En ce moment même se déroule un procès à rebondissements puisqu'un trafiquant de drogue condamné à la peine par pendaison affirme depuis le début du procès qu'il ne savait pas qu'il transportait de l'héroïne. Il est parvenu à obtenir un recours en appel en argumentant un manque de motivation de la décision du juge (selon l'article, la décision faisait une page). Apparemment l'acceptation d'un recours en appel sur la base de cet argument juridique semble être une grande première localement.
Ce qui est plus étonnant encore c'est le commentaire d'un juge au sujet de cette affaire. Bien que présentées sur le ton de l'ironie, deux de ces remarques pourraient laisser perplexes le monde judiciaire français, si ce n'est européen.
Tout d'abord, il cite un juge anglais d'il y a plus de 200 ans qui aurait dit "Ne donnes jamais tes raisons; ton jugement sera probablement correct mais tes raisons seront certainement mauvaises".
Ok.
Ensuite, il explique que "le temps où il suffisait à un juge de dire 'parce que j'en ai décidé ainsi' est bien derrière nous".
Je partage son avis, certes.
J'ai même envie de dire: fort heureusement depuis des lustres.
Bizarrement, j'ai soudainement des doutes sur ce qu'il voulait dire.
Drug trafficker on death row to get retrial [2011] 01 Dec_ST |
| Drug trafficker on death row to get retrial | |
| Straits Times | |
| K.C. Vijayan |
Legal News Archive
A DRUG trafficker languishing on death row is to be re-tried, after the Court of Appeal ruled that the judge who convicted him did not provide clear enough reasons for his decision.
Thong Ah Fat was condemned to hang in August last year despite claiming that he did not know the illegal substance he was carrying was heroin.
But the judge at his trial did not fully explain why he did not believe the 32-year-old's account, the Court of Appeal has found.
In a landmark ruling, it ordered that his case be heard again in the interests of open justice, because the original one-page judgment grounds were inadequate. It is believed to be the first time a retrial has been ordered for this reason.
Thong was caught with 10 packets of heroin in his car at the Woodlands Checkpoint in 2009. At his trial, he admitted he knew the bags contained drugs, but claimed he thought they were Ice and not heroin, which carries the mandatory death penalty for those caught trafficking more than 15g. He also claimed he was tricked into making a police statement taken shortly after his arrest.
Justice Choo Han Teck rejected his version of events, saying that they were 'neither convincing nor coherent', and his evidence was 'very thin'. He sentenced him to death for trafficking heroin.
However, the Court of Appeal has now found that Justice Choo's findings were 'problematic and his reasoning unclear'.
It said it could not work out whether he did not believe Thong because of his demeanour, or for some other reason.
The court added there was objective evidence to show Thong was an Ice addict. But it was not clear whether the trial judge had considered this, a state of affairs which was 'plainly unsatisfactory'.
It said the judicial duty to give reasoned decisions had not been 'adequately discharged'. There was therefore no alternative but to re-try Thong for the capital offence under another High Court judge.
'It is never of course a light matter to order a retrial,' said appeal judges Chao Hick Tin, Andrew Phang and V.K. Rajah. 'Much anxiety, inconvenience and even hardship is caused all round and sometimes the ultimate decision may not be different.'
Nevertheless, they said a new trial would enable a different judge to 'closely scrutinise afresh Thong's credibility in the context of all the relevant evidence'.
It is especially important to have detailed reasons in his case, they added, as it involves a capital charge.
The court explained why judges have a duty to give a full account of why they delivered a sentence, and how far this duty should extend.
Justice Rajah quipped that, 200 years ago, an English judge gave this piece of advice: 'Never give your reasons; for your judgment will probably be right but your reasons will certainly be wrong.'
He said this would be 'judicial heresy' today, adding that 'the days when it sufficed for a judge to say 'because I say so' are well behind us'. If they fail to give full reasons for their decisions, they could find it harder to defend their judgments if later challenged, he warned.
Providing explanations increases transparency and acts as an 'important constraint on the judiciary's exercise of power', as the judgments can then be debated, attacked and defended. 'Judicial accountability is associated with the notion of open justice,' said Justice Rajah.
But the court added that for practical reasons, the need to provide explanations does not apply to interim procedural matters or routine sentencing .
This duty is almost always observed by Singapore's courts, said the appeal judges. They said lengthy or written judgments are not expected in every case, adding: 'A brief judgment is not necessarily an inadequate one. There is always merit in conciseness and no virtue in prolixity.'
However, the one in Thong's case was flawed as it did not explain the foundations for the findings of fact.
It also did not make clear how the judge decided that Thong was not credible in relation to pivotal issues. This made it 'prima facie' inadequate.
'We are unable to affirm or overrule the judge's decision as we do not clearly understand how he arrived at certain primary findings of fact that led to his rejection of (Thong's) defence,' said the Court of Appeal.
The lawyers defending Thong in the appeal also came under fire as the court found them to be of 'little assistance'.
'Their submissions fell well short of the standard that we ordinarily expect from counsel in matters of this nature,' it said in its judgment grounds.
JUDICIAL HERESY...
'Never give your reasons; for your judgment will probably be right but your reasons will certainly be wrong.'
Justice Rajah quoting the advice an English judge gave 200 years ago, and saying this would be 'judicial heresy' today
...AND ACCOUNTABILITY
'...the days when it sufficed for a judge to say 'because I say so' are well behind us... Judicial accountability is associated with the notion of open justice.'
Justice Rajah
About the case
MALAYSIAN Thong Ah Fat, 32, was nabbed at the Woodlands Checkpoint on Jan 12, 2009. Ten packets of heroin, weighing 142.41g, were found in the car he was driving.
Five of the packets were found under the driver's seat, and another five in a haversack on the floorboard behind the driver's seat.
He was found guilty, convicted and sentenced to death in August last year by Justice Choo Han Teck, who issued a single-page judgement.
Thong claimed he thought the packets contained Ice, not heroin.
He appealed, and the case was heard in March by the Court of Appeal, which then reserved its judgment.
At issue was Thong's credibility, as the trial judge found his account to be 'neither convincing nor coherent'.
But the Court of Appeal said the judge should have given detailed reasons to help it understand his decision and assess its correctness.
Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.
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