By Abu Daud Abdul Rahim, Member, Criminal Law Committee
Due to extensive amendments made to the Criminal Procedure Code, the Bar Council Criminal Law Committee is carrying out roadshow in four states; Selangor, Negeri Sembilan, Pahang and Johore, to explain the amendments to criminal law practitioners around the country.
The first forum will be held on 14 Jan 2011, 3:00 to 6:00 pm at Dewan Tan Sri Hamzah, Royal Selangor Club, Kiara Sports Annex, Jalan Bukit Kiara, Off Jalan Damansara, Kuala Lumpur. Due to limited seats, please register with Lim Ka Ea at [email protected] or 03–2031 7103.
To give Members an idea on some of the main changes, please read the article below, which sums up the amendments succinctly.
The Criminal Procedure Code (Amendment) Act 2010 came in the spirit of resolving the backlog of cases and promoting speedy trials, which is a reflection of the Government Transformation Programme.
Due to extensive amendments made to the Criminal Procedure Code, the Bar Council Criminal Law Committee is carrying out roadshow in four states; Selangor, Negeri Sembilan, Pahang and Johore, to explain the amendments to criminal law practitioners around the country.
The first forum will be held on 14 Jan 2011, 3:00 to 6:00 pm at Dewan Tan Sri Hamzah, Royal Selangor Club, Kiara Sports Annex, Jalan Bukit Kiara, Off Jalan Damansara, Kuala Lumpur. Due to limited seats, please register with Lim Ka Ea at [email protected] or 03–2031 7103.
To give Members an idea on some of the main changes, please read the article below, which sums up the amendments succinctly.
The Criminal Procedure Code (Amendment) Act 2010 came in the spirit of resolving the backlog of cases and promoting speedy trials, which is a reflection of the Government Transformation Programme.
The criminal justice system has been virtually revamped by this amendment. The principal changes are:
(a) Pre–Trial Conference – section 172A
(b) Case Management – section 172B
(c) Plea Bargaining – section 172C
(d) Victim's Impact Statement – sections 173(m)(ii) and 183A
(e) Proof by Written Statement – section 402B
(f) Proof by Admission – section 402C
(g) Lesser Restriction for Alibi – section 402A
(b) Case Management – section 172B
(c) Plea Bargaining – section 172C
(d) Victim's Impact Statement – sections 173(m)(ii) and 183A
(e) Proof by Written Statement – section 402B
(f) Proof by Admission – section 402C
(g) Lesser Restriction for Alibi – section 402A
Pre–Trial Conference – section 172A
Trial would have to begin not later than three months after an accused is charged. Within the three months, two interlocutory processes are envisaged; pre–trial conference and thereafter case management.
Pre–trial conference is a requirement for an accused represented by counsel. The process must be held within 30 days from the date the accused was charged in court or any reasonable time before the case management.
This process is between the defence counsel and the prosecution, without the involvement of the Court; thus need not be held in Court and is of lesser formality.
During the conference period, the accused may go for plea bargaining. If plea bargaining fails to produce a satisfactory disposition of the case, the opposing sides would have to proceed to narrow down the issues including alibi, agree on admitted facts, compliance with section 51A, and other matters with a view to an expeditious disposal of the case.
All matters agreed upon must be recorded in writing and signed by the accused, the defence counsel and the Public Prosecutor.
Case Management – section 172B
Afterwards, case management comes in; which must be held by the Court within 60 days from the date of the charge. If a second date for case management is necessary, it must be held not less than two weeks before trial.
At this stage, the Court would consider any matters agreed upon by the parties in the pre–trial conference, and proceed accordingly if there is a satisfactory disposition of the case agreed. Otherwise, the Court would give directions for the trial, and fix the dates and duration of trial.
Plea Bargaining – section 172C
Recognising the ‘representation’ that is being practised, the amendment provides for statutory provisions for plea bargaining. The Court must satisfy itself that the plea bargaining process, which comprises a plea of guilty, is participated by the accused voluntarily. The Court’s determination that the plea bargaining process is done voluntarily by the accused is held in chamber; and in case of unrepresented accused, in the absence of a Public Prosecutor.
In addition, the Court must ensure the plea bargaining process is completed voluntarily; implying the Court’s inherent power to strike out any impugned process. Another protection to the accused is the restriction from using any statement by the accused in the plea bargaining process other than for that process, in section 172F.
If the plea bargaining process produces an agreed ‘satisfactory disposition of the case’, such agreement in writing will be tendered to the Court whereupon the Court must give effect to the agreement. Otherwise, the case will proceed for trial before another Court.
Disposal of the case – section 172D
The agreed ‘satisfactory disposition of the case’ entails the Court making an Order under the new section 426 and;
(a) where the plea bargaining was on the charge; passing sentence under the charge that was agreed upon; OR
(b) where the plea bargaining was on the sentence; deal with the accused under section 293 or 294; or passing sentence of not more than half of the maximum punishment under the charge, subject to mandatory minimum imprisonment term under the charge, if any.
(b) where the plea bargaining was on the sentence; deal with the accused under section 293 or 294; or passing sentence of not more than half of the maximum punishment under the charge, subject to mandatory minimum imprisonment term under the charge, if any.
Lesser Restriction for Alibi – section 402A
An accused is required to give notice of alibi during the case management. If no such notice was given during that process, the accused could still lead evidence at trial to establish alibi with two conditions:
(a) a notice of alibi has been given, and
(b) Public Prosecutor is given a reasonable time to investigate such alibi before the accused tenders evidence for the alibi.
(b) Public Prosecutor is given a reasonable time to investigate such alibi before the accused tenders evidence for the alibi.
Proof by Written Statement and Formal Admission – sections 402B and 402C
Section 402B provides for witnesses to give evidence by way of witness statements, subject to the witness being cross–examined and re–examined.
The traditional criminal justice system of onus of proof is revamped; under the current system, the prosecution bears the legal burden of proof throughout the prosecution and the evidential burden on each and every fact to prove the charge. The new section 402C envisages admissibility of statements by both parties of agreed facts, rendering those facts stand admitted and need not be proved. Such admissions may, however, be withdrawn with the leave of the Court.
Compensation to Victim – section 426(1A)
This new provision requires the Court, if the Public Prosecutor applies for, to order the convict (or the parent or guardian, in case of a child convict) to pay monetary compensation to the victim or the deceased victim’s family. In assessing the quantum of compensation, the Court is empowered to hold an inquiry, and specific particulars must be considered including expenses and losses (including loss of income) suffered by the victim, and the convict’s financial capability to meet the compensation.
It is hoped the amendment would be a good step towards a better criminal justice system.