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Question (a) The issue is whether Tolstoy was correct to reject Apels application for transfer of his case

due to lack of consent from the DPP. Section 177A of the Criminal Procedure Code (CPC) provides that when a case in transferred to the High Court, it cannot be instituted except by or with the consent of the Public Prosecutor. Unfortunately, the provision is silent as to whether there is a need in obtaining consent from the Public Prosecutor to actually transfer the case to the High Court by subordinate courts. Consequently, it can be construed that subordinate courts are free to transfer cases to the High Court without the need to wait for consent from the Public Prosecutor. What must be highlighted is the fact that the case is not instituted upon the transfer but upon the accused being able to plea to the charge once the PP has given his consent to institute proceedings. Under the old law, for a transfer of cases to be valid, consent from the Public Prosecutor must be obtained as enunciated in the case of Oladuton Lukmaru Umaru & Ors,1 where the court ruled that consent from the Public Prosecutor must be obtained before a transfer may be effected. The current position was discussed further in the case of Marwan Ismail,2 where the court had rejected the principle laid down in Oladuton Lukmaru Umaru by stating that consent of the Public Prosecutor is not required if it is for the transfer of cases from subordinate courts to the High Court. In the situation at hand, Apel made an application for his case to be transfer to the High Court from Sessions Court. The case in point should have been transferred by virtue of Section 177A and also as to what was decided in the case of Marwan Ismail. The issue on consent was not material as consent is only needed for the institution of proceedings in the High Court and not for transfer. In conclusion, it can be submitted that Tolstoy was wrong to reject Apels application because the consent of Public Prosecutor is only to be obtained for the institution of proceedings in the High Court but not for transfer of the case to the High Court.
1 2

[1991] 1 MLJ 187 [2008] 3 MLJ 51

Question (b) The issue before hand is whether Sunkiss application to transfer his case can be granted. Paragraph 3 of the Third Schedule of the SCA states the power of the court to transfer a case to a court of a coordinate jurisdiction by application or by its own motion. Section 104 of the SCA gives power to a Sessions Court Judge or a Magistrate to order for the transfer of a case for the interest of justice. In the case of Manokaran,3 the court held that this provision only confers power to a court to transfer between courts of coordinate jurisdiction and such power could only be exercised by a transferor court. Moreover, Section 121 of the CPC states that the court shall have jurisdiction to trial and hear any offences committed within its local limits. This was also provided in Section 59(2) of the SCA where it states that the local limits of the Session Court is as assigned to it or if it is not assign, its local limits follow the jurisdiction of the respective High Court.

In applying to the facts, Sunkis was charged for abetment of an offence under Section 457 of the PC and was charged before Astro in the Shah Alam Court. He claimed for trial and was released on bail. Sunkis made an application to Tolstoy to transfer his case to Seremban Court because he was previously convicted and sentenced by Astro for an offence under Section 411 of the PC. He claimed that there will be possible prejudice against him. By virtue of Section 104 of the SCA, only the transferor court has power to apply to transfer a case to another co-ordinate jurisdiction. Thus, in this situation, as the application was made by Sunkis himself, Tolstoy may reject his application as the law does not confer any power to make an application to transfer a case of coordinate jurisdiction by the accused. The application should have been made by Astro because Astro is the judge of the transferor court. On the other hand, as the offence alleged was committed in Shah Alam and therefore, it is outside the local limits of the Seremban Session Court to hear the matter. Thus, Tolstoy has no jurisdiction to hear the matter because the local

[1979] 1 MLJ 262

limits of the Session Court of Seremban is as assigned to Seremban High Court and it is outside the jurisdiction of the Seremban Session Court.

In conclusion, Sunkis application should be rejected as he has no power to apply to transfer the case as provided by Section 104 of the SCA and only Astro can make such application for the transfer. Furthermore, Tolstoy did not has jurisdiction to hear the matter as Section 121 clearly states that the court shall has jurisdiction to hear the offence which had been committed within its local jurisdiction. As in this case, the offence committed in Shah Alam and thus, Shah Alam Session Court is the most appropriate court to hear and trial the offence against Sunkis.

Question (c) The issue that arises is whether Sunkis conviction and sentencing was properly done by Astro. If the court finds the accused guilty of an offence, or a plea of guilty has been recorded and accepted, the court shall pass sentence according to law. Further, the court must pass sentence within its sentencing jurisdiction. As in the case of PP v. Jafa bin Daud4, the phrase pass sentence according to law means that sentence is passed according to the punishable section and is to be assessed with established judicial principles. The principles of a plea of guilty was laid down in the case of Mohd Asri bin Ahmad v. PP.5 It was enunciated in this case that the magistrate must satisfy himself that it was the accused himself who wishes to plead guilty and that he understands the nature or consequence of the plea. Furthermore, the plea of guilty must be unequivocal in which the plea is given without qualifications or ambiguity with regards to the offence he is charged with and this can be corroborated by the case of Cheng Chong.6

4 5

[1981] 1 MLJ 315 [2005] 7 MLJ 253 6 [1967] 2 MLJ 130

Applying this to the current case, Sunkis pleaded guilty to the offence of abetment that he was charged with. The first half of his plea in which he stated, Your Honour, I plead guilty and pray for leniency can be accepted by the court as it is not conditional. However, when Oren proceeded by adding that circumstance coerced me into helping Oren, this rendered the plea of guilty to no longer be unequivocal. This is because Sunkis is trying to put forward the defence that he did not have the intention or mens rea in doing the offence. Thus, the plea of guilty may not be accepted by Astro as it is vague and raises a defence on Orens part as to his guilt in the commission of the offence of abetment. In the current situation given, the offence charged against Sunkis was for abetment for the offence of Section 457 of the PC. The punishment of abetment for this offence is not stated in Section 457, hence, the guiding section is under Section 116 of Penal Code where an abetment of an offence that is punishable with imprisonment is similar to the offence of Section 457 which is imprisonment for a term which may extend to five years and liable for fine. In cases where the offence is intended to be committed is theft, the imprisonment may be extended to fourteen years. The offence alleged to have been committed in the present scenario can be said to have been lurking house breaking in order to commit the offence of theft of the gold bars at the Gem Centre. Thus, the punishment for this offence may be extended up to fourteen years. The case at hand did not state clearly as to how Sunkis committed the abetment and the confession made by Oren is not admissible by virtue of Section 113 of the CPC. Thus, according to Section 116, if the offence is not committed in consequence of the abetment, the accused is liable with imprisonment for term which may extend to one-fourth part of the longest term provided, or with such fine as it provided or with both. However, what must be taken note of is the fact that the plea of guilty that was made by Sunkis was equivocal as a defence was raised upon him pleading to the charge. Therefore, his plea of guilty should not have been accepted by the court. As a result of this, sentence should not have also been passed on him. It is put forth that as the plea of guilty was initially invalid, then the

sentence passed is also invalid as the correct course of pursuing the matter is for Sunkis case to proceed to trial. In conclusion, Sunkis was not properly convicted and sentenced on his plea of guilty as the plea made by him with regards to the charge is equivocal.

Question (d) The issue in this case is whether it is relevant or not to grant Rambais application to impeach Beta. Generally, when a witness has turned hostile, his credibility may be impeached by impeachment proceedings. Impeachment of the credit of the witness is provided under Section 155 of the Evidence Act. In the current situation, it is by proof of former statements inconsistent with any part of the evidence which is liable to be contradicted. As in the case of Muthusamy v. PP7, the differences may be minor differences not amounting to discrepancies, apparent discrepancies, serious discrepancies or material discrepancies. It was further elaborated in the abovementioned case that impeachment shall only be considered when the witness gives evidence inconsistent with his previous statement and the difference is so material as to amount to a discrepancy affecting his credit. Applying this to Rambais application, it can be construed that the reason the application made to impeach Beta was only due to the inconsistency of the monetary value of the gold bars that were stolen. The original amount stated in the report lodged by Beta was RM500,000 but this was in excess of RM300,000 as upon insurance valuation, the total only amounted to RM200,000. Although there is a discrepancy between the report and the evidence given by Beta during trial, this discrepancy cannot be considered as being material as it is only minor in nature. Furthermore, it also does not affect the case or the course of the trial and the discrepancy should

[1948] MLJ 57

also not affect Betas credit as a witness as the statement made by him substantially outlines the same story or occurrence of the event. In conclusion, as the discrepancy was only a form of minor discrepancy, then Rambais application should be rejected.

Question (e) The issue that arises is whether the report of the finger impression comparison (P2) by the Registrar of Criminals is admissible. Section 399(1)(b) of the CPC stipulates that a Registrar of Criminals is not required to attend as a witness upon any matter or thing relating to finger impressions that is admitted as evidence unless he is required to attend by the court or the accused. The accused however must give notice or his intention to do so of not less than three clear days to the Public Prosecutor prior to the commencement of the trial. Furthermore, the proviso under Section 399(1) denotes that when the Public Prosecutor intends to adduce evidence under this provision, a copy of the report shall be delivered to the accused not less than ten clear days before the commencement of the trial. As can be corroborated by the case of Lim Sooi Booi8, upon the prosecution deciding on using the report, the accused is then entitled to it and the provisions of Section 399 are to be complied with. It was illustrated in Lim Moo Joo9 that non-compliance with the provisions of Section 399 would render the report inadmissible in evidence. Applying this to the present context, it can be observed that the prosecution did indeed comply with Section 51A of the CPC with regards to the delivery of any documents that would be tendered as evidence to the accused as required by Section 51A(1)(b). However, as this pertains to a report by the Registrar of Criminals, then Section 399 would specifically take effect. Therefore, the provisions contained under it must also be conformed to. In assessing this situation, what must be noted is that Orens trial was on 13 March 2010. As required by the
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[2004] 2 MLJ 433. [1970] 2 MLJ 113.

proviso of Section 399, the prosecution must serve a copy to Oren ten clear days prior to the date of the trial. However, this was not complied with as the report was served on Oren on 6 March 2010. Therefore, the service was short of three days from the ten days required by Section 399. Additionally, the defence also failed to adhere to the requirement under Section 399(1)(b). This is incumbent upon the fact that notice requiring the attendance of the Registrar of Criminals was served on the prosecution on 11 March 2010. It is apparent that this is not in compliance with what has been laid down under Section 399(1)(b) as the requirement of three clear days from the date of commencement of the trial was not conformed with. In conclusion, the report should not be admissible as the requirement under Section 399 was not met by the prosecution. It is admitted that the defence also failed to serve due notice. The report on its own was inadmissible to begin with due to it being served less than the minimum number of days required. However, this should not be a justification in excluding the evidence as a whole due to the disregard of both the prosecution and defence of the requirements of Section 399. As the finger impression can be considered to be a material piece of evidence which entails significance to the case, the Registrar of Criminals can be called as a witness to the trial by virtue of the court invoking its power under Section 425 of the CPC.

Question (f) The issue in this case is whether Amigo was right to act on the evidence previously recorded by Astro. According to Section 261 of CPC, whenever any Magistrate after having heard and recorded the whole or any part of the evidence in a trial ceases to exercise jurisdiction in it and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself, or he may re-summon the witnesses an recommence the inquiry or trial.

In the case of PP v Kulasingham10 the trial was ordered to be continued as the prosecution had closed its case, a large number of witnesses had been called and exhibits produced, and a prima facie case had been established. However in the case of Oh Keng Seng v PP11 on revision by the High Court, Ajaib Singh J refused to follow Kulasingham and ordered a trial de novo. Further in the case of Teay Wah Cheong v PP12 the court held that it is better for the new President or Magistrate to hear the case ab initio in order to assess the credibility of the witnesses rather than take over the recording of the evidence from his predecessor. In applying to the issue at hand, Section 261 of the CPC states that the Magistrate succeeding may act on the evidence so recorded by his predecessor. By virtue of Section 261, Amigo may act on the evidence previously recorded by Astro. There is no need for Amigo to order retrial de novo. In the case of Public Prosecutor v Mohd Jon13 the court held that provision of Section 261 however may generally be exercised where the evidence to be acted on is more or less formal or is largely uncontroversial and where the credibility of any material witness is not involved. According to the present facts, Astro previously called Beta and Inspector Apel to testify. They both only testified with regards to the number of gold stolen and the finger print impression. Therefore there is no question on the credibility of the witnesses. In addition, Amigo is not disadvantaged in assessing the demeanor of the witnesses as their recorded statements are only to corroborate the evidence of the number of stolen gold bars and the exhibits tendered before the court. In conclusion Amigo was right in acting on the previous evidence recorded by Astro by virtue of Section 261 of CPC without the need for a trial de novo.

Question (g)
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[1974] 2 MLJ 26 [1976] 1 MLJ 143 12 [1964] MLJ 21 13 [1993] 1 MLJ 133

The issue in this case is whether there is any ground(s) in objecting to Rambais application to recall Inspector Alfa to further cross-examine him on the manner he lifted the finger impression (P1) under Section 261(a) of CPC. According to Section 261(a), the accused may in any trial, when the second magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and reheard. In the case of PP V. Mohamed Azmin Ali14 the court held that under Section 261(a) the term 're-heard' suggests that the examination, cross-examination and re-examination in the rehearing is to cover the same ground dealt with in the examination, cross-examination and reexamination before the preceding judge, and not for the purpose of bringing up new matters and therefore that the only purpose of Section 261 is to enable the succeeding judge to see the demeanour of the witness. In applying to the issue before hand, Rambais application to recall Inspector Alfa was to further cross-examine him on the manner he lifted the impression (P1). With regards to this, it puts forth many questions as to Rambais intention in recalling Inspector Beta as he got his chance to crossexamine Inspector Alfa during the prosecution stage. If the application was granted and further cross-examination was allowed, the defence would seem to be having a second bite of the proverbial cherry. Therefore, if further cross-examination was to be allowed, it would be unfair on the part of the prosecution. The defence had the chance of cross-examining Inspector Alfa and they should have used this to the fullest extent. Therefore it is submitted there is no justifiable ground for Rambai to invoke Section 261(a) in recalling Inspector Alfa to further cross-examine him.

Question (h)

[2000] 7 CLJ 628

The issue that arises in this case is whether any objections can be raise with regards to the application by the prosecution to call the Registrar of Criminals. According to Section 425 of the CPC, any court may at any stage of any inquiry, trial or other proceeding, summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already re-examined if his evidence appears to be essential to the just decision of the case. In Ramli Bin Kechik v PP15, it was stated that Section 425 of the CPC consists of two limbs. The court has the discretion under the first limb to summon any person as a witness; examine any witness in attendance, though not summoned as a witness or recall or re-examine any person already examined. Under the second limb, the court has a duty to summon and examine or to recall and re-examine such person if his evidence appears essential to the just decision of the case. In applying to the issue before hand, the facts of the present case indicates that DPP Constar had applied to call the Registrar of Criminals to adduce further evidence on the contents of his report (P2) at the defence stage . Although by virtue of Section 425 , the court may at any stage of any inquiry, trial or other proceeding, summon any person as a witness but if the Registrar of Criminals is to be called it may be detrimental to the justice of the accused. The reason is because during the prosecution case, the prosecution had submitted all probable evidence that incriminates the accused for the offence. At the defence stage, it is the accuseds right to defend himself towards all evidence adduced by the prosecution. However, if the prosecution is to call the Registrar of Criminals at this stage it would give rise to new evidence and allegation in which without a doubt would affected the accuseds defence. The case of PP v Phon Nam16 can be referred to where in this case the prosecution had applied under Section 425 to call the witness who they failed to call at the end of prosecution case. The Supreme Court ordered a retrial as the High Court was bound to admit fresh evidence for the just decision of the case. With regards to the present scenario, the prosecution should have submitted all probable evidence during the prosecution stage as during the defence stage, it is the accuseds right to put forward his defence.
15 16

[1986] 1 CLJ 308 [1988] 3 MLJ 415

Therefore it is submitted that the prosecution should not be allowed to call the Registrar of Criminals at the defence stage as it would be a detriment for the accused. Section 425 of the CPC only caters to the calling of witnesses if it is essential to the just decision of the case and in this matter, the Registrar of Criminals should have been called earlier during the prosecutions case.

Question (i) The issue is whether Rambai can use the exchange of words between him and Amigo, the trial judge, as a ground of appeal. Section 256 of the CPC provides that the court may ask question to the accused at any stage of the trial if he thinks it to be necessary. This to enable the accused to explain any circumstances appearing in the evidence against him. The discretion of the court to ask questions to the accused must not be exercised to induce him in making incriminating statements but rather to be exercised to ascertain from the accused how he may be able to meet facts disclosed in the evidence against him so that such facts may not stand against him unexplained. In Gan Kok Liong v PP,17 the accused appealed to the High Court against the conviction of the Sessions Court President on the ground that the Sessions Court President had unfairly subjected him to severe cross-examination. Raja Azlan Shah J. purported that the learned President was justified in questioning the accused in order to ascertain the truth. In the case of Lim Chin Poh v PP,18it was ruled that the trial judge should refrain from intervening unless it is absolutely necessary. In applying to the facts, Amigo, the succeeding judge, had subjected Oren to repeated questioning because he was unable to follow Orens defence. Rambai, counsel for Oren, had intervened in the questioning which later caused exchange of words between Amigo and Rambai. Amigo then said that the guilt of Oren is evident. The purpose of him subjecting Oren to repeated questioning is to ascertain the truth and to clarify doubts. By virtue of the case of Gan Kok Liong v PP, Amigo can put forth inquiries in order to ascertain the facts and doubts arising
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[1969] 2 MLJ 30 [1969] 2 MLJ 159

from the evidence and this was laid down in Section 256(6) of the CPC where it confers power to the court to ask question to ascertain facts. Therefore, Amigo is justified to subject Oren to repeated questioning especially when he thinks that it is material to clarify doubts and for the interest of justice. Moreover the power of Amigo to ask question is provided by Section 256(6) of the CPC. In conclusion, as Amigo is justified in subjecting Oren to repeated questioning, the exchange of words between Amigo and Rambai cannot be used as a ground of appeal. Such questioning is necessary for the purpose of clarification and thus, such ground cannot be invoked as a ground of appeal.

Question (j) The issue arises in this case is whether the prosecution should object to the defence adduced by Oren and Lawa. As this offence took place in 2009, the 2010 amendment to Section 402A would not be applied retrospectively to this situation. Section 402A provides that if the accused intends to rely on the defence of alibi, he must give notice in writing to the prosecution at least 10 days before the trial. The notice must contain particulars of the place that the accused claims to have been, including the name and the address of the witness he intends to call in order to establish his alibi. In the case at hand, Oren served the notice of alibi on 27 December 2009 stating that, on the night of 16 December 2009 between 8.00pm until 8.00am of 17 December 2009, he was in house No 4, Jalan Jahat, Klang with Lawa who stays at No.10 Jalan Sibuk, Kajang. At the trial, Oren was able to complete his defence which was consistent with his notice upon calling Lawa as his witness. This therefore renders Orens statement as an alibi by virtue of the case of Vasan Singh v. PP.19


[1988] 3 MLJ 412

The prosecution in this case can object on the discrepancy between Apel and Minahs testimonies. In Dato Hj Harun20, the court held that it is necessary to scrutinize the evidence carefully. In this case, Apel stated that he was in house No.4 Jalan Jahat, Klang having fun with Lawa at the night where the crime committed. On the other hand, Lawa stated that at about 9.30 pm on 16 December 2009, she and Oren went to Gem Centre to purchase an engagement ring and then spent the night at home, having fun with some friends, Dato Kaya and Tan Sri Mewah until the next morning. The discrepancy that arises is the specific place of where Lawa and Oren were at the time of the occurrence of the offence. This discrepancy should be put forward by the prosecution in order to object the Lawas testimony. The prosecution also can object that any evidence by Dato Kaya and Tan Sri Mewah should be inadmissible as they were not stated in the notice by Oren. This objection is with regards to the weight to be attached to the testimonies given by Oren and Lawa. In conclusion, the prosecution can object to the discrepancies of the statements made by Lawa and Oren.

Question (k) The issue that arises is whether there are any grounds for Oren to appeal against his conviction by Amigo. What must be analysed is Amigos reason for convicting and sentencing Oren at the close of the defence case. In the case of Mat v PP21, the Magistrate at the court of first instance erred in law when at the end of the defence given by the accused, the Magistrate pronounced the word on the whole, I am unable to believe the defence. Suffian J expounded that the Magistrate did not have the entitlement to convict the accused if he did not believe the accuseds explanation as he is still entitled to an acquittal if a reasonable doubt is raised as to his guilt.

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(1977) 1 MLJ 15 (1963) MLJ 263

Therefore, in the present case, Amigos finding of Orens guilt was due to Amigos failure to believe Orens defence submitted by Lawa in her testimony, and it was on this basis alone that he decided the conviction of Orens case. Amigos failure to consider the defence put forward was a contravention of the law as the accused has the right to be heard of his defence and the judge should take the evidence from both of the prosecution and the defence into consideration in order to assess whether a doubt is raised or not. Amigo should have taken into consideration the receipt of purchase as it may raise a reasonable doubt as to Orens guilt and failure to assess such evidence may give injustice towards Oren. The production of the receipt is material in order to prove the presence of Oren at the Gem Centre with Lawa at the time alleged, and it will illustrate how Orens finger impression was found on the glass panel. Although Amigo made a visit to the Gem Centre and holds a view that Oren is guilty, however Amigo cannot decide on the case solely based on the visit to the crime scene without hearing all the evidence before him. It can be said that Amigos failure in considering the evidence put forth by the defence, which was the receipt of purchase of the engagement ring, is erroneous and this can be one of the grounds of appeal by Oren. Another issue arises is whether Amigos decision to convict Oren is correct in law. It is submitted that Amigo erred in law by convicting Oren. This is due to the fact that the elements of lurking house breaking under Section 457 of the PC were not fulfilled. In this situation, there was insufficient evidence to prove that Oren broke into the Gem Centre. By virtue of section 173(m) (i) of the CPC, the court shall consider all the evidence adduced before and at the end of the trial and shall decide whether the prosecution had proved its case beyond reasonable doubt. In this case, there was no eye witness who saw Oren lurking and trespassing into the Gem Centre. Even though Orens finger impression was found on the glass panel, it only can show the link between Oren and the place but failed to prove the nexus between Oren and the offence of lurking house trespass with common intention to commit theft. The prosecution failed to prove beyond reasonable doubt that Oren committed lurking house trespass into the Gem Centre. Therefore, since there is lack of the evidence to prove the ingredient of the offence of lurking house trespass with common intention to commit theft, Oren can appeal that there was no prima

facie case at the end of the prosecution case and Amigo was erred in convicting him with such an offence. With regards to the confession made by Oren during the investigation, he made such a confession after being subjected to physical violence. By virtue of Section 113, CPC read together with Section 24 of the Evidence Act, the confession made by an accused is irrelevant if the making of the confession was prompted by way of physical violence. The confession was not voluntarily made and therefore it is irrelevant. Therefore, Oren also can appeal on the ground that the confession made by him was inadmissible. In conclusion, Oren can appeal on three grounds. Firstly, there was a failure on Amigos part to consider the evidence submitted by the defence. Secondly, there was no prima facie case to prove the ingredients that Oren committed the offence of lurking house breaking with intention to commit theft and the confession made by him was involuntarily made because it was obtained by way of physical violence.

Question (l) The issue that surfaces in this situation is whether the delay in the grounds of judgment would assist as a ground of judgment in favor of Oren. Section 307(3) of the CPC provides that the appellant shall be served with a copy of the grounds of decision in the case when a notice of appeal has been lodged. Reference must also be given to Section 279 of the CPC which requires that a copy of the judgment is to be given to the accused without delay. A case that can be quoted in illustrating this is that of Azman Jamhuri v Public Prosecutor22 where the conviction passed by the judge was set aside due to the grounds of judgment only being given to the accused two years subsequent to his conviction and this as a consequence caused injustice towards the accused. Furthermore in Karpal Singh23, it was stated that the courts possessed inherent jurisdiction in preventing a miscarriage of justice from
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[2001] 1 CLJ 539 [1991] 2 MLJ 544

occurring. This is to be read in line with Section 310 of the CPC in which the judge is empowered to allow an appeal which is debarred due to non-compliance with the procedures required in order to perform substantial justice. Applying this to the present context, it can be observed that the notice of appeal was served by Rambai on 7 May 2010 and the issue of him being debarred from appealing does not arise as the notice of appeal was served on delivery of judgment by Amigo. However, there was a delay on the receipt of the grounds of judgment as it was only served three years later. The delay can be considered as unreasonable due to the fact that Section 307(3) requires the grounds of the decision made to be served on the accused upon the service of the notice of appeal. Additionally, the grounds of judgment was only served subsequent to Oren serving his full sentence of two years imprisonment as the grounds were received one year after Oren completing his imprisonment term. Therefore, although compliance was not given to the procedure of appeal, this was not due to Orens fault as it was the delay in the service of the grounds of judgment that caused the non-compliance. In the interest of justice, the court is endowed with the discretion to allow for an appeal on the basis that there was an unreasonable delay of three years in the service of the grounds of appeal and the grounds were only received by Oren upon him completing his sentence. In conclusion, the delay of three years would be a valid ground of appeal in favor of Oren.