The Dynamics Of Criminal Trials And Role Of Defence CounselJul 03, 2023
When the Accused denies committing the alleged offences, he will need to claim trial to the charges to be afforded the opportunity to set out his defence. A trial is a hearing of first instance, which means it will be heard in a court with original jurisdiction: see “Parties involved in the Criminal Justice System”. This means that a trial will be heard at either a Magistrate’s Court, a District Court, or the High Court.
Criminal trials in Singapore follow the adversarial system, whereby both parties, the Prosecution and the Accused, face off against one another before an impartial judge. Each will put forth his best case and the judge will make the decision after hearing both sides. The overarching position that either party has going into a trial is called the case theory. The case theory controls and determines the kind of evidence given and how the other party’s evidence is tested.
Trials are fact-finding exercises that result in the Court making a legal decision: acquittal or conviction. This fact-finding exercise is carried out by the giving and the testing of evidence. Everyone can assert whatever case theory he wants in a trial – the question is whether it can be supported by good and reliable evidence.
Trials are generally open to the public to view because of the principle that “justice must not only be done, but also seen to be done”. In the name of transparency, anyone from the public can attend and watch criminal trials. However, under certain circumstances, e.g. offences involving children, sexual offences, etc., trials can be heard in-camera, which simply means heard in private away from the public’s view.
In trials, the main source of evidence are the witnesses. In the technical sense, a witness is not restricted to someone who “witnessed” the offence taking place, but includes anyone who is called to give evidence in a trial. Before the trial, the Prosecution must list its witnesses in the Case for the Prosecution and the Defence Counsel, or otherwise known as criminal lawyers, must list its witnesses in the Case for the Defence: see above “Criminal Case Disclosure Conferences”. Witnesses are largely categorised into two kinds: factual witnesses and expert witnesses.
Factual witnesses can be called for various reasons: to recount the setting of the offence, the events leading up to the offence, the Accused’s conduct before and during and after the offence, etc. They are fundamentally used to provide facts to support a particular case theory.
Expert witnesses are called for one reason only: to provide expert opinion on a relevant field. For instance, if one of the Accused’s defences involves a medical condition, a doctor specialising in that condition will need to be called to give his expert opinion on things such as whether the Accused was suffering from that condition, the extent the condition affected the Accused, etc. Expert witnesses are fundamentally called to establish a particular fact that persons untrained in that field cannot help establish.
As mentioned above, there are two main things done in a trial: the giving of evidence and the testing of that evidence. In criminal trials, evidence by factual witnesses are usually given by way of the examination-in-chief. The examination-in-chief is a set of questions asked by the lawyer of the party calling that witness, i.e. the DPP will conduct the examination-in-chief of all the Prosecution’s witnesses, while the Defence Counsel will conduct the examination-in-chief of all the Defence’s witnesses. Evidence by expert witnesses are usually given by way of a written report detailing the expert witness’ opinion.
Once the evidence is given by way of the examination-in-chief, the opposing lawyer will test the evidence by way of the cross-examination. Unlike the examination-in-chief, the cross-examination is a set of questions asked by the opposing lawyer, i.e. the Defence Counsel will cross-examine the Prosecution’s witnesses, while the DPP will cross-examine the Defence’s witnesses. The cross-examination can be a gruelling process for the witness, as he will be asked difficult questions designed to poke holes in his evidence.
After the cross-examination, the party’s lawyer will conduct the re-examination, which is a chance for the witness to clarify certain responses given in cross-examination, i.e. the DPP will re-examine the Prosecution’s witnesses, while the Defence Counsel will re-examine the Defence’s witnesses.
Apart from witnesses, evidence can also come in the form of documents and objects.
In a criminal trial, the Prosecution bears the main burden to prove the Accused’s guilt. It does not need to prove the Accused’s guilt beyond all doubt, but beyond reasonable doubt. The basis for such a requirement is that the Accused cannot be made to prove that which he denies. Rather, the one bringing the charge must prove every element of the charge. It is not enough for the Prosecution to only point to the purported weaknesses of the Accused’s defence.
However, any defence asserted by the Accused must be proven by the Accused on a balance of probabilities. This means that the Accused must prove that it was “probably more likely that the defence is true than not”.
The Prosecution always opens at a trial – the first stage is called the Case for the Prosecution, which is distinct from the set of documents of the same name. This stage is where all the Prosecution’s witnesses are examined-in-chief, cross-examined, and re-examined.
At the close of the Case of the Prosecution, the Accused has a choice: he can either submit that the Prosecution’s evidence does not prove a case to answer, or he can proceed to the Case for the Defence. If the Court agrees that there is no case at first instance by the Prosecution, the Court must acquit the Accused. However, if the Court does not agree that there is no case at first instance by the Prosecution, i.e. there is a case at first instance, it must call the Accused to give the Case for the Defence. The trial then moves into the stage called the Case for the Defence.
In the Case for the Defence, all the Defence’s witnesses are examined-in-chief, cross-examined, and re-examined, as like the Prosecution’s witnesses in the Case for the Prosecution.
After the close of the Case for the Defence, the trial moves into the stage of closing submissions. These submissions can be made orally or in writing, though the Court will usually direct parties to submit written submissions. The Defence will submit its closing submissions first, while the final right of reply lies with the Prosecution.
After closing submissions, the Court will make a decision, which will be one of two kinds: conviction or acquittal. A conviction means that the Court has found that the Prosecution has proven the Accused’s guilt beyond a reasonable doubt, taking into account the Accused’s case. An acquittal means that the Court has found that the Prosecution has not proven the Accused’s guilt beyond a reasonable doubt, taking into account the Accused’s case. In short, the decision will depend on the quantity and quality of evidence tendered by each party in support of its case.
If there is a conviction, the Accused is officially a criminal and the Court will proceed to pass the appropriate sentence: see under “Sentences”. The Court may sometimes decide to hear parties on the appropriate sentence in the same hearing.
The Court may issue a written grounds of decision (GD) on the conviction/acquittal to set out its reasons for its decision. If the Court decides on the sentence in the same hearing, the written GD may include its reasons for the sentence. If either party wishes to appeal the outcome, the Court is obliged to issue a written GD after the Notice of Appeal is filed: see more under “Criminal Appeals”.
Conducting a criminal trial is not an easy task. There are documents to prepare, case theories to formulate, and questions to think about. All of these things can be daunting tasks for the unrepresented Accused, especially if he is unfamiliar with the law or does not know how to do legal research.
A trusted Defence Counsel will be able to advise on and put forward the best case possible for the Accused. He will also be able to provide some level of preparation of the Accused for the trial.
Once a criminal matter goes to trial, the Defence Counsel’s role as an advocate comes into its fullest extent.