Thursday, 24 September 2009



Case Details:
Date 11 APRIL 1960
Citation [1960] 1 MLJ 179

Criminal Law and Procedure — View of locus in quo — Trial partly held at scene of accident — Whether “open space” constitutes Court — Criminal Procedure Code (Cap 6), ss 2, 7 and 419.

Evidence — Part recorded at scene of accident — Whether admissible — Function of Magistrate.

Fakta kes: Perayu telah dituduh dan dapati bersalah kerana memandu kenderaan secara merbahaya dan menyebabkan kematian di bawah seksen 304A Kanun Keseksaan. Sebahagian dari keterangan dirakam di tempat kemalangan. Perayu mendakwa keterangan di tempat kejadian tidak boleh diterima yang diantara lain sebabnya tempat kejadian bukanlah tempat awam.

Diputuskan: 1) Seorang Magistrate adalah bertindak sebagai hakim dan juri.

2) Oleh kerana tempat kejadian adalah di bawah bidang kuasa Magistrate maka ianya tidak boleh di pertikaikan di bawah seksen 419 KAJ iaitu pembicaraan di tempat yang salah.

3) Tidak ada di bawah KAJ menghadkan kuasa mahkamah mambuat pertanyaan di luar mahkamah.

RHV Rintoul for the appellant.
Wan Suleiman bin Pawan Teh (DPP) for the respondent.

Cur Adv Vult

Ismail Khan J:

The appellant, the driver of a motor vehicle, was charged with and convicted of an offence of causing death by a rash act punishable under s 304A of the Penal Code. He was sentenced to pay a fine of $700 and this appeal is against such conviction and sentence.

The charge does not set out the particulars of the rash act complained of and as such is defective. It is, however, clear from the evidence that the accident occurred as a result of the appellant suddenly swerving to the right to enter a side road.

The driver of the scooter was coming from the opposite direction along the main road on its correct side and there is no suggestion that it was travelling at an immoderate speed. From the evidence of Singaram PW3, which was believed, it is clear that the distance between the scooter and the car when he first noticed them was over 30 yards, and the learned Magistrate was justified in coming to the conclusion that the appellant undertook a risk by taking a sudden swerve to the right in the path of the scooter. I am satisfied on the evidence that he did not keep a proper lookout, and though I am not prepared to hold on the evidence that there was on his part such a rash act as would attract the operation of s 304A, he was certainly guilty of negligent or inconsiderate driving.

Mr Rintoul for the appellant did not object to the charge as framed but contended himself with attacking the finding of the learned Magistrate. The charge though irregular in my opinion did not mislead the defence and cannot be said to have caused a substantial miscarriage of justice.

It was strenuously contended by Mr Rintoul that at the end of the case for the prosecution the learned Magistrate found only two ingredients of the offence proved, that the driver of the motor scooter had died and that death was caused by the appellant.

For myself I do not read the judgment in that light. The learned Magistrate proceeded to discuss the evidence of PW3 and came to the conclusion that PW3’s evidence was trustworthy and established negligence of the appellant.

The only point of substance is Mr Rintoul’s contention that the evidence recorded at the scene of the accident was wholly inadmissible against the appellant for the reasons that:

(1) the learned Magistrate was merely entitled to view the scene in the presence of the parties and should
have recorded oral evidence in open court;
(2) he was influenced by two factors, that Paul Street was a busy street with heavy traffic; and that Paul Street is straight and broad and that there was at the time of the accident no obstruction to the view.

(I may remark that it was neither the case for the prosecution nor the defence that at the time of the accidentthere was heavy traffic on the road and that the appellant’s view was obstructed in any way by any on-coming traffic or pedestrians);

(3) the learned Magistrate should not have had measurements taken at the scene even though withoutdissent from counsel for the appellant and in the presence of the parties, or made any observations at thescene of the accident. It was objected that he thus converted himself into a witness.

It is not denied that the learned Magistrate was well within his right and it would indeed be his duty to visit the scene of the accident with a view to a proper appreciation of the evidence; that Paul Street itself is straight and broad is a physical fact which is Incapable of being controverted.
I agree that the learned Magistrate had no right to presume that at the time of the accident there was heavy traffic.

That would solely depend upon oral evidence as to the state of affairs at the time of the accident. But the conviction of the appellant on the charge did not in the remotest degree depend on that factor. The learned Magistrate came to the conclusion that the appellant’s explanation was wholly unacceptable, that the accident was caused as a result of the appellant suddenly without any warning turning into Jalan Abdul Malek from Paul Street when he knocked into the driver of the motor scooter and the impact took place on the appellant’s off-side. That in my view is clear evidence of inconsiderate driving.

A Magistrate sitting alone exercises the function of both Judge and Jury. The point which Mr Rintoul argued is that evidence taken at the spot, in spite of the fact that the appellant was given all facilities for cross-examination, was wholly inadmissible because the place itself he contended is not a public place. The place where part of the trial took place was within the local area over which the Magistrate had jurisdiction.

As such, it could not be contended that the trial was held in a wrong local area within the meaning of s 419 of the Criminal Procedure Code and the trial is not vitiated because witnesses in his presence gave demonstrations and answered questions on oath subject to cross-examination. The Magistrate himself having attended the view and seen the demonstrations of witness, it cannot be said that he overlooked anything material and his judgment cannot be challenged as coming within the exception of Tameshwar v The Queen [1957] 2 All ER 683; 41 Cr App R 161 PC.

It is contended that the evidence was inadmissible for the simple reason that part of the trial took place elsewhere than in open court and Mr Rintoul relied on Scott v Scott [1913] AC 417. The trial was partly held at the junction of Paul Street and Jalan Abdul Malek; the learned Magistrate neither declared that the public be excluded nor did he specifically invite members of the public to attend the trial. It was conducted in open thoroughfare to which the public had access. There was no exclusion of the public by the express direction of the Magistrate preventing attendance by the general public as in Scott v Scott quoted by Mr Rintoul. Whether a trial in those circumstances could be held to be illegal depends in my opinion entirely on the interpretation of s 7 of the Criminal Procedure Code which enacts:

“the place in which any criminal court is held for the purpose of trying an offence shall be deemed an open court to which the public generally have access.”

I observe here that the trial was not held in camera nor that the interpretation of the expression “the place in which any criminal court is held” is necessarily confined to the very building that has been set up by the State for the conduct of a trial. Unless any obstacle is placed in the way of the general public to access for the purpose of attending a trial (and there is no evidence to that effect) the place where the trial is held is declared to be an open court to which the public may generally have access within the meaning of s 7.

That is what the legislature has provided and it has stressed the fact that the place itself rather than the building is to be regarded as an open court. There is nothing in the Code which limits the right of the Court to conduct any inquiry or try any offence outside the Court building so long as the public are not specifically excluded. The function of the Court is limited to interpretation. The words “place” and “deemed to be” are destructive of Mr Rintoul’s argument that the trial must necessarily take place in the court house with open doors. The deeming section is, in the language of Thomson J (as he then was) in Tong Peng Hong v Public Prosecutor [1955] MLJ 232 “crystal clear and compelling”.

“Place” is defined in s 2 of the Criminal Procedure Code. It says “includes” which is a word of extension, not of restrictive definition, as was held in Dilworth v Commissioner of Stamps [1899] AC 105. There is nothing in the context which gives it a colour restricting it to the very court house with open doors in which such proceedings are normally held. I confess I have come to the conclusion with great hesitation and with some reluctance, because I feel that where a proceeding affecting the freedom of the individual is concerned, is conducted albeit in an open space to which the public if so minded could have access, it is not the court house which is generally known to the public as the place of trial.

I am not prepared to agree with the learned Deputy that there was sufficient evidence of rash act within the meaning of s 304A of the Penal Code, but I am satisfied that the appellant is guilty of inconsiderate driving. I accordingly convict him on the lesser charge under s 5 of the BMA. Motor Vehicles (Driving Offences) Proclamation No 4246 and impose a fine of $100, in default two months’ imprisonment. The difference between fine paid and this fine of $100 be refunded. I feel this is a matter of considerable public importance and if any application is made to me by counsel for the appellant, I shall be prepared to refer the question of law for the determination of the Court of Appeal.

Sentence varied
Solicitors: Shearn Delamore & Co

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