Chapter 12.1 - Procedures in Summary Trials Flashcards
1
Q
PROCEDURES IN SUMMARY TRIALS
Overview
A
1) Trial - prosecution case
2) End of prosecution case
3) Trial - defence case
4) End of defence case
5) Conviction
6) Miscellaneous
2
Q
PROSECUTION CASE
Overview
A
1) Evidence
2) Calling of witness
3) Examination of witness
4) Other forms of evidence
5) Re-calling of witness
6) Miscellaneous in prosecution case
3
Q
EVIDENCE IN PROSECUTION CASE
Overview
A
1) The law
2) Meaning of to take “all such evidence”;
3) Mode of taking evidence;
4) Exhibit evidence
4
Q
EVIDENCE IN PROSECUTION CASE
The law & scope
A
1) The law:
- S.173(c)
2) Scope:
- If the accused claimed to be tried, court shall proceed to take all such evidence that may be produced in support of the prosecution.
5
Q
EVIDENCE IN PROSECUTION CASE
Meaning of to take all such evidence
A
PP v Mohamed Said:
- include both the evidence which is available at the trial and that which is not but will be made available if a postponement of the trial is granted.
- If no such evidence or if the available evidence adduced is insufficient to establish a prima facie case against the accused, then the magistrate is entitled to record an order of acquittal under S.173(f).
6
Q
EVIDENCE IN PROSECUTION CASE
Mode of taking evidence
A
1) General rule:
- S.264: in presence of accused
- S.265: recording shall be in accordance with the Chapter
- S.267: legible handwriting & form part of record.
2) Duty of Magistrate - PP v Ayar & Ors:
- it is a mandatory requirement for Magistrates to record the notes of proceedings, be it an enquiry or trial, in their legible handwritings.
- the evidence taken down by magistrates in legible handwriting shall form part of the records of proceedings.
- It is therefore the duty of magistrates to ensure that their handwriting is legible and that others will have no difficulty in reading their notes.
2) Some exceptions:
- S.265A - Protected witness:
- Evidence through live video: S.272B
- S.401 - Record of evidence in absence of accused:
- S.425A - Trial in absence of accused:
7
Q
EVIDENCE IN PROSECUTION CASE
Exhibits evidence
A
1) the law:
- S.264
2) scope - Melinda Stevenson v PP (CA, 2020):
- all evidence shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his advocate.
- Any exhibit to be admitted before the trial must be by the consent of the accused and his/her advocate and agreed to before the commencement of the trial.
- In a criminal trial, the procedure, as provided by the CPC, must be strictly adhered to.
8
Q
CALLING OF WITNESS IN PROSECUTION CASE
Overview
A
1) The law & scope of powers of court to summon or examine a person
2) Duty of prosecution in calling witness
3) Adverse inference against prosecution
4) Whether it is necessary to call every witness that handle exhibits
9
Q
CALLING OF WITNESS IN PROSECUTION CASE
The law & scope of powers to summons
A
1) The law:
- S.173(d)
2) Scope:
- Court may call witness if it thinks necessary.
3) Power to summons:
- S.425
4) Discretion - Loke Poh Siang v PP:
- Court has an absolute discretion in calling or re-calling a witness even after the close of P’s case to rectify an omission on P’s case.
- H/ever, court must be cautioned to exercise the discretion judicially and not to prejudice the accused.
5) Recent case - Saravanan Rajagopal v PP (CA, 2019):
- S.425 is a discretionary provision which provides that the Court may, on an application, summon any person as a witness or recall and re-examine any person already examined at any stage of any inquiry, trial or other proceeding under the Code.
- Court may only do so where the Court is satisfied that the evidence to be summoned would appear to the Court to be essential to a just decision of the case.
6) Power to call in other provision:
- S.138(4) EA - re-calling may be permitted for the purpose of further e-i-c or c-e.
10
Q
CALLING OF WITNESS IN PROSECUTION CASE
Duty of prosecution in calling witnesses
A
1) Adel Muhammad El Dabbah v AG for Palestine:
- The prosecution has an absolute discretion of whether or not to call a witness;
- Court will not interfere unless it can be shown that the prosecution has an oblique motive.
2) Example - PP v DSAI:
- The non-calling of certain witnesses including the Prime Minister was not fatal to the prosecution case;
- This is because all the witnesses are not necessary to unfold the narrative upon which the prosecution case is based.
11
Q
CALLING OF WITNESS IN PROSECUTION CASE
Adverse inference against prosecution
A
1) Amri Ibrahim & Anor v PP (FC, 2017)
- The power of the court to draw an adverse inference under s. 114(g) is discretionary.
- It depends on the circumstances of the case and particularly in cases where the material witnesses are not produced.
2) When can AI be invoked - Munusamy Vengadasalam v. PP:
- Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence.
- It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.
12
Q
CALLING OF WITNESS IN PROSECUTION CASE
Whether it is necessary to call everyone that has been handling exhibits
A
1) The test - Mohd Osman bin Pawan v PP:
General rule:
- It is unnecessary to call every witness to ensure that there is no break in the chain of evidence.
Exceptions - gap in P’s case:
- But when there is doubt as to the identity of the exhibits, failure to adduce evidence to provide the necessary link in the chain of evidence would be fatal to the prosecution case.
2) Example - break in the chain of evidence - Abdul Jalil Sattar v PP: - OTF, the failure to call the material witness has caused a serious break in the chain of evidence relating to the identity of the drugs produced in Court.
- In this case, the evidence of T was necessary to prove that the exhibits which were received by PW6 were the very ones which the chemist had sent back to him the day earlier and T would have been able to provide the missing link in the chain of evidence if more strenuous efforts had been made to trace him;
- the prosecution has not given valid reasons as to why T could not be traced or what efforts have been made to trace him.
3) Example - properly sealed & numbered - Gunalan A/L Ramachandran v PP:
- the fact that there is a gap does not automatically mean that the fact is not proved;
- it essentially depends on the facts & circumstances of each case;
- there may be gaps in the chain of evidence, but if each exhibit is properly sealed & numbered reducing the probability of tampering, it may not give rise to any doubt of that fact.
13
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Overview
A
1) Stages of examination
2) Right to cross-examine
3) Failure to cross-examine
4) Duty to put case during cross-examination
5) Failure to put case during cross-examination
6) Refreshing memory
7) Power of court to put questions to the accused
8) Remarks as to demeanour of the witness
14
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Stages of examination
A
S.138 EA:
- EIC;
- Cross-examination;
- Re-examination
15
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Right to cross-examine
A
1) The law:
- S.173(e)
2) Whether witnesses who have been impeached may be liable for cross-examination:
- PP v Munusamy:
Refusal to allow cross-examination on impeached witness is not fatal, not a misdirection & there is no failure of justice. - cf. Dato’ Mokhtar Hashim v PP: Even when the credit of a witness is impeached, right to cross-examine or re-examination should not be denied.
- With the exercise of such right, his credit might be repaired, restored or re-established.
16
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Failure to cross-examine
A
1) Wong Swee Chin v PP:
General rule:
- failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony.
Exception - ref. Transport Ministry v Garry:
- where the story is itself of an incredible or romancing character, or
- the abstention arises from mere motives of delicacy, or
- when counsel indicates that he is merely abstaining for convenience, e.g., to save time.
- Where several witnesses are called to the same point.
2) Whether evidence that was not cross-examined needs corroboration - Puganeswaran Ganesan & Ors v PP:
- Evidence that is not challenged in cross-examination needs no corroboration, even where it comes from an accomplice.
- It must be taken as proved unless the evidence is so inherently incredible or the evidence has been effectively rebutted by other evidence led by the prosecution.
17
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Duty to put case during cross-examination
A
1) The rule - PP v Natu ak Suhai:
- An accused must put forth his case during cross-examination in prosecution case.
2) Evidential value of case put forward during cross-examination - Mohd Najibuddin Nasruddin v PP:
- Mere suggestions put by defence counsel at the prosecution case and any denial thereto has little or evidential value as it is yet to crystallize into evidence.
- It serves to lay out or give notice of the lines of defence.
- What is put to the witness can only be considered if, when the defence is called, evidence is led on the suggestion put forward in the previous cross examination.
18
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Failure to put case during cross-examination
A
1) Effect of failure - PP v Natu ak Suhai:
- If the accused fail to put his case during cross-examination, the court may consider that the accused does not have any defence.
2) Effect of failure - Siew Yoke Keong v PP:
- Failure to put its case material to the prosecution’s witness may have serious implications of the accused’s credibility & weight to be attached to his evidence.
3) Effect of failure - Megat Halim Megat Omar v PP:
- Failure to do so may move the trial court to dismiss a particular line of defence as an afterthought, or a recent invention as happened in this case.
4) Does not relieve prosecution’s burden - Alcontara Ambross Anthony v PP:
- However, failure can never by itself relieve prosecution from its duty to prove the charge against the accused BRD.
19
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Recent application on putting case during cross-examination
A
Puganeswaran Ganesan & Ors v PP (FC, 2020):
- It is a rule of essential justice & serves to prevent surprises at trial and miscarriage of justice.
- Failure to do so leads to miscarriage of justice by:
1) springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put.
2) Such subsequent testimony has no chance of being tested and corroborated.
- However, mere failure by the defence to challenge any crucial part of the prosecution case must not necessarily lead to a conviction;
- The duty to prove the case beyond any reasonable doubt rests with the prosecution throughout and does not shift.
20
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Refreshing memory
A
1) The law:
- S.159 EA
2) Principles & procedures - Moomin bin Seman v PP:
- As a general rule, a witness when testifying in court should speak from memory unaided by reference to any document;
- It is only when the witness is unable to do so, resort can be made to refreshing memory by previous writing.
- a witness is not entitled to refresh his memory as of right;
- Leave of the court must be first obtained before he is allowed to refresh his memory.
3) Test to grant leave to refresh memory - Moomin bin Seman v PP:
- There must be a demonstrated need for a witness to refer to a document before leave is granted.
21
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Examples of document to refresh memory
A
1) S.112 statements - refreshing memory BEFORE examination - PP v DSAI:
- There is no legal prohibition for witness to be shown a police statement before he gives evidence;
- Effect may go to the weigh to be attached to the evidence given by the witness.
- S.159 is confined in its operation to contemporaneous statements and, in this case, the police statement is obviously not a contemporaneous one.
- In any event, the section 159 EA is restricted in its operation to refreshing of memory “while under examination”.
2) S.112 statements - refreshing memory DURING trial - lapse of 5 years after the incident - Adiswaran Tharumaputrintar v PP & other appeals (FC, 2014):
- It is within the trial court’s discretion to allow a witness to refresh his memory.
- Cases showed that witnesses were allowed to be shown their statements even before the trial.
- It is the duty of the trial judge to see that the court will not be deprived of the full testimony and information which it should have in order to do justice.
- It is also important to take into consideration the fact that the witnesses gave evidence about five years after the incident.
- After a lapse of five years, witnesses could not be expected to remember in detail what had taken place.
3) S.399 expert report - Liew Chin Yoong v PP:
- Where the maker of the report is called as a witness, the maker is entitled to refer to his report to refresh his memory.
22
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Power of court to put questions to the accused
A
1) The law:
- S.256
2) The rule - Teng Boon How v PP:
- SC held that the trial judge had erred when he descended into the arena of dispute and allowed his judgment of facts to be clouded by the results of his own cross-examination.
3) Meaning of descending into arena of dispute - Yuill v. Yuill:
- When the judge himself conduct the examination of witnesses.
4) When can judge ask question - Gan Kok Liong v PP:
- conduct of the judge interposing is to enable him to acquire indicative evidence is justified as the interests of truth and justice would suffer if he did not do that.
23
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Recent application on power to court to put questions to accused
CA, 2012
A
J. Ramesh Jayakumar & Ors v PP (CA, 2012):
- The learned trial judge had admitted in his grounds of judgment that His Lordship interjected when it was found that the evidence of the third accused was not convincing on his identification of Alagu without seeing his face.
Held:
- Judge can ask questions and seek clarification from witnesses and parties in any form at any time.
- Section 165 of the Evidence Act 1950 empowers the judge to do so & S.256 of the Criminal Procedure Code which provides specifically on the powers of the court to put questions to an accused person.
- Judge may ask questions when:
1) it is necessary to clear up any point that has been overlooked or left obscure;
2) to see that the advocates behave themselves seemly and keep to the rules laid down by law;
3) to exclude irrelevancies and discourage repetition;
to make sure by wise intervention that he follow the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. - If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.
24
Q
EXAMINATION OF WITNESS IN PROSECUTION CASE
Remarks as to demeanour of the witness
A
1) The law:
- S.271
2) Value of demeanour of witness - Tara Singh & Ors v PP:
- The demeanour of the witness must be tested against the whole of his evidence;
- Ref. Yuill v Yuill:
an impression as to the demeanour of a witness ought not to be adopted by a trial judge without testing it against the whole of the evidence of the witness in question’ - Yuill v Yuill was a civil case and the principle applies with even greater force to criminal cases
3) Whether contemporaneous record of remarks is mandatory - Mohd Syafik Azri Arman Ali v PP: - S.271 use the word “may” & thus the said requirement is not a mandatory but at the discretion of the trial judge.
- Failure to produce the record is not fatal.
25
OTHER FORMS OF EVIDENCE
Overview
1) Evidence of persons not called as a witness
2) Expert evidence
3) Witness statement
4) Admission
26
OTHER FORMS OF EVIDENCE
1) Evidence of persons not called as a witness
1) The law:
- S.396
2) Scope of S.396 - PP v Egbulefu George Okechukwu:
- PP may apply to court for any witness of any seizable offence that intends to leave Malaysia and that witness's presence at the trial to give evidence for the trial;
to be committed to the civil prison until trial; or
until he shall give satisfactory security that he will give evidence at the trial.
3) Application of S.396 - Yap You Jee v PP:
- The actions of the police in searching for Raizul (an important witness) at his address, placing an advertisement in the newspapers and seeking the assistance of the Interpol were reasonable efforts taken by the police to trace Raizul.
- The failure of the police to make use of S.47, 49, 118 and 396 of the CPC did not render the statement of Raizul inadmissible & it was correctly admitted under s. 32 of the Evidence Act 1950.
27
OTHER FORMS OF EVIDENCE
Expert evidence
1) The law:
- S.399
2) Scope:
- PP must deliver the report not less than 10 days before trial;
- If the accused intends to call the witness, he must give notice not less than 3 days before the commencement of the trial.
3) When is the commencement of trial - Hajar Ishak v PP:
- 10 clear days must calculate from the date on which the prosecution has called the first witness.
- In other words, if the charge was read to the accused on 1.1.2021 and the prosecution's first witness was called on 1.2.2021, the commencement date must be on 1.2.2021 in the context of section 399.
4) Failure to deliver a copy of the report to the accused - Naveen Raj Naidu Gunasegaran v PP (CA, 2015):
- It is settled law that the proviso to s. 399(1) of the CPC is a condition precedent;
- if not complied with, the chemist's report could not be admitted in evidence without calling the government chemist to produce it.
4) Failure to deliver report when the accused has pleaded guilty - Shaiful Azmi Sabri v PP (CA, 2020):
- If the said chemist report was not delivered to the appellant and was only presented by the prosecution during the proceeding where the appellant had pleaded guilty, then the prosecution's case suffered procedural flaws rendering the appellant's conviction unsafe as no subject matter (dangerous drugs) that became the subject of the charge was validly presented as proof before the court.
5) Failure to call witness despite notice:
- Safri bin Koboy v PP;
- Char Siew Kok v PP
- Muhammad bin Abdul Rahman v PP
28
OTHER FORMS OF EVIDENCE
Example of expert witness
1) Whether the list is exhaustive - Shahrizal Abdul Ghani v PP (CA, 2014)
- The class of persons to whom s. 399 of the CPC may apply is not exhaustive as sub-s. (2)(f) confers powers upon the Minister to gazette other person.
2) MEDICAL DOCTOR - requirement of written authorisation - Yii Ming Tung v PP (CA, 2014)
- A government medical doctor is deemed to have authorisation to perform post-mortem or that the authorisation can be implied by virtue of their appointment in the medical service of the public service.
29
OTHER FORMS OF EVIDENCE
Admissibility & weight of expert evidence
1) Admissibility - DSAI v PP (FC, 2015)
- the court must first conclude that the evidence would fall under that of an expert's opinion, and there is no doubt they are experts.
- the court is entitled to accept the opinion of the expert on its face value;
- unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion.
- So long as some credible evidence is given by the chemist to support his opinion, there is no necessity for him to go into details.
2) Weight of expert report vis-a-vis oral evidence - Pendakwa Raya v Nolose Albert Raleshome:
- The chemist’s report is a piece of corroborative evidence affirming his oral testimony.
- When there are material discrepancies between his oral evidence & his report, his oral evidence constituted a substantive or best evidence.
30
OTHER FORMS OF EVIDENCE
Witness statement
1) The law:
- S.402B
2) Scope:
- allows for proof by written statement of any witness subject to the conditions as set out in paras (a), (b) and (c) of sub-s. (2).
3) Consent of accused - Kingsley Obi Dike v PP (CA, 2015)
- S.402B should be read together with ss. 172A and 172B of the CPC.
- However, if the witness has been cross-examined, there is no issue on admissibility should arise.
31
OTHER FORMS OF EVIDENCE
Non-compliance with provisions in witness statements
1) General non-compliance with S.402B(2) - Nutchanad Jongjaroen v PP (CA, 2018):
- When the makers of the witness statements are called, took oath & cross-examined, non-compliance with S.402B(2) does not render the witness statement inadmissible.
2) No signature - Mehdi Keramatviyarsagh Khodavirdi v PP (CA, 2015):
- The preconditions in sub-s. (2) must be complied with (signature must be made) before the witness statement could be admitted as evidence.
- Non-compliance rendering the witness statement inadmissible.
3) No declaration that it is true to his best of knowledge - Hendra Kozama v PP (CA, 2018):
- Where the makers of the statements were called to give evidence, the failure to make the declaration under S.402B(2)(b) would NOT render the statements inadmissible.
- By the makers themselves giving evidence, the statements were no longer hearsay, which required the application of the exception to the hearsay rule in order for them to be admissible in evidence.
- The taking of oath before a trial judge fulfills the object and requirement of the section 402B(2)(b) of the CPC.
4) No read out aloud - Rossarin Nuekaew v PP (FC, 2017)
- The court could dispense with the requirement for the witness statement to be read aloud if the court finds it appropriate to do so.
- Therefore, the procedural non-compliance of sub-s. 402B(6) was merely an irregularity and not an illegality and was curable under s. 422 of the CPC.
5) Whether defence could refer to an unsigned witness statement under S.402B CPC - PP v Najib Razak (HC, 2020):
- Section 402B clearly states that such a statement is admissible subject to the conditions set out in sub-s. (2)(a) which include the statement is signed by the witness.
- OTF however the defence seeks to refer to the unsigned or draft witness statement given to the defence earlier to attempt to show differences when compared against the witness statement which was read out and signed.
- As such, since the defence did not intend to rely on the unsigned version to be admitted under s. 402B as a witness statement, but merely wanted to use or make reference to the unsigned version, just like the defence being able to refer to other documents attributed to PW54 to cross examine her (without these documents necessarily being admitted in evidence), s. 402B would not be applicable.
32
OTHER FORMS OF EVIDENCE
Admission
S.402C
33
RE-CALLING OF WITNESS
Overview
1) Power to summon witness
2) Test to exercise discretion
3) Recent case
34
RE-CALLING OF WITNESS
Power to summon witness
1) The law - S.425:
- powers of court to summon or examine a person.
2) Discretion - Loke Poh Siang v PP:
- Court has an absolute discretion in calling or re-calling a witness even after the close of P's case to rectify an omission on P's case.
- H/ever, court must be cautioned to exercise the discretion judicially and not to prejudice the accused.
3) Power to call in other provision:
- S.138(4) EA - re-calling may be permitted for the purpose of further e-i-c or c-e.
35
RE-CALLING OF WITNESS
Test to exercise discretion
Ramli bin Kechik v PP:
- The question to be asked under s. 425 is whether the additional evidence was essential to the just decision of the case.
- OTF , it was held that it is necessary for the PP to prove that the opium had been extracted from PSL species in order to constitute "raw opium" within S.2 DDA as the profile test is newly discovered in Japan.
- Without the profile test, there was no positive evidence that the exhibits were or were not raw opium within the meaning of the Act.
36
RE-CALLING OF WITNESS
Recent case
CA, 2019
Saravanan Rajagopal v PP (CA, 2019):
- The powers under s. 425 is discretionary.
- There must be some basis for the court to exercise its discretion;
- the main consideration being the essentiality of the additional evidence of the recalled witness to the just decision of the case.
1) Ref. PP v. Abdul Hamid:
- this power must be exercised with the outmost caution;
- only where the evidence of that person appears to the Court essential to the just decision of the case the power ought to be exercised.
2) Ref. PP v. Phon Nam:
Section 425 - first limb:
- a discretionary provision which provides that the Court may, on an application, summon any person as a witness or recall and re-examine any person already examined at any stage of any inquiry, trial or other proceeding under the Code.
- In exercising the discretion under the first limb, the Court must proceed with utmost circumspection especially when there was likelihood of the fresh evidence proving to be prejudicial to the accused.
Section 425 - second limb:
- an imperative provision which requires the Court to do so where the Court is satisfied that the evidence to be summoned would appear to the Court to be essential to a just decision of the case.
37
RE-CALLING OF WITNESS
xx
xx
38
MISCELLANEOUS IN PROSECUTION CASE
Overview
1) Impeachment proceedings
2) Where the accused did not understand the proceedings
3) Inability of presiding judicial officer to continue the trial
4) Prosecutor declines to prosecute further
5) Powers of court to discharge at any stage
39
MISCELLANEOUS IN PROSECUTION CASE
Impeachment proceedings
1) The law:
- S.155 EA
- S.145 EA
2) Scope - Pathmanabhan Nalliannen v PP:
By virtue of S.155, the credit of a witness may be impeached by:
- Evidence from other persons;
- Proof that the witness has been bribed;
- Proof of inconsistent former statements made by him.
S.145(1) provides that:
- a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without the writing being shown to him or being proved;
- but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
40
MISCELLANEOUS IN PROSECUTION CASE
Where the accused did not understand the proceedings
1) The law:
- S.258: General procedure where accused does not understand the proceedings.
- S.270: Interpretation of evidence to the accused.
2) Duty of court - general - Re Beda:
- It is a duty of court & obligatory for the court to make the necessary inquiry & endeavours to find out if the accused is can be made to understand the proceedings.
3) Test for breach of S.270 - Fidelis Daniel Enechukwu v PP:
- Test is whether the accused has been denied rights to fair trial
41
WHERE THE ACCUSED DID NOT UNDERSTAND THE PROCEEDINGS UNDER S.258
Example
Muhd Haslam Abdullah v PP:
- By virtue of S.258, it behooves a High Court to assess and ascertain that an OKU accused in able to understand the proceedings and participate meaningfully with the assistance of an assigned counsel.
42
INTERPRETATION OF EVIDENCE TO THE ACCUSED UNDER S.270
Example
Fidelis Daniel Enechukwu v PP:
- The court doubted whether the accused actually understood the proceedings and of what the witnesses were testifying against him in Malay.
- In this regard, it was found that the provisions of s. 270 had been breached.
- The concern of the trial judge that the services of the Nigerian interpreter would have to be paid for by the court was an irrelevant consideration.
- In the circumstances, the accused had been deprived of a fair trial when the evidence of the witnesses was not translated to him.
- Appeal allowed, re-trial ordered.
43
MISCELLANEOUS IN PROSECUTION CASE
Inability of presiding judicial officer to continue the trial - overview
1) The law & scope
2) Meaning & scope of cease to exercise jurisdiction
3) De novo or where it has been left?
4) Recent case
44
INABILITY OF PRESIDING JUDICIAL OFFICER TO CONTINUE WITH THE TRIAL
1) The law:
- S.261
2) Scope - Yap You Jee v PP:
- When SCJ or Magistrate becomes unable to continue with the trial, the new SCJ or Magistrate is conferred with discretion to either continue hearing case from where it is left or to hear from the beginning (de novo).
3) Scope - PP v Goh Chooi Guan:
- Ref. S.261: when the SCJ or Magistrate is transferred to other state, the succeeding Sessions Judge has a complete discretion to either hear the case de novo or to continue from the point where it has been left by the previous Sessions Judge.
45
INABILITY OF PRESIDING JUDICIAL OFFICER TO CONTINUE WITH THE TRIAL
Meaning & scope of cease to exercise jurisdiction
PP v Goh Chooi Guan:
1) Transfer to different place or district:
- Do not cease to exercise jurisdiction.
- Can apply to continue to hear the part heard case.
2) Transfer to the post of Senior Federal Counsel or Deputy Public Prosecutor:
- Do not ceases to have jurisdiction, can apply continue to hear part-heard case.
- However, observe the likelihood of bias when he is transferred to the post of DPP.
- When he or she became the DPP, there was a likelihood of bias and the accused may be prejudiced.
- The accused may apply to disqualify the judge (which is now a DPP) from hearing the case.
3) Death, resignation or retirement:
- A Magistrate ceases to have jurisdiction in a criminal case by his untimely death, retirement or resignation.
- In such a case, S.260 will apply.
46
INABILITY OF PRESIDING JUDICIAL OFFICER TO CONTINUE WITH THE TRIAL
De novo or continue from where it has been left?
1) Gunasekaran Buchia v Pendakwaya Raya:
General rule:
- de novo, i.e. hearing it from beginning.
Exception:
- continue hearing part-heard case, only in exceptional circumstances.
Example of exceptional circumstances:
- Evidence given is merely formal;
- Evidence given is not controversial in nature;
- Credibility of witness was not questioned.
2) Recent - Recent - Lai Weng Keat v PP (FC, 2016): )
- Can be heard & continued from where it is left where the facts of the case are straightforward and the credibility of the witnesses are not crucial.
- H/ever, must hear de novo if the the demeanour and credibility of the witnesses who had given evidence earlier are crucial or becomes an issue.
- Apart from hearing de novo, can also recall the relevant witnesses to ensure that the succeeding Magistrate or Judge is able to assess personally the demeanour and credibility of the relevant witnesses.
47
INABILITY OF PRESIDING JUDICIAL OFFICER TO CONTINUE WITH THE TRIAL
Recent application
CA, 2015
Yap You Jee v PP (CA, 2015):
- S.261 does not apply in the case of transfer of the Magistrate to another state.
- Where a Magistrate or a Sessions Judge has been transferred to another state, he retains the jurisdiction in the matter and he may continue and complete the cases that he has heard partly.
- However, to save time and money and to expedite the disposal of part-heard cases, instead of hearing de novo, the succeeding Magistrate or Sessions Judge may continue the trial from where the predecessor left, instead of de novo.
- It has been a practice for the Chief Judge or the Chief Registrar to decide on whether the part-heard cases would be completed either by the previous presiding Magistrate or Sessions Judge or by his successor;
- This decision or 'directive' was purely administrative, given with the primary purpose to speed up the disposal of the part heard cases.
- The "directive" which was given administratively could not and did not fetter the discretion of the succeeding Magistrate or Sessions Judge provided for under s. 261.
48
MISCELLANEOUS IN PROSECUTION CASE
Prosecutor declines to prosecute further - law & scope
1) the law:
- S.254
2) scope - Goh Cheng Chuan v PP:
- Decision of whether or not to prosecute further the accused on the charge is on the PP to make.
- It is then for the Court to decide whether it should direct that the discharge shall amount to an acquittal.
49
PROSECUTOR DECLINES TO PROSECUTE FURTHER
DNAA or DAA?
1) PP v Mat Zain:
- When a charge is withdrawn and the accused is discharged, the discharge should amount to an acquittal;
- This is unless a good cause is shown for otherwise.
2) K Abdul Rasheed v PP:
- Court must bear in mind & give due regard to the right of prosecution to proceed at a later stage;
- Unless some good grounds are shown, it would not be right to leave an individual hanging with the charge in which proceedings are stayed for an indeterminate period;
- Each case has to be dealt with on its merits, with the court bearing mind the public interest & the right of the individual.
3) Koh Teck Chai v PP:
- power to discharge when the discharge is not amounting to acquittal shall be exercised sparingly and grudgingly;
- it should be exercised only where the court is satisfied for good cause shown that the public interest insistently demands that it be used
- unless some very good ground is shown, it would not be right to leave an individual hanging on a charge for indefinite period, i.e. unless some good grounds is shown, discharge should be amounting to an acquittal.
50
MISCELLANEOUS IN PROSECUTION CASE
Power of court to discharge at any stage
1) The law & scope:
- S.173(g): Gives power to court to discharge on the grounds that charge is groundless.
2) Circumstances to discharge - PP v Zalili bte Mustapha:
Magistrate may only grant discharge under three circumstances:
- When the prosecution declines to prosecute - S.254;
- When the complainant is absent on the day fixed for hearing in a private prosecution initiated under S.133.
- Where the charge is groundless - S.173(g).
2) When can power be exercised - Kuppusamy & Ors v PP:
- The earliest stage at which a Magistrate can acquit an accused is after hearing all the evidence for the prosecution.
3) Discharge at early stage - Soon Tiew Choon v PP:
- W/o hearing evidence, it is not open to Magistrate to acquit.
4) General guidelines to order for discharge - PP v Zalili binti Mustapha:
- Investigations have completed, but PP is not ready to proceed due to unavailability of witness = adjournment (PP v LS Pererra);
- Investigations have not completed & PP is not ready with their case = reasonable to infer the charge is groundless & grant DNAA (PP v Tan Kim San);
- Prosecution conducted by person not empowered to do so = not groundless & no DNAA / DAA (Pendakwa Raya v. Loo Tee Maw);
- Failure to supply certain documents to defence = not groundless & no DNAA / DAA (PP v Au Seh Chun);
Absence of prosecuting officer = not groundless & no DNAA/DAA (PP v Mat Radi).
4) Other factors to be taken into account:
- Whether the police has completed investigation.
- Whether the attendance of witness can be procured without undue delay.
- Whether the prosecution has a ground to prefer a charge.
51
POWERS OF COURT TO DISCHARGE
Examples
1) Incomplete police investigation - PP v Tan Kim San:
- if police investigation is not complete, the charge is groundless.
- therefore it is appropriate to discharge the accused.
2) Absence of witnesses - PP v LS Pererra:
- Where witnesses cannot be found or traced, it would be a proper exercise of power to adjournment rather than granting DNAA.
3) Absence of witness - cf. PP v David Noordin:
- PP should complete & proceed with the case within a reasonable time;
- If the attendance of the witnesses cannot be procured within reasonable time, even after several adjournments, it would be appropriate to grant such discharge;
- The accused should only be re-arrested, if at all, when the prosecution is in position to proceed with the trial.
4) Old case - PP v Zalili bte Mustapha:
- The fact that it is an old case, by itself, cannot render a charge groundless;
- Police investigation completed - postponement.
- Police investigation is yet to be completed - DNAA.
52
END OF PROSECUTION CASE
Overview
1) Submission of no case to answer
2) Prima facie case
3) Powers to discharge before prima facie
53
END OF PROSECUTION CASE
Submission of no case to answer
1) Right of defence to submit no case - Lee Kwan Woh v PP:
- right for an accused to submit a no case to answer is a constitutional right;
- he or she may waive the right but he cannot be deprived of the right.
If the court refused to hear the submission, the accused is deprived of a fair trial & in breach of Art. 5(1) FC.
2) Right of PP to reply - PP v Ang Poon Tek:
- PP has a right to reply.
- Refusal to allow a reply is a material irregularity;
- Retrial could be ordered on the ground.
54
PRIMA FACIE CASE
Overview
1) The law & scope
2) Standard of proof for prima facie
3) Grounds of judgment for finding prima facie case
4) Whether order to enter defence is appealable
5) Alteration of charges
6) Grounds of judgment for finding prima facie case when the charge is altered
55
PRIMA FACIE CASE
The law & scope
1) The law:
- S.173(f) & (h)
2) Scope:
- There is no prima facie - S.173(f)(ii): order for acquittal
- There is prima facie - S.173(h)(i): order to enter defence
56
PRIMA FACIE CASE
Standard of proof for prima facie - law & scope
1) The law:
- S.173(h)(iii)
2) Scope:
- The prosecution has adduced credible evidence;
- Which if unrebutted or unexplained would warrant a conviction.
57
STANDARD OF PROOF PRIMA FACIE CASE
Case laws on standard of proof
1) Magendran Mohan v PP:
- test for prima facie case is based on the maximum evaluation of evidence;
- if the evaluation results in doubts in the P's case; no prima facie.
- D ought not to be called just to clear or clarify such doubt.
2) PP v Mohd Radzi Abu Bakar:
- at the close of P's case, evidence is subjected to a maximum evaluation;
- if two inferences are withdrawn, inference that is more favourable to the accused must be drawn;
- ask question: if D elects to remain silent, would I convict him? yes - prima facie established. no - prima facie not established.
- if D is called to enter defence and he remains silent - court MUST convict him (Balachandran v PP)
58
PRIMA FACIE CASE
Grounds of judgment for prima facie case
1) Junaidi bin Abdullah v PP, ref. to recently in PP v Najib Razak:
General rule:
- there is no statutory provision requiring a judge to record his reason before calling the accused to enter his defence or to state his findings on the credibility of main prosecution witnesses.
- In uncomplicated cases, it is not obligatory or even necessary to do so.
- it should be assumed that the trial judge have been satisfied that the prosecution had established a prima facie case when calling the accused to enter defence.
Exceptions as matter of practice:
- where there is a particular reason for doing so, such as where a submission to answer has been made in a complex case, or
- where the accused is called to enter a defence on a lesser or alternative charge, judges do sometimes give their reasons.
59
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60
PRIMA FACIE CASE
Whether order to enter defence is appealable
1) General - Saad bin Abas v PP:
- it is trite that an order for the accused to enter his defence is NOT appealable.
2) But, order to enter defence on a lesser charge may be appelable by the PP (conflicting views)
PP v Letchumanan Suppiah (FC, 2009):
- Prosecution can appeal against this decision since the decision means that accused has been acquitted of the trafficking charge so it is a final decision within S.3.
cf. Mohamad Ali & Ors (CA, 2018):
- the decision of the learned trial judge in reducing the charge is not a decision within the meaning of s. 3 of the CJA and is not appealable.
61
PRIMA FACIE CASE
Alteration of charges
1) The law - S.173(h)(ii):
- court can amend charge upon prima facie
2) Power to amend - PP v James Tan:
- when the facts do not establish a prima facie case against the accused on the charge preferred against him;
- but discloses another offence for which he is not charged;
- learned SC judge or Magistrate ought to amend the charge unless he has good reason not to do so.
3) Re-calling of witnesses after amendment - Hassan v PP:
- re-calling of a witness shall be allowed unless it is vexatious or frivolous.
62
PRIMA FACIE CASE
Grounds of judgment for prima facie case when the charge is altered
Yap You Jee v PP:
- There is no statutory provision requiring a trial judge to prepare grounds of judgment in finding a prima facie case and in calling for the defence.
- Even when the charges are altered, the test is whether the failure to prepare grounds of judgment has occasioned failure of justice to the accused & whether the accused has been prejudiced for not being able to put up their defences properly.
- As long as the accused know what was it that he had to answer in his defence, the accused is deemed to not be prejudiced.
63
DEFENCE CASE
Overview
1) Right of accused
2) Three electives
3) Amendment of charge
4) Entering defence & Calling of witness
5) Taking of evidence
6) Examination of witness
7) Re-calling of witness
8) Evidence in rebuttal
64
RIGHT OF ACCUSED
Overview
1) To be defended
2) To be explained of principle point
3) To not be subjected to adverse criticism for failure to give evidence
65
RIGHT OF ACCUSED
To be defended
1) The law:
- S.255
2) Breach of S.255 - Ogbodo Sunday Tochukwan v PP:
- When the trial judge had ignored the requirement of a fair trial, he had breached the essence of s. 255 of the CPC.
- Although S.255 is not a mandatory provision, a greater latitude ought to be given to the accused charged with capital offence to adequately prepare and properly defend their case.
- Anything short of the requisite norm would occasion a miscarriage of justice.
66
RIGHT OF ACCUSED
To be explained of principal points
1) The law:
- S.257
2) Failure to comply:
General rule - Shaari v PP:
- Failure to comply with S.257 is curable under S.422;
- as long as it had not occasioned any prejudice & does not adversely affect the accused.
General rule - Lokhman bin Abu v PP:
- As long as the accused had not been prejudiced in his defence, the failure by the Magistrate to comply with the provision of the section is an omission curable under section 422.
Exception - Azahan Mohd Amirullah v PP:
- When the charges are serious;
- When the particulars of charges are insufficient & has the effect on the accused’s defence such as alibi.
- it was then become incumbent upon the sessions court to discharge the function mandated by s. 257(1).
3) Recent application - Ogbodo Sunday Tochukwan & Ors v PP:
- CA held that the failure by the learned trial judge to comply with the requirement under s. 257(1) of the CPC has immensely prejudiced the second accused.
67
RIGHT OF ACCUSED
To not be a subject of criticism for failure to give evidence
S.257(2):
- Failure to give evidence shall not be the subject of criticism for the prosecution.
68
THREE ELECTIVES
Overview
1) The law & scope
2) To give sworn evidence
3) To give unsworn statement
4) To remain silent
69
THREE ELECTIVES
The law & scope
1) The law:
- S.173(ha)
2) Failure to explain, general :
- Depends on whether the accused is represented;
- Whether it has caused a failure of justice.
3) Failure to explain - accused is represented - Hamzah bin Osman v PP:
- failure to explain the three electives is not fatal;
- as the accused has advices from experience legal counsel.
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TO GIVE SWORN EVIDENCE
Effect of giving sworn evidence
PP v Wong Yee Sen:
- PP is entitled to cross-examine the accused;
- where the accused has made any previous statement to the police;
- accused can be impeached or cross-examined based on his own previous statement.
NOTE:
- Accused can only be impeached or cross-examined based on his previous statement if he is charged under DDA - S.37B DDA.
- Accused cannot be impeached or cross-examined based on his previous statement if he is charged under Penal Code - S.113(2).
71
TO GIVE UNSWORN STATEMENT
Effect of giving unsworn statement
Ip Ying Wah v PP:
- When an accused elected to make unsworn statement; he is NOT liable for cross-examination.
72
TO GIVE UNSWORN STATEMENT
Whether unsworn statement is evidence
1) Azahan bin Mohd Aminallah v PP (CA, 2004):
- For the purposes of a trial, an unsworn statement from the dock is ‘evidence’.
- Hence, an accused who elects to make an unsworn statement from the dock “elects to give ‘evidence’”.
- in the context of s. 257(1) the critical phrase is “elects to give evidence” and not “elects to give evidence on oath”
- therefore, accused who elected to make unsworn statement from the dock has the right to be explained on the case for prosecution under S.257.
2) cf. Nguyen Quoc Viet v PP (CA, 2016):
- An unsworn statement is not evidence as it is not given under oath and the accused cannot be cross-examined on his unsworn statement.
73
TO GIVE UNSWORN STATEMENT
Weight of unsworn statement
1) Nguyen Quoc Viet v PP (CA, 2016):
- Unsworn statement carries little weight as he is not subject to cross-examination by the prosecution nor can he be questioned by the trial judge.
- However, the unsworn statement must be evaluated by the trial judge although it may not be evidence and carries little weightage;
- Judge has to consider whether it has not or it has nevertheless created a reasonable doubt upon the prosecution's case;
- Court has to consider surrounding circumstances and other available evidence that may corroborate the unsworn statement.
2) cf. DSAI v PP (FC, 2015):
- Although a statement from dock is an evidence, it is not entitled to the same weight as a sworn testimony.
74
TO REMAIN SILENT
The law & scope
1) The law:
- S.173(ha)(iii)
2) No criticism - S.257(2):
- failure to give evidence should not be a subject of criticism.
3) Adverse inference - Goh Ah Yew v PP:
- No adverse inference can be drawn against the accused if he elected to remain silent.
- He is at liberty to offer evidence or not as he thinks proper and no inference unfavourable to him can be drawn because he adopts one course rather than the other.
4) Conviction if he calls no other evidence - Balachandran v PP:
- The court, in ruling that a prima facie case has been made out, must be satisfied that the evidence adduced can be overthrown only by evidence in rebuttal it follows that if it is not rebutted it must prevail.
- Thus, if the accused elects to remain silent he must be convicted.
- There will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration.
75
AMENDMENT OF CHARGE
Overview
1) The law & scope
2) Failure to explain
3) Pleading to amended charge
4) Entering defence to amended charge
76
AMENDMENT OF CHARGE
The law & scope
1) The law:
- S.173(i)
- S.158(2)
2) Scope:
- Amended charge must be explained to the accused:
- Test:
* Whether the amendment made is purely technical;
* Whether the amendment made is substantial;
* Whether it has occasioned failure of justice.
77
AMENDMENT OF CHARGE
Failure to explain
1) Singah Mohamed Hussin v PP:
- Omission to read and explain the amended charge is an irregularity not curable under S.422.
- It was in contrary to the requirement of S.173
2) cf. Hee Nyuk Fook v PP:
- The provision of section 158(ii) is not imperative but directory.
- The nature of the amendment is purely technical and not substantial;
- It has not rendered the omission to read over and explain the amended charge to the applicant at the close of the defence a serious irregularity as to vitiate the proceeding or has occasioned a failure of justice.
- Failure to explain is curable under S.422.
3) Argument:
- amendment of charge in Hee Nyuk Fook is made under S.158(2) & in Singah is at the end of defence case.
- Thus, it may depend on the stage of the case where amendment is made but essentially is whether the failure to explain the amendment has caused miscarriage of justice.
78
AMENDMENT OF CHARGE
Pleading to amended charge
- S.173(j)(i)
79
AMENDMENT OF CHARGE
Entering defence to amended charge
Does not plead guilty:
- S.173(j)(ii)
80
ENTERING DEFENCE & CALLING WITNESS
Overview
1) The law & scope on entering defence
| 2) Summoning witness
81
ENTERING DEFENCE & CALLING WITNESS
The law & scope
1) The law:
- S.173(j)(iii)
2) Calling & recalling of witness:
- Calling: S.273(j)(iii)
- Recalling - Hassan v PP:
re-calling of a witness shall be allowed unless it is vexatious or frivolous.
82
ENTERING DEFENCE & CALLING WITNESS
Summoning witness
1) The law:
- S.173(l)
2) Form of witness summons:
- Form 31, Schedule 2.
3) Refusal to summon - Harbans Singh Sidhu v PP:
- non-compliance & refusal to summons is not a ground for vitiating the conviction of the accused unless there has been failure or miscarriage of justice.
4) Duty of court - Bissay v R:
- to ensure due execution of the summons & warrant
5) Refusal to obey summons:
- Issue the warrant under S.47.
6) Refusal to obey to a subpoena: S.174 PC - R v Tan Sim Ha
- Liable for an offence under S.174 PC.
7) Refusal to obey subpoena - witness cannot be located - Karumah v PP:
- Proper recourse is to grant adjournment under S.259.
83
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TAKING OF EVIDENCE
Overview
1) Accused evidence must be taken first
| 2) Written statement
85
TAKING OF EVIDENCE
Accused evidence
1) Proviso to S.173(j)(iii):
- Accused's evidence shall be taken before other witness.
2) Rationale - R v Smith (Joan):
- If an accused elects to give evidence, he should be called first before any of his witnesses.
- This is so as witnesses as to fact on each side should remain out of court until they are required until they are required to give evidence to protect witness credibility.
3) Application - PP v Mohamed Azmin Ali:
- HC on revision applied R v Smith (Joan);
- An accused person cannot be kept out of the court like other witnesses.
- He would have to give evidence first before he hears the examination and cross-examination of his witnesses.
- Otherwise he might be accused of having trimmed his own evidence to suit the evidence he has heard of his own witnesses.
- Having his evidence heard first helps to protect his credibility.
86
TAKING OF EVIDENCE
Written statement
1) The law:
- S.173(k)
2) Scope:
- Written statement of accused shall be put into the record.
3) Counsel may assist - Abdullah Jacomah v PP:
- Counsel is permitted to assist the accused in preparation of the written statement.
4) Whether written statement is evidence - R v Tuti Babu:
- No doubt when a written statement is put in on behalf of the defence a Court should give due consideration to it, but it does not necessarily follow that everything stated therein is necessarily legal evidence.
- A written statement filed on behalf of an accused is not a statement made by a witness nor can it be treated as a document produced for the inspection of the Court within the meaning of s. 3, Evidence Act.
- Therefore, it is safe to say that statement of the accused is not strictly evidence even though the Court may consider it.
87
EXAMINATION OF WITNESS
Overview
1) Stages of examination
2) Right of prosecution to cross-examine
3) Re-examination of witness by defence
88
EXAMINATION OF WITNESS
Stages of examination
S.138 EA:
- EIC;
- Cross-examination;
- Re-examination.
89
EXAMINATION OF WITNESS
Right of prosecution to cross-examine
PP v Loh Keng Koh:
- The prosecution has a right to cross-examine the witness called by the defence.
- The deprivation of such right results in miscarriage of justice & order of acquittal must be set aside and retrial must be ordered.
90
EXAMINATION OF WITNESS
Re-examination of witness by defence counsel
PP v Lee Pak:
- it is only elementary justice that a witness if he so desires should be given a fair opportunity to amplify or clarify the answers which have been extracted from him under cross-examination.
- He has an absolute right to have the whole of his evidence fully and fairly put before the Court.
91
RE-CALLING OF WITNESS
Circumstances where re-calling of witness may be allowed
1) S.417(4) - when the case is transferred.
2) S.425 - general power of court to summon witness at any stage of proceedings.
3) S.162 - re-calling of witness when charge is altered.
4) S.173(j)(iii) - re-calling of witness during defence case.
5) S.138(4) EA - re-calling may be permitted for the purpose of further e-i-c or c-e.
92
EVIDENCE IN REBUTTAL
Overview
1) General principle
2) Test to allow for rebuttal evidence
3) Power of court to summons witness & test to invoke the power to call for rebuttal evidence
4) Recent case on rebuttal evidence
93
EVIDENCE IN REBUTTAL
General principle
PP v Chia Leong Foo:
- prosecution must present its case completely before closing its case;
- this includes negating the defence case as suggested to the prosecution witnesses in cross-examination.
94
EVIDENCE IN REBUTTAL
Test to allow for rebuttal evidence
PP v Chia Leong Foo:
- The calling of evidence in rebuttal by the prosecution is allowed only in very special and exceptional circumstances.
Examples:
- an accused relies on a special defence.
- to rebut a fresh material contained in the defence case.
- to deal specifically with the matters not previously put.
95
EVIDENCE IN REBUTTAL
Power of court to summons witness & invoking the power to call for evidence in rebuttal
Saravanan Rajagopal v PP (CA, 2019):
- The powers under s. 425 is discretionary.
- There must be some basis for the court to exercise its discretion, the main consideration being the essentiality of the additional evidence of the recalled witness to the just decision of the case.
- only where the evidence of that person appears to the Court essential to the just decision of the case the judge ought to exercise the power.
96
EVIDENCE IN REBUTTAL
Recent case
HC, 2020
PP v Najib Razak:
- The accused applied to have the disputed exhibits examined by a handwriting expert.
- The prosecution opposed this application, arguing that this was an afterthought position taken by the accused, especially since these documents had been supplied under s. 51A well before the trial started.
- Judge held that it was a proper case for the court, and that it is essential to the just decision of the case to allow the prosecution to call rebuttal witness under s. 425 of the CPC should it wish to do so, in relation to the evidence that may be given by the expert document examiner, should this expert be called by the defence.
97
END OF DEFENCE CASE
Overview
1) Submission by prosecution
2) Add or alter charge at the end of defence case
3) Conclusion of trial
4) Delivering judgment
98
END OF DEFENCE CASE
Submission by prosecution
1) The law:
- S.174(c)
2) Whether it is mandatory - Diana Nelson Tanajo v PP (FC, 2010)
- It was not mandatory for the trial judge to hear submission from counsel before giving his decision.
- The word 'may' indicates a discretion.
- Therefore, submission at the end of the defence case was discretionary.
- Submission was not evidence and hence the judgment was not defective.
3) Roslan bin Maalik v Pendakwa Raya (HC)
- The accused has the choice to make submissions at both stages of proceedings, ie, at the close of the prosecution to the effect that the prosecution has failed to establish a prima facie case, and at the close of the defence case to the effect that the prosecution has failed to prove a case beyond reasonable doubt.
- If the accused elects not to make any submissions at the close of either stages of the trial, then there is no requirement for the court to hear any submissions & thus the law does not mandate the court to hear submissions.
- However, if the accused elects to address the court at the close of either stage of proceedings, then it is incumbent for the court to afford that right to the accused.
- The failure to accord the accused this right, if he so elects to sum up the case, would be a violation of the accused's constitutional rights to a fair trial as embodied in art. 5(1) of the Federal Constitution.
99
END OF DEFENCE CASE
Add or alter charge at the end of defence case
1) The law:
- S.158
2) Whether charge can be altered at close of defence - PP v Salamah:
- the proper time to amend a charge is at the close of the prosecution as expressly provided by s 173 (h).
- Although it is true that a charge can be altered at any stage by virtue of S.158, if it is to be done after the close of the defence, it should not be prejudicial to the accused.
100
CONCLUSION OF TRIAL
Overview
1) The law
2) Scope of all evidence
3) Failure to consider all evidence
4) Duty of judge
5) Between finding of guilt & sentence
6) Acquit
7) Discharge
8) Convict
9) Sentencing
10) VIS
101
CONCLUSION OF TRIAL
The law
S.173(m)(i)
102
CONCLUSION OF TRIAL
Scope of all evidence
HC, 2020
PP v Najib Razak
- “all evidence is not limited to the evidence in the prima facie findings”.
- The duty of the court is to evaluate the totality of all the evidence adduced in the whole case in determining whether the prosecution has made out a case BRD against the accused.
- i.e. whether the prosecution has proved the case BRD: guidelines in Mat v PP has to be observed in determining so.
- i.e. whether presumption if invoked, has been rebutted on a balance of probabilities.
103
CONCLUSION OF TRIAL
Failure to consider all evidence
1) Unsafe conviction -
Prasit Punyang v PP (CA, 2015):
Failure to consider all evidence is a serious non-direction which amounts to a misdirection rendering any conviction to be unsafe.
2) Conviction is liable to be set aside - Kamran Nemati Hossein (CA, 2015)
- A failure to consider all evidence renders any conviction and sentence liable to be set aside on appeal
104
CONCLUSION OF TRIAL
Duty of judge
1) Duty - Mat v PP:
- At the end of the defence case, judge should ask & decide the following:
* if you are satisfied BRD as to the accused's guilt: convict.
* if you accept or believe accused's explanation: acquit.
* if you do not accept or believe accused's explanation & the explanation does not raise a reasonable doubt as to his guilt: convict.
* if you do not accept or believe accused's explanation but the explanation raise a reasonable doubt as to his guilt: acquit.
2) Standard of proof:
- Direct evidence: beyond reasonable doubt.
- Circumstantial evidence: beyond reasonable doubt, but observed the three-pronged test.
3) Standard of proof - PP v Yuvaraj:
- prosecution has the burden to prove its case beyond reasonable doubt.
4) Meaning of BRD - Miller v Minister of Pensions:
- It need not reach certainty, but a very high degree of probability.
- Prosecution needs to adduce evidence that is so strong against a person that leaves only a remote possibility in his favour.
5) Scope of proof beyond reasonable doubt - Balachandran v PP:
- Proof beyond reasonable doubt involves two aspects.
- One is the legal burden on the prosecution to prove its case beyond reasonable doubt, the other is the evidential burden on the accused to raise a reasonable doubt.
- Both these burdens can only be fully discharged at the end of the whole case when the defence has closed its case.
- A case can be said to have been proved BRD only at the conclusion of the trial upon a consideration of all the evidence adduced.
105
CONCLUSION OF TRIAL
Between finding of guilt & sentencing
1) Conviction can only come AFTER plea of mitigation - Maung Ming Aung v PP:
- Conviction may ONLY be recorded AFTER considering plea of mitigation.
- this is to allow consideration whether the facts warrants a lenient statement under S.173A.
2) Submission by prosecution on the previous conviction & previous record of the accused to aggravate sentence:
- S.400: how previous conviction or acquittal may be proved.
- S.253: procedures where there are previous convictions.
- S.442: evidence of previous conviction.
106
CONCLUSION OF TRIAL
Acquit
S.173(m)(iii):
- If the case is not proven beyond reasonable doubt;
- The court shall record an order for acquittal.
107
CONCLUSION OF TRIAL
Discharge
1) The law:
- S.173A: court has the power to discharge conditionally or unconditionally.
2) Scope:
- There is no record of conviction: S.173A(2)
- Does not apply to serious offences: S.173A(8), i.e. S.52B PC: offence punishable with imprisonment for a term of ten years or more.
3) When does it come - Re Badri Abas:
- Court should not proceed to conviction if he intends to invoke this.
- It is however, cannot claim as of right & entirely within the discretion of the court.
Regard must be given to factors under (2), i.e antecedents, age etc.
4) How can it be exercised - PP v Loo Choon Fatt:
- Discretion must be exercised judicially, i.e. not just because the accused is a youth.
the trivial nature of the offence that aggravate the circumstances must be taken into account.
5) The law: S.294
- Binding-over for first offenders.
- There is record of conviction: S.294(1).
6) Difference between S.173A & S.294 - Public Prosecutor v. Yeong Yin Choy:
- section 173A is normally intended to be utilised in cases of minor import and calling for exceptionally mild treatment affecting adult and youthful offenders alike;
- the nature of the offence, the extenuating circumstances of the case and factors peculiar to the offender in question justify and require that no conviction be recorded against him;
- This is so that although he is either admonished or cautioned or discharged conditionally as provided therein there remains no blemish or stain against him by reason of a conviction being recorded.
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CONCLUSION OF TRIAL
Convict
1) General rule - Maung Ming Aung v PP:
- Conviction can only come after plea of mitigation;
- i.e. for consideration to invoke discharge provision under S.173A & S.294.
2) Exception - PP v Najib Razak:
- When S.294 or S.173A is not applicable (i.e. in the case of serious offence within S.52B PC), there is no need to record a conviction after hearing plea of mitigation.
- This is because the reason why Maung Min Aung v. Public Prosecutor ruled that the mitigation plea should precede a conviction is to enable the court to decide whether the sentence is one that must carry with it a conviction, which is not applicable to cases where S.173A & S.294 is not applicable (i.e. in the case of serious offence).
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CONCLUSION OF TRIAL
Sentencing
1) The law:
- S.173(m)(ii)
2) Sentence according to law - Jafa bin Daud:
- 'pass sentence accordingly’.
within the ambit of punishable section, i.e. sentencing court must keep within the maximum punishment as well as within its sentencing jurisdiction.
- assessed and passed according to established judicial principles, i.e. sentence to be imposed must be considered judiciously together with the sentencing policy for the particular offence, if any.
3) Sentence according to law - Zaidon Shariff v PP:
- The right to determine the quantum of punishment on a guilty party is absolutely in the discretion of the trial court.
court will exercise that power judicially and will not tolerate any encroachment or even semblance of encroachment by either the prosecution or the defence in respect of that right.
4) Meaning of established judicial principle - PP v Tan Fook Sum:
- these are retribution, deterrence, prevention & rehabilitation.
- established judicial principles require the court to balance the diverse and competing policy considerations.
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CONCLUSION OF TRIAL
Victim's Impact Statement
1) The law:
- S.173(m)(ii)
2) Object of VIS - Public Prosecutor v. Shahrul Azuwan Adanan & Anor:
- VIS will give the court a sense of what the victim or his family went through as a result of the offender's transgression into their private lives and to pass the appropriate sentence accordingly.
3) Whether presence of victim is mandatory - Muhammad Nuzul Ikhram & Ors v PP:
- VIS is admissible via police record and without the presence of the victim.
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DELIVERING JUDGMENT
Overview
see pg 153-154
1) The law & scope
2) Draft judgment
3) Brief judgment
4) Judgment in alternative
5) Supplementary grounds of judgment
6) Alteration of judgment
7) Delay in writing grounds
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DELIVERING JUDGMENT
The law & scope
1) Pronouncement of judgment:
- S.73 & Lim Beh v Opium Farmers: In an open court.
2) S.279:
- judgment to be explained to accused & copy to be supplied.
3) S.280:
- judgment to be filed with record of proceedings.
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DELIVERING JUDGMENT
Draft judgment
1) Draft grounds of judgment - Yusof Omar v PP (CA):
- It was not wrong for a trial judge in a prolonged trial beset with multiple issues of law to provide draft grounds for his decision.
2) Scope of draft judgments - PP v LGE:
- the points he jotted down when delivering his oral reasons for finding the accused guilty do not amount to a judgment in the sense in which it is used by the CJA, CPC or RCA.
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DELIVERING JUDGMENT
Brief judgment
Ong Keng Tat v PP (CA, 2015)
- it is not procedurally wrong for the learned JC to give a brief judgment at the end of the defence case.
- The brief judgment is meant for the court to state briefly its reasons for finding the accused (the appellant in this case) guilty at the end of the defence case.
- the brief judgment although was written, read and recorded did not make it a signed written judgment within the meaning of s. 307(3) CPC;
- Hence, the issue of two written judgments did not arise here.
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DELIVERING JUDGMENT
Judgment in alternative
1) the law:
- S.276
- S.72 PC
2) Scope:
- where it is doubtful which offence under the two sections has been committed.
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DELIVERING JUDGMENT
Supplementary grounds of judgment
Lorraine Phylis Cohen v PP:
- Since there was already a written judgment, signed and delivered, no second written judgment or grounds of decision could be delivered subsequently to supplement the first judgment.
- It is not competent for the learned Judge to supplement the first judgment by delivering a second judgment or ground of decision.
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DELIVERING JUDGMENT
Alteration of judgment
1) The law:
- S.278
2) Scope:
- No alteration except for clerical error.
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DELIVERING JUDGMENT
Delay in writing grounds
Tan Hun Wah v PP
- The delay can take the form of an abuse of process or may appear in various forms of prejudice or unfairness.
OTF, the delay of 3 years was wholly intolerable and made an utter farce of the proper and expeditious administration of justice.
