Cassation
No. 705 of 2019 - Penal
Panel:
Presided by Mr. Judge / Mohamed Abdel-Rahman Al-Jarrah - Chief Judge of the
Circuit - with the membership of Judges / Ranfi Mohamed Ibrahim and Ahmed
Abdullah Al-Mulla.
Law
"application thereof". Trial "basis thereof". Investigation "Oral". "Defence"
"Prosecution" Witness. Proof "evidence". Session "investigation therein". Court
of Appeal. Ruling "Deficiencies in causation".
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Criminal trials. Shall be based on the oral investigation conducted by the court
with the accused and the hearing of the defence and prosecution witnesses’
testimony. As long as this is possible. The court shall complete any deficiency
in the investigation procedures and may not disregard this rule unless it is
waived by the parties either explicitly or implicitly. The basis therefor?
Articles 165, 166 and 239 of the Criminal Procedure Law.
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Investigation in the session. Shall commence by calling on the parties and the
witnesses, asking the accused to state his particulars, reading the charge
imputed thereto and asking him if he confesses to the crime. If he does confess,
the court may be satisfied with his confession and convict him without hearing
the testimony of the witnesses. If he does not confess, then the court shall
hear the testimony of the defence and prosecution witnesses. Since the crime is
punishable by death penalty. The court shall complete the investigation. The
basis therefor? Article 165 of the aforementioned Law.
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The Court of Appeal. Shall hear by itself the witnesses whose testimony should
have been heard before the court of first instance. And shall remedy any other
deficiency in the investigation procedures. The basis therefor? Article 239 of
the same law.
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An example of a deficiency in reasoning, since the Court of Appeal ruled to
impose life imprisonment for the crime of trafficking in a narcotic, while the
crime is punishable by death penalty, and the court did not hear the statements
of the accused or the testimony of the prosecution witnesses.
Whereas
it is prescribed by law and pursuant to the provisions of Articles 165, 166, and
239 of the Criminal Procedure Law, that criminal trials shall be based on the
oral investigation conducted by the court against the accused and the testimony
of the defence and prosecution witnesses as long as this is possible, and that
the court shall complete any deficiency in the investigation procedures and may
not disregard this rule unless it is waived by the parties either explicitly or
implicitly, and since the text of the aforementioned Article 165 stipulates that
the investigation shall commence by calling on the parties and the witnesses.
Then the accused shall be asked to state his particulars and details, after
which the charge imputed to him shall be read thereto. Thereafter the accused
shall be asked if he confesses to the crime, if he does confess, the court may
deem said confession adequate and convict him without hearing the testimony of
the witnesses, otherwise it shall hear the testimony of the prosecution and
defence witnesses, unless the crime is punishable by death penalty in which case
the court shall complete the investigation, which means that, in the case of a
crime punishable by death penalty, the investigation shall be completed, and
this is carried out only by asking the accused to present his statements and
hearing the prosecution witnesses. Article 239 of the same Law stipulates that
the court of appeal shall hear by itself the witnesses whose testimony should
have been heard before the court of first instance court and shall remedy any
other deficiency in the investigation procedures.
Whereas
it is established, pursuant to the perusal of the documents of the case, that
the crime for which the accused is referred to trial is the possession of
narcotics with the intention of trafficking therein, and said crime is
punishable by death penalty, and since it is evident that the court of appeal,
after it returned the case to pleading upon the change of the panel, did not
hear the statements of the accused nor the testimony of the prosecution
witnesses, hence, it violated the provisions of Articles 165 and 239 of the
Criminal Procedure Law, and therefore, the judgment shall be deemed defective,
and consequently, it shall be reversed.
Whereas,
in the facts, the Public Prosecution has accused the appellant of having on
17/11/2017, in the Dubai Department:
Possessed
with the intention of trafficking a narcotic (Indian cannabis) in cases other
than those authorised by law.
and
requested his punishment in accordance with the provisions of the Islamic Sharia
and Articles 1, 6/1, 17, 48/2, 56, 63, 65 of Federal Law 14 of 1995 on Combating
Narcotics and Psychotropic Substances as amended by Federal Law No. 1 of 2005
and the items listed in Table I attached to the aforementioned Law.
In
the session dated 28/1/2019, the First Instance Court ruled:
First:
to sentence the accused / .......... to life imprisonment and to expel him from
the state after execution of the sentence.
Second:
to confiscate the narcotics seized.
Third:
to impose on the convicted person to pay the due legal fees.
The
convicted person did not accept this ruling and filed an appeal against it. In
the session dated 20/5/2019, the Abu Dhabi Court of Appeal ruled in Appeal No. 8
of 2019, to accept the appeal in form, and in the merits, to reject it and to
confirm the appealed judgment, and imposed on the appellant to the legally
prescribed fee.
The
convicted person did not accept this ruling and filed against it the present
appeal in cassation.
The
Public Prosecution submitted a memorandum of its opinion whereby it requested
the dismissal of the cassation.
Whereas
the appellant objects to the contested ruling on the grounds of its nullity,
stating that it violated the law and erred in its application, since the court,
after it returned the case to pleading upon the change of the panel, set the
session dated 13/5/2019 for its hearing. In the said session, the court proved
that, after calling on the parties and the witnesses, no one appeared and ruled
to suspend the proceedings for adjudication in the session dated 20/5/2019,
wherein it pronounced the contested judgment without hearing the defence or the
witnesses of the accused or the pleading, and therefore, the judgment shall be
deemed defective and tainted with a nullity resting on motives
of public order, and consequently, it shall be reversed.
Whereas
the objection is appropriate, since it is prescribed by law and pursuant to the
provisions of Articles 165, 166, and 239 of the Criminal Procedure
Law
,
that
criminal trials shall be based on the oral investigation conducted by the court
against the accused and the testimony of the defence and prosecution witnesses
as long as this is possible, and that the court shall complete any deficiency in
the investigation procedures and may not disregard this rule unless it is waived
by the parties either explicitly or implicitly, and since the text of the
aforementioned Article 165 stipulates that the investigation shall commence by
calling on the parties and the witnesses. Then the accused shall be asked to
state his particulars and details, after which the charge imputed to him shall
be read thereto. Thereafter the accused shall be asked if he confesses to the
crime, if he does confess, the court may deem said confession adequate and
convict him without hearing the testimony of the witnesses, otherwise it shall
hear the testimony of the prosecution and defence witnesses, unless the crime is
punishable by death penalty in which case the court shall complete the
investigation,
which means that, in the case of a crime punishable by death penalty, the
investigation shall be completed, and this is carried out only by asking the
accused to present his statements and hearing the prosecution witnesses. Article
239 of the same Law stipulates that the court of appeal shall hear by itself the
witnesses whose testimony should have been heard before the court of first
instance court and shall remedy any other deficiency in the investigation
procedures.
Whereas
it is
established, pursuant to the perusal of the documents of the case, that the
crime for which the accused is referred to trial is the possession of narcotics
with the intention of trafficking therein, and said crime is punishable by death
penalty, and since it is evident that the court of appeal, after returning the
case to pleading upon the change of the panel, did not hear the statements of
the accused nor the testimony of the prosecution witnesses, hence, it violated
the provisions of Articles 165 and 239 of the Criminal Procedure Law, and
therefore, the judgment shall be deemed defective, and consequently, it shall be
reversed with referral with no need for examining the remaining grounds of
cassation.