Tn Andy\'s Note on Disclosure in criminal proceedings 1 PDF

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Summary

It is prosecution for an offence of rape under section 376 PC. Elements of the offence being; there is a man and woman; who had sexual intercourse; it was by force and without the consent of the woman.The DPP will have the following when he prosecutes: Charge sheet and charge.  Investigation Paper...

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Lecture

Disclosure in criminal proceedings

Criminal Procedure

It is prosecution for an offence of rape under section 376 PC. Elements of the offence being; there is a man and woman; who had sexual intercourse; it was by force and without the consent of the woman. The DPP will have the following when he prosecutes:  Charge sheet and charge.  Investigation Paper which inter alia contain the following information and details: o Police reports – FIR by complainant (victim), arrest report, search and seizure report, other police reports, if any, may be by a family member etc. o Forensic evidence in the form of reports by the doctor (medical report), DNA expert (DNA report), Chemist (Chemist report). o Statement of witnesses under section 112 CPC; statement of accused under section 112 CPC. o Photographs. o Sketch plan and key. o Investigation Diary prepared pursuant to section 119 CPC. o Document Folio containing copies of documentary exhibits.

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Disclosure in criminal proceedings

Criminal Procedure

 DPP prepares his case based on the Investigation Paper (IP), legal literature etc. What then the defense counsel has when he defends his client (accused) in court?  Charge sheet and charge.  Instruction from the accused to him. What does this show?  There will not be a fair trial as the prosecution has more information and documents than the defense.  This in legal parlance means there is no equality of arms.  If this has to persist, it will be a trial by ambush. How is this avoided now?  Introduction of section 51A CPC in the year 2007.  With that introduction, an accused is entitled1 to the following before commencement of trial2: o FIR; o Documents to be tendered by the prosecution to support its case;

1 The AGC has issued a direction to the effect that the requisite documents must be furnished three (3) weeks before the criminal trial commences. 2 Commencement of trial means before the first witness for the prosecution (PW1) testifies in court. Refer to the case of Savarimuthu v PP or Goh Tong v PP.

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Criminal Procedure

o Written statement of favorable facts 3 if it does not offend public interest4. Why give such documents?  To accord accused the right to a fair trial.  For the prosecution not to pursue with the trial of the accused by way of ambush.  There will be equality of arms as both prosecution and defense will have the requisite documents and information in order to pursue with each other’s course of action.  For accused to prepare his defense adequately.  To avoid unnecessary postponements of trial. In the absence of section 51A, when prosecution tenders documentary evidence the defense may request for the case to be stood down or postponed in order to peruse the documents and obtain instructions from accused before cross-examination of prosecution witnesses.  Save time and costs.

3 Example of such facts will include, that the complainant did not suffer any injuries; that the complainant invited the accused to her house; etc. 4 Instances when public interest may be compromised include if 112 statements of witnesses are allowed to be made accessible. Case on point is KhooSiew Bee [1979] 2 MLJ 49; HjGhani bin Ishak [1980] 2 MLJ 196; Huzir bin Hasan [1994] 2 MLJ 385. If allowed access it may lead to intimidation of witnesses. Statement by witnesses is by nature privileged. Another instance is access to arrest report which is a report made in the course of investigation which is inadmissible as evidence in a criminal trial – c.f. case of PP v Roslim bin Harun [1993] 3 CLJ 505.

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Disclosure in criminal proceedings

Criminal Procedure

Mainstay of section 51A:  Right of Access to documents and information is premised on the basis of the accused having tangible interest in the said document and information. Tangible interest is decided to mean accused having a direct interest in the said documents and information. The interest is to prepare his defense adequately to meet the case by the prosecution.  The concept of tangible interest has been judicially discussed and approved in the case of Anthony Gomez v KPD Kuantan [1977] 2 MLJ 24; Husdi [1977] 2 MLJ 304.  Right of Access to and disclosure of documents and information vide section 51A is subject to the other applicable provisions of the CPC. In particular will be section 399 CPC.  Section 399 CPC caters for reception of hearsay evidence of an expert witness without him being physically present in court to testify. The said provision is always referred to as an exception to the rule against hearsay.  The provision requires that the expert report prepared and made by an expert is admissible in court as substitute to his oral testimony. This is subject to the mandatory requirement that if the prosecution wishes to rely on section 399

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CPC; the said expert report shall be served on the accused ten (10) days before commencement of trial5.  On the other hand, if the defense or accused wishes to cross-examine the expert which will necessitate his presence in court, he must give three (3) days’ notice to the prosecution before commencement of trial. This is to enable the prosecution to ensure the expert’s presence6 in court.  By virtue of the strict requirement of section 399 CPC, accused is not entitled to the expert report as of right but subject to the requirements stated in the provision itself. This is clearly illustrated by the case of PP v Ramasami Simmathri & Ors [2002] 4 MLJ 412 and PP v Lim Sooi Boi [2003] 2 MLJ 433.The cases touches on the right of access to post-mortem, expert and chemist reports. SECTION 51 CPC  Application for Summons to produce document/information/material/thing.  Nature of order by court – Production Order.  When an application is made to the court either by the defense against the prosecution or third party or even by the prosecution against the defense or

5 This is to enable the accused to peruse and comb through the report carefully in order to submit on it or to render sufficient notice to the prosecution if the expert is needed for cross-examination. 6 There can be instances where the expert may have left the country for good or attending a course overseas.

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Criminal Procedure

third party, the court will issue a production order if the application made is with basis/merit and meets the requirement of section 51 CPC.  Parallel to that an Investigation officer (IO) may also issue an Order to produce7

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document/information/material/thing believed to be in their possession or power. What will be the requirement to be met by the applicant?  It is the necessity or desirability test.  It is so stated in section 51 CPC that the production of any property or document is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding.  How is this test met?  The case of Teoh Choon Teck [1963] MLJ 34 may be used as a guide. In that case the criterion is laid out wherein an applicant has to show if the said property or document if produced will be able to conform with one, some or all of the purposes herein: o It throws some light on the investigation, trial or other proceeding. o It supplies a link to the chain of evidence. 7 In this regard to be mindful of section 116 CPC wherein an IO will take the bold step to search and seize so as to secure the evidence necessary for the investigation of the case instead of resorting to section 51 CPC as he may hold the view that the order to produce if issued may not be complied with by the accused. This is also with the view to act speedily to avoid dissipation or destruction of relevant, necessary and desirable evidence.

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Disclosure in criminal proceedings

Criminal Procedure

o It supplies some link/connection with the subject matter of the investigation, inquiry or trial. o It unfolds the narrative. o Relevant to the defense. o Dislodges/undermines the prosecution/defense case. o Strengthens the defense/prosecution case.  When an application is made to the court pursuant to section 51 CPC, the court will take into consideration the stage of proceeding at which the said application is made.  If an application is made at the pre-trial stage of proceeding 8, the court will only be able to scrutinize the application in juxtaposition with the charge preferred by the prosecution against the accused. This is so as the court at that point of time is only in possession of the charge sheet and charge and nothing else.

8 The case on point is Raymond Chia [1985] 2 MLJ 436 as well as Datuk Tiah Tee Kian [2002] 1 MLJ 565 wherein in the former the Supreme Court adopted a strict approach to only allow documents as specified in the charge stating it to be a general rule whereas in the latter a liberal approach was adopted by the High Court citing an exception to the general rule laid down by the Supreme Court and ordered disclosure of all documents taken possession by prosecution to the accused due to the complexity of the alleged transactions involved, documents being voluminous and also the fact that the prosecution had conceded that the documents are relevant to the charges preferred by the prosecution.

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Disclosure in criminal proceedings

Criminal Procedure

 However if the application is made during trial9, the court will be in a better and advantageous position to consider the application. This is so as it has the benefit of the evidence adduced by the parties to the trial respectively dependent on the stage of trial, be it prosecution or defense stage. In this regard the court will juxtapose the application made pursuant to section 51 CPC with the charge preferred against the accused, the evidence adduced at the point of time of application and the relevancy, necessity and desirability of the required document/information/material/thing to the fact in issue10 at the trial.  Currently the leading case which encapsulates the law relating to section 51A CPC as well as 51 CPC is the decision of the Federal Court in the case of Dato’ Seri Anwar Ibrahim v PP [2010] 2 MLJ 312.

9 The case on point is the decision of the Singapore High Court in Kulwant v PP [1986] 2 MLJ 10. In fact the advice given by the court is for the accused to apply for disclosure at the defense stage which according to the court is the most appropriate stage. Presumably this is so because the accused will be in a better position to know what he requires which is in the possession and power of the prosecution and relevant to establish his defense in order to dislodge the prosecution case. 10 The fact in issue in a criminal trial is; is there a crime committed? Did the accused commit the crime?

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