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CRIMINAL PROCEDURE – CHARGE – DEFECTIVE CHARGE

At the sessions court, Thomas was charged with being in possession of parang without lawful authority under section 7(1) of the Corrosive and Explosive Substances and Offensive Weapons Act 1958 (“the Act”). Thomas was not represented by a lawyer in the sessions court and pleaded guilty. The court authorised the prosecution to verbally change the charge term, thus the modified charge was not read back to Thomas, and his plea to the amended charge was not accepted.

Q: Is Thomas entitled to know what he was up against in court, especially if he was representing himself?

A: Yes. Any amendment to the charge had to be read and explained to Thomas, and his plea to the modified charge had to be taken as well. In a situation where he was unrepresented, Thomas had every right to know what he was up against in court.

Q: Will it amount to a miscarriage of justice if the wording in the charge is inserted wrongly?

A: Yes . In S.7(1) of the Act, the word “lawful purposes” would indicate that the purpose was in accordance with the law and did not involve a grant of authority by the State. However, the charge against Thomas used the words “without lawful authority.” By failing to state that the possession of the parang was without lawful purpose, the charge failed to notify Thomas that he could speak up if it was true that he had the parang for a lawful purpose.

Q: Does the “parang” amount to a scheduled weapon?

A: It is debatable. A parang was not a scheduled weapon by itself; it only became one if it fit into one of the parang categories listed in paragraphs 8 and 9 of the Act’s Second Schedule. The charge against Thomas contained only the word parang and omitted the qualities listed in paragraphs 8 and 9. Because of this omission, the accusation was severely flawed because it failed to reveal any known criminal offence.

 

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