TEST LAW 437- Double Jeopardydocx PDF

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TEST LAW 437 : DOUBLE JEOPARDYQUESTION 31st issue : Whether Drax is protected by the rule against double jeopardy under Article 7(2) when his case has been discharged for the offence of possession of drugs by Magistrate in Sepang?2nd issue : Whether Drax has immunity against double jeopardy under Ar...

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TEST LAW 437 : DOUBLE JEOPARDY

QUESTION 3 1st issue: Whether Drax is protected by the rule against double jeopardy under Article 7(2) when his case has been discharged for the offence of possession of drugs by Magistrate in Sepang? 2nd issue: Whether Drax has immunity against double jeopardy under Article 7(2) when he was re-arrested and charged with the different offence of trafficking in drug in the Shah Alam High Court? 3rd issue: Whether Drax who has been charged for the same offence as in 12 July 2018 of possession of drugs in the Shah Alam High Court has immunity and protected against double jeopardy under Article 7(2)? The Federal Constitution incorporates protection against double jeopardy by including it as a fundamental right under Article 7(2) which provides that ‘a person who has been acquitted or convicted of an offence shall not be tried again for the same offence. The essence of this provision is that all persons have immunity from repeated trials for the same offence. No person should be imperilled by subsequent criminal prosecutions if he or she has already been tried in a criminal court and has been adjudged to be guilty of the offence. Likewise, an acquittal is a permanent bar to a new trial for the same offence on the same set of facts. This is established in R v Miles, in a circumstance of pleas of autrefois acquit (the accused had already been acquitted of the offence) and autrefois convict (the accused had already been convicted of the offence. The similar rules is provided under Section 303 of CPC which is man must not be put twice in peril for the same offence or known as nemo debet bis vexari. However, Article 7(2) does not give an absolute immunity to the accused where it does not exclude a retrial if their situation falls within the exception as below; First, if the charge has been discharged by court. Discharge does not amount to an acquittal. Effect of discharge is it will result in discontinuation of the trial for a variety of reasons. For instance, court’s lack of jurisdiction, inadequate of evidence

to prove the offence, the absence of witnesses, the charge is badly framed, or the prosecutor’s application for the case to be discharged as the public interest will not be served by continuation of the proceedings. This can be seen in Uthaykumar a/l Ponnusamy v PP (2003). A discharge does not release the accused from suspicion as it does not amount to a verdict of not guilty. Besides, it does not bar from to be re-arrested and retrial on the similar charge. A verdict of acquittal is a complete defence against future similar charges on the same set of facts. Second, where the case has been quashed of earlier trial. The rule against double jeopardy does not apply if the previous trial was quashed by a superior court and a re-trial ordered. This is provided for in Article 7(2) and affirmed in the case of Sau Soo Kim v PP (1975) and Fan Yew Teng v PP (1975). Third is difference offence. The rule of double jeopardy is not applicable in a situation when in the subsequent trial, the accused is tried with different offence on the same set of facts as there is no violation of the Constitution if the accused could not have been charged with or convicted of that different offence in the court which convicted him first. As illustrated in Jamali Adnan v PP (1986), where the offence of which the accused has been acquitted and is charged must be the same ingredients. The “difference offence” was defined in this case as an offence whose ingredients are not the same. Furthermore, in Nadarajan a/l Somasundram (1994), the “different offence” could be based on the same set of facts as were relied upon in the first trial. These decisions however are difficult to reconcile with Section 302(i) of the CPC. Fourth is appeal. If a person is acquitted and the Prosecutor files an appeal under Section 5 of the Court of Judicature (Amendment) Act 1976, thus there is no double jeopardy. Fifth is technical errors. This can be exemplified if the detention order was wrongly made out or if the law authorizing the detention did not applicable to the detainee, therefore the detainee may be released. In Re Datuk James Wong (1976) who was detained in West Malaysia under law that is applicable in Sarawak only. A writ of habeas corpus was issued to order his release. But this release did not bar a subsequent detention order which was properly made out under the correct law.

Sixth is preventive detention. As decided in PP v Musa (1970, it was held that if the detainee was previously under administrative detention under the Internal Security Act, there is no bar to a subsequent criminal trial on the same set of facts as the evidence will not be barred. Similarly, in Yeap Hock Seng @Ah Seng v Minister (1975), if an individual is convicted by a court of law, there is no bar to a subsequent preventive detention order, therefore there is no double jeopardy. Seventh is disciplinary proceedings. Double jeopardy does not take place if the subsequent proceeding is a non-criminal proceedings and not a criminal court forum as there is no violation of Art 7(2). Thus, if a person, who has been acquitted or convicted in a criminal court, is subsequently subjected to disciplinary proceedings upon the same facts, there is no double jeopardy. In Mohamed Yusoff Samadi v AG (1975) where a school teacher was acquitted of outraging the modesty of his pupils but subsequently tried in disciplinary proceedings and dismissed for bringing disrepute to his profession. Eighth is civil proceedings. The imposition of a criminal penalty is no bar to a civil action. For example, if a motorist is convicted of criminal negligence, this does not bar a civil action in tort for compensation. According to O J Simpson, an acquittal in a murder trial did not immunize the accused against a later civil action for recovery damages. Ninth is multiple proceedings in which a person is being tried in court on charges also pending in another court. This situation does not amount to double jeopardy because the constitutional protection is only initiated when a person has been acquitted or convicted, as in the case of Teh Cheng Poh v PP (1979). Lastly is retrial, whereby the appellate courts have power to order a new trial. In the case of PP v Munusamy, where Appellant Criminal Courts have the authority to order another new trial. Retrial can also be granted as in PP v Ooi Khai Chin & Anor as the Federal Court has the capacity to allow the prosecutor appeal in the case. Application for the 1st issue. Drax’s charge for the offence of possession drug has been discharged by Magistrate of Sepang on 12 August 2018. The discharge has been applied by

prosecutor who is in charged for the case due to lack of evidence to prove the offence as the chemist's report to support the facts of case has gone missing. Discharge from the charge does not mean he is not guilty because it does not amount to an acquittal. This is because he still not being adjudged by court through full trial, there is no trial for his case has been proceeded therefore his charge for the offense did not yet be proved either he is acquitted or convicted. A discharge does not release Drax from suspicion as it does not amount to a verdict of not guilty. Besides, he does not bar from to be re-arrested and retrial on the same charge. Therefore, Drax may be not protected by the rule against double jeopardy under Article 7(2) as the rule only applicable if he has the verdict of acquittal for the said charge. This is because the verdict of acquittal is a complete defence against future similar charges on the same set of facts. Thus, he cannot escape from the possibility of being charged under the same offence in future. In summation, in future Drax will not be protected by the rule against double jeopardy under Article 7(2) even though the charge for the offence of possession drug on him has been discharged as discharge does not amount to acquittal. Application for the 2nd issue. On 12 October 2018 which is the second event or known as subsequent trial, Drax was re-arrested and charged with the offence of trafficking in drugs in the Shah Alam High Court. As we can see, the offence that he was charged is different from the previous charge which was on drug possession even though the facts of the case might be similar. Drax’s current charge for the offence of trafficking in drugs if compared with the previous charge which was on possession of drug can be considered as “different offence” which is fall within the exception of double jeopardy. Both offences were within the meaning of “different offence” where it was being defined as offence whose ingredients are not the same or could be based on the same set of facts as were relied upon in the first trial as referred to Jamali Adnan and Nadarajah’s case. Thus, the rule of double jeopardy may be not applicable in Drax’s situation when in the subsequent trial, he is tried with different offence on the same set of facts as there is no violation of the Constitution if he could not have been charged with or convicted of that different offence in the court which convicted him first.

In summation, his lawyer, Shuri cannot use Article 7(2) as immunity for Drax to protect him against the rule of double jeopardy as different offence falls within the exception under this provision. Application for the 3rd issue. On 12 October 2018 which is the second event or known as subsequent trial, Drax was re-arrested and charged with the same offence of possession drugs in the Shah Alam High Court. As we can see the offence is similar with the previous charge that has been made on him at 12 August 2018. However, the previous charge for the same offence has been discharged by court in which he was not been adjudged either acquitted and convicted yet. Discharge only discontinue his trial, whereby he has been cleared from the charge without going through full trial for him to defence himself. Consequently, he is still not being proven either guilty or not guilty for the charge offence. Besides, his case has been discharged by the prosecutor himself due to insufficient of evidence not because he is not guilty. Thus, he has not fulfilled the essence of the Article 7(2) for protection against double jeopardy as discharge does not amount to acquittal or not guilty. The immunity under this provision only applies to those people who has been acquitted or convicted of an offence shall not be tried again for the same offence. Therefore, Drax’s situation does not release him from any suspicion where he does not bar from to be re-arrested and retrial on the same charge. In summation, Drax has no immunity against double jeopardy under Article 7(2) for the charge of same offence as his previous trial has been discharged in which it falls within the exception under this provision....