This article is a continuation of What is Prima Facie? (And Why Is It Confusing in Malaysia). Do have quick read of that first before proceeding!
“I plead the Fifth!”
We see it on American TV. When an accused person is posed a tough question in court, they “plead the Fifth”.
The Fifth Amendment of the US Constitution confers upon an accused person (or any witness) the right to remain silent. It is like a legal shield to keep one from accidentally saying something that might make them look guilty, a.k.a. self-incrimination.
Similarly in Malaysia, when the defence is called in a criminal trial (after a prima facie case is established), the court has to inform the accused person that they have the option to remain silent. [1]
Here's the thing, if an accused person remains silent, it is quite tempting to assume that they are hiding their guilt, right? But that cannot be the case in court.
By right, judges cannot infer guilt from an accused person's silence because everyone is innocent until proven guilty, which is the foundational principle of criminal justice.
The Illusion of Silence
But the right to silence in Malaysia is illusory, exercise it and the court will deem you guilty. But what about everything that was said earlier?
In the previous article, we have established that when the court determines that the prosecution has established a prima facie case, it is essentially saying that "the accused is guilty beyond reasonable doubt" (as opposed to "the accused is probably guilty"). [2]
To elaborate further, in determining the existence of a prima facie case, judges would ask themselves this hypothetical question:
"If I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case?"
If the answer is yes, then a prima facie case has been made out.
This, in effect, may imply that before the trial has even concluded, an accused person may already be deemed guilty before proven innocent, and they better speak up to prove their innocence.
Simply put, although an accused person is given the option to remain silent when the defence is called, they cannot exercise it meaningfully at all. Because if they do, the judge is already prepared to convict them automatically.
What Can Be Done?
Approach #1 - Remove the Right to Silence
Does an accused person actually need this right if there is actually more than enough protection offered to their innocence?
We could simply do away with the false choice presented to the accused person; don’t tell them that they can stay silent when in reality they can’t. Instead, the accused should only be warned of the consequences of keeping quiet, without having it presented as an option.
This makes sense if we want to retain the criminal prima facie standard as it is now (although annoyingly, it does not conform to the ordinary meaning of the term). Why do we want to do that?
Some jurists would favour this approach because they view the application of this "beyond reasonable doubt" prima facie standard as predominantly more favourable to the accused.
The credibility of the prosecution’s evidence would be subjected to a more thorough scrutiny, ensuring that no reasonable doubt exists before the defence is called. To quote Lord Diplock:
The greater the burden on the prosecution to establish a case, the greater the protection offered to the accused.
In short, with this current "prima facie" standard, we can arguably do away with the option to remain silent because the defence would not even be called if the prosecution fails to overcome the sky-high standards required to prove their case.
The only confusing thing would be the inaccurate usage of the term "prima facie".
Approach #2 - Reinforce the Right to Silence
But the right to silence is a fundamental right which should never be taken away, right?
If we do not want to take away the right to silence, then we ought to ensure that it can be exercised meaningfully.
This approach entails revising the prima facie standard of proof, making it more in line with its ordinary definition as well. To do this, section 180(4) of the Criminal Procedure Code may be amended as shown below:
Current s 180(4) CPC | Possible Amendment |
For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction. | For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence tending to prove each ingredient of the offence. |
By replacing the phrase “evidence proving” with “evidence tending to prove” and removing the phrase “if unrebutted would warrant a conviction”, only a minimum evaluation of evidence would take place at the close of the prosecution stage.
An accused person can then exercise the right to silence without being convicted automatically. Then at the end of the trial, a maximum re-evaluation of the evidence will occur, to truly determine one's guilt “beyond reasonable doubt”.
It's complicated, but the argument for this is that the court can make a wiser decision if the evidence is evaluated twice by the end of trial, instead of coming to a possibly premature conclusion that an accused person is guilty in the middle of trial.
However, this approach may backfire.
In a scenario where the prosecution's evidence is not strong, but still passes the minimum evaluation, the accused will be called to enter his defence due to the lower hurdle needed to establish a prima facie case.
If the accused elects to speak in such a case, it may increase the risk of the accused incriminating themself unintentionally and be convicted subsequently. In other words, the accused could very well score an own goal.
Not to mention, this approach would also increase the backlog of criminal cases in the courts because any credible hints of guilt would necessitate a full trial.
Lastly, this approach may also entail a whole host of other changes to criminal procedure, which might only make things more complicated for the courts unnecessarily.
Moving Forward from Silence?
For all practical purposes, when the defence is called at trial, there is no longer any meaningful right to remain silent. That's the truth.
Yet, we have to remember that the current standard of proof required to even reach this stage in a criminal trial is very high, meaning that an accused person may already be sufficiently protected even without the right to silence.
Maybe the law should just admit that there is no right to silence once and for all by removing it, rather than finding a way to preserve this practically marginal right at the risk of overcomplicating matters.
[1] S 173(ha) Criminal Procedure Code
[2] Balachandran v Public Prosecutor [2005] 2 MLJ 301; Public Prosecutor v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393; Public Prosecutor v Hanif Basree bin Abdul Rahman [2008] 3 MLJ 161