DECEMBER 13 — An appeal in a criminal case is brought by filing a notice of appeal within 14 days from the date of the judgment. The appellant then acquires the statutory right to ask for the notes of evidence of the trial judge.
The notes of evidence must include the parties’ contentions or submissions and the facts upon which these are based.
It is said that one of the essential purposes, if not a requirement of an appeal, is that the parties and counsels alike should be placed in a position as to be able to present their case as fully and effectively as possible and this object would naturally be defeated and cut down and hence justice denied if the trial judge “should seek to dismember part or parts of the usual record against the wishes of the party or parties concerned”. (See the judgment of Justice Abdul Razak in PP v Tan Tho Kim [1978]).
When a notice of appeal has been filed, the court appealed from must make a signed copy of the grounds of decision in the case and cause it to be served upon the appellant or his solicitors.
The grounds of decision should be written as promptly as possible. The sooner, after hearing the witnesses the grounds of decision are written, the clearer in the mind of the trial judge who writes them will be all the details of the evidence, the demeanour of the witnesses and the general atmosphere of the case.
The delay in supplying the grounds of judgment may be considered prejudicial to the accused and may be a ground for quashing a conviction.
In writing his or her grounds of decision, the trial judge must state, except in the simplest of cases, reasons why he believed or disbelieved the evidence given on behalf of a prosecution or of an accused.
It is not permissible for a trial judge, having signed and delivered its grounds of decision, to supplement the grounds of decision or to amplify them in any way.
If the appellant has asked for a copy of the notes of the evidence, the trial judge must notify the appellant or his solicitors that a copy of the notes of evidence can be had free of charge.
Within 14 days after the copy of the grounds of decision has been served, or within 14 days from the date when the appellant or his solicitors is notified that a copy of the notes of evidence is ready, whichever period is the longer, the appellant must file a petition of appeal.
Every petition of appeal must state shortly the substance of the judgment appealed against and contain definite particulars of the points of law or of fact in regard to which the court appealed from is alleged to have erred.
The law is trite. More than a century ago, in the Straits Settlement case of Sherifa Shaika v Haughton (1889), it was already held that it was not sufficient in a petition of appeal to state that the appeal was for “error in point of law or wrong determination of point of law”; the specific ground of appeal should be set forth.
Forty years later in the case of The King v Ong Chwee Hoh and Ng Geok Seng [1933], Chief Justice Murison pointed out that if it was alleged in a petition of appeal that the conviction was against the weight of evidence, the petition of appeal should specify in what way the conviction was against the weight of evidence.
There are two fundamental principles to the hearing of an appeal.
The first is that on an appeal from the decision of the trial judge sitting alone, the presumption is that the decision appealed against is right. (See the Federal Court decision in Periasamy v Public Prosecutor [1966])
It is the correctness of a judgment, order or decision which is challenged on appeal. The burden of showing that the trial judge was wrong lies on the appellant, and if the appellate court is not satisfied that the judge was wrong, the appeal will be dismissed.
The second is the hearing of an appeal is by way of rehearing. These words do not mean that the appellate literally "rehears" the case, and that the parties have to start afresh as they did in the court below or that the witnesses are heard afresh, but rather that the court will rehear the case on the documents, including the judge’s notes of evidence.
The appellate court will consider the materials which were before the trial judge, and the additional materials, if any, before the appellate court itself.
The appellate court will then make up its own mind, carefully weighing and considering the judgment appealed against, and reversing it if, on full consideration, it comes to the conclusion that the judgment was plainly wrong.
Where the only question is as to the inferences to be drawn from evidence admitted to be truthful, the appellate court is in as good a position to decide as the trial judge.
Where, however, the decision depends upon a conflict of oral evidence and the evaluation of the evidence of witnesses, the appellate court should generally defer to the opinion of the trial judge.
The appellate court may be satisfied that the trial judge had not taken proper advantage of his having seen and heard the witnesses. The matter will then become at large for the appellate court.
Generally, the appellate court will be very slow to interfere with the trial judge’s exercise of discretion. It may do so, however, where the exercise of discretion had been made on a misunderstanding of the law or of the evidence or where, although no erroneous assumption of law or fact could be identified, the judge’s discretion was so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it.
In such a case the appellate court is entitled to exercise its own discretion.
The two principles should guide an appellant as well to deciding whether to proceed with the appeal or withdraw it. An appeal may be withdrawn any time before the hearing of the appeal.
The first principle informs the appellant that it is the correctness of the trial judge’s decision which is challenged on appeal. The burden is on the appellant to show that the trial judge was wrong. If the appellate court is not satisfied that the judge was wrong, the appeal will be dismissed.
The second principle informs the appellant that an appellate court will consider the materials which were before the trial judge and make up its own mind, carefully weighing and considering the judgment appealed against, and reversing it if, on full consideration, it comes to the conclusion that the judgment was plainly wrong.
It is the duty of the appellate court to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly. (See the Federal Court decision in Periasamy v Public Prosecutor [1966])
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
