Chapter 11 - Pre-Trial Processes Flashcards
PRE-TRIAL PROCESSES
Overview
1) Pre-trial conference
2) Case management
3) Plea bargaining
4) Disposal of case
5) Finality of judgment
6) Use of evidence for other purpose
7) Pleading guilty at any time before trial
8) Letter of Representation
PRE-TRIAL CONFERENCE
Overview
1) Effect of PTC
2) Facts agreed by parties
PRE-TRIAL CONFERENCE
Effect of PTC
PP v Robert Yee:
- Whatever that was agreed to in a pre-trial conference is binding on the prosecution as well as the defence unless there was material prejudice suffered by the accused.
PRE-TRIAL CONFERENCE
Facts agreed by parties
1) The law:
- S.172A(5) + S.172B(6)
2) Effect - Eling Anak Jambun v PP (CA, 2019):
- By virtue section 73AA EA & S.402C, the prosecution need not prove the facts as agreed by the parties under S.172A(5).
3) Non-compliace with S.172(5) - Navin Raj Naidu Gunasegaran v PP:
- The agreement of the prosecution and the defence counsel cannot derogate from the application of S.172A(5);
- If there is non-compliance, S.422 cannot be a cure.
- provisions on the PTC and CM ought to be strictly followed.
CASE MANAGEMENT
Overview
1) The law & scope
2) Admission of exhibits
3) Examples of exhibits
4) Setting date for trial
CASE MANAGEMENT
The law & scope
S.172B
CASE MANAGEMENT
Admission of exhibits
1) The law:
- S.172B(2)(vi)
- Order for discovery: S.51
2) Scope - Naveen Raj Naidu Gunasegaran v PP:
- Admission of exhibits is subject to the consent of the accused and his advocate;
- Agreement between the prosecution & the counsel for the accused is insufficient.
- Wrongful admission of exhibits cannot be cured under S.422.
3) Recent - Melinda Stevenson v PP (CA, 2020):
- Any exhibit to be admitted before the trial must be by consent of the accused and his advocate and agreed to before the commencement of the trial.
- In criminal trial, the procedure as provided under the CPC must be strictly adhered to.
- In the instant appeal, the learned JC allowed a procedure not provided under the CPC upon the request of the learned DPP that is so severe that it severed the chain of evidence.
- Conviction is set aside.
CASE MANAGEMENT
Examples of exhibits
1) Notice of alibi:
- S.402A
2) Expert evidence:
- S.399
3) Proof by written statement:
- S.402B
CASE MANAGEMENT
Setting date for trial
1) The law:
- S.172B(4): not later than 90 days from the date that the accused being charged.
2) PP v Najib Razak (FC, 2019):
- Appeal against a stay order by CA;
Submission by the PP:
- with the coming into force of s. 172B(4), the previous practice of delaying criminal trials for many years is a thing of the past.
- If trials are statutorily required to commence within three months, granting a stay will defeat this objective.
- Stay of a criminal trial should only be granted on exceptional grounds: that is sparingly so as not to defeat the purposive object of s. 172B(4) of the CPC for trials to start in three months.
Held by FC:
- allowing appeal; setting aside stay order by Court of Appeal; and remitting matter to High Court to proceed with criminal trial.
PLEA BARGAINING
Overview
1) The law & scope
2) Duty of court
3) Sentencing & plea bargaining
PLEA BARGAINING
The law & scope
1) The law:
- S.172C
2) Scope:
PLEA BARGAINING
Duty of court
1) The law:
- S.172B(2)(i).
2) Application - Manimaran Manickam 8 CLJ 439 (CA, 2011)
- The judges & magistrates are strongly advised to record the process of plea bargaining.
- uncertainty as to whether there was an understanding between the prosecution and the defence will lead to a doubt arose as to whether the plea of guilty by the respondent was an unqualified plea or otherwise.
PLEA BARGAINING
Sentencing & plea bargaining
1) Whether plea bargain fetter the discretion of the judge to pass sentence - PP v Abdul Malik Abdulah 1 CLJ 1008 (HC, 2013)
- Any agreement as to sentence does not fetter the discretion of the judge in imposing the appropriate sentence based on the circumstances of the case.
- the court does not consider it bound or obliged by the private bargaining between the prosecution and the defence.
- The right to impose punishment on a guilty party is absolutely the discretion of the court.
2) Sentence passed in breach of S.172C - Pendakwa Raya v Yap Sooi Loong:
- Where the plea bargaining is not recorded and conducted pursuant to S.172C, then no plea bargain exists in the eyes of the law.
- Any sentence passed in breach of S.172C is liable to be set aside.
DISPOSAL OF CASE
Overview
1) The law & scope
2) Whether discount is automatic
DISPOSAL OF CASE
The law
S.172D
Scope:
- Does not apply to offence under S.172D(3).
DISPOSAL OF CASE
Whether discount is automatic
Bachik Abdul Rahman v PP:
- This is not a strict rule and the court may, in the exercise of its discretion, refuse to grant any discount.
- The severity of the offence or the existence of a previous conviction may outweigh the mitigating effect of the guilty plea; so may the demands of public interest for a deterrent sentence as well as the absence of a good defence or of other mitigating factors.
FINALITY OF THE JUDGMENT
The law & scope
S.172E:
- there shall be no appeal except as to sentence.
USE OF EVIDENCE FOR OTHER PURPOSE
The law & scope
S.172F:
- statements made in plea bargain SHALL NOT be used in other purpose except for the application.
PLEADING GUILTY AT ANY OTHER TIME BEFORE TRIAL
The law & scope
S.172G:
- Shall be dealt under S.172D.
LETTER OF REPRESENTATION
Overview
1) What
2) Purpose
LETTER OF REPRESENTATION
What
- Aside the formal plea bargaining process, the accused person through his advocate may pursue with a Letter of Representation to the Public Prosecutor with cogent basis and full facts disclosed.
LETTER OF REPRESENTATION
Purpose
- to have charge withdrawn & offer to become a PW in case of joint trial;
- to have charge reduced for a lesser punishment;
- to plead guilty for a lesser charge;
- to plead guilty for one charge & withdraw remaining charges.
