1.

INTRODUCTION

Pre-trial discovery refers to the act of providing an accused person in a criminal proceeding with copies of any material which would be tendered at the trial as part of the evidence for the prosecution. The prosecution must fulfill its duties for pre-trial disclosure as this is critical to the defendant's right to a fair trial. In order for the defendant to properly prepare a defence he must be made aware of the evidence against him. Therefore it is wrong for the prosecution to withhold evidence that weaken their case as their wider obligation is not to mislead the court and to ensure that a miscarriage of justice does not occur.

Pre-trial discovery was formally introduced into the Malaysia criminal justice system vides section 51A of the Criminal Procedure Code1 and came into effect on 7 September 2007. It imposes an obligation upon the prosecution to supply the accused, before the commencement of the trial, with copies of documents that it will tender as evidence at the trial. The introduction of section 51A has sparked much excitement, debate and hype amongst members of the legal profession, particularly prosecutors, lawyers, academicians and enforcement agencies. Some hail it as a step in the right direction towards promoting fair trial, whilst others argue that it is cumbersome and burdensome.

Prior to the enforcement of section 51A, the only provision in the CPC that the accused could resort to for pre-trial discovery was section 51 of the CPC. This section empowers the court to issue a summons or order to any person in possession of any property or document necessary for the trial requiring him to produce it at the time and place stated in the summons. This paper will discuss on the scope and implementation of the above provisions in the light of the judicial pronouncements. This paper will also examine the arguments for and
1

Act 593, hereinafter refer as CPC.

against pre-trial discovery in the light of the position in Malaysia and also the United Kingdom. The writer will also identify some apparent shortcomings of section 51A and having done so, proposes some reforms as a way forward.

2.

POSITION PRIOR TO THE INTRODUCTION OF SECTION 51A

Section 51 of the CPC provides:-

(1) Whenever any Court or police officer making a police investigation considers that the production of any property or document is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings under this Code by or before such Court of officer such Court may issue a summons or such officer a written order to the person in whose possession or power such property or document is believed to be requiring him to attend and produce it or to produce it at the time and place stated in the summon or order.

(2) Any person required under this section merely to produce any property or document shall be deemed to have complied with the requisition if he causes such property or document to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed to affect the provisions of any law relating to evidence for the time being in force or to apply to any postal article, telegram or other document in the custody of the postal or telegraph authorities.

Section 51 of the CPC merely endows the Court with wide powers of ordering the production of documents necessary for the determination of matters before the court and for directing the inspection of those documents.2 Before the person who is believed to be in possession can be made to produce it, the court must consider that its production is necessary or desirable for the purpose of the trial, as the case may be. However, section 51 is not a platform where the accused to rove and fish information from the prosecution3.

In the case of Public Prosecutor v. Teoh Choon Teck4, the accused was charged with forgery of a letter and a cheque. Hepworth J had ordered the production of the said documents as the documents were specifically referred to in the charges and as it was essential for the accused to have the originals or photostat copies in order for him properly to prepare his defence. Hepworth J was of the opinion that the most important consideration is that the document or material called for must have some relation to or connection with, the subjectmatter of the investigation or throw some light on the proceeding, or supply some link in the chain of evidence5. His Lordship had stated that it is not a question at that stage whether the document is admissible or not. It may be that the thing called for may turn out to be wholly irrelevant to the inquiry; but so long as during the time of application, it is considered to be necessary and desirable for the purpose of the inquiry, the power is there6. In contrast to the principle laid down in the above case, Seah J (as he then was) in Syed Abu Bakar bin Ahmad v PP7 had heavily criticizing the decision. His Lordship was of the

2 3

Mallals Criminal Procedure, 6th ed, (Kuala Lumpur: MLJ Sdn. Bhd, 2001). Sohonis Code of Criminal Procedure, 19th ed, Vol.1, 1973, at .p 388. 4 [1963] MLJ 34 5 His Lorship referred to Mallals Criminal Procedure, 3rd ed, p 69 and help that the primary object of the provision is that the court may exercise its discretion as long as the document or material may be reasonably be regarded as forming the part of the evidence in the cae. 6 Hepworth J referred to Sohonis Code of Criminal Procedure, 15th ed, Vol 1, p 23. Hepworth Js view was quoted with approval in subsequent cases such as PP v. Raymond Chia & Anor [1985] 2 MLJ 436 and PP v. Au Seh Chun [1998] 6 MLJ 179. The case of Haji Abdul Ghani bin Ishak v. PP [1980] 2 MLJ 196 has adopted the principle if Teoh Choon Tecks case i.e. pertaining to necessity or relevance of documents. 7 [1982] 2 MLJ 18.

opinion that the section ought to be construed strictly. The section does not allow an accused to ask for discovery of documents or inspection of documents seized by the police in the course of their investigation or in their possession before the criminal trial. To do so would tantamount to inspection of the evidence of the prosecution by the defence prior to the trial. According to his Lordship, there is no injustice caused because when any document of a complicated nature is tendered in evidence, if the defence want time to study it, they can always apply to the court for extra time and if need be, to stand down cross-examination to a latter time8.

The inconsistency of the scope and limitation on its implementation under section 51 CPC had finally resolved by the decision of the Supreme Court in Public Prosecutor v Raymond Chia Kim Chwee & Anor9. The Supreme Court was of the opinon that there is no distinction between the strict approach and the liberal approach. The Supreme Court stated that application under the section can be made before the commencement of trial or in the course of a trial. The court has to consider the justice of the case and at what stage of the proceeding the application is made.

The right to have access to documents under section 51 CPC is much dependant on the stage of proceedings at which an application is made. The Supreme Court held that if the application was made prior to the commencement of the trial, regard must be made to the requirements in sections 152, 153 and 154 of the CPC. The charge must contain sufficient particulars of the offence. In other words, if the charge specifically mention about the documents, the defence must be given the right of inspection. In other situation, the court would

8 9

Such view was shared by Ibrahim J in the case of Mohammed bin Musa v PP [1972] 1 MLJ 496 [1985] 2 MLJ 436

have to be more careful and decide on justice of the case by applying the rule of relevancy10. In defining the scope of section 51 of the Code, Hashim Yeop Sani FC, said:-

The discretion should not however be exercised so as to enable the accused to gain access to materials before the trial as in the case of pre-trial discovery and inspection of documents in a civil proceeding. The accused in a criminal trial should have sufficient notice of what is alleged against him so as to enable him to prepare his defence .So long as that requirement is satisfied the law is satisfied.11

The decision by the Supreme Court caused some confusion. In the case of Tiah Tee Kian v Public Prosecutor and Anor Appeal12 Mohd Hishamudin J, had sought to clarify and expand on the proper scope of the Supreme Court ruling:-

What was laid down by the Supreme Court in PP v. Raymond Chia Kim Chwee & anor [1985] 2 MLJ 436 was only meant to be a general ruleWhat was implied by the Supreme Court by saying as a general rule was that there could be situations where the application for inspection of documents ought to be allowed although the documents were not specified in the charge if the circumstances of the case so merit. In view of the complicated nature of the charges, the complexity of the alleged transactions, the numerous documents involved and the relevance of the documents to the charges as conceded by the prosecution, the situation merits an exception to the general rule.
10

See also Kulwant v. PP [1986] 2 MLJ 10, where the court also added that if the stage of proceedings is during a trial, then the documents asked for must be relevant to the issues for adjudication. 11 See also PP . Ramasami a/l Simmathri & ors and another application [2001] 4 CLJ 690, PP v Lim Sooi Booi [2003] 2 MLJ 433, Muzammil Izat bin Hashim v PP [2003] 8 CLJ 399. In all these cases, the courts took a restrictive approach by disallowing the application under s.51 of the CPC. 12 [2002] 1 MLJ 585

It is observed that even before the introduction of section 51A, the courts had already allowed applications for pre-trial discovery, albeit in a limited fashion. However, they have been rather inconsistent and haphazard in considering such applications for pre-trial disclosure. In some cases, a narrow approach was adopted by denying pre-trial disclosure, whilst in others; a more liberal approach was taken.

3.

RATIONALE FOR INTRODUCTION OF SECTION 51A CPC

Section 51A of the CPC reads as follow:-

(1) The prosecution shall before the commencement of the trial deliver to the accused the following documents: (a) a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any; (b) a copy of any document which would be tendered as part of the evidence for the prosecution; and (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.

(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.

The rationale behind the introduction of section 51A was stated by the Honorable Minister Dato Seri Radzi bin Sheikh Ahmad, the Minister in the Prime Ministers Department as follows:6

Pemberian apa-apa dokumen atau laporan yang akan dikemukakan oleh pihak pendakwaan dalam kesnya kepada pihak pembelaan akan memberi peluang kepada pihak pembelaan untuk menyediakan kes mereka dengan lebih sempurna.

Ini akan membawa keadilan bukan sahaja kepada tertuduh tetapi juga kepada semua pihak. Selain itu ia akan menjimatkan masa mahkamah di mana pihak pembela tidak akan memohon untuk penangguhan jika dokumendokumen tersebut lebih awal lagi diberikan. Jawatankuasa berpendapat bahawa fakta-fakta yang menguntungkan kepada pembelaan yang diperoleh semasa siasatan hendaklah diberi kepada pihak pembelaan demi keadilan sesuatu kes.13

51A ini satu peruntukan baru di mana buat pertama kali dalam sejarah kita, kita memperkenalkan satu prosedur yang seolah-olah prosedur dalam mahkamah perbicaraan kes-kes sivil. Di mana dalam peraturan ini kita menghendaki pihak pendakwa mengemukakan beberapa kenyataan, beberapa keterangan yang menyebelahi pihak yang kena tuduh sebelum perbicaraan itu bermula.

Tujuan kita buat demikian ialah memendekkan perbicaraan dengan cara itu. Kedua, dengan cara itu, pihak pembela tidak akan membuat permohonan kepada mahkamah untuk menangguhkan kes-kes kerana kononnya dokumen ini belum dapat diterima lagi, dia hendakkan dokumen ini dan sketch plan dan seterusnya daripada pihak pendakwa. Dengan cara itu kita
13

Parliamentary Debates, Representative, Eleventh Parliament, Third Session, Second Meeting, 13 July 2006 (Dato Seri Radzi bin Sheikh Ahmad).

memendekkan perbicaraan. Walau bagaimanapun dimasukkan satu proviso. Jawatankuasa telah sengaja mengadakan pengecualian bagi perenggan C di mana pegawai-pegawai pendakwa tidaklah membekalkan fakta-fakta yang menguntungkan terhadap tertuduh atas alasan ia akan menjejaskan kepentingan awam ataupun public interest.14

In essence, section 51A enables the accused to prepare his defence adequately, ensure fairness and justice, save judicial time, expeditious disposal of cases and to provide the prosecution with public interest immunity, when disclosure in undesirable.15

It would be relevant to examine the obligations under the provisions in comparison to the practice prior to the coming into force of section 51A. There are three categories of documents which the prosecution ought to deliver to the accused under the new provision;

i.

A copy of the First Information Report (F.I.R) There is nothing new to this obligation. The question of access of F.I.R. before trial was raised in several cases. In Anthony Gomez v. Ketua Polis Daerah Kuantan16 the Federal Court held that as an arrested person, an accused person has the common law right to the F.I.R. In Husdi v. Public Prosecutor17 the Federal Court was of the view that the common law right of an accused to the F.I.R stems form the duty of the police to inform the accused the reason for his arrest as enshrined under Article 5(3) of the Federal Constitution.

14

Parliamentary Debates, Representative, Eleventh Parliament, Third Session, Second Meeting, 18 July 2006 (Dato Seri Radzi bin Sheikh Ahmad). 15 See PP v. Retnarasa Annarasa v PP [2008] 4 CLJ 90, PP v. Mohd Fazil Awaludin [2009] 2 CLJ 862. The learned High Court Judges discussed the purpose for which section 51A was enacted. 16 [1997] 2 MLJ 24 17 [1977] 2 MLJ 304

ii.

Copies of documents which prosecution would tender at the trial Previously, the prosecution would serve a copy of document intended to be tendered as evidence during trial stage; whereas under the new provision, the prosecution has to do so before the commencement of the trial. Again, in my view, this is nothing substantially new. The accused or the defence would get a copy of the document anyway. The only difference with regards to this category of documents under the new provision is the stage at which it is disclosed to the accused. In fact, this would give the accused adequate time to study the evidence against him and to prepare his defence sufficiently. This provision will be an aid to speedy disposal of cases and relieve the stress of backlog of cases faced currently by Malaysia courts.

iii.

Statement of facts favourable to the accused Examples of facts favourable to the accused include: an unknown DNA profile on the deceaseds clothing, there was another fingerprint on the weapon besides the accused and deceaseds fingerprints. However, it is not clear whether the prosecution is obliged to give a detailed statement. From a reading of the paragraph, it appears that it would be suffice for the prosecution to give a general statement of facts without going into great details.

Therefore, it is my humble submission that section 51A does not impose many new obligations on the prosecution. Parts of those obligations were already in practice even before section 51A was introduced. Substantially, it is a codification of past practices, with some additions.

3.1

CASE STUDY DATO SERI ANWAR IBRAHIM

The accused was charged under section 377B of the Penal Code. The accused had, through his solicitors, made numerous requests to the prosecution for documents and materials. The High Court18, in allowing most part of the accused application, compelled the prosecution to deliver documents, materials, property and items as particularized by the accused. The High Court, having referred to the case of Retnarasa Annarasa v PP19, decided that both section 51 and section 51A of the CPC should be read conjunctively thus makes all the decided case relating to section 51 irrelevant. The Court of Appeal20, overturned the decision of the High Court, held that the law on the application of section 51 had not changed notwithstanding the inclusion of the new section 51A. The Court of Appeal, having referred to the Hansard, ruled that sections 51 and 51A are two separate and distinct provisions. Therefore, all the judicial precedents with regard to the interpretation of section 51 are still relevant and applicable. The Court of Appeal further held that:-

As can be seen from the authorities mentioned above the exercise of this discretionary power by the court under section 51 of the Code with regard to the application at the pre-trial stage has been limited. The court construed the section strictly. Except as what is provided for under section 51A of the Code the Respondent is not entitled to discover or inspect evidence or material in the possession of the prosecution before the commencement of the trial

18 19

Dato Seri Anwar bin Ibrahim v. PP [2010] 1 MLJ 579 (HC) [2008] 4 CLJ 90 20 PP v. Dato Seri Anwar bin Ibrahim [2010] 2 MLJ 353 (CA)

10

On appeal, the Federal Court on 29th January 201021 had affirmed the decision by the Court of Appeal. The Federal Court held that the scope of section 51 is confined to the production of documents or materials which are necessary or desirable for the purpose of the trial. Since the application was made prior to the trial, the documents must, be confined to the matters that were specified in the charge.

With all due respect, it is submitted that both the Court of Appeal and the Federal Court have indeed departed from the decision in Raymond Chia (supra). The both courts in Dato Seri Anwar Ibrahim (supra) failed to appreciate that section 51 of the CPC is applicable to both pretrial stage and trial stage.

Hashim Yeop Sani FC in Raymond Chia (supra) clearly laid down a two-tier test is the application was made during pre-trial stage. The applicant is entitled to documents referred to in the charge; and if the documents were not referred to, he must particularize those documents. The court can allow the application if the documents are necessary and desirable to the trial. These documents can be unused materials which would not be tendered by the prosecution, but might be useful to the accused. The approach by the apex court in Dato Seri Anwar Ibrahim (supra) seems to equate the requirement of necessary or desirable to documents referred to in the charge. The decision would also deny the accused person to resort to section 51 during pretrial stage to gain excess to unused materials which might be useful in the preparation of his defence. It is my humble submission that the test be assessed both to the charge itself and to the reasonably possible defences. Both the courts in Dato Seri Anwar Ibrahim (supra) cited Hashim Yeop Sani FCs dicta with approval and ruled that the court should not exercise its discretion in allowing pretrial discovery as in the case of civil proceeding. It is my humble submission that the courts
21

Dato Seri Anwar Ibrahim v. PP [2010] 2 MLJ 312 (FC)

11

again failed to appreciate the parliaments intention that the introduction of pre-trial discovery in the criminal justice system is to encourage full and frank disclosure as in the case of civil proceeding22.

3.2

ISSUES IN RELATION TO THE IMPLEMENTATION OF SECTION 51A

Section 51A is designed to ensure that there is a fair system for the disclosure, especially of unused material which may assist the defence in the timely preparation and presentation of its case23. This new section comes as a breath of fresh air and heralded a new beginning towards definitive prosecution disclosure. However, I submit, this section, has several shortcomings.

Firstly, the section does not provide for situations where the prosecution has failed to comply with the requirement. This issue has been dealt with in the case of Public Prosecutor v Mohd Fazil Awaldudin24. The learned Zawawi JC held that section 51A concerns with the conduct of the trial. His Lordship distinguished section 51A from section 399 and 402A of the CPC which prescribe the manner of trial. Disregard of a provision under the latter is fatal to the trial and would at once invalidate the conviction. However, disregard to the conduct of the trial even though prescribed in a mandatory manner is not fatal unless the court is satisfied that the accused was prejudiced. It is also noted that unlike in the United Kingdom, the scope of section 51A is rather limited. Moreover, section 51A is merely directory in nature25.

22 23

Parliamentary Debates, Representative, loc.cit. PP v. Mohd Fazil Awaludin [2009] 2 CLJ 862 at 863. 24 [2009] 2 CLJ 862. 25 The above principle was referred in the case of PP v Chan Keang Lean [2010] 1 CLJ 239.

12

Secondly, the section does not state when exactly the prosecution must deliver the documents listed. In order to provide a clear guideline to the prosecutors, the Head of Prosecution has issued directive which provides that delivery of documents by the prosecutors must be made to the accused at least three weeks before the commencement of trial.26 It is submitted that early delivery is preferable. This would enable the defence to study the documents and to decide whether to plead guilty, appeal to the prosecution for a lesser charge, or for a withdrawal of the charge or to contest the charge.

Thirdly, in relation to section 51A (1)(c), would a failure to supply facts favourable to the defence cause adverse inference to be invoked against the prosecution. Fovourable is defined as beneficial, useful or helpful27. Facts favourable to the defence would include material facts which may undermine the prosecution case. In relation to this, all facts contained in the investigation papers that would be favourable to the accused have to be reviewed diligently. This imposes a burden on the prosecution to supply those facts. When supplying a written statement of facts favourable to the accused, the prosecutor has to supply names of witnesses and their addresses in order for the accused to be able to contact the said witnesses if the need arises28.

The above issue was discussed by the Court of Appeal in the case of Dato Seri Anwar Ibrahim (supra)29. The High Court judge ruled that since the accused was given a statement under section 51A (1)(c), he is entitled to find out whether what was said by the prosecution
26 27

Directive by the Head of Prosecution Division, Attorney Generals Chambers, 9th November 2007, at p. 2 Websters New Twentieth Century Dictionary of the English Languange, Unabridged, 2nd ed, 1993, at p .669. 28 Directive by the Head of Prosecution, op.cit., at p. 4 29 [2010] 2 MLJ 353 (CA). See also, Dato Seri Anwar Ibrahim v Mohamad Hanafiah bin Haji Zakaria & 2 Ors MTKL Permohonan Semakan Kehakiman No.R1-25-246-2009, the High Court dismissed the leave application for judicial review by the Applicant on the grounds of frivolous and vexatious, and abuse of the court process. The reason, inter alia is that the civil court exercising its administrative law function is not the proper forum to review a written statement issued for the purpose of a pending trial in the criminal court and it is not for the judicial court to interfere with the obligation by the Public Prosecutor under s 51A(1)(c) of the CPC.

13

was true or not. This could only be done by the accused if he was given access to the witnesses statements. The Court of Appeal was of the view that the issue could only be determined by the court after the commencement of the trial and after the relevant witnesses have given evidence in court. By allowing the accused to gain access to the witnesses statements would tantamount to allowing the defence to go on a fishing expedition as witnesses statement are privileged documents.

It is submitted that it is premature to allow the defence to challenge the statement under section 51(1)(c) at the pre-trial stage. What amounts to facts favourable to the defence is purely a matter of opinion. One mans meat is another mans poison. A prosecutor might view a fact as purely neutral and does not assist the defence, but the accused might think otherwise. Whether or not the prosecution has withheld a fact favourable to the defence can only be determined by the court and must be viewed in the light of the circumstances of the case. The court is only able to do so during the trial stage after certain witnesses are called to testify. Provided that there is oblique motive by the prosecution to withhold the evidence, presumption under section 114(g) of the Evidence Act 1950 cannot be invoked.

Fourthly, section 51A has not specified or defied public interest. The guidelines issued by the Attorney Generals Chambers provide no assistance. Sithambaram argues that public interest must mean in the interest of national security; for otherwise section 51A (2) is a dead letter30. It is submitted that this is too restrictive an interpretation to make. It is the writers view that public interest should include sensitive materials. For example, intelligence reports, information that could lead to disclosure of identify of informers, witnesses statements etc31.
30

Sithambaram, Criminal Justice System: The Good, The Bad and The Ugly Pre Trial Discovery in Criminal Proceedings, (2007) Law Review 627, at p.649. 31 Pedley, Statement of Prosecution Disclosure, 30 September 2003, Office of Commonwealth Director of Public Prosecutions, 16 April 2010 <http://www.crimbarvic.org.org.au/docs/PROS%20DISCL %20PAPER.pdf>.

14

This list is not intended to be exhaustive. However, at the end of the day, it is the court, not the prosecution, is the arbiter of what could be withheld from disclosure. The court must carry out a balancing exercise.

Fourthly, there is absence of defence disclosures. Since section 51A does not require the accused to make disclosure to the prosecution, it could be argued that it is not an equitable provision. The defence could be seen to have an upper hand and thus, frustrate the concept of equality of arms.

Currently, there are several provisions that provide for disclosure by the defence on the basis of reciprocity of prosecution disclosure. For instance, the accused is to give a notice of alibi under section 402A (1) of the CPC at least ten days before the commencement of the trial to the prosecution. Section 62 of the Malaysia Anti Corruption Commission Act 2009
32

provides that after section 51A of the CPC has been complied with, the defence is to supply a statement of defence and other documents that wish to be relied by the defence.

There have been arguments put forward against defence disclosure. These arguments are based on the fundamental principles of the common law criminal justice system. The burden of proof lies on the prosecution to prove the accuseds guilt beyond reasonable doubt33. It supports the proposition that the defence does not have an obligation of disclosure because of the presumption of innocence. Perhaps, the pursuit of truth argument is a strong one for defence disclosure, provided that this does not impact adversely on the burden of proof and the presumption of innocence34.

32 33

Act 594. Parliamentary Debates, Representative, Twelfth Parliament, First Session, Third Meeting, 15 Disember 2008 (Gobind Singh Deo). 34 Sithambaram, op.cit., at p. 651

15

4.

COMPARISON WITH THE ENGLISH LAW

United Kingdom has similar provisions on disclosure of documents in criminal proceedings. There is a three-tiered system in criminal proceedings which ensures vital information on both sides of a court case can be seen by all parties. Disclosure was governed under the Criminal Procedure and Investigations Act 1996. The relevant provisions i.e. section 3, 6 and 7 of the Criminal Procedure and Investigations Act 1996 has subsequently been amended by the Criminal Justice Act 2003. The Attorney General in the United Kingdom has also issued Guidelines in 2005 to assist the prosecuting authorities in handling matters related to disclosure.

Prosecution will disclose used materials in the form of advance information. If the accused pleas not guilt, the prosecution must conduct primary disclosure35. Primary disclosure is the duty of the prosecutor to disclose material to the defence which undermines the case against the accused. Primary disclosure is triggered where the accused faces trial in a magistrates' court and pleads not guilty, or the case is transferred for trial by jury. The initial disclosure test is an objective test. What may assist he accused has to be objectively assessed from any available prosecution material. If there is no such material the prosecutor must inform the defence in writing.

The accused must then voluntarily serve a defence statement36. A defence statement sets out the general nature of the defence, indicating matters on which the accused takes issues with the prosecution and why. A defence statement is compulsory for an accused facing trial by jury,
35 36

Section 32, Criminal Justice Act 203 Section 33(1), Criminal Justice Act 2003

16

and is optional for an accused facing a summary trial. This statement includes, inter alia, the nature of the accuseds defence, any part of law which he wished to rely, aspects of the prosecution case which the accused takes issue with, particulars of alibi, and any information in the accused possession which might be of material assistance in identifying such witnesses, etc.37

Defence disclosure has two purposes: Firstly, it assists in the management of the trial by helping to identify the issues in dispute. It also provides information that the prosecutor needs to identify any remaining material that falls to be disclosed at the secondary stage38.

There is a continuing duty of disclosure by the prosecutor39. Prosecution should, soon as possible after receiving a defence statement, provides details of any information which had not previously been disclosed and which might reasonably be expected to assist the accused's defence as set out in the defence statement. The legislation provides for application to be made for disclosure to the courts, when the need arises40. There are sanctions for non-compliance with the disclosure requirements.41

There will be occasions where the prosecution will claim that they cannot disclose evidence to the defence because it would be damaging to the wider public interest. If the court rules that this is the case then the prosecution can withhold this information or order the witness not to answer questions on the matter. Examples of material that might be covered by public interest immunity would include documents relating to national security, confidential information, the identity of police informant and undercover police officers, details for premises
37

Section 33(2), Criminal Justice Act 2003 Forston, Rudi, Disclosure under the Criminal Justice Act, 14 September 2005, Criminal Bar, 15 April 2010 <http://www.criminalbar.com/86/records/74/Rudi%20Froston.doc> 39 Section 37, Criminal Justice Act 2003 40 Section 38, Criminal Justice Act 2003 41 Section 39, Criminal Justice Act 2003
38

17

used for police surveillance and information pertaining to the welfare of children. The procedure for claiming immunity is an inter partes application where the prosecution is required to notify the defence that they are applying to the court for a ruling and to indicate the type of material over which they are claiming immunity. The court will hear submissions from both parties and then decide whether or not the information would be disclosed.42

5.

ARGUMENTS IN FAVOUR OF PRE-TRIAL DISCOVERY AND THE WAY FORWARD

The insertion of section 51A of the CPC does not make section 51 irrelevant. The principle in section 51 is still applicable and the accused is entitled to apply to the court any document (other than what is provided in section 51A) subject to relevancy test and discretion by the court. Therefore, section 51A is simply a bonus to the defence on the right of discovery in conformity to the accuseds right to fair trial. In Malaysia, the principle of fair trial and fairness has been long established. Article 5 of the Federal Constitution states that No person shall be deprived of his life or personal liberty save in accordance with law. Article 8 states that All persons are equal before the law and entitled to the equal protection of the law. These two articles in reality form the very basis of our criminal justice system. Implicit in these articles, is the right to due process i.e. the right to a fair trial which is the paramount consideration in any criminal justice system. In short, procedural fairness is incorporated in both these articles43.

42 43

R v H& C [2004] 2 AC 134 (HL) See Lee Kwan Woh v PP [2009] 5 CLJ 631 (FC)

18

The right to fair trial is the essential rationale for disclosure by the prosecution. The pretrial disclosure promotes the right of an accused to a fair trial as it affords him an opportunity to prepare his defence adequately. The principle of a fair trial is sacrosanct in all civilized legal jurisdiction. As in the case of R v Ward 44,Glidewell LJ said that:-

an incident of a defendants right to fair trial is a right to timely disclosure by the prosecution of all material matters relied on by the prosecution, whether such matters strengthen or weaken the prosecution case or assist the defence case.

In our adversarial system, the police and prosecution control the investigatory process thereby causing on the imbalance of resources. Pre-trial disclosure is necessary so that the accused will not be placed at a substantial disadvantage vis-a vis the prosecution. This would ensure that the prosecution and defence have equal rights before the court. This is in conformity with the principle of equality of arms. It is submitted that disclosure should not be limited to pre-trial disclosure. The position in the United Kingdom which imposes an obligation of a continuous disclosure by the prosecution should be adopted to further enhance the transparency of the criminal justice system.

It is well known that the criminal courts in Malaysia are struggling to cope with the volume of work coming before them. The financial cost to the community of administering the criminal justice system is substantial. While the public has an interest in ensuring that the proceedings are fair to the accused, it is also concerned that proceedings be efficient and provides the court with the best possible assistance in the course of ascertaining the truth.

44

[1993] 2 All ER 577.

19

To cope with the workload, it is insufficient to merely increase the number of courts and judges, which has been done. Pre-trial disclosure is likely to increase the efficiency of criminal justice system by promoting the disposition of criminal proceedings outside the adversarial arena45.

Section 51A imposes an obligation upon the prosecution to disclose evidence. It may be that time has also come for some obligation to be imposed upon the defence to join the identification of and limiting of issues in criminal proceedings to an extent to curtail the right of silence. It is submitted the obligation for the defence disclosure should not be limited to corruption cases, but extend to all criminal proceedings.

Pre-trial defence disclosure would increase the efficiency of the criminal justice system. The necessity for the prosecution to present lengthy evidence of matters which are not an issue between the parties would be avoided46. It would also lead to more just trial outcomes by preventing the defence from taking the prosecuction by surprise, leading evidence which the prosecution could not reasonably have anticipated and did not have any opportunity to investigate.

It is submitted that defence disclosure may in turn benefit the accused based on the following reasons. Firstly, if the accused is innocent as he claims and has a valid defence, he should have no difficulty in providing a defence statement. Secondly, it may also assist the court by believe that such a defence is a genuine one as the accused has laid down his defence at the earliest possible stage47.
45

Grossman, Disclosure by the Prosecution: Reconciling Duty and Disretion Vol 30 (1987 -1988) Crim LQ 346. 46 Parliamentary Debates, Representative, Twelfth Parliament, First Session, Third Meeting, 15 Disember 2008 (DatoRazali bin Hj Ibrahim). 47 Parliamentary Debates, Representative, Twelfth Parliament, First Session, Third Meeting, 15 Disember 2008 (Puan Hajah Nancy binti Sukri).

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6.

CONCLUSION

It must be reiterated that the application of proper and fair trial disclosure is a vital component of a fair trial as it ensures the parties to a criminal trial are equally armed. It does not impose an undue burden, it is desirous that the shortcomings and proposed reforms above be addressed so that the concept of fair trial and equality of arms are further fortified in the Malaysian criminal justice system. At the end of the day, it must fall within the safe arms of the courts albeit parties must come before the court with clean hands.

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