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Saturday, May 1, 2010

Prosecution or Persecution? – AG’s chamber must buck up !

I recall the good old days where you can sit down with the DPP (deputy public prosecutor) and discuss with him the case he is handling. As a lawyer, you can open up the evidence that you have with him and then write a letter of representation to him. A letter of representation is where you advance you client’s case and put forward proposals like – to withdraw the charge against your client on various cogent reasons, or to plead to a lesser offence, etc. Such a representation saves everybody’s time and tax payers’ money. Justice is also done. Those days, the DPP who handles the matter decides. Today, it appears the situation is different.

Today it appears that some DPPs are merely prosecuting officers in Court. They do not seem to have the powers to decide how to conduct the case with which they are entrusted. Or maybe they fear writing a report or recommendation to the Public Prosecutor that the charge should be withdrawn.

For example, in those days, if in the middle of a trial, the evidence clearly shows that the case is completely unsustainable, it not uncommon for the charge to be withdrawn. This is a power clearly given to the Public Prosecutor pursuant to section 254 of the CPC (see also section 354 CPC and Article 145(3) of the Federal Constitution.

It is very simple. If the evidence for the prosecution is weak or cannot support the charge, then withdraw the case. These provisions are in the law books for the purpose of ensuring justice and not there for mere decoration.

However, I have personally known some of my clients to experience injustice because the DPP does not seem to understand the purpose of these provisions. Today too, you have too many new, inexperienced and young DPPs who actually say: “My boss wants me to continue”!

It really troubles me when I have an innocent client being charged in court for offences that he did not commit. It makes me wonder whether the DPPs concerned have actually verified the evidence given to them by the police before they recommend for the person to be charged. I wonder if the same lackadaisical attitude will prevail if their own family member is the one being charged.

I have a particular case where my client went through 5 years of hell, broken home and devastated business because he had to undergo a trial in which he was clearly innocent. Of course, he was finally acquitted and discharged – meaning he was found innocent by the Court. Though found innocent, can the courts or the police or the prosecution give my client back parts of his life that they took away? To them, it is just another file closed. In fact in this case, the Court found that the prosecution had indeed suppressed evidence that was favorable to the defence! This case should never have gone to court at all.

This, to my mind is clearly persecution and not prosecution.

I cannot understand the mentality of some of these new DPPs who think of prosecution as a job that must be done under the direction of their seniors. It is more than a job – it is a duty and responsibility to ensure justice. You are dealing with real lives. You only prosecute on behalf of the People to ensure justice. If it is the seniors that are directing, then the senior should come to court. Be transparent. Make it official so that there is a face to the instructions being given. AT least the defence lawyer will know which senior to hold accountable for the decisions being made.

I can understand that inexperienced DPPs need to learn. However, this learning should not be at the expense of the innocent public or the tax payer’s money. I even tell my own staff that whatever “learning” they want to do, do it on their own time and expense!

To me it is important that the quality of the prosecution be raised. Prosecution often results in the deprivation of someone’s liberty and thus it must be done carefully and judiciously. It is also important that the prosecution maintains an open communication line with the relevant practicing lawyers.

Prosecution is an important part of the justice system and hence Raperas must be sensitive to their level of standards.

[Note: This article is intended to highlight specific problems addressed in the article and not a scathing criticism of ALL DPPs. I personally know some exemplary ones.]

Peace !