Citation(1997) 9 SAcLJ 388
Date01 December 1997
Published date01 December 1997
The Problem

It is universal in the common law world that the accused in a criminal trial is entitled to test the prosecution’s case at two stages. At the end of the day when all the evidence has been taken, it is axiomatic that there must be proof beyond reasonable doubt.2 However, the prosecution has an earlier hurdle to clear — at the end of the prosecution’s case, the accused is entitled to an acquittal unless the case against him, at this intermediate stage, “has been made out which if unrebutted would warrant his conviction”.3 While the principle of proof beyond reasonable doubt at the end of the trial is reasonably clear, the question of the precise burden of proof on the prosecution at the end of its case (the prima facie burden) has been embroiled in controversy for the last sixteen years. The choice which emerges from this debate is between proof beyond reasonable doubt, unless the accused successfully rebuts the case against him (“maximum evaluation”), and the existence of some evidence, which if believed, would found a conviction (“minimum evaluation).4 In the easy cases, this would make no difference, for example, where there is no evidence at all on a particular element of the offence, or where the evidence is overwhelming, albeit provisionally. However, not infrequently, there will be some evidence covering all the essential elements of the offence, but evidence which is not entirely satisfactory: an eye-witness may fully incriminate, but his testimony is ridden with inconsistencies, or the available circumstantial evidence raises a possible inference or suspicion of guilt, but is very far from proving it. It is here at maximum evaluation which would enable the accused to be acquitted immediately, but minimum evaluation would allow the prosecution another chance of gaining a conviction because the evidential shortfall may be made up by evidence given by the accused or his5 witnesses.

There seemed to have been no realisation that there might be a problem here before the fateful decision of the Privy Council in Haw Tua Tau.6 Certain judicial pronouncements beginning in the 1930s quickly established the unchallenged orthodoxy that the prosecution must indeed be subjected to maximum evaluation — there must be (provisional) proof beyond reasonable doubt.7 Then the Privy Council in Haw Tua Tau simply declared that this was wrong and that the test should instead be minimum evaluation, upsetting more than half a century of consistent practice in Singapore and Malaysia.8 This sent the legal community reeling with disbelief and legal writing on the subject was almost unanimously in favour of the old maximum evaluation test.9 Judges in Singapore and Malaysia, on the other hand, responded with immediate obedience,10 as perhaps they were bound to do.11 Then followed the emergence of a remarkable

phenomenon in Malaysia where the courts declared formal allegiance to Haw Tua Tau, but began to say that it was no different from the old maximum evaluation test.12 Unable to live with this contradiction, the highest court in Malaysia finally decided to reject Haw Tua Tau and to embrace maximum evaluation explicitly.13 The drama did not end there and a differently constituted court preferred to revert to the test approved in Haw Tua Tau.14 In this state of confusion, a bench of seven judges was empanelled in Arulpragasan, and by a majority, the old test of maximum evaluation was authoritatively affirmed.15 There followed howls of protest from the Malaysian prosecutorial authorities, and Parliament ultimately amended the Criminal Procedure Code in an attempt to preserve Haw Tua Tau for Malaysia.16 The Malaysian developments prompted lawyers to invite the courts of Singapore and Brunei to abandon Haw Tua Tau, but without success.17 These events also prompted a Judge and the Attorney-General in Singapore to publish detailed arguments in support of Haw Tua Tau.18

The existence of respectable, even eminent, legal opinion on both sides of the dispute alerts us at once to the suspicion that the choice between the two alternative interpretations cannot be easily made. Just as the criminal justice system is formed and refined by potentially conflicting forces arising from criminal justice policy, societal values and legal principles, the problem of the prosecutor’s intermediate burden has to

be approached from a number of perspectives. It is only then that the full implications of maximum or minimum evaluation can be properly appreciated. For each choice there are gains to be made and losses to be sustained. Ultimately, each community will have to decide for itself how these matters are to be valued.

The Procedural Context

The Prosecutor’s intermediate burden can be located within the general theme of the need of the criminal justice system to assess the sufficiency of evidence. The present shape of the law of criminal procedure requires various decision-makers to assess evidence at different stages of the process. Thus, at the low end of the spectrum, only reasonable suspicion is required to justify the police in arresting a suspect.19 Then, when police investigations are complete, the Public Prosecutor has to decide whether the suspect should be charged. The available literature points to a “51% rule” — the assessment of the Public Prosecutor that it is more likely than not that a conviction will be obtained.20 If the matter is taken further, and it is a matter to be tried in the High Court, the Magistrate at a Preliminary Inquiry must decide whether there is sufficient evidence to commit the accused to trial.21 At the trial itself, we have already come across the topic of this discussion — the duty of the trial judge to assess the sufficiency of prosecution evidence to justify calling the accused to make his defence. Ultimately, at the end of the trial, the judge has to determine if guilt has been established beyond reasonable doubt. Even beyond that, an appellate court has the responsibility to decide whether there is sufficient evidence to sustain a conviction.22

The power of police arrest is seldom the subject of judicial discussion, presumably because the evidential threshold is thought to be so low that it would be pointless in most cases to argue about it. The Public Prosecutor’s criterion for charging a suspect is equally opague — there is little published material in Singapore or Malaysia concerning this vital decision, and the decision itself is, for all practical purposes, cloaked by non-justiciability in administrative law.23 If we leave aside appellate review, there are two anchor points. At the high end is proof beyond reasonable doubt, and at the lower end is proof sufficient for a Magistrate at a Preliminary Inquiry to commit the accused for trial. The Preliminary Inquiry has for better or for worse become largely vestigial, but is generally understood to be a rather low evidential threshold, though higher than that which is required for an arrest. Thus, following the pattern of an increasing burden of proof of guilt as one approaches a conviction, we can expect the Prosecutor’s intermediate burden to be somewhere in between the onus at the Preliminary Inquiry and proof beyond reasonable doubt at the trial. Unfortunately, the description so far does not yet enable us to choose between maximum evaluation (which is identical with proof beyond reasonable doubt) and minimum evaluation (which looks very much like the burden of proof in a Preliminary Inquiry), for both lie in between the two anchor points.

Forensic Accuracy and a Public Law Dimension

In addition to looking at the traditional concern of criminal procedure for an accurate verdict, we shall later turn to public law analysis to throw more light on the controversy.24 The rules of criminal procedure are not just about getting the right man but are also a concrete expression of state-individual relations. The question is to what degree must state interference with individual freedom be justified. There must be just cause, but exactly what does this constitute? A conviction for a criminal offence is, in many ways, the supreme exercise of state power over the individual — it is punitive and stigmatic. It follows that the ultimate justification of proof beyond reasonable doubt is required. On the other hand, the power of arrest, though certainly an exercise of state power over the individual, is nowhere near as grave as a conviction. It is consistent that something less than proof beyond reasonable doubt is sufficient, and the law settles for reasonable suspicion. The effect of the prosecution satisfying its burden at the intermediate stage of the trial is that the accused is, for all practical purposes, visited with the duty of actively defending himself, and

principally to do so by taking the witness stand himself with the attendant risk of giving evidence against himself. It can be seen that there can be no clear-cut answer to the question of the precise evidential threshold which would justify such a result. Much depends on the importance one would ascribe to what may be described as the right not to be called upon to defend oneself without sufficient cause. The lawyer’s question “is there a case to answer” becomes in political philosophy, “is there sufficient reason to override the right to refuse to account for oneself”. This “right” normally goes by a more familiar name — the privilege against self-incrimination; and at this point it is convenient to postpone further examination of this crucial matter until we have looked at the major arguments which have been employed for and against either view.

Textual Arguments

It is unfortunate that most of the ink has been spilt over the least impressive of arguments — that the literal meaning of the words “if unrebutted would warrant an acquittal” determines the issue in favour of either maximum or minimum evaluation, depending on which camp one is in. The sophistry involved is not...

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