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:
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:
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:
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  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 state the reason why it thinks that a certain evidence should not be released on public interest ground. He must then satasfy the Court as such.
I remember Tan Sri Gani Patail, the Honourable Attorney General having said that it was his aim that the AG Chamber 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 the prosecution case 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 resoved 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.