Home Civil Society Voices Disclose prosecution evidence, witnesses to defence lawyers before trial

Disclose prosecution evidence, witnesses to defence lawyers before trial

Photograph: The Star

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Malaysians Against Death Penalty and Torture (Madpet) notes that Najib Razak, our former Prime Minister, like everyone else in Malaysia, has the right to be accorded a fair trial.

This includes the right to have all evidence and facts delivered to the accused soon after he or she has been charged to enable the accused the needed time and opportunity to prepare his or her defence.

The prosecution should be interested in the truth and that justice is done, not simply the winning of a case by any means. There should be no delay in pre-trial disclosure obligations, no suppression of evidence or facts, and certainly no ‘surprising’ of the accused at trial at the last minute with previously undisclosed evidence.

In Malaysia, the obligation in written law requiring the prosecution to disclose to the accused relevant facts and evidence to enable the defence time to investigate, verify and even prepare their defence was very late in coming.

After several attempts in courts for the recognition of pre-trial disclosure of evidence, documents and facts as being a fundamental requirement to ensure a fair trial, Parliament amended the law in 2006, inserting a new Section 51A in the Criminal Procedure Code, which now makes pre-trial disclosure by the prosecution obligatory.

Sadly, this new section still has many inadequacies, including the provision which still allows the prosecution to ‘hide’ certain facts that may be favourable to the accused.

The prosecution should submit everything, including all evidence, documents and facts favourable to the accused. This should rightly include all reports and all statements recorded during investigations. Other evidence and information, discovered later, should also be submitted to the accused as soon as possible.

The accused should have the time to do their own investigation into the alleged evidence and witnesses that the prosecution has obtained. The accused also have the right to interview all possible prosecution witnesses before trial and others in their preparation of their defence.

Good defence lawyers will generally not simply go blindly and unprepared to court, and simply wait for the prosecution to submit their evidence, and then try to challenge this evidence and witnesses as they are revealed. Good lawyers would have conducted their own investigations, including of the potential witnesses and evidence the prosecution may be submitting.

Full pre-trial disclosure allows this to be done, as it may reveal flaws in witnesses and evidence presented by the prosecution during trial that would be relevant for the judges in determining the weight that should be given to such evidence.

Many Malaysians may now be angry with what Najib and the previous government did while in power. But this should not affect our uncompromising commitment to justice, rule of law and the right to a fair trial for all.

Pre-trial disclosure requirement still inadequate

Section 51A still is inadequate, as it still does not state clearly the time for the delivery of this material to the accused. All that is stated now is that this delivery must be done “before the commencement of the trial”. This is vague, and as such it could be done even minutes before the trial starts with the calling of the first witness.

Rightly, the material should be submitted as soon as the accused is charged, and after that, for other new evidence, as soon as the prosecution has it.

In Najib’s case, it is most disturbing that these documents were not delivered to the accused soon after he was charged on 4 July 2018, but allegedly only on 8 August 2018. As such, Najib’s defence team may have been prejudiced by this delay of more than a month(Malaysiakini, 8 August 2018).

The documents were also allegedly delivered in compact disk format, which hopefully were coloured copies of the original documents, because just delivering black and white photocopies of original documents in colour will not do. The defence have a right to know whether the prosecution have original documents or mere photocopies.

Previously, these documents would have been delivered as printed bundles, but not in a CD format. Even if delivered in CD format, it may be best that a bundle of documents are provided to the accused, as not all lawyers may have the same version of the computer programs used to create these documents or even printers that will print accurately the documents in the same sizes as the originals.

Section 51A only requires the prosecution to provide some but not all documents

There is now a requirement to provide the first information report (FIR), the report that initiated the investigations. Then, there is an obligation to provide “(b) a copy of any document which would be tendered as part of the evidence for the prosecution;…”. But what about the other documents that may be available which the prosecution will not use during the trial.

In all fairness, all documents should be made available to the accused. This must include all witness statements recorded during the investigations, including reports of all police officers involved in the conduct of the investigations, statements recorded from witnesses, reports of identification parades, all reports of tests conducted, letters and correspondences between the police/prosecutors and governments/institutions during the investigations and other relevant documents.

Section 51A still allows the prosecution to ‘hide’ relevant facts

Section 51A(10)(c) now, states that prosecution must provide “(c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution”, but then Section 51A(2) states: “Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.”

This means favourable facts could simply be hidden from the accused, and may even not be revealed in court. This is grossly unjust to the accused and undermines the right to a fair trial and justice.

The decision of what is “contrary to public interest” seems to be now with the prosecution, when it really should be a decision of the court, after according the right to be heard to both the accused and the prosecution.

What is best is that there is no withholding of facts and evidence when it comes to a criminal trial, where a conviction may result in imprisonment, corporal punishment (whipping) and even the death penalty.

Deciding what is relevant or even “favourable to the accused” may differ from person to person. As such, it is safe for the prosecution to simply disclose not just all facts, but also all documents and evidence to the accused.

Even if something may be considered not relevant by the prosecution, the accused and even the court may consider it relevant. A failure of the prosecution to provide disclosure of such material may result in a miscarriage of justice.

It is today a well-established and accepted principle that the disclosure of material which is in the possession of the prosecution to the defence case is an important and fundamental ingredient of a fair trial.

We certainly do not want anyone to be wrongly convicted due to an action or omission by the prosecution or the police, which may include the suppression of relevant facts and evidence, as happened in many cases in the past like the famous Guildford Four and Birmingham Six cases. Sadly, in some cases, truth is revealed after the convicted have already been executed by the state.

Despite our anger, no one should be wrongly denied a fair trial

Najib’s case may have highlighted this concern about pre-trial disclosure by the prosecution in a criminal trial, but this is a concern for all in Malaysia that are charged in criminal courts.

The new Pakatan Harapan-led government, which has repeatedly stressed it commitment to the rule of law and justice, must now speedily amend our laws to guarantee full pre-trial disclosure in a timely manner, preferably immediately after an accused person is charged.

In the criminal justice system, a person may have done wrong, but to convict a person of a crime, the prosecution have a high burden of proof – beyond reasonable doubt. This is so to ensure that there is less chances of a miscarriage of justice. All that the defence need to establish is the existence of a reasonable doubt, and then the courts will not convict.

Other reasons for a failure to convict include the existence of bad laws or of non-existent laws that make a wrongdoing a crime. Laws that protect public servants, including the prime minister, members of the executive and people’s representative must be reviewed and improved to make sure that no wrongdoings goes unpunished.

Malaysian should be committed to guarantee all in Malaysia the right to a fair trial, which also must means the immediate abolition of all detention without trial laws like the Prevention of Crime Act 1959 and the Prevention of Terrorism Act 2015, other laws that allow individuals not accorded a fair trial to be detained or restricted without any fair trial.

A hundred days have lapsed since the PH-led government came to power. But sadly, the much-needed repeals of bad laws, which deny the right to a fair trial, and the amendments and enactments of laws that ensure greater protection of human rights has still not yet happened.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).

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