Learning is a continuing process. As muslims we know it should be from the cradle to the grave. Even after we die, somebody still grateful enough to teach us via talqin though some quarters view it as bid'ah. Once we stop learning and regard ourselves to be learned (terrorist); then we are actually becoming stupid proud or 'bodoh sombong'. Thus, having that notion always in my mind, I grabbed the opportunity to pluck the fruit of knowledge from distinguished and senior criminal practitioners in one a half day conference in UKM which ended today. Though I'm one of the organizing committees, rest assured that I diligently attended all the sessions without wasting my time pretending to be busy as normally done by organizers of such programme. At the end of the day the participants got enriched in their knowledge but not the organizer.
One of the eagerly awaited session was the talk by the much respected Johor based lawyer, Tuan Haji Hisyam Teh Poh Teik on criminal advocacy. Having read extensively his 2 books (rebus and minum airnya already) i.e one on drugs and another on advocacy, one can't wait to hear from the great man himself. He impressed me a lot and in the end I was inspired by his speech and input and I felt like I was given 25% increase in energy, health and stamina like in the Mafia Wars. Let me share a few valuable tips and insight from him on what criminal advocacy is all about.
He started with suggesting us to be innovative. It simply means being creative from the word go that is at the pre trial stage. We are expected to examine the points based on facts available to us either by way of documents and also from the accused himself. I can't agree more on this point. Facing a criminal trial for me is like preparing for tactical fight. Its like a combination of chess and boxing I guess. That's where the creativity factor will be crucial. How we strategies, the weapons we choose to execute the strategies, how to outwit your opponent, avoiding being predictable and so many other angles that can enhance your chances of winning the case.
Next point in criminal advocacy is when the case progresses but the direction is not heading to your favour. What should you do? Tuan Haji Hisham advised with this; when the facts are against you, examine every angle like a rubic cube. Still remember the most sought after toy especially in the 80s? Yes, in solving a rubic cube (of course without breaking it into pieces), one is always required to view it from all angles. You twist it, turn it upside down, turn it horizontally or vertically until you meet the matching color. I think that is what is meant by the speaker when he specifically referred to the rubic cube. Surely, by looking from all angles, be it the factual matrix of the case, the law involved and even the procedural aspect of the offense, we will find something that is in our client's favor. For me it's good to be a little bit meticulous in analyzing your clients' case. After all, if you find out that the prosecution's case is so water tight, you might opt for a different route that is pleading guilty or writing in for a reduction.
Another point raised that caught my attention was; don't compromise your clients' case. The job of a defense lawyer is to increase his chances of getting out of trouble and even his chances to be alive as in capital offenses. By compromising it means by half-heartedly representing your client, failing to advise of all possible options and its consequences to the client and even by over promising clients that they will definitely win the case. Lawyers should never promise to clients in terms of winning cases. Of course we can always predict trough our experience and put certain percentage of winning or otherwise in a case. Compromising also means omission on performing certain procedural requirements that can jeopardise the chances of securing acquittal. A classic example is the failure to serve the notice of alibi under Section 402A of CPC.
The speaker also rightfully pointed out the mother of all golden rules in advocacy; always put your clients case in the prosecution's stage. The reason is simple and is embedded even in case laws. It is to avoid the allegation that the defense put forward is a concoction, fabrication or an afterthought. From my point of view, I regard this as an utmost importance in all my trial as you can never ever be over confident that the case will be thrown out at the prosecution's stage. Nowadays, the prosecution are equipped with lots of arsenals and ammonitions be it in the form of presumptions or recent decisions of apex courts that favours them. Be as it may, our task is only to create a reasonable doubt or a defense that is probable or capable to be believed. And trust me, the best defense available is the truth. It can withstand rigorous cross examination from the best prosecutors and the accused will still perform very well if his defense is actually consistent with the truth.
Finally, saving the best for last, the speaker did give a word of advise; prepare also to loose but when you loose put up a good fight and be formidable in your arguments. Maybe as formidable as the All Blacks performing the Haka before their game I guess. I strongly believe in this and support fully this notion. Firstly, it shows that we are not bothered about win-loose records or KPI (after we lawyers don't have one). If justice is served by the way of an order of acquittal, so be it. Otherwise if justice is best served by condemning the condemned behind bars or to the gallows, then it must also be accepted with an open heart. After all, it has gone through the trial process, assuming it was done in a fair manner, on a level playing field without any trial by ambush. Secondly, it shows what it more important for a defense lawyer in conducting a case; a tremendous effort put in and a formidable fight brought forward which ensure the justice system works well and as expected by the public. Wassalam.