Singapore Legal Mumbo Jumbo Demystified: The First Scenario

I just wish to make a comment about the drawing of adverse inferences against an accused to chooses not to testify, and the common law privilege against self-incrimination (which I know varies in degree in the different common law jurisdictions).

EPA v Caltex (1993) 178 CLR 477

Mason CJ & Toohey J - (para 33)

In one important sense, the modern rationale for the privilege against self-incrimination is substantially the same as the historical justification - protection of the individual from being confronted by the “cruel trilemma” of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment).

Brennan J - (para 10)

The privilege [against self-incrimination] is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction by testimony wrung out of the mouth of the offender.

I understand that the law of Australia is not the law in Singapore. But then I also believe that there are some things which civilised societies do not do. As a matter of simple human decency, I think making an accused confront that ‘cruel trilemma’ is not something that enlightened human beings should do.

Come on down man, you won’t regret it

And when you say Summer 2006, do you mean Northern Hemisphere Summer (June-July 2006) or Southern Hemisphere Summer (Dec 2006-Feb 2007)?

I should be finishing at the end of 2006, but I could very well end up doing the Summer in Feb 2007, as some specific subjects I’m looking to may not be offered in the normal semesters…

So let me know if you’re heading down here. I could show you around.

Anyway, how many years will you be there for? I am hoping to visit Melbourne in summer 2006, before my final year and after exchange.

And desse, no, LCL did not give any tips at all. His tutorials are merely discussions, so I presume we are supposed to do that in an exam as well. He was the one who marked my essay haha (I think). Don’t think Han is surprised any longer at the number of comments; he got 100 over for the CZ one. And the most I got was 65, and that was from people who hated me haha.

Hey, I’m loving it! I don’t see any hijacking at all!

And what’s the point of having this post if not for the discussion? The fact is I’m learning so much from you guys because you all have left your opinions here.

Hmmm… I didn’t find hearsay to be too difficult. My evidence lecturer (who’s a hotshot barrister here in Victoria) made it quite easy for us to understand:

There is no such thing as hearsay evidence. There is only hearsay use of evidence.

Did you guys read Subramaniam v Public Prosecutor [1965] 1 WLR 965?

To everyone else:

The thing is, Gilbert says we all sound confused. And I have to say, I certainly am started to feel confused. I’ve already done the law of evidence and although I didn’t have excellent grades, I think I didn’t do too badly, and I certainly don’t recall feeling confused then…

He says here that:

…at each stage of an actual trial, only one piece of the puzzle confronts you at a time. The legal issues unfold systematically, presenting one small, specific, practical issue at a time. The conceptual big picture is automatically broken down into many smaller, simpler pieces. It becomes a much more manageable challenge.

And I believe that what he says is exactly the truth! I mean, the exam I had to take for evidence places you in the position of the prosecution, and one has to first come up with a case theory, and then a legal theory on how to prove the case. Basically 50% of the marks go towards playing Sherlock Holmes and 50% of the marks go towards knowledge of the law with regards to admissibility.

And so, I think what Gilbert says is right. At each stage, you face only a few, manageable questions. The big picture sort of falls in place by itself later on.

Anybody wants to take a look at my Evidence exam paper[PDF]?

As for the analysis of Kan J?s dicta. I don?t think it?s a simple matter of whether the US changes Customary International Law or not. Clearly, the judgment goes to say that Customary International Law is persuasive and applicable, but only so long as it does not contradict domestic laws.

Yup. I agree. It is not that simple, and I don’t think it will ever happen. It’s a tiny opening, and the only reason why I say he left it open is because the CA didn’t address the specific issue of how CIL can enter via the constitution. They simply said, oh death penalty is not CIL are you mad, then they went on to talk about hanging as a cruel and unusual punishment.

It’s just technically fascinating. If law in art.9 can mean CIL, and the content of the CIL suddenly includes the rule against the death penalty, it becomes constitutionalised and trumps the statute. Of course, technically fascinating, but dangerous. Should the judiciary dabble in international law? As a matter of hierarchy, it is hard to see why judges should influence the executive’s treaty-making powers by reading CIL into the constitution. I don’t agree with it; I don’t even know whether Kan J. realises what he did. This matter of CIL via the constitution is currently heavily debated in the US.

So where there?s a void, then CIL is applicable. If no void, then domestic law reigns supreme. However, we must not undermine political diplomacy. Gilbert in his blog provides a succint and, in my view, accurate role of international law on domestic laws. Sometimes the law isn?t the best tool and we must accept that.

Again, I agree that only the executive should determine matters of foreign policy. But it can be hard to separate matters of law from foreign policy. Also, what happens if the piece of international law is jus cogens?

Gilbert: if only you posted it before I took my paper :). Ah well, I didn’t do the question. I stupidly. did. hearsay.

A.: Hahah yes it starts with a D. Thank you for your compliments, but I don’t know how much use I will be for public (I think you typed precedent fact earlier and I was like whhaa..Ohhh). Don’t worry about the assignment grade it’s only 30%. Did CL give any hints about what might come out? He usually sets the horrible technical questions. Anyway, you can email me questions if you want..

Han.: sorry about hijacking your comments like that! Did you predict this many comments when you posted?

So where there’s a void, then CIL is applicable. If no void, then domestic law reigns supreme. However, we must not undermine political diplomacy. Gilbert in his blog provides a succint and, in my view, accurate role of international law on domestic laws. Sometimes the law isn’t the best tool and we must accept that.

With regards to presumption of innocence:
It might be true that it relatively alive in the UK. However it is dying a gradual death. Debate on the excessive shifting of burdens has been limited to academics, and despite so 40% of cases trialed involves a reversal of burden. The Lords try to counteract this by reading an evidential burden where legal burdens used to exist (certainty?), yet where legal burdens have been applied the ECHR approve so (thus defeating the Lords argument that legal burden might cause the UK to fall foul of it’s ECHR obligations), we should also not forget that same Lords that stick to the ideals of innocence are the very same Lords that abhor idea gay rights (ie. decriminalising homosexual sex). The Lords. in the interest of the presumption of innocence, often adopt teteological methods and adjust their reasonings to best justify their stand. Is this desirable? Maybe, but imho definitely not when the dicta often proving to be flawed. A very common conclusion in the discussion of cases would that the ends justifies the means (is this ideal?).

Every legal system has it’s own flaws to take care of, there’s no pt saying that it’s dead here and alive there. More importantly is to acknowledge the pros our system has, and try to retain it whilst striving to refine the justic meted out.

Will the death penalty go away? It depends on the US. Kan Ting Chiu left a nifty opening in Nguyen when he suggested that law in article 9 could import customary international law. If the US changes customary international law, who knows?

Fascinating! Seems llike Sg judges are adopting the language of the Lordships.
For the US to change customary international law, it would first have to abolish the death penalty in it’s states first. Also, if i’m not wrong a breach by any party to an internation covenant would justify a breach by any other, does this apply to customary laws as well?

Lastly, from the track record of my comment in this blog, i’d end up a CSJ (touch wood).