©The New Straits Times (Used by permission)
by V. Anbalagan
PUTRAJAYA: A new set of guidelines has been drawn up for trial judges to participate in the process of plea bargaining to speedily dispose of criminal cases.
The guidelines, contained in a judgment delivered by the Court of Appeal president, Tan Sri Raus Sharif, enables presiding judges to indicate to parties the sentence to be meted out when the accused pleads guilty.
These guidelines now must be followed by magistrates, Sessions and High Court judges.
The guidelines were part of a judgment in the case of air condition repairer, M. Manimaran, 30, who was sentenced to six year's jail and ordered to be caned 10 times for drug possession two years ago.
The public prosecutor appealed on grounds of inadequacy of sentence.
Raus, who sat with Datuk Abu Samah Nordin and Datuk Sulong Matjeraie, set aside the conviction and ordered a retrial
He said in this case, there was nothing in the judge's notes of evidence on plea bargaining.
Raus, in specifying out the guidelines, said the request for plea bargaining must come from the accused.
He said if the application was made to the court, it must be forwarded to the public prosecutor.
Raus said such an application (plea bargaining) could also be made by a lawyer and the counsel must get a written authority by the client.
"It is the duty of the counsel to ensure that his client does not plead guilty unless he has committed the crime."
Raus said the prosecution must be quick to react once a request for plea bargaining has been made.
"Both, the prosecution and the defence, must reach an agreement on the sentence and it should preferably be in writing," he said.
He said sentence must be imposed within the range agreed by parties during the plea bargain application.
Raus said should the court disagree with the sentence proposed, it must inform the parties to decide.
"If there is no agreement, the case should go to trial. The agreement of the court is vital because the judge has the discretion whether to agree with the sentence to be imposed."
Raus said the process of plea bargaining must be done transparently and the notes of evidence would form part of the proceedings.
"Judges and magistrates must record exactly what transpires before them."
Raus said the court was aware of Parliament's intention following the recent amendments to the Criminal Procedure Code to include plea bargaining.