Cassation No. 705 of 2019 - Penal
Issued on 02/03/2020
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.
1- Criminal trials shall be based on the oral investigation conducted by the court with the accused and the hearing of testimony of the defence and prosecution witnesses.
2- In the case of a crime punishable by death penalty, the investigation shall be completed by hearing the statement of the accused and the testimony of the prosecution witnesses.
3- The contested judgment, by sentencing the accused to life imprisonment for the crime of trafficking in narcotics, although the said crime is punishable by death penalty, and the court did not hear the statements of the accused or the testimony of the prosecution witnesses, shall be deemed defective.
Law "application thereof". Trial "basis thereof". Investigation "Oral". "Defence" "Prosecution" Witness. Proof "evidence". Session "investigation therein". Court of Appeal. Ruling "Deficiencies in causation".
- 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.
- 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.
- 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.
- 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.
The Court
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.

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