To a defence lawyer nothing is easy when defending clients accused for trafficking in dangerous drugs and for murder cases. The simple reason is that the life of a prisoner is in the hands of the lawyer and the only sentence available in law is death by hanging. There is no alternative to plead to save the prisoner’s life however skillful is the defence lawyer. To a layman, the question always been asked is that, “Why defend a drugs trafficker? “Why defend a murderer?” The prejudice was always great and unjustified, but, to a lawyer a job has to be done to ensure that the prisoner has a fair trial and that if convicted, it must be based on credible evidence proved beyond reasonable doubt by the prosecutor and that it was not a fixed up case.

Witness Telling Lies! Prosecution Fixed Up Case?

How can a lawyer be able to know that evidence has been fixed up against the prisoner or the witness was telling a lie? Very impossible! A lawyer may suspect lies been told and evidence been fixed up, but could not prove them. What the law requires in such circumstances is proof and nothing, but, suspicions however, strong is not sufficient to dislodge these.

But sometimes, luck could be with the lawyer to detect this. The famous Malaysian case of a witness telling lies in court was the case against Karthigesu who was suspected to have murdered a Malaysian beauty queen, Miss Jean Pereira in the early 1980s. Karthigesu, after a long trial was then sentenced to death by hanging by the trial court, but, luck was with him. He was represented by very experienced and respected criminal lawyer in the country, but, despite the experience and skill of the lawyer, lies could not be detected during trial. Just before he was sent to the gallows, a witness came out in the open and confessed to the court that he was telling lies and that his lies led to the conviction of Karthigesu. Karthigesu was lucky!

Presumption Clauses in Dangerous Drugs Act 1952

In trafficking dangerous drugs cases, the job of the prosecution is very much lighter than when prosecuting murder cases. This is because there are presumption clauses to assist the prosecution in the trial against suspected drugs traffickers and in which in murder cases, there is no such thing. Once found in possession of the incriminating drugs, the accused person is then deemed to have knowledge that he knew that the incriminating things he possessed was a dangerous drugs. Of course, there are other elements that the prosecution has to prove, but it was like having scored a “half goal” into the net! The prosecution is leading! The prosecution was not playing football in same level of playing field! How then to defend the prisoner?

This is against the principle of equality of arms, because the prosecution’s case was aided by the presumption clauses. However, in recent cases, the court tried to overcome the presumption clauses with what the court termed as, “mens rea possession”. This at least, was a bit of relief to the defence and is a big contrast with previous rulings where possession once proved, the prisoner was also presumed to have knowledge of the incriminating drugs.

The other “half goal” will then be scored by the government drugs analyst. Normally, he is a chemist working in the government chemistry department. He could be trained overseas to analyze and to detect dangerous drugs. He could also acquire knowledge and expertise in his laboratory work and in-house training. Most often than not, the drugs analyst’s evidence was always difficult to crack. This is because most lawyers had no training in the work of a drugs analyst. What the drugs analyst had done in the laboratory normally are not known. Could the job be done by a laboratory technician only and that the chemist or drugs analyst just prepared and signed the report? Once, the evidence of the drugs analyst not shaken, the poor prisoner normally would find himself be convicted as charged.

Is it correct for the court to accept that the prosecution had in such circumstances been said had proved their case beyond reasonable doubt, when the prosecution was aided by the presumption clauses against the suspected offender? Is this a fair trial?

Murder Needs Strong Evidence

In murder cases, there are no presumption clauses in law to assist the prosecution. The prosecution has to prove their case the normal way. They may need direct evidence and circumstantial evidence to persuade the court to convict the accused person. If the prosecution relies on circumstantial evidence alone, the evidence must be exceptionally strong. To convict the accused person, the issue is that whether the combination of circumstantial evidence is as strong as a rope strong enough to hang the prisoner? If not, the accused person must be acquitted and discharged of the offence charged. The evidence in such circumstances must irresistibly point out that it was the accused who committed the murder and no one else.

Therefore, even is a suspect is found by the police holding a knife with blood stains at scene of crime, this does not necessarily mean that the suspect is the murderer. The suspect could just happen to be there and took the knife left by the assailant when police came.

In criminal prosecutions, typical examples of circumstantial evidence are fingerprint, blood analysis or DNA analysis of the evidence found at the scene of a crime. These types of evidence may strongly point to a certain conclusion when taken into consideration with other facts, but if not directly witnessed by someone when the crime was committed they are still considered to be circumstantial in nature. However, when proved by expert witnesses, they are usually sufficient to decide a case especially in the absence of any direct evidence. Owing to the development in forensic methods, old undecided cases (or cold cases) are frequently resolved.

Therefore, as could be observed, unlike murder cases, it is more difficult to defend a dangerous drugs trafficking case. The main reason is because of the law gives undue advantage to the prosecution in dangerous drugs trafficking cases by way of presumptions clauses in favour of the prosecution.