Professional Documents
Culture Documents
KULIAH MINGGU M4
SKGP5104
PENGUATKUASAAN UNDANG-UNDANG DAN SISTEM KEADILAN JENAYAH
PROSES PERBICARAAN
PENGENALAN
Perbicaraan merupakan suatu urusan yang melibatkan tiga pihak iaitu mahkamah dan
dua pihak yang bertelagah bagi mendapatkan suatu keputusan atau suatu tindakan
yang dilakukan bagi mencari suatu penyelesaian dengan menggunakan mahkamah
bagi mendapatkan keputusan.
Urusan penyelesaian pertikaian yang melibatkan mahkamah disebut sebagai kes. Kes
yang dibawa ke mahkamah terbahagi kepada dua iaitu kes jenayah adan kes sivil.
Proses PERBICARAAN di mahkamah bergantung kepada JENIS KES yang dibawa
sama ada ianya kes sivil atau kes jenayah.
i. Perbicaraan sivil;
ii. Perbicaraan Jenayah
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g. Rules of the High Court 1980;(Mansuh)
h. Subordinate Court Rules 1980;(Mansuh)
i. Rules Of Court 2012 [P.U.(A) 205/2012]
Sebelum Bicara
Pemilihan proses (mode)
Terdapat empat cara untuk memulakan tindakan di mahkamah tinggi atau
ORIGINATING PROCESSES berdasarkan kepada jenis pertikaian yang berlaku.
Plaintiff perlu memilih mode yang sesuai mengikut tidakannya sama ada menggunakan:
Writ of summons;
Originating summons;
Originating motion;
Petition;
Penyampaian / service
Penyampaian atau pemberitahuan tindakan terhadap pihak defendan melalui:
Personal service;
Substituted service;
Service out of jurisdiction;
Appearance
Defendan yang mempunyai alasan terhadap tuntutan plaintif atau defendan yang mahu
menjawab tuntutan plaintif dikehendaki menyediakan jawapan balas terhadap tuntutan
plaintif dalam masa yang ditetapkan. ( a defendant who wishes to defend the plaintiff’s
action must enter an appearance within a prescribe period).
Pleadings
Pertukaran dan jawapan balas kedua-dua pihak. Ini berlaku jika defendan memasuki
appearance.
Pleadings melibatkan perkara-perkara berikut:
Plaintiff’s statement of claim
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Defendant’s statement of defence;
Plaintiff’s reply; counter claim;
Subsequent responses – tertakluk kepada kebenaran mahkamah)
Penzahiran /Discovery
Setelah selesai pleadings, penzahiran dokumen kedua-dua pihak bermula. Maksudnya
kedua-dua pihak mula menunjukkan bukti masing-masing berkaitan dengan tuntutan
mereka. Keterangan boleh dibuat secara oral atau dokumentari.
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Kos antara peguam dengan anak guaman.
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CHAPTER XX - TRIALS BEFORE THE HIGH COURT
Section 178. Commencement of trial.
Section 179. Opening case for prosecution.
Section 180. Procedure after conclusion of case for prosecution.
Section 181. Defence.
Section 182. Reply.
Section 182A. Procedure at the conclusion of the trial.
Section 183. Sentence.
Section 183A. Victim’s impact statement.
CHAPTER XXI - TRIALS BEFORE THE HIGH COURT WITH THE AID OF ASSESSORS
Section 184 -199. (Deleted).
TATACARA
SEBELUM PERBICARAAN
Pre-trial
PART V - INFORMATION TO POLICE AND THEIR POWERS TO INVESTIGATE
CHAPTER XIII
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Section 172F. Statements of, or facts stated by, accused not to be used for any other purpose.
Section 172G. Subparagraph 172D(1)(c)(ii) to be applicable to accused who pleads guilty.
ACT 593
CRIMINAL PROCEDURE CODE (REVISED - 1999)
PART VI -PROCEEDINGS IN PROSECUTIONS
CHAPTER XVIIIA - PRE-TRIAL PROCESSES
(2) A pre-trial conference shall commence within thirty days from the date the accused was charged in
court or any reasonable time before the commencement of the case management.
(3) A pre-trial conference may be conducted by any means and at any venue as may be agreed upon by
the advocate representing the accused and the prosecution.
(4) During the pre-trial conference, an advocate representing an accused may discuss with the
prosecution the following matters relating to the case:
(e) discussing the nature of the case for the prosecution and defence, including any alibi defence that
the accused may rely on;
(f) discussing any plea bargaining, and reaching any possible agreement thereto; and
(g) any other matters as may be agreed upon by the advocate representing the accused and the
prosecution that may lead to the expeditious disposal of the case.
(5) All matters agreed upon in the pre-trial conference by the advocate and the prosecution shall be
reduced into writing and signed by the accused, the advocate and the prosecution.
[(3),(4),and (5) Am.Act A1422 of the year 2012;]
(2) At the case management, the Magistrate, Sessions Court Judge or Judge shall—
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(i) take into consideration all matters that have been considered and agreed to by the accused and
his advocate and the prosecution during the pre-trial conference; and where a plea
bargaining has been agreed between the accused and his advocate and the prosecution during
the pre-trial conference, the Magistrate or the Sessions Court Judge or the Judge
trying the case shall decide on the voluntariness of the accused in the plea bargaining according
to the provisions of section 172C;
(ii) where no pre-trial conference has been held on the ground that the accused is unrepresented,
discuss with the accused and the prosecution any matter which would have been
considered under section 172A;
(iii) assist an accused who is unrepresented to appoint an advocate to represent the accused;
(v) subject to subsection (3), fix a date for the commencement of the trial;
(vi) subject to the consent of the accused and his advocate, and the prosecution, admit any exhibits;
and
(vii) give directions on any other matter as will promote a fair and expeditious trial.
(3) A subsequent case management, if necessary, may be held not less than two weeks before the
commencement of the trial.
(4) The trial shall commence not later than ninety days from the date of the accused being charged.
(5) Notwithstanding subsections (1) and (4), a failure for the case management or the trial to commence
according to the time period specified in the subsections shall not—
(a) render the charge or prosecution against the accused as defective or invalid; or
(6) Notwithstanding the provisions of the Evidence Act 1950, all matters that have been reduced into
writing and duly signed by the accused, his advocate and the prosecution under subsection 172A(5) shall
be admissible in evidence at the trial of the accused;
(2) The application under subsection (1) shall be in Form 28A of the Second Schedule
and shall contain—
(a) a brief description of the offence that the accused is charged with;
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(b) a declaration by the accused stating that the application is voluntarily made by
him after understanding the nature and extent of the punishment provided under the law
for the offence
that the accused is charged with; and
(c) information as to whether the plea bargaining applied for is in respect of the
sentence or the charge for the offence that the accused is charged with.
(3) Upon receiving an application made under subsection (1), the Court shall issue a
notice in writing to the Public Prosecutor and to the accused to appear before the Court
on a date fixed for the hearing of the application.
(4) When the Public Prosecutor and the accused appear on the date fixed for the
hearing of the application under subsection (3), the Court shall examine the accused in
camera—
(a) where the accused is unrepresented, in the absence of the Public Prosecutor; or
(5) Upon the Court being satisfied that the accused has made the application
voluntarily, the Public Prosecutor and the accused shall proceed to mutually agree upon
a satisfactory disposition of the case.
(6) If the Court is of the opinion that the application is made involuntarily by the
accused, the Court shall dismiss the application and the case shall proceed before
another Court in accordance with the provisions of the Code.
(7) Where a satisfactory disposition of the case has been agreed upon by the accused
and the Public Prosecutor, the satisfactory disposition shall be put into writing and
signed by the accused, his advocate if the accused is represented, and the Public
Prosecutor, and the Court shall give effect to the satisfactory disposition as agreed upon
by the accused and the Public Prosecutor.
(8) In the event that no satisfactory disposition has been agreed upon by the accused
and the Public Prosecutor under this section, the Court shall record such observation
and the case shall proceed before another Court in accordance with the provisions of
the Code.
(9) In working out a satisfactory disposition of the case under subsection (5), it is the
duty of the Court to ensure that the plea bargaining process is completed voluntarily by
the parties participating in the plea bargaining process.
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[Ins.Act
A1378 of the year 2010]
Section 177A. Transmission of case to, and trial by, the High Court.
(1) A prosecution in respect of an offence which is to be tried by the High Court in accordance with
Chapter XX, shall not be instituted except by or with the consent of the Public Prosecutor:
Provided that a person may be arrested, or a warrant for his arrest may be issued and executed, and any
such person may be remanded in custody notwithstanding that the consent of the Public Prosecutor to
the institution of a prosecution for the offence has not been obtained, but the case shall not be further
prosecuted until the consent has been obtained.
(2) In any prosecution pursuant to subsection (1), the accused shall be produced before the Magistrate's
Court which shall, after the charge has been explained to him, transmit the case to the High Court and
cause the accused to appear or be brought before that Court as soon as may be practicable:
Provided that when the accused is brought before the Magistrate's Court before the Public Prosecutor
has consented to the prosecution, the charge shall be explained to him but he shall not be called upon to
plead thereto.
(3) When the accused appears or is brought before the High Court in accordance with subsection (2), the
High Court shall fix a date for his trial which shall be held in accordance with the procedure under Chapter
XX.
Perbicaraan sivil
Mahkamah Rendah Mahkamah Tinggi
Prosedur perbicaraan diperuntukkan dalam a. Rules of the Federal Court
Kaedah Mahkamah Rendah 1980 1995;
a. Civil law Act 1956 (Avt 67) b. Rules of the Court of Appeal
b. Subordinate Courts Rules 1955 1994;
(Act 55)
c. Rules of the High Court
c. Akta Mahkamah Rendah 1948
(Disemak - 1972) [AKTA 92]
1980; (mansuh)
Suatu Akta yang berhubungan dengan d. Subordinate Court Rules
mahkamah bawahan Semenanjung Malaysia. 1980 (mansuh)
e. Rules Of Court 2012 [P.U.
(A) 205/2012]
d. Courts of Judicature Act
1964 (91); Suatu Akta yang
berhubungan dengan Mahkamah
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Kehakiman Atasan.
PROSES PERBICARAAN
CHAPTER XIX - SUMMARY TRIALS BY MAGISTRATES
CHAPTER XX - TRIALS BEFORE THE HIGH COURT
CHAPTER XXI - TRIALS BEFORE THE HIGH COURT WITH THE AID OF ASSESSORS
KEPUTUSAN
CHAPTER XXVI - JUDGMENT
RAYUAN
The appeal system
PART VII - APPEAL AND REVISION
CHAPTER XXX - APPEALS TO THE HIGH COURT
SEMAKAN
CHAPTER XXXI – REVISION
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PART VIII - SPECIAL PROCEEDINGS
CHAPTER XXXII - INQUIRIES OF DEATH
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