FACULTY OF LAW (FOL)

TUTORIAL 6 – Week 7

Tutorial 6 (High Court Trials)

11. What are the similarities and differences between a summary and high court
trial?

12. The accused Othman was charged with the offence of murder. At the end of the
prosecution’s case, the High Court judge ordered the accused to enter his defense
stating that reasons need not bevbgggggggg given that there was a prima facie
case established by the prosecution. Discuss.

OTHERS:

Question:

X visited his brother in Johor Bahru, Johor on Monday 30 April 2007 between 9.00 am and
5.00 pm. However, he was accused of having committed the offence of theft in a dwelling
house in Rawang, Selangor at 2.30pm on the same date. He has retained you to defend
him.

Advise X on the defence and the criminal procedure available and applicable to him.

Suggested Answer:

1.Issue: To advise X on the defence and the criminal procedure available and applicable to
him. Since X was in Johor Bahru on the date and time of the offence, X is advised to raise
the defence of alibi.

2. Law:

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s.173(j)(iii) CPC
s.402A(1) CPC
s.402A(2)

Reason – to enable police to investigate whether there is fabrication of evidence of alibi

(Rangapula; Kirshnan)

3.Vasan Singh – Evidence of bare denial is not admissable – 2 grounds for bare denial:
i. A is denying he was at the scene of the crime e.g – ‘I was in Hong Kong’, ‘I was
sleeping’, ‘I was not there’ etc and
ii. A is not adducung any evidence in support of (i) i.e. not calling witness, not
adducing plan tickets, passport, etc.

4. 10 days notice is mandatory: (KU LIP SEE: RANGAPULA)

5. Hussin bin Sillit – Held: a formal written notice must be given and not notice in caution
statement.
6. Krishnan – written notice can be written and signed by himself (Accused) or by his
solicitor.

S.402A – can put in defence of alibi anytime so long as police given enough time to
investigate. Further Elaborate.

7. Application:
In the event, X complied to all procedures he may successfully raise a defence of alibi.

Ouestion:

On 14.4.2005, Din was arrested for the offence of causing grevious hurt to Ali at house No.
3, Jalan Keris, Johor Bahru on 1.4.2005 at 7.30pm. Din was charge with the offence in the
Session Court at Johor Bahru. Din claimed trial and the case was fixed for hearing on
13.6.2005.

Din retained Ahmad as his counsel and informed Ahmad that on 1.4.2005 he was in
Singapore. Din produced his passport to Ahmad which showed that Din had entered
Singapore on 30.3.2005 and only returned to Malaysia on 7.4.2005.

Prior to the commencement of the trial on 13.6.2005, Ahmad had given a thrity days notice
in writing to the prosecuting officer of the Session Court at Johor Bahru that Din was in
Singapore at the time of the alleged offence. The written notice also contained particulars
of Din’s place of stay in Singapore including the dates of his entry in Singapore and return
to Malaysia.

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When the trial commenced, Ahmad suggested to all the prosecution witness that Din was
in Singapore at the time of alleged offence. At the end of the prosecution’s case, the court
called upon Din to enter on his defence.

When Din gave evidence stating his alibi, the prosecuting officer objected. Ahmad
informed the Court that the prosecuting officer was not entitled to object as Din had
alerady given notice to the prosecuting officer that Din was relying on the defence of alibi.

The Session Court judge agreed and allowed Ahmad to proceed with the defence of alibi.
At the end of the defence case, the Session Court Judge acquitted and discharged Din.

The prosecution now wishes to appeal against the said acquittal and discharge of Din by
the Session Court Judge.

Discuss

Suggested Answer:

1.Brief Facts: Din claimed trial for a charge of causing grevious hurt to Ali in Johor Nahru
on 1.4.2005 at 7.30pm. Din’s counsel, Ahmad had given a 30 days notice in writing to the
prosecuting officer of the Session Court at Johor Bahru that Din was in Singapore at the
date and time of the alledge offence. The notice contained the particulars of the place and
dates of entry to Sigapore and return to Malaysia. The Session Judge allowed Ahmad to
proceed with the defence of alibi and at the end of the defence case, Din was acquitted
and discharged. The Prosecution now wishes to appeal.

2.Issue:- TO discuss whether the prosecution may appeal on the ground that the defence
of alibi should not have been allowed.

3. s.173(j)(iii) CPC
4. s.402A(1) CPC
5. s.402A(2) CPC

Reason – to enable police to investigate whether there is fabrication of evidence of alibi

(Rangapula; Kirshnan)

3.Vasan Singh – Evidence of bare denial is not admissable – 2 grounds for bare denial:
i. A is denying he was at the scene of the crime e.g – ‘I was in Hong Kong’, ‘I was
sleeping’, ‘I was not there’ etc and

FOL/FORM
05.07.2013
 ii. A is not adducung any evidence in support of (i) i.e. not calling witness, not
adducung plan tickets, passport, etc.

4. 10 days notice is mandatory: (KU LIP SEE: RANGAPULA)

5. Hussin bin Sillit – Held: a formal written notice must be given and not notice in caution
statement.
6. Krishnan – written notice can be written and signed by himself (Accused) or by his
solicitor.

S.402A – can put in defence of alibi anytime so long as police given enough time to
investigate. Further Elaborate.

7. Application:
On the facts, Ahmad has given a 30 days written notice to the prosecuting officer which
contains the particulars of the place, time. However, the written notice was only given to
the prosecuting officer and not the Public Prosecutor.

If a strict interpretation is taken then the written notice is defective and the prosecution has
grounds to appeal. However, if the written notice is valid, then the prosecution has no
grounds to appeal.

FOL/FORM
05.07.2013