The position of the unrepresented accused in the subordinate courts in Malaysia / Gurdial Singh Nijar
This is a formulative or exploratory study which examines the relative position of the represented and the unrepresented accused persons before the subordinate courts in Malaysia. The aim of this study is primarily to ascertain whether the unrepresented accused is disadvantaged when compared wi...
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| Format: | Thesis |
| Published: |
1978
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| Online Access: | http://studentsrepo.um.edu.my/9470/ http://studentsrepo.um.edu.my/9470/4/THE_POSITION_OF_THE_UNREPRESENTED.pdf |
| Summary: | This is a formulative or exploratory study
which examines the relative position of the represented
and the unrepresented accused persons before the
subordinate courts in Malaysia. The aim of this study
is primarily to ascertain whether the unrepresented
accused is disadvantaged when compared with his
represented counterpart and, if so, to what extent.
The premise on which this study proceeds is that if
reasons extraneous to the guilt - determining process
affect the proper outcome of a case, then a proper
functioning of the rule of law in the criminal area is
in question. The State is then obliged to correct this,
and at the very least minimise the impact of these
factors, if the adversary trial system is to be preserved.
Many countries, no less Malaysia, accept that an
unrepresented accused is disadvantaged and have instituted
schemes to provide counsel to an indigent accused.
Financial limitations, however, have resulted in schemes
of a limited nature. In Malaysia Legal aid in the
criminal area is confined to the provision of counsel
to advance mitigation pleas on behalf of an accused
person after he has been found guilty. This study then
also traces the impact of counsel at every stage of the trial process viz., plea, trial and sentence, to
ascertain whether scarce resources are being rationally
applied.
The choice of the subordinate courts as the
focus of this study is justified on three grounds,
namely, first, the bulk of the criminal cases are heard
by these courts, and especially the Magistrates Courts,
secondly, the subordinate court cases, in particular
those from the Magistrates Courts affect a far greater
number of people and thirdly, the greatest number of
convictions are recorded in the subordinate courts, and
in particular the Magistrates Courts. Further, although
the High Court hears the most serious cases, the
subordinate courts, nonetheless, also try cases with
potentially serious consequences.
Datq in respect of four Magistrates Courts
and three Sessions Courts over a two year period
(1972 - 1973) were collected and analysed primarily
from court records, supplemented by interviews of
accused persons and observations in the courts. The
main study was in respect of all criminal cases registered
between January to July 1973 at the Magistrate's Court,
Kuala Lumpur (Total sample: 309). To obtain a
representative result the courts chosen were located in urban, semi-urban and semi-rural areas. The study
examines, first, the level of representation at each
stage of the trial process namely, plea, trial and
sentence, and relates the representation both to the
seriousness of the offence (in terms of the penalty
imposable), and the nature of the charge. An assessment
is also made as to whether the location of the court
affects representation level. Some tenative reasons
for the high level of unrepresentation recorded are
proferred. Legal representation in relation to the
plea recorded is also examined. Data are also analysed
to ascertain whether the retention of counsel results
in a change of pleas, especially from guilty to not
guilty. The relationship between representation and
findings in cases where the accused persons plead not
guilty and proceed to trial of their case is also traced.
The study also examines the impact of representation on
final stage of the trial process, namely the imposition
of the sentence. Some of the variables which affect
outcome are identified and are controlled to make more
reliable inferences possible. A special evaluation is
made of the role of counsel for mitigation purposes.
The actual position of the accused person in court is
also examined. The lay-out of the court, court procedures
and mannerisms are evaluated to ascertain whether they
create problems for the unrepresented accused in
I articulating his case. Finally the study describes
the various legal aid systems which have evolved to
provide counsel to an indigent accused. The relative
merits of these models are traced and the main features
of a model delivery system are attempted. A brief account
of novel funding sources for this model delivery system
is also presented.
Where appropriate results of similar studies
carried out elsewhere, for example, Australia, U.S.A.,
and England are set out for comparative purposes.
Recourse is also made to reports of committees in
these countries looking into the question of the
provision of legal services to indigent accused persons. |
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