Chapter 12.1 - Procedures in Summary Trials Flashcards
PROCEDURES IN SUMMARY TRIALS
Overview
1) Trial - prosecution case
2) End of prosecution case
3) Trial - defence case
4) End of defence case
5) Conviction
6) Miscellaneous
PROSECUTION CASE
Overview
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
EVIDENCE IN PROSECUTION CASE
Overview
1) The law
2) Meaning of to take “all such evidence”;
3) Mode of taking evidence;
4) Exhibit evidence
EVIDENCE IN PROSECUTION CASE
The law & scope
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.
EVIDENCE IN PROSECUTION CASE
Meaning of to take all such evidence
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).
EVIDENCE IN PROSECUTION CASE
Mode of taking evidence
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:
EVIDENCE IN PROSECUTION CASE
Exhibits evidence
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.
CALLING OF WITNESS IN PROSECUTION CASE
Overview
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
CALLING OF WITNESS IN PROSECUTION CASE
The law & scope of powers to summons
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.
CALLING OF WITNESS IN PROSECUTION CASE
Duty of prosecution in calling witnesses
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.
CALLING OF WITNESS IN PROSECUTION CASE
Adverse inference against prosecution
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.
CALLING OF WITNESS IN PROSECUTION CASE
Whether it is necessary to call everyone that has been handling exhibits
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Overview
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
EXAMINATION OF WITNESS IN PROSECUTION CASE
Stages of examination
S.138 EA:
- EIC;
- Cross-examination;
- Re-examination
EXAMINATION OF WITNESS IN PROSECUTION CASE
Right to cross-examine
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Failure to cross-examine
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Duty to put case during cross-examination
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Failure to put case during cross-examination
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Recent application on putting case during cross-examination
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Refreshing memory
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Examples of document to refresh memory
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Power of court to put questions to the accused
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Recent application on power to court to put questions to accused
CA, 2012
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.
EXAMINATION OF WITNESS IN PROSECUTION CASE
Remarks as to demeanour of the witness
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.
OTHER FORMS OF EVIDENCE
Overview
1) Evidence of persons not called as a witness
2) Expert evidence
3) Witness statement
4) Admission
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.
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
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.
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.
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.
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.
OTHER FORMS OF EVIDENCE
Admission
S.402C
RE-CALLING OF WITNESS
Overview
1) Power to summon witness
2) Test to exercise discretion
3) Recent case
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.
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.
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.
RE-CALLING OF WITNESS
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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
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.
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
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.
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.
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
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.
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.
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.
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.
