Justice Radzi Abdul Hamid said accused persons spend much time and incur substantial expenses in defending themselves when prosecuted, but cannot recover any legal costs if acquitted.
“Thus, the prosecution owes its duty not only to itself and the court but also to the accused,” said Radzi who sits in the Melaka High Court.
Radzi stressed the importance of the prosecution keeping a tight rein of its cases by properly managing and conducting them in a way that allows them to be completed within the dates allocated by the court.
He said this was particularly important since the public prosecutor has more cases to prosecute in current times.
“Failure to do so will result not only in the public prosecutor clogging his diary but also the courts,” he said, adding that deputy public prosecutors, as officers of the court, must ensure that all witnesses are present when required.
The judge’s remarks were contained in a 22-page judgment issued when allowing a revision application filed by civil servant Yussof Daniel Khairul Hisham.
The accused had been charged three times for the same drug offence but was only issued with a discharge not amounting to an acquittal (DNAA) by the presiding magistrate on each occasion.
He filed a revision application in the High Court seeking an acquittal, which Radzi allowed.
Citing a Federal Court ruling, Radzi noted that the court has the discretion to acquit an accused but said it must be done judiciously, taking into consideration the circumstances of each case.
He said the prosecution had three opportunities between March and August this year to ensure the presence of a raiding officer to testify in the case.
Radzi noted that on the last occasion, the prosecution could not explain to the trial court why the witness was in Sabah instead of attending court to testify.
“Although the prosecution maintains its intention to continue with the case, it would be a grave injustice on the applicant (Yussof) to have the charge looming over his head without any foreseeable certainty on when exactly the prosecution can conclude its case with the attendance of (the witness),” he said.
Meanwhile, the judge said, the applicant was left with the stigma of being perceived to be guilty of the offence, especially since he was charged over and over again with no prospect of being allowed to present his defence.
“The applicant is a public servant and it is not difficult to estimate the level of anxiety in facing the uncertainties of the trial,” he added.
Radzi said the prosecution’s use of Section 254 of the Criminal Procedure Code to charge the applicant repeatedly in the circumstances of the case was tantamount to an abuse of court process.
“The prosecution should not stand in the way of the accused being given a discharge and acquittal on the grounds of fair play and justice. The prosecution must bear the consequences of its failures,” he said.