22 July 2005

Signs of Desperation

July 22, 2005
HUANG NA MURDER TRIAL
Took opts not to testify in his defence
Relying only on the testimony of his psychiatrist, he will claim diminished responsibility


By Chong Chee Kin

TOOK Leng How, the man accused of murdering eight-year-old Huang Na on Oct 10 last year, will not testify in his own defence.

His shock decision came after defence lawyers failed to persuade the judge that the prosecution had not made a case against him.

In calling for the defence, Justice Lai Kew Chai said he believed the prosecution had put forward sufficient evidence in the first nine days of the trial to suggest that Took had murdered Huang Na.

'I do not for one moment think there is no case to answer,' the judge said.

Took's move - similar to the one bus driver Oh Laye Koh adopted more than 10 years ago in his murder retrial - means he will rely solely on the testimony of his psychiatrist, Dr R. Nagulendran, to get him off the hook.

He will claim a defence of diminished responsibility - a partial defence that reduces the act of killing from murder to manslaughter, which means the killer cannot be hanged for the offence.

It requires the defence to establish that the killer's mental functions were impaired at the time, to the extent that he was unable to distinguish right from wrong.

Took's decision carries considerable risk. A defendant's silence can be taken as an inference of guilt and, in many cases, means virtually the only evidence the court can use to decide a case comes from the prosecution.

Dead man, dead man.

When an accused person refuses to testify in his own defence, he certainly looks bad, doesn't he? The prosecution has produced 76 witnesses to put together its case against Took. And now Took decides, "Oh well, I'm not just going to say anything. Not a thing at all." Would an innocent person do that? Of course not. An innocent person would want desperately to get on the witness stand and tell the judge his side of the story.

Now a guilty person is much more likely to avoid the witness stand. The guilty person knows that once he decides to testify, he will be subjected to the DPP's cross-examination. Under cross-examination, the guilty person will be picked apart by the DPP (like Davinder Singh picking TT Durai apart - although of course that is a different case of legal suit). And then he will look worse than ever before.

So it is the guilty person who is much likelier to choose not to testify at all. He opts for silence. But the law says that the judge is permitted to draw adverse inferences against the accused if he refuses to testify. In other words, the judge is entitled to reach the following conclusion: "You're not testifying because you're scared, and you're scared because you did something very wrong and you know you won't have good answers to the questions which the DPP wants to ask you."

The judge does not necessarily draw this kind of conclusion. But he is permitted to. Whether he does or not depends on the overall circumstances of the case. And at the moment, the circumstances aren't looking very pretty for Took.

In layman terms, Took's defence is going to be that he is stupid. For that, he's going to rely on some psychiatric report. Well, good luck. Anybody can kill anybody and then say, "Gee, I was too stupid to understand what was happening." Not many, however, are going to succeed with that kind of defence.

It would help if Took was an obvious retard. A grown idiot who can't get by in life without constant supervision. But Took isn't. After Huang Na died, he was smart enough to wrap the body; find an excellent hiding spot; transport the body without anyone noticing; dump the body; disappear from work; get his passport and quietly leave the country without telling anyone. That takes planning. That takes presence of mind. That takes brains.

Diminished responsibility? Too dumb to understand anything? Sing me another song, lah.



"I refuse to answer any more of your questions.
You're just making me look ridiculous. Literally!"

12 comments:

singaporean said...
This comment has been removed by a blog administrator.
personalview said...

I've enjoyed reading your insightful perspectives on issues and definitely enjoyed the funny pictures and captions for the relevant issues.

However, I do find this one a bit distasteful as it might be inferred that his parents are murderer too. You might be right that some of a person's traits might be inherited. I do think that the parents would be feeling sad while disgrace at their son's action. So, let's not rub it in.

singaporean said...

*an ammended version of the previous comment*

For once I disagree, Mr Wang.

This case made the Singapore Police look real bad. If it werent because Took was so helpful, first in surrendering himself, then bringing the cops to the body and then described in great detail how everything happened, and now by avoiding the courtroom instead of taking the witness stand and lie, lie, lie, until he cooks up some reasonable doubt, there is a good chance he can get away scot-free.

Orgy of evidence, anybody? (yah, I just watch Minority Report last Sunday). He is almost too eager to get hanged. A reasonable man should start wondering if he is that dumb, or is he covering up something or someone? After all the forensics couldnt be sure of anything, and in fact contradicted parts of Took's confession

Mr Wang Says So said...

Arrrgh ........ Personal View, you're absolutely right. I feel quite embarrassed. I myself missed the distasteful aspect until you pointed it out.

One of the funny aspects of my original caption is that Pinocchio is lying at several levels all at the same time. His nose grows because he lies; he then lies about why his nose is growing (he says he inherited his mother's genes); and this is funny, because we know from the original fairy tale that Pinocchio doesn't even HAVE a mother.

But Took does have a mother, and therefore your comment is valid; and now I've revised the caption. No more mothers are mentioned.

Mr Wang Says So said...

Don't let the forensics aspect distract you. Imagine for example that Huang Na's body was found one month later than it was actually found. Imagine that the body was even more decomposed and that there is even less than the forensic expert can tell us.

The evidence is still overwhelming. Took lured a little girl to a deserted place; Took tied her up; Took stamped on her head; she died; Took hid her body. Those parts of the evidence are quite clear.

Fall guy theory? Not in a case like this - not when the punishment is either life, or death. Also, in a case like this, police do not investigate with any preconceived notion that any particular person is guilty. Everyone in the market, including Huang Na's own mother, and anyone who Huang Na knew in school, would have been a potential suspect, Police will diligently trace down every little clue they have.

In court, what you see is DPP presenting the evidence that points to Took. What you DON'T see is the tremendous amount of police investigation that would gone into all the other characters, who are then slowly eliminated, one by one, from the suspects list.

ivan said...

mr wang:
it seems like diminished responsibility operates differently in Sg as compared to the uk.

If Took was an obvious 'retard', assuming it's in the UK, the proper defence would be one of insanity (though that's debatable, i shall skip it). I appreciate the desirability even for an legally "insane" person to plead diminished responsibility, however in the UK the judge as well as DPP has the power to proceed on grounds of "insanity" if the evidence produced by the defence is clearly in that direction.

While i agree that his defence is unlikely to succeed, it would seem that your description of the defence of diminished responsibility somehow is closer to that of insanity. It would be interesting to see what Subas has up his sleeve to invoke that defence. Merely a psychiatric report? i doubt that's sufficient, even in the UK.

singaporean said...

As a forensic expert after watching 4 seasons of CSI, I can only trust the evidence... except there isnt a lot. Yes, to me, the confession looked easy simply because I cant imagine the amount of work needed to coax it out of Took. While I dont think Took is innocent, I just cant help but feel that there is an accomplice who is threatening him to keep quiet. Afterall, he still have parents and a wife.

Mr Wang Says So said...

Hi Ivan

To put it simplistically, DR is like a milder version of the insanity defence. Successfully established, the insanity defence gets you completely off the hook. DR, however, merely reduces the charge - from murder to manslaughter (or to use the correct term in Singapore, "culpable homicide not amounting to murder").

Not sure of the UK position, but in Singapore you have to be quite insane in order to succeed with the insanity defence. In fact, you can have a definite psychiatric history, yet fail to establish the insanity defence. I remember one case I previously handled, involving a chronic "flasher" who had this habit of exposing his private parts to ladies in HDB lifts. He turned out to have a long history of psychiatric problems (he was even chronically addicted to masturbation - he did it like 15 or 16 times a day), and the doctor even said something to the effect that he had an "irresistible impulse" to expose himself. The insanity defence also failed here, because the law actually requires you to be unable to understand that what you're doing is wrong, before the insanity defence works. Having an "irresistible impulse" to do something is not enough, for you still understand that what you feel irresistibly compelled to do is wrong.

DR is much narrower in scope and the classic DR type of cases involve the "battered woman syndrome". Here the woman, after suffering a lot of severe abuse over an extended period of time, kills her husband/lover. There is a recognised psychiatric condition here called "battered woman syndrome" which if proven goes towards supporting the DR defence. The woman will be found guilty of manslaughter, but not murder.

Took, of course, will struggle because Huang Na never did anything to him.

Anthony said...

-laughs-

First thing I learnt from Prof Uelman here - ANY criminal lawyer worth his salt in the States tells the client to exercise his Miranda rights - even if they are innocent.

There's a very good reason for this - a story that's given to the police is more likely to generate inconsistencies - and such inconsistencies do not necessarily allow you to infer guilt. The key problem here is that inconsistencies almost always make a person look guilty.

It's quite a different culture of criminal investigation as compared to Singapore. Yes, I still remember my 122(6) statement lectures by Michael Hor.

Just out of curiousity Mr Wang, how -often- do criminal prosecutions in Singapore rely on confessions and the 122(6) statement? I recall asking u this question in a previous incarnation but I can't remember the answer.

Mr Wang Says So said...

It's important to see that in real life, investigations don't commence with an "accused person". Investigations commence with "suspects".

Suppose early one Tuesday morning, your boss is found dead in the office with a knife stuck in his chest. He was last seen alive at 9 pm the previous night.

Everyone who works in the office automatically becomes a suspect.
You, Anthony, along with all your colleagues, are asked to go to the police station for an interview. The police officer asks you:

"So, Anthony, where were you and what were you doing between 9 pm Monday night and Tuesday morning 8 am?"

If you were innocent, you would not hesitate to answer the question. In fact, you would be eager to provide corroborative evidence, as far as possible.

"I left the office at 7 pm. I left with another colleague, John Tan. You can check with him. I reached home at 8 pm and was with my wife the whole of last night. You can call her at this number and check with her. I woke up this morning and left my house at 8:30 am as usual to go to work. My neighbour, Mr Tan, saw me leaving for work. Please feel free to check with him too."

Etc. If you were innocent, why on earth would you say:

"I have the right to remain silent. I shall not tell you anything about where I was last night and this morning. I want to see my lawyer."

This is the kind of response that sends a clear signal that you have something to hide.

On inconsistencies, I can tell you that in any except the simplest kinds of cases, DPPs fully expect to see inconsistencies in witnesses' statements. The average human being simply does not go around in his daily life being able to recall precisely everything he saw and heard, and the exact time at which he saw and heard those things.

The question therefore is whether the inconsistencies are relevant / irrelevant, and then whether they are major or minor; and then you ask yourself how these inconsistencies arise.

On your question proper - how often do criminal prosecutions rely on confessions and the 122(6) statement?

Probably not as often as you might expect.

Firstly, in many cases, the accused confesses to the police because the other available evidence is already very clear and quite undeniable.

For example, in good road conditions with excellent lighting, you drove your car off the main road and crashed into a drain. Five witnesses saw this. When the police arrived, the officer smelt a strong smell on alcohol on you, observed that you had bloodshot eyes and couldn't walk straight, and then you failed a breathalyser test. Later at the station, you also fail the pee test.

In these circumstances, you confess to the police precisely because you know it is futile to deny anything. "Actually I was perfectly sober. I didn't drink a drop." - this just doesn't wash.

You are charged with drunk driving, and you decide to plead guilty, because you know it is useless to claim trial. Thus the confession is never used in court.

In other cases, the confession is important not merely as evidence in itself, but because it provides clues which lead to other concrete evidence. For example:

"Yes, I did it. I stole the goods from the factory. They are now hidden in a Toyota I rented, licence plate no. 1234, parked at ABC Street. Here is the car key."

The police then go to ABC Street, and true enough, there is a Toyota, Licence Plate No. 1234, parked there, with the stolen goods are inside. On further investigation, it is found that the accused indeed rented this Toyota from a particular rental agency, one day before committing the crime. Next the victim and several other witnesses now recalls seeing this same Toyota parked just outside the factory, on the fateful day.

Thus the confession itself is not even necessarily as important as the other evidence that the police discovered, as a result of this confession.

~~~~~~

How often do prosecutions rely on confessions? Personally, if the other evidence is strong enough, I would often "hold back" the statement during the prosecution's own case.

In other words, I establish all the elements of the charge using other evidence; I wait for the defence to open the case; and I listen to what the accused has to say. I let him go on and on, and through cross-examination, I lead him to embellish his fake story with more and more details. And it's only then that I whip out his confession and say, "But why is your story now so utterly different from the story you told the police?"

If the inconsistencies are indeed material, then I apply for the accused's credit to be impeached, which means that I invite the judge to conclude that this accused is so dishonest that the court should place no reliance on anything he says in his own defence.

There are relatively few cases where the confession itself is THE main evidence. Most commonly, these are corruption cases - where A gives B a bribe, and both are actually friends. B being unwilling to testify against A, a lot may hinge on A's confession. In these sorts of cases, the prosecution seeks to use A's statement immediately, and often these lead immediately to a voir dire (trial within a trial) where A will claim that he was oppressed or beaten or tricked into giving the confession, or that he doesn't actually understand English very well and couldn't understand the police officer's questions etc, or that the police officer was inaccurate in recording his statement. etc.

ivan said...

hmmm... just a tidbit to throw in... the right to draw adverse inference is not only present in Sg law but also in UK law where i must say human rights is a very big issue (far bigger than in the US i feel, where it is somewhat over expanded).

On DR, it seems again from the mention of Battered Wife Syndrome, and the need for a trigger that the position might actually be the same in Sg as in UK. However the interesting part for me that that the is recognition in the UK that DR (and provocation) is somewhat unsatisfactory , and reform is expected; whereas in Sg i've yet to hear of law reviews, if any they are often 'closed' and provide for private consultation only.

Anyhow in the UK a successful plea of insanity in the case of a murder charge, will result in a sentence that confines the defendant a mental institute for life or till the Sate Secretary is happy (In sg context would probably be Minister of Home Affairs).

Mr Wang Says So said...

It would be the President but he acts on the recommendation of the Minister.