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Criminal Litigation, TRIAL FLOW S230, Note: Adverse inference also drawn…

- - - - (+) No reasonable grounds that accused committed non-B offence
        
        (+) Further investigations accused committed some other B offence
        
        UNLESS s93(3B)
        (-) Further investigations whether accused committed B offence + NOT fine-only + r5(1) CPR belief accused may not surrender etc.
    - - (-) Court's Discretion for non-fine offences
        
        r5(1) CPR belief accused will not surrender
- - - - GDHC's Revision Powers: s401
        
        (1) Direct lower court to make further inquiry
        
        (2) • S383: Stay of Execution Pending Appeal • S389: Arrest of Respondent in Certain Cases • S390: Decision on Appeal • S392: Take Additional Evidence
        
        (3) .
        
        (4) Cannot convert acquittal into convicton
      - Specific Issue: Revision of CCDC Orders
        See CCDC map
  - - - DF Appeal Conviction (390(1)(b))
        
        (-) dismiss appeal
        
        (+) reverse + acquit/discharge, retry, remit to trial court
        
        alter finding
        
        alter sentence
        
        alter nature of sentence
        
        alter Charge*
      - Appeal Sentence (390(1)(c))
        
        alter sentence
        
        alter nature of sentence
        
        In PG Cases,
        
        set aside conviction
        
        just order
        
        other powers
      - PP Appeal Acquittal (390(1)(a))
        
        (-) dismiss appeal
        
        (+) reverse, retry, remit to trial court
        
        (+) convict w sentence
      - Appeal Order (390(1)(d))
        
        Alter
        
        Reverse
    - - Appellate to lodge NOA Form 66
        Timeline: within 14 days aft j/s/o
        
        substance of J/S/O appealed against
        
        address of service
        
        sign by appellant
        
        Registrar serve Grounds of Decision and Record of Proceedings
        
        Appellant to lodge POA
        Form 67
        (within next 14 days)
        
        To Withdraw Appeal at this stage
        
        Give written notice to the Registrar of the Supreme Court to seek leave of court to withdraw : s378(5)
        
        No automatic stay of execution of trial court decision just because of appeal : s383
        
        PP dw accused to serve sentence yet before appeal
        Accused want to retain freedom
        
        To Withdraw appeal at this stage
        
        Notice of discontinuance : s378(4)
        
        Filed with Registrar of Supreme / State Court + Serve on other party
        OR
        
        No file POA within 14 days
    - - Step 1B: Which Court?
        
        SC --> GDHC
        
        GDHC --> CA
        See 7th Column 1st Schedule for where offences are first triable
- - - - DF file and serve CFD within 2 weeks from 2nd
        
        DSB + PSB within 2 weeks after CFD
        
        Consequence:
        Adverse inference
        
        CFD
        
        Summary of defence and facts
        
        Witness list
        
        Exhibit list + DSB: serve on the prosecution a copy of each documentary exhibit
        
        Objections to fact or law in CFP
        
        PSB
        
        Every other written statement given by accused and recorded by police
        
        Documents in exhibit list
        
        Accused criminal records
        
        Consequence:
        Adverse inference
        DNATA
    - - If accused still no PG, trial dates to be fixed
    - - PP file and serve CFP within 2 weeks from 1st
        
        Contents:
        
        Charge
        
        Fact summary
        
        Witness list
        
        Exhibit list
        
        Accused's written statements that PP using as evidence
        
        AV recording
        
        Consequence:
        Adverse inference
        DNATA
        
        PP Common law disclosure obligations
    - - CFD
        S258A
        
        As accused's evidence
        
        XX or impeach accused's credit
      - CFP
        S258B
        
        S162(1) abcd may be admitted as part of the prosecution’s opening statement
    - - Apply within 7 days using form 71 petition for revision
        Threshold: Serious Injustice
        General Division of the High Court may affirm, vary or set aside any of the orders
  - - - The Prosecution’s obligation is to disclose to the Defence any unused material which tends to undermine the Prosecution’s case or strengthen the Defence’s case
        
        Likely admissible + credible and relevant
        
        Likely inadmissible BUT leads to material that is Likely admissible + credible and relevant
      - Presumption of Regularity
        
        DF must show reasonable grounds that PP had material that should have been disclosed
        
        BOP shifts to PP
        
        If Kadar breach
        
        Acquittal
        
        If material irregularity amounting to failure of justice
        
        Retrial
        
        Whether court has power to order retrial?
        If s 390(1)(b)(i) of the CPC is satisfied, in light of the established principles governing retrials
    - - Statements by material witnesses “who can be expected to confirm or, conversely, contradict an accused’s defence in material respects.
        Whether or not statement is favourable, neutral or adverse - must disclose so long as relevant to defence
        
        (-) legal non-disclosure allowed
        (-/+) Statements from prosecution witness
- - - - S230 CPC Flowchart
    - - Valid PG
        
        Admits to the SOF without qualification
        
        Even if SOF challenged, PG valid as long as not qualified
        
        S227 Accused must understand nature and consequences of PG
        
        Newton hearing
        
        If a fact is contested and is material to sentencing.
        
        Exceptional
        
        Sentencing
        
        Charges TIC S148
        
        Prosecution’s Address on Sentence & Accused’s Antecedents
        
        Criminal records, victim impact statement, other relevant sentencing factors
        
        Mitigation Plea
        
        Must not qualify PG
        
        Principles
        
        Retribution
        
        Deterrence
        
        Prevention
        
        Rehab
        
        Concurrent Sentence + s307
        
        One-transaction rule provides that offences which are part of the same transaction should be the subject of concurrent sentences
        
        subject to s307(1) CPC i.e. if in a single transaction, there are three distinct offences, at least two must run consecutively
        
        Consecutive Sentencing + Totality Principle
        
        distinct offences committed at diff times = run consecutively
        
        subject to totality principle i.e. proportionality to crime
      - (-) Invalid PG
        
        228(4) CPC: Where the court is satisfied that any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged, the court must reject the plea of guilty.
        
        Other grounds: mistake/misunderstanding, involuntary (Md Rafiqul)
- - - - Examination in chief of PP's witness
        
        By PP
        
        XX By defence
        
        PP re-examine witness s 230(1)(e)
        
        PP Conclude Case 230(1)(f)
        
        Test at Close of PP's Case
        
        Defendant can argue "no case to answer" because prima facie case not met
        
        PP can reply
        
        Prima Facie Case = Court calls accused to give defence (s230(1)(j))
        
        Haw Tua v PP
        
        (1) Whether there is some evidence that is not inherently incredible, and
        
        (2) they satisfy each element of the charge as framed (s 230(1)(j) CPC).
        
        Defence's Case
        s 230(1)(n)(ii)
        
        Court reads standard allocution to DF
        
        Before presenting his evidence: State the facts/law he intends to rely upon
        
        Procedure for examining Defence Witness: s 230(1)(p)
        
        Accused/DF Witness gives defence
        
        XX by co-accused
        
        Re-X by PP
        
        Court's Discretion to Recall / Summon Witness (s283(1))
        
        Must recall if evidence is essential to making just decision
        
        Clarify evidence, address inadequacies
        
        If charge is altered or new charge framed by Court
        
        1 more item...
        
        PG
        s 230(1)(n)(i)
        
        no prima facie case = DATA (s230(1)(k))
        
        Adverse inference for not calling material witness
        
        Depends on materiality of witness
        (satli, vs beh chew boo)
        
        Impeachment of DF/PP Witness
        
        If any witness forgets, DF/PP can impeach
        
        3 Grounds of Impeachment (others testify that W is unworthy of credit, W bribed/corrupted, inconsistent statements,
        
        Effect of Impeachment:
        A: Admit or Disregard?
        B: Calibrate Weight
        Factors - contemporaneity, incentive to conceal/misrep, explanation of inconsistency, cogency & coherence of the facts to be relied upon