Chapter 9 Management OF Trial PDF

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CHAPTER 9:MANAGEMENT OF TRIALPROCESSPOSTPONEMENT ANDADJOURNMENTSDiscretionary power of a magistrate.Regulated by Section 259 of CPC.Policy of law is that criminal cases should be disposed with least possible delay. The longer period allowed to elapse between time of arrest to time witnesses give evi...

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CHAPTER 9: MANAGEMENT OF TRIAL PROCESS

Extent of discretion General rule is magistrates should refrain from granting adjournments except in those cases where adjournments are clearly

POSTPONEMENT AND

necessary for the purpose of justice.

ADJOURNMENTS Discretionary power of a magistrate. Regulated by Section 259 of CPC. Policy of law is that criminal cases should be disposed with least possible delay. The longer period allowed to elapse between time of arrest to time witnesses give evidence, the greater chances of confusion and truth becoming veiled in obscurity.

PP v Kamaruzaman Mahmud – there was postponement of case for nearly 4 years before 3 different magistrates before its conclusion. 1st at request of accused lawyer on 5 occasions, 2ndat request of prosecution on 3 occasions and 3rd at instance of court on two occasions. This was held to be unacceptable delay and abuse of the process of the court and further, it cannot be said that the granting of adjournments had been

PP v Tanggah – Question of adjournment

exercised judiciously.

of trial is matter for discretion of the court. That discretion, however is not an arbitrary one but has to be exercised judicially and only in cases which come within terms of section 259.

Section 259 CPC can be given in two instances: 1) Where witness are absent 2) For any other reasonable cause

Tan Hun Wah v PP - it is unacceptable to adjourn a partly heard criminal trial or to a date to be fixed because such practice would result in inordinate delays in administration of justice and affect the

Absence of Witness PP v Low Yong Ping- The absence of prosecution witnesses due to their having to attend a High Court case as witnesses is a

quality and reliability of judgment of the

reasonable cause for an application for

court in evaluation of evidence.

adjournment of proceedings particularly when

there

has

been

no

repeated

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postponements or adjournments previously

application was made at a very late stage.

obtained on frivolous grounds by the

Defence have about 6 months to find its

prosecution disentitling it to any further

own DNA expert.

indulgence. Reasonable Cause PP v Karumah – accused charged with cheating.

There

were

number

of

postponements. On that day, prosecution applied for postponement as they were

Por Choo Aik v PP – Magistrate should be firm when considering application for adjournment and should not adjourn a case unless there are reasonable grounds.

unable to produce witnesses who were untraceable. Defence applied for discharge. Held – as adjournment asked for to enable

a) Illness

prosecution to get witnesses, the court should grant adjournment.

R v Chin Ah Chong – Prosecution officer fall sick on the day of trial. Later police officer ask for adjournment. It was held

Accused can apply for adjournment in absence of witness too

sudden illness of PO was reasonable ground for an adjournment.

Tan Foo Su v PP- absence of witness affords a reasonable cause for adjourning a

b) Completion of Investigation

criminal trial. Every latitude must be given to accused person to defend his case and to call witnesses, more so when accused not

PP v Tan Kim San – Court found it took police more than one year to investigate yet when case came up for trial 8 months after

represented.

accused first charged, investigations were still incomplete. This was a clear premature But application should not be made at a

prosecution that on the facts, the charge as

very late stage

it stood was groundless & accused should be DNAA.

Kamaruddin Mat Diri v PP Accused convicted for offence of rape. Wanted to call its own DNA expert. Court dismissed application on the ground that the

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c) Retaining Counsel Por Choo Aik v PP – one of the ground of appeal was that magistrate was wrong in refusing an adjournment of the cause though appellant had just appointed counsel on that day. It was held – Magistrate was right in not adjourning trial. It is not reasonable for accused to appoint a counsel at the last moment and then apply for adjournment.

Clash of date – Sharma Kumari a/p Oam Prakash v PP – Once order is made, whether one agrees with decision or not, law remain that once court makes an order, it is to be complied with until it is set aside…. Having to appear in another court is not reasonable cause, for it leaves it to the counsel to decide on his own in which court he prefers to appear… Personal problem of counsel having too

Kahar ak Tongah v PP – Adjournments do not always have to be granted. There are other relevant considerations, for example as here, where engaging counsel at the last minute where there has been ample time for the accused to do so and delay and inconvenience to witnesses or co-accused.

many commitments for appearances in other courts cannot interfere with the schedule of the courts. Otherwise, all trials can be postponed immediately by simple device of every accused person appointing the same counsel and he accepts all appointments.

In the instant case, the refusal to adjourn was not unjustified.

Azahan bin Mohd Aminallah v PP – appellant unrepresented, applied for legal aid for rape of 15 year old. Trial was postponed to another date, on which appellant sought another adjournment s the assigned counsel was not in court. It was held that considering the serious nature of the charges against the appellant, the Sessions Court should have granted the appellant’s request for an adjournment to enable him to engage counsel. ABDUL KHALIQ NAZERI

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PART HEARD CASES

PP v Mohd Jon – at first place no case for accuse to answer under offence in DDA. On

Section 261 provides that on departure of a

appeal, SC ordered defence called. At

magistrate, succeeding magistrate may:

resumption of trial, defence objected

1) Recommence and hold fresh trial

continuation of hearing from defence stage.

2) Act on evidence recorded by

New

judge

held,

although

material

witnesses can be recalled, the result of

predecessor

recalling them would be tantamount to Section 18(2)(a)(i) of COJA – allows

rehearing the case afresh and without

succeeding judge to take over proceedings

recalling them, he could not be in position

left by a previous judge and succeeding

to assess credibility and value of evidence.

judge may continue from the stage at which

In interest of justice, decided to hear case

previous judge left it.

afresh.

Section 18(2)(a)(ii) permits succeeding judge to act on evidence partly recorded by previous judge and partly recorded by

Act on recorded evidence Disadvantage of trial de novo: -

Ability to recall events by witness may diminish because lapse of time

succeeding judge.

–

Mohamadd

Anuardin

bin

Abdul Salem v PP

Trial de novo -

Conduct of new trial cause hardship

Oh Keng Seng v PP – it must be

and inconvenience to accused and

appreciated that the succeeding magistrate

witness – Teay Way Cheong v PP

or president who acts on evidence of a witnesses who he has not heard or seen is

Oh Keng Seng v PP – 12 witness gave

obviously

disadvantage

evidence and 13th witness waiting to be

particularly in respect of demeanour and

cross examined. It is duty of magistrate to

credibility of witnesses. There is real risk

take cognizance of all part heard cases left

that evidence not wholly recorded by a

behind and act under provisions of section

magistrate or president but which is acted

261 either by case de novo or continue.

on by him may be materially prejudice an

S261 said to save time and money and

accused

expedite disposal of part heard cases but

at

where

some

decision

credibility of witness.

involving

provision is to be exercised with caution and acted on where evidence was more or ABDUL KHALIQ NAZERI

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less formal, or is largely uncontroversial,

contrary to s 261(a) of the Code,

and where credibility of any material

which conferred such a right on

witness not involved.

the appellants.

Mohamed Anuardin bin Abdul Salem v

Held:

PP the

1) Section 261 of the Code conferred

sessions court judge's exercise of his

on the judge a complete discretion.

discretionary power under s 261 of the

So long as he exercised that

Criminal Procedure Code (FMS Cap 6)

discretion judicially, according to

('the Code') in ordering that the case against

rules of reason and justice and not

the appellants which was partly heard by

according to private opinion, the

the previous sessions court judge be

High Court cannot interfere

The

appellants

appealed

against

continued by him from the point where it

2) To hear the case de novo would not

had been left, and not de novo. Both

be the best course to adopt as the

appellants

the

ability of the witnesses to recall

Prevention of Corruption Act 1961. The

events may have diminished with a

trial had reached a stage where the

lapse of six years. It would also

prosecution had called some 13 witnesses

unnecessarily prolong the trial and

by the time the later judge took over the

increase the expenses.

were

proceedings.

charged

The

key

under

witness,

the

complainant, had not finished giving his evidence. The appellants argued that:

Abdul Hamid bin Udin v PP Appellant

(i)

(ii)

charged

under

DDA

for

the judge had wrongly exercised

possession of cannabis and was found

his discretion in not hearing the

guilty. He then appealed. One of the ground

case de novo; and

was on the basis of s 261 of the Criminal

having decided not to do so, he

Procedure Code ('the Code'), the appellant

committed

in

was materially prejudiced because the

ruling that the appellants would

prosecution case and the defence case was

not be allowed to demand that

heard before different judges.

further

error

the witnesses in the earlier voir dire

proceedings

resummoned

and

be reheard, ABDUL KHALIQ NAZERI

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Held:

the

1) A perusal of the record of the

unsustainable on the facts

prosecution

case

does

not

that makes it necessary for the to exercise the

discretion on his own to re-summon the witnesses and recommence the trial. Although the succeeding judge did not give written reasons, it is clear from a reading of the record that the judge was not manifestly wrong to be satisfied with the testimony on the record. Indeed he was supported in that conclusion in that no demand was made by the appellant for any of the witnesses to be recalled

and

succeeding

reheard

judge

when

the

commenced

his

the

argument

3) In this case, the defence had been called. Section 261 of the Code does not provide for the recall of witnesses after the defence had been called since there can be no question of the succeeding judge changing that decision. The succeeding judge can only proceed with hearing the defence and render a decision upon a review of the written record of evidence from the preceding judge, and it is for the appellate court later to consider the issue whether the accused has been materially prejudiced

Resummoning of Crucial Witness

proceedings.

2) Although it is true that the succeeding judge would have to consider all of the evidence at the end of the case, it cannot be said the accused was ipso facto materially

found

show

anything obvious or manifest upon it

succeeding judge

court

prejudiced,

particularly

where the accused, represented by counsel, had not in any case demanded

Oh Keng Seng v PP - If he adopts the latter course (continue trial) the magistrate or president is empowered to act on the evidence which has already been recorded by his predecessor subject to the right of recall of witnesses as provided for in the section.

the witnesses or any of them be resummoned and re-heard. In the absence

Mohamed Idris bin Haji Mohamed Said

of such objection, the argument that the

v R - Whenever possible, crucial witness

fact that the succeeding judge did not see the demeanour of the witnesses was a fatal flaw, lacked merit and from a detailed review of the record of appeal,

should be recalled. That in this case the decision was unsatisfactory as the witness whose evidence was acted on was a crucial one and there was nothing to show that it

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was not possible to produce the witness, and therefore there must be a re-trial.

Sia Geok Hee v PP – refusal of succeeding magistrate to allow recall of prosecution witnesses

held

to

have

materially

prejudiced the applicants as request made after counsel had discharged himself.

Chelliah v PP - Where a case is partly heard before one Magistrate and adjourned and the hearing is resumed before another Magistrate, it is obligatory for the second Magistrate to recall witnesses if the accused asks for them.

Demeanour Ramanathan a/l Chelliah v PP - To now advert to the demeanour of witnesses after a long lapse of over five years, in my view, would certainly be prejudicial to the appellant here. An appellate court will be guided by the impression on the demeanour of witnesses observed by a trial judge in his grounds of judgment but any such remarks if made too long after the trial should be of little or no weight, and may be found as here, to be prejudicial to the appellant.

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