Court Should Be Judicious In Striking Out Appeals By Prosecution Says Lawyer

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The appellate court should grant the prosecution liberty to reinstate its appeal if a previously non-contactable acquitted respondent is subsequently located, suggests lawyer A Srimurugan. (Reuters pic)PETALING JAYA: A lawyer has proposed a solution to avoid prosecution appeals being permanently struck down when the police are unable to serve notices compelling acquitted respondents to appear in court for their hearing.
Lawyer A Srimurugan suggested that, when annulling an appeal for non-service, the appellate court also give the prosecution liberty to reinstate the case if the police subsequently locate the respondent.
“Appeals relating to capital punishment cases and offences which carry long prison terms, including rape and armed robbery, should not be struck out easily,” he said.
Srimurugan said the courts in Singapore would hear appeals in the absence of respondents if it can be shown that they were evading service.
Ads by Kiosked“Unfortunately, our courts have not made such a ruling, as it may amount to a breach of natural justice,” he said.
He said Section 60 of the Courts of Judicature Act 1964 appears to allow the appellate courts to deal with such matters as practised in Singapore.
However, he said a question also arises as to whether the judiciary would be encroaching on the discretionary powers of the attorney-general and the public prosecutor’s right to withdraw any case as provided under Article 145(3) of the Federal Constitution.
Srimurugan said this in response to a Court of Appeal bench allowing the prosecution to withdraw its appeal in a drug trafficking case last week after the police were unable to serve the respondent with a notice requiring his presence at the hearing.
Justice Kamaludin Said, who chaired the panel, had asked the prosecution to explain why the police was finding it difficult to locate respondents.
“In those days, eight of 10 notices could be served, but these days, even one is difficult,” remarked the judge, who was once a senior federal counsel in the Attorney-General’s Chambers.
Ads by KioskedThe court was told that six attempts had been made to trace the man who was acquitted by the High Court, with the prosecution producing a policeman’s diary detailing steps taken to locate the respondent.
The procedure is for the court to issue the notice of hearing, and for the prosecution, through the police, to locate the respondent and ensure his presence in court.
Srimurugan said the victims of a crime and the state would be aggrieved if the prosecution, which represents the public interest, is frustrated in its attempt to exhaust its right of appeal.
He said the police ought to be able to track down those who are required to submit to the legal process, as Malaysia is a small country.
Lawyer KA Ramu, in agreeing, noted that the police had legal power and sufficient resources to track down individuals and compel their presence in court should the prosecution appeal against their acquittal.
“In fact, today, there are sophisticated tools to trace them, including via mobile phone numbers, bank accounts and credit card numbers.
Ads by Kiosked“It is a waste of time and resources on the part of the prosecution and the court if an appeal hearing cannot proceed,” he told FMT.
Ramu said the problem arose only with Malaysians, since they are entitled to remain free pending appeal if acquitted by a trial court.
“It is not an issue with foreigners as the prosecution will apply to detain them pending the outcome of their final appeal,” he said. - FMT

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