Lawyers’ incompetence may result in clients’ death

The possibility of a miscarriage of justice is a major reason why we must abolish the death penalty

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Graphic: amnestyusa.org

Malaysians Against Death Penalty and Torture (Madpet) highlights that lawyer’s incompetence could have resulted in a 31-year-old man being hanged to death, which is proof that an innocent person could end up being a victim of a miscarriage of justice due to the fallibility of lawyers and other human persons involved in the administration of justice.

Yahya Hussein Mohsen Abdulrab, 31, was sentenced to death by hanging in 2014 by the Tawau High Court in Sabah. He was found guilty of trafficking 1,800g of methamphatamine.

Then, on 8 September 2020, the Court of Appeal quashed the conviction and sentence against the appellant Yahya Hussein because of the flagrant incompetency of his counsel during the High Court trial. The Court of Appeal found Yahya was deprived of his right to a fair trial due to the “flagrant incompetence” of his counsel and ordered a retrial [Current Law Journal [2020] 1 LNS 1239].

The Federal Court on 13 July 2021 acquitted a man on death row. The court agreed that the previous counsel was “flagrantly incompetent”, but it held that the Court of Appeal was wrong to order a retrial instead of a complete acquittal (New Straits Times, 13 July 2021).

Yemeni Yahya Hussein Mohsen Abdulrab was simply very lucky that he could afford to find a competent lawyer (different from the lawyer who defended him at the High Court) who then made the needed application for the adducing of new evidence and later appealed the decision to the Court of Appeal. If the same lawyer at the High Court had handled the appeals, he may still be on death row.

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The Court of Appeal, in its decision, raised several issues that led it to conclude that the lawyer handling the case during the High Court trial was “flagrantly incompetent in the handling of the trial for the Appellant. This has also deprived the Appellant a fair trial resulting in a miscarriage of justice”.

Among these issues, as sighted from the Court of Appeal judgment, were:-

  • Failure to raise the accused version of how he came into being in possession of the drugs by “not proposing it to the prosecution’s witnesses”. The later attempt to just raise it when the accused was called to testify was found by the court to be “only an afterthought considering this was not put before the prosecution’s witnesses”.
  • Failure to call material defence witness who could corroborate the accused version of how he came into being caught with the drugs
  • Failure to “make oral submission at the end of the prosecution’s case and did not put up a written submission at the end of the defence’s case”
  • The court also found that it was “too risky for the Appellant’s counsel to advance only one defence for the Appellant i.e. the weight of the drugs”

If Yahya Hussein Mohsen Abdulrab did not manage to get another lawyer to take over the case from the previous lawyer, he would most probably still be on death row awaiting execution.

How many other accused are on death row or have been executed simply because of the failings of their lawyers?

In our administration of justice, mistakes can be made by the police, prosecutors, judges, lawyers and others, and the risk of a miscarriage of justice is there, and more worrying is when the victims could be executed.

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If the prosecution and lawyers for the accused fail to adduce relevant facts and evidence in the court of first instance, it is very difficult to bring in new evidence at a later stage or during appeals. In this case, the failure to challenge prosecution witnesses, and just raising the accused version of how he came into being in possession of the said drugs during the defence case was fatal – leading the judge to believe it to be merely an afterthought.

Judges too have the right to question witnesses but rarely is this right used. This right exercised may overcome failings of prosecutors and lawyers.

Poverty and ability to get competent lawyers can be most prejudicial to accused persons in criminal trials, where a finding of guilt can lead to incarceration in prison and even death.

“No criminal justice system is perfect. You take a man’s life and years later, you find out that another person did the crime. What can you do?” – Nazri Aziz,  then-minister in the Prime Minister’s Department.

We also recall the case of Chiang Kuo-ching, who was executed in Taiwan in 1997 after being convicted of sexually abusing and murdering a five-year-old girl. In 2011, Taiwan’s Ministry of Justice admitted Chiang had been executed in error.

Therefore, Madpet reiterates the call for the abolition of the death penalty.

Madpet also calls for the amendment of the laws that will make the adducing of new evidence in criminal trials, especially in capital punishment cases, during appeals easier as the failures of lawyers, prosecutors and judges in courts of first instance leads to imprisonment, whipping and even death.

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Madpet also calls for action to be taken against lawyers and prosecutors who fail to ensure that the court is made aware of all the relevant facts that will lead to justice being done.

Madpet calls for the abolition of legal presumptions that shift the burden to accused persons to prove that the drugs found in their possession did not belong to them or was in their knowledge or was used for drug trafficking, an offence that carries the death penalty.

Charles Hector released this on behalf Malaysians Against Death Penalty and Torture (Madpet)

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