An exposition of the recent Federal Court decision of Shamim Reza Abdul Samad v PP  6 CLJ 93 and a consideration of its regrettably recent application.
If you had a lawyer who was so god awful that he didn’t know a cross-examination from a rectal examination; and he was representing you in a criminal case; and botched it up so badly that it resulted in your conviction of a crime (that I am certain you did not commit), would that be grounds for setting aside the conviction? You need not trouble yourself over the answer because the Federal Court has recently answered it in the decision of Shamim Reza Abdul Samad v PP  6 CLJ 93, and you would be pleased to know that the answer is a qualified yes.
Gopal Sri Ram FCJ who wrote the judgment of the court referred Privy Council decision of Sankar v The State  UKPC 1 where the following was held:
In an extreme situation where the defendant is deprived of the necessities of a fair trial then even though it is his own advocate who is responsible for what has happened, an appellate court may have to quash the conviction and will do so if it appears there has been a miscarriage of justice.
His Lordship explained that what amounts to ‘an extreme situation’ must depend on the facts of each case and continued, “The authorities appear to envisage a case where there has been flagrant or gross incompetence on the part of counsel as to deprive an accused of a fair trial.” This is correct. There is little point in specifying those occasions because their numbers are infinite. Human beings have immense abilities and opportunities to mess themselves up in the most unexpected ways. His Lordship then referred to the leading case on the subject found in the Hong Kong decision of Chong Ching Yuen v The Hong Kong Special Adminsitrative Region  HKCFA 16 where further clarity was given to what amounted to such a situation:
An appellate court cannot shut its eyes to the unsafe or unsatisfactory state of a person’s conviction just because that state was caused or contributed to by his counsel’s incompetence. Nor can an appellate court shut its eyes to an error of law against a person just because that error was caused or contributed to by his counsel’s incompetence. But it should be clearly understood that appellate courts will approach those situations with a sense of realism, and not in such a way as would put a premium on briefing incompetent defence counsel at trial and then criticising them on appeal in the event of a conviction. As Cooke J (now Lord Cooke of Thorndon) said (at p. 114) in the course of delivering the judgment of the Court of Appeal of New Zealand in R v. Pointon  1 NZLR 109, it is necessary ‘to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel’.
His Lordship then proceeds to summarize the principles cogently:
In our considered judgment, the incompetence of counsel in the conduct of a defence in a criminal trial is a ground on which a conviction may be quashed provided that (i) such incompetence must be flagrant in the circumstances of the given case; and (ii) it must have deprived the accused of a fair trial thereby occasioning a miscarriage of justice. Nothing short will suffice. And in considering the question, an appellate court must have regard to the conduct of counsel as a whole and not merely to his or her failure in one or two departments. Further, in the ordinary way, a court whether at first instance or at the appellate state will of course have regard to its paramount function and duty to ensure that justice is done so that the incompetence of counsel will not factor into the equation.
These principles found no application in that decision because the accused simply had a very poor case. After reading it I wondered what ‘an extreme situation’ looked like. I regrettably did not have to wait very long. On 7 January 2010, the New Straits Times reported that a former labourer had his conviction for trafficking in 50 kgs of ganja set aside by the Court of Appeal due to the incompetence of his lawyer. The report reads as follows:
“The court-assigned lawyer did not cross-examine seven prosecution witnesses, including a co-accused who turned crown witness.”
“The lawyer also did not renew his annual practising certificate when he appeared for Phuang Cheg Siew.
“Another lawyer took over the case, but the High COurt on May 30, 205 convicted Phuang and sentenced him to death after finding him guilty of trafficking.
“However, the Court of Appeal yesterday set aside the conviction and substituted the death sentence with the maximum 20 years’ jail for drug possession.
“On Monday, Phuang’s counsel K. Vickensvaran told the Court of Appeal that the conviction should be declared null and void on the grounds of incompetency of the first lawyer who had conducted the case at the trial stage.
“He said Phuang’s defence was not effectively put across as the lawyer did not cross-examine the seven prosecution witnesses.”
From the report it suggests that the Court of Appeal held the lawyer incompetent for two reasons. The first is his failure to cross-examine material prosecution witnesses. The second is his failure to have an annual practising certificate when he appeared. Let us consider these two reasons a little more carefully.
Where his failure to cross-examine is concerned, this is obvious. Failing to cross-examine material prosecution witnesses is one the strongest indication of incompetence; and his failure to cross-examine the co-accused who turned prosecution witness is proof beyond reasonable doubt of this. Ask any litigator of repute and they will tell you that you must cross-examine that witness. The failure to cross-examine material witnesses amounts to a failure to challenge the prosecution evidence. It is also a trite law of evidence that testimony or evidence that is unchallenged will be deemed accepted. Since that lawyer failed to cross-examine, he facilitated an admission of his client’s guilt! That is why it is important to get a lawyer who knows what he is doing and not simply one who is cheap, nice or accommodating, especially so in capital offence cases like drug trafficking (which is chargeable under section 39B of the Dangerous Drugs Act 1952.
One aspect that should be pointed out also is that there was a failure on the part of the judge to properly supervise the proceedings. If he felt that the lawyer was not doing his duty, he should lightly alert or indicate to him to those instances when his participation was essentially. For example, I find it hard to believe that a competent judge would not at least inquire with the lawyer whether he should cross-examine the co-accused turn witness. One of my lawyer friends even suggested that the judge call the lawyer in chambers and give him a right bollicking before proceeding with the witness/trial.
Where his failure to possess an annual practising certificate is concerned, I do not think it is an indication of incompetency on the part of his abilities and skills as a lawyer. When I discussed this with my friends, two views emerged.
The first was advanced by my friend, Amer Hamzah, who said that it should not be treated as incompetence. This is because an annual practising certificate is not proof of competency. There are lawyers who have been issued with such certificates who mess up. That certificate functions more as a licence than as proof of competence. He drew an analogy to the person who drives without a driving license. Just because he does not have a license, does not mean a person does not know how to drive a car. They may have not renewed it for whatever reason.
The second view was advanced by another friend, Tharminder Singh. He said that the certificate does in a sense amount to proof of competency. If you were not qualified or fit to be a lawyer for whatever reasons, then a certificate would not be issued to you. So where the public are concerned, it does amount to a certificate of competency. The failure to possess one is prima facie evidence that that lawyer is not competent.
Having considered them I am inclined to agree with Amer’s view for these reasons. It is the court that decides whether or not a lawyer was competent during the trial only. It is also only to decide whether that incompetence unfairly resulted in a conviction. That’s all. It is not supposed to go into all the faults of the lawyer in finding him incompetent. Therefore the court should only consider the actions taken or should have be taken by the lawyer at the trial in evaluating his competency. Not matters outside of it. When seen in this light, whether or not he is issued a valid practicing certificate is not relevant to the issue.
Both the cases discussed above makes my earlier article on the need for learning and practising the proper art of cross-examination all the more urgent and necessary, although in truth the bigger concern is that we need more of our lawyers to re-learn how to find honour in their work and thereby finding pride in it.