Prima Facie & Beyond Reasonable Doubt PDF

Preview

Summary

SUMMARY TRIAL END OF PP’S CASE● Production and recording of plea ● Establishing the prosecution case ● Conduct of defence ● Finding and judgment by courtSUBMISSION AT THE CLOSE OF PROSECUTION CASESubmission by parties ● It is the practice that at close of the prosecution case, the parties are allowe...

Description

SUMMARY TRIAL END OF PP’S CASE

●

Production and recording of plea

●

Establishing the prosecution case

●

Conduct of defence

●

Finding and judgment by court

SUBMISSION AT THE CLOSE OF PROSECUTION CASE

Submission by parties ●

It is the practice that at close of the prosecution case, the parties are allowed to make submissions on the prosecution evidence

●

There are, however, no statutory provisions relating to submissions at the close of the prosecution case

●

In a practice direction by Lord Parker J (see Practice Note [1962], referred to in PP v Sidek bin Abdullah, it was stated a submission of there is no case to answer may properly be made and upheld.

a) When there has been no evidence to prove an essential element in the alleged offence; b) When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. ●

The submission by the parties would focus on the evidence, how it is to be perceived and the law to be applied (pp v Jorge Enrique Pellon Tellon) and whether the totally and quality of the adduced evidence is sufficient to constitute a prima facie case.

●

The court, after hearing arguments of such submission, would rule as to whether the prosecution has made out a prima facie case as alleged in the charges(s).

●

If so, the accused would be called upon to answer the charge or charges against him.

●

On the other hand, if the court rules otherwise, the accused at that stage is entitled to be acquitted and discharged (Marzuki bin Mokhtar v PP)

EVALUATION OF PROSECUTION CASE

Prima Facie case ●

When the case for the prosecution is concluded, the court shall consider whether or not

the prosecution has made out a prima facie case on the offence charged. ●

If, however, the court finds that the prosecution has not made out a case, the accused shall be acquitted [s 173(f)(ii)]

●

On its finding that a prima facie case has been made out the court shall call upon the accused to enter his defence: section 173(h),(i)

●

A prima facie case is made out against the accused [s 173(h)(iii)]

●

Where the prosecution has adduced credible evidence proving each ingredient of the offence which is unrebutted or unexplained would warrant a conviction.

●

The fundamental requirement, at close of the prosecution case, is that the judge must judicially evaluate the evidence.

●

In evaluating the evidence, the judge must conduct a maximum evaluation of the evidence.

●

To see whether there are infirmities, gaps or contradictions that are so material as to affect the main ingredients of the offence with the result that no prima facie has been made out and an acquittal should be ordered.

●

To assess carefully and judiciously the credibility of the prosecution witnesses and the accuracy of their assertions.

●

Any reasonable and favourable inferences that may be drawn in favour of the accused must be drawn.

●

The purpose of undertaking such a maximum evaluation is to test the credibility of the prosecution’s witnesses and at the same time to ensure all the requisite ingredients of the offence have been made out (Mr Losali v PP)

●

Taken in its totality, the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act on the supposition that those facts existed and did happen [PP v DSAI (No. 3)]

●

Put simply, for the court to decide to call the accused to enter his defence, there must be the kind of evidence before it upon which it is entitled to make up its mind that the accused committed the offence and to find him guilty if no evidence from the accused is forthcoming (Arulpagasan a/l Sandaraju v PP)

●

The question to be asked before an accused is called to enter his defence is whether the accused could be convicted of the offence if he opts to remain silent (PP lwn Mr Losali dan satu lagi dan rayuan lain)

●

The process of evaluation the evidence involves the court considering whether: (a) Every element or single ingredient of the offence is made out (Mohd Asmadi Yusof v PP) (b) The accused is implicated in that a nexus is established between him and the offence; (c) The evidence is accurate and credible

INGREDIENTS OF OFFENCE

●

The prosecution must, in the first instance, make out the ingredients of the charge with the evidence adduced;

●

PP v Magendran a/l Mohan

●

Yap Choon Kit v PP

●

In Che Man bin Che Mud v PP, the appellant, an advocate & solicitor was involved with Harun, a clerk of Bank Negara Malaysia, to defraud BNM of RM 22.2 million.

●

Harun was responsible for handling cheques for advance subscription for Government securities

●

BNM received a cheque for RM 22.2 million from Bank Simpanan for such a subscription

●

By forging the signatures of his superiors, Harun was able to remit this money to the account of the appellant at a branch of Bank Bumiputera at Menara Dayabumi, where it was credited into the account of Che Man & Partners and subsequently paid out on cheques issued by the appellant.

●

Harun was charged with criminal breach of trust and two alternative charges of cheating and theft.

●

He pleaded guilty to the second alternative charge of theft and was sentenced to 5 years imprisonment.

●

The appellant was subsequently convicted of abetting Harun in committing theft. He appealed.

●

In allowing his appeal, the court held that under section 378 of PC, the subject of the theft must be ‘movable property’ which, by the manner they are defined in s22 PC, must refer to corporeal property.

●

What Harun did was not to move movable property with the intention of taking the same property out of the possession of BNM but to manipulate things.

●

No cash money passed from BNM to Bank Bumiputera

●

The fact was Harun did not move the money.

●

Rather the money came from the possession of Bank Bumiputera and not BNM and Bank Bumiputera on its part consented to the money being paid out.

●

Harun did not commit theft as defined in section 378 of PC and accordingly the appellant could not rightly have been convicted of abetment of theft by Harun.

●

Similarly, an essential element of the charge was not established in Periasamy s/o Sinappan & Anor v PP:

●

The COA allowed the appellant’s appeal against conviction as it noted that the appellate judge appeared to have treated the actus reus of criminal breach of trust to be completed as soon as the appellant certified, approved and paid out the loan.

●

The offence of criminal breach of trust is only an offence under s405 PC, ie. to convert, dispose or to appropriate property if it is done with a dishonest intention, which constituted the mens rea of the offence.

●

Negligence, however gross, cannot be equated with the definition of dishonesty under PC.

NEXUS WITH OFFENCE

●

The evidence adduced must implicate the accused in that a nexus must be established between him and the offence: PP v Intairan a/l Renganathan & Ors

●

In PP v Mohd Bandar Shah bin Nordin & Anor, the accused were charged with an offence under s 39B(1)(a) DDA

●

It was held that on the evidence, there was no nexus or link between the black bag and/or the dangerous drugs found inside the black bag and the accused so as to connect them with the crime which was of no significance when viewed in isolation unless there was other sufficient evidence to implicate them.

EVIDENCE IS CREDIBLE

●

It is incumbent that there be credible evidence on each and every essential ingredient of the offence.

●

Redible evidence is evidence which has been filtered and which has gone through the

process of evaluation (PP v Mok Kar Poh) ●

Evaluation concerns the veracity and accuracy of recollection of the witness and an assessment to what extent (if any) that witness’ evidence has been confirmed, explained or contradicted by the evidence of other witnesses.

●

The adduced evidence must be subjected to a maximum evaluation as tested in crossexamination (PP v Ong Cheng Heong)

●

Maximum evaluation means applying the ‘beyond reasonable doubt’ test (DPP v Peter ak Merupi @ Mansur bin Abdullah)

●

However, this does not mean that the prosecution has to prove its case beyond a reasonable doubt at this immediate stage (Looi Kow Chai v PP)

●

What amounts to credible evidence: ○

Evidence of witnesses

○

Corroboration of witnesses’ evidence

○

Circumstantial evidence

EVIDENCE OF WITNESSES

●

The evidence may be the direct evidence of witnesses.

●

Direct evidence is evidence of facts in issue

●

In the case of testimonial evidence, it is evidence about facts in issue of which the witness claims to have personal knowledge

●

For example, ‘I saw the accused strike the victim’

●

Blackstone’s Criminal Practice 1991 page 1674-1675 cited in PP v Magendran Mohan.

CORROBORATION OF WITNESSES’ EVIDENCE ●

Under s 134 of EA, there is no requirement for any number of witnesses to prove a fact (Jamaludin bin Md Kassim v PP)

●

While in the best evidence is that of the testimony of witnesses, there are, however, certain classes of witnesses who are, not reliable and whose evidence call for corroboration (PP v Zainal Ismail & Ors)

●

The evidence of these witnesses where there is a requirement for corroboration are: (a) Child witness (EA s 133A, Mohd Hanafi Ramly v PP)

(b) Accomplice (EA s 133, Mohd Haikal Mohd Karib Saddaly & Ors v PP) (c) Evidence in sexual cases (Ahmad Nazari Abd Majid v PP) ●

As a rule of prudence, as such allegations are easily made but difficult to deny.

CIRCUMSTANTIAL EVIDENCE

●

Circumstantial evidence is evidence of relevant fact, i.e. facts from which the existence or non-existence of facts in issue may be inferred.

●

In the absence of direct and positive testimony of eye-witnesses, the prosecution may rely in circumstantial evidence

●

Where circumstantial evidence is relied on, the court may infer from the facts proved, other facts necessary to prove the element of guilt.

●

Circumstantial evidence is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving the guilt of an accused person with mathematical accuracy.

●

Circumstantial evidence must be of such a nature that, if taken together, it could be said to point irresistibly to the guilt of the accused person (PP v Muniandy a/l Suppiah & Anor)

●

The circumstantial evidence must be complete and comprehensive.

●

This does not mean that there is any particular or special method of proof

●

However, the court must guard against the danger of not considering circumstantial evidence in its proper perspective.

SUBMISSION AT CLOSE OF DEFENCE ●

On close of the defence, the accused may sum up his case if the accused or his witnesses give evidence.

●

S 174(b) of CPC specifically states that the accused, in summary trials ‘may sum up his case’

●

Where the accused has adduced evidence, the prosecution has the right of reply [CPC s 174(c)]

STANDARD OF PROOF AT THE END OF DEFENCE’S CASE ●

The court at the conclusion of the trial shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt (CPC s 173(m)(i))

●

It is a well established principle of criminal law that the general burden of Proof throughout the trial is on the prosecution to prove beyond reasonable doubt the guilt of the accused.

●

There is no similar burden placed on the accused to prove his Innocence (Sochima Okoye v PP)

●

Section 173(m) of the CPC provides that: (1) If the court finds that the prosecution has proved its case beyond reasonable doubt the court shall find the accused guilty and he may be convicted on it and the court shall pass sentence according to law (s 173(m)(ii)) (2) If the court finds that the prosecution has not prove its case beyond Reasonable Doubt the court shall record an order of acquittal (s 173(m)(iii))

PROOF BEYOND REASONABLE DOUBT ●

The case against the accused must be established by positive proof. Mere suspicion or probabilities cannot be the basis of conviction. the accused must be and not may be guilty

●

PP v Saimin & Ors

●

PP v Azman bin Ismail & Ors

●

Suspicion however grave cannot take the place of positive proof: Palvinder Kaur v State

●

It is trite law that the onus is on the prosecution throughout the case to prove the charge against the accused beyond all reasonable doubt (Arulpragasan a/l Sandaraju v PP)

●

On the part of the accused it is sufficient for him in his defence to only cast a doubt on the prosecution case to entitle him to an acquittal

●

The Duty on the part of the court is to consider the whole evidence as to the guilt of the accused on the beyond reasonable doubt test which is (Mah Kok Cheong v R):

●

What constitute in law ‘reasonable doubt’ was explained in Miller v Minister of Pensions, referred to in PP v Krishna Rao a/l Gurumuthi & Ors

●

It does not reach certainty but it must carry a high degree of probability

●

Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt

●

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice

●

If the evidence is so strong against a man as to leave only a remote possibility in his

favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice. ●

In Sabaruddin bin Non & 3 Ors v PP (No. 1), reference was made to Underhill’s treatise on the Law of Criminal Evidence (5th edn, vol 1 at p 34) where ‘reasonable doubt’ was stated as follows:

●

The doubt to be reasonable must be one that such an honest, sensible and fair-minded man might, entertain with a conscientious desire to ascertain the truth.

●

An honestly entertained doubt of guilt is a reasonable doubt

●

A vague conjecture or an interference of the possibility of the innocence of the accused is not a reasonable doubt

●

A reasonable donut is one which arises from consideration of all the evidence in a fair and reasonable way

●

There must be a candid consideration of all the evidence and if after this candid consideration is had by the jurors, there remains in their minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.

CONVICT THE ACCUSED ●

The court should never approach a criminal case on the basis of deciding which of two conflicting stories it should believe or which version is more likely to be true or untrue.

●

But on whether the prosecution has satisfied the court on the case as a whole as to the accused’s guilt beyond reasonable doubt.

●

The following test were laid down in Mat v PP:

●

The correct law for magistrates to apply is as follows

●

If you accept the explanation given by or on behalf of the accused, you must of course acquit.

●

But this does not entitle you to convict if you do not believe that explanation, for he is still entitled to an acquittal if it raises in your mind a reasonable doubt as to his guilt, as the onus of proving his guilt is throughout the prosecution.

●

If upon the whole evidence you are left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it.

●

This judgment may be summarised as follows: (1) If you are satisfied beyond reasonable doubt as to the accused’s guilt, convict (2) If you accept to believe the accused’s explanation, acquit

(3) If you do not accept or believe the accused’s explanation, do not convict but consider (4) If you do not accept or believe the accused’s explanation and that explanation does not raise in our mind a reasonable doubt as to his guilt, convict. (5) If you do not accept or believe the accused’s explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt, acquit.

ACQUIT THE ACCUSED ●

In Mohamad Radhi bin Yaakub v PP:

●

The accused is not required to prove his innocence beyond reasonable doubt. The court may not be convinced of the truth of the defence story or version. Raising a reasonable doubt as to the guilt of the accused will suffice.

●

It is not wrong for the court to be convinced that the defence version is true, in which case the court must order an acquittal.

●

In appropriate cases, it is also not wrong for the court to conclude that the defence story is false or not convincing, but in that instance, the court must not convict until it asks a further question that even if the court does not accept or believe the defence explanation.

●

Does it nevertheless raise a reasonable doubt as to his guilt.

●

In Ali bin Abdullah v PP:

●

Mere denial or presenting a bare story of innocence cannot in circumstances amount to a reasonable doubt....