11 Prelim Inquiries

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 – 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 e.g. 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 accused’s possible defence.1 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 Cr.App.R.499 - 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 – without her evid, there was suff evid – accused committed to stand trial in higher cour tin UK – defence wanted young girl to be calsled because wanted to x examine her – took up matter on appeal – argd that because young girl was victim of crime, not called, crtical witnesses => committal shld not habve been ordered lord digory – fn of committal proceedings – a safeguard? For citizen to ensure that no trial if no prima facie case – a rehearsal? – defence counsel arg held – no one shall extend trial till case made out. Pros has duty of making out case: prosecution’s 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 – 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? 1

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

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A preliminary inquiry is presided over by an examining magistrate under Section 138 CPC. In practice an Assistant Registrar usually presides over a PI. 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 Prosecution’s 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 Held: “…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 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 him.” 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 evidence;3 (b) consider whether the prosecution has established its case beyond a reasonable doubt;4 (c) consider whether the accused has a plausible defence.5 2

Re Osman bin Abdullah [1954] MLJ 237 at 238. Re Osman bin Abdullah [1954] MLJ 237 4 Re Osman bin Abdullah [1954] MLJ 237 5 Indran v PP [1985] 2 MLJ 408 at 409, Re Osman bin Abdullah [1954] MLJ 237. 3

PP v Puspanathan a/l Sinnasamy [1996] 4 MLJ 165 - Facts: The six respondents were tentatively charged at the magistrates’ 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 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: o “… 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 …” o “…no requirement for the prosecution to prove which of the coaccused inflicted the fatal blow” o “…assessment of apparent discrepancies and the weighing of testimony should have been left to the High Court trying the case” o 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 – magistrate analysed evid at end of case and reduced charge – CA held that shld not do this – Magistrate not to weigh evidence as if he is trying a case – that is the function of trial court – order of discharge by Magistrate set aside PP v Tan Kim Kang & 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 he/she is acquitted of the crime committed! purpose of PIs – not a trial o to ensure suff evid before person sent for trial o here PI held and at end, evid not perfect, some critical evid missing, as result magis ordered accused to be discharged because evid lacking o sunbseq, fresh evid came into possession of police o so in light of further evid, they fixed another PI, acused charged incourt again o arg raisead was that cld not do so because accused already discharged earlier o discharge of Accused o can have another PI held o discharge at end of PI not an acquittal o it does not preclude accused fr being charged again at seoncd PI held

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=> PI not a trial.

Brian Peter Mann 58 Cr.App.R.750 - 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 witness's 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 PI – 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 – 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 Widgery’s 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. – committed under section 304 Penal Code – on revision, court said should have been under section 302 – ingredients of offence made out; duty of court not to assess credibility of facts – 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 & 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: – (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; – (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; – (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-accused’s confession

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court held this was sufficient for committal Magistrate does not determine guilt or innocence at a PI

R v King’s Lynn Magistrates’ 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 & 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 substituted. – PI – then accused committed and tried – At HC stage, charge reduced and accused pleaded guilty to reduced charge – Statement of facts – details of ohw accused committed crime – presented to court – Accused accepted statement of facts as it was – But trial udge looked at statmenet and said some portions of it different from what was in PI statement – So rejected some parts of statement – Appeal lodged – Court of Appeal decision  Overruled trial judge – accused’s plea rejected by High Court on basis of PI record – refer to Mary Shim’s case – 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 a/l Sinnasamy & Ors (1966) 4 MLJ 165 duty of Magistrate - re: discrepancies followed Chow Kim’s 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: – (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 doctor’s evidence confirmed that the deceased died because of a head injury which could have been caused by a heavy and hard object.

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(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. (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. (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

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Usually no bail offered to accused When investigations completed, PI date given by registry to parties Counsel should inform Police and Court that acting for accused – because prelim papers will the be served on u, if u don’t inform, then may lose timein getting the information for accused Two counsel assigned by registry to accused if facing capital charge and x have own counsel PI held in High Court IOs prepare draft statements based on investigations carried out Sends to DPP for vetting – for relevant evid etc – to ensure that all relevant evidence is included and irrelevant evidence excluded Information to inspect other exhibits eg murder weapon, drugs etc – make use of oppty to inspect exhibits

How many days before a PI are the prosecution’s witnesses’ conditioned statements to be served on counsel for the accused? At least 7 days before PI, copies of statements and documents served on counsel o 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.

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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 defence? o 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 Magistrate’s 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 Tian Address: c/o Central Police Station 1. 2. 3. 4. (Declaration) Signature (Declaration) Signature of Interpreter Types of Statements eg in murder case – what kind of statements u can expect Statements of: – Police Photographer and the set of pictures they have taken – Scene of Crime Unit – Doctors/Pathologist – Police Officers/Ambulance Staff – Witnesses – Interpreters – 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 – 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 commitment. 138. —(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-à-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.

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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 – 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 guilty. 139. 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 prosecution’s 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 trial. 187. —(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 that: 1. 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 that: 1. 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, “[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 aloud.” To save time, the Defence Counsel can agree to treat the Prosecution’s 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), “[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 statement.” 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 Arumugam.6 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 witness’s 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), “the Magistrate may … make a memorandum on it of the objection made to it by the witness and shall add such remarks as he thinks necessary”. 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. 

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Written statements before examining Magistrate. 141. —(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 — (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;

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[1952] MLJ 80.

(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. (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 correction. 208. —(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.

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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 ‘paper prelim inquiry’ si to save time for witness to be examined in chief – cut down process and enable PI to be dealt with quickly – Further time can be saved if the Defence Counsel agrees to treat the Prosecution witness’s statements as read, instead of requiring these statements to be read out in court for the purposes of the PI. Exhibits tendered Witnesses are present in court at PI stage as well. – presence stil nec since he signs bond to appear in HC to give evid – Can cross-examine them (inform court first) but seldom done so

Scott & Anor v R; Barnes & Ors (1989) 2 AER 305 – 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

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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 Privy Council case from Jamaica At PI stage, statement of eye witness of murder case put in defence did not cross ecxamine this eye witness (not the usual practice to x examine) By time trial camse up in higher court, witness no longer available No other evid except evid of this witness Defence argd that this shd be excluded because no oppty to cross examine the witness Court held this wld not be ecxlued because admissible deposition of eye-witness not challenged at PI at trial eye-witness not available no other evidence court held that evidence of witness cannot be excluded (note: our section 33 Evidence Act; CPC sections 149(4); 367; 368 and 375) so useful to cross examine witness at PI stage to put defence early otherwise there may be conseq as seen above

Evidence Act Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated 33. 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. Explanation..—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

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Sections 367 - 368 – when deposition can be used as trial even if witness not in court – medical witnesses – custody of exhibits – useful to look at this Deposition of medical witness. 367. 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 witnesses. 368. 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.

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Section 375

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when depositions can be used in other circumstances

Record of evidence in absence of accused. 375. —(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 Magistrate’s 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 – 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 – 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 – Comments: Voluntariness of confession can be gone into although this is rarely done – confession put at PI stage – magistrate said that cld not do so – – 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 court’s 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 appellant’s 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 didn’t cross examine her at HC stage

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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

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What happens if a prosecution witness is unable to attend a PI? – For vulnerable witnesses can use videolink for PI as well but you must write in in advance. – 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 court’s presence then at the beginning of the trial. – 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. Witnesses sign undertaking to appear in High Court

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At the end of the prosecution’s case - under Section 153(1) CPC, if the accused has elected to make his defence, the accused and his advocate may “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.”

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Section 153 – submissions can be made by both sides Addresses. 153. —(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 – (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.)

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Section 140 – if sufficient evidence Magistrate to commit Committal for trial on written statements. 140. An examining Magistrate making an inquiry preliminary to committal for trial may, where he is satisfied — (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 Court.7 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. “Having 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 trial.”. -

similar to old form of words under Judge’s Rules

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but amendments to CPC did away with judge’s 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 –

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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 options: a. 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 CPC. b. 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. 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.

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Defence of accused. 145. —(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.

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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, “the examining Magistrate shall — (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 Court.”

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What the accused says can be given in evidence at is trial – Accused can give evidence

R v Horseferry Road Magistrates’ 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. 7

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

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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) – rules provide and make clear that at PI stge, accused entitled to give evid and magistrate must take down this evid

Defence of accused. 145. —(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.

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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

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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 former. – Matter of defence strategy – bear in mind tt magis role only to look for prima facie case – 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 – magistrate will record this election Can defence witnesses be called at PI? – 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

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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.

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If sufficient evidence, Magistrate commits accused for trial; draft charge tendered by DPP for Mag’s consideration. Draft charge tendered by DPP Magistrate frames charge – on his own or based on draft by prosecutor Court informs Accused regarding alibi defence – 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 trial. 147. —(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 magistrate’s 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.

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Section 142 – no sufficient grounds – discharging (note: Mary Shim’s case) – if lesser offence, summary trial in District or Magistrate’s Court When accused person to be discharged. 142. —(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 — (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 Magistrate’s 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)

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Remand the accused pending further investigation - If the magistrate is of the peculiar difficulties or circumstances connected with the case or whenever he Prosecution, under Section 142(5) CPC, he shall remand the accused or admit forthwith transmit the evidence before the court to the Public Prosecutor in order instructions as to him appear requisite. Section 154 – impt, purpose of PI

opinion that there are is so directed by the him to bail and shall that he may give such

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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) CPC. – restrictions on the press from reporting – can only report outcome and not theinterim – restrictions to protect accused person – accused can apply for them to be lifted

Restrictions on reports of preliminary inquiries. 154. —(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 Magistrate’s 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) — (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 $5,000. (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 Magistrates’ and other courts. (8) In this section — "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.

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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 trial. 150. —(1) When the accused is committed for trial, the Magistrate’s 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; (h) the date on which the accused first appeared or was brought before the Magistrate’s 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.

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Record sent to DPP and Accused Supplementary PIs can be held (oral evidence) if, e.g. information left out or new information becomes available. – eg where some witnesses cannot attend – but rarely done – in supp PI, evid of witness has to be led orally and not by way of statements PP decides on charges to go on in High Court – new evid may have come about in course of PI causing PP to decide otherwise on charges to proceed on PP can amend, alter or reduce charges (under CPC) PP can order Accused to be discharged (under CPC)

[1948-49] MLJ Supp 131 at 132.

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– eg wher of view tt do not have strong case Take careful instructions – therefore put in some evid where advantagoues at PI stage

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Does the High Court have to keep all exhibits submitted by the prosecution at a PI pending the trial at a later date? – 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, “[a]ny such thing which from its bulk or otherwise cannot conveniently be forwarded to the Registrar may remain in the custody of the police.” Under Section 150(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”. Exhibits can also consist of photographs of bulky items.

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What is the responsibility of Defence Counsel after PI? – (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. – (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 prosecution’s case for loopholes.  If the accused intends to claim an alibi, under Section 155(1) CPC read with the definition of “prescribed period” 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.

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It is the Defence Counsel’s 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, “[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 accused.” 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.

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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, “[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 interview”, 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 alibi. 155. —(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 —

(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 — "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.

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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 “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, [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 Registrar.” 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 “whose attendance before the High Court is necessary and who have appeared before the Magistrate’s 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.”

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The Defence Counsel has a responsibility to ensure that the defence witnesses execute the required bonds. Under Section 148(2), the Magistrate’s 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 witnesses. 148. —(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistrate’s 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 Magistrate’s Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial.

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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, “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.”  The Defence Counsel thus has a responsibility to ensure that notice is given to the Registrar if it is in the interests of the accused’s case to require that person’s attendance. Attendance at trial of person making report. 149. —(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.

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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) – 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 witnesses. 151. —(1) The Magistrate’s 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 crossexamine them. Opening case for prosecution. 188. —(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 person’s name and address and the substance of the evidence intended to be given.

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Section 152 – accused to be in custody unless entitled to bail Custody of accused pending trial. 152. —(1) The Magistrate’s 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. Section 339 – after PI, PP can terminate proceedings

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discharge of accused

When Public Prosecutor may direct that accused person be discharged. 339. —(1) When a copy of the record of any inquiry before a Magistrate’s 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 Magistrate’s 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.

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Sections 340 - 341 – further evidence can be taken – supplementary PIs When Public Prosecutor may direct Magistrate’s Court to take further evidence. 340. 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 Magistrate’s 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 inquiry. 341. —(1) Upon the order of the Public Prosecutor being so received by the Magistrate’s 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 Magistrate’s Court and, if in prison, shall by an order of the Magistrate’s Court be brought before the Magistrate’s 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 Magistrate’s Court shall, at the termination of the supplemental inquiry, again forthwith transmit a copy of the record to the Public Prosecutor.

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Section 342 – PP can direct trial to be in District or Magistrate Court Public Prosecutor may by fiat designate court of trial when criminal offence disclosed. 342. —(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 Magistrate’s 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.

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Sections 343 - 346 – procedural provisions Procedure when court designated is High Court. 343. —(1) If the court so designated is the High Court, the Public Prosecutor shall with his fiat, send to the

Magistrate’s Court a charge signed as required by section 179 which shall be annexed to and form part of the record. (2) The Magistrate’s Court shall forthwith serve a copy of that charge on the accused person. [342 Procedure when court designated is not High Court. 344. —(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. [343 Witnesses to be notified of change of court. 345. —(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. [344 Public Prosecutor may issue subsequent fiat. 346. 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.

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Section 347 – PP can alter or reduce charge Public Prosecutor may alter or redraw charge. 347. 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 854 – offence in 1973/74 – report made 16 years later because victim very young – argd tt delay of 16 yrs not right and proceedings x be allowed to proceed – upheld – 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. – 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 Magistrates’ Court & Anor (1992) 4 AER 848 – H/L decision or w/r divisional court has power to quash committal proceedings – good account of committal proceedings in England and Northern Ireland – 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 victim's 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 magistrate's 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. – 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 officer's 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 magistrate's 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.