Criminal Procedure / Charges
Charges
Upon the conclusion of investigations, the Investigating Office would then refer the matter to the Attorney-General’s Chambers (AGC) with their recommendations on what course of action (if any) should be taken against the suspect.
The AGC takes a two-step process when deciding what course of action should be taken:
The “evidential sufficiency” test; and
The “public interest” test
These two tests, and the various possible outcomes that may arise from it, is depicted in the flowchart below:
The “evidential sufficiency” test
If the prosecutor takes the view that the evidential sufficiency test is not satisfied, no further action would be taken against the suspect. Alternatively, the prosecutor may direct the Investigating Officer to issue an advisory to the suspect (distinct from a warning, which is elaborated upon below), informing him that he may have committed an offence, and advising him not to commit such actions in the future.
If the prosecutor takes the view that the evidential sufficiency test is satisfied, the next step would be to consider if it is in the public interest to prosecute the suspect.
The “public interest” test
This depends on the seriousness of the offence committed, the prevalence of the offence, the suspect’s age and criminal record (if any), and other relevant public policy considerations.
If it is not in the public interest to prosecute the suspect, the AGC may issue either a stern warning or a conditional warning to the suspect. A stern warning is a written warning informing the suspect that although the AGC is of the view that an offence has been committed, prosecution would not be initiated against him.
He is then warned that such leniency may not be shown to him should he subsequently reoffend. A conditional warning is similar in nature to a stern warning, save that the suspect is informed that, should he reoffend within a stipulated time frame (usually either 12 or 24 months), the AGC may prosecute him for the offence for which the warning is issued in addition to the fresh offences that have been committed.
Stern or conditional warning
A stern or conditional warning is of no legal effect, as it is merely a statement by the authorities that they are of the view that an offence has been committed. It does not form part of a suspect’s criminal record.
Therefore, while the AGC may consider a previous issuance of a stern or conditional warning in determining whether to charge a suspect who has reoffended, it cannot be raised as an aggravating factor during sentencing.
If the AGC takes the view that the public interest test is satisfied, they would proceed to direct the Police to charge the suspect. The Police would then serve the charges onto the suspect, and record what is known as a “cautioned statement” from the suspect. During the recording of the cautioned statement, the suspect would be asked to state his position and his defences (if any) to the charges. The Police would caution the suspect that, if he did not provide his defence at that point in time, the court would be less likely to believe him if the matter was brought to trial (hence, a cautioned statement). The Police would record a cautioned statement for each charge that is served on the suspect.
Charge Sheet
A charge would be served in the form of a charge sheet. This charge sheet would have to be positively and precisely stated so that the accused knows what the accusation against him is, and what charge he has to meet. This should not only include the offence name and provision, but should also include the date, time, place persons or things related to the offence. Essentially, the charge should be sufficient to give the accused notice of the matter with which he is charged. If he is liable for enhanced punishment, this should be stated in the charge sheet as well.
In certain circumstances, the Police may charge a suspect before investigations are complete. This is known as a holding charge, and is served on an accused when the Police wishes to place a suspect in remand longer than the permitted 48 hours. After serving the holding charge on the suspect, they would then produce him in court, and make an application that he be remanded for a further period (usually three weeks) for the Police to continue investigations into the suspected offence. Holding charges are usually used where the offences committed are serious.