Chapter 4 - Disclosure in Criminal Proceedings

Question 1

DISCLOSURE IN CRIMINAL PROCEEDINGS

Overview

Answer 1

1) Pre-trial disclosure - S.51A
2) Summons or order to produce - S.51
3) Disclosure of defence - S.62 MACCA

Question 2

PRE-TRIAL DISCLOSURE

Overview

Answer 2

1) The law & scope
2) Effect of non-compliance
3) Whether CCTV is a “document” within S.51A

Question 3

PRE-TRIAL DISCLOSURE

The law & scope

Answer 3

1) The law:
- S.51A
2) Scope of S.51A - PP v DSAI (FC, 2010):

• S.51: gives court discretion to allow & make order for discovery in specific instances.
• S.51A: imposes on obligation upon prosecution to supply certain documents & materials.
• S.51A cannot be used to interpret S.51.

Question 4

PRE-TRIAL DISCLOSURE

Effect of non-compliance

Answer 4

1) Whether mandatory - Benjamin William Hawkes v PP:

• The word “shall” by itself would not make a provision mandatory;
• It depends on the intention of Legislature by looking at the whole scope of the statute.
• “shall” in S.51A must be construed to enable & assist in the administration of justice rather than to impede it.

2) Effect of non-compliance with S.51A - See Kek Chuan v PP:

• General rule: Non-compliance is not fatal & does not make the trial a nullity.
  Prosecution is not barred from tendering those documents.
• Exceptions:
• When the accused is prejudiced.
• When the non-compliance or non-delivery of the documents is material.

Question 5

PRE-TRIAL DISCLOSURE

Whether CCTV is a document

Answer 5

Benjamin William Hawkes:

• CCTV footage did not fall within the ambit of “documents” in S.51A.
• There is no duty on prosecution to deliver the footage;
• Failure to deliver will not cause irreparable prejudice.

Question 6

SUMMONS OR ORDER TO PRODUCE

Overview

Answer 6

1) The law & scope
2) Exercise of discretion - general
3) Exercise of discretion - against accused before trial
4) Exercise of discretion - against accused during trial
5) Whether order is appealable
6) Appellate intervention of the order
7) Non-compliance with summons issued
8) Relevant documents for discovery
9) Recent application
10) Access to 112 statements via S.51

Question 7

SUMMONS OR ORDER TO PRODUCE

The law & scope

Answer 7

S.51

Question 8

SUMMONS OR ORDER TO PRODUCE

Exercise of discretion - general

Answer 8

1) Test to order for discovery - Raymond Chia v PP:
- It must be desirable & necessary to produce the documents before court can make order for discovery.
2) Factors to consider - Raymond Chia v PP:

• Justice of the case;
• At what stage of the proceedings the application for discovery was made.
• Whether the accused applying for an order of discovery has already been given sufficient notice of the charge against him.

Question 9

SUMMONS OR ORDER TO PRODUCE

Exercise of discretion - against accused before trial

Answer 9

Raymond Chia v PP:

• If application is made before trial, the documents or materials to be supplies are confined to those only specified & referred to in the charge.

Question 10

SUMMONS OR ORDER TO PRODUCE

Exercise of discretion - against accused during trial

Answer 10

Raymond Chia v PP:

• Meaning of course of trial:
  trial proper has commenced & evidence has been led.
  not the stage where the charge is read.
• trial must have been in progress.
• Documents sought must be relevant & rules of relevancy must be strictly followed.

Question 11

SUMMONS OR ORDER TO PRODUCE

Whether order is appealable

Answer 11

PP v Raymond Chia:

• Order made under S.51 is appealable.

Question 12

SUMMONS OR ORDER TO PRODUCE

Appellate intervention of the order

Answer 12

PP v DSAI:

General rule:
- Appellate court should not disturb the exercise of discretion.

Exception:

• If the exercise of discretion is based on the wrong principle of law, appellate court may intervene.

Question 13

SUMMONS OR ORDER TO PRODUCE

Non-compliance with summons issued

Answer 13

PP v Au She Cun:

• Non-compliance does not entitle the court to grant DNAA;
• It may warrant contempt proceedings.
• Besides that, a search warrant under S.54(1)(a) may be issued; or
• A charge under S.175 PC may be pursued.

Question 14

SUMMONS OR ORDER TO PRODUCE

Relevant documents for discovery

Answer 14

1) S.112 statements - Haji Abdul Ghani Ishak v PP:

• Statements made by the accused or witnesses are public documents;
• Accused is entitled to be supplied with the docs.
• H/ever, an accused is not entitled to statement made by co-accused.

cf. Huzir bin Hassan v Ketua Polis Daerah JB:
- Since uncautioned statement is irrelevant in evidence, there is no necessity to supply the accused with the document.
cf. Husdi v PP:

• the application was made prior to the commencement of the trial;
• a police statement is absolutely privileged & there is no right to inspect.
• it is undesirable for the prosecution to supply the defence with police statements, as there is a real danger of tampering with the witnesses.

cf. Najib Razak v PP:

• defence had applied to obtain the recorded statement of a witness before the commencement of the trial.
• The Court of Appeal held that the document could not be given to the defence at the pre-trial stage.

2) FIR - Anthony Gomez v Ketua Polis Daerah Kuantan:

• under the common law the appellant has the right to FIR as he is a person interested in it and inspection is necessary for the protection of his interest.
• The first information report is admissible in evidence in the criminal trial under S.157 EA and therefore the appellant or his counsel should be supplied with a copy.

Question 15

SUMMONS OR ORDER TO PRODUCE

Recent application

CA, 2019

Answer 15

Siti Aisyah v PP:

• Application is made at the end of prosecution case;
• Documents sought for is witnesses statement under S.112.
• Based on what was disclosed during prosecution case, 112 statement is certainly necessary for the defence to advance their case.
• Therefore, witness statements recorded under s. 112 are not privileged from disclosure and must be furnished to the accused if so requested under s. 51 of the Code.

Question 16

SUMMONS OR ORDER TO PRODUCE

Recent application

HC, 2020

Answer 16

Mohammad Hezat A Hamed & Ors v PP:

1) Submission by applicant:

• The cases of Husdi v. PP and Dato’ Sri Mohd Najib Abdul Razak v. PP could be distinguished from the instant case.
• In the instant case, the application was made at the close of the prosecution case.
• Court should follow Siti Aisyah v PP.

2) Held:

• In the case of Siti Aisyah v. PP, the application for the section 112 statement of the witness was made after the accused was called to enter her defence.
• In this case, the decision at end of the prosecution case had yet to be delivered.
• The prosecution had only closed their case and offered the witness to the defence.
• It would therefore appear, based on the case of Siti Aisyah v. PP (supra) that this application has been prematurely filed, that is before defence is called.
• Application is also wrongly made under S.32 EA;
• Application dismissed.

Question 17

SUMMONS OR ORDER TO PRODUCE

Access to S.112 statements via S.51

Answer 17

1) Can be supplied as it is a public document - Haji Abdul Ghani Ishak;
2) Cannot be supplied as it is privileged & there is a danger of tampering the witness - Husdi v PP
3) Cannot be supplied pre-trial, followed Husdi v PP - Najib Razak v PP
4) Witness statement by co-accused cannot be supplied - Haji Abdul Ghani Ishak v PP
5) When accused is called to enter the defence & it is appear necessary to access the witness statement based on what was disclosed during prosecution case, witness statements recorded under s. 112 are not privileged from disclosure and must be furnished to the accused if so requested under s. 51 of the Code - Siti Aisyah v PP.
6) Cannot access if PF judgment has yet to be delivered - Mohammad Hezat A Hamed v PP (HC, 2020)

Question 18

DISCLOSURE OF DEFENCE UNDER MACCA

Overview

Answer 18

1) The law & scope

2) Whether it is unconstitutional

Question 19

DISCLOSURE OF DEFENCE UNDER MACCA

The law & scope

Answer 19

1) The law:
- S.62
2) Scope:

• Once delivery of documents by prosecution has taken place under S.51A;
• S.62 MACCA dictates the accused to deliver a defence statement before commencement of the trial.
• This statement consist of general terms of the nature of the defence & documents which will be tendered as evidence.

Question 20

DISCLOSURE OF DEFENCE UNDER MACCA

Whether it is unconstitutional

Answer 20

PP v Lim Guan Eng:

• S.62 is not unconstitutional & not in contravention with Art. 5(1) and 8(1) of the Constitution.
• This is so as the burden of proof continues to remain with the prosecution & the accused has the guaranteed right to a fair trial.