Bill Grimshaw of Reprieve Australia outlines Malaysia’s record on fair trials and the right to disclosure — how does it hold up to the standards of justice?
Reprieve Australia is a not-for-profit organisation committed to the abolition of the death penalty worldwide. One of the things Reprieve Australia does is organise placements for volunteers whose role is to assist local lawyers as they defend accused people facing the death penalty. Carrie O’Shea and I are Australian criminal defence lawyers and Reprieve Australia volunteers. We are currently in KL doing some legal research we hope will be used to overcome or limit Malaysia’s use of the death penalty.
Our research on the death penalty has led us to the unhappy subject of the Malaysian approach to disclosure in criminal trials. Disclosure of the prosecution case to the defence is one of the hallmarks of a fair trial. In Malaysia, as well as the rest of the common law world, a criminal trial is an adversarial proceeding in which one of the adversaries – the State – has far greater investigative resources and powers than its opponent, the accused. In order to be fairly tried, the accused must be given notice or disclosure of the case against him (it’s usually a him), and be given proper opportunity to prepare a defence to it. This idea is known as the ‘equality of arms’ principle.
So does Malaysian law allow for proper disclosure in criminal trials? The polite answer is: There is much room for improvement. The blunt answer is: Absolutely not. And yes, this means people are being sent to the gallows without a fair trial.
A glance at the relevant law might give the impression that there’s nothing to worry about. After all, in a recent case on disclosure, the Federal Court contained the following reassuring words:
“The principle of a fair trial is sacrosanct in all civilised legal jurisdictions. It is a principle of universal application. In Malaysia the principle of fair trial and fairness have been long established and recognised in several decisions.”
So what’s the problem? The courts have said that everyone gets a fair trial, so surely they do. If only that were true. Sadly, the very same cases in which the “sacrosanct” right to a fair trial is said to have been “long-established” maintain what seems to be a more dearly cherished rule:
“[The accused] is not entitled to know by what means the prosecution proposes to prove the facts underlying the charges he faces.”
These startling words should not be found outside a policeman’s wildest law-reform fantasies. They are tantamount to saying, “The accused is not entitled to a fair trial”. So which judicial statement better reflects the Malaysian position on disclosure and the right to a fair trial? Is a fair trial really sacrosanct? Or when courts are asked to apply this principle, are they instead guided by the principle of non-disclosure of the prosecution case? I’m afraid a little scrutiny of the law shows that when it comes to disclosure, the first lofty statement about sacrosanct fair trials is merely used to distract from the true position: trial by ambush.
Trial by ambush is the opposite of a fair trial. It involves the defence discovering the prosecution case only as it unfolds in court. Although Malaysian criminal law makes some provision for disclosure of the prosecution case, Malaysian trials allow prosecutors too great a measure of surprise.
Take the example of disclosure of prosecution witness statements. All common law countries whose disclosure laws our research has examined take for granted that prosecution witness statements are to be provided to an accused well before the trial. In Malaysia it seems these are never available, as of right, before trial; and strict rules govern their availability during trial.
The 1979 and 1980 cases of Husdi v Public Prosecutor still govern the disclosure of prosecution witness statements. In the first case, the Court firmly rejected the defence’s attempt to obtain copies of prosecution witness statements. Syed Othman FJ justified this extraordinary conclusion by opining that the prosecution and defence are responsible for the preparation of their own respective cases, therefore the defence can always obtain their own statements from prosecution witnesses. His Lordship gave no guidance on how to do this without the prosecution supplying a witness list and the witnesses’ contact details. His Lordship went on to say that in any event, prosecution witness statements are absolutely privileged. Unfortunately, neither his Lordship nor any later judgment upholding his reasoning identifies the privilege invoked.
On appeal to the Federal Court, the defence sought a copy of the witness statements in order to potentially to impeach the credit of prosecution witnesses. In its 1980 decision, the Federal Court decided that an accused is not entitled to request copies of witness statements directly from the prosecutor. Instead, the defence counsel wishing to attack the credit of a prosecution witness by recourse to a prior inconsistent written statement must wait until the witness has given his or her evidence orally. Only then may the defence counsel apply to the trial judge for a copy of the statement, and the trial judge should only grant the application after comparing the witness’s statement with their oral evidence. Only if the judge finds a serious discrepancy between the two versions will defence be entitled to the written statement for the purpose of cross-examining on credit.
The Husdi approach leaves disclosure of witness statements to the very last minute and significantly narrows its availability. It seems to require the defence counsel to have a clairvoyant power to divine inconsistencies between oral evidence and as yet unseen prior written statements. It also invites the trial judge, whose function includes that of tribunal of fact, to enter the fray by being responsible for anticipating lines of cross-examination the defence might pursue.
Also, the idea that defence can get statements directly from prosecution witnesses is completely incompatible with one of the main reasons advanced for the existing rules — the risk that the accused will interfere with prosecution witnesses.
The defence should not be denied access to witness statements because of some speculative risk of interference or intimidation. In the words of SUHAKAM’s 2005 report on the right to a fair and expeditious trial:
“… the objective of a criminal trial is to search for truth, to convict the guilty and acquit the innocent. As regards the danger of witness tampering, whilst it cannot be discounted that it may be a real danger, it rarely occurs and if it does, the subsisting legal mechanics are sufficient to deal with the situation.”
There should certainly not be a blanket rule against disclosure of statements. Where there is actual evidence of a risk of witness tampering, the witnesses’ interests can be adequately protected by less drastic measures such as redacting their name or providing them with police protection.
Until the Malaysian law on criminal disclosure is vastly improved, there will continue to be inequality of arms and at best the right to only a fair-ish trial.
 Per Mohd Zawawi JC in Public Prosecutor v Mohd Fazil bin Awaludin  8 MLJ 579 endorsed by the Federal Court in Dato’ Seri Anwar bin Ibrahim v Public Prosecutor  2 MLJ 312
 Per Hepworth J in Public Prosecutor v Teoh Choon Teck  1 MLJ 34, cited with approval in Dato’ Seri Anwar bin Ibrahim v Public Prosecutor  2 MLJ 312
 Husdi v Public Prosecutor  2 MLJ 304 & Husdi v Public Prosecutor  2 MLJ 80
Featured image from Free Malaysia Today