De Novo

As this year draws to an end and a new one begins, perhaps to post something on 'De Novo' - starting afresh, is apt.

The phrase de novo is usually used where a trial that had proceeded in part has to be started all over again because of a fundamental flaw. In the movies which more often than not feature the American system of law, this is referred to as a mistrial. This is correct in the context it is said because the first trial was abandoned because it was a mistrial and a fresh trial or trial de novo is ordered.

Brunei had a major taste of this when the protracted corruption trial against the former Minister of Development had to be abandoned as the presiding Judge was sickly and had been adjourning the hearing on many occassions leading to concerns that the trial cannot be completed before him. A trial de novo or a fresh trial was ordered before another judge. This must have been a costly affair for both the prosecution who had engaged a Senior Counsel from Hong Kong, and the defence.

Talking about fresh start, one important piece of law that Brunei is missing is the equivalent of the Rehabilitation of Offenders Act of England. In this Act, previous convictions of a person will be disregarded in passing sentence if these convictions were more than 7 years old. What it means is that a person gets a clean slate or a fresh start once every 7 years not only if you are reconvicted, but also for the purpose of answering the question of whether you have a previous conviction when seeking employment, etc. With this Act you can lawfully say that you do not have any previous conviction if the last one you had is more than 7 years old.

More importantly in Brunei there are many statutory provisions that makes it mandatory for the court to impose a minimum sentence when the offender committed the same offence again. For example a person who is convicted a second time for careless driving, a relatively common offence, will be mandatorily disqualified from driving for 12 months; a person who is convicted a second time for consuming drugs will be mandatorily sent to prison for 3 years.

Whilst the intention to deter a person from reoffending is laudable, the imposition of these mandatory minimum sentences fails to take into account the age of the last offence. The last time you had been convicted of careless driving may be when you were a brash 20 years old. Now when you are pushing retirement, more than 35 years on, should you be disqualified from driving if you get convicted of careless driving again? Surely the just way of looking at it is that you have been driving carefully for 35 years and not to take an act propelled by the raging hormone of your youth to haunt you forever.

The Courts in Brunei had taken it upon themselves to disregard offences more than 7 years old in passing sentence. Whilst ththe courts has wide discretion in passing sentences, to say that the courts has this discretion in the face of clear statutory provision to pass a minimum sentence when there is no express provision to disregard old conviction, may be outreaching itself, although the intention behind it is commended. It is for the legislature to pass a law allowing for convictions to be 'spent'.

It is important that everyone be given an opportunity to start afresh - a very heavy burden of a conviction is the inability to ever work for the government and most major companies who will do a background check and uncover your conviction no matter how minor it was and how long ago it had been. Without a Rehabilitation of Offenders act, a convict can never be rehabilitated and start afresh. De novo denied.