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PRE Trial Notes - GOodluck !
Criminal Procedure II (LAD5073)
Universiti Sains Islam Malaysia
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PRE TRIAL-PROCESS
It is a procedure before full trial (case management in preparing all the bundle of pleadings) Important section: S172A & S172B
- PRE TRIAL-CONFERENCE (S172A) Sec 172A (1): accused who is charged with a criminal offense and claims trial (meaning they intend to contest the charges) must be represented by an advocate (defence counsel) during the PTC. Sec 172A (2): begin within 30 days from the date the accused was charged in court / at any reasonable time before the CM (process of managing the legal and procedural aspects of a case before trial). Sec 172A (3): allows flexibility in conducting PTC through various means which deemed appropriate (physical meet or video conferencing). Sec 172A (4): PP & DC discuss various matters related to the case, as specified in the relevant legal provisions. Sec 172A (5): agreement during PTC will reduced in writing and signed by accused, PP & DC. Sec 172A (6): any agreements / admissions made during the PTC, admissible in court during the trial phase.
2) CASE MANAGEMENT (S172B)
Sec 172B (1): court shall commence within 60 days before the accused charged and trial. Sec 172B (2): discussion of legal matters. Eg: alibi (s), written statements as evidence (s), formal admissions of facts (s), & disposal of seized articles (s) Sec 172B (3): subsequent CM may be held less than 2 weeks before trial for further preparation. Sec 172B (4): trial shall commence within 90 days from the charged date Sec 172B (5): failure for CM or the trial shall not render the charge or prosecution invalid automatically and it is not a ground for appeal, review, or revision. Sec 172B (6): failure for CM or the trial shall not render the charge or prosecution invalid automatically and it is not a ground for appeal, review, or revision. If accused unrepresented, no PTC proceed to CM
PLEA BARGAINING
Legal process which the accused and PP work together to reach a mutual agreement before trial. A way for accused and PP deal before trial. A) 2 TYPES PLEA BARGAINING a) Charge Reduction: the accused plead guilty to a less serious charge b) Sentence Reduction: the accused plead guilty to original charge in exchange for a reduced sentence © New Tuck Shen – Pre amend prohibit PB and cannot bound © Manimaran Manickam – allowed PB B) PROCEDURE OF PB Sec 172C (1): accused through lawyer must submit a written application in Form 28A to the court about the plea details. Sec 172C (2): once court receive, notice will be given to PP & accused asking them to court on specific date for plea hearing. Sec 172C (3): During the hearing, PnC meet between court and accused to ensure their willingness and voluntariness. Sec 172C (4): If the accused is genuinely willing, accused and the PP will work together into agreement on how the case should be resolved. Sec 172C (5): If no willingness, the court will dismiss the application, and the case will proceed to another court. Sec 172C (6): If both reach an agreement, it will be put in writing and all parties sign the agreement, court will then carry out. Sec 172C (7): no agreement is reached, the court will record it, and the case will move to another court for further proceedings. Sec 172C (8): court’s duty to ensure the PB is entirely voluntarily Sec172C (9): once deal, the court will proceed to dispose of the case according to Section 172D. Sec172F: statement during PB only can be use during PB. C) ISSUES ON PB Accused breaks his deal - Sec 172E: only allows appeal on extend and legality of the sentence.
PRE Trial Notes - GOodluck !
Course: Criminal Procedure II (LAD5073)
University: Universiti Sains Islam Malaysia
