YESTERDAY,  Deputy Prime Minister Ahmad Zahid Hamidi’s bid for a full acquittal in his Yayasan Akalbudi trial had been declined by the High Court. However, the court allowed a discharge not amounting to an acquittal (DNAA) meaning he may still face trial for the same charges in the future if the prosecution decides to reinstate his case.

There have been a lot of calls for parliament to pass a law separating the office of the Attorney General (AG) and that of the public prosecutor. Thus, there is also a need for parliament to incorporate guidelines on how prosecutors exercise their prosecutorial discretion.

In the United Kingdom, the Code for Crown Prosecutors sets out the overarching principles to be followed by prosecutors when they make case decisions. The purpose of the prosecution guidance is to assist prosecutors in applying the code when exercising prosecutorial discretion in their decision-making to ensure that decisions are fair, transparent, and consistent.

The code is a public document issued by the Director of Public Prosecutor, that sets out general principles prosecutors should follow when they make decisions on cases.

Hence, prosecutors only start or continue a prosecution when the case has passed both stages of the full code test. The full code test has two stages which are the (i) evidential stage, followed by (ii) the public interest stage.  However, the full code test is applied when (a) all outstanding reasonable lines of inquiry have been pursued or (b) prior to the investigation being complete, if the prosecutor is satisfied that any further evidence is unlikely to affect the application of the full code test, whether in favour or against a prosecution.

(a) The Evidence Stage
When deciding whether there is sufficient evidence to prosecute, the prosecutor should make sure the evidence is admissible, reliable, and credible. They must also consider whether there is any material that may affect the assessment of the sufficiency of evidence, including examined and unexamined material in the possession of the police, and material that may obtained through further reasonable lines of inquiry.

(b) The Public Interest Stage
Where there is sufficient evidence, the prosecutor must consider whether prosecution is required in the interest of the public. The weightage attached to each case is different and the factors to be identified will also be varied. Some of the questions and factors that the prosecutor should consider before going ahead are (a) how serious is the offence committed? (b) what level of culpability of the suspect? (c) what is the impact on the community, (d) is prosecution a proportionate response, and others.

In certain cases, where the Full Code Test is not met, the Threshold Test may be applied to charge a suspect. There must be seriousness or circumstances of the case that must justify the making of an immediate charging decision, and there must be substantial grounds to object to bail.

That being so, the threshold test requires all five conditions to be met before it can be applied. If any of the conditions are not met, the threshold test cannot be applied and the suspect cannot be charged. The conditions are, (1) there are reasonable grounds to suspect that the person to be charged has committed the offence, (2) evidence can be obtained to provide a realistic prospect of conviction, (3) the seriousness or the circumstances of the case justifies an immediate charging decision, (4) substantial grounds to object to bail, (5) is it in the public interest to charge the suspect.

Notwithstanding, the decision to charge under the Threshold Test must be kept under review. The prosecutor plays a proactive role in securing from the police the identified outstanding evidence or other materials. The evidence must be regularly assessed to ensure that the charge is still appropriate and that the continued objection to bail is justified.  Following that, the Full Code Test must be applied as soon as the anticipated evidence or material is received in Crown court cases.

Similarly, in the Malaysian context, the general principle in assessing the credibility of evidence and public interest will give people confidence in our legal system. Providing a platform where all decisions are taken with proper assessment before charging the accused would ensure his right is not prejudiced.

So doesn’t the government think it is high time for them to introduce such guidelines to ensure a proper assessment is made before the AG initiates charges against an individual? –  September 5, 2023.

* Matilda George reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.