I WAS fortunate to attend the inaugural Association of Criminal Lawyers lecture last Thursday, where Attorney-General Walter Woon spoke on the topic of 'Prosecutorial discretion and the quest for justice'.

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Dear Xiao Yong,

Thank you for your letter. However the divided issue in the legal fratenity is not whether we understood the difference between guilt and factual guilt, but whether we should accept such a concept as factual guilt or not.

The universally accepted concept of innocence until proven guilty has been the corner stone of legal thinking through the ages. Justice VK Rajah was merely restating a very fundamental principle.

Prof. Walter Woon maybe right about the prosecution having a set of facts which may not be admissible in Court. These facts are not admissible for a variety of reasons. They maybe irrelevant to the case in hand. They maybe highly prejudicial and unfair to the accused. The admissiblity of evidence is not merely technical. It was developed through the ages in order to balance between the machinery of the State and the rights of the individual. When the State- who has the resources - cannot prove its case against the individual, that individual must be presumed innocent.

The presumption of innonence is vitally important, as the organs of the State cannot and should not put a negative label on a man who was not found gulity. Otherwise, you may as well not respect an open and fair finding of the Court. The Court is where the powers of the executive are checked and balanced. So the executive must abide by those findings and presume the man innocent.

Anyone making a distinction between 'legal' guilt and 'factual guilt' is guilty of jurisprudential fallacy. To assert that a person may be or is factually guilty even if he is acquitted in a Court of Law is to demean the judicial process.
This is a time-honoured process that involves at the very least, the application and interpretation of laws, procedural and evidential rules and ,especially in S'pore, public policy considerations.
As it is S'pore does not now have a jury system, yet another check and balance to the judicial system ie: trial by one's own peers.
After hearing both sides to the argument on the Prosecution charges, the decision remains the sole and independent prerogative of the trial judge whose expected bounden duty is to uphold the law, without fear or favour.
No prosecutor should ever prosecute anyone unless there is a genuine and honest belief on its part that the accused is or should be guilty as charged. But the Prosecutor's belief of guilt cannot be equated to 'factual' guilt, because there is no such concept either in law or in principle.
Other than the Court's pronouncement of innocence or guilt, there is no determination of guilt other than the concept of 'moral' guilt, that some people may have.
This is even more nebulous, because morality means different things to different people. There is no universality in moral rights or wrongs, illustrated in the extreme argument that a 'terrorist' is seen by the 'other half' of society as a 'freedom fighter'.
It is not within the Prosecutor's realm to assert or infer that a person acquitted (either after trial or appeal) may yet be guilty. He can go no further than to state what is his own belief, but that would be stating the obvious because if he did not have that belief in the first place, the prosecution would be abuse of authority. Few would support that as even morally right.

"The presumption of innonence is vitally important, as the organs of the State cannot and should not put a negative label on a man who was not found gulity" -markgoh

Hmm, the mere fact that one has been tried is likely to attaint anyone. To be charged with a crime smears one's name.

If there is in fact no distinction between being 'legally' and 'factually' innocent, then tell me why Al Capone was indicted on a tax charge, when he was a murderous gangster.

Can it be that evidence is destroyed by time, the criminal, or shoddy investigative work, such that a guilty person goes free, due to insufficient evidence? Factually, therefore, the person is guilty, but a court cannot find him so.
Clear enough, to me.

You made some cookies. You came back to find them missing, and I am in the room with them. I did in fact eat the cookies, and the circumstantial evidence against me is quite strong (I'm in the room with the empty plate!) but I have wiped the crumbs off my mouth and rinsed away my cookie breath. Legally innocent (you can't prove it! if questioned I will blandly deny eating the cookies) but factually guilty.

You made some cookies. You came back to find them missing, and I am in the room with them. I did in fact eat the cookies, and the circumstantial evidence against me is quite strong (I'm in the room with the empty plate!) but I have wiped the crumbs off my mouth and rinsed away my cookie breath. Legally innocent (you can't prove it! if questioned I will blandly deny eating the cookies) but factually guilty.

circumstantial evidence is treated differently in different jurisdictions. sg in my opinion has a lower threshold for the presumption of innocence than the US perhaps bec civil rights are more vigorously protected here.

in sg, it is possible to convict sb based on circumstantial evidence (so in your eg, you will not be legally innocent if the prosecution can prove beyond a reasonable doubt that you were alone in the room, and no one else had or could have entered the room between the time [i] left and returned to the room, and it can be or is established that [i] had not in fact eaten the cookies). depending on the penalty, circumstantial evidence may not be so easily admissible in a US court is my view.

the letter-writer should be commended for trying to simplify the law as he understood from walter woon (who is a very good company law professor!); however, he has presented the issues far too simply. there are various issues involved as to why the prosecution may consider there to be factual guilt (if there is such a concept, or if the act alleged to have committed was indeed committed, quite independently of mens rea, or the intention to commit it) and yet the accused is adjudged legally innocent. for eg, there may be mitigating circumstances permitted by law so that an act of killing another may not be murder if it is in self-defense and that the use of force is adjudged to be proportional in the circumstances.

also, what the prosecution considers to be factual guilt may not be so considered by the judge, whose judgment prevails, so i agree that the more pertinent/preliminary issue is whether the idea of "factual guilt" should even be raised/allowed, bec as it is, the public often believes that an accused is more likely than not to be guilty of the crime s/he is accused of, as nyjc has pointed out, that the fact that someone is accused of a crime tends to smear his/her reputation without more, which is why there are lay people who will accuse defense lawyers of defending criminals even before the accused is proven or adjudged to be one/guilty.

My point is that such a concept as 'factually guilty' as opposed to 'legally guilty' - My Al Capone example begs for a rebuttal.
It is sufficient that a man found innocent by the court be regarded as innocent in the eyes of the law only. OJ Simpson's trial is a good example - he was innocent, but a question mark hangs over him. You might say it is unfair of me to doubt him - after all he is innocent! I daresay he is not innocent, merely acquitted. I say there IS a difference, and one that will come to light - eventually.

Unewolke raised a pertinent issue: what standards of proof are required? Given a lower bar, a person might be more easily found legally guilty. This would not alter one whit whether or not he had actually done the deed.

I believe I've proven by the Al Capone example that 'legal' vs 'factual' guilt are two distinct concepts. Many will say that this is unfair to the acquitted person. I think in this case logic trumps emotion, however.

P.S. OJ Simpson was found guilty in the civil trial.
Hence: legally guilty, or innocent? Those who argue there is no difference between legal and factual guilt will have difficulty explaining this one. I look forward to such an explanation.

http://en.wikipedia.org/wiki/O._J._Simpson_murder_case

Unewolke, how does one do this 'quote' thing?
(Sorry for digressing)

Elementary my dear NYJC4.
The difference is in the standard of proof required. In a criminal matter, the prosecution is required to prove that the accused is guilty "beyond a reasonable doubt " but in a civil case, the plaintiff or claimant need only prove its case "on a balance of probablities".
In principle therefore, it would be much easier to prove the wrongdoing in a civil case.