PUBLIC PROSECUTOR MOHAMMAD FADIL HANAPI BIN MD SAHIDEK

PUBLIC PROSECUTOR MOHAMMAD FADIL HANAPI BIN MD SAHIDEK

The High Court exercised its revisionary powers to set aside the succeeding Sessions Court's order for a de novo trial because the successor judge failed to provide reasons for reopening the prior prima facie finding; a change of judge does not automatically require a de novo trial and the successor must exercise s.261 discretion judiciously; recorded video/audio proceedings reduce need to recall witnesses. The previous Sessions Court ruling that the prosecution made out a prima facie case is restored and the defence may call witnesses who must be evaluated by the presiding Sessions Court Judge at the end of the defence case.

Citation
JB-43-3-08/2021 (Mahkamah Tinggi)
Parties
Applicant: Public Prosecutor; Respondent: Mohammad Fadil Hanapi bin Md Sahidek
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 October 2021
Case Number
JB-43-3-08/2021 (Mahkamah Tinggi)
Procedural Posture
Criminal Revision / High Court Application for Revision of Sessions Court Order
Outcome
Revision allowed in part; Sessions Court order for de novo trial set aside and earlier prima facie finding restored
Legal Topics
Revisionary Powers, Change of Judge, Prima Facie Finding, De Novo Trial, Use of Video Recording in Evidence, Demeanour Assessment
Source Language
Malay/English
Criminal Law Criminal Procedure Evidence Law Judicial Review Revisionary Powers Change of Judge Prima Facie Finding De Novo Trial +2 more

Case Brief

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Parties

Public Prosecutor

Applicant

Mohammad Fadil Hanapi bin Md Sahidek

Respondent

Procedural Posture

Criminal Revision / High Court Application for Revision of Sessions Court Order

Legal Issues

  1. 1 Whether a Sessions Court may alter its decision after finding a prima facie case by the prosecution
  2. 2 Whether a change of judge requires that the trial be heard de novo
  3. 3 Whether the interests of justice require a trial de novo in the circumstances of this case

Ratio Decidendi

The High Court exercised its revisionary powers to set aside the succeeding Sessions Court's order for a de novo trial because the successor judge failed to provide reasons for reopening the prior prima facie finding; a change of judge does not automatically require a de novo trial and the successor must exercise s.261 discretion judiciously; recorded video/audio proceedings reduce need to recall witnesses. The previous Sessions Court ruling that the prosecution made out a prima facie case is restored and the defence may call witnesses who must be evaluated by the presiding Sessions Court Judge at the end of the defence case.

Court Disposition

Revision allowed in part; Sessions Court order for de novo trial set aside and earlier prima facie finding restored

Orders

  • Order of the Sessions Court Judge for trial de novo is set aside.
  • Ruling by the previous Sessions Court Judge that the prosecution has made out a prima facie case against the respondent is restored.