Criminal Procedure 2 a - Duty of C at end of PP's case and trial S 173 (f)(h)(m)

What if at the end of the Prosecution case, a PF case is made out... but for another offense

If Prima facie case is made out other than the offence charged, Court shall amend the charge

Paragraph (m) further states

(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty & he may be convicted thereon & the Court shall pass sentence according to law. Provided that before the Court passes sentence, the Court shall call upon the victim of the offence or a member of the victim's family, if any, to make a statement on the impact of the offence committed against the victim or his family.. (iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal

Jowitt defines Prima Facie as

"At first sight" or "on the face of it" Prima facie case would suggest that a case viewed on its face value without thoroughly examining it in depth "a prima facie case is made out where there is sufficient credible prima facie evidence establishing each essential ingredient of the offence for a supposition of guilt if it is not answered by the accused"

Suffian J in Mat v PP [1963] MLJ 263 : Burden on the defence

"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 the 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 lies throughout on the prosecution If upon the whole evidence you are left in real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it" Applied in Lim Kheak Teong v PP [1985] 1 MLJ 38 FC Mohd Radhi bin Yaacob [1991] 3 MLJ 169 SC

Murugiah v PP [1941] MLJ 16 : Burden on the defence

"Thus where a Magistrate believes the witnesses for the prosecution & disbelieves the accused͛s evidence, he still has to consider whether the defence has succeeded in raising a reasonable doubt on the prosecution, on the case as a whole. Further it is not for the accused to convince the magistrate of the truth of his explanation; it is sufficient if the explanation may reasonably be true, even if the magistrate is not convinced of its truth.

Paragraph (h) also states

(ha) When the Court calls upon the accused to enter on his defence under subparagraph (h)(i), the Court shall read and explain the three options to the accused which are as follows: (i) to give sworn evidence in the witness box; (ii) to give unsworn statement from the dock; Ip Ying Wah v PP [1958] MLJ 34; PP v Mohd Salleh [1969] 1 MLJ 104 - this is a substantive right; Ahmad Faizal Ali bin Aulad Ali v PP [2010] 2 MLJ 547 - weight accorded cannot be as much as the sworn statement - here the 3 accused persons gave unsworn statements and as they were all mere denial they failed to raise reasonable doubt; or (iii) to remain silent.

What does Paragraph (m) of S173 state

(i) At the conclusion of the trial, the Court shall consider all the evidence adduced before it & shall decide whether the prosecution has proved its case beyond reasonable doubt Failure of the trial judge to observe this provision amounted to a misdirection of law. PP v Selvarajoo a/l Ramachandran [2009] 8 MLJ 411

What does Paragraph (h) of S173 state

(i) If the Court finds that a prima facie case has been made out against the accused on the offence charged, the court shall call upon the accused to enter on his defence (ii) If the Court finds that a prima facie case has been made out against the accused on an offence other than the offence charged which such court is competent to try & which in the opinion of the court it ought to try, the Court shall amend the charge (iii) (iii) For the purpose for subparagraphs (i) and (ii), a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.

What is the Duty of the Court 2) END OF TRIAL (m)

1) (m)(ii) Yes - convict 2) (m)(iii) no BRD - acquit

Thus the Duty of court

1) End of prosecution's case is : To determine whether the prosecution has made out a prima facie (PF) case against the accused 2) End of trial is : To determine whether the prosecution has proved its case beyond reasonable doubt (BRD)

Burden on the DEFENCE?

1) Not expressly provided in the Code or any other statutes 2) Burden on the defence is LIGHTER than on the prosecution - Baldev Singh v PP [1985]2 MLJ 435

What is Proof Beyond Reasonable Doubt

1) This standard of proof is a heavier burden than prima facie. 2) It does not extend to proving a case beyond the shadow of a doubt nor does it mean a fanciful or imaginary doubt. 3) The kind of proof by adducing evidence which is so probable that any reasonable or prudent person ought to accept that such evidence under the circumstances of the particular case exists Miller v Minister of Pensions [1947]2 All ER 372 .....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 wdoubt, but nothing short of that will suffice.

What is the Duty of the Court 1) END PROSECUTION CASE (f)(i)

1) f)(ii) no PF- acquit 2) (h)(i) PF - call for defence

What is the Second Example of the difference btwn PF and BRD

Another example which helps to further illustrate the point that there is a fundamental difference between applying a mere ͚prima facie͛ std of proof & the beyond all reasonable doubt std of proof͛, at the intermediate stage of the trial, would be where at the conclusion of the prosecution͛s case, there is strong prosecution evidence but there remains a reasonable tenable doubt. In such a situation, if the std of proof is a mere ͚prima facie case͛, in other words, a mere prima facie supposition that the accused may be guilty, then also the trial must proceed, & the defence would have to be called. On the other hand, if the std of proof is beyond all reasonable doubt͛, then, in the situation just mentioned, the prosecution will have failed to satisfy the test, & the accused would have to be acquitted & discharged without his defence being called

What is the meaning of Reasonable Doubt

DATUK MOKHTAR HASHIM "Despite all this, the test to apply at the end of the defence is still the ͚normal test͛ that is whether the defence has succeeded in casting a doubt on the prosecution͛s story.... To warrant an acquittal however, the doubt created must not merely be a fleeting doubt or a capricious doubt in respect of which a substantial reason can be given"

What are 4 possibilities at 2 different stages of trial

Duty of the Court 1) END PROSECUTION CASE (f)(i) 2) END OF TRIAL (m)

What does para 173 f, h, m pertain to

Duty of the court at the close of the case for the prosecution case and at the end of trial

What is Prima facie

PP v Chin Yoke [1940] MLJ 47 A litigating party is said to have a prima facie when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only be rebutting evidence adduced by the other side

Sarkar defines Prima Facie as

Prima facie evidence as ͚evidence which, if accepted appears to be sufficient to establish a fact unless rebutted by acceptable evidence to the contrary. It is not conclusive.͛ Adopted by Mohd Azmi SCJ in Arulpragasan a/l Sandaraju v PP [1997] MLJ 1

What is the difference between PF and BRD

Two examples given Arulpragasam v PP "take a case where the prosecution͛s evidence points to 2 likely inferences, one consistent with guilt, the other with innocence. In such situation, if the standard of proof is that of a mere ͚prima facie case͛, in other words, ͚a prima facie supposition that the accused may be guilty͛, then the trial ought to proceed & the defence would have to be called (see Karam Singh v PP [1967] 2 MLJ 25 at p 30) If on the other hand, the standard of proof is ͚BRD͛, then in the situation just mentioned, the prosecution will have failed to satisfy the test, and the accused would have to be acquitted & discharged without his defence being called.