Criminal Procedure - Preliminary Inquiries

What is the purpose of a PI- To ensure that only cases where there is sufficient evidence go up to the High Court for trial- Not a Trial not pre trial conference either

ndash unlike trials in sub courts which are called summary trials because no prelim inquiry therefore summary in nature

- Preliminary inquiries are held for all criminal cases sent to the High Court for trial eg capital offences such as murder and drug trafficking offences

- The purpose of a preliminary inquiry is to satisfy the examining magistrate that there is sufficient credible evidence to commit the accused to trial before the High Court

o However as a preliminary inquiry is not a trial it is not the duty of the examining magistrate to be satisfied that the prosecution has established a prima facie case and neither is the magistrate required to assess the credibility of the witnesses or to contemplate the accusedrsquos possible defence1

-A preliminary inquiry also provides a measure of fairness to the accused as given the seriousness of the charges against the accused it would not be fair for the accused to stand trial unless the Prosecution addresses the essential ingredients of the charges at the outset thus ensuring that there is some basis for the charges against him

-Note that those who decide not to cross examine may run risk of losing out cross examining witness when case goes to trial in HC May happen where eg witness dies before hearing so statnet will be admissible by CPC provisions And oppty to cross examine witness already given to accused at prelim inquiry and this oppty not used so wld have lost this oppty

o Be careful what you do at PI

R v Epping Harlow Justices 57 CrAppR499- Facts The applicant Raffaele Massaro was committed for trial on October 16 1972 by the justices for the Petty

Sessional Division of Epping and Harlow to Chelmsford Crown Court on a charge of indecent assault on a young girl contrary to section 14 (1) of the Sexual Offences Act 1956 At the committal proceedings the prosecution established a prima facie case against the applicant but refused to call the complainant although pressed by the defence to do so The applicant moved for leave to apply for an order of certiorari to quash the committal order

- Held The function of committal proceedings is to ensure that no one shall stand his trial unless a prima facie case against him has been made out Provided that the prosecution can establish a prima facie case by the witnesses whom they do call they are not obliged to call any particular witness even though that witness be a very important one such as the complainant on a charge of a sexual offence and even though the defence desire that witness to be called

- purpose of committal proceedings- young girl victim of sexual offence prosecutor had suff evid from other witnesses and they used evid of other

witneses to make out case at PI stage but did not cal young girl reason being did not want her to be subj to x exam at PI stage and trial stage

ndash without her evid there was suff evidndash accused committed to stand trial in higher cour tin UKndash defence wanted young girl to be calsled because wanted to x examine herndash took up matter on appealndash argd that because young girl was victim of crime not called crtical witnesses =gt committal shld not habve

been ordered- lord digory ndash fn of committal proceedings

ndash a safeguard For citizen to ensure that no trial if no prima facie casendash a rehearsal ndash defence counsel arg

- held ndash no one shall extend trial till case made out Pros has duty of making out case- prosecutionrsquos duty - prima facie case- If wish not to call partr witness even though very imptat committal proceedings then it is a matter within their

discretion and failre to do so cannot on any basis be said to be breach of natural justice- calling of witnesses ndash discretion- upheld committal even though critical witness not called because suff evid ot make out case whtout evid of the young

girl - fn of committal proceedings NOT A TRIAL Judge merely duty to consider whether suff evid and then commit for trial

Who presides over a PI-A preliminary inquiry is presided over by an examining magistrate under Section 138 CPC -In practice an Assistant Registrar usually presides over a PI

1 PP v Tan Choon Ang [1990] 1 MLJ 367

-A PI may also be presided over by a District Judge since under Section 9(5) of the Subordinate Courts Act every District Judge is also ex officio a magistrate

Duty of Magistrate- The Magistrate presiding over the Preliminary Inquiry must be satisfied after hearing from the Prosecutionrsquos witnesses

that there is a prima facie case against the accused person before committing him to stand trial Section 138 to 157 of the CPC governs this

PP v Tan Kim Kang [1962] 1 MLJ 388 - 1048708 Held ldquohellipMagistrate at a preliminary inquiry has to do is to see whether there is any evidence of any offence which is

triable in the High Court and if there is he is duty bound to commit the accused person for trial It is not his duty to weigh the evidence as if he was trying the case either to commit the accused for trial or to discharge himrdquo

PP v Tan Choon Ang (1990) 1 MLJ 367- duty of Magistrate- committal of Magistrate under section 304 upheld- Facts The accused was charged under s 302 of the Penal Code (FMS Cap 45) for murder At the end of the preliminary

inquiry the magistrate amended the charge to one under s 304 of the Penal Code (FMS Cap 45) and directed that the accused be tried before the sessions court The deputy public prosecutor applied to the High Court to exercise its revisionary powers and set aside the order as there were sufficient grounds to commit the accused for trial on the original charge

- Held affirming the order of the magistrate o (1)The relevant powers of a magistrate in a preliminary inquiry are contained in Chapter XVII of the Criminal

Procedure Code (FMS Cap 6) in particular ss 140 and 141 The duty of a magistrate in a preliminary inquiry is to consider if there is credible evidence to commit the accused for trial in the High Court

o (2)A preliminary inquiry is not a trial and it is not the duty of the magistrate to be satisfied that the prosecution has established a prima facie case Neither is the magistrate required to assess the credibility of the witnesses or to contemplate the accused`s possible defence

o (3)It is the duty of the magistrate to decide on the admissibility of a cautioned statement As the defence in the instant case did not seriously challenge the admissibility of the cautioned statement the magistrate was entitled under s 139(i) of the Criminal Procedure Code (FMS Cap 6) to look at the evidence of the cautioned statement to see if there was credible evidence against the accused However it is not the function of the magistrate to evaluate which evidence to accept or to reject but to leave such doubts for the trial court to resolve

o (4)On the evidence presented by the prosecution there was insufficient evidence to constitute the ingredients of the charge under s 302 Apart from the cautioned statement of the accused and evidence that the accused befriended the deceased there was no evidence to show that the accused was last seen with the deceased immediately before the death

o (5)A magistrate may when a preliminary inquiry discloses an offence triable by a sessions court frame a charge for that offence and transfer the case for hearing before a president of a sessions court The word `magistrate` in s 140(i)(b) of the Criminal Procedure Code (FMS Cap 6) would include `president`

Standard of proof at the PI

What is the test for the accused to be committed at a PI for trial in the High Court- The test to be satisfied at both the first stage (just after the prosecution has given its evidence) and the second stage (just after

the accused has given his defence if any) is that there must be some credible2 evidence to establish the essential ingredients of the offence and to commit the accused for trial and that the case is not inherently incredible or frivolous or vexatious

- However the magistrate is not supposed to (a) assess the credibility weight or quality of the evidence3 (b) consider whether the prosecution has established its case beyond a reasonable doubt4 (c) consider whether the accused has a plausible defence5

PP v Puspanathan al Sinnasamy [1996] 4 MLJ 165 - Facts The six respondents were tentatively charged at the magistratesrsquo court with murder under Section 302 of the Penal

Code (FMS Cap 45) but at the end of the preliminary inquiry the magistrate decided not to commit them to the High Court

2 Re Osman bin Abdullah [1954] MLJ 237 at 2383 Re Osman bin Abdullah [1954] MLJ 2374 Re Osman bin Abdullah [1954] MLJ 2375 Indran v PP [1985] 2 MLJ 408 at 409 Re Osman bin Abdullah [1954] MLJ 237

for trial but amended the charge to one of possession of weapons at a riot under s 148 of the Code The Public Prosecutor appealed

- 1048708 Heldo ldquohellip sufficient grounds for the magistrate to commit the case to the High Court on a charge of murder The direct

evidence showed that a number of witnesses saw the six accused persons attack the deceased with various types of dangerous weapons helliprdquo

o ldquohellipno requirement for the prosecution to prove which of the coaccused inflicted the fatal blowrdquoo ldquohellipassessment of apparent discrepancies and the weighing of testimony should have been left to the High Court

trying the caserdquoo For the purposes of the preliminary inquiry the prosecution was only required to adduce sufficient evidence

identifying the body of the deceased and was not required to prove this beyond reasonable doubt In a criminal trial as opposed to a mere preliminary inquiry the standard of proof is higher

Re Chow Kim Lin (1963) MLJ 130- Facts A Magistrate holding a preliminary inquiry into a charge of rape under Section 376 of the Penal Code made an

order discharging the person accused of that offence- Held The Magistrate is not to weigh the evidence as if he is trying a case That is the function of the trial court The order

of discharge by Magistrate was set aside- Comments In a preliminary inquiry a Magistrate ought to commit when the evidence of credible witnesses which if

believed would sustain a conviction- illustrates the above

ndash magistrate analysed evid at end of case and reduced chargendash CA held that shld not do thisndash Magistrate not to weigh evidence as if he is trying a casendash that is the function of trial courtndash order of discharge by Magistrate set aside

PP v Tan Kim Kang amp Ors (1962) MLJ 288- same as (2)- Comments Section 141 of the CPC read together with Section 142 would mean that all a Magistrate at a preliminary

inquiry has to do is to see whether there is any evidence of any offence which is triable in the High Court and if there is he is in duty bound to commit the accused person for trial It is not his duty to weigh the evidence as if he was trying the case His duty is either to commit the accused for trial or to discharge him If he thinks there are peculiar difficulties or circumstances connected with the case he should transmit the depositions to the Public Prosecutor under s 140(iv) of the Code

Mary Shim v PP (1962) MLJ 132- Comments The appellant was convicted of an offence punishable under Section 314 of the Penal Code (intent to cause

miscarriage) A discharge at a preliminary inquiry is no bar to a second preliminary inquiry on the same facts and for the same offence It does not mean that heshe is acquitted of the crime committed

- purpose of PIs ndash not a trialo to ensure suff evid before person sent for trialo here PI held and at end evid not perfect some critical evid missing as result magis ordered accused to be

discharged because evid lackingo sunbseq fresh evid came into possession of policeo so in light of further evid they fixed another PI acused charged incourt againo arg raisead was that cld not do so because accused already discharged earliero discharge of Accusedo can have another PI

- heldo discharge at end of PI not an acquittal o it does not preclude accused fr being charged again at seoncd PI held o =gt PI not a trial

Brian Peter Mann 58 CrAppR750- Held Where a witness displays evidence of hostility during committal proceedings in a Magistrates court there is no

rule which requires the prosecution then and there to treat the witness as hostile It is permissible for the prosecution to leave the matter to the trial to see how the witnesss evidence there comes out and if the witness is still hostile

obtain leave from the judge so to treat him If a witness is finally discredited in this way it is essential that the judge should advise the jury to pay no regard whatever to his evidence

- witness hostile at PIndash in trial will cross examine him

- no need to treat him as such- can leave it to the trial proper- court held that prosecution entitled to leave it as that ndash what proseiciton wanted to see was how he wld perform at

trial Cld impeach or cross examine him at trial- (see pages 755 - 756 of Lord Chief Justice Widgeryrsquos judgment)

In Re Pang Po Pah (1985) 2 MLJ 214- Facts Pursuant to a preliminary enquiry into an offence of murder under Section 302 of the PC the Magistrate

committed the accused for trial at the High Court not on the tentative charge of murder as framed by the prosecution but on a lesser charge under Section 304 of the PC The prosecution felt that the Magistrate had acted in excess of the power conferred by Section 140 and 141 and applied for revision

- Held 1)an examining Magistrate in a preliminary enquiry may frame charges on any offences triable in the High Court as he finds in the evidence and he may depart from the tentative charge as submitted by the prosecution (2)the learned Magistrate may when the preliminary enquiry evidence discloses an offence triable by a Sessions Court frame a charge for that offence and in accordance with s 14(i)(b) read with s 177 transfer the case to be tried by a President of the Sessions Court (3)in the present case the learned magistrate had acted improperly by committing a case not ordinarily triable by a High Court to this court for trial (4)a prima facie case of murder under s 302 of the Penal Code had been made out at the enquiry The order of the Magistrate should therefore be set aside and he be directed to draw a charge under s 302 of the Penal Code against the accused and to commit the accused for trial to the High Court

ndash committed under section 304 Penal Codendash on revision court said should have been under section 302ndash ingredients of offence made out duty of court not to assess credibility of factsndash that is function of the trial court

- Comments Ingredients of offence made out The duty of the court not to assess credibility of facts That is the function of the trial court

Indran amp Anor v PP (1985) 2 MLJ 408- Facts In this case the application had been committed for trial on a charge of murder The only evidence implicating

the applicants came from the respective cautioned statements of two other persons accused in the same case It was argued that the cautioned statements were exculpating to the makers and did not amount to confessions and s 30 of the Evidence Act was not applicable Even if they were confessions and s 30 of the Evidence Act applied it was argued that they could only be considered against the applicants and that there was no prima facie case against the applicants to be committed for trial The prosecution submitted that the cautioned statements would form part of the prosecution case and the weight of such evidence would be for the jury and not the committing Magistrate to consider An appeal by the applicants was dismissed on the ground that the said order of committal was not appealable The applicants applied for revision

- Held ndash (1)of at the preliminary inquiry there is credible evidence which if believe but subject to all possible lines

of defence may end in a conviction the inquiring Magistrate has no option but to commit the accused person for trial

ndash (2)the evidence of the cautioned statement of the other accused in this case is credible evidence which if believed and subject to all possible lines of defence including one of frailty of such evidence may result in a conviction The order for committal must therefore be confirmed

ndash (3)an inquiring Magistrate does not determine guilt or innocence and the expression sufficient grounds for committing the accused for trial does not denote a case proved beyond a reasonable doubt

- only evidence was co-accusedrsquos confession- court held this was sufficient for committal- Magistrate does not determine guilt or innocence at a PI

R v Kingrsquos Lynn Magistratesrsquo Court ex parte Holland (1993) 2 AER 377- discretion on whether to admit evidence- leave it to the trial court- Facts Holland applied for judicial review (1) to quash the decision of justices committing him for trial on the ground

that the justices should have excluded evidence of identification under s 78 of the Police and Criminal Evidence Act

1984 and (2) to require the justices to reopen the committal proceedings and to consider whether they should exercise their discretion under s 78 to exclude certain points of the prosecution evidence

- Held The discretion to exclude on the ground of unfairness to the accused evidence which would otherwise be admissible may be exercised by magistrates sitting as examining justices but only in the clearest case and in exceptional circumstances where they are satisfied that to admit the evidence at the trial would be so obviously unfair that no judge properly directing himself could admit it Examining magistrates should generally leave the decision on the exclusion of evidence to the trial judge who will be in a better position to assess the effect of the evidence on the fairness of the proceedings

PP v Ketmuang Banphanuk amp Anor (1995) 1 CLAS 354- local case- Facts The two accused persons were charged with an offence under Section 304(a) read with Section 34 of the Penal

Code and in furtherance of the common intention of them all did commit culpable homicide not amounting to murder by causing the death of one Mr J Both of them decided to plead guilty to the charge after the PI The prosecution prepared a statement of facts and the accused pleaded guilty The High Court judge noted that the facts in the Statement of Facts differed from the PI and rejected the guilty plea

- Held When an accused person pleads guilty to a charge a court may reject his plea The plea may be rejected because the court is not satisfied with the facts the law or his plea He is not convicted on the charge at that stage of the proceedings but that is not necessarily the end of the case CA held that evidence recorded at PI stage not before HC and therefore should not be substitutedndash PI ndash then accused committed and triedndash At HC stage charge reduced and accused pleaded guilty to reduced chargendash Statement of facts ndash details of ohw accused committed crime ndash presented to courtndash Accused accepted statement of facts as it wasndash But trial udge looked at statmenet and said some portions of it different from what was in PI statementndash So rejected some parts of statementndash Appeal lodged ndash Court of Appeal decision

Overruled trial judgendash accusedrsquos plea rejected by High Court on basis of PI recordndash refer to Mary Shimrsquos casendash held that PI records not evidence before High Court

purpose of PI only to ensure suff evid before person can be sent to HC in PI record x become evid by itself

PP v Puspanathan al Sinnasamy amp Ors (1966) 4 MLJ 165- duty of Magistrate - re discrepancies- followed Chow Kimrsquos case- Facts The six respondents were tentatively charged at the magistrates` court with murder under s 302 of the Penal

Code (FMS Cap 45) (`the Code`) but at the end of the preliminary inquiry the magistrate decided not to commit them to the High Court for trial but amended the charge to one of possession of weapons at a riot under s 148 of the Code The Public Prosecutor appealed

- Held allowing the appeal and ordering that the case be committed to the High Court for trial on the original charge of murder

ndash (1)There were sufficient grounds for the magistrate to commit the case to the High Court on a charge of murder The direct evidence showed that a number of witnesses saw the six accused persons attack the deceased with various types of dangerous weapons and the doctorrsquos evidence confirmed that the deceased died because of a head injury which could have been caused by a heavy and hard object

ndash (2)There was no requirement for the prosecution to prove which of the co-accused inflicted the fatal blow So long as it was shown that the criminal act was done by one of the assailants in furtherance of a common intention of all then liability for the crime would be imposed on any one of the persons in the same manner as if the act were done by him alone

ndash (3)The apparent discrepancies in the evidence of the prosecution witnesses were bound to exist in a case such as this and there was credible evidence which if believed would sustain a conviction Therefore the magistrate should have committed the case to the High Court and not have undertaken to assess the discrepancies The assessment of apparent discrepancies and the weighing of testimony should have been left to the judge of the High Court trying the case

ndash (4)For the purposes of the preliminary inquiry the prosecution was only required to adduce sufficient evidence identifying the body of the deceased and was not required to prove this beyond reasonable doubt In a criminal trial as opposed to a mere preliminary inquiry the standard of proof is higher

Regina v Crown Court at Leeds (2002) 1AC 754- Facts W appealed against a decision upholding a ruling by the Crown Court that a new custody time limit commenced

for the purposes of the Prosecution of Offences (Custody Time Limits) Regulations 1987 Reg 4 following substitution in the magistrates court of a charge of manslaughter in place of a charge of murder W contended that (1) a new limit did not commence in circumstances where the original offence expressly or impliedly included the new charge (2) in making the decision to substitute the Crown had been guilty of an abuse of process even in the absence of any mala fides on the part of the prosecution and (3) the decision had been in breach of the Human Rights Act 1998 Sch 1 Part I Art 5 which made provision for the right to individual liberty and to protection from arbitrary detention

- Held dismissing the appeal (Lord Nicholls of Birkenhead and Lord Scott of Foscote dissenting) that o (1) requiring magistrates to enquire whether a new charge also constituted one of the potential offences for which

a defendant might be convicted on the original charge would place an undue burden on the examining justices Accordingly each fresh and different offence charged did give rise to a new custody limit

o (2) abuse of process was not confined to instances where there was evidence of an improper motive or other dishonesty on the part of the prosecuting authority If the prosecutor was unable to justify the preferment of a fresh charge an abuse of process could potentially be found to exist However no argument concerning abuse of process had been raised before the Crown Court and

o (3) there had been no breach of Art 5 in view of the fact that the proceedings were both lawful and the consequences of the restriction imposed sufficiently accessible Whilst there was always a risk that the custody time limit might be extended as a result of an arbitrary decision by the prosecution that risk was subject to judicial control

Procedural matters pre PI

-1048617 Usually no bail offered to accused-1048617 When investigations completed PI date given by registry to parties-1048617 Counsel should inform Police and Court that acting for accused

ndash because prelim papers will the be served on u if u donrsquot inform then may lose timein getting the information for accused

-1048617 Two counsel assigned by registry to accused if facing capital charge and x have own counsel-1048617 PI held in High Court-1048617 IOs prepare draft statements based on investigations carried out-1048617 Sends to DPP for vetting

ndash for relevant evid etcndash to ensure that all relevant evidence is included and irrelevant evidence excluded

-1048617 1048617 Information to inspect other exhibits eg murder weapon drugs etc ndash make use of oppty to inspect exhibits

How many days before a PI are the prosecutionrsquos witnessesrsquo conditioned statements to be served on counsel for the accused- At least 7 days before PI copies of statements and documents served on counselo Section 141(2)(c) CPC requires that a copy of all conditioned statements be tendered to the other parties to

the proceedings not less than 7 days before the date of the PI If 7 days notice not given counsel can kick up a fuss but at most you can only get a postponement

of the PI

For HSA reports and autopsy reports is there any timeline for service of such documents on the defenceo Section 369(1) of the CPC provides that all reports by the HSA (as covered by Section 369(2)(a) and (b)

CPC) have to be served on the accused by the Prosecution not less than 10 clear days before the commencement of the inquiry trial or proceeding Under Section 2 CPC inquiry includes every inquiry conducted under the CPC before a Magistratersquos Court Therefore a preliminary inquiry is included and HSA reports and autopsy reports must be sent 10 days before the commencement of the PI to the accused

Information is then given to counsel to inspect other exhibits

Format of a Typical Statement

Name Lee Kim TianAddress co Central Police Station1234(Declaration)

Signature(Declaration)

Signature of Interpreter

Types of Statements-eg in murder case ndash what kind of statements u can expect - -1048617 Statements of

ndash Police Photographer and the set of pictures they have taken ndash Scene of Crime Unitndash DoctorsPathologistndash Police OfficersAmbulance Staffndash Witnessesndash Interpretersndash Investigating Officers (it is advisable to look at this statement initially in order to get a clearer picture)

Most impt statement Invariably the longest statement See this first ndash will give story about how he started investigating the offence

- For DC bundle is a good summary of P case as well as the evidence intended to be relied on to prove the charge

Purpose of Statements being served- to enable DC to analyse all evidence P intends to adduce- enables DC to take instructions from client accused based on evidence which has been adduced- Allows DC and A to decide which evidence to contest- Good policy for DC to inform Prosecution once DC has decided what to contest- Also useful for DC after having taken instructions to locate and gather evidence for defence instead of

merely waiting for the trial

Day of PI

How is a PI to be conducted- The PI is to be conducted according to the procedure stated in the Criminal Procedure Code - Under Section 138(1) CPC no other procedure shall be adopted before an examining magistrate where the

inquiry is held with a view to committal for trial in the High Court Also under Section 138(2) CPC if an examining magistrate is unable to complete a Preliminary Inquiry proceeding by himself another examining magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Procedure in inquiries preparatory to commitment138 mdash(1) The following procedure and no other procedure shall be adopted in inquiries before a Magistrate (referred to in this Chapter as the examining Magistrate) where the inquiry is held with a view to committal for trial to the High Court

(2) Whenever from any cause an examining Magistrate making an inquiry preliminary to committal for trial is unable conveniently to complete the proceedings of the inquiry himself another examining Magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Prosecution case- During the Inquiry the prosecution is required to present the facts so as to enable the magistrate to

determine if a possible criminal charge triable in the High Court could be sustained This is usually done via

an examination of the charges tentatively proffered against the accused vis-agrave-vis the facts but since the charges against the accused may be amended it is more important for the examining magistrate to consider whether the facts present a sustainable case against the accused

- The procedure of the PI varies depending on whether the accused wishes to plead guilty or to claim trial Under Section 139 CPC if the accused wishes to plead guilty to the tentative charges tendered by

the prosecution against him in non capital cases ndash accused person if wants to plead guilty can do so at PI stage then no need to draft statements and serve on him just prepare statement of facts he accepts them and then magis can commit him for trial at high court

the magistrate shall record the facts of the case presented by the prosecution If the facts disclose sufficient grounds for committing the accused the magistrate is required to satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence against him Thereafter he is required to commit the accused for trial for the offence

Committal for trial where accused wishes to plead guilty139 Where an accused who is brought before an examining Magistrate states that he wishes to plead guilty to the charge preferred against him the Magistrate shall record the facts of the case presented by the prosecution and if the facts disclose sufficient grounds for committing the accused he shall satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence alleged against him and on being so satisfied shall commit the accused for trial for the offence

o If the accused wishes to claim trial the Inquiry will proceed with the prosecutionrsquos presentation of the relevant facts Evidence may be taken either orally from the prosecution witness or by written depositions (under Section 141(1) CPC) if the conditions under Section 141(2) and the requirements of Section 141(3) CPC are fulfilled

Commencement of trial187 mdash(3) If the accused refuses to plead or does not plead or if he claims to be tried the court shall (b) if the accused was committed for trial under section 139 order him to be brought before an examining Magistrate for a preliminary inquiry

The conditions under Section 141(2) are that1 the statement purports to be signed by the person who made it 2 the statement contains a declaration by that person to the effect that it is true to the best of

his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true

3 before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and

4 none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section

The requirements under Section 141(3) are that1 if the statement is made by a person under the age of 21 years it shall give his age 2 if it is made by a person who cannot read it it shall be read to him before he signs it and

shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and

3 (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under [Section 141(2)(c)] shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof

- Under Section 141(5) where a written statement is admitted by virtue of Section 141 ldquo[s]o much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloudrdquo To save time the Defence Counsel can agree to treat the Prosecutionrsquos statements as read instead of requiring these statements to be read aloud in court for the purposes of the PI

- In addition the DPP will apply to the court to get the exhibits mentioned in the statement marked Under Section 141(6) ldquo[a]ny document or object referred to as an exhibit and identified in a written statement

tendered in evidence under [Section 141] shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statementrdquo

- Notwithstanding that a written statement may be admissible by virtue of having satisfied the conditions under Section 141(2) and the requirements under Section 141(3) under Section 141(4) the court before which the proceedings are held may by its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence This enables the examining magistrate to clarify the evidence especially where there are gaps in the statement

- If evidence is taken orally from the witness under Section 203 CPC evidence must be taken in front of the accused or when his personal attendance has been dispensed with in front of his advocate Under Section 209 the evidence must be interpreted to the accused although the court can determine the extent of interpretation needed when documents are put in for purposes of formal proof The Defence can object to the facts raised by the prosecution witness if they have incontrovertible evidence in support of their case

- Under Section 204 CPC the evidence is to be recorded under the procedure in Chapter XXIII CPC Any failure to record the evidence in the manner prescribed in Chapter XXIII can render the committal null and void as was the case in R v Govindasamy Arumugam6 Under Section 205 CPC the examining magistrate or the District Judge is to record the evidence in legible handwriting and in English Under Section 206 CPC the magistrate must sign the evidence taken by him and the evidence forms part of the record Under Section 207 the witnessrsquos evidence must be taken in narrative but the magistrate has discretion to record any particular question and answer

- Under Section 208(1) CPC the evidence taken from each witness must be read over to the witness and be signed by him Under Section 208(3) if the witness does not understand English the evidence taken down must be interpreted to him in the language it was given or in a language in which he understands Any changes to the evidence is to be made via correction or alternatively under Section 208(2) ldquothe Magistrate may hellip make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessaryrdquo Under Section 208(4) the substance of any correction and any memorandum made must be explained to the accused Under Section 210 CPC a Magistrate or District Judge recording the evidence of a witness may at the conclusion of the evidence and at the foot of the notes of it record such remarks if any as he thinks material respecting the demeanour of the witness while under examination

Written statements before examining Magistrate141 mdash(1) In preliminary inquiries conducted under this Chapter a written statement by any person shall if the conditions mentioned in subsection (2) are satisfied be admissible as evidence to the like extent as oral evidence to the like effect by that person (2) The said conditions are mdash (a) the statement purports to be signed by the person who made it (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true (c) before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and (d) none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section (a) if the statement is made by a person under the age of 21 years it shall give his age (b) if it is made by a person who cannot read it it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof (4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries by virtue of this section the court before which the proceedings are held may of its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence

6 [1952] MLJ 80

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

-A PI may also be presided over by a District Judge since under Section 9(5) of the Subordinate Courts Act every District Judge is also ex officio a magistrate

Duty of Magistrate- The Magistrate presiding over the Preliminary Inquiry must be satisfied after hearing from the Prosecutionrsquos witnesses

that there is a prima facie case against the accused person before committing him to stand trial Section 138 to 157 of the CPC governs this

PP v Tan Kim Kang [1962] 1 MLJ 388 - 1048708 Held ldquohellipMagistrate at a preliminary inquiry has to do is to see whether there is any evidence of any offence which is

triable in the High Court and if there is he is duty bound to commit the accused person for trial It is not his duty to weigh the evidence as if he was trying the case either to commit the accused for trial or to discharge himrdquo

PP v Tan Choon Ang (1990) 1 MLJ 367- duty of Magistrate- committal of Magistrate under section 304 upheld- Facts The accused was charged under s 302 of the Penal Code (FMS Cap 45) for murder At the end of the preliminary

inquiry the magistrate amended the charge to one under s 304 of the Penal Code (FMS Cap 45) and directed that the accused be tried before the sessions court The deputy public prosecutor applied to the High Court to exercise its revisionary powers and set aside the order as there were sufficient grounds to commit the accused for trial on the original charge

- Held affirming the order of the magistrate o (1)The relevant powers of a magistrate in a preliminary inquiry are contained in Chapter XVII of the Criminal

Procedure Code (FMS Cap 6) in particular ss 140 and 141 The duty of a magistrate in a preliminary inquiry is to consider if there is credible evidence to commit the accused for trial in the High Court

o (2)A preliminary inquiry is not a trial and it is not the duty of the magistrate to be satisfied that the prosecution has established a prima facie case Neither is the magistrate required to assess the credibility of the witnesses or to contemplate the accused`s possible defence

o (3)It is the duty of the magistrate to decide on the admissibility of a cautioned statement As the defence in the instant case did not seriously challenge the admissibility of the cautioned statement the magistrate was entitled under s 139(i) of the Criminal Procedure Code (FMS Cap 6) to look at the evidence of the cautioned statement to see if there was credible evidence against the accused However it is not the function of the magistrate to evaluate which evidence to accept or to reject but to leave such doubts for the trial court to resolve

o (4)On the evidence presented by the prosecution there was insufficient evidence to constitute the ingredients of the charge under s 302 Apart from the cautioned statement of the accused and evidence that the accused befriended the deceased there was no evidence to show that the accused was last seen with the deceased immediately before the death

o (5)A magistrate may when a preliminary inquiry discloses an offence triable by a sessions court frame a charge for that offence and transfer the case for hearing before a president of a sessions court The word `magistrate` in s 140(i)(b) of the Criminal Procedure Code (FMS Cap 6) would include `president`

Standard of proof at the PI

What is the test for the accused to be committed at a PI for trial in the High Court- The test to be satisfied at both the first stage (just after the prosecution has given its evidence) and the second stage (just after

the accused has given his defence if any) is that there must be some credible2 evidence to establish the essential ingredients of the offence and to commit the accused for trial and that the case is not inherently incredible or frivolous or vexatious

- However the magistrate is not supposed to (a) assess the credibility weight or quality of the evidence3 (b) consider whether the prosecution has established its case beyond a reasonable doubt4 (c) consider whether the accused has a plausible defence5

PP v Puspanathan al Sinnasamy [1996] 4 MLJ 165 - Facts The six respondents were tentatively charged at the magistratesrsquo court with murder under Section 302 of the Penal

Code (FMS Cap 45) but at the end of the preliminary inquiry the magistrate decided not to commit them to the High Court

2 Re Osman bin Abdullah [1954] MLJ 237 at 2383 Re Osman bin Abdullah [1954] MLJ 2374 Re Osman bin Abdullah [1954] MLJ 2375 Indran v PP [1985] 2 MLJ 408 at 409 Re Osman bin Abdullah [1954] MLJ 237

for trial but amended the charge to one of possession of weapons at a riot under s 148 of the Code The Public Prosecutor appealed

- 1048708 Heldo ldquohellip sufficient grounds for the magistrate to commit the case to the High Court on a charge of murder The direct

evidence showed that a number of witnesses saw the six accused persons attack the deceased with various types of dangerous weapons helliprdquo

o ldquohellipno requirement for the prosecution to prove which of the coaccused inflicted the fatal blowrdquoo ldquohellipassessment of apparent discrepancies and the weighing of testimony should have been left to the High Court

trying the caserdquoo For the purposes of the preliminary inquiry the prosecution was only required to adduce sufficient evidence

identifying the body of the deceased and was not required to prove this beyond reasonable doubt In a criminal trial as opposed to a mere preliminary inquiry the standard of proof is higher

Re Chow Kim Lin (1963) MLJ 130- Facts A Magistrate holding a preliminary inquiry into a charge of rape under Section 376 of the Penal Code made an

order discharging the person accused of that offence- Held The Magistrate is not to weigh the evidence as if he is trying a case That is the function of the trial court The order

of discharge by Magistrate was set aside- Comments In a preliminary inquiry a Magistrate ought to commit when the evidence of credible witnesses which if

believed would sustain a conviction- illustrates the above

ndash magistrate analysed evid at end of case and reduced chargendash CA held that shld not do thisndash Magistrate not to weigh evidence as if he is trying a casendash that is the function of trial courtndash order of discharge by Magistrate set aside

PP v Tan Kim Kang amp Ors (1962) MLJ 288- same as (2)- Comments Section 141 of the CPC read together with Section 142 would mean that all a Magistrate at a preliminary

inquiry has to do is to see whether there is any evidence of any offence which is triable in the High Court and if there is he is in duty bound to commit the accused person for trial It is not his duty to weigh the evidence as if he was trying the case His duty is either to commit the accused for trial or to discharge him If he thinks there are peculiar difficulties or circumstances connected with the case he should transmit the depositions to the Public Prosecutor under s 140(iv) of the Code

Mary Shim v PP (1962) MLJ 132- Comments The appellant was convicted of an offence punishable under Section 314 of the Penal Code (intent to cause

miscarriage) A discharge at a preliminary inquiry is no bar to a second preliminary inquiry on the same facts and for the same offence It does not mean that heshe is acquitted of the crime committed

- purpose of PIs ndash not a trialo to ensure suff evid before person sent for trialo here PI held and at end evid not perfect some critical evid missing as result magis ordered accused to be

discharged because evid lackingo sunbseq fresh evid came into possession of policeo so in light of further evid they fixed another PI acused charged incourt againo arg raisead was that cld not do so because accused already discharged earliero discharge of Accusedo can have another PI

- heldo discharge at end of PI not an acquittal o it does not preclude accused fr being charged again at seoncd PI held o =gt PI not a trial

Brian Peter Mann 58 CrAppR750- Held Where a witness displays evidence of hostility during committal proceedings in a Magistrates court there is no

rule which requires the prosecution then and there to treat the witness as hostile It is permissible for the prosecution to leave the matter to the trial to see how the witnesss evidence there comes out and if the witness is still hostile

obtain leave from the judge so to treat him If a witness is finally discredited in this way it is essential that the judge should advise the jury to pay no regard whatever to his evidence

- witness hostile at PIndash in trial will cross examine him

- no need to treat him as such- can leave it to the trial proper- court held that prosecution entitled to leave it as that ndash what proseiciton wanted to see was how he wld perform at

trial Cld impeach or cross examine him at trial- (see pages 755 - 756 of Lord Chief Justice Widgeryrsquos judgment)

In Re Pang Po Pah (1985) 2 MLJ 214- Facts Pursuant to a preliminary enquiry into an offence of murder under Section 302 of the PC the Magistrate

committed the accused for trial at the High Court not on the tentative charge of murder as framed by the prosecution but on a lesser charge under Section 304 of the PC The prosecution felt that the Magistrate had acted in excess of the power conferred by Section 140 and 141 and applied for revision

- Held 1)an examining Magistrate in a preliminary enquiry may frame charges on any offences triable in the High Court as he finds in the evidence and he may depart from the tentative charge as submitted by the prosecution (2)the learned Magistrate may when the preliminary enquiry evidence discloses an offence triable by a Sessions Court frame a charge for that offence and in accordance with s 14(i)(b) read with s 177 transfer the case to be tried by a President of the Sessions Court (3)in the present case the learned magistrate had acted improperly by committing a case not ordinarily triable by a High Court to this court for trial (4)a prima facie case of murder under s 302 of the Penal Code had been made out at the enquiry The order of the Magistrate should therefore be set aside and he be directed to draw a charge under s 302 of the Penal Code against the accused and to commit the accused for trial to the High Court

ndash committed under section 304 Penal Codendash on revision court said should have been under section 302ndash ingredients of offence made out duty of court not to assess credibility of factsndash that is function of the trial court

- Comments Ingredients of offence made out The duty of the court not to assess credibility of facts That is the function of the trial court

Indran amp Anor v PP (1985) 2 MLJ 408- Facts In this case the application had been committed for trial on a charge of murder The only evidence implicating

the applicants came from the respective cautioned statements of two other persons accused in the same case It was argued that the cautioned statements were exculpating to the makers and did not amount to confessions and s 30 of the Evidence Act was not applicable Even if they were confessions and s 30 of the Evidence Act applied it was argued that they could only be considered against the applicants and that there was no prima facie case against the applicants to be committed for trial The prosecution submitted that the cautioned statements would form part of the prosecution case and the weight of such evidence would be for the jury and not the committing Magistrate to consider An appeal by the applicants was dismissed on the ground that the said order of committal was not appealable The applicants applied for revision

- Held ndash (1)of at the preliminary inquiry there is credible evidence which if believe but subject to all possible lines

of defence may end in a conviction the inquiring Magistrate has no option but to commit the accused person for trial

ndash (2)the evidence of the cautioned statement of the other accused in this case is credible evidence which if believed and subject to all possible lines of defence including one of frailty of such evidence may result in a conviction The order for committal must therefore be confirmed

ndash (3)an inquiring Magistrate does not determine guilt or innocence and the expression sufficient grounds for committing the accused for trial does not denote a case proved beyond a reasonable doubt

- only evidence was co-accusedrsquos confession- court held this was sufficient for committal- Magistrate does not determine guilt or innocence at a PI

R v Kingrsquos Lynn Magistratesrsquo Court ex parte Holland (1993) 2 AER 377- discretion on whether to admit evidence- leave it to the trial court- Facts Holland applied for judicial review (1) to quash the decision of justices committing him for trial on the ground

that the justices should have excluded evidence of identification under s 78 of the Police and Criminal Evidence Act

1984 and (2) to require the justices to reopen the committal proceedings and to consider whether they should exercise their discretion under s 78 to exclude certain points of the prosecution evidence

- Held The discretion to exclude on the ground of unfairness to the accused evidence which would otherwise be admissible may be exercised by magistrates sitting as examining justices but only in the clearest case and in exceptional circumstances where they are satisfied that to admit the evidence at the trial would be so obviously unfair that no judge properly directing himself could admit it Examining magistrates should generally leave the decision on the exclusion of evidence to the trial judge who will be in a better position to assess the effect of the evidence on the fairness of the proceedings

PP v Ketmuang Banphanuk amp Anor (1995) 1 CLAS 354- local case- Facts The two accused persons were charged with an offence under Section 304(a) read with Section 34 of the Penal

Code and in furtherance of the common intention of them all did commit culpable homicide not amounting to murder by causing the death of one Mr J Both of them decided to plead guilty to the charge after the PI The prosecution prepared a statement of facts and the accused pleaded guilty The High Court judge noted that the facts in the Statement of Facts differed from the PI and rejected the guilty plea

- Held When an accused person pleads guilty to a charge a court may reject his plea The plea may be rejected because the court is not satisfied with the facts the law or his plea He is not convicted on the charge at that stage of the proceedings but that is not necessarily the end of the case CA held that evidence recorded at PI stage not before HC and therefore should not be substitutedndash PI ndash then accused committed and triedndash At HC stage charge reduced and accused pleaded guilty to reduced chargendash Statement of facts ndash details of ohw accused committed crime ndash presented to courtndash Accused accepted statement of facts as it wasndash But trial udge looked at statmenet and said some portions of it different from what was in PI statementndash So rejected some parts of statementndash Appeal lodged ndash Court of Appeal decision

Overruled trial judgendash accusedrsquos plea rejected by High Court on basis of PI recordndash refer to Mary Shimrsquos casendash held that PI records not evidence before High Court

purpose of PI only to ensure suff evid before person can be sent to HC in PI record x become evid by itself

PP v Puspanathan al Sinnasamy amp Ors (1966) 4 MLJ 165- duty of Magistrate - re discrepancies- followed Chow Kimrsquos case- Facts The six respondents were tentatively charged at the magistrates` court with murder under s 302 of the Penal

Code (FMS Cap 45) (`the Code`) but at the end of the preliminary inquiry the magistrate decided not to commit them to the High Court for trial but amended the charge to one of possession of weapons at a riot under s 148 of the Code The Public Prosecutor appealed

- Held allowing the appeal and ordering that the case be committed to the High Court for trial on the original charge of murder

ndash (1)There were sufficient grounds for the magistrate to commit the case to the High Court on a charge of murder The direct evidence showed that a number of witnesses saw the six accused persons attack the deceased with various types of dangerous weapons and the doctorrsquos evidence confirmed that the deceased died because of a head injury which could have been caused by a heavy and hard object

ndash (2)There was no requirement for the prosecution to prove which of the co-accused inflicted the fatal blow So long as it was shown that the criminal act was done by one of the assailants in furtherance of a common intention of all then liability for the crime would be imposed on any one of the persons in the same manner as if the act were done by him alone

ndash (3)The apparent discrepancies in the evidence of the prosecution witnesses were bound to exist in a case such as this and there was credible evidence which if believed would sustain a conviction Therefore the magistrate should have committed the case to the High Court and not have undertaken to assess the discrepancies The assessment of apparent discrepancies and the weighing of testimony should have been left to the judge of the High Court trying the case

ndash (4)For the purposes of the preliminary inquiry the prosecution was only required to adduce sufficient evidence identifying the body of the deceased and was not required to prove this beyond reasonable doubt In a criminal trial as opposed to a mere preliminary inquiry the standard of proof is higher

Regina v Crown Court at Leeds (2002) 1AC 754- Facts W appealed against a decision upholding a ruling by the Crown Court that a new custody time limit commenced

for the purposes of the Prosecution of Offences (Custody Time Limits) Regulations 1987 Reg 4 following substitution in the magistrates court of a charge of manslaughter in place of a charge of murder W contended that (1) a new limit did not commence in circumstances where the original offence expressly or impliedly included the new charge (2) in making the decision to substitute the Crown had been guilty of an abuse of process even in the absence of any mala fides on the part of the prosecution and (3) the decision had been in breach of the Human Rights Act 1998 Sch 1 Part I Art 5 which made provision for the right to individual liberty and to protection from arbitrary detention

- Held dismissing the appeal (Lord Nicholls of Birkenhead and Lord Scott of Foscote dissenting) that o (1) requiring magistrates to enquire whether a new charge also constituted one of the potential offences for which

a defendant might be convicted on the original charge would place an undue burden on the examining justices Accordingly each fresh and different offence charged did give rise to a new custody limit

o (2) abuse of process was not confined to instances where there was evidence of an improper motive or other dishonesty on the part of the prosecuting authority If the prosecutor was unable to justify the preferment of a fresh charge an abuse of process could potentially be found to exist However no argument concerning abuse of process had been raised before the Crown Court and

o (3) there had been no breach of Art 5 in view of the fact that the proceedings were both lawful and the consequences of the restriction imposed sufficiently accessible Whilst there was always a risk that the custody time limit might be extended as a result of an arbitrary decision by the prosecution that risk was subject to judicial control

Procedural matters pre PI

-1048617 Usually no bail offered to accused-1048617 When investigations completed PI date given by registry to parties-1048617 Counsel should inform Police and Court that acting for accused

ndash because prelim papers will the be served on u if u donrsquot inform then may lose timein getting the information for accused

-1048617 Two counsel assigned by registry to accused if facing capital charge and x have own counsel-1048617 PI held in High Court-1048617 IOs prepare draft statements based on investigations carried out-1048617 Sends to DPP for vetting

ndash for relevant evid etcndash to ensure that all relevant evidence is included and irrelevant evidence excluded

-1048617 1048617 Information to inspect other exhibits eg murder weapon drugs etc ndash make use of oppty to inspect exhibits

How many days before a PI are the prosecutionrsquos witnessesrsquo conditioned statements to be served on counsel for the accused- At least 7 days before PI copies of statements and documents served on counselo Section 141(2)(c) CPC requires that a copy of all conditioned statements be tendered to the other parties to

the proceedings not less than 7 days before the date of the PI If 7 days notice not given counsel can kick up a fuss but at most you can only get a postponement

of the PI

For HSA reports and autopsy reports is there any timeline for service of such documents on the defenceo Section 369(1) of the CPC provides that all reports by the HSA (as covered by Section 369(2)(a) and (b)

CPC) have to be served on the accused by the Prosecution not less than 10 clear days before the commencement of the inquiry trial or proceeding Under Section 2 CPC inquiry includes every inquiry conducted under the CPC before a Magistratersquos Court Therefore a preliminary inquiry is included and HSA reports and autopsy reports must be sent 10 days before the commencement of the PI to the accused

Information is then given to counsel to inspect other exhibits

Format of a Typical Statement

Name Lee Kim TianAddress co Central Police Station1234(Declaration)

Signature(Declaration)

Signature of Interpreter

Types of Statements-eg in murder case ndash what kind of statements u can expect - -1048617 Statements of

ndash Police Photographer and the set of pictures they have taken ndash Scene of Crime Unitndash DoctorsPathologistndash Police OfficersAmbulance Staffndash Witnessesndash Interpretersndash Investigating Officers (it is advisable to look at this statement initially in order to get a clearer picture)

Most impt statement Invariably the longest statement See this first ndash will give story about how he started investigating the offence

- For DC bundle is a good summary of P case as well as the evidence intended to be relied on to prove the charge

Purpose of Statements being served- to enable DC to analyse all evidence P intends to adduce- enables DC to take instructions from client accused based on evidence which has been adduced- Allows DC and A to decide which evidence to contest- Good policy for DC to inform Prosecution once DC has decided what to contest- Also useful for DC after having taken instructions to locate and gather evidence for defence instead of

merely waiting for the trial

Day of PI

How is a PI to be conducted- The PI is to be conducted according to the procedure stated in the Criminal Procedure Code - Under Section 138(1) CPC no other procedure shall be adopted before an examining magistrate where the

inquiry is held with a view to committal for trial in the High Court Also under Section 138(2) CPC if an examining magistrate is unable to complete a Preliminary Inquiry proceeding by himself another examining magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Procedure in inquiries preparatory to commitment138 mdash(1) The following procedure and no other procedure shall be adopted in inquiries before a Magistrate (referred to in this Chapter as the examining Magistrate) where the inquiry is held with a view to committal for trial to the High Court

(2) Whenever from any cause an examining Magistrate making an inquiry preliminary to committal for trial is unable conveniently to complete the proceedings of the inquiry himself another examining Magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Prosecution case- During the Inquiry the prosecution is required to present the facts so as to enable the magistrate to

determine if a possible criminal charge triable in the High Court could be sustained This is usually done via

an examination of the charges tentatively proffered against the accused vis-agrave-vis the facts but since the charges against the accused may be amended it is more important for the examining magistrate to consider whether the facts present a sustainable case against the accused

- The procedure of the PI varies depending on whether the accused wishes to plead guilty or to claim trial Under Section 139 CPC if the accused wishes to plead guilty to the tentative charges tendered by

the prosecution against him in non capital cases ndash accused person if wants to plead guilty can do so at PI stage then no need to draft statements and serve on him just prepare statement of facts he accepts them and then magis can commit him for trial at high court

the magistrate shall record the facts of the case presented by the prosecution If the facts disclose sufficient grounds for committing the accused the magistrate is required to satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence against him Thereafter he is required to commit the accused for trial for the offence

Committal for trial where accused wishes to plead guilty139 Where an accused who is brought before an examining Magistrate states that he wishes to plead guilty to the charge preferred against him the Magistrate shall record the facts of the case presented by the prosecution and if the facts disclose sufficient grounds for committing the accused he shall satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence alleged against him and on being so satisfied shall commit the accused for trial for the offence

o If the accused wishes to claim trial the Inquiry will proceed with the prosecutionrsquos presentation of the relevant facts Evidence may be taken either orally from the prosecution witness or by written depositions (under Section 141(1) CPC) if the conditions under Section 141(2) and the requirements of Section 141(3) CPC are fulfilled

Commencement of trial187 mdash(3) If the accused refuses to plead or does not plead or if he claims to be tried the court shall (b) if the accused was committed for trial under section 139 order him to be brought before an examining Magistrate for a preliminary inquiry

The conditions under Section 141(2) are that1 the statement purports to be signed by the person who made it 2 the statement contains a declaration by that person to the effect that it is true to the best of

his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true

3 before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and

4 none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section

The requirements under Section 141(3) are that1 if the statement is made by a person under the age of 21 years it shall give his age 2 if it is made by a person who cannot read it it shall be read to him before he signs it and

shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and

3 (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under [Section 141(2)(c)] shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof

- Under Section 141(5) where a written statement is admitted by virtue of Section 141 ldquo[s]o much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloudrdquo To save time the Defence Counsel can agree to treat the Prosecutionrsquos statements as read instead of requiring these statements to be read aloud in court for the purposes of the PI

- In addition the DPP will apply to the court to get the exhibits mentioned in the statement marked Under Section 141(6) ldquo[a]ny document or object referred to as an exhibit and identified in a written statement

tendered in evidence under [Section 141] shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statementrdquo

- Notwithstanding that a written statement may be admissible by virtue of having satisfied the conditions under Section 141(2) and the requirements under Section 141(3) under Section 141(4) the court before which the proceedings are held may by its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence This enables the examining magistrate to clarify the evidence especially where there are gaps in the statement

- If evidence is taken orally from the witness under Section 203 CPC evidence must be taken in front of the accused or when his personal attendance has been dispensed with in front of his advocate Under Section 209 the evidence must be interpreted to the accused although the court can determine the extent of interpretation needed when documents are put in for purposes of formal proof The Defence can object to the facts raised by the prosecution witness if they have incontrovertible evidence in support of their case

- Under Section 204 CPC the evidence is to be recorded under the procedure in Chapter XXIII CPC Any failure to record the evidence in the manner prescribed in Chapter XXIII can render the committal null and void as was the case in R v Govindasamy Arumugam6 Under Section 205 CPC the examining magistrate or the District Judge is to record the evidence in legible handwriting and in English Under Section 206 CPC the magistrate must sign the evidence taken by him and the evidence forms part of the record Under Section 207 the witnessrsquos evidence must be taken in narrative but the magistrate has discretion to record any particular question and answer

- Under Section 208(1) CPC the evidence taken from each witness must be read over to the witness and be signed by him Under Section 208(3) if the witness does not understand English the evidence taken down must be interpreted to him in the language it was given or in a language in which he understands Any changes to the evidence is to be made via correction or alternatively under Section 208(2) ldquothe Magistrate may hellip make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessaryrdquo Under Section 208(4) the substance of any correction and any memorandum made must be explained to the accused Under Section 210 CPC a Magistrate or District Judge recording the evidence of a witness may at the conclusion of the evidence and at the foot of the notes of it record such remarks if any as he thinks material respecting the demeanour of the witness while under examination

Written statements before examining Magistrate141 mdash(1) In preliminary inquiries conducted under this Chapter a written statement by any person shall if the conditions mentioned in subsection (2) are satisfied be admissible as evidence to the like extent as oral evidence to the like effect by that person (2) The said conditions are mdash (a) the statement purports to be signed by the person who made it (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true (c) before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and (d) none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section (a) if the statement is made by a person under the age of 21 years it shall give his age (b) if it is made by a person who cannot read it it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof (4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries by virtue of this section the court before which the proceedings are held may of its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence

6 [1952] MLJ 80

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

for trial but amended the charge to one of possession of weapons at a riot under s 148 of the Code The Public Prosecutor appealed

- 1048708 Heldo ldquohellip sufficient grounds for the magistrate to commit the case to the High Court on a charge of murder The direct

evidence showed that a number of witnesses saw the six accused persons attack the deceased with various types of dangerous weapons helliprdquo

o ldquohellipno requirement for the prosecution to prove which of the coaccused inflicted the fatal blowrdquoo ldquohellipassessment of apparent discrepancies and the weighing of testimony should have been left to the High Court

trying the caserdquoo For the purposes of the preliminary inquiry the prosecution was only required to adduce sufficient evidence

identifying the body of the deceased and was not required to prove this beyond reasonable doubt In a criminal trial as opposed to a mere preliminary inquiry the standard of proof is higher

Re Chow Kim Lin (1963) MLJ 130- Facts A Magistrate holding a preliminary inquiry into a charge of rape under Section 376 of the Penal Code made an

order discharging the person accused of that offence- Held The Magistrate is not to weigh the evidence as if he is trying a case That is the function of the trial court The order

of discharge by Magistrate was set aside- Comments In a preliminary inquiry a Magistrate ought to commit when the evidence of credible witnesses which if

believed would sustain a conviction- illustrates the above

ndash magistrate analysed evid at end of case and reduced chargendash CA held that shld not do thisndash Magistrate not to weigh evidence as if he is trying a casendash that is the function of trial courtndash order of discharge by Magistrate set aside

PP v Tan Kim Kang amp Ors (1962) MLJ 288- same as (2)- Comments Section 141 of the CPC read together with Section 142 would mean that all a Magistrate at a preliminary

inquiry has to do is to see whether there is any evidence of any offence which is triable in the High Court and if there is he is in duty bound to commit the accused person for trial It is not his duty to weigh the evidence as if he was trying the case His duty is either to commit the accused for trial or to discharge him If he thinks there are peculiar difficulties or circumstances connected with the case he should transmit the depositions to the Public Prosecutor under s 140(iv) of the Code

Mary Shim v PP (1962) MLJ 132- Comments The appellant was convicted of an offence punishable under Section 314 of the Penal Code (intent to cause

miscarriage) A discharge at a preliminary inquiry is no bar to a second preliminary inquiry on the same facts and for the same offence It does not mean that heshe is acquitted of the crime committed

- purpose of PIs ndash not a trialo to ensure suff evid before person sent for trialo here PI held and at end evid not perfect some critical evid missing as result magis ordered accused to be

discharged because evid lackingo sunbseq fresh evid came into possession of policeo so in light of further evid they fixed another PI acused charged incourt againo arg raisead was that cld not do so because accused already discharged earliero discharge of Accusedo can have another PI

- heldo discharge at end of PI not an acquittal o it does not preclude accused fr being charged again at seoncd PI held o =gt PI not a trial

Brian Peter Mann 58 CrAppR750- Held Where a witness displays evidence of hostility during committal proceedings in a Magistrates court there is no

rule which requires the prosecution then and there to treat the witness as hostile It is permissible for the prosecution to leave the matter to the trial to see how the witnesss evidence there comes out and if the witness is still hostile

obtain leave from the judge so to treat him If a witness is finally discredited in this way it is essential that the judge should advise the jury to pay no regard whatever to his evidence

- witness hostile at PIndash in trial will cross examine him

- no need to treat him as such- can leave it to the trial proper- court held that prosecution entitled to leave it as that ndash what proseiciton wanted to see was how he wld perform at

trial Cld impeach or cross examine him at trial- (see pages 755 - 756 of Lord Chief Justice Widgeryrsquos judgment)

In Re Pang Po Pah (1985) 2 MLJ 214- Facts Pursuant to a preliminary enquiry into an offence of murder under Section 302 of the PC the Magistrate

committed the accused for trial at the High Court not on the tentative charge of murder as framed by the prosecution but on a lesser charge under Section 304 of the PC The prosecution felt that the Magistrate had acted in excess of the power conferred by Section 140 and 141 and applied for revision

- Held 1)an examining Magistrate in a preliminary enquiry may frame charges on any offences triable in the High Court as he finds in the evidence and he may depart from the tentative charge as submitted by the prosecution (2)the learned Magistrate may when the preliminary enquiry evidence discloses an offence triable by a Sessions Court frame a charge for that offence and in accordance with s 14(i)(b) read with s 177 transfer the case to be tried by a President of the Sessions Court (3)in the present case the learned magistrate had acted improperly by committing a case not ordinarily triable by a High Court to this court for trial (4)a prima facie case of murder under s 302 of the Penal Code had been made out at the enquiry The order of the Magistrate should therefore be set aside and he be directed to draw a charge under s 302 of the Penal Code against the accused and to commit the accused for trial to the High Court

ndash committed under section 304 Penal Codendash on revision court said should have been under section 302ndash ingredients of offence made out duty of court not to assess credibility of factsndash that is function of the trial court

- Comments Ingredients of offence made out The duty of the court not to assess credibility of facts That is the function of the trial court

Indran amp Anor v PP (1985) 2 MLJ 408- Facts In this case the application had been committed for trial on a charge of murder The only evidence implicating

the applicants came from the respective cautioned statements of two other persons accused in the same case It was argued that the cautioned statements were exculpating to the makers and did not amount to confessions and s 30 of the Evidence Act was not applicable Even if they were confessions and s 30 of the Evidence Act applied it was argued that they could only be considered against the applicants and that there was no prima facie case against the applicants to be committed for trial The prosecution submitted that the cautioned statements would form part of the prosecution case and the weight of such evidence would be for the jury and not the committing Magistrate to consider An appeal by the applicants was dismissed on the ground that the said order of committal was not appealable The applicants applied for revision

- Held ndash (1)of at the preliminary inquiry there is credible evidence which if believe but subject to all possible lines

of defence may end in a conviction the inquiring Magistrate has no option but to commit the accused person for trial

ndash (2)the evidence of the cautioned statement of the other accused in this case is credible evidence which if believed and subject to all possible lines of defence including one of frailty of such evidence may result in a conviction The order for committal must therefore be confirmed

ndash (3)an inquiring Magistrate does not determine guilt or innocence and the expression sufficient grounds for committing the accused for trial does not denote a case proved beyond a reasonable doubt

- only evidence was co-accusedrsquos confession- court held this was sufficient for committal- Magistrate does not determine guilt or innocence at a PI

R v Kingrsquos Lynn Magistratesrsquo Court ex parte Holland (1993) 2 AER 377- discretion on whether to admit evidence- leave it to the trial court- Facts Holland applied for judicial review (1) to quash the decision of justices committing him for trial on the ground

that the justices should have excluded evidence of identification under s 78 of the Police and Criminal Evidence Act

1984 and (2) to require the justices to reopen the committal proceedings and to consider whether they should exercise their discretion under s 78 to exclude certain points of the prosecution evidence

- Held The discretion to exclude on the ground of unfairness to the accused evidence which would otherwise be admissible may be exercised by magistrates sitting as examining justices but only in the clearest case and in exceptional circumstances where they are satisfied that to admit the evidence at the trial would be so obviously unfair that no judge properly directing himself could admit it Examining magistrates should generally leave the decision on the exclusion of evidence to the trial judge who will be in a better position to assess the effect of the evidence on the fairness of the proceedings

PP v Ketmuang Banphanuk amp Anor (1995) 1 CLAS 354- local case- Facts The two accused persons were charged with an offence under Section 304(a) read with Section 34 of the Penal

Code and in furtherance of the common intention of them all did commit culpable homicide not amounting to murder by causing the death of one Mr J Both of them decided to plead guilty to the charge after the PI The prosecution prepared a statement of facts and the accused pleaded guilty The High Court judge noted that the facts in the Statement of Facts differed from the PI and rejected the guilty plea

- Held When an accused person pleads guilty to a charge a court may reject his plea The plea may be rejected because the court is not satisfied with the facts the law or his plea He is not convicted on the charge at that stage of the proceedings but that is not necessarily the end of the case CA held that evidence recorded at PI stage not before HC and therefore should not be substitutedndash PI ndash then accused committed and triedndash At HC stage charge reduced and accused pleaded guilty to reduced chargendash Statement of facts ndash details of ohw accused committed crime ndash presented to courtndash Accused accepted statement of facts as it wasndash But trial udge looked at statmenet and said some portions of it different from what was in PI statementndash So rejected some parts of statementndash Appeal lodged ndash Court of Appeal decision

Overruled trial judgendash accusedrsquos plea rejected by High Court on basis of PI recordndash refer to Mary Shimrsquos casendash held that PI records not evidence before High Court

purpose of PI only to ensure suff evid before person can be sent to HC in PI record x become evid by itself

PP v Puspanathan al Sinnasamy amp Ors (1966) 4 MLJ 165- duty of Magistrate - re discrepancies- followed Chow Kimrsquos case- Facts The six respondents were tentatively charged at the magistrates` court with murder under s 302 of the Penal

Code (FMS Cap 45) (`the Code`) but at the end of the preliminary inquiry the magistrate decided not to commit them to the High Court for trial but amended the charge to one of possession of weapons at a riot under s 148 of the Code The Public Prosecutor appealed

- Held allowing the appeal and ordering that the case be committed to the High Court for trial on the original charge of murder

ndash (1)There were sufficient grounds for the magistrate to commit the case to the High Court on a charge of murder The direct evidence showed that a number of witnesses saw the six accused persons attack the deceased with various types of dangerous weapons and the doctorrsquos evidence confirmed that the deceased died because of a head injury which could have been caused by a heavy and hard object

ndash (2)There was no requirement for the prosecution to prove which of the co-accused inflicted the fatal blow So long as it was shown that the criminal act was done by one of the assailants in furtherance of a common intention of all then liability for the crime would be imposed on any one of the persons in the same manner as if the act were done by him alone

ndash (3)The apparent discrepancies in the evidence of the prosecution witnesses were bound to exist in a case such as this and there was credible evidence which if believed would sustain a conviction Therefore the magistrate should have committed the case to the High Court and not have undertaken to assess the discrepancies The assessment of apparent discrepancies and the weighing of testimony should have been left to the judge of the High Court trying the case

ndash (4)For the purposes of the preliminary inquiry the prosecution was only required to adduce sufficient evidence identifying the body of the deceased and was not required to prove this beyond reasonable doubt In a criminal trial as opposed to a mere preliminary inquiry the standard of proof is higher

Regina v Crown Court at Leeds (2002) 1AC 754- Facts W appealed against a decision upholding a ruling by the Crown Court that a new custody time limit commenced

for the purposes of the Prosecution of Offences (Custody Time Limits) Regulations 1987 Reg 4 following substitution in the magistrates court of a charge of manslaughter in place of a charge of murder W contended that (1) a new limit did not commence in circumstances where the original offence expressly or impliedly included the new charge (2) in making the decision to substitute the Crown had been guilty of an abuse of process even in the absence of any mala fides on the part of the prosecution and (3) the decision had been in breach of the Human Rights Act 1998 Sch 1 Part I Art 5 which made provision for the right to individual liberty and to protection from arbitrary detention

- Held dismissing the appeal (Lord Nicholls of Birkenhead and Lord Scott of Foscote dissenting) that o (1) requiring magistrates to enquire whether a new charge also constituted one of the potential offences for which

a defendant might be convicted on the original charge would place an undue burden on the examining justices Accordingly each fresh and different offence charged did give rise to a new custody limit

o (2) abuse of process was not confined to instances where there was evidence of an improper motive or other dishonesty on the part of the prosecuting authority If the prosecutor was unable to justify the preferment of a fresh charge an abuse of process could potentially be found to exist However no argument concerning abuse of process had been raised before the Crown Court and

o (3) there had been no breach of Art 5 in view of the fact that the proceedings were both lawful and the consequences of the restriction imposed sufficiently accessible Whilst there was always a risk that the custody time limit might be extended as a result of an arbitrary decision by the prosecution that risk was subject to judicial control

Procedural matters pre PI

-1048617 Usually no bail offered to accused-1048617 When investigations completed PI date given by registry to parties-1048617 Counsel should inform Police and Court that acting for accused

ndash because prelim papers will the be served on u if u donrsquot inform then may lose timein getting the information for accused

-1048617 Two counsel assigned by registry to accused if facing capital charge and x have own counsel-1048617 PI held in High Court-1048617 IOs prepare draft statements based on investigations carried out-1048617 Sends to DPP for vetting

ndash for relevant evid etcndash to ensure that all relevant evidence is included and irrelevant evidence excluded

-1048617 1048617 Information to inspect other exhibits eg murder weapon drugs etc ndash make use of oppty to inspect exhibits

How many days before a PI are the prosecutionrsquos witnessesrsquo conditioned statements to be served on counsel for the accused- At least 7 days before PI copies of statements and documents served on counselo Section 141(2)(c) CPC requires that a copy of all conditioned statements be tendered to the other parties to

the proceedings not less than 7 days before the date of the PI If 7 days notice not given counsel can kick up a fuss but at most you can only get a postponement

of the PI

For HSA reports and autopsy reports is there any timeline for service of such documents on the defenceo Section 369(1) of the CPC provides that all reports by the HSA (as covered by Section 369(2)(a) and (b)

CPC) have to be served on the accused by the Prosecution not less than 10 clear days before the commencement of the inquiry trial or proceeding Under Section 2 CPC inquiry includes every inquiry conducted under the CPC before a Magistratersquos Court Therefore a preliminary inquiry is included and HSA reports and autopsy reports must be sent 10 days before the commencement of the PI to the accused

Information is then given to counsel to inspect other exhibits

Format of a Typical Statement

Name Lee Kim TianAddress co Central Police Station1234(Declaration)

Signature(Declaration)

Signature of Interpreter

Types of Statements-eg in murder case ndash what kind of statements u can expect - -1048617 Statements of

ndash Police Photographer and the set of pictures they have taken ndash Scene of Crime Unitndash DoctorsPathologistndash Police OfficersAmbulance Staffndash Witnessesndash Interpretersndash Investigating Officers (it is advisable to look at this statement initially in order to get a clearer picture)

Most impt statement Invariably the longest statement See this first ndash will give story about how he started investigating the offence

- For DC bundle is a good summary of P case as well as the evidence intended to be relied on to prove the charge

Purpose of Statements being served- to enable DC to analyse all evidence P intends to adduce- enables DC to take instructions from client accused based on evidence which has been adduced- Allows DC and A to decide which evidence to contest- Good policy for DC to inform Prosecution once DC has decided what to contest- Also useful for DC after having taken instructions to locate and gather evidence for defence instead of

merely waiting for the trial

Day of PI

How is a PI to be conducted- The PI is to be conducted according to the procedure stated in the Criminal Procedure Code - Under Section 138(1) CPC no other procedure shall be adopted before an examining magistrate where the

inquiry is held with a view to committal for trial in the High Court Also under Section 138(2) CPC if an examining magistrate is unable to complete a Preliminary Inquiry proceeding by himself another examining magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Procedure in inquiries preparatory to commitment138 mdash(1) The following procedure and no other procedure shall be adopted in inquiries before a Magistrate (referred to in this Chapter as the examining Magistrate) where the inquiry is held with a view to committal for trial to the High Court

(2) Whenever from any cause an examining Magistrate making an inquiry preliminary to committal for trial is unable conveniently to complete the proceedings of the inquiry himself another examining Magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Prosecution case- During the Inquiry the prosecution is required to present the facts so as to enable the magistrate to

determine if a possible criminal charge triable in the High Court could be sustained This is usually done via

an examination of the charges tentatively proffered against the accused vis-agrave-vis the facts but since the charges against the accused may be amended it is more important for the examining magistrate to consider whether the facts present a sustainable case against the accused

- The procedure of the PI varies depending on whether the accused wishes to plead guilty or to claim trial Under Section 139 CPC if the accused wishes to plead guilty to the tentative charges tendered by

the prosecution against him in non capital cases ndash accused person if wants to plead guilty can do so at PI stage then no need to draft statements and serve on him just prepare statement of facts he accepts them and then magis can commit him for trial at high court

the magistrate shall record the facts of the case presented by the prosecution If the facts disclose sufficient grounds for committing the accused the magistrate is required to satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence against him Thereafter he is required to commit the accused for trial for the offence

Committal for trial where accused wishes to plead guilty139 Where an accused who is brought before an examining Magistrate states that he wishes to plead guilty to the charge preferred against him the Magistrate shall record the facts of the case presented by the prosecution and if the facts disclose sufficient grounds for committing the accused he shall satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence alleged against him and on being so satisfied shall commit the accused for trial for the offence

o If the accused wishes to claim trial the Inquiry will proceed with the prosecutionrsquos presentation of the relevant facts Evidence may be taken either orally from the prosecution witness or by written depositions (under Section 141(1) CPC) if the conditions under Section 141(2) and the requirements of Section 141(3) CPC are fulfilled

Commencement of trial187 mdash(3) If the accused refuses to plead or does not plead or if he claims to be tried the court shall (b) if the accused was committed for trial under section 139 order him to be brought before an examining Magistrate for a preliminary inquiry

The conditions under Section 141(2) are that1 the statement purports to be signed by the person who made it 2 the statement contains a declaration by that person to the effect that it is true to the best of

his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true

3 before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and

4 none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section

The requirements under Section 141(3) are that1 if the statement is made by a person under the age of 21 years it shall give his age 2 if it is made by a person who cannot read it it shall be read to him before he signs it and

shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and

3 (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under [Section 141(2)(c)] shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof

- Under Section 141(5) where a written statement is admitted by virtue of Section 141 ldquo[s]o much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloudrdquo To save time the Defence Counsel can agree to treat the Prosecutionrsquos statements as read instead of requiring these statements to be read aloud in court for the purposes of the PI

- In addition the DPP will apply to the court to get the exhibits mentioned in the statement marked Under Section 141(6) ldquo[a]ny document or object referred to as an exhibit and identified in a written statement

tendered in evidence under [Section 141] shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statementrdquo

- Notwithstanding that a written statement may be admissible by virtue of having satisfied the conditions under Section 141(2) and the requirements under Section 141(3) under Section 141(4) the court before which the proceedings are held may by its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence This enables the examining magistrate to clarify the evidence especially where there are gaps in the statement

- If evidence is taken orally from the witness under Section 203 CPC evidence must be taken in front of the accused or when his personal attendance has been dispensed with in front of his advocate Under Section 209 the evidence must be interpreted to the accused although the court can determine the extent of interpretation needed when documents are put in for purposes of formal proof The Defence can object to the facts raised by the prosecution witness if they have incontrovertible evidence in support of their case

- Under Section 204 CPC the evidence is to be recorded under the procedure in Chapter XXIII CPC Any failure to record the evidence in the manner prescribed in Chapter XXIII can render the committal null and void as was the case in R v Govindasamy Arumugam6 Under Section 205 CPC the examining magistrate or the District Judge is to record the evidence in legible handwriting and in English Under Section 206 CPC the magistrate must sign the evidence taken by him and the evidence forms part of the record Under Section 207 the witnessrsquos evidence must be taken in narrative but the magistrate has discretion to record any particular question and answer

- Under Section 208(1) CPC the evidence taken from each witness must be read over to the witness and be signed by him Under Section 208(3) if the witness does not understand English the evidence taken down must be interpreted to him in the language it was given or in a language in which he understands Any changes to the evidence is to be made via correction or alternatively under Section 208(2) ldquothe Magistrate may hellip make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessaryrdquo Under Section 208(4) the substance of any correction and any memorandum made must be explained to the accused Under Section 210 CPC a Magistrate or District Judge recording the evidence of a witness may at the conclusion of the evidence and at the foot of the notes of it record such remarks if any as he thinks material respecting the demeanour of the witness while under examination

Written statements before examining Magistrate141 mdash(1) In preliminary inquiries conducted under this Chapter a written statement by any person shall if the conditions mentioned in subsection (2) are satisfied be admissible as evidence to the like extent as oral evidence to the like effect by that person (2) The said conditions are mdash (a) the statement purports to be signed by the person who made it (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true (c) before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and (d) none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section (a) if the statement is made by a person under the age of 21 years it shall give his age (b) if it is made by a person who cannot read it it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof (4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries by virtue of this section the court before which the proceedings are held may of its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence

6 [1952] MLJ 80

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

obtain leave from the judge so to treat him If a witness is finally discredited in this way it is essential that the judge should advise the jury to pay no regard whatever to his evidence

- witness hostile at PIndash in trial will cross examine him

- no need to treat him as such- can leave it to the trial proper- court held that prosecution entitled to leave it as that ndash what proseiciton wanted to see was how he wld perform at

trial Cld impeach or cross examine him at trial- (see pages 755 - 756 of Lord Chief Justice Widgeryrsquos judgment)

In Re Pang Po Pah (1985) 2 MLJ 214- Facts Pursuant to a preliminary enquiry into an offence of murder under Section 302 of the PC the Magistrate

committed the accused for trial at the High Court not on the tentative charge of murder as framed by the prosecution but on a lesser charge under Section 304 of the PC The prosecution felt that the Magistrate had acted in excess of the power conferred by Section 140 and 141 and applied for revision

- Held 1)an examining Magistrate in a preliminary enquiry may frame charges on any offences triable in the High Court as he finds in the evidence and he may depart from the tentative charge as submitted by the prosecution (2)the learned Magistrate may when the preliminary enquiry evidence discloses an offence triable by a Sessions Court frame a charge for that offence and in accordance with s 14(i)(b) read with s 177 transfer the case to be tried by a President of the Sessions Court (3)in the present case the learned magistrate had acted improperly by committing a case not ordinarily triable by a High Court to this court for trial (4)a prima facie case of murder under s 302 of the Penal Code had been made out at the enquiry The order of the Magistrate should therefore be set aside and he be directed to draw a charge under s 302 of the Penal Code against the accused and to commit the accused for trial to the High Court

ndash committed under section 304 Penal Codendash on revision court said should have been under section 302ndash ingredients of offence made out duty of court not to assess credibility of factsndash that is function of the trial court

- Comments Ingredients of offence made out The duty of the court not to assess credibility of facts That is the function of the trial court

Indran amp Anor v PP (1985) 2 MLJ 408- Facts In this case the application had been committed for trial on a charge of murder The only evidence implicating

the applicants came from the respective cautioned statements of two other persons accused in the same case It was argued that the cautioned statements were exculpating to the makers and did not amount to confessions and s 30 of the Evidence Act was not applicable Even if they were confessions and s 30 of the Evidence Act applied it was argued that they could only be considered against the applicants and that there was no prima facie case against the applicants to be committed for trial The prosecution submitted that the cautioned statements would form part of the prosecution case and the weight of such evidence would be for the jury and not the committing Magistrate to consider An appeal by the applicants was dismissed on the ground that the said order of committal was not appealable The applicants applied for revision

- Held ndash (1)of at the preliminary inquiry there is credible evidence which if believe but subject to all possible lines

of defence may end in a conviction the inquiring Magistrate has no option but to commit the accused person for trial

ndash (2)the evidence of the cautioned statement of the other accused in this case is credible evidence which if believed and subject to all possible lines of defence including one of frailty of such evidence may result in a conviction The order for committal must therefore be confirmed

ndash (3)an inquiring Magistrate does not determine guilt or innocence and the expression sufficient grounds for committing the accused for trial does not denote a case proved beyond a reasonable doubt

- only evidence was co-accusedrsquos confession- court held this was sufficient for committal- Magistrate does not determine guilt or innocence at a PI

R v Kingrsquos Lynn Magistratesrsquo Court ex parte Holland (1993) 2 AER 377- discretion on whether to admit evidence- leave it to the trial court- Facts Holland applied for judicial review (1) to quash the decision of justices committing him for trial on the ground

that the justices should have excluded evidence of identification under s 78 of the Police and Criminal Evidence Act

1984 and (2) to require the justices to reopen the committal proceedings and to consider whether they should exercise their discretion under s 78 to exclude certain points of the prosecution evidence

- Held The discretion to exclude on the ground of unfairness to the accused evidence which would otherwise be admissible may be exercised by magistrates sitting as examining justices but only in the clearest case and in exceptional circumstances where they are satisfied that to admit the evidence at the trial would be so obviously unfair that no judge properly directing himself could admit it Examining magistrates should generally leave the decision on the exclusion of evidence to the trial judge who will be in a better position to assess the effect of the evidence on the fairness of the proceedings

PP v Ketmuang Banphanuk amp Anor (1995) 1 CLAS 354- local case- Facts The two accused persons were charged with an offence under Section 304(a) read with Section 34 of the Penal

Code and in furtherance of the common intention of them all did commit culpable homicide not amounting to murder by causing the death of one Mr J Both of them decided to plead guilty to the charge after the PI The prosecution prepared a statement of facts and the accused pleaded guilty The High Court judge noted that the facts in the Statement of Facts differed from the PI and rejected the guilty plea

- Held When an accused person pleads guilty to a charge a court may reject his plea The plea may be rejected because the court is not satisfied with the facts the law or his plea He is not convicted on the charge at that stage of the proceedings but that is not necessarily the end of the case CA held that evidence recorded at PI stage not before HC and therefore should not be substitutedndash PI ndash then accused committed and triedndash At HC stage charge reduced and accused pleaded guilty to reduced chargendash Statement of facts ndash details of ohw accused committed crime ndash presented to courtndash Accused accepted statement of facts as it wasndash But trial udge looked at statmenet and said some portions of it different from what was in PI statementndash So rejected some parts of statementndash Appeal lodged ndash Court of Appeal decision

Overruled trial judgendash accusedrsquos plea rejected by High Court on basis of PI recordndash refer to Mary Shimrsquos casendash held that PI records not evidence before High Court

purpose of PI only to ensure suff evid before person can be sent to HC in PI record x become evid by itself

PP v Puspanathan al Sinnasamy amp Ors (1966) 4 MLJ 165- duty of Magistrate - re discrepancies- followed Chow Kimrsquos case- Facts The six respondents were tentatively charged at the magistrates` court with murder under s 302 of the Penal

Code (FMS Cap 45) (`the Code`) but at the end of the preliminary inquiry the magistrate decided not to commit them to the High Court for trial but amended the charge to one of possession of weapons at a riot under s 148 of the Code The Public Prosecutor appealed

- Held allowing the appeal and ordering that the case be committed to the High Court for trial on the original charge of murder

ndash (1)There were sufficient grounds for the magistrate to commit the case to the High Court on a charge of murder The direct evidence showed that a number of witnesses saw the six accused persons attack the deceased with various types of dangerous weapons and the doctorrsquos evidence confirmed that the deceased died because of a head injury which could have been caused by a heavy and hard object

ndash (2)There was no requirement for the prosecution to prove which of the co-accused inflicted the fatal blow So long as it was shown that the criminal act was done by one of the assailants in furtherance of a common intention of all then liability for the crime would be imposed on any one of the persons in the same manner as if the act were done by him alone

ndash (3)The apparent discrepancies in the evidence of the prosecution witnesses were bound to exist in a case such as this and there was credible evidence which if believed would sustain a conviction Therefore the magistrate should have committed the case to the High Court and not have undertaken to assess the discrepancies The assessment of apparent discrepancies and the weighing of testimony should have been left to the judge of the High Court trying the case

ndash (4)For the purposes of the preliminary inquiry the prosecution was only required to adduce sufficient evidence identifying the body of the deceased and was not required to prove this beyond reasonable doubt In a criminal trial as opposed to a mere preliminary inquiry the standard of proof is higher

Regina v Crown Court at Leeds (2002) 1AC 754- Facts W appealed against a decision upholding a ruling by the Crown Court that a new custody time limit commenced

for the purposes of the Prosecution of Offences (Custody Time Limits) Regulations 1987 Reg 4 following substitution in the magistrates court of a charge of manslaughter in place of a charge of murder W contended that (1) a new limit did not commence in circumstances where the original offence expressly or impliedly included the new charge (2) in making the decision to substitute the Crown had been guilty of an abuse of process even in the absence of any mala fides on the part of the prosecution and (3) the decision had been in breach of the Human Rights Act 1998 Sch 1 Part I Art 5 which made provision for the right to individual liberty and to protection from arbitrary detention

- Held dismissing the appeal (Lord Nicholls of Birkenhead and Lord Scott of Foscote dissenting) that o (1) requiring magistrates to enquire whether a new charge also constituted one of the potential offences for which

a defendant might be convicted on the original charge would place an undue burden on the examining justices Accordingly each fresh and different offence charged did give rise to a new custody limit

o (2) abuse of process was not confined to instances where there was evidence of an improper motive or other dishonesty on the part of the prosecuting authority If the prosecutor was unable to justify the preferment of a fresh charge an abuse of process could potentially be found to exist However no argument concerning abuse of process had been raised before the Crown Court and

o (3) there had been no breach of Art 5 in view of the fact that the proceedings were both lawful and the consequences of the restriction imposed sufficiently accessible Whilst there was always a risk that the custody time limit might be extended as a result of an arbitrary decision by the prosecution that risk was subject to judicial control

Procedural matters pre PI

-1048617 Usually no bail offered to accused-1048617 When investigations completed PI date given by registry to parties-1048617 Counsel should inform Police and Court that acting for accused

ndash because prelim papers will the be served on u if u donrsquot inform then may lose timein getting the information for accused

-1048617 Two counsel assigned by registry to accused if facing capital charge and x have own counsel-1048617 PI held in High Court-1048617 IOs prepare draft statements based on investigations carried out-1048617 Sends to DPP for vetting

ndash for relevant evid etcndash to ensure that all relevant evidence is included and irrelevant evidence excluded

-1048617 1048617 Information to inspect other exhibits eg murder weapon drugs etc ndash make use of oppty to inspect exhibits

How many days before a PI are the prosecutionrsquos witnessesrsquo conditioned statements to be served on counsel for the accused- At least 7 days before PI copies of statements and documents served on counselo Section 141(2)(c) CPC requires that a copy of all conditioned statements be tendered to the other parties to

the proceedings not less than 7 days before the date of the PI If 7 days notice not given counsel can kick up a fuss but at most you can only get a postponement

of the PI

For HSA reports and autopsy reports is there any timeline for service of such documents on the defenceo Section 369(1) of the CPC provides that all reports by the HSA (as covered by Section 369(2)(a) and (b)

CPC) have to be served on the accused by the Prosecution not less than 10 clear days before the commencement of the inquiry trial or proceeding Under Section 2 CPC inquiry includes every inquiry conducted under the CPC before a Magistratersquos Court Therefore a preliminary inquiry is included and HSA reports and autopsy reports must be sent 10 days before the commencement of the PI to the accused

Information is then given to counsel to inspect other exhibits

Format of a Typical Statement

Name Lee Kim TianAddress co Central Police Station1234(Declaration)

Signature(Declaration)

Signature of Interpreter

Types of Statements-eg in murder case ndash what kind of statements u can expect - -1048617 Statements of

ndash Police Photographer and the set of pictures they have taken ndash Scene of Crime Unitndash DoctorsPathologistndash Police OfficersAmbulance Staffndash Witnessesndash Interpretersndash Investigating Officers (it is advisable to look at this statement initially in order to get a clearer picture)

Most impt statement Invariably the longest statement See this first ndash will give story about how he started investigating the offence

- For DC bundle is a good summary of P case as well as the evidence intended to be relied on to prove the charge

Purpose of Statements being served- to enable DC to analyse all evidence P intends to adduce- enables DC to take instructions from client accused based on evidence which has been adduced- Allows DC and A to decide which evidence to contest- Good policy for DC to inform Prosecution once DC has decided what to contest- Also useful for DC after having taken instructions to locate and gather evidence for defence instead of

merely waiting for the trial

Day of PI

How is a PI to be conducted- The PI is to be conducted according to the procedure stated in the Criminal Procedure Code - Under Section 138(1) CPC no other procedure shall be adopted before an examining magistrate where the

inquiry is held with a view to committal for trial in the High Court Also under Section 138(2) CPC if an examining magistrate is unable to complete a Preliminary Inquiry proceeding by himself another examining magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Procedure in inquiries preparatory to commitment138 mdash(1) The following procedure and no other procedure shall be adopted in inquiries before a Magistrate (referred to in this Chapter as the examining Magistrate) where the inquiry is held with a view to committal for trial to the High Court

(2) Whenever from any cause an examining Magistrate making an inquiry preliminary to committal for trial is unable conveniently to complete the proceedings of the inquiry himself another examining Magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Prosecution case- During the Inquiry the prosecution is required to present the facts so as to enable the magistrate to

determine if a possible criminal charge triable in the High Court could be sustained This is usually done via

an examination of the charges tentatively proffered against the accused vis-agrave-vis the facts but since the charges against the accused may be amended it is more important for the examining magistrate to consider whether the facts present a sustainable case against the accused

- The procedure of the PI varies depending on whether the accused wishes to plead guilty or to claim trial Under Section 139 CPC if the accused wishes to plead guilty to the tentative charges tendered by

the prosecution against him in non capital cases ndash accused person if wants to plead guilty can do so at PI stage then no need to draft statements and serve on him just prepare statement of facts he accepts them and then magis can commit him for trial at high court

the magistrate shall record the facts of the case presented by the prosecution If the facts disclose sufficient grounds for committing the accused the magistrate is required to satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence against him Thereafter he is required to commit the accused for trial for the offence

Committal for trial where accused wishes to plead guilty139 Where an accused who is brought before an examining Magistrate states that he wishes to plead guilty to the charge preferred against him the Magistrate shall record the facts of the case presented by the prosecution and if the facts disclose sufficient grounds for committing the accused he shall satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence alleged against him and on being so satisfied shall commit the accused for trial for the offence

o If the accused wishes to claim trial the Inquiry will proceed with the prosecutionrsquos presentation of the relevant facts Evidence may be taken either orally from the prosecution witness or by written depositions (under Section 141(1) CPC) if the conditions under Section 141(2) and the requirements of Section 141(3) CPC are fulfilled

Commencement of trial187 mdash(3) If the accused refuses to plead or does not plead or if he claims to be tried the court shall (b) if the accused was committed for trial under section 139 order him to be brought before an examining Magistrate for a preliminary inquiry

The conditions under Section 141(2) are that1 the statement purports to be signed by the person who made it 2 the statement contains a declaration by that person to the effect that it is true to the best of

his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true

3 before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and

4 none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section

The requirements under Section 141(3) are that1 if the statement is made by a person under the age of 21 years it shall give his age 2 if it is made by a person who cannot read it it shall be read to him before he signs it and

shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and

3 (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under [Section 141(2)(c)] shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof

- Under Section 141(5) where a written statement is admitted by virtue of Section 141 ldquo[s]o much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloudrdquo To save time the Defence Counsel can agree to treat the Prosecutionrsquos statements as read instead of requiring these statements to be read aloud in court for the purposes of the PI

- In addition the DPP will apply to the court to get the exhibits mentioned in the statement marked Under Section 141(6) ldquo[a]ny document or object referred to as an exhibit and identified in a written statement

tendered in evidence under [Section 141] shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statementrdquo

- Notwithstanding that a written statement may be admissible by virtue of having satisfied the conditions under Section 141(2) and the requirements under Section 141(3) under Section 141(4) the court before which the proceedings are held may by its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence This enables the examining magistrate to clarify the evidence especially where there are gaps in the statement

- If evidence is taken orally from the witness under Section 203 CPC evidence must be taken in front of the accused or when his personal attendance has been dispensed with in front of his advocate Under Section 209 the evidence must be interpreted to the accused although the court can determine the extent of interpretation needed when documents are put in for purposes of formal proof The Defence can object to the facts raised by the prosecution witness if they have incontrovertible evidence in support of their case

- Under Section 204 CPC the evidence is to be recorded under the procedure in Chapter XXIII CPC Any failure to record the evidence in the manner prescribed in Chapter XXIII can render the committal null and void as was the case in R v Govindasamy Arumugam6 Under Section 205 CPC the examining magistrate or the District Judge is to record the evidence in legible handwriting and in English Under Section 206 CPC the magistrate must sign the evidence taken by him and the evidence forms part of the record Under Section 207 the witnessrsquos evidence must be taken in narrative but the magistrate has discretion to record any particular question and answer

- Under Section 208(1) CPC the evidence taken from each witness must be read over to the witness and be signed by him Under Section 208(3) if the witness does not understand English the evidence taken down must be interpreted to him in the language it was given or in a language in which he understands Any changes to the evidence is to be made via correction or alternatively under Section 208(2) ldquothe Magistrate may hellip make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessaryrdquo Under Section 208(4) the substance of any correction and any memorandum made must be explained to the accused Under Section 210 CPC a Magistrate or District Judge recording the evidence of a witness may at the conclusion of the evidence and at the foot of the notes of it record such remarks if any as he thinks material respecting the demeanour of the witness while under examination

Written statements before examining Magistrate141 mdash(1) In preliminary inquiries conducted under this Chapter a written statement by any person shall if the conditions mentioned in subsection (2) are satisfied be admissible as evidence to the like extent as oral evidence to the like effect by that person (2) The said conditions are mdash (a) the statement purports to be signed by the person who made it (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true (c) before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and (d) none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section (a) if the statement is made by a person under the age of 21 years it shall give his age (b) if it is made by a person who cannot read it it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof (4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries by virtue of this section the court before which the proceedings are held may of its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence

6 [1952] MLJ 80

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

1984 and (2) to require the justices to reopen the committal proceedings and to consider whether they should exercise their discretion under s 78 to exclude certain points of the prosecution evidence

- Held The discretion to exclude on the ground of unfairness to the accused evidence which would otherwise be admissible may be exercised by magistrates sitting as examining justices but only in the clearest case and in exceptional circumstances where they are satisfied that to admit the evidence at the trial would be so obviously unfair that no judge properly directing himself could admit it Examining magistrates should generally leave the decision on the exclusion of evidence to the trial judge who will be in a better position to assess the effect of the evidence on the fairness of the proceedings

PP v Ketmuang Banphanuk amp Anor (1995) 1 CLAS 354- local case- Facts The two accused persons were charged with an offence under Section 304(a) read with Section 34 of the Penal

Code and in furtherance of the common intention of them all did commit culpable homicide not amounting to murder by causing the death of one Mr J Both of them decided to plead guilty to the charge after the PI The prosecution prepared a statement of facts and the accused pleaded guilty The High Court judge noted that the facts in the Statement of Facts differed from the PI and rejected the guilty plea

- Held When an accused person pleads guilty to a charge a court may reject his plea The plea may be rejected because the court is not satisfied with the facts the law or his plea He is not convicted on the charge at that stage of the proceedings but that is not necessarily the end of the case CA held that evidence recorded at PI stage not before HC and therefore should not be substitutedndash PI ndash then accused committed and triedndash At HC stage charge reduced and accused pleaded guilty to reduced chargendash Statement of facts ndash details of ohw accused committed crime ndash presented to courtndash Accused accepted statement of facts as it wasndash But trial udge looked at statmenet and said some portions of it different from what was in PI statementndash So rejected some parts of statementndash Appeal lodged ndash Court of Appeal decision

Overruled trial judgendash accusedrsquos plea rejected by High Court on basis of PI recordndash refer to Mary Shimrsquos casendash held that PI records not evidence before High Court

purpose of PI only to ensure suff evid before person can be sent to HC in PI record x become evid by itself

PP v Puspanathan al Sinnasamy amp Ors (1966) 4 MLJ 165- duty of Magistrate - re discrepancies- followed Chow Kimrsquos case- Facts The six respondents were tentatively charged at the magistrates` court with murder under s 302 of the Penal

Code (FMS Cap 45) (`the Code`) but at the end of the preliminary inquiry the magistrate decided not to commit them to the High Court for trial but amended the charge to one of possession of weapons at a riot under s 148 of the Code The Public Prosecutor appealed

- Held allowing the appeal and ordering that the case be committed to the High Court for trial on the original charge of murder

ndash (1)There were sufficient grounds for the magistrate to commit the case to the High Court on a charge of murder The direct evidence showed that a number of witnesses saw the six accused persons attack the deceased with various types of dangerous weapons and the doctorrsquos evidence confirmed that the deceased died because of a head injury which could have been caused by a heavy and hard object

ndash (2)There was no requirement for the prosecution to prove which of the co-accused inflicted the fatal blow So long as it was shown that the criminal act was done by one of the assailants in furtherance of a common intention of all then liability for the crime would be imposed on any one of the persons in the same manner as if the act were done by him alone

ndash (3)The apparent discrepancies in the evidence of the prosecution witnesses were bound to exist in a case such as this and there was credible evidence which if believed would sustain a conviction Therefore the magistrate should have committed the case to the High Court and not have undertaken to assess the discrepancies The assessment of apparent discrepancies and the weighing of testimony should have been left to the judge of the High Court trying the case

ndash (4)For the purposes of the preliminary inquiry the prosecution was only required to adduce sufficient evidence identifying the body of the deceased and was not required to prove this beyond reasonable doubt In a criminal trial as opposed to a mere preliminary inquiry the standard of proof is higher

Regina v Crown Court at Leeds (2002) 1AC 754- Facts W appealed against a decision upholding a ruling by the Crown Court that a new custody time limit commenced

for the purposes of the Prosecution of Offences (Custody Time Limits) Regulations 1987 Reg 4 following substitution in the magistrates court of a charge of manslaughter in place of a charge of murder W contended that (1) a new limit did not commence in circumstances where the original offence expressly or impliedly included the new charge (2) in making the decision to substitute the Crown had been guilty of an abuse of process even in the absence of any mala fides on the part of the prosecution and (3) the decision had been in breach of the Human Rights Act 1998 Sch 1 Part I Art 5 which made provision for the right to individual liberty and to protection from arbitrary detention

- Held dismissing the appeal (Lord Nicholls of Birkenhead and Lord Scott of Foscote dissenting) that o (1) requiring magistrates to enquire whether a new charge also constituted one of the potential offences for which

a defendant might be convicted on the original charge would place an undue burden on the examining justices Accordingly each fresh and different offence charged did give rise to a new custody limit

o (2) abuse of process was not confined to instances where there was evidence of an improper motive or other dishonesty on the part of the prosecuting authority If the prosecutor was unable to justify the preferment of a fresh charge an abuse of process could potentially be found to exist However no argument concerning abuse of process had been raised before the Crown Court and

o (3) there had been no breach of Art 5 in view of the fact that the proceedings were both lawful and the consequences of the restriction imposed sufficiently accessible Whilst there was always a risk that the custody time limit might be extended as a result of an arbitrary decision by the prosecution that risk was subject to judicial control

Procedural matters pre PI

-1048617 Usually no bail offered to accused-1048617 When investigations completed PI date given by registry to parties-1048617 Counsel should inform Police and Court that acting for accused

ndash because prelim papers will the be served on u if u donrsquot inform then may lose timein getting the information for accused

-1048617 Two counsel assigned by registry to accused if facing capital charge and x have own counsel-1048617 PI held in High Court-1048617 IOs prepare draft statements based on investigations carried out-1048617 Sends to DPP for vetting

ndash for relevant evid etcndash to ensure that all relevant evidence is included and irrelevant evidence excluded

-1048617 1048617 Information to inspect other exhibits eg murder weapon drugs etc ndash make use of oppty to inspect exhibits

How many days before a PI are the prosecutionrsquos witnessesrsquo conditioned statements to be served on counsel for the accused- At least 7 days before PI copies of statements and documents served on counselo Section 141(2)(c) CPC requires that a copy of all conditioned statements be tendered to the other parties to

the proceedings not less than 7 days before the date of the PI If 7 days notice not given counsel can kick up a fuss but at most you can only get a postponement

of the PI

For HSA reports and autopsy reports is there any timeline for service of such documents on the defenceo Section 369(1) of the CPC provides that all reports by the HSA (as covered by Section 369(2)(a) and (b)

CPC) have to be served on the accused by the Prosecution not less than 10 clear days before the commencement of the inquiry trial or proceeding Under Section 2 CPC inquiry includes every inquiry conducted under the CPC before a Magistratersquos Court Therefore a preliminary inquiry is included and HSA reports and autopsy reports must be sent 10 days before the commencement of the PI to the accused

Information is then given to counsel to inspect other exhibits

Format of a Typical Statement

Name Lee Kim TianAddress co Central Police Station1234(Declaration)

Signature(Declaration)

Signature of Interpreter

Types of Statements-eg in murder case ndash what kind of statements u can expect - -1048617 Statements of

ndash Police Photographer and the set of pictures they have taken ndash Scene of Crime Unitndash DoctorsPathologistndash Police OfficersAmbulance Staffndash Witnessesndash Interpretersndash Investigating Officers (it is advisable to look at this statement initially in order to get a clearer picture)

Most impt statement Invariably the longest statement See this first ndash will give story about how he started investigating the offence

- For DC bundle is a good summary of P case as well as the evidence intended to be relied on to prove the charge

Purpose of Statements being served- to enable DC to analyse all evidence P intends to adduce- enables DC to take instructions from client accused based on evidence which has been adduced- Allows DC and A to decide which evidence to contest- Good policy for DC to inform Prosecution once DC has decided what to contest- Also useful for DC after having taken instructions to locate and gather evidence for defence instead of

merely waiting for the trial

Day of PI

How is a PI to be conducted- The PI is to be conducted according to the procedure stated in the Criminal Procedure Code - Under Section 138(1) CPC no other procedure shall be adopted before an examining magistrate where the

inquiry is held with a view to committal for trial in the High Court Also under Section 138(2) CPC if an examining magistrate is unable to complete a Preliminary Inquiry proceeding by himself another examining magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Procedure in inquiries preparatory to commitment138 mdash(1) The following procedure and no other procedure shall be adopted in inquiries before a Magistrate (referred to in this Chapter as the examining Magistrate) where the inquiry is held with a view to committal for trial to the High Court

(2) Whenever from any cause an examining Magistrate making an inquiry preliminary to committal for trial is unable conveniently to complete the proceedings of the inquiry himself another examining Magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Prosecution case- During the Inquiry the prosecution is required to present the facts so as to enable the magistrate to

determine if a possible criminal charge triable in the High Court could be sustained This is usually done via

an examination of the charges tentatively proffered against the accused vis-agrave-vis the facts but since the charges against the accused may be amended it is more important for the examining magistrate to consider whether the facts present a sustainable case against the accused

- The procedure of the PI varies depending on whether the accused wishes to plead guilty or to claim trial Under Section 139 CPC if the accused wishes to plead guilty to the tentative charges tendered by

the prosecution against him in non capital cases ndash accused person if wants to plead guilty can do so at PI stage then no need to draft statements and serve on him just prepare statement of facts he accepts them and then magis can commit him for trial at high court

the magistrate shall record the facts of the case presented by the prosecution If the facts disclose sufficient grounds for committing the accused the magistrate is required to satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence against him Thereafter he is required to commit the accused for trial for the offence

Committal for trial where accused wishes to plead guilty139 Where an accused who is brought before an examining Magistrate states that he wishes to plead guilty to the charge preferred against him the Magistrate shall record the facts of the case presented by the prosecution and if the facts disclose sufficient grounds for committing the accused he shall satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence alleged against him and on being so satisfied shall commit the accused for trial for the offence

o If the accused wishes to claim trial the Inquiry will proceed with the prosecutionrsquos presentation of the relevant facts Evidence may be taken either orally from the prosecution witness or by written depositions (under Section 141(1) CPC) if the conditions under Section 141(2) and the requirements of Section 141(3) CPC are fulfilled

Commencement of trial187 mdash(3) If the accused refuses to plead or does not plead or if he claims to be tried the court shall (b) if the accused was committed for trial under section 139 order him to be brought before an examining Magistrate for a preliminary inquiry

The conditions under Section 141(2) are that1 the statement purports to be signed by the person who made it 2 the statement contains a declaration by that person to the effect that it is true to the best of

his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true

3 before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and

4 none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section

The requirements under Section 141(3) are that1 if the statement is made by a person under the age of 21 years it shall give his age 2 if it is made by a person who cannot read it it shall be read to him before he signs it and

shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and

3 (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under [Section 141(2)(c)] shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof

- Under Section 141(5) where a written statement is admitted by virtue of Section 141 ldquo[s]o much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloudrdquo To save time the Defence Counsel can agree to treat the Prosecutionrsquos statements as read instead of requiring these statements to be read aloud in court for the purposes of the PI

- In addition the DPP will apply to the court to get the exhibits mentioned in the statement marked Under Section 141(6) ldquo[a]ny document or object referred to as an exhibit and identified in a written statement

tendered in evidence under [Section 141] shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statementrdquo

- Notwithstanding that a written statement may be admissible by virtue of having satisfied the conditions under Section 141(2) and the requirements under Section 141(3) under Section 141(4) the court before which the proceedings are held may by its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence This enables the examining magistrate to clarify the evidence especially where there are gaps in the statement

- If evidence is taken orally from the witness under Section 203 CPC evidence must be taken in front of the accused or when his personal attendance has been dispensed with in front of his advocate Under Section 209 the evidence must be interpreted to the accused although the court can determine the extent of interpretation needed when documents are put in for purposes of formal proof The Defence can object to the facts raised by the prosecution witness if they have incontrovertible evidence in support of their case

- Under Section 204 CPC the evidence is to be recorded under the procedure in Chapter XXIII CPC Any failure to record the evidence in the manner prescribed in Chapter XXIII can render the committal null and void as was the case in R v Govindasamy Arumugam6 Under Section 205 CPC the examining magistrate or the District Judge is to record the evidence in legible handwriting and in English Under Section 206 CPC the magistrate must sign the evidence taken by him and the evidence forms part of the record Under Section 207 the witnessrsquos evidence must be taken in narrative but the magistrate has discretion to record any particular question and answer

- Under Section 208(1) CPC the evidence taken from each witness must be read over to the witness and be signed by him Under Section 208(3) if the witness does not understand English the evidence taken down must be interpreted to him in the language it was given or in a language in which he understands Any changes to the evidence is to be made via correction or alternatively under Section 208(2) ldquothe Magistrate may hellip make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessaryrdquo Under Section 208(4) the substance of any correction and any memorandum made must be explained to the accused Under Section 210 CPC a Magistrate or District Judge recording the evidence of a witness may at the conclusion of the evidence and at the foot of the notes of it record such remarks if any as he thinks material respecting the demeanour of the witness while under examination

Written statements before examining Magistrate141 mdash(1) In preliminary inquiries conducted under this Chapter a written statement by any person shall if the conditions mentioned in subsection (2) are satisfied be admissible as evidence to the like extent as oral evidence to the like effect by that person (2) The said conditions are mdash (a) the statement purports to be signed by the person who made it (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true (c) before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and (d) none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section (a) if the statement is made by a person under the age of 21 years it shall give his age (b) if it is made by a person who cannot read it it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof (4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries by virtue of this section the court before which the proceedings are held may of its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence

6 [1952] MLJ 80

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

ndash (4)For the purposes of the preliminary inquiry the prosecution was only required to adduce sufficient evidence identifying the body of the deceased and was not required to prove this beyond reasonable doubt In a criminal trial as opposed to a mere preliminary inquiry the standard of proof is higher

Regina v Crown Court at Leeds (2002) 1AC 754- Facts W appealed against a decision upholding a ruling by the Crown Court that a new custody time limit commenced

for the purposes of the Prosecution of Offences (Custody Time Limits) Regulations 1987 Reg 4 following substitution in the magistrates court of a charge of manslaughter in place of a charge of murder W contended that (1) a new limit did not commence in circumstances where the original offence expressly or impliedly included the new charge (2) in making the decision to substitute the Crown had been guilty of an abuse of process even in the absence of any mala fides on the part of the prosecution and (3) the decision had been in breach of the Human Rights Act 1998 Sch 1 Part I Art 5 which made provision for the right to individual liberty and to protection from arbitrary detention

- Held dismissing the appeal (Lord Nicholls of Birkenhead and Lord Scott of Foscote dissenting) that o (1) requiring magistrates to enquire whether a new charge also constituted one of the potential offences for which

a defendant might be convicted on the original charge would place an undue burden on the examining justices Accordingly each fresh and different offence charged did give rise to a new custody limit

o (2) abuse of process was not confined to instances where there was evidence of an improper motive or other dishonesty on the part of the prosecuting authority If the prosecutor was unable to justify the preferment of a fresh charge an abuse of process could potentially be found to exist However no argument concerning abuse of process had been raised before the Crown Court and

o (3) there had been no breach of Art 5 in view of the fact that the proceedings were both lawful and the consequences of the restriction imposed sufficiently accessible Whilst there was always a risk that the custody time limit might be extended as a result of an arbitrary decision by the prosecution that risk was subject to judicial control

Procedural matters pre PI

-1048617 Usually no bail offered to accused-1048617 When investigations completed PI date given by registry to parties-1048617 Counsel should inform Police and Court that acting for accused

ndash because prelim papers will the be served on u if u donrsquot inform then may lose timein getting the information for accused

-1048617 Two counsel assigned by registry to accused if facing capital charge and x have own counsel-1048617 PI held in High Court-1048617 IOs prepare draft statements based on investigations carried out-1048617 Sends to DPP for vetting

ndash for relevant evid etcndash to ensure that all relevant evidence is included and irrelevant evidence excluded

-1048617 1048617 Information to inspect other exhibits eg murder weapon drugs etc ndash make use of oppty to inspect exhibits

How many days before a PI are the prosecutionrsquos witnessesrsquo conditioned statements to be served on counsel for the accused- At least 7 days before PI copies of statements and documents served on counselo Section 141(2)(c) CPC requires that a copy of all conditioned statements be tendered to the other parties to

the proceedings not less than 7 days before the date of the PI If 7 days notice not given counsel can kick up a fuss but at most you can only get a postponement

of the PI

For HSA reports and autopsy reports is there any timeline for service of such documents on the defenceo Section 369(1) of the CPC provides that all reports by the HSA (as covered by Section 369(2)(a) and (b)

CPC) have to be served on the accused by the Prosecution not less than 10 clear days before the commencement of the inquiry trial or proceeding Under Section 2 CPC inquiry includes every inquiry conducted under the CPC before a Magistratersquos Court Therefore a preliminary inquiry is included and HSA reports and autopsy reports must be sent 10 days before the commencement of the PI to the accused

Information is then given to counsel to inspect other exhibits

Format of a Typical Statement

Name Lee Kim TianAddress co Central Police Station1234(Declaration)

Signature(Declaration)

Signature of Interpreter

Types of Statements-eg in murder case ndash what kind of statements u can expect - -1048617 Statements of

ndash Police Photographer and the set of pictures they have taken ndash Scene of Crime Unitndash DoctorsPathologistndash Police OfficersAmbulance Staffndash Witnessesndash Interpretersndash Investigating Officers (it is advisable to look at this statement initially in order to get a clearer picture)

Most impt statement Invariably the longest statement See this first ndash will give story about how he started investigating the offence

- For DC bundle is a good summary of P case as well as the evidence intended to be relied on to prove the charge

Purpose of Statements being served- to enable DC to analyse all evidence P intends to adduce- enables DC to take instructions from client accused based on evidence which has been adduced- Allows DC and A to decide which evidence to contest- Good policy for DC to inform Prosecution once DC has decided what to contest- Also useful for DC after having taken instructions to locate and gather evidence for defence instead of

merely waiting for the trial

Day of PI

How is a PI to be conducted- The PI is to be conducted according to the procedure stated in the Criminal Procedure Code - Under Section 138(1) CPC no other procedure shall be adopted before an examining magistrate where the

inquiry is held with a view to committal for trial in the High Court Also under Section 138(2) CPC if an examining magistrate is unable to complete a Preliminary Inquiry proceeding by himself another examining magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Procedure in inquiries preparatory to commitment138 mdash(1) The following procedure and no other procedure shall be adopted in inquiries before a Magistrate (referred to in this Chapter as the examining Magistrate) where the inquiry is held with a view to committal for trial to the High Court

(2) Whenever from any cause an examining Magistrate making an inquiry preliminary to committal for trial is unable conveniently to complete the proceedings of the inquiry himself another examining Magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Prosecution case- During the Inquiry the prosecution is required to present the facts so as to enable the magistrate to

determine if a possible criminal charge triable in the High Court could be sustained This is usually done via

an examination of the charges tentatively proffered against the accused vis-agrave-vis the facts but since the charges against the accused may be amended it is more important for the examining magistrate to consider whether the facts present a sustainable case against the accused

- The procedure of the PI varies depending on whether the accused wishes to plead guilty or to claim trial Under Section 139 CPC if the accused wishes to plead guilty to the tentative charges tendered by

the prosecution against him in non capital cases ndash accused person if wants to plead guilty can do so at PI stage then no need to draft statements and serve on him just prepare statement of facts he accepts them and then magis can commit him for trial at high court

the magistrate shall record the facts of the case presented by the prosecution If the facts disclose sufficient grounds for committing the accused the magistrate is required to satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence against him Thereafter he is required to commit the accused for trial for the offence

Committal for trial where accused wishes to plead guilty139 Where an accused who is brought before an examining Magistrate states that he wishes to plead guilty to the charge preferred against him the Magistrate shall record the facts of the case presented by the prosecution and if the facts disclose sufficient grounds for committing the accused he shall satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence alleged against him and on being so satisfied shall commit the accused for trial for the offence

o If the accused wishes to claim trial the Inquiry will proceed with the prosecutionrsquos presentation of the relevant facts Evidence may be taken either orally from the prosecution witness or by written depositions (under Section 141(1) CPC) if the conditions under Section 141(2) and the requirements of Section 141(3) CPC are fulfilled

Commencement of trial187 mdash(3) If the accused refuses to plead or does not plead or if he claims to be tried the court shall (b) if the accused was committed for trial under section 139 order him to be brought before an examining Magistrate for a preliminary inquiry

The conditions under Section 141(2) are that1 the statement purports to be signed by the person who made it 2 the statement contains a declaration by that person to the effect that it is true to the best of

his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true

3 before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and

4 none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section

The requirements under Section 141(3) are that1 if the statement is made by a person under the age of 21 years it shall give his age 2 if it is made by a person who cannot read it it shall be read to him before he signs it and

shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and

3 (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under [Section 141(2)(c)] shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof

- Under Section 141(5) where a written statement is admitted by virtue of Section 141 ldquo[s]o much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloudrdquo To save time the Defence Counsel can agree to treat the Prosecutionrsquos statements as read instead of requiring these statements to be read aloud in court for the purposes of the PI

- In addition the DPP will apply to the court to get the exhibits mentioned in the statement marked Under Section 141(6) ldquo[a]ny document or object referred to as an exhibit and identified in a written statement

tendered in evidence under [Section 141] shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statementrdquo

- Notwithstanding that a written statement may be admissible by virtue of having satisfied the conditions under Section 141(2) and the requirements under Section 141(3) under Section 141(4) the court before which the proceedings are held may by its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence This enables the examining magistrate to clarify the evidence especially where there are gaps in the statement

- If evidence is taken orally from the witness under Section 203 CPC evidence must be taken in front of the accused or when his personal attendance has been dispensed with in front of his advocate Under Section 209 the evidence must be interpreted to the accused although the court can determine the extent of interpretation needed when documents are put in for purposes of formal proof The Defence can object to the facts raised by the prosecution witness if they have incontrovertible evidence in support of their case

- Under Section 204 CPC the evidence is to be recorded under the procedure in Chapter XXIII CPC Any failure to record the evidence in the manner prescribed in Chapter XXIII can render the committal null and void as was the case in R v Govindasamy Arumugam6 Under Section 205 CPC the examining magistrate or the District Judge is to record the evidence in legible handwriting and in English Under Section 206 CPC the magistrate must sign the evidence taken by him and the evidence forms part of the record Under Section 207 the witnessrsquos evidence must be taken in narrative but the magistrate has discretion to record any particular question and answer

- Under Section 208(1) CPC the evidence taken from each witness must be read over to the witness and be signed by him Under Section 208(3) if the witness does not understand English the evidence taken down must be interpreted to him in the language it was given or in a language in which he understands Any changes to the evidence is to be made via correction or alternatively under Section 208(2) ldquothe Magistrate may hellip make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessaryrdquo Under Section 208(4) the substance of any correction and any memorandum made must be explained to the accused Under Section 210 CPC a Magistrate or District Judge recording the evidence of a witness may at the conclusion of the evidence and at the foot of the notes of it record such remarks if any as he thinks material respecting the demeanour of the witness while under examination

Written statements before examining Magistrate141 mdash(1) In preliminary inquiries conducted under this Chapter a written statement by any person shall if the conditions mentioned in subsection (2) are satisfied be admissible as evidence to the like extent as oral evidence to the like effect by that person (2) The said conditions are mdash (a) the statement purports to be signed by the person who made it (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true (c) before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and (d) none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section (a) if the statement is made by a person under the age of 21 years it shall give his age (b) if it is made by a person who cannot read it it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof (4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries by virtue of this section the court before which the proceedings are held may of its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence

6 [1952] MLJ 80

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

Format of a Typical Statement

Name Lee Kim TianAddress co Central Police Station1234(Declaration)

Signature(Declaration)

Signature of Interpreter

Types of Statements-eg in murder case ndash what kind of statements u can expect - -1048617 Statements of

ndash Police Photographer and the set of pictures they have taken ndash Scene of Crime Unitndash DoctorsPathologistndash Police OfficersAmbulance Staffndash Witnessesndash Interpretersndash Investigating Officers (it is advisable to look at this statement initially in order to get a clearer picture)

Most impt statement Invariably the longest statement See this first ndash will give story about how he started investigating the offence

- For DC bundle is a good summary of P case as well as the evidence intended to be relied on to prove the charge

Purpose of Statements being served- to enable DC to analyse all evidence P intends to adduce- enables DC to take instructions from client accused based on evidence which has been adduced- Allows DC and A to decide which evidence to contest- Good policy for DC to inform Prosecution once DC has decided what to contest- Also useful for DC after having taken instructions to locate and gather evidence for defence instead of

merely waiting for the trial

Day of PI

How is a PI to be conducted- The PI is to be conducted according to the procedure stated in the Criminal Procedure Code - Under Section 138(1) CPC no other procedure shall be adopted before an examining magistrate where the

inquiry is held with a view to committal for trial in the High Court Also under Section 138(2) CPC if an examining magistrate is unable to complete a Preliminary Inquiry proceeding by himself another examining magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Procedure in inquiries preparatory to commitment138 mdash(1) The following procedure and no other procedure shall be adopted in inquiries before a Magistrate (referred to in this Chapter as the examining Magistrate) where the inquiry is held with a view to committal for trial to the High Court

(2) Whenever from any cause an examining Magistrate making an inquiry preliminary to committal for trial is unable conveniently to complete the proceedings of the inquiry himself another examining Magistrate may complete the case and proceed as if he had heard and recorded all the evidence himself

Prosecution case- During the Inquiry the prosecution is required to present the facts so as to enable the magistrate to

determine if a possible criminal charge triable in the High Court could be sustained This is usually done via

an examination of the charges tentatively proffered against the accused vis-agrave-vis the facts but since the charges against the accused may be amended it is more important for the examining magistrate to consider whether the facts present a sustainable case against the accused

- The procedure of the PI varies depending on whether the accused wishes to plead guilty or to claim trial Under Section 139 CPC if the accused wishes to plead guilty to the tentative charges tendered by

the prosecution against him in non capital cases ndash accused person if wants to plead guilty can do so at PI stage then no need to draft statements and serve on him just prepare statement of facts he accepts them and then magis can commit him for trial at high court

the magistrate shall record the facts of the case presented by the prosecution If the facts disclose sufficient grounds for committing the accused the magistrate is required to satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence against him Thereafter he is required to commit the accused for trial for the offence

Committal for trial where accused wishes to plead guilty139 Where an accused who is brought before an examining Magistrate states that he wishes to plead guilty to the charge preferred against him the Magistrate shall record the facts of the case presented by the prosecution and if the facts disclose sufficient grounds for committing the accused he shall satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence alleged against him and on being so satisfied shall commit the accused for trial for the offence

o If the accused wishes to claim trial the Inquiry will proceed with the prosecutionrsquos presentation of the relevant facts Evidence may be taken either orally from the prosecution witness or by written depositions (under Section 141(1) CPC) if the conditions under Section 141(2) and the requirements of Section 141(3) CPC are fulfilled

Commencement of trial187 mdash(3) If the accused refuses to plead or does not plead or if he claims to be tried the court shall (b) if the accused was committed for trial under section 139 order him to be brought before an examining Magistrate for a preliminary inquiry

The conditions under Section 141(2) are that1 the statement purports to be signed by the person who made it 2 the statement contains a declaration by that person to the effect that it is true to the best of

his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true

3 before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and

4 none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section

The requirements under Section 141(3) are that1 if the statement is made by a person under the age of 21 years it shall give his age 2 if it is made by a person who cannot read it it shall be read to him before he signs it and

shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and

3 (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under [Section 141(2)(c)] shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof

- Under Section 141(5) where a written statement is admitted by virtue of Section 141 ldquo[s]o much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloudrdquo To save time the Defence Counsel can agree to treat the Prosecutionrsquos statements as read instead of requiring these statements to be read aloud in court for the purposes of the PI

- In addition the DPP will apply to the court to get the exhibits mentioned in the statement marked Under Section 141(6) ldquo[a]ny document or object referred to as an exhibit and identified in a written statement

tendered in evidence under [Section 141] shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statementrdquo

- Notwithstanding that a written statement may be admissible by virtue of having satisfied the conditions under Section 141(2) and the requirements under Section 141(3) under Section 141(4) the court before which the proceedings are held may by its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence This enables the examining magistrate to clarify the evidence especially where there are gaps in the statement

- If evidence is taken orally from the witness under Section 203 CPC evidence must be taken in front of the accused or when his personal attendance has been dispensed with in front of his advocate Under Section 209 the evidence must be interpreted to the accused although the court can determine the extent of interpretation needed when documents are put in for purposes of formal proof The Defence can object to the facts raised by the prosecution witness if they have incontrovertible evidence in support of their case

- Under Section 204 CPC the evidence is to be recorded under the procedure in Chapter XXIII CPC Any failure to record the evidence in the manner prescribed in Chapter XXIII can render the committal null and void as was the case in R v Govindasamy Arumugam6 Under Section 205 CPC the examining magistrate or the District Judge is to record the evidence in legible handwriting and in English Under Section 206 CPC the magistrate must sign the evidence taken by him and the evidence forms part of the record Under Section 207 the witnessrsquos evidence must be taken in narrative but the magistrate has discretion to record any particular question and answer

- Under Section 208(1) CPC the evidence taken from each witness must be read over to the witness and be signed by him Under Section 208(3) if the witness does not understand English the evidence taken down must be interpreted to him in the language it was given or in a language in which he understands Any changes to the evidence is to be made via correction or alternatively under Section 208(2) ldquothe Magistrate may hellip make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessaryrdquo Under Section 208(4) the substance of any correction and any memorandum made must be explained to the accused Under Section 210 CPC a Magistrate or District Judge recording the evidence of a witness may at the conclusion of the evidence and at the foot of the notes of it record such remarks if any as he thinks material respecting the demeanour of the witness while under examination

Written statements before examining Magistrate141 mdash(1) In preliminary inquiries conducted under this Chapter a written statement by any person shall if the conditions mentioned in subsection (2) are satisfied be admissible as evidence to the like extent as oral evidence to the like effect by that person (2) The said conditions are mdash (a) the statement purports to be signed by the person who made it (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true (c) before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and (d) none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section (a) if the statement is made by a person under the age of 21 years it shall give his age (b) if it is made by a person who cannot read it it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof (4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries by virtue of this section the court before which the proceedings are held may of its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence

6 [1952] MLJ 80

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

an examination of the charges tentatively proffered against the accused vis-agrave-vis the facts but since the charges against the accused may be amended it is more important for the examining magistrate to consider whether the facts present a sustainable case against the accused

- The procedure of the PI varies depending on whether the accused wishes to plead guilty or to claim trial Under Section 139 CPC if the accused wishes to plead guilty to the tentative charges tendered by

the prosecution against him in non capital cases ndash accused person if wants to plead guilty can do so at PI stage then no need to draft statements and serve on him just prepare statement of facts he accepts them and then magis can commit him for trial at high court

the magistrate shall record the facts of the case presented by the prosecution If the facts disclose sufficient grounds for committing the accused the magistrate is required to satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence against him Thereafter he is required to commit the accused for trial for the offence

Committal for trial where accused wishes to plead guilty139 Where an accused who is brought before an examining Magistrate states that he wishes to plead guilty to the charge preferred against him the Magistrate shall record the facts of the case presented by the prosecution and if the facts disclose sufficient grounds for committing the accused he shall satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence alleged against him and on being so satisfied shall commit the accused for trial for the offence

o If the accused wishes to claim trial the Inquiry will proceed with the prosecutionrsquos presentation of the relevant facts Evidence may be taken either orally from the prosecution witness or by written depositions (under Section 141(1) CPC) if the conditions under Section 141(2) and the requirements of Section 141(3) CPC are fulfilled

Commencement of trial187 mdash(3) If the accused refuses to plead or does not plead or if he claims to be tried the court shall (b) if the accused was committed for trial under section 139 order him to be brought before an examining Magistrate for a preliminary inquiry

The conditions under Section 141(2) are that1 the statement purports to be signed by the person who made it 2 the statement contains a declaration by that person to the effect that it is true to the best of

his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true

3 before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and

4 none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section

The requirements under Section 141(3) are that1 if the statement is made by a person under the age of 21 years it shall give his age 2 if it is made by a person who cannot read it it shall be read to him before he signs it and

shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and

3 (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under [Section 141(2)(c)] shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof

- Under Section 141(5) where a written statement is admitted by virtue of Section 141 ldquo[s]o much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloudrdquo To save time the Defence Counsel can agree to treat the Prosecutionrsquos statements as read instead of requiring these statements to be read aloud in court for the purposes of the PI

- In addition the DPP will apply to the court to get the exhibits mentioned in the statement marked Under Section 141(6) ldquo[a]ny document or object referred to as an exhibit and identified in a written statement

tendered in evidence under [Section 141] shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statementrdquo

- Notwithstanding that a written statement may be admissible by virtue of having satisfied the conditions under Section 141(2) and the requirements under Section 141(3) under Section 141(4) the court before which the proceedings are held may by its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence This enables the examining magistrate to clarify the evidence especially where there are gaps in the statement

- If evidence is taken orally from the witness under Section 203 CPC evidence must be taken in front of the accused or when his personal attendance has been dispensed with in front of his advocate Under Section 209 the evidence must be interpreted to the accused although the court can determine the extent of interpretation needed when documents are put in for purposes of formal proof The Defence can object to the facts raised by the prosecution witness if they have incontrovertible evidence in support of their case

- Under Section 204 CPC the evidence is to be recorded under the procedure in Chapter XXIII CPC Any failure to record the evidence in the manner prescribed in Chapter XXIII can render the committal null and void as was the case in R v Govindasamy Arumugam6 Under Section 205 CPC the examining magistrate or the District Judge is to record the evidence in legible handwriting and in English Under Section 206 CPC the magistrate must sign the evidence taken by him and the evidence forms part of the record Under Section 207 the witnessrsquos evidence must be taken in narrative but the magistrate has discretion to record any particular question and answer

- Under Section 208(1) CPC the evidence taken from each witness must be read over to the witness and be signed by him Under Section 208(3) if the witness does not understand English the evidence taken down must be interpreted to him in the language it was given or in a language in which he understands Any changes to the evidence is to be made via correction or alternatively under Section 208(2) ldquothe Magistrate may hellip make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessaryrdquo Under Section 208(4) the substance of any correction and any memorandum made must be explained to the accused Under Section 210 CPC a Magistrate or District Judge recording the evidence of a witness may at the conclusion of the evidence and at the foot of the notes of it record such remarks if any as he thinks material respecting the demeanour of the witness while under examination

Written statements before examining Magistrate141 mdash(1) In preliminary inquiries conducted under this Chapter a written statement by any person shall if the conditions mentioned in subsection (2) are satisfied be admissible as evidence to the like extent as oral evidence to the like effect by that person (2) The said conditions are mdash (a) the statement purports to be signed by the person who made it (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true (c) before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and (d) none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section (a) if the statement is made by a person under the age of 21 years it shall give his age (b) if it is made by a person who cannot read it it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof (4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries by virtue of this section the court before which the proceedings are held may of its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence

6 [1952] MLJ 80

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

tendered in evidence under [Section 141] shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statementrdquo

- Notwithstanding that a written statement may be admissible by virtue of having satisfied the conditions under Section 141(2) and the requirements under Section 141(3) under Section 141(4) the court before which the proceedings are held may by its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence This enables the examining magistrate to clarify the evidence especially where there are gaps in the statement

- If evidence is taken orally from the witness under Section 203 CPC evidence must be taken in front of the accused or when his personal attendance has been dispensed with in front of his advocate Under Section 209 the evidence must be interpreted to the accused although the court can determine the extent of interpretation needed when documents are put in for purposes of formal proof The Defence can object to the facts raised by the prosecution witness if they have incontrovertible evidence in support of their case

- Under Section 204 CPC the evidence is to be recorded under the procedure in Chapter XXIII CPC Any failure to record the evidence in the manner prescribed in Chapter XXIII can render the committal null and void as was the case in R v Govindasamy Arumugam6 Under Section 205 CPC the examining magistrate or the District Judge is to record the evidence in legible handwriting and in English Under Section 206 CPC the magistrate must sign the evidence taken by him and the evidence forms part of the record Under Section 207 the witnessrsquos evidence must be taken in narrative but the magistrate has discretion to record any particular question and answer

- Under Section 208(1) CPC the evidence taken from each witness must be read over to the witness and be signed by him Under Section 208(3) if the witness does not understand English the evidence taken down must be interpreted to him in the language it was given or in a language in which he understands Any changes to the evidence is to be made via correction or alternatively under Section 208(2) ldquothe Magistrate may hellip make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessaryrdquo Under Section 208(4) the substance of any correction and any memorandum made must be explained to the accused Under Section 210 CPC a Magistrate or District Judge recording the evidence of a witness may at the conclusion of the evidence and at the foot of the notes of it record such remarks if any as he thinks material respecting the demeanour of the witness while under examination

Written statements before examining Magistrate141 mdash(1) In preliminary inquiries conducted under this Chapter a written statement by any person shall if the conditions mentioned in subsection (2) are satisfied be admissible as evidence to the like extent as oral evidence to the like effect by that person (2) The said conditions are mdash (a) the statement purports to be signed by the person who made it (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true (c) before the statement is tendered in evidence a copy of the statement is given by or on behalf of the party proposing to tender it to each of the other parties to the proceedings not less than 7 days before the date of hearing and (d) none of the other parties before the statement is tendered in evidence at the preliminary inquiry objects to the statement being so tendered under this section (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section (a) if the statement is made by a person under the age of 21 years it shall give his age (b) if it is made by a person who cannot read it it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read and (c) if it refers to any other document as an exhibit the copy given to any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof (4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries by virtue of this section the court before which the proceedings are held may of its own motion or on the application of any party to the proceedings require that person to attend before the court and give evidence

6 [1952] MLJ 80

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

(5) So much of any statement as is admitted in evidence by virtue of this section shall unless the court otherwise directs be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud (6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement (7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this section as it applies to a deposition taken in such proceedings

Reading over evidence and correction208 mdash(1) The evidence of each witness taken in inquiries under Chapters XI and XVII shall be read over to him and shall after correction if necessary be signed by him (2) If the witness denies the correctness of any part of the evidence when it is read over to him the Magistrate may instead of correcting the evidence make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary (3) If the witness does not understand English the evidence so taken down shall be interpreted to him in the language in which it was given or in a language which he understands (4) The substance of any correction made and of any memorandum made by the Magistrate shall be explained to the accused

-If no objections statements f every witnss are read out aloud in open Court and any exhibits referred to in the statements are tendered in evidence Obj of havig this lsquopaper prelim inquiryrsquo si to save time for witness to be examined in chief ndash cut down process and enable PI to be dealt with quickly

ndash Further time can be saved if the Defence Counsel agrees to treat the Prosecution witnessrsquos statements as read instead of requiring these statements to be read out in court for the purposes of the PI

-1048617 Exhibits tendered-1048617 Witnesses are present in court at PI stage as well ndash presence stil nec since he signs bond to appear in HC to give evid

ndash 1048617 Can cross-examine them (inform court first) but seldom done so

Scott amp Anor v R Barnes amp Ors (1989) 2 AER 305ndash Facts Privy Council case from Jamaica The defendants were charged in Jamaica with murder and at the trial

the judge admitted in evidence the sworn deposition of a witness who had died before the trial There was no other evidence of identification The judge failed to warn the jury that the identification might have been mistaken The Court of Appeal of Jamaica dismissed the defendants appeal against conviction holding that the judge had no discretion at statute or common law to exclude the deposition In a similar case the judge admitted the deposition of a witness who had died gave no direction on identification and made comments suggesting that the witness might have been deliberately killed to prevent his giving evidence The Court of Appeal refused the defendants applications for leave to appeal against conviction

ndash Held Held allowing the appeals the judge had no statutory discretion to exclude the depositions but had a common law discretion to do so in order to ensure a fair trial However the discretion to exclude should not be exercised merely because of the inability to cross-examine the witness but only exceptionally where the quality of the evidence was such that the judge considered it unsafe to allow a jury to rely on it or where directions to the jury would not guarantee a fair trial The judges were right to admit the depositions However careful warnings should have been given as to the dangers of untested identification evidence and the absence of such warnings plus in the second case the suggestion that the witness had been deliberately killed made it necessary to quash the convictions

ndash Privy Council case from Jamaicandash At PI stage statement of eye witness of murder case put inndash defence did not cross ecxamine this eye witness (not the usual practice to x examine)ndash By time trial camse up in higher court witness no longer availablendash No other evid except evid of this witnessndash Defence argd that this shd be excluded because no oppty to cross examine the witnessndash Court held this wld not be ecxlued because admissible ndash deposition of eye-witness not challenged at PIndash at trial eye-witness not availablendash no other evidence

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

ndash court held that evidence of witness cannot be excludedndash (note our section 33 Evidence Act CPC sections 149(4) 367 368 and 375)ndash so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence ActRelevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33 Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions (a) the proceeding was between the same parties or their representatives in interest (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first as in the second proceeding ExplanationmdashA criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

- 1048617 Sections 367 - 368ndash when deposition can be used as trial even if witness not in courtndash medical witnessesndash custody of exhibitsndash useful to look at this

Deposition of medical witness367 If the court is satisfied that grave inconvenience would otherwise be caused it may if it thinks fit allow the deposition of a medical officer of the Government or other medical witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial under this Code although the deponent is not called as a witness Deposition of certain other witnesses368 Whenever at a preliminary inquiry the evidence of any witness has been taken for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of the inquiry to any public officer for examination or analysis or report or of proving the custody or disposal of any instrument weapon matter or thing used in or about the commission of any offence or of proving the accuracy of any plan or survey made or photograph taken by that witness for the purpose of the case the High Court may if it thinks fit allow the deposition of that witness taken and attested by a Magistrate in the presence of the accused to be given in evidence in any trial before that Court although the deponent is not called as a witness

- 1048617 Section 375ndash when depositions can be used in other circumstances

Record of evidence in absence of accused375 mdash(1) If it is proved that an accused person has absented himself so that there is no immediate prospect of arresting him the court competent to try that person or commit him for trial for the offence complained of may in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions (2) Any such deposition may on the arrest of such person be given in evidence against him on the inquiry into or trial for the offence with which he is charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay expense or inconvenience which under the circumstances of the case would be unreasonable

(3) If it appears that an offence punishable with death or with imprisonment for life has been committed by some person or persons unknown a Magistratersquos Court may hold an inquiry and examine any witnesses who can give evidence concerning the offence Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or is beyond the limits of Singapore

R v Oxford City Justices ex parte Barry (1987) 1 AER 1244

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

ndash Facts The applicant moved to quash a committal for trial on five charges of burglary by the magistrates court He appeared in person at the committal hearing and indicated that he wished to challenge the admissibility of his alleged confessions which were the only evidence against him The court refused to let him do so holding that it was a matter for the judge at the Crown Court The grounds of the application were that the Police and Criminal Evidence Act 1984 s 76(2) required the prosecution to prove a confession reliable beyond reasonable doubt and that by declining to hear this evidence the justices declined jurisdiction and thus their decision could be challenged by certiorari

ndash Held Held that since judicial review was a discretionary remedy the court would not save in exceptional circumstances quash committal proceedings on the ground of omission to inquiry into a confession alone since the inquiry could be made by the judge at the trial

ndash Comments Voluntariness of confession can be gone into although this is rarely donendash confession put at PI stagendash magistrate said that cld not do so ndash ndash but held

voluntariness of confession can be gone into though this is rarely done

PP v Yap Koon Mong (1999) 4 SLR 257- Facts Father sexually abused daughter At HC he pleased guilty Prosecution felt sentence too light and lodged appeal

One of the arguments made by the prosecution was that the trial judge erred (1) in placing too much weight on the plea of guilt by the respondent and (2) that the respondent had spared the victim from having to give evidence during trail at the High Court and thus the terror of recounting her experience

- The prosecution drew this courtrsquos attention to the fact that the appellant did not plead guilty at the preliminary inquiry stage of the trial and that the victim had actually been cross examined by the appellantrsquos counsel at that stage as to the sordid events that had taken place

- Hence it was inaccurate to say that the appellant had been truly willing to confess right from the start This submission was agreed to by the Court of Appeal

- sexually abused daughter who was physically handicapped charged in court- victim XXN at PI- Pleaded guilty in High Court- Prosecution appealed against sentence because felt t ttoo light

o Offences commited over no of yrs girl young physically handicapped- Trial judge in his jduement explaining the sentence had gave one partr reason among other s- by pleading guilty father

had spared the young girl trauma of being cross examined on facts of this case- But what had happened was that at the PI he had instructed counsel to cross examine young girl and because young girl x

examined at PI stage she performed well cld remember the dates of offence stood up to x exam prob because of that he didnrsquot cross examine her at HC stage

- So pros argd that this fact that he had spared her the agony of x exam at HC stage shd not be given to omuch emphasis and he had x examined at PI and causd her trauma of the var offences

- Arg put forward- CA agreed with argument and sentence was increased

- What happens if a prosecution witness is unable to attend a PI ndash For vulnerable witnesses can use videolink for PI as well but you must write in in advancendash Section 141(1) CPC allows for any written statement including that of a Prosecution witness to be admissible as

evidence at the PI to the like extent as oral evidence to the like effect of its maker However this is subject to the conditions laid down in section 141(2) CPC and the requirements in Section 141(3) CPC As such so long as the Prosecution complies with these provisions the conditioned statement of the absent witness may be tendered in substitute Even if the witness is not present to sign the statement after it is read out at the Preliminary Inquiry the Investigating Officer can give an undertaking (get his witness to sign a bond) to produce him in court during the trial and he can sign his statement in the courtrsquos presence then at the beginning of the trial

ndash Note though that section 141(4) CPC allows the examining magistrate on its motion or on the application of any party to the proceedings to require that the maker of the section 141(1) statement attend before the court and give evidence

-1048617 Witnesses sign undertaking to appear in High Court

At the end of the prosecutionrsquos case

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

- under Section 153(1) CPC if the accused has elected to make his defence the accused and his advocate may ldquoaddress the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of replyrdquo

- 1048617 Section 153ndash submissions can be made by both sides

Addresses153 mdash(1) In preliminary inquiries under this Chapter the accused or his advocate and solicitor may at the end of the prosecution case and if the accused has elected to make his defence at the end of the defence case address the court on a submission that there is insufficient evidence to put the accused on trial for the offence of which he is charged and the officer or other person conducting the prosecution shall have the right of reply

- After the examining magistrate has heard all the evidence one of four events will occur ndash (1) Committal for trial at the High Court (2) Try the accused in the Subordinate Courts (3) Discharge the accused and (4) Remand the accused pending further investigation An explanation of each is as follows

(1) Committal for trial at the High Court - If the magistrate is satisfied that there is sufficient evidence to put the accused on trial in the High Court he shall frame a charge under his hand declaring with what offence or offences the accused is charged and commit the accused for trial in the High Court (But usually in practice the charge drafted by the prosecution is used)

- 1048617 Section 140ndash if sufficient evidence Magistrate to commit

Committal for trial on written statements140 An examining Magistrate making an inquiry preliminary to committal for trial may where he is satisfied mdash (a) that all the evidence before the court whether for the prosecution or the defence consists of written statements tendered to the court under section 141 with or without exhibits and (b) that the statements disclose sufficient evidence to put an accused upon his trial commit the accused for trial for the offence

- The relevant section is Section 143(1) CPC if the evidence tendered at the PI consisted wholly of written statements admitted under Section 141 CPC But even if the evidence did not consist entirely of written statements tendered under Section 141 there must nevertheless be sufficient grounds for committing the accused for trial at the High Court7 The charge will then be read and explained to the accused and the magistrate shall warn the accused with the words in Section 143(2) or other words to similar effect

ldquoHaving heard the evidence do you wish to say anything in answer to the charge You have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any confession of your guilt You are not bound to say anything unless you desire to do so but whatever you say will be taken down in writing and may be given in evidence at your trialrdquo

- similar to old form of words under Judgersquos Rules

- but amendments to CPC did away with judgersquos rules and introd concept of accused being advised to mention any fact he intends to rely on at trial and if not court can draw adverse inference ndash

- With this warning given if the accused fails to mention any fact that he wishes to rely on at trial the court is free to draw an adverse inference from the fact that he failed to mention any such fact (Section 122(6) read with Section 123(1) CPC)

- Thereafter the accused has to choose one of three optionsa He can elect to reserve his defence and not say anything in answer to the charge If he chooses

this option he will be committed for trial before the High Court under Section 144 CPCb He may elect to make a statement in his behalf if he has not previously made a written statement

in his behalf If he chooses this option under Section 145(1) CPC his statement shall be written down and read over to him and signed by the examining magistrate and kept with the written statements made under Section 141 and transmitted with them

7 Tan Yock Lin Criminal Procedure 2004 LexisNexis Singapore Chapter VIII paragraph 503

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

c He may tender himself as a witness in his own behalf as provided under Section 145(3) CPC and give sworn evidence and subject himself to cross examination

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

- If option b or c is chosen the accused has the right to call witnesses on his behalf if he wishes and evidence will be taken from them at this point Thereafter after hearing the witnesses for the defence under Section 146 CPC ldquothe examining Magistrate shall mdash

(a) if he finds that there are not sufficient grounds for committing him for trial discharge the accused or (b) if he finds that there are sufficient grounds for committing him for trial commit the accused for trial before the High Courtrdquo

- What the accused says can be given in evidence at is trialndash 1048617 Accused can give evidence

R v Horseferry Road Magistratesrsquo Court (1978) 1 AER 373- Facts At the close of the prosecution case at committal proceedings a defence submission was rejected The

magistrate then refused to allow the defendant to give evidence on the ground that as examining magistrate it was not his function to assess the credibility of witnesses The defendant applied for an order of certiorari to quash the committal

- Held Held granting the application that the defendant should have been permitted to give evidence A defendant is entitled to call evidence after the refusal of a submission of no case at committal proceedings in the same way as in any other criminal proceedings

- court refused to allow accused to give evidence- on appeal court said this was wrong- (see our section 145 CPC) ndash rules provide and make clear that at PI stge accused entitled to give evid and magistrate

must take down this evid

Defence of accused145 mdash(1) If the accused elects to make his defence before the examining Magistrate instead of making a written statement under section 141 the statement made by the accused if any shall be taken down in writing and read over to him and shall be signed by the examining Magistrate and kept with the written statements made under section 141 and depositions if any and transmitted with them as hereinafter mentioned (2) The evidence of the accused if he tenders himself as a witness in his own behalf in lieu of making a statement under subsection (1) or section 141 and of any witnesses whom he may desire to call shall then be taken (3) Notwithstanding anything in the Evidence Act the accused shall be a competent witness in his own behalf in all inquiries under this Chapter

ndash 1048617 To put in defence early Or wait until HC trial stagte Stimes adv to do so at early stage other times may not do so Question for A is whether to put in defence early or wait until actual trial Can claim that

client has been consistent from Day 1 if the formerndash Matter of defence strategy ndash bear in mind tt magis role only to look for prima facie case ndash not for

him to decide issues abt illness of mind etc invariably counsel advises clients to remain silent and rserve defence and will so inform court ndash magistrate will record this election

- Can defence witnesses be called at PI ndash Yes they can be called by the defence to give evidence testimonially at the PI by virtue of Section 145(2) CPC

But in practice this is hardly ever done Section 145(2) CPC allows the accused to tender himself as a witness in

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

his own behalf in lieu of making a statement under Section 145(1) CPC or section 141 as well as to call other witnesses to give evidence if he desires to do so Under Section 145(3) an accused person is a competent person on his own behalf in all Preliminary Inquiries

ndash If the accused is committed to trial at the High Court the Court will inform the accused of the requirement for him to give a Notice of Alibi to the Prosecution within 14 days after the PI as required under Section 155(9) CPC The Defence Counsel is also required to assist the accused in preparing a list of witnesses (with their names and addresses so far as practicable) to submit to the examining magistrate since the accused is required to submit such a list under Section 147(4) This will facilitate the issue of bonds to compel them to attend the trial

1048617 If sufficient evidence Magistrate commits accused for trial draft charge tendered by DPP for Magrsquos consideration

1048617 Draft charge tendered by DPP 1048617 Magistrate frames charge ndash on his own or based on draft by prosecutor 1048617 Court informs Accused regarding alibi defence ndash need to give details of that within certain time frame

- and the time period within which alibi notice to be given runs from the conclusion of the PI proceedings

List of witnesses for defence on trial147 mdash(1) When the accused has been committed for trial under section 140 144 or 146 the examining Magistrate shall require the accused to give orally or in writing a list of the names and so far as practicable the addresses of the persons if any whom he wishes to be summoned to give evidence on his trial and shall record that he has so done (2) If the examining Magistrate thinks that any witness is included in the above list for the purpose of vexation or delay or of defeating the ends of justice he may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of that witness is material and if he is not so satisfied may remove the name of that witness from the list recording his reason for such action or may require such sum to be deposited as the examining Magistrate thinks necessary to defray the expense of obtaining the attendance of that witness at the trial (3) The list of witnesses as finally determined shall be included in the record (4) The accused or any person on his behalf may at any time before his trial give to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial Provided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrar (5) The Registrar on receiving such list and statement shall forthwith transmit the same to the Public Prosecutor and shall also issue subpoenas to compel the attendance of those witnesses at the trial (6) If any of such subpoenas cannot be served the Registrar shall forthwith inform the Public Prosecutor and the accused or his advocate and solicitor

(2) Try the case in the Subordinate Courts - Alternatively if the magistrate is of the opinion that the evidence disclosed is such as might more properly be tried summarily under Section 142(2) CPC he may either (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other magistratersquos court or before a district court If the first option is chosen the case shall proceed thereafter as a summary trial

(3) Discharge the accused - If the magistrate considers the charge to be groundless he may discharge the accused and record his reasons for so doing under Section 142(4) CPC It must be noted that the discharge here is a pure discharge not amounting to an acquittal since the magistrate has no power to acquit The same applies if the prosecution withdraws the charge

- 1048617 Section 142ndash no sufficient groundsndash discharging (note Mary Shimrsquos case)ndash if lesser offence summary trial in District or Magistratersquos Court

When accused person to be discharged142 mdash(1) When the written statements and all the other evidence if any in support of the prosecution have been

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

received in evidence the examining Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial discharge him (2) If after taking the evidence for the prosecution as aforesaid the examining Magistrate is of the opinion that there are sufficient grounds for committing the accused but that the offence disclosed by the evidence is such as might more properly be tried summarily he may either mdash (a) frame a charge or charges in writing and call upon the accused to plead thereto or (b) order the accused to be tried before any other Magistratersquos Court or before a District Court (3) If the examining Magistrate proceeds under subsection (2) (a) the case shall proceed as a summary trial (4) Nothing in this section shall be deemed to prevent an examining Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by the examining Magistrate he considers the charge to be groundless (5) When the examining Magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Public Prosecutor he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

(4) Remand the accused pending further investigation - If the magistrate is of the opinion that there are peculiar difficulties or circumstances connected with the case or whenever he is so directed by the Prosecution under Section 142(5) CPC he shall remand the accused or admit him to bail and shall forthwith transmit the evidence before the court to the Public Prosecutor in order that he may give such instructions as to him appear requisite

- 1048617 Section 154 ndash impt purpose of PI - If the accused cannot understand the proceedings of the inquiry though he is not insane under Section

197 CPC the examining magistrate may proceed with the inquiry but is required to report any committal for trial to the High Court which shall thereafter make such order or pass such sentence as it thinks fit

- Under Section 154(1) CPC the preliminary inquiry proceedings are not to be publicised unless the accused asks for it under Section 154(2) CPCndash restrictions on the press from reportingndash can only report outcome and not theinterim ndash restrictions to protect accused personndash accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries154 mdash(1) Except as provided by subsections (2) and (3) it shall not be lawful to publish in Singapore a written report or to broadcast in Singapore a report of any preliminary inquiry in Singapore containing any matter other than that permitted by subsection (4) (2) A Magistratersquos Court shall on an application for the purpose made with reference to any preliminary inquiry by the accused person or one of the accused persons as the case may be order that subsection (1) shall not apply to reports of those proceedings (3) It shall not be unlawful under this section to publish or broadcast a report of any preliminary inquiry containing any matter other than that permitted by subsection (4) mdash (a) where the examining Magistrate determines not to commit the accused person or the accused persons for trial after it so determines (b) where an examining Magistrate commits the accused person or any of the accused persons for trial after the conclusion of his trial or as the case may be the trial of the last to be tried and where at any time during the inquiry an examining Magistrate proceeds to try summarily the case of one or more of the accused persons under section 142 (2) while committing the other accused person or one or more of the other accused persons for trial it shall not be unlawful under this section to publish or broadcast as part of a report of the summary trial after the court determines to proceed as aforesaid a report of so much of the preliminary inquiry proceedings containing any such matter as takes place before the determination (4) The following matters may be contained in a report of preliminary inquiries published or broadcast without an order under subsection (2) before the time authorised by subsection (3) (a) the identity of the court and the name of the examining Magistrate (b) the names addresses and occupations of the parties and witnesses and the ages of the accused person or persons and witnesses (c) the offence or offences or a summary of them with which the accused person or persons is or are charged

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

(d) the names of advocates and solicitors engaged in the proceedings (e) any decision of the court to commit the accused person or any of the accused persons for trial and any decision of the court on the disposal of the case of any accused persons not committed (f) where the court commits the accused person or any of the accused persons for trial the charge or charges or a summary of them on which he is committed (g) where the preliminary inquiry is adjourned the date to which it is adjourned (h) any arrangements as to bail on committal or adjournment (5) If a report is published or broadcast in contravention of this section the following persons that is to say (a) in the case of a publication of a written report as part of a newspaper or periodical any proprietor editor or publisher of the newspaper or periodical (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical the person who publishes it (c) in the case of a broadcast of a report any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical shall be liable on summary conviction to a fine not exceeding $5000 (6) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Public Prosecutor (7) Subsection (1) shall be in addition to and not in derogation of the provisions of any other written law with respect to the publication of reports and proceedings of Magistratesrsquo and other courts (8) In this section mdash broadcast means broadcast by wireless telegraphy sounds or visual images intended for general reception publish in relation to a report means publish the report either by itself or as part of a newspaper or periodical for distribution to the public

- If Preliminary Inquiry and the Supplementary Preliminary Inquiry of the two co-accused are held at the same time the magistrate must bear in mind that evidence which is admissible against one may be irrelevant and inadmissible against the other Although the magistrate is free to commit one accused and to try the offence of the other accused summarily he runs the risk of an improper conviction if he fails to properly ascertain which is admissible against one but not the other In such cases Spenser Wilkinson J in Voon Chin Fatt8 suggests that the more satisfactory course of action is to commit both accused persons to trial at the High Court even though the charge against one is a less serious offence

After PI

Procedure after committal of accused for trial150 mdash(1) When the accused is committed for trial the Magistratersquos Court shall send a copy of the record of the proceedings to the Public Prosecutor and to the accused and when it receives an order from the Public Prosecutor to do so the original record and any document weapon or other thing which is to be produced in evidence to the Registrar (2) Any such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police (3) A list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the record (4) The record shall comprise the following particulars (a) the serial number (b) the date of the commission of the offence (c) the date of the complaint if any (d) the name and residence of the complainant if any (e) the name residence if known and nationality of the accused (f) the offence complained of and the offence if any proved and the value of the property if any in respect of which the offence has been committed (g) the date of the summons or warrant and of the return day of the summons if any or on which the accused was first arrested

8 [1948-49] MLJ Supp 131 at 132

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

(h) the date on which the accused first appeared or was brought before the Magistratersquos Court (i) the date of the making of each adjournment or postponement if any and the date to which the adjournment or postponement was made and the grounds of making the same (j) the date on which the proceedings terminated (k) the order made (l) the depositions (m) the statement or evidence of the accused under section 145 if any (n) the charge and (o) the list of witnesses given by the accused

-1048617 Record sent to DPP and Accused-1048617 Supplementary PIs can be held (oral evidence) if eg information left out or new information becomes available

ndash eg where some witnesses cannot attendndash but rarely donendash in supp PI evid of witness has to be led orally and not by way of statements

-1048617 PP decides on charges to go on in High Courtndash new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on

-1048617 PP can amend alter or reduce charges (under CPC)-1048617 PP can order Accused to be discharged (under CPC)

ndash eg wher of view tt do not have strong case-1048617 Take careful instructions

ndash therefore put in some evid where advantagoues at PI stage

- Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later datendash Yes the Registrar still keeps them till the trial Under Section 150(1) CPC when the Magistrates Court receives

an order from the Public Prosecutor to do so the original record from the Preliminary Inquiry and any document weapon or other thing which is to be produced in evidence to the Registrar Nevertheless under Section 150(2) CPC ldquo[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the policerdquo Under Section 150(3) ldquo[a] list of all exhibits with a note of their distinguishing marks and showing which of those exhibits are forwarded with the record and which remain in the custody of the police shall be sent to the Registrar with the recordrdquo Exhibits can also consist of photographs of bulky items

- What is the responsibility of Defence Counsel after PIndash (a) If the magistrate discharges the accused

If the magistrate discharges the accused at the Preliminary Inquiry under Section 329 CPC the Defence Counsel can apply for bail on behalf of the accused Under Section 329 a bail application shall be made to the Court or a Judge and shall unless otherwise ordered be supported by affidavit stating when by whom and under what circumstances the prisoner was committed to custody and where he is detained in custody It is therefore the responsibility of the defence counsel to apply for bail on behalf of his client and to draft the required affidavit

ndash (b) If the accused is committed for trial If the accused is committed for trial at the High Court the Defence Council has the duty of preparing

for the trial which would involve preparing questions for examination in chief and cross examination outlining arguments for submission to trial court as well as analysing the prosecutionrsquos case for loopholes

If the accused intends to claim an alibi under Section 155(1) CPC read with the definition of ldquoprescribed periodrdquo in Section 155(9) CPC the accused must serve an alibi notice within 14 days to the Prosecution after the end of the Preliminary Inquiry

It is the Defence Counselrsquos responsibility to draft the required Notice on behalf of his client if his client wishes to claim an alibi defence and it must be noted that under Section 155(4) CPC ldquo[a]ny notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accusedrdquo Under Section 155(2)(a) CPC the required alibi notice must include the name and address of the witness intended to be called or if the name or address is not known to the accused at the time he gives the notice the accused must provide any information in his possession that might be of material assistance in finding the witness

Under Section 155(2)(b) CPC if the name or address had not been provided in the notice the accused must take reasonable steps to secure the required information and under Section 155(2)(c) CPC

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

transmit the information to the Prosecution If the Prosecution is unable to trace the alibi witness through the information provided by the accused under Section 155(2)(d) CPC the accused is required to provide the Prosecution with the required information which is then in his possession or if he subsequently receives it at that time There is therefore a duty on defence counsel to assist the accused in providing the required information on the name and address of the alibi witness Under Section 155(7) CPC ldquo[i]f the Public Prosecutor interviews any witness who is named in an [alibi notice] the accused or his advocate shall be entitled to be present at the interviewrdquo and thus it is the responsibility of defence counsel to be there (previous section talked about IO interviewing but here it is PP)

Notice of alibi155 mdash(1) On a trial before the High Court the accused shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period he gives notice of particulars of the alibi (2) Without prejudice to subsection (1) on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless mdash (a) the notice under subsection (1) includes the name and address of the witness or if the name or address is not known to the accused at the time he gives the notice any information in his possession which might be of material assistance in finding the witness (b) if the name or the address is not included in that notice the court is satisfied that the accused before giving the notice took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained (c) if the name or the address is not included in that notice but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness he forthwith gives notice of the name address or other information as the case may be and (d) if the accused is notified by or on behalf of the Public Prosecutor that the witness has not been traced by the name or at the address given he forthwith gives notice of any such information which is then in his possession or on subsequently receiving any such information forthwith gives notice of it (3) Any evidence tendered to disprove an alibi may subject to any directions by the court as to the time it is to be given be given before or after evidence is given in support of the alibi (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall unless the contrary is proved be deemed to be given with the authority of the accused (5) A notice under subsection (1) shall either be given in court during or at the end of the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him or by leaving it at his office or by sending it through the post by a registered letter addressed to him at his office (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section the accused or his advocate shall be entitled to be present at the interview (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section (9) In this section mdash evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission prescribed period means the period of 14 days from the end of the proceedings before the examining Magistrate

- During the interval after the preliminary inquiry but before the trial under Section 147(4) after the Preliminary Inquiry the accused may at any time ldquogive to the Registrar or the officer in charge of the prison in which he is kept a further list of persons whom he wishes to give evidence on his behalf at the trial [p]rovided that such list is accompanied by a concise statement of the facts to be proved by those witnesses and if given to the officer in charge of the prison it shall be forwarded by him to the Registrarrdquo If the accused person wishes to give such a list the Defence Counsel has a duty to assist him in doing so

- Under Section 148(1) CPC defence witnesses ldquowhose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidencerdquo

The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds Under Section 148(2) the Magistratersquos Court may commit the non-compliant defence witness to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

Bonds of witnesses148 mdash(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistratersquos Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence (2) If any witness refuses to execute such bond the Magistratersquos Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial

- If a document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) under Section 149(1) CPC ldquothe examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trialrdquo

The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accusedrsquos case to require that personrsquos attendance

Attendance at trial of person making report149 mdash(1) Where any document has been used as evidence in the inquiry in accordance with section 283 (2) or 369 (1) the examining Magistrate shall then inform the accused that he has the right to require the attendance of the person under whose hand the document is made as a witness at the trial and that he may to this end give notice at any time before the trial to the Registrar or to the officer in charge of the prison in which he is kept of his wish that that person be required to attend at the trial (2) On receiving any such notice from the accused the officer in charge of the prison shall notify the Registrar (3) The Registrar on receipt of such notice from the accused or from the officer in charge of the prison shall forthwith issue a summons to compel the attendance of that person at the trial (4) Nothing in this section shall render such report inadmissible in evidence when the person who made it is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable

- If the court examines supplementary witnesses after the commitment to trial at the Preliminary Inquiry and before the commencement of the trial under Section 151(1) CPC such witnesses are required to be examined before the accused who has the right to cross examine them

The Defence Counsel then has the responsibility to prepare and perform the cross examination on behalf of his client

(note section 188(3) CPC) 188(3) ndash witness not called at PI can be called at trial if written notice given to registrar

so spplemtnary PI not often used because of this

Power to summon supplementary witnesses151 mdash(1) The Magistratersquos Court may summon and examine supplementary witnesses after the commitment and before the commencement of the trial and bind them over in the manner hereinbefore provided to appear and give evidence (2) Such witnesses shall be examined in the presence of the accused who shall have the right to cross-examine them

Opening case for prosecution188 mdash(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness by the prosecution at any trial before the verdict is given unless the accused person or his advocate and the Registrar have been previously served with a notice in writing of the intention to call the person stating the personrsquos name and address and the substance of the evidence intended to be given

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

- 1048617 Section 152ndash accused to be in custody unless entitled to bail

Custody of accused pending trial152 mdash(1) The Magistratersquos Court shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody until and during the trial (2) This section shall not apply where the accused is a corporation

- 1048617 Section 339ndash after PI PP can terminate proceedingsndash discharge of accused

When Public Prosecutor may direct that accused person be discharged339 mdash(1) When a copy of the record of any inquiry before a Magistratersquos Court has been transmitted to the Public Prosecutor as required by section 150 the Public Prosecutor if he is of opinion that no further proceedings should be taken in the case may make an order in writing signed by himself directing the accused person to be discharged from the matter of the charge and if the accused person is in custody from further detention upon the charge (2) The Public Prosecutor shall send such order to the Magistratersquos Court by which the accused was committed or held to bail and thereupon that Court shall cause the accused to be brought before it and discharged and shall record the order and the discharge made on it upon the proceedings (3) The powers given to the Public Prosecutor by this section shall be exercised only by the Attorney-General or the Solicitor-General

- 1048617 Sections 340 - 341ndash further evidence can be takenndash supplementary PIs

When Public Prosecutor may direct Magistratersquos Court to take further evidence340 If the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial he may make in writing an order in the case signed by himself requiring the Magistratersquos Court to take such further evidence as is specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry Supplemental inquiry341 mdash(1) Upon the order of the Public Prosecutor being so received by the Magistratersquos Court it shall cause the accused person to appear before it and shall resume and proceed with the inquiry in pursuance of the order (2) For the purpose of this supplemental inquiry the accused person if at large on bail shall be called upon by written notice to appear before the Magistratersquos Court and if in prison shall by an order of the Magistratersquos Court be brought before the Magistratersquos Court on a day appointed therefore (3) All the provisions in respect of the original inquiry shall be applicable so far as may be to the supplemental inquiry (4) The Magistratersquos Court shall at the termination of the supplemental inquiry again forthwith transmit a copy of the record to the Public Prosecutor

- 1048617 Section 342ndash PP can direct trial to be in District or Magistrate Court

Public Prosecutor may by fiat designate court of trial when criminal offence disclosed342 mdash(1) Whenever the Public Prosecutor is of opinion that a criminal offence is disclosed by the record and that further proceedings should be taken against the accused person and that the evidence taken is sufficient to afford a foundation for a full and proper trial he shall by his fiat in writing signed by himself designate the court whether High Court District Court or Magistratersquos Court before which the case shall be placed for trial and shall order the record of the case to be transmitted to the court so designated (2) Such fiat shall be filed with and form part of the record of the case

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

- 1048617 Sections 343 - 346ndash procedural provisions

Procedure when court designated is High Court343 mdash(1) If the court so designated is the High Court the Public Prosecutor shall with his fiat send to the Magistratersquos Court a charge signed as required by section 179 which shall be annexed to and form part of the record (2) The Magistratersquos Court shall forthwith serve a copy of that charge on the accused person [342Procedure when court designated is not High Court344 mdash(1) If the court so designated is other than the High Court the accused person and his sureties shall if he is at large on bail be served with a copy of the fiat and thereupon the bail of the accused shall be taken to refer to the court named in the fiat in the same manner as if that court had been the High Court (2) If the accused is detained in prison the court shall cause a copy of the fiat to be left with the officer in charge of the prison who shall make and deliver a copy of it to the accused and shall produce the prisoner for trial accordingly (3) Any fiat made under this section shall be subject to any order made by the High Court under section 185 [343Witnesses to be notified of change of court345 mdash(1) If the court designated by the fiat of the Public Prosecutor for the trial of the accused is a court other than the High Court that court shall cause notices to that effect to be served on the witnesses who have been bound over to appear and give evidence (2) Thereupon the bail bond given by or for those witnesses shall be taken to refer to the court and time named in the notice in the same manner as if they had been bound over to appear and give evidence at that court and time and the witnesses shall be legally bound to attend at the time appointed by that court for the trial of the case [344Public Prosecutor may issue subsequent fiat346 If the Public Prosecutor has by his fiat designated the High Court for the trial of the accused he may nevertheless by subsequent fiat addressed to the High Court designate some other court for the trial and sections 342 (2) 344 and 345 shall thereupon take effect as if the previous fiat had not been issued

- 1048617 Section 347ndash PP can alter or reduce charge

Public Prosecutor may alter or redraw charge347 Before ordering the record of the case to be transmitted to the court of trial the Public Prosecutor shall if it appears to him necessary or expedient to do so alter or redraw the charge or frame an additional charge or additional charges against the accused having regard to the rules in this Code as to the form of charges

Review of PI

R v Telford Justices ex parte Badhan (1991) 2 AER 854ndash offence in 197374ndash report made 16 years later because victim very youngndash argd tt delay of 16 yrs not right and proceedings x be allowed to proceedndash upheldndash Facts Some 15 years after the applicant was alleged to have raped an 11 year old girl he was in October 1988

charged with that offence the complaint not having been made until September 1988 On appearing before the justices at the committal proceedings an application was made by counsel for the applicant that the justices should not proceed as examining justices on the ground that to do so after a lapse of time of 15 years would be an abuse of process of the court The justices refused that application but adjourned the case to enable the applicant to apply to the Divisional Court for judicial review by way of an order of prohibition to stop the justices sitting as examining justices on the ground that the delay in the instant case was unconscionable inordinate and oppressive and that the applicant could not have a fair trial

ndash Held allowing the application that examining justices had an inherent jurisdiction to refuse to undertake the inquiry on the ground that it was an abuse of process to do so As to delay the onus was normally on the accused to show on the balance of probabilities a fair trial was impossible In the instant case although the prosecuting

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges

authorities were not responsible for the lapse of time 15 years between the date of the alleged offence and the making of the complaint nevertheless the Court was of opinion that it should infer prejudice and conclude that a fair trial was not possible Accordingly an order would be made prohibiting the justices from proceeding with the committal proceedings against the applicant

Neil v North Antrim Magistratesrsquo Court amp Anor (1992) 4 AER 848ndash HL decision or wr divisional court has power to quash committal proceedingsndash good account of committal proceedings in England and Northern Irelandndash Facts By article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (1) a statement

made by a person in a document shall be admissible if (ii) the requirements mentioned in paragraph (3) are satisfied (3) The requirements mentioned in paragraph (1)(ii) are (b) that the person who made it does not give evidence through fear A man was set upon and robbed Four young men including N were charged with assaulting him occasioning actual bodily harm theft taking a vehicle without the victims consent and using the vehicle without insurance Amongst the evidence tendered by the prosecution were the statements of two youths brothers who alleged they saw N taking part in the incident from which the charges arose At a preliminary inquiry under article 31 of the Magistrates Court (Northern Ireland) Order 1988 the resident magistrate heard evidence from a police officer who averred that the youths mother told him that her sons were too afraid to come to the court because of threats made against them The magistrate admitted the youths evidence under article 3(3)(b) of the Order on the ground that their refusal to give oral evidence was due to fear for their personal safety He committed inter alia N for trial N sought judical review of the magistrates decision on the ground that the order of committal had been contrary to natural justice and in excess of jurisdiction and certiorari to quash the order On appeal the Divisional Court held that the statements were inadmissible but certiorari would not lie to quash the committal On appeal therefrom to the House of Lords

ndash Held allowing the appeal that (1) the fact that a witness was absent through fear had to be proved by admissible evidence in the instant case although had the police officers evidence been that the youths had spoken to him direct their witness statements would have been potentially admissible under article 3(3)(b) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 yet there was no such evidence for what was essentially a third hand account by the mother of the two youths apprehension was hearsay and could not be admitted as an exception to the hearsay rule Thus the statements of the two youths should not have been admitted (2) Committal proceedings were susceptible to judicial review and certiorari would lie if the procedural irregularity was a serious one leading to a demonstrable injustice to the accused In the present case the magistrates decision to allow the statements to be read went beyond the mere receipt of inadmissible evidence for N lost the opportunity to have the eye-witnesses mental state or their substantive testimony or both subject to scrutiny Thus certiorari would be granted to quash the committal on the first three charges