Let seniors handle death penalty cases to ensure best defence, says lawyer

 

A senior lawyer says only counsel with at least seven years’ experience represented accused persons facing the death penalty previously.

PETALING JAYA: A senior lawyer has urged the court to revert to the system of assigning counsel with at least seven years of active practice in criminal law to represent accused facing death penalty offences.

Kitson Foong said that since early 2000, young lawyers with at least three years of experience had been picked to handle such cases, resulting in a drop in quality of defence for the accused.

“Young lawyers, who form the majority of Bar members, have managed to lobby for rules to be changed. Complaints to the Bar Council have fallen on deaf ears,” he told FMT.

Foong was commenting on the case of a Yemeni, Yahya Hussein Mohsen Abdulrab, who escaped the gallows for alleged drug trafficking as a “flagrantly incompent’ lawyer had appeared for him during the trial.

Kitson Foong.

The lawyer, who has since died, was unable to put up a credible defence as he was suffering from a serious illness, it has since been revealed.

Yahya Hussein’s defence was that he had been requested to carry a briefcase by a person named Mickey and did not have knowledge of the bag’s contents, a matter which ought to have been raised by his lawyer during the trial.

Chief Justice Tengku Maimun Tuan Mat, who led a three member bench, held that a retrial would have resulted in Yahya Hussein, who had been held in remand since July 2013, languishing further in jail.

Foong claimed that judges had privately complained to him of the poor advocacy skills and shallow knowledge displayed by young lawyers when conducting criminal trials.

Accused charged with death penalty offences must be represented during the trial and appeals, failing which the court will assign a counsel and pay him or her.

In the early years, assigned lawyers were paid about RM2,000 to conduct trials but the payment has since been raised to RM6,000 and can go up to RM12,000. When lawyers appear for the accused at appellate stages in the Court of Appeal and Federal Court, they are paid another RM3,000.

“This sum is quite lucrative for many but the quality of work put in leaves much to be desired,” he said.

A K Ramu.

He said the selection of lawyers for assigned cases was left to the court deputy registrars who would have seen the skills displayed by senior lawyers during trials and appeals.

Lawyer KA Ramu said the most important aspect of criminal law was that justice must be done and the conviction must be safe.

“A conviction as a result of a mistrial caused by the lawyer’s gross incompetence should not be visited on the accused’s head,” he said.

He said the Bar Council should send experienced lawyers in criminal practice to local private and public universities to impart practical knowledge on putting up a defence for accused persons, however bad the case might be.

“At the same time, the council must provide continued legal education to its members who want to specialise in criminal law practise,” he said.

N Sivananthan.

Lawyer N Sivananthan said a lawyer must honestly ask himself whether he had the ability, competence and experience to conduct a trial where the life and liberty of the accused was at stake.

“I would also suggest young lawyers first gain experience in other areas of criminal law and assist senior lawyers before venturing to represent clients in death penalty cases,” he said.

Sivananthan said even experienced lawyers would have difficulty during appeals to persuade judges to alter their verdict as one was bound to what had happened during the trial.

“Still, it is the duty of the counsel to raise a defence to get an acquittal or reduce the punishment,” he added. - FMT