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Wednesday, February 03, 2010

Why is the AG's Chambers refusing to release evidence?

The refusal by the AG's Chambers to release some evidence requested by the defence team in the Sodomy 2 trial - and the consequent refusal by the Court of Appeal and the Federal Court to order the release of such evidence - brings to the fore questions pertaining to the right to a fair trial, degree of professionalism of the prosecution team and the administration of criminal justice in Malaysia.

Many years ago I was a part of the defence team in a Criminal breach of trust case involving the Managing Director of a government-linked company. A part of the prosecution's case was that my client was guilty of CBT because he authorised certain payments to be made to a foreign company without the sanction of the Board of Directors. Now, it does not take a brilliant lawyer to tell you that in such a case, all the minutes of  board meetings held and board resolutions made around the same time as the alleged crime would be relevant to the proceedings. If any of the minutes or resolutions showed that the board of directors had in fact approved the payment, than the prosecution's case would fall.

However, I had a problem. All the board papers had been seized by the authorities and were in the possession of the prosecution. My client did not have a copy. I therefore requested the prosecution to release copies of the board papers in order to enable me to prepare my defence. Of course, my request was not met with any kind of positive response. I then applied to the Court. The prosecution then relented in the middle of the trial. They agreed to bring the original copies to the Court and allow my team to inspect them and make copies. However the whole process was to take place in Court!

Imagine how difficult it was. This was a large government-linked company. It's board papers were contained in 2 volume of hard-cover register which ran into hundreds of pages. And we had to read through them in one afternoon in Court and make copies of the relevant pages.

That Ladies and Gentlemen, is how terribly disadvantaged a defence could be in every criminal case in Malaysia. Just imagine this. The aleged crime took place a long time ago. Memory fades and blurs. Witnesses are nowhere to be found. Documents have been seized from day one of the investigation. The defence team has to start with almost nothing save for the client's memory. If we were lucky, the client would have some notes or copies of some documents. And we will have to do with those. In the meantime, a 20 year jail sentence will be hanging over our client's head. Sometimes even a death sentence!

The concept of fundamental justice essentially consists of two principles. They are encapsulated by two Latin maxims, namely, "audi alteram partem" and "nemo judex in causa sua". The former simply means "lets hear the other side" or in legal term, the right to a fair hearing or trial. The latter literally means "no one should be the judge in his own cause" which, in day to day language, simply means that a person who has an interest in a case should not be the Judge in that case.  (This latter maxim is not relevant to the topic at hand and will therefore not be discussed further.)

The right to a fair trial essentially requires that any accused be made known the offence(s) which he is being charged for. He then must be given the chance to hear all the evidence adduced against him. He should also have the chance to challenge the veracity, truthfulness and accuracy of those evidence. Ultimately, he must be given the chance to tell his side of the story by presenting all the evidence available to substantiate or prove his defence. If the accused is somehow prevented by the Court, prosecution or by any party at all from presenting his side of the story in full - subject to relevancy of course - then he cannot be said to have been given a fair trial. Fundamental justice, in that event, is not accorded to the accused. That trial is, to borrow the American term, a mistrial.

The question which will obviously arise is this. What will happen if some or all of the evidence which is or are relevant to the defence are in the possession of the prosecution and the prosecution is refusing to release them to the defence? How then would the accused be able to present his side of the story with all available evidence? Can the Court then make a fully considered decision as the story presented to the Court by the accused is not complete?

All of us have, in one way or other, heard of the peril of suppression of evidence by the prosecution or investigating team. The most famous case would be the Guildford Four case where four Irishmen were wrongly convicted for complicity in a series of pub bombings in Guildford, England. They spent 15 years in prison together with the father of one of them, who died in prison. That is the result of police complicity in suppressing evidence as well as manufacturing evidence. It is abhorrent. Fifteen years of confinement and a death in prison. Just imagine the scale of injustice in that case.

In Australia, Andrew Mallard was convicted of murder and was sentenced to life imprisonment. He served 11 years of that sentence and was later released when it was discovered that material evidence were suppressed by the prosecution during his trial. Among the evidence being suppressed were:

  • the fact that the police had conducted an experiment where the supposed murder weapon was used  to strike a pig's head was concealed. That experiment showed injuries which were "dissimilar" than that which were suffered by the victim.
  • two pages from a report which concluded that the salt content in Mallard's shirt was not consistent with his shirt being immersed in a salt water river (he was said to have immersed his shirt in that river) was suppressed by the prosecution.
  • although he was said to have worn a particular cap on the day of the murder, the evidence of a witness who saw that particular cap in Mallard's residence at or around the time of murder was not disclosed by the prosecution.
  • sketches by a witness which showed a different person at the crime scene was not disclosed.
Those were but some of the evidence which would, if disclosed, establish Mallard's defence. However they were suppressed by the prosecution. The result is a totally wrong conviction. Mallard lost 11 years of his liberty. He was offered A$3.25 million as compensation. What is 3.25 million compared to 11 years of personal freedom and liberty? How does one fully compensate lost of freedom?

In Malaysia, pursuant to section 51A of the Criminal Procedure Code, the prosecutor shall, before the trial deliver the followings to the defence team:

  • the police report
  • a copy of any document which will be tendered by the prosecution as eveidence
  • any written statement of facts which is favourable to the defence of the accused.
However there is a qualification. The prosecutor, it is provided, shall not release the statement favourable to the defence of the accused if its supply would be "contrary to public interest".

That qualification has been the subject of abuse and misapplication by the prosecution. In the ordinary scheme of things, that qualification would only apply if the release of such statement could endanger a witness' life, for example. Or it could threaten national security. Or it could be used by the accused for any other purpose than to defend himself such that his action would be against public interest. That qualification, in my opinion should be applied with absolutely the highest degree of circumspection by the Court. The public interest must be weighed against the inalienable right of the accused to a fair trial and to ensure fundamental justice is achieved.

Lets see the evidence which the defence is asking for in Sodomy 2. They are:

  • copies of CCTV recordings taken at the guardhouse of the relevant condominium from a certain date to the date of the alleged crime.
  • witness statements of the victim.
  • chemist notes on certain analysis of certain samples.
  • medical reports which apparently show that there was no penetration.
The first and last evidence would surely be favourable to the defence and therefore relevant evidence which the accused should be allowed to present as a part of his side of the story. The Court cannot be said to be in the position to make a fair and just decision without looking at those evidence. They should, without doubt, be released by the prosecution. Regarding the CCTV clips, if it is shown in the clips that the accused did not prior to the time of the alleged offence enter the condominium, then surely it is relevant to the his defence. The position on the medical reports is obvious that it does not even warrant a mention here.

The second evidence above is not relevant to the defence. The defence is not entitled to it. Whatever the victim has said to the police is not relevant to the accused's side of the story. It can only be used by the defence to show inconsistency between what the victim said in Court orally and what he said in the statement. However, at this stage of the proceeding, it cannot be presumed that such inconsistency would take place. Whatever it is, the inconsistency by the victim, if any, does not go towards establishing the accused's defence as much as it goes towards the victim's credibility. That accused, even without the statement, would have the chance of testing the victim's credibility during cross-examination. I don't think the defence should be entitled to this statement on the basis of relevancy alone.

Be that as it may, if the prosecution planned to tender this statement as part of its evidence, then the defence would be entitled to a copy of it under the second limb of section 51A as stated above. The medical and chemist reports must also be given to the defence for the same reason.

I am surprised at the argument that the defence was going on a fishing expedition in wanting to have the evidence referred to above. How could it be said as such when the production of such evidence could establish a defence or destroy the prosecution's case? If indeed the evidence tend to establish the prosecution's case, then the prosecution has  nothing to hide and be afraid of. Nothing could change the documents or what is being said in the documents even if they are released to the accused. The attitude taken by the prosecution in Sodomy 2 is almost absurd considering that it even refused to release the police report to the defence until a the defence had to make a loud noise about it!

If, on the other hand, those evidence would tend to establish a defence, the concept of fundamental justice and the  right of the accused to a fair trial demand that those evidence be released to him forthwith.

The international community is already observing this sordid affair of charging the leader of the opposition for sodomy. The absolute incredulity is complete when it is known that sodomy takes place in abundance in a certain part of our capital, Kuala Lumpur, each hour of the night and probably even the day too and yet there is absolutely no effort to arrest the perpetrator of this offence. That this totally private act is an offence in itself is a cause for scornful remark by jurists and observers. In our charge for development, it is disappointing to note that the government will dispatch no less than the Solicitor General 2 plus a host of assistants to handle this wholly trivial charge. However, I suppose, the prerogative to charge any person for offences lies with the Attorney General and I shall make no question as to his wisdom for choosing to pursue this charge.

In the United Kingdom, the test for disclosure of evidence is encapsulated in a simple sentence, uttered in the House of Lords in the case of R v H and C [2004] 2 AC 134, at paragraph 35:

"If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it."

So, we should ask, would  those material listed above weaken the prosecution case or strengthen the defence case? If they don't then no discloure should be made. If they however do, they should be disclosed. That is the hallmark of fair play and fair trial.  It is also the hallmark of the highest degree of professionalism on the part of the prosecution. It is like the prosecution is saying, "here is our case, and here is all the evidence, we have nothing to hide and we believe we will still win." The current attitude in suppressing evidence with the hope of catching the defence by surprise is a conduct unbecoming of a responsible and credible prosecution. This conduct is akin  to the conduct of our traffic policemen hiding or camouflaging themselves by the side of the highway hoping to catch speedsters breaking the law without first realising that the object should be prevention rather than punishment of crimes. I find it laughable to say the very least.

Perhaps it is time to change our law regarding disclosure. I would suggest that the law be amended in line with the Criminal Procedure Rules in the UK where the burden is on the prosecution to satisfy the Court that a certain documents ought not to be released to the accused instead of the other way round. Under such rules, the prosecution must serve on the defence a list of evidence which it does not want to disclose and state the reason why it thinks that those evidence should not be released on public interest ground. He must then satisfy the Court as such.

I remember Tan Sri Gani Patail, the Honourable Attorney General having said that it was his aim that the AG's Chambers would conform to the highest standard of prosecution under  his stewardship. If I am not mistaken, as part of that initiative he even directed that confession of the accused shall not be used in any criminal case without his approval. I am sure he would agree with me that the highest degree of professionalism would entail a full and complete disclosure of evidence to the accused without much problem unless public interest dictates otherwise.

It would be good if the UK Attorney General's Guidelines on disclosure could also be implemented here. Among others, the guidelines say:

"Guideline 13: Prosecutors must do all that they can to facilitate proper disclosure, as part of their personal and professional responsibility to act fairly and impartially, in the interest of justice."

"Guideline 20: In deciding what material to be disclosed, prosecutors should resolve any doubt they may have in favour of disclosure."

"Guideline 21: If prosecutors are satisfied that a fair trial cannot take place because of a failure to disclose which cannot or will not be remedied, they must not continue with the case."

It should be noted that such is the level of prosecution integrity and professionalism in the UK that the emphasis is not on winning all prosecutions but rather "personal and professional responsibility to act fairly and impartially in the interest of justice." Guideline 20 speaks volume of the aim to achieve fairness and justice that in the event there is any doubt as to whether a piece of evidence should be disclosed or otherwise, such doubt should be resolved by disclosing the evidence rather than withholding it.

The AG Chambers should be reminded that its duty is not to charge at every possible opportunity and win  every prosecution by hook or by crook. Its duty is to act professionally and impartially, in the interest of justice.






58 comments:

patrickteoh said...

......right to a fair trial, degree of professionalism of the prosecution team and the administration of criminal justice in Malaysia......??????

I think we should get out a bit more, Art:-) hahahaha...

But great article. As usual Thanks for sharing.

salahtaip said...

This is the reason why I always tell my fellow friends that they should not shy away from blogs with lengthy articles. We'll never know what kinda treasure that we may stumble upon.

Thanks, Mr. Art.

ygbenor said...

As a layman on law, you have written well for us to understand.Thank you.I like the example of the traffic police catching offenders which by right they should educate in prevention.Thank you.

Fahri said...

Dear Art, Spot on and an excellent assessment of the lack of bona fides on the part of our AG's Chambers in their prosecution of cases, and not just the political ones. It is clear that either the Attorney General nor some of our judges do not comprehend some of the most basic elements to a criminal trial, or that they do, but have an interest in pretending they do not. Neither scenario bodes well for the flourishing of justice in this country.

DeLionKing said...

Its duty is to act professionally and impartially, in the interest of justice.

If only, if only...

Great article. Thank you.

Anonymous said...

Dear Art,

Thanks for this great article. May I have your permission to post it verbatim at my Multiply and Facebook profiles? Btw am one of your contacts at Fb.

Philip

PRAY,IT WORKS. joe's blog said...

What justice? The dumbos in the AG's chambers need to win by fair means or foul. They do not have the quality to win by fair means, so play foul.Its their cari makan, man.

Rockstar Intellectual said...

Nicely done bro.

Here's another long blog post which I think is required reading.

This one and yours Art are the coolest ones that Ive read lately.

Iron Butterfly said...

excellently written.

Anonymous said...

Dear Art,
Thank you for the enlightening article.
CE

walk_on_water said...

The issue is not so much what the judge should have done but what to do now that the judge has decided not to allow disclosure of a crucial piece of evidence said to be inculpatory at the pre-trial stage.

How has the judge's decision prejudiced the defense? Can it not be remedied by the granting of adjournments during trial to allow time for the defense to study the material said to be incriminating?

magellan said...

an excellent article, if any of the UMNO lawyers were half as intelligent as you.....uhh! I guess then they would not be in UMNO today.

Anonymous said...

another kangaroo court.

who fabricated the evidence in the first sodomy trial? who was the prosecutor and investigating police officer. because of their role, they were promoted to the present position.

look back, its Mamak at work again.

the irrelevant judge may have gone to see his maker, but they are always others dying to fill the position for glory and money.

Anonymous said...

your english is too susah for them lah !

stella said...

transparency is not a vocab in their dictionary.

anyway, thanks for the informative piece, it gives me the clue why some people don't want to sign of approval paper.... hahahaha

Anonymous said...

Thanks man, another masterpiece from you.
I religiously visit your blog everyday looking forward for another posting of a great write-up.

Please keep on writing.

IsOn said...

Very enlightening article. Thanks.

art harun said...

Philip,

I have no problem in you reposting it with an acknowledgment of my authorship.

Thanks.

Justin said...

Kangaroo court.

-noun
1. a self-appointed or mob-operated tribunal that disregards or parodies existing principles of law or human rights, esp. one in a frontier area or among criminals in prison.
2. any crudely or irregularly operated court, esp. one so controlled as to render a fair trial impossible.

Anonymous said...

Since when did this AG show his professionalism or his fairness to Anwar? He is there to protect UMNO and its leaders.
This guy is a scumbag waiting to be vilified and spat on even in death - as it happened to Augustine Paul.

teo siew chin said...

Dear Art - you have so succinctly put it that it should be the whole of our judicial system that should be put on trial and not the accused!

gravedigger said...

In retrospect, the Malaysian judicial system's neutrality has been tainted since 1980's and the "justice for all" concept leaves much to be desired. What can we Malaysians hope for now and in the future? Where do we go now to get justice and fairness? I am very worried for Malaysians and its future generation should these atrocities persists unchecked. Why are the legal community and those in judicial system that upholds their professionalism and bound by creed decides to be quiet?
Alas! Everyone is looking out for their own rice bowl and decides to become ignorant!! As they say "Ignorance is Bliss!!!

IbnAbdHalim said...

Thanks for the article Art, but will justice take its course with the present setup?

IbnAbdHalim said...
This comment has been removed by the author.
telur dua said...

I would highly recommend Art for AG. Heck, if I have the power I would even make him CJ.

That should immediately lift Malaysia a few rungs up the World Standings.

walk_on_water said...

Art,

How about an answer to my question. Or do you think it doesn't merit your attention?

Anonymous said...

Hmm!! I often wonder, if I am a foreigner signing a multi-million ringgit business contract with a Malaysian counterparty, would I be comfortable for the contract to be subjected to the jurisdiction of the Malaysian courts or Malaysian laws for that matter?

art harun said...

Walk on water,

Sorry, but I did not get your question.

Anonymous said...

Great article. Keep it coming especially for layman like us. Justice and fair play seems a very distance terms in Malaysia

A true Malaysian said...

Art,

I am proud to have you as a fellow Malaysian.

Prosecution in this case give people the impression that, "by hook or by crook", they need to nail Anwar at all cost.

I learned from this write-up of yours that both sides should work professionally towards achieving the truth, nothing but the truth.

But, what if the prosecution team up with the 'victim' and authorities involved in fabricating evidence towards nailing of the defendant? It is more looked like that when the AG's Chambers refusing to release evidence.

Thanks again for sharing this article with us. Cheers.

Anonymous said...

Art,

Well written and articulated. Hope there is more just and fair minded man like you. Alas, however we do get scums in our AG Chmabers and Judiciary.

No wonder, Malaysians have no confidence in our AG's Office and the Judiciary.

This case where alleged fabrication had taken place in all arms of the government i.e Police and Prosecution could only happen in Malaysia and that is why foreign investors have no confidence in us.

Anonymous said...

Dear art, very usefull write up. thanks. will u able to write in bahasa so that people who is not good in english can also benefit from it. thanks

Anonymous said...

My Malay brothers and sisters in Islam have demonstrated an acute sense for injustice even the kind of injustice which determines the a degree of wickedness which is an affront to GOD his Prophets and Islam itself. As Malays we have a serious indictment which places Islam on trial more than it have tried humanity itself.

Anonymous said...

As usual Art, great article, great insight. TQ for sharing

Taiping Joo said...

Art, great article. Keep it up.

eiling lim said...

I had a feeling that the on-going trials are not going to be very fair (as usual). Perhaps it's all a drama - an overplayed drama to satisfy citizens like us.

PM said...

I am no lawyer, but enjoyed reading. Very informative,thanks.

walk_on_water said...

Art,

Here's what I wrote earlier:

The issue is not so much what the judge should have done but what to do now that the judge has decided not to allow disclosure of a crucial piece of evidence said to be inculpatory at the pre-trial stage.

How has the judge's decision prejudiced the defense? Can it not be remedied by the granting of adjournments during trial to allow time for the defense to study the material said to be incriminating?

3 February 2010 22:21

LAT said...

In this dark ages of blatant injustice, all rigth thinking ones in this land have lost all our hope in Legislative, Executive and Judiciary arms of our beloved land. But the only comfort we have now are knowing that we have ARTiculation and the likes bloggers to sow the seed of justice, fairness & and to uphold what is righteous. Everything has its time under the heaven, even we this generation may not reap what these Mr.Righteous sow but our future generations to come will surely received the harvest, this beloved land belongs to "Kami Semua Anak Bangsa Malatsia!

art harun said...

Dear Walk on water,

As things are now, the defence has made an application to the high court for those evidence. The High Court allowed that application. The Court of Appeal has however reversed that decision. The defence wanted to appeal to the Federal Court but unfortunately, the Federal Court disallowed the defence from appealing.

So as it stands, there is a binding and final decision which says the defence is not entitled to those evidence.

There is not reason to apply for a stay anymore as it has been decided that the defence is not entitled to those evidence.

As for prejudice, surely the defence is prejudiced if some of the evidence are in their favour. But legally the defence has exhausted all its remedy and they lost.

If Anwar is convicted and let's say 10 years from now it is discovered by miracle that some of those evidence, if released, would have been in favour of the defence, the Court may, at that time, set aside the conviction, just like on the Guildford 4 or Mallard's case.

That is all that can be done.

You tell me whether justice is done under those circumstances Bro.

walk_on_water said...

Art,

Thanks for answering.

Under discovery, both sides are supposed to reveal whatever evidence they have including evidence that is exculpatory and not just evidence they intend to rely on during trial. Cases are often reversed based on evidence held say in police possession though exculpatory.

I asked how the non-disclosure of inculpatory evidence at the pre-trial stage would permanently prejudice the case for the defense. The defense could always ask for adjournment to examine the evidence. If it is over DNA evidence that has degenerated over time and you need to verify the age because it is relevant to the issue of conspiracy, the judge will have to grant the adjournment.

Tell me if I am wrong.

walk_on_water said...

Art,

I forgot this is a criminal trial. In criminal trials there is no common law right to disclosure. This can lead to miscarriage of justice. Yes.

What can defense do to counter that?

Are they planning to put Anwar away for a few years and then see him released when the case is reversed.

Ridiculous and unlikely to happen but just a thought.

Your thoughts?

walk_on_water said...

In the American jurisdiction. prosecutors have an affirmative duty as a matter of constitutional law, to disclose all known exculpatory evidence to the accused in a criminal proceedings. If the prosecutor suppresses evidence favorable to the accused, it violates due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution: as per the U.S. Supreme Court in Brady v. Maryland (1963).

What says our Malaysian Federal Constitution?

art harun said...

Walk on Water,

In civil cases, there is a really exhaustive procedure for discovery. Parties have to affirm under oath what documents they have and what documents they used to have. Then copies will have to be given to the opponent. We even exchange witness statement before trial.

It is therefore odd that in criminal cases, discovery is almost non-existent. Even section 51A that I referred to was just inserted some years ago. Before that the situation was even worse!

The Federal Constitution does not have a guarantee as per the American Consti. Our Consti only says that a person shall not be deprived of his liberty save in accordance with the law. And the law relating to discovery is as stated in my article.

So, in sodomy 2, as and when the DNA or medical reports are tendered by the prosecution as evidence, I supposed the defence could ask for time to verify them or to ask for their expert to opine on them. But by that time, such opinion will be second hand as the expert is just giving his/her opinion on the prosecution's expert opinion.

I find this terribly unfair and unjust.

walk_on_water said...

Any practice directions on the issue?

art harun said...

WoW,

Not that I know of. It's all left to the AG's discretion. And even when we go to Court, they would argue we are on a great fishing expedition. And guess what, like in the Anwar's case, the court agrees!!!

Anonymous said...

Perancangan DAP disebalik pembelaan Anwar oleh Karpal Singh ?

walk_on_water said...

I think the lawyers should fight the case with appeal in their mind.

Who are the justices on the country's Court of Appeal and what can be said about their judicial philosophy. Who are the liberal judges and who conservative?

Thanks.

art harun said...

WoW,

E mail me. We can have a private discussion on this.

Cheers.

walk_on_water said...

Art,

Let's have it here so readers could benefit from the exchanges :)

Now Karpal has accused the trial judge of being bias as it is within his right to do. But the judge is standing his ground.

A motion for mistrial by the defense is imminent or else it would prejudice defense right later in the appeal as anything not objected to is deemed waived. I'm not a trial lawyer. Heck! I'm not even a lawyer. Just a wannabe.

This judge is setting up for more such motions. In fact I think hearings will be punctuated with motions for a mistrial. Usually I am told the conduct of hearings by prosecutor would trigger such motions and not the judge.

walk_on_water said...

So an application for the judge to recuse himself from the case would be in order? Which court would hear such application?

ajoyly said...

If there is no integrity and fairness, then justice is lost.

Geronimo said...

If English is a no-no here, do you think for one moment these dumbos would understand Latin, an ancient Roman language? Quite frankly, I now fear for my country. We do not have laws here anymore. The laws that we have have been so twisted and bent that I don't actually recognise them anymore, and it is at the whims and fancies to protect the people in power. If only we know how to have our cases heard at the ICJ instead. Can you imagine during the recent Federal Court hearing on the Perak MB vs MB case, no bookies or punters were even prepared to take bets because they already knew which side would win the case. Sad isn't it? The Palace of Justice should be renamed the "Palace of Shame".

Volker said...

Hallo, Ich haben eben Eure Internetseite besucht und nutzen sogleich die Gelegenheit,euch auch einen Gruß aus Deutschland in Eurem Gästebuch zu hinterlassen. P.S. Kommt uns doch auch mal besuchen

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Schöne Grüße aus Bayern

ali mezdeği said...

your english is too susah for them lah ! Göğüs Estetiği