Monday, April 7, 2008

PRIMA FACIE-[CRIMINAL PROCEDURE CODE]

(a) What do you understand with the word “prima facie”?

Prima facie is an element that usually arises at the end of the prosecution case where there will be a determination whether a prima facie case has been made out that is to say, whether there is some evidence which, if believed, establishes the essential elements of the offence charged. If there is such evidence, then the defence must be called but care must be taken to leave suspended the question of the veracity and accuracy of recollection of witnesses until after the close of the case for defence. The definition of prima facie can be seen from various of interpretation about it where, according to the Black law Dictionary, it states prima facie as at first sight on first appearance but subjected to further evidence or information. Besides that this dictionary also state that prima facie is a sufficient element to establish a fact or raise a presumption unless disproved or rebutted or in other words the establishment of a legally required rebuttable presumption. This means according to Black Law Dictionary, prima facie can be concluded as a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favour. Apart from that, the definition of prima facie also can be seen in Burton Legal Thesaurus by William Burton that says, prima facie is adequate, lawfully sufficient, legally adequate, satisfactory, sufficient on its face, sufficient on the pleadings, sufficient to make out a case and sufficiently strong. This means that, prima facie is apparently at first glance at the first sight before further examination had been done. Next, we have the definition by the Law Lexicon written by P.Ramanathan Iyyer that says, a prima facie is a element that formed on the first appearance as far as can be judged from the first disclosure or a fact that presumed to be true unless disproved by some evidence to the contrary. Besides that, the Law Lexicon also states that a prima facie case is a case made out by sufficient testimony where one which is established by sufficient evidence and can be overthrown only by rebutting evidence adduced on the other side. So this means, a prima facie case is amount of evidence which would be sufficient to counterbalance the original or general presumption of innocence and warrant a conviction if not then encountered and controlled by evidence tending to contradict it and render it improbable, or to prove other facts inconsistent with it. According to the Canadian Law Dictionary prima facie stated as at the first glance or on the surface that means covers of allegations made and which if they are believed is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent employer. Then definition given by the Australian Legal Dictionary about prima facie tells that, the sufficiency of evidence upon which a person could be convicted of an offence or talking the evidence of the prosecution at its highest. Prima facie also tells that a evidence which is capable of proving the elements of the offence beyond reasonable doubt. We also can refer certain cases that states about prima facie that is the case of A.Ragunathan v PP, where the court held according to the given statement, the court have to determine whether to accused the person by relating the statement with elements in the charge, and if accepted the charge against him will be prosecuted. This then followed in the case of PP v Abdullah bin Ismail [1983], Justice Seah said the High Court was bound by the ruling of the Federal court in Ragunathan. His Lordship said that the test of a prima facie case is ‘if I were to accept the prosecution evidence as accurate would it establish the case against the accused beyond reasonable doubt?’ Next, we can refer to the case of PP v Chin Yoke [1940], where a party state to have an prima facie case, it regards that he have an evidence that cannot be rebutted by the opposing party. The court also held that a prima facie case can be seen at the end of the prosecution case and then the accused will call to plead guilty or call for defence. If he was to be call for defence, he must answer the prima facie which has thus been made out against him. If, however, on the other hand, after weighing up such evidence for the prosecution one is satisfied that it would be wholly unsafe to convict upon such evidence standing alone. The prima facie case can only be broken by relating the element of beyond reasonable doubt. However, on the other hand if after weighing up such evidence for the prosecution, and resulting there is no prima facie case, the accused should not be called on for his defence. So this means, a prima facie case is established by sufficient evidence, and can be overthrown only rebutting evidence adduced on the other side.

(b) Dicuss the degree of proof required to establish a prima facie case.

The degree of proof or the burden of proof can be defined as a burden imposed on a party to prove fact or facts in issue. The burden of proof also sometimes referred to as the persuasive burden or the non persuasion, phrases which indicate that a party bearing the legal burden on a fact in issue will lose on that issue if the burden is not discharge to the required standard of proof. The standard of proof required to discharge the legal burden varies according to whether the burden is borne by the prosecution or defence. If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt. We can relate this to the case of Woolmington v DPP [1935], where Lord Viscount Sanky state that “throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what i have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by the prosecution or the prisoner, as to whether the prisoner killed the ceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial the principal that the prosecution must prove the guilt of the prisoner is part of the Common Law of England and no attempt to whittle it down can be entertained. Next, to see the degree of proof established a prima facie case, we have to refer to two landmark cases to determine the degree of proof required to establish a prima facie case, that is the case of Haw Tua Tau [1981], where this case states about the lower standard of proof that based upon the minimal evaluation of the prosecution evidence. In this case, the prosecutor had succeeded in proving the case to be a prima facie case, where this means the court had decided to call for defence. The defence have to raise the element of beyond reasonable doubt to squash the prima facie case proven by the prosecution, and if the accused remain silent, this will amount that the defence fail to raise up the element of beyond reasonable doubt, and resulting to the accused to be convicted. This also can be seen in the case of Wong Ah Mee v PP [1970], where the magistrate held that when the accused remain silent, this will amount to a conviction. The court also held that the prosecution had failed to adduced sufficient evidence which, if unrebutted, could warrant a conviction at the close of the prosecution case and that the accused should not have been called to enter. The court approved the magistrate’s action in convicting the accused after she decided to remain silent. Besides that, in the case of Haw Tua Tau, it has called the minimal evaluation of the prosecution evidence where the phrase of prima facie had been described as the court can still decide to acquit him by reviewing the evidence again and then make a conclusion that the case had depended on evidence of witnesses whose veracity accuracy and credibility had been seriously impute. So, there will be no prima facie when the fact adduced by the prosecution are inherently incredible have not established each essential element of the alleged offence. This will be followed by the call for defence and if the accused remain silent the court will convict the accused because of the failure to prove the element of reasonable doubt in the part of the defence. The situation that changed when the CPC (FMS Chapter. 6) was amended on 30 January 1997 by the CPC (Amendment) Act 1997 to provide for a prima facie standard of proof at the close of the case of the prosecution, where to determine the degree of establishing a prima facie case and the consequences of the amendment can be seen in the case of Arulpragasam v PP [1997], where this case tells about, whether the duty of the prosecution at the end of their case is to proof prima facie case or a case beyond reasonable doubt. In this case, CJ. Eusoff Chin states that it is treaty law that the onus is on the prosecution throughout the case in any criminal trial to prove the charge against the accused. Beyond reasonable doubt in my view is the same standard of proof applies at the intermediate stage of the trial i.e. at the close of the prosecution. So, this means as the requirement was maximum evaluation of evidence tendered by the prosecution, the prosecution side have to proof all the ingredients about the charge at the end of the prosecution case and then the court will determine by evaluating all the evidence and then decide, whether to call for defence or not. This also means that, in this case the element of maximum evaluation of the evidence that will tendered by the prosecution and more vigorous test of credibility was to be applied to the prosecution’s evidence, instead of the much lower Haw TuaTau standard of proof of a mere prima facie case which called for a minimal evaluation of the evidence tendered by the prosecution. We also can refer to cases such as PP v Haniff Basree Abdul Rahman [2004], that says the OKT was charged under murder, that an offence charged under Section 302 of the Penal Code. The issue whether the Public Prosecutor had made out a prima facie case can be seen where at the end of prosecutions case, the court has to decide whether the PP has succeeded in establishing prima facie case against OKT. This court is bound by the maximum evaluation of the evidence as laid down in Looi Kow Chai v PP [2003], to determine whether the evidence could be accepted as accurate to establish the essential elements of this offence facing the OKT. Besides that, the scientific evidence fell short of the standard needed in establishing a prima facie case, especially the existence of the unknown male being seemingly the last person to have been with the deceased, were laden with doubts, this evidence on its own was destructive of the PP’s case. So, in this case, the court held that PP has failed to establish a prima facie case and the accused was acquitted and discharged accordingly. The degree of proof to establish a prima facie case also can be seen in the case of PP v Ayyavoo [2004], that says, the OKT were charged with murder , an offence punishable under Section 302 read with Section 34 of the Penal Code. The PP introduced evidence through 12 witnesses to testify against the OKT with their key witness being a 76 years old man, who had identified the OKT’s as being responsible for the death of the deceased . The court agreed with the decision in PP v Saare Hama [2001] and PP v Ong Cheng Heong [1998] subjecting the evidence of PP to maximum evaluation to determine if the defence is to be called does not mean that the PP has to prove its case beyond reasonable doubt. PP had failed to establish a prima facie case against both OKT’s on the charge of murder and the identity of the persons responsible for the offences charged or any other offence on the date, time and place as framed by the PP. Accordingly, both OKT’s were acquitted and discharged without calling for their defence. Another example to be given is as relating to the case of PP v Yap Fook Choy [2004] that says the OKT was charged with trafficking in dangerous drugs under Section 39B(1) of the Dangerous Drugs Act. The OKT was found with plastic containing methamphetamine. Issue in this case whether there is a prima facie case, the court held that they are well aware that the following ingredients must be proved beyond reasonable doubt by PP, and the court agreed with the learned DPP that the OKT had physical control of the impugned drugs based on the drugs found with him. After careful examination and evaluation of the evidence in its entirely and after perusal of all authorities filed into this court, there is overwhelming evidence to show that the PP has proved its case beyond reasonable doubt and that the defence failed to raise any reasonable doubt on the PP’s case. OKT was found guilty, convicted of trafficking and death sentence was imposed.

(c) On the prima facie test, once defence is called but the Accused elects to remain silent and offers no evidence, whether appropriate for him to be convicted on the same material?

As for this question, if a defence is called but the accused elects to remain silent and offer no evidence he can be convicted on the same material. This can be related by viewing to the case of Pavone v PP [1984], Edgar Joseph Jr. (as he then was) also noted that Ragunathan v PP [1982] 1 MLJ 139, bound him in the High Court “notwithstanding the powerful dissent of Professor Ahmad Ibrahim”. According to his lordship the sole question at the close of the case of the prosecution is whether or not a prima facie case has been made out, that is to say, whether there is some evidence (not inherently incredible) which, if believed, establishes the essential elements of the offence charged. If there is such evidence, then the defence must be called but care must be taken to leave suspended the question of the veracity and accuracy of recollection of the witnesses until after the close of the case for the defence. This applies even where, as here, the defence elects to remain silent and calls no evidence. Consequently, in a proper case, there is nothing illegal in a magistrate or president calling for defence upon prima facie evidence being adduced and then proceeding to acquit and discharge even when the accused elects to remain silent and to call no evidence if not satisfied that the charge has been established by the prosecution beyond all reasonable doubt. Besides that, in the case of PP v Man bin Abbas, that states if proven that there is a prima facie case in the end of the prosecution case, there will be a call for defence, and if the accused remain silent , so he will be convicted. The court also held that situation before the case of Haw Tua Tau also should be stated where it tells that a prima facie case on those days is a prosecutor had proven his case and a call for defence had been declared to raise the reasonable doubt on the prima facie case proved by the prosecutor. If the accused remain silent, he failed to raise the reasonable doubt in the case he was charged and resulting him to a conviction. We also can refer to the case of PP v Goh Kim Looi, where in this case, the court under JC Vincent Ng state that if an accused choose to remain silent and calls no evidence, there will be an automatic conviction. Besides that, in the case of PP v Muhamad bin Zakaria [1999], the accused was charged for trafficking 9617 grams ofr cannabis under Section 39B(1) of the Dangerous Drugs Act 1952. At the end of the prosecution, the prosecutor had proved a prima facie case under Section 6 of Act. The defence was called and the accused chooses to keep silent and not tender any evidence. The court held that after taking into consideration all the evidence adduced before it was satisfied that the prosecution had proved its case beyond reasonable doubt. By keeping silent, the accused had failed to rebut the prima facie case. This failure resulted in the prosecution proving its case beyond reasonable doubt. The accused by keeping silent had saved the court’s time and as such the court would grant a discount on the sentence that was supposed to be meted out. We also can refer to the case of Wong Ah Mee v PP [1970], where the magistrate satisfied that there is a prima facie that has been proved and he called for defence. The accused choose to remain silent and he was convicted. The Court of Appeal held that, the prosecution had failed to adduce sufficient evidence which, if unrebutted, could warrant a conviction at the close of the prosecution case and that the accused should not have been called to enter her defence to remain silent. But, the court also state the decision from the magistrate in this case that if an accused chooses to remain silent and do not want to tender any evidence or defence, he will be convicted. We also can refer to the case of Tan Ah Ting v PP [1974] where it tells that J. Wan Suleiman held if the court decides an prima facie case and call for the defence. At that stage if the accused remain silent, the case will proved as no reasonable doubt raised by the defence.

(d) Whether the current legislative amendment above (section 173(f) CPC) on the prima facie standard of proof at the close of the prosecution’s have retrospective effect?

In this perspective about the current legislative amendment above Section 173(f) on the prima facie standard of proof at the close of the prosecutions have retrospective effect, the answer there is no retrospective effect that can be seen. This is because the amendment of the Criminal Code Procedure (FMS Chap. 6)(CPC) that is on 30 January 1997 by the Criminal Procedure (Amendment) Act 1997 is basically to provide the element of prima facie at the end of the prosecution case. This followed Parliment’s disagreement with the majority view of the Federal Court in Arulpragasam a/l Sandaraju v PP [1997] that the duty of the prosecution at the end of its case is to prove a case beyond reasonable doubt. To be more specific, this amendment is to clarify that the duty of the prosecution is to prove the case is beyond the reasonable doubt. We can see that there is no retrospective effect on the current legislative amendment on the prima facie standard of proof by distinguishing this two case that state the same thing. The cases are Bahruni bin Ismail [1997] and Dalip Bhagwan Singh v PP [1998], where in this cases the Federal Court held that there is no retrospective effect towards the amendment. In the case of Bahruni bin Ismail v PP, the court state that the amendment can only be enforced to cases that produced to the court after the date the amendment is enforced, and this amendment is not applicable to cases filed before the date of amendment that is in the year of 1997. This method also had been followed in the case of Dalip Bhagwan Singh v PP, where the test in the case of Arulpragasam will still apply for cases that had been filed before the amendment or the exact date before 31 January 1997. Apart from that, we also can relate the issue of retrospective effect towards amendment by viewing to the case of Surandran a/l Rajaretnam v PP [1998], where the issue is the determining of proving whether the prosecution at the end of his prosecution case have to prove a prima facie case or the element of beyond reasonable doubt. So, the court in this case held that, to all intents and purposes, the standard of proof to be applied in all cases whether before or after Arulpragasan’s decision, must necessarily be beyond reasonable doubt. The same procedure also applies in the case of Harun bin Abdullah v PP [1998], where the same issue had been arrised whether a prosecution at the end of the trial have to proof a prima facie element or the concept of the beyond reasonable doubt. The court held that the decision in the case of Arulpragasan had stated clearly that the standard of proof needed at the end of the prosecution case is beyond reasonable doubt, similar to the stated amendment to Section 180 of the Criminal Procredure Code to provide for prima facie standard of proof at the close of the case for the prosecution took effect only after 31 January 1997 and there is nothing in the amendment to give it retrospective effect. This means that the said current legislative amendment above (section 173(f) of the Criminal Procedure Code on the prima facie standard of proof at the close of the prosecution’s does not have a retrospective effect because if it given the chance to run retrospectively, it will make an act cannot evidentially be proved at any time to have been committed beyond a reasonable doubt at the prosecution’s case, the perpetrator of the act or omission would not be called for his defence and therefore would not be punishable any more. But if the act or omission in question not punishable in the way stated above can be proved by way of a prima facie case at the close of the prosecution case, that means a much lesser burden of proof, then the said perpetrator will have his defence called. So, it is clear that at the end of the prosecution case, had to be proved beyond reasonable doubt.

Conclusion

As for the conclusion, prima facie is a sufficient element to establish a fact or raise a presumption unless disproved or rebutted or in other words the establishment of a legally required rebuttable presumption and it will arise at the end of the prosecution case where there will be a determination whether a prima facie case has been made out. Besides that, the degree of proof to establish a prima facie case is the way of discharging legal burden according to whether the burden is borne by the prosecution or defence. If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt and if it is borne by the defence, so they have to prove reasonable doubts to squash the prima facie proven by the prosecutor. Next, current legislative amendment above (section 173(f) CPC) on the prima facie standard of proof at the close of the prosecution’s does not have the retrospective effect due to the standard of proof to be applied in all cases whether before or after Arulpragasan’s decision, must necessarily be beyond reasonable doubt.

No comments: