Basics of a Criminal Trial
A criminal trial is a legal proceeding held before a court of criminal jurisdiction, where the matter is instituted by a charge against an accused person. The purpose of a criminal trial is for an impartial court to consider evidence against and in favour of an accused person with the mandate to determine whether the allegation is proved (thus pronouncing a verdict of guilty) or whether the allegation remains unproved (thus pronouncing a verdict of not guilty). Finally, the result of a criminal trial is also the sentence which shall be passed without delay.
The offence alleged, the permissible type and range of sentence, the procedure for trying and the method of acquiring, producing, admitting and considering evidence are all regulated by a few important laws. There are many laws containing penal provisions (i.e. laws that create punishments for breaches of the law), and some laws that prescribe the procedure, yet also some laws that prescribe both law and procedure. That has always been considered substantive law and procedural law. A third category is adjectival law which has been the domain of the law and principles of evidence. Many works categorised procedural law as being part of adjectival law.
The charge is represented on a piece of paper, usually yellow, and stapled to that is a white piece of paper where the allegation of the crime is typed up. Collectively the yellow and white pieces of paper are called the charge sheet, or kertas pertuduhan. Beginning around the year 2015, criminal courts have gradually accepted cause papers such as charge sheets filed online in PDF format.
The Attorney General is the Public Prosecutor, and has the power to charge accused persons. He also has the power to withdraw charges, add charges, amend charges and conduct criminal proceedings in all courts in Malaysia, except for certain institutions such as the syariah court and native courts of Sabah and Sarawak. The Attorney General as Public Prosecutor also has the power to delegate his great power to fit and proper persons called Deputy Public Prosecutors (DPPs).
The police investigate based on information of a crime (most often in the form of a police report), and after collecting enough evidence from witnesses and other sources (such as from the crime scene, stock market, chemical samples and dead bodies, etc), they present a report with their recommendation to the Deputy Public Prosecutor. The Public Prosecutor only has time to decide on only the most important cases of national significance.
Charge
When investigations are concluded, the IO will prepare an investigation report and send it together with the investigation papers to the DPP. The DPP will instruct the IO to file a charge against the suspect if satisfied that the investigation has obtained evidence that establish a case. I propose to write elsewhere on what this means.
When the suspect is charged, he will then be called an Accused person (Tertuduh or Orang Kena Tuduh, OKT). He is brought to court and the charge is read to him by the court interpreter. Let us assume that he claims trial.
Case Management
Before the case is set for trial (also called a hearing or pendengaran or bicara), the court will schedule a few dates where a case is called up for a session called a mention. The business of the court during such mention is called Case Management. The purpose of Case Management is for the court to make sure that all things are in order before trial commences. There are numerous levels of preparation and technicalities that need to be complied by the Public Prosecutor (representing the “prosecution”) and the Accused (who may be represented by a lawyer, called a Defence Counsel; they are called the “defence”).
During this stage, several things may happen, not necessarily in order:
The Prosecution serves documents to the Defence under Section 51A of the CPC.
The Defence sends a letter of representation to the Prosecution, usually after perusing the said documents received under Section 51A of the CPC.
Pre-trial conference.
Plea bargaining.
The above actions may happen simultaneously or separately. For example, plea bargaining may come before or after a letter of representation, or during or after a pre-trial conference. The documents may be served under Section 51A of the CPC in one go or separately in stages throughout the trial. On top of that, the Defence sometimes sends multiple representations over the course of a trial, highlighting developments in the trial evidence. Such is the dynamism of the adversarial process. Finally, the court itself may be very involved or hands-off the above processes, depending on what is actually happening. Sometimes the plea bargain takes place entirely outside of court or through correspondence. Exchange of documents may be at the office and not in open court.
Commencement of the Trial
For High Court trials, the DPP will read an opening statement. Like robes, bibs and wing collars, it is part of the decorum that gives grave occasion to the proceedings and sets it apart from trials of the subordinate courts. I was taught that brief opening statements are better than long, detailed ones. For High Court trials, the DPP may amend the charges before proceeding. I often tendered entirely new charge sheet on the first day of trial, cleaning up or rewording some points — but the charge would be essentially the unchanged.
Whether charges are amended, it is also common practice for the charge to be re-read to the Accused on the first day of trial.
Prosecution Stage
An accused person is presumed to be innocent until proved otherwise. Therefore during trial, the prosecution must produce evidence before the court that proves the allegations contained in the charge. The charge is not merely a collection of words, because there is some craftsmanship involved arising from the technical choice and arrangement of words and particulars. There are 2 general rules applicable, that the charge must disclose an offence known in law. And offence known in law is made up of ingredients of the crime. Secondly, the charge must give the Accused person adequate notice of the allegation levelled against him.
Examination of Witnesses
The most important source of evidence is from the testimony of witnesses. Each witness must testify on oath and are compelled to answer questions asked from the prosecution, counsel and the court, subject to certain exceptions. The procedure for examination of witnesses is provided in Part X of the Evidence Act 1950.
The prosecution adduces evidence from its witnesses by asking questions in a process called examination-in-chief. There are rules governing this technique contained in the Evidence Act 1950 and the unwritten ethics. Below are just a few examples:
Counsel shall not lead witnesses (i.e. putting the answer into the witness’s mouth).
Counsel shall not ask questions based on unproved facts. This means that the question cannot assume that a fact has already been proved. Counsel needs to prove that first fact first.
Questions shall be confined to relevant issues. I propose to write later on relevancy and admissibility in trial.
Evidence adduced must conform to 2 tests : relevancy and admissibility. If a piece of evidence fails either one of these tests, the court may disallow it. If the court allows it, a higher court can even set aside the final verdict on such technicality, subject to some exceptions. Section 167 of the Evidence Act 1950 provides that the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case. One example of a breach of the rule on relevancy is when a prosecutor introduces evidence of bad character of the accused person. On the other hand, an example of a breach of the rules on admissibility is introducing hearsay evidence. Hearsay (or “keterangan dengar cakap”) means out of court statement, or that the witness heard someone else say that they saw, heard or knew something. There are many rules and exceptions applicable on these 2 tests. Some of them are logical yet some are imposed for some policy reason.
The duty of the defence is to ethically and honourably put forward the best possible defence for their client. The goal is to cast a reasonable doubt on the prosecution’s case. This is done by challenging the evidence of the prosecution by using the most potent force in the adversarial process: the art of cross-examination.
After cross-examination, the prosecution draws the witness’s attention to matters raised in cross-examination and asks questions on those issues only in a style similar to examination in chief. This is called re-examination. It is where prosecutors attempt to repair the damage done in cross-examination.
Sometimes a wise prosecutor will intentionally not re-examine a witness on a damaged point, for tactical reasons. Likewise sometimes a wise defence counsel will refrain from cross-examining a witness on a point because they are confident that enough damage was done in examination-in-chief itself, and to deprive the prosecution from re-examining the witness on such point.
The three stages of examination-in-chief, cross-examination and re-examination is cycled through each and every witness from the prosecution and the defence in turn.
At the end of the prosecution’s case, the DPP shall inform the court that he offers no more evidence and intends to close their case. The DPP then states that certain witnesses, from whom statements had been recorded by the police, but which the DPP does not intend to call, are offered to the defence. There may be tactical or practical reasons that a witness is not called by the prosecution despite statements having been recorded by the police.
The court would then invite the defence to present a submission of no case to answer, which has been recognized as a fundamental right even though such right is not stated expressly under any written law. Submission of no case to answer means that the Defence Counsel comments on the entire case of the prosecution, criticizing the incriminating evidence and highlighting any gaps in the prosecution case or evidence that favours the Accused. The Prosecution has the right to reply. I was taught that by convention, the Prosecution is supposed to have the last word, but in practice, the tendency is for the Defence to have the last word.
The duty of the court at the end of the prosecution’s case is to consider whether the Prosecution has proved a case at the standard of prima facie. Prima facie means “on the face of it”, i.e. that the prosecution has proved the charges on the face of it. Over the years, prima facie has evolved in its meaning.
The present position is that prima facie entails the court having to conduct a maximum evaluation of all the evidence presented by the prosecution, and to determine if the evidence is so strong as to warrant a conviction if the Accused were called to enter his defence and remained silent.
This is a formulaic legalese that evolved over the decades leading up to this point. Functionally and practically, it means “beyond a reasonable doubt” but it is not something stated openly. Instead it is whispered across bar tables, in the law library and at conferences. Because the implication is, if the Accused elected to remain silent, it is an “automatic conviction”.
Some lawyers have objected to such implication because it effectively renders meaningless the right to remain silent. In my experience, I have come across only 2 lawyers whose clients elected to remain silent in death penalty cases. Both cases lost all the way to the Federal Court.
Defence Stage
If the court is satisfied that the prosecution has proved a case at the standard of prima facie, it shall call the Accused to enter his defence. That means that the Defence calls witnesses in support of their defence. The Accused must be the first witness. The Court gives the Accused 3 elections, which means 3 options on the mode of giving evidence. These elections are provided for the Accused only and not to any other witness.
The Accused may testify on oath from the witness box, which means his evidence has maximum weightage but he may be subject to cross-examination by the DPP.
Second, the Accused may testify from the dock but this evidence is unsworn. The value of this evidence is inferior to sworn testimony and cannot be tested by cross-examination. However, unsworn testimony by the Accused is still good evidence in law and must be considered. There could be many tactical or practical reasons why an Accused person testifies from the dock with unsworn evidence. The right of election is the right of the Accused and he shall not be penalized for electing to give unsworn testimony. However, in doing so, he deprives himself of the benefits of giving sworn testimony.
The third election is the right to remain silent. This could be done on principle, but otherwise we do not know in what situation would remaining silent be more beneficial than giving unsworn testimony. Some senior lawyers have advised their clients to remain silent, and from those cases we have come across, they have all been sentenced to death and not acquitted.
The majority of defence cases only involve one single witness, the Accused himself. However if the defence calls other witnesses in support, each of these defence witnesses are subject to the process of examination-in-chief, cross-examination and re-examination just like a prosecution witness. Instead, this time it is the Defence Counsel who conduct the examination in chief and the DPP who does cross-examination.
The Court may ask questions at any stage of the proceedings, within limits.
At the end of the defence stage, the Defence closes its case and the court invites the parties to submit at the end of the defence stage.
The duty of the defence is to cast a reasonable doubt, but this duty does not take away from the overall duty of the prosecution to prove its case beyond reasonable doubt. That means that the prosecution still has the duty to prove its case even during the defence stage. Therefore the DPPs must still be on their feet and cross examine the Accused and his supporting defence witnesses, and to recall prosecution witnesses if necessary to rebut facts raised by the defence witnesses.
There are three important issues that each party must guard against in the conduct of their respective roles.
Firstly, the prosecution has the right to call any number of witnesses in any sequence as they see fit. Only the Defence is curtailed in such right because under law they must call the Accused person before any other witness.
Secondly, the prosecution is not permitted to leave gaps in their case or to suppress material evidence.
Third, the defence must put its defence at the earliest opportunity and should not keep its defence up its sleeve. If it reveals its defence during the defence stage only, it is considered an afterthought defence – and while such a belated defence will still be considered, its weight is inferior to a defence presented at the earliest possible stage.
An afterthought defence suffers from its inferior, even suspect position, because a defence presented at such belated stage has deprived earlier and perhaps more relevant witnesses from commenting on the validity of such defence. Perhaps if such belated defence were put to the relevant prosecution witness, that witness would shoot it down or prove it is false.
After the defence witnesses have all testified, the Defence Counsel informs the court that he offers no further evidence and closes the defence case.
The duty on the prosecution to prove its case beyond a reasonable doubt persists from the prosecution stage all the way to the close of the defence case. For that reason, the DPP cannot take their foot off the pedal and must press on with cross-examination of defence witnesses at the defence stage.
It is trite that failure of either party to cross-examine their opponent’s witnesses on material points will affect their own case adversely.
At the end of the defence submissions, the Court usually reschedules the case to another date for decision. The Court can then make a decision on the overall case whether the charges are proved against the Accused beyond reasonable doubt.
If there is a finding of guilt, then the court shall pass sentence according to law. If not, then the Court shall make a finding of not guilty and acquit the Accused. We will not discuss DNAA (and order of discharge not amounting to an acquittal), criminal appeals or revisions here. Generally a decision of acquittal means that the Accused is forever thereon a free man and is guaranteed constitutional protection from being charged again for the same crime.
1st Edit - 21/3/2024 “An accused person is presumed to be innocent until proved otherwise” with thanks to “Yati” for picking that up.