that putting an innocent person through a trial has cost consequences. This is bound to serve as a healthy check on the prosecution. It is high time that the law in Singapore on costs in criminal cases was reviewed.
Defence lawyers can take the lead by making more eloquent and forceful applications to the court when appropriate. But, ultimately, legislative changes are called for to make the criminal process more fair to serve us all.
After all, the presumption of innocence probably sounds like a hollow promise to a person who walks out of a courtroom with the pyrrhic victory of an acquittal earned at the cost of a mountain of debt and without any compensation for the ordeal he/she has been through.
The writer is a lawyer. This is his personal comment. -
yes, it is high time the laws be reviewed.
i heard of someone whose life was ruined because a female colleague accused him of molest. Though he was acquitted, he lost his job, wife, relatives and friends. The only thing he gained besides his acquittal was a mountain of debt!
btw, i don't see why the mod should lock thread, "Trainee doctor entrapped for drug possession" and ask that we cont discussion in Chit Chat. Many of us, including myself, don't participate in that forum. -
A very convincing argument. I hope the new CJ does something about this.
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In Taiwan, the govt. is liable to pay you, in counts of days spent in prison, when you are convicted but later proven innocent.
IMO, the cost shld be reviewed.
Yes, he is a free man now but also a bankrupt.
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In common law jurisdictions including the UK, you are not eligible to compensation unless you can prove that the police and law authorities acted maliciously or negligently. For example, the two Muslims wrongly arrested recently in London are not eligible for compensation unless they can successfully sue the police for negligence, even though one of them was shot in the raid.
To pay compensation to those wrongly accused or arrested through no fault of the police, the funds must come from the tax payer as well. If Singaporeans feel strongly about this matter and are prepared to rectify the injustice to those who are wrongly accused, they must be prepared to pay more through their taxes.
There is a danger passing the costs to the police and law enforcement agencies. If you do that, thepolice will not arrest anyone who is suspected of a crime but where there is not enough evidence to prosecute yet. If they have to release the suspect later after interrogation revealed he is innocent, the police will have to pay compensation. That will shackle police investigations and lead to more crime. -
The issue is not about wrongful arrest by the police. It is about the costs the innocent has to bear in criminal cases.
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Oh come one now, you all should know by now, that the system here makes money out of all our NEEDS, ENJOYMENTS, HEATHCARE, and even in TROUBLES.
Wherever there's a buck to be made, you can bet it will NEVER, change. -
The costs are high primarily because our lawyers and judges are paid so highly. The legal service is a highly protected industry. Whilst cheap foreign doctors from India and Burma are allowed to work in our polyclinics, foreign lawyers are prohibited from doing so.
Costs of litigation will drop if our lawyers are paid less but in a global economy, that is unlikely to happen, since lawyers are very highly paid in western economies as well. Commercial firms are prepared to pay high salaries for lawyers in a successful merger or IPO launch. What will happen is that the top lawyers will do commercial law (as they already do) and the less talented will handle criminal cases. If we bring in cheap foreign lawyers to do criminal cases, we will force more local lawyers to do the more lucrative commercial law.
We will see foreign lawyers handling all the criminal cases and local lawyers, who are better paid, dealing with conveyancing and corporate law. It is a possible solution, if we are prepared for its implications. -
oops! your english needs some working, you don't seem to understand the letter at all.
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you think barristers very free issit? any'o'how go represent people in court for a low fee, esp those troublesome cases. lawyers didnt chiong to go to law school to do charity work you know they just want a good job and besides, its not that easy to win a case like your wayang wayang soap opera, the defense always has a disadvantage because the prosecution(the state) has command of more resources. which barrister would put so much effort into a messy case without being well rewarded for his efforts? his secretary, assistant all these don't need to pay ah?
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not necessarily. in countries like singapore you have to have 1st class honours in order to enter the bar and be a barrister, in most commonwealth countries its 1st class and 2nd upper class for barristers(represent clients in court). with a 2nd lower class you can only be a socilitor(legal advice eg. corporate legality, cannot represent clients in court). so who said less talented lawyers handle criminal cases and more talented lawyers handle corporate affairs?Originally posted by oxford mushroom:The costs are high primarily because our lawyers and judges are paid so highly. The legal service is a highly protected industry. Whilst cheap foreign doctors from India and Burma are allowed to work in our polyclinics, foreign lawyers are prohibited from doing so.
Costs of litigation will drop if our lawyers are paid less but in a global economy, that is unlikely to happen, since lawyers are very highly paid in western economies as well. Commercial firms are prepared to pay high salaries for lawyers in a successful merger or IPO launch. What will happen is that the top lawyers will do commercial law (as they already do) and the less talented will handle criminal cases. If we bring in cheap foreign lawyers to do criminal cases, we will force more local lawyers to do the more lucrative commercial law.
We will see foreign lawyers handling all the criminal cases and local lawyers, who are better paid, dealing with conveyancing and corporate law. It is a possible solution, if we are prepared for its implications. -
Hahaha...where on earth did you get this idea from? Barristers who do corporate law earn far more than those who handle criminal cases. Solicitors who facilitate company mergers earn far more than a criminal lawyer in a murder trial.Originally posted by vito_corleone:not necessarily. in countries like singapore you have to have 1st class honours in order to enter the bar and be a barrister, in most commonwealth countries its 1st class and 2nd upper class for barristers(represent clients in court). with a 2nd lower class you can only be a socilitor(legal advice eg. corporate legality, cannot represent clients in court). so who said less talented lawyers handle criminal cases and more talented lawyers handle corporate affairs?
Given the huge difference in salaries, practically every lawyer wants to do corporate law. As my lawyer friends tell me, you won't touch criminal law with a 6-foot pole, and that only when you are 6 feet underground. Given the competition in corporate law, you've got to be the best to stand a chance of being considered. -
Don't you even understand common law? If you are found innocent in a criminal trial, you are not eligible for compensation unless you can prove negligence on the part of the police and prosecuting authorities. If you cannot understand simple English, go back to school and quit insulting others.Originally posted by pearlie27:The issue is not about wrongful arrest by the police. It is about the costs the innocent has to bear in criminal cases. -
wasn't the letter about getting changes to the law or what ever policy regarding the ability to get compensation( or rather the costs) when declared innocent in a criminal trail?Originally posted by oxford mushroom:Don't you even understand common law? If you are found innocent in a criminal trial, you are not eligible for compensation unless you can prove negligence on the part of the police and prosecuting authorities. If you cannot understand simple English, go back to school and quit insulting others.
sounds convincing anyway and i would have to agree, although the costs would be a problem. but i do see it as a more fair alternative than for the innocent person to undertake a mountain of debt through no fualt of his own.
of couse provisions should be made( if they aren't now, me no lawyer) for cases like rape/molest accusations and such where the accusations actually came from a party. -
Originally posted by oxford mushroom:
Tsk, tsk, tsk, tsk ........... a Doctor "doubling" as a Lawyer ? .
Original post by pearlie27:
The issue is not about wrongful arrest by the police. It is about the costs the innocent has to bear in criminal cases.
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Don't you even understand common law? If you are found innocent in a criminal trial, you are not eligible for compensation unless you can prove negligence on the part of the police and prosecuting authorities. If you cannot understand simple English, go back to school and quit insulting others.
What is becoming to this World when a supposedly Man of Letters can display such scornful attitude towards a supposedly Lay Person - who maybe years younger ?
Where is the bedside manners and the Hippocratic Oath made ?
When the Courts begin to invoice the Public on an hourly basis - the time spent by those on the Bench and the supporting staff, including the rental for the court rooms, and stationaries - then those who are wrongly accused should also be compensated for errors of justice be it committed by the Law Enforcers or by the Judiciary.
The Attorney-General's Chambers should be more diligent in its review of all Police Investigations that arrive to its Chambers for decisions to be made whether to prosecute or not, and if the charges are correctly drafted.
Why should the ordinary public be made to suffer the consequences for the ineptitude and poor diligence from the Law Enforcers as well as from the Attorney-General's Chambers ? -
did i ever state that barristers who handle criminal cases make more money than corporate lawyers?Originally posted by oxford mushroom:Hahaha...where on earth did you get this idea from? Barristers who do corporate law earn far more than those who handle criminal cases. Solicitors who facilitate company mergers earn far more than a criminal lawyer in a murder trial.
Given the huge difference in salaries, practically every lawyer wants to do corporate law. As my lawyer friends tell me, you won't touch criminal law with a 6-foot pole, and that only when you are 6 feet underground. Given the competition in corporate law, you've got to be the best to stand a chance of being considered. criminal law and civil law are two different areas do the lawyers in the US who handle civil cases eg. suing for millions on behalf of a client and drawing a high comission make less money than the average corporate lawyer? it all depends on circumstances people with 1st class honours can choose to either join the corporate or public sector whereas a person with a 2nd lower or a mere pass can at best only get a job as a socilitor, the issue here is not one of money but one of competence. -
the presumably innocent defendant in the case of a prosecution by the state authorities are entitled to a state appointed barrister if he or she cannot afford one, where's the cost, if its a material one, to be found? and if you do not want to incurr the costs of hiring a defense lawyer, why commit the crime in the first place hence giving the authorities a chance to prosecute you?Originally posted by pearlie27:The issue is not about wrongful arrest by the police. It is about the costs the innocent has to bear in criminal cases. -
i think it is you who needs some brushing-up in your language capability, the phrase "needs some working" makes no sense at all.Originally posted by pearlie27:oops! your english needs some working, you don't seem to understand the letter at all. -
No you didn't indeed. The thread is about barristers doing criminal cases. What I meant was that criminal law does not pay well compared to other branches of law. I cited corporate law but you are right in that some solicitors handling civil cases are well paid and maritime law is so specialized that lawyers in that field certainly do well.Originally posted by vito_corleone:did i ever state that barristers who handle criminal cases make more money than corporate lawyers? criminal law and civil law are two different areas do the lawyers in the US who handle civil cases eg. suing for millions on behalf of a client and drawing a high comission make less money than the average corporate lawyer? it all depends on circumstances people with 1st class honours can choose to either join the corporate or public sector whereas a person with a 2nd lower or a mere pass can at best only get a job as a socilitor, the issue here is not one of money but one of competence.
I think money dictates where the lawyers will flock. Wouldn't you agree that if a solicitor doing commercial work is paid more than a barrister handling criminal trials (as it often is the case), most lawyers will avoid criminal work. Given the laws of demand and supply, corporate and commercial law will be able to pick and choose the best whilst there will be fewer criminal lawyers to choose from.
Anyway, this is a side issue. The threadstarter is arguing for compensation for persons found innocent in criminal trials and ways to reduce costs in criminal trials. The former is not provided for in common law jurisdictions unless the defendant can prove negligence on the part of the police and prosecuting authorities. The only way to provide compensation in these cases would be from the taxpayer. As usual, Atobe and the like advocate compensation without a clue as to where the money will come from.
As for the latter, defence costs in criminal prosecution relate to mainly the costs of his own defence lawyers. To reduce the legal costs for the defendant, we would have to lower the fee of criminal lawyers, which as I have said, are probably cheaper than the highly-paid corporate lawyers. If we force the fees of criminal lawyers down (by bringing in cheaper FT or other means), we will force more talented lawyers to go into corporate law or civil litigation instead. -
only if the person cannot afford one?? given the government's standards of beign able to afford, i doubt many would qualify and even then they would have to probably bankrupt themselves first........Originally posted by vito_corleone:the presumably innocent defendant in the case of a prosecution by the state authorities are entitled to a state appointed barrister if he or she cannot afford one, where's the cost, if its a material one, to be found? and if you do not want to incurr the costs of hiring a defense lawyer, why commit the crime in the first place hence giving the authorities a chance to prosecute you?
and would the appointed one be good
they are declared innocent so presumably they didn't commit the crime -
i agree, the government should have some sort of compensation to lighten the burden for the person. he won't be a millionaire, but at least not having mountain of debts to deal with. if i were him, i rather plead guilty and serve time.
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exactly, but some people don't seem to get it.Originally posted by hisoka:wasn't the letter about getting changes to the law or what ever policy regarding the ability to get compensation( or rather the costs) when declared innocent in a criminal trail?
vito_corleone, would suggest you read the letter again. -
ok lorOriginally posted by oxford mushroom:No you didn't indeed. The thread is about barristers doing criminal cases. What I meant was that criminal law does not pay well compared to other branches of law. I cited corporate law but you are right in that some solicitors handling civil cases are well paid and maritime law is so specialized that lawyers in that field certainly do well.
I think money dictates where the lawyers will flock. Wouldn't you agree that if a solicitor doing commercial work is paid more than a barrister handling criminal trials (as it often is the case), most lawyers will avoid criminal work. Given the laws of demand and supply, corporate and commercial law will be able to pick and choose the best whilst there will be fewer criminal lawyers to choose from.
Anyway, this is a side issue. The threadstarter is arguing for compensation for persons found innocent in criminal trials and ways to reduce costs in criminal trials. The former is not provided for in common law jurisdictions unless the defendant can prove negligence on the part of the police and prosecuting authorities. The only way to provide compensation in these cases would be from the taxpayer. As usual, Atobe and the like advocate compensation without a clue as to where the money will come from.
As for the latter, defence costs in criminal prosecution relate to mainly the costs of his own defence lawyers. To reduce the legal costs for the defendant, we would have to lower the fee of criminal lawyers, which as I have said, are probably cheaper than the highly-paid corporate lawyers. If we force the fees of criminal lawyers down (by bringing in cheaper FT or other means), we will force more talented lawyers to go into corporate law or civil litigation instead. i'm also gunning for corporate law, the starting pay for english socilitors in new york is USD60k per year, no kidding. -
too bad lor, this is singapore. there is no ECHR or human rights act to cover your arse.Originally posted by pearlie27:vito_corleone, would suggest you read the letter again. -
Not surprised. If you make partner in a big firm you will be looking at more than 10 times that amount. Good luck!Originally posted by vito_corleone:ok lor i'm also gunning for corporate law, the starting pay for english socilitors in new york is USD60k per year, no kidding.