From Adnan D
An oft-quoted maxim of lawyers across the Commonwealth, where English law is practised, states: “Who comes into equity must come with clean hands.”
It means don’t hide your hands and come in good faith, the court will grant you relief.
Most judges are clever, more so when they have reached an apex court. They have heard it all, have their six senses and can read lawyers, and can judge if the application made before them is sincere or not. It’s a gift that you develop after many years.
Any litigation or trial lawyer will tell you it’s stressful work. You have to think on your feet and be alert at all times. For a prosecutor, the burden of proof is high. The defence will keep poking holes at your evidence. The whole enforcement division, the investigation, and the way the case is prepared is put on trial, with public scrutiny.
If it’s a high-profile case, such as one involving a former prime minister, there are foreign journalists, academics and the “lawyer buruks” commenting on the trial and judgment without understanding what a trial process is.
In Malaysia, some who comment have not read the actual judgment.
Anything can happen in a courtroom. Things can take an unexpected turn, way beyond your imagination. Experienced lawyers know that nothing can be taken for granted: you cannot be cocksure about anything. You cannot even be sure if a trial will go on when all parties are ready.
At the end of the day, you cannot be sure you are going to get what you want in any court.
There must always be a plan B or C. What if my application is not granted? Then plan B kicks in. If plan B doesn’t work? Do you have a plan C? With all this in mind, you must make sure the client’s rights are not affected, more so when they have hired and paid you.
If a prosecutor’s application for an adjournment is not granted, he must go on with whatever he has, besides getting a telling-off from the sitting judge. He needs a plan B ready to execute. If he doesn’t, then perhaps it’s time to look at another area of practice, like drafting or lecturing.
Unpreparedness by a prosecutor or lawyer, is generally no grounds for an adjournment, ask anyone in trial work in the Commonwealth. The facts are important and the circumstances of what transpired is crucial for every judge.
No one should be denied legal representation. Rich or poor. Powerful or not.
In a high-profile case like the one involving a former prime minister, you can just imagine the work and the people involved. It’s a do or die situation for the state and the accused. There will be ample time given for both sides to prepare.
No lawyer will take on a brief at the last minute for no cogent reason like his current lawyer is in hospital and he needs a new one. Or when a prosecutor dies in office while conducting a trial, the second in command will take over.
As for Najib Razak’s case, he was never without a lawyer. But the strategy employed by the legal team failed. Period. It will be a different scenario if there was no lawyer present, if he has not engaged anyone or had no means to do so and needed time.
There are many questions to be answered. Why change lawyers at the last minute? The case has been going on for many years. So many adjournments were granted during the trial at various levels.
Why appoint a firm not familiar with criminal law at Federal Court level? Why fire the lawyer who is very familiar with the facts? Why cannot he and another work together for the client? What is so complex, in the legal areas, that you need to appoint a King’s Counsel from the UK? This is not a case involving cryptocurrency fraud or something new in the area of law. Or is it?
Why all these last-minute decisions? Who advised the client this was the best way forward? Who told the client that an adjournment was definite and there was no need to have a plan B ? Was plan B to discharge yourself? That cannot be a good plan.
What about the interest of the state? They have spent millions in investigations, all taxpayer funded, what about their interest? Why must it always be in favour of the accused when their application backfired, and they had no plan B?
Natural justice must be seen to be done not only for the accused but also for the state, the taxpayers. There is no breach, in my view, of natural justice. On the contrary, the state and the taxpayers cannot be held at ransom. - FMT
Adnan D is an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.
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