NOV 21 — It is said that the objective of any criminal proceedings is to ultimately punish the accused upon his conviction of any offence.

Therefore, if the accused dies before the trial is conducted to its completion, the proceedings of the case need to be abated.

Continuance of the criminal proceedings after the death of the accused is considered to be infructuous (pointless) and meaningless.

In England, under Section 37B of the Police and Criminal Evidence Act 1984 the Director of Public Prosecutions (DPP) is empowered to decide whether there is sufficient evidence to charge a person with an offence.

It is clearly contemplated that any decision to charge must be against a living person. A charge against a person who has died cannot therefore be pursued.

In Turk v R [2017] EWCA Crim 391 the English Court of Appeal confirmed that criminal prosecutions should not be pursued against those who have died: when an accused dies during criminal proceedings, the court should take no further action in the proceedings and declare the indictment or charge of no further effect.

The Court duly observed that critical to the criminal justice process is that "trials are neither initiated nor pursued against those who have died”.

There is no merit in the argument that a criminal proceeding against an accused who has died should continue to clear the accused’s name. Sentimental interest in clearing the accused’s name has no merit in law. (See Yap Eu Leong Sunny v Public Prosecutor [1994] 3 MLJ 434)

In any case, in Malaysia, under Article 145(3) of the Federal Constitution, the Attorney General (AG) shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.

Express provisions for discontinuance or withdrawal of criminal proceedings are also provided for in the Criminal Procedure Code (CPC). Section 254 CPC allows Public Prosecutor (PP) aka AG to decline to prosecute further at any stage of a trial.

The provision operates at any stage of a trial, and it is invoked by the PP. Implicit in the provision is the power of the AG under Article 145(3) Federal Constitution to discontinue any criminal prosecution.

It is for the AG to make the call to discontinue or withdraw a criminal proceeding against an accused — more so when he or she has died. When the AG makes the call, it is for the court to order a discharge — whether not amounting to acquittal (DNAA) or amounting to acquittal (DAA).

So we can agree that the continuance of the criminal proceedings after the death of the accused is pointless and that trials should not be pursued against those who have died.

As Judicial Commissioner Abdul Malik Ishak (as he then was) in Yap Eu Leong’s case said, sentiments have no merit in law.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.