The Singapore Law Gazette

Acquittal Does Not Mean Innocent

Standards of Proof in Criminal Proceedings and What They Mean for the Accused

The recent cases of Parti Liyani v PP and PP v Yeo Sow Nam have thrown the spotlight on what it means to be acquitted.

This article examines how “acquittal” can mean that charges were either “disproved” or merely “not proved”, per the definitions in the Evidence Act.

It argues that judges may, in suitable cases, make a finding of “disproved” so as to properly vindicate the reputation of the accused. An acquittal without elaboration leaves open the possibility that the accused committed the offence but it simply could not be proven, which may unfairly continue to damage his reputation.

Introduction

The recent cases of Parti Liyani v PP [2020] SGHC 187 and PP v Yeo Sow Nam (unreported) have thrown the spotlight starkly on what it means to be acquitted. In both cases, the prosecution failed to make out the charges due to unreliable witnesses. In both cases, there was public outcry and expectation that the unreliable witnesses would themselves be charged: in Parti Liyani’s case, one witness, Carl Liew, was indeed charged,¹Shaffiq Alkhatib, “Karl Liew, son of ex-CAG chairman, charged with giving false information and evidence in Parti Liyani case”, The Straits Times (5 November 2020) at <https://www.straitstimes.com/singapore/courts-crime/karl-liew-son-of-ex-cag-chairman-charged-with-giving-false-information-and> (Last accessed 4 October 2021) but in Dr Yeo’s case, the prosecution has said that it will not be taking any action against the complainant.²Attorney-General’s Chambers website <https://www.agc.gov.sg/newsroom/media-releases/newsitem/agc-media-statement-queries-related-to-outrage-of-modesty-case-involving-dr-yeo-sow-nam> (Last accessed 4 October 2021)

Many members of the public seem to believe that an acquittal is equivalent to a declaration of innocence, hence the erroneous impression that a criminal judgement is a zero-sum game: if the accused is innocent, then the complainant must be telling a lie. This is a serious misconception and needs to be addressed by the legal profession so that confidence in the administration of justice may be maintained.

An acquittal does not necessarily mean that the accused is innocent. It simply means that the charges against the accused were not proved beyond reasonable doubt: either that it is doubtful whether the accused is guilty or that the allegations have been positively disproved. The ambiguity inherent in the term “acquittal” could be reduced if courts were to adopt the terminology of the Evidence Act and state in their judgements, in addition to the outcome of acquittal, whether the charges were simply “not proved” or “disproved”. This is not to say that the courts should switch their function to making findings on innocence; the analysis would still be about whether reasonable doubt has been cast. Only that where it is possible to do so, the courts may wish to positively vindicate an accused person by declaring that the allegations have been “disproved”.

A clear distinct between cases “not proved” and those “disproved” may help with public education and boost confidence in the administration of justice.

Statutory Definitions of Proof

The Evidence Act (Cap 97, 1997 Rev Ed) (EA) contains three key definitions of the concept of “proof”.

First, under section 3(3), the EA defines the term “proved”:

(3)  A fact is said to be “proved” when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Second, under section 3(4), the EA defines the definition of “disproved”:

(4)  A fact is said to be “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist

Third, and crucially, the EA has a residual category of facts “not proved”, defined under section 3(5):

(5)  A fact is said to be “not proved” when it is neither proved nor disproved.

These definitions are extremely important for understanding criminal cases. Where the charges have been disproved, the accused can rightfully feel vindicated and has a strong basis to assert his innocence. Where the charges have simply not be proved, it is not necessarily the case that the accused can claim to have been vindicated by the courts. The most that may be said is that the courts did not find him guilty. This is an extremely important distinction to accused persons, who need the emotional reassurance and the social credit that comes with being vindicated by an impartial third party.

Burden and Standard of Proof in Criminal Cases

The burden of proof in criminal cases is upon the prosecution to prove every element of every charge beyond a reasonable doubt. As VK Rajah JA said in XP v PP:

The presumption of innocence is the cornerstone of the criminal justice system and the bedrock of the law of evidence. As trite a principle as this is, it is sometimes necessary to restate that every accused person is innocent until proved guilty.³(2008) SGHC at (90)

The EA, however, does not mention this standard at all: the only definitions of proof are found in sections 3(3) – 3(5) as quoted above. No distinction is made between the standard of proof in civil and criminal proceedings.⁴See also Jeffrey Pinsler SC, Evidence and the Litigation Process 7^th Ed. (Singapore: LexisNexis, 2020) at (12.074) – (12.077)

The requirement for proof beyond a reasonable doubt has been read into the EA provisions by the courts. In PP v Yuvaraj, the Privy Council held that:

… it cannot be supposed that the Evidence Ordinance intended by a provision contained in what purports to be a mere definition section to abolish the historic distinction fundamental to the administration of justice under the common law, between the burden which lies upon the prosecution in criminal proceedings to prove the facts which constitute an offence beyond all reasonable doubt and the burden which lies upon a party in a civil suit to prove the facts which constitute his cause of action or defence upon a balance of probabilities.

The degree of probability of the existence or non-existence of a fact which is required in order for it to be “proved” or “disproved” within the meaning ascribed to those words in the Evidence Ordinance, in their Lordships` view, depends upon the nature of the proceedings and what will be the consequence in those proceedings of a finding that a fact is “proved” or “disproved”. If that consequence will be the determination of a civil suit in favour of one party a balance of probabilities is all that is necessary. It is sufficient that upon the evidence the court considers that it is more likely than not that the fact exists or does not exist … In criminal proceedings on the other hand, by an exception to the general rule founded upon considerations of public policy, if the consequence of a finding that a particular fact is proved will be the conviction of the defendant the degree of probability must be so high as to exclude any reasonable doubt that that fact exists.⁵(1969) 2 MLJ 89

This interpretation has been followed ever since by Singapore’s courts. ⁶See Jagatheesan s/o Krishnasamy v PP (2006) SGHC 129 at (46) Indeed, the presumption of innocence is so important that the Court of Appel has recently expressed the view, in PP v GCK, that it is the very basis of the legitimacy of the criminal justice system:

The fundamental rule of proof beyond a reasonable doubt is considered hallowed precisely because it rests upon the bedrock principle of the presumption of innocence, which is the very foundation of criminal law. As a practical measure, the rule reduces the risk of convictions arising from factual error. This practical mechanism is itself grounded on the principle that allowing for the wrongful conviction of the innocent does violence to our societal values and fundamental sense of justice … But there is also an equally powerful rationale that animates the rule, which is that the coercive power of the State that flows from a conviction is legitimised precisely because it is based on this very principle of proof beyond a reasonable doubt. The faith that our society places in our criminal justice system stems from its confidence that only the guilty are punished …⁷(2020) SGCA 2 at (126)

Thus, where a conviction occurs, the messaging to the public is clear and simple: the accused is guilty, beyond reasonable doubt. Unfortunately, in contrast, the messaging regarding acquittals is murky and riddled with controversy.

The Effect of an Acquittal: Legal vs Practical

Legally, an acquittal is nothing more than the statement that the court has found the prosecution’s case insufficient to prove guilt beyond reasonable doubt.

A concise summary of the issues has been given by the Minister for Law, Mr K Shanmugam:

[W]hen the Court acquits an accused, it simply means that the Court is not convinced that he is guilty. This is because the Court does not have to go into the question of whether the accused is in fact innocent. An acquittal (often) simply means that the prosecution has failed to prove the case beyond reasonable doubt. In such a situation (when there is any reasonable doubt), the Court has a duty to acquit the accused, regardless of whether the Court thinks the accused may have in fact committed the offence. It is therefore possible for a person who has committed the offence to walk away free. We accept that as an unavoidable consequence of our trial system, as procedural justice is important.⁸Ministry of Law website <https://www.mlaw.gov.sg/news/parliamentary-speeches/oral-answer-by-law-minister-k-shanmugam-to-parliamentary-question-on-acquittal-presumption-of> (Last accessed 4 October 2021) at (4.2).

Therefore, while the meaning of a conviction is clear, the meaning of an acquittal is inherently ambiguous. Mr Shanmugam said:

[I]t is entirely possible for a person to have committed acts which amount to a crime and yet, there may be no conviction. I emphasise, no serious lawyer will question this possibility. There are many reasons why there might be an acquittal. Witnesses may not be found at trial. Or they may change their evidence, either because they genuinely fail to recall essential facts, or for other reasons. Or there might be an acquittal on a technicality.⁹Ibid at (8).

The courts have consistently held that an accused person need not proved his innocence. In Woolmington v DPP,¹⁰(1935) AC 462 approved in Took Leng How v PP,¹¹(2006) 2 SLR 70 the Court said that:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, … the prosecution has not made out the case and the prisoner is entitled to an acquittal.

This is ordinarily to the benefit of the accused, since he need prove nothing. However, in the modern world where public scrutiny is rife, it may actually operate against him, precisely because his innocence is not proved.

We must make a distinction between the legal and the practical consequences of an acquittal. Of course, legally, the presumption of innocence operates and there can be no legal sanctions taken against the accused. In the eyes of the law, he is innocent.

But the eyes of the public are quite a different thing. The public may have questions about the case, that are not sufficiently answered by the judgement. A lingering doubt may remain over whether the accused is, in fact, guilty, though he may have been acquitted by a court. This is inevitable in an age of increased communication and media attention. For example, in Parti Liyani’s case, Mr Shanmugam made an extensive statement in Parliament detailing all the evidence that had led the prosecution to bring a case in the first place.¹²Gov.sg website <https://www.gov.sg/article/ministerial-statement-review-case-of-parti-liyani-v-public-prosecutor-2020> (Last accessed 4 October 2021) In Dr Yeo’s case, in response to public questions about whether the complainant would be charged, the Attorney-General’s Chambers has issued a media release explaining that the there is no evidence that the complainant was lying.¹³Attorney-General’s Chambers website <https://www.agc.gov.sg/newsroom/media-releases/newsitem/agc-media-statement-queries-related-to-outrage-of-modesty-case-involving-dr-yeo-sow-nam> (Last accessed 4 October 2021)

In XP v PP, Rajah JA said:

It is not helpful … for suggestions to be subsequently raised about the accused’s “factual guilt” once he has been acquitted. To do so would be to undermine the court’s finding of not guilty and would also stand the presumption of innocence on its head, replacing it with an insidious and open-ended suspicion of guilt that an accused person would be hard-pressed to ever shed, even upon vindication in a court of law.¹⁴(2008) SGHC at (94)

With the greatest respect to Rajah JA, the fact is that with greater access to court papers and more extensive media reporting, members of the public will draw their own conclusions – and it is not possible to enforce upon them the presumption of innocence. Public agencies will be forced to defend themselves to the public by releasing more information. The gap between legal guilt (i.e. conviction by a court) and factual guilt (i.e. whether the accused actually committed the offence) will become more apparent.

Conclusion: A More Nuanced Approach

When we think about whether the criminal justice system is working, we should ask not just whether it is legally sound but also whether it is achieving policy objectives and serving the needs of real people. In the field of design, there is a concept called the “job to be done”: designing a successful product requires asking what the user is trying to accomplish with that product, and then meeting that need. ¹⁵Clayton M. Christensen, Taddy Hall, Karen Dillon and David S. Duncan, “Know your customers’ ‘jobs to be done’”, Harvard Business Review (September 2016) at <https://hbr.org/2016/09/know-your-customers-jobs-to-be-done> (Last accessed 4 October 2021) In this view, the product itself has no inherent value, no matter how clever or well-designed – its value is determined entirely by how well it fulfils the “job to be done”.

Adapting this concept to the law, we may ask ourselves what the “job to be done” really is – it is not merely to secure an acquittal and protect the accused from the legal consequences of conviction; accused persons want and need to be protected also from the social, emotional and reputational effects of criminal proceedings.¹⁶Louisa Tang, “ ‘It was humiliating’: Doctor acquitted of molestation charges tells of painful experience” TODAY Online (22 August 2021) at <https://www.todayonline.com/singapore/doctor-acquitted-molestation-charges-tells-humiliating-painful-experience>; also Louisa Tang, “The Big Read: Accused Persons get no sympathy but long proceedings are tough, more so on those not found guilty” TODAY Online (April 17 2021) at <https://www.todayonline.com/big-read/big-read-accused-persons-get-no-sympathy-long-proceedings-tough-especially-those-eventually-acquitted> (Both accessed on 4 October 2021)

The courts could therefore consider hewing more closely to the standards presented in the EA and distinguishing between acquittals in which the charges were “disproved” and acquittals in which the charges were merely “not proved”. This is not without precedent: In Scotland, for example, juries are able to choose between three verdicts: guilty, not guilty and not proven.¹⁷Government of Scotland website, “Scottish jury research: findings from a mock jury study” <https://www.gov.scot/publications/scottish-jury-research-fingings-large-mock-jury-study-2/pages/4/> (Last accessed 4 October 2021)

Where the Court has found that the allegations against the accused have been positively disproved, it could say so explicitly. For example, if the accused is alleged to have killed someone in Singapore, but it is proved in court that he was in Penang at the time (say CCTV footage clearly showing his face at the specified date and time), it would be clear that the allegations are false and the charge has been disproved.

It should be an option open to the defence to actively pursue a declaration of “disproved”, in which case the burden of proof should be on the defendant to disprove one or more elements of the offence. For the purposes of securing a finding of “disproved”, it would be sufficient to disprove only a single element of the offence – the fundamental principle remains that the prosecution must prove every element of the case beyond reasonable doubt and therefore if even a single element of the offence is disproved, it follows that the entire offence is disproved.

Nonetheless, the “golden thread” remains intact and even where an accused cannot disprove the charges, he would still be entitled to an acquittal if the prosecution cannot meet its own burden of proof. Where the prosecution collapses simply due to inconsistencies and weaknesses in the prosecution’s own case, or because the accused has thrown reasonable doubt (albeit falling short of disproving the case) upon the elements of the offence, then the Court could simply say that the charges were “not proved”.

This is not to suggest that the courts switch their focus to decide on whether the accused is innocent. The Court’s task is still simply to determine whether there is reasonable doubt. There is no reason to depart from this time-honoured and eminently sensible principle.

Neither is it to say that “not proved” ought to be separate verdict: the verdict of acquittal would encompass both charges disproved and not proved.

It is only to say that in cases where the defence has actually disproved the charges, the courts may take the opportunity to positively vindicate the accused’s reputation by explicitly making a finding of “disproved”, in addition to the granting of an acquittal. This is not without precedent: in 1872, the prominent Baba businessman, Cheang Hong Lim, and several others, were accused by Cheang’s brother, Cheang Hong Guan, of forging the will of Cheang Sam Teo, the father of the two Cheang brothers. The case was so weak that when the jury found “not guilty”, the Chief Justice, Sir Thomas Sidgreaves, said:

I fully concur in the view [the jury] has taken of your case, and you now leave the Court without a stain on your character.¹⁸Song Ong Siang, One Hundred Years’ History of the Chinese in Singapore: The Annotated Edition (World Scientific, 12 March 2020) at pp 231 – 233; Available at <https://books.google.com.sg/books?id=l2LcDwAAQBAJ&pg=PA233&lpg=PA233&dq=cheang+hong+lim+stain+on+honour&source=bl&ots=O_l79FdaFT&sig=ACfU3U0v2aw5gWzEH9Qs4noCbZe2mp1GGw&hl=en&sa=X&ved=2ahUKEwj9pYijoqbzAhVXQH0KHUc5CcgQ6AF6BAgiEAM#v=onepage&q=cheang%20hong%20lim%20stain%20on%20honour&f=false> (Last accessed 4 October 2021)

This approach requires no legislation or common law changes to take effect. It is already inherent in the EA. The only thing needed is a change of mindset and judicial practice. A small nuance to lawyers and judges, perhaps, but a big difference for accused persons.