The right of an accused to defence under the criminal justice system in Malaysia

Mohd Safri  Mohammed Na’aim; Ramalinggam  Rajamanickam; Rohaida  Nordin

doi:10.24200/jonus.vol7iss1pp43-58

Mohd Safri Mohammed Na’aim Centre of Foundation Studies, Universiti Teknologi MARA, 43800 Dengkil, Selangor, Malaysia. https://orcid.org/0000-0002-9137-1135
Ramalinggam Rajamanickam Faculty of Law, Universiti Kebangsaan Malaysia, 43600 Bangi, Selangor, Malaysia. https://orcid.org/0000-0003-4017-8826
Rohaida Nordin Faculty of Law, Universiti Kebangsaan Malaysia, 43600 Bangi, Selangor, Malaysia. https://orcid.org/0000-0002-4752-5053

DOI: https://doi.org/10.24200/jonus.vol7iss1pp43-58

Abstract

Background and Purpose: Under the criminal justice system, the burden lies on the prosecution to prove the guilt of the accused. It is worth noting that a criminal trial is not one-sided; it also allows the accused to raise his defence to prove his innocence. The research aims to analyse the right of the accused to raise a defence and when the defence should be raised in a criminal trial process in Malaysia.

Methodology: This research adopts a legal research approach involving a detailed analysis of the relevant legal provisions, case law and scholarly writing related to this area.

Findings: The research found that the Criminal Procedure Code (CPC) (Act 593) is silent as to when the defence should be raised. That being said, with reference to the Supreme Court’s case of Lin Lian Chen v. Public Prosecutor [1992] 1 CLJ 285 (Rep), the accused should introduce his defence at the earliest stage as possible. Failing this may give rise to the presumption that the defence raised was a mere invention. Although the principle has been regarded as a law in raising defence, there are still cases where the accused did not present the defence at an earlier stage.

Contributions: This research contributes to the corpus of legal knowledge of criminal defence, particularly on raising criminal defence in a criminal trial with the aim of providing better protection for the accused in the criminal justice system.

Keywords: Criminal justice system, criminally liable, defence, right of the accused, & criminal trial.

Author Biographies

Mohd Safri Mohammed Na’aim, Centre of Foundation Studies, Universiti Teknologi MARA, 43800 Dengkil, Selangor, Malaysia.

Background and Purpose: Under the criminal justice system, the burden lies on the prosecution to prove the guilt of the accused. It is worth noting that a criminal trial is not one-sided; it also allows the accused to raise his defence to prove his innocence. The research aims to analyse the right of the accused to raise a defence and when the defence should be raised in a criminal trial process in Malaysia.

Methodology: This research adopts a legal research approach involving a detailed analysis of the relevant legal provisions, case law and scholarly writing related to this area.

Findings: The research found that the Criminal Procedure Code (CPC) (Act 593) is silent as to when the defence should be raised. That being said, with reference to the Supreme Court’s case of Lin Lian Chen v. Public Prosecutor [1992] 1 CLJ 285 (Rep), the accused should introduce his defence at the earliest stage as possible. Failing this may give rise to the presumption that the defence raised was a mere invention. Although the principle has been regarded as a law in raising defence, there are still cases where the accused did not present the defence at an earlier stage.

Contributions: This research contributes to the corpus of legal knowledge of criminal defence, particularly on raising criminal defence in a criminal trial with the aim of providing better protection for the accused in the criminal justice system.

Keywords: Criminal justice system, criminally liable, defence, right of the accused, & criminal trial.

Cite as: Mohammed Na’aim, M. S., Rajamanickam, R., & Nordin, R. (2022). The right of an accused to defence under the criminal justice system in Malaysia. Journal of Nusantara Studies, 7(1), 43-58. http://dx.doi.org/10.24200/jonus.vol7iss1pp43-58

Ramalinggam Rajamanickam, Faculty of Law, Universiti Kebangsaan Malaysia, 43600 Bangi, Selangor, Malaysia.

He is an Associate Professor of Law at the University Kebangsaan Malaysia. He has been teaching various law courses at both postgraduate and undergraduate levels which comprise of Forensic Law, Legal Research Methodology, Criminal Law and Law of Evidence. Besides teaching, he also been supervising many postgraduate students. He has also been often invited as a speaker by governmental agencies which include the Department of Syariah Judiciary Malaysia, the Royal Malaysia Police and Dewan Bahasa dan Pustaka to deliver talks on various topics such as criminal law, law of evidence and empowerment of Bahasa Melayu.

Rohaida Nordin, Faculty of Law, Universiti Kebangsaan Malaysia, 43600 Bangi, Selangor, Malaysia.

She is an Associate Professor of Law at the Universiti Kebangsaan Malaysia. She has been teaching various law courses at both postgraduate and undergraduate levels which include International Human Rights Law, Advance International law and Indigenous Peoples, Criminal Procedure and Family Law. Besides teaching, she has also been supervising many postgraduate students. She does research in International Human Rights Law, Teaching and Advocating Human Rights and International Law and Indigenous Issues.

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