The Book of Prof Shad.docx

These calls draw our attention to the constitutional

Info icon This preview shows pages 41–43. Sign up to view the full content.

These calls draw our attention to the constitutional prohibition in Article 7(2) against “double jeopardy”. There is also the fact that the offender’s crimes were committed outside our country and outside the jurisdiction of our courts. Article 7(2) of the Federal Constitution provides that “a person who has been acquitted or convicted of an offence shall not be tried again for the same offence…” Section 303 of the Criminal Procedure Code contains a similar rule. This means that no person should be imperiled by subsequent criminal prosecutions if he has already been adjudged to be guilty. Likewise, an acquittal is a permanent bar to a new trial for the same offence on the same set of facts. So strongly is this rule entrenched in the firmament of criminal justice that even if the law is subsequently amended; even if new evidence comes to light; even if an acquitted person voluntarily makes a confession; or even if defense witnesses recant, the earlier trial cannot be reopened. The verdict in the earlier trial is final for all times to come! However in life as in law no rule is ever absolute. Article 7(2) does not forbid retrial in a number of situations. Discharge: A discharge does not amount to an acquittal. A discharge results in discontinuation of the trial for a variety of reasons – be it the court’s lack of jurisdiction, the absence of witnesses, the insufficiency of evidence, or the prosecutor’s decision that the public interest will not be served by continuation of the proceedings. A discharge may also result because the charges are badly framed: Uthaykumar a/l Ponnusamy [2003] 5MLJ 433 Quashing of earlier trial: The rule against double jeopardy does not apply if the previous trial was quashed by a superior court and a re-trial ordered. This is provided for in Article 7(2) and affirmed in the cases of Sau Soo Kim v PP (1975) 2 MLJ 134 and Fan Yew Teng v PP (1975) 2 MLJ 235. 41
Image of page 41

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Different offence: If in the subsequent trial, the accused is tried for a different offence on the same set of facts, there is no violation of the Constitution if the accused could not have been charged with or convicted of that different offence in the court which convicted him first. In Jamali Adnan (1986) 1 MLJ 163 it was held that ‘different offence’ means an offence, whose ingredients are not the same. Technical errors: In Re Datuk James Wong Kim Min (1976) 2 MLJ 245 the Plaintiff was detained in West Malaysia under a law that applied only in Sarawak. A writ of habeas corpus was issued to order his release. But this release did not bar a subsequent detention order which was properly made out under the correct law. Appeals: If a person is acquitted and the Prosecutor files an appeal under section 5 of the Court of Judicature (Amendment) Act 1976, there is no double jeopardy.
Image of page 42
Image of page 43
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern