Saturday, November 25, 2006





“When we talk about witness protection, we have to look at the competing concern, that is the right to a fair trial that has to be accorded to a victim of the criminal justice system – and one of the most important aspect of this right is the right to full pre-trial disclosure of all the documents, and information that is in the possession of the State (prosecution), i.e. “the police docket” – and this must include timely access to witnesses and also witness statements, and this must be done preferable even before the plea is entered.”

Fear & Witness “Protection”-Justification For Rights Denial

In Malaysia, an accused person only has the right to get a copy of the First Information Report, police reports, his/her own caution statements and copies of chemist/scientific reports. He did not have the right to have access to statements made by witnesses during the cause of police investigation – and most common rationale and reasons given for this denial of what should be a fundamental right, is what was also interestingly mentioned by Suffian, Lord President(as he then was) in the Federal Court case of Husdi –v- Public Prosecutor (1980) 2 M.L.J 80 when he said:-

“ We do not think that the prosecution should supply copies of the police statement direct to the defence without the intervention of the court – because of the peculiar circumstances prevailing in this country. Malaysia is a small country, with a small population, and Malaysians are easily scared: they are reluctant to be involved. If a crime is committed under their nose they look the other way, see, hear and say nothing, do little or nothing to help identify – let alone – arrest the offender, and yet complain that the police do not catch criminals and that courts are bedazzled by technicalities. If the prosecution is obliged to supply copies of police statements to the defence without the intervention of the courts, the defence may be tempted to ask for, and the prosecution will be obliged to supply, copies of every statement in the police investigation file, and Malaysians will be more reluctant to come forward with evidence to incriminate their fellows.”

The fact is the Malaysian Evidence Act has provisions[a] that allows for the impeaching of the credit of a witness, and one of the means to do this is by proving that a former statement made by him are inconsistent with the evidence that he gave in court but without access statements made to the police how can this be done. The defence would literally have to guess as to what is contained in the statement/s made by the said witness to the police.

In the Husdi case, the court also did say :- “…when a prosecution witness is being cross-examined, and the defence proposes to impeach his credit, the court should, on the request of the defence, refer to his police statement and may then, if the court thinks is expedient in the interest of justice, direct the defence to be supplied with a copy….” Again, as was mentioned earlier I say that unless the defence lawyer or the accused is gifted with some super natural powers that enables them to know what is in the witness statement(which they do not have access to), what the court suggested about impeaching a witness based on a statement is, I believe, impossible.

In the earlier Husdi case (1979) 2 MLJ 304,[b] this deprival of the right of the accused to statement/s made by a person to the police was justified by reason of ‘public policy’. The judge delivering that judgment at the Federal Court had this to say: “…Further, as a matter of public policy, I am of the view that it is undesirable for the prosecution to supply the defence with police statements as there is a real danger of tampering with the witness..”. Should not public policy be to ensure that justice is done and to prevent miscarriages of justice?

Protecting witnesses was one of the reasons seemingly that was given to deny the right of pre-trial full disclosure, and hence the right for a fair trial. Was it really to protect witnesses, or was it really to protect the prosecution’s case? The use of the word “tampering” seems to suggest it was the later.

The risk of tampering witnesses was also a consideration in a bail applications, and hence when an accused is released on bail, reasonably one could argue that witness statements should be made available to the defence for after all the court had considered and concluded impliedly that there was ‘no real danger of tampering with witness’. But still no access to witness statements because the highest court of the land had also declared that witness statements are “absolutely privileged” and as such, the accused person did not have a right to such witness statements.

Rights of the accused after the Husdi cases

Can the accused get information about the name and address of the witness/person concerned and the fact that he had made a statement or not? The Bryant and Dickson, which was referred to in the Husdi cases said that the answer was yes. In the R-Ward (1993) 2 All ER 577 at page 613 para c fol, the court had this to say:

“...The names and addresses of these witnesses and the fact that they had made statements, if no more, were plainly disclosable under the R -v- Bryant and Dickson (1946) 31 Cr App R 146 rule..”

What about pre-trial access to prosecution witnesses? After all, the Federal Court in the first Husdi case had said:- “…So far as applicable to the present case, the principle that appears to be laid down in this case [referring to the case of R -v- Bryant and Dickson (1946) 31 Cr App R 146] is that it is the function of the prosecution and the defence to prepare their own case: but the defence is not entitled to the police statement, as they themselves may record a statement from a prosecution witness if they so desire. The last part is merely a reiteration of the principle that there is no property to a witness – not to a document generally…”

Therefore, even after the Husdi cases, the accused should have had the right to get the names and address of witnesses the police interviewed (or were looking for), information whether these witnesses had made statements to the police, the right to seek out these witnesses and to further record statements from them. But in reality, generally this did not happen. The police/prosecution generally never disclosed this information about witnesses, and lawyers for the accused also generally failed to pressed for these rights.

In Malaysia, many lawyers would come to court, listen to the evidence given by a prosecution witness during examination-in-chief, and then proceed to try to create reasonable doubt through cross examination. The fact that the defence had no access to these witnesses’ statements to the police and no prior access to the names of this witnesses (and hence no opportunity to interview them before hand) greatly prejudices the defence during cross-examination.

The accused’s fundamental right to a fair trial, the right to equality under the law and to equal protection of the law is denied by reasons of ‘ignorance of the full extend of the rights of an accused under the law” and also by decisions of the highest courts of the land. And somehow the protection of witness (or rather the risk that prosecution witnesses would be tampered with) was one of the justification for this state of affairs.

Corruption an enemy of justice and a threat to witnesses

The other emerging problem in Malaysia today is the increase of corruption within the police force and other actors in the criminal justice system, and this has not only affected public confidence in the system but would also, I believe, protection of complainant/s and/or witnesses to crime.

The indifference of the ordinary Malaysian to crimes committed by their fellows is now further enhance with the thinking “why waste time making reports or giving statements to the police for after all the police can be ‘bought’ and the guilty can get off scot-free more so if they have money, power and/or connections with the ‘right people’”. Even amongst the legal profession, there is today talk about a new breed of lawyers, which some call the “criminal settlement lawyers”, who when appointed collect a large sum of money and then go and see certain police officers (or other persons in the criminal justice system) and try to work out a deal or a ‘criminal settlement’ – i.e. how much do you want for my ‘client’ to be released without being charged or without being tried and/or without being convicted.

Sometimes, a person is acquitted because some police officer or prosecution witness failed to do something during the course of investigation, and one wonders whether this was by reason of inexperience, negligence, inadequate training, incompetence or an innocent oversight – or was it a simply a conscious omission/action brought about possibly by corruption or other pressures.

Corruption Must End To Restore Public Confidence

When Abdullah Ahmad Badawi came in as the prime minister of Malaysia after the 22-year premiership of Mahathir Mohammad, he promised the people of Malaysia that he will fight corruption. Malaysians were hopeful and this was further enhanced when the new premier set up 2 Royal Commissions to look into the state of affairs within the Malaysian police. Both Commissions came out with numerous recommendations, and the most significant recommendation was for the setting up of a Independent Police Complaints and Misconduct Commission (IPCMC). The Royal Commission also did prepare a draft Bill and proposed timelines for the setting up of the said IPCMC. Datuk Seri Abdullah Ahmad Badawi assured Malaysians that he would set up the IPCMC but to date it is yet to become a reality and the deadline proposed has come and gone. Recently, on 14/11/2006 some 302 civil society organizations led by the Malaysian Bar handed over a petition, which was also signed by thousands of individual persons, urging the Government to speed up the establishing of the IPCMC.

For the cause of justice, corruption not only within the police but also all the other actors within the criminal justice system should be completely extinguished and it can be done only if there is the necessary political will.

ESCAR – the kind of Witness Protection we do not need

The Essential (Security Cases) Regulations 1975 (ESCAR) introduced special procedures for security cases being cases where one is charged with security offences. Security offerences were described as being offences under certain sections[c] of the Internal Security Act 1960 (an act that also provides for Detention Without Trial) and also any offences against any other written law the commissioning of which is certified by the Attorney General to affect the security of the Federation.

The ESCAR allowed the court to take evidence of witnesses in the absence of the accused and his counsel. It allows the witness to give evidence without his person being seen and/or his voice being heard by the accused and/or his counsel. It permits the court to prevent questions being asked by the defence if it is in the opinion of the court will lead to the witness’s identification. It has provision for keeping secret the identity of an informant, and for allowing a report of the said informant to be admissible in evidence without the informant being required to give evidence (and of course without the defence having the opportunity of cross-examination). The normal rules of procedure and evidence developed over the years to ensure that justice be done were ignored by the ESCAR.

When the ESCAR came into being the Malaysian Bar protested and lawyers boycotted trials conducted that used the ESCAR. The government reacted and amended the Legal Profession Act introducing various shackling provisions, including preventing lawyers below 7 years standing, Members of Parliaments and State Legislative Assemblies, office bearers of Political Parties and other classes of persons that could be added on later from being able to become members of the Bar Council, State Bar Committee and/or its committees. [d]

The rights of the accused and witness protection must be considered together

Now, when we talk about witness protection, we have to consider first the fundamental right to a fair trial that must be accorded to an accused person in a criminal justice system. This right to a fair trial must necessarily includes the real ability for one to be able to prepare one’s defence, and that means also having all the information and evidence in the hands of the prosecution (the State) way before the trial, preferably soon after one is charged with an offence. This means that there must be the right to full disclosure, and this would include list of witnesses (and other persons interviewed or persons the police were looking for during the course of their investigations, who the prosecution may not even consider calling as prosecution witnesses) and their statements.

The Development of the Right to Full Pre-Trial Disclosure

Full pre-trial disclosure became an important prerequisite to ensure fair trial and prevent miscarriages of justice after cases like Guildford Four and Birmingham Six exposed that serious miscarriages of justice that caused innocent persons to languish in prison for many years brought about by non-disclosure by the prosecution. R-Ward (1993) 2 All ER 577 and the case of R -v- Maguire, CA, (1992) 2 All ER 433 are other examples of cases of miscarriage of justice resulting from “non-disclosure”.

The right to fair trial requires that “in criminal prosecution the accused should ordinarily be entitled to the information contained in the police docket relating to the case against him or her, including copies of statements of witnesses whether or not the prosecution intends calling such witnesses at the trial.” (State –v- Scholtz(1997) 1 LRC 47).

The Canadian Supreme Court in the case of R –v- Stinchcombe(1992) LRC(Crim) 68 also affirmed the accused’s right full disclosure adding that – “the right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted…”.

In R -v- Mills, quoting the words of judgment of the Supreme Court of Canada in R -v- Stinchcombe (1991) 68 CCC (3d) had this to say :-“...the fruits of investigation which are in the possession of the counsel for the Crown are not the property of the crown for use in securing a conviction but the property of the public to be used to ensure that justice is done... The principle has been accepted that the search of the truth is advanced rather than retarded by disclosure of all relevant material.” [e]

Today, India also recognizes the right to full disclosure, and the Indian position can be summarised from the following Indian Supreme Court case, an example of many similar judgments :-

The right which the accused has got of obtaining copies of the statements made by witnesses during investigation is a very valuable right and the wholesale refusal to grant the same will be a serious irregularity, which would vitiate the entire trial.”

Purushottam -v- State of Kutch (1954) AIR 700(Supreme Court)

The Lesotho case of Malopo –v- Director of Public Prosecutions (1998) 2 LRC 146 had this to say about the right to a fair trial and the concept of “All persons shall be equal before the law” : “…a trial cannot be fair, just and balanced if the prosecution is allowed to keep relevant material such as witness statements close to its chest and thereby hope to spring a surprise on the defence for the purpose of securing a conviction…certainly cannot have been the intention of the framers of the Constitution [referring to the constitution that had the equality before the law provision] to place the accused at a disadvantaged in relation to the prosecution. Such a disadvantage in my view does not accord with the tenor or the spirit of the right of equality before the law..”

When it comes to disclosure, the duty is placed on the prosecution and their duty is to disclose everything, including also material that will tend to weaken the prosecution’s own case, and even material that may even open up a new defence or that which will strengthen the defence’s case.

“The prosecution’s duty at common law to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution’s case or to strengthen the defence case, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there was good reasons for not doing so. R-Ward (1993) 2 All ER 577,

“...Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence

R-Ward (1993) 2 All ER 577 at page 599, para b

It is sad, but the reality is that many a time a criminal trial is perceived as a competition by the prosecution, and as such prosecutors are driven by this desire to win – and victory means successfully securing a conviction. Hence, what they would adduce as evidence to the court would be just the required evidence to secure a conviction. Evidence unfavorable to the prosecution may end up being ignored or consciously suppressed by the State, who forgets that the most important thing especially in a criminal trial is to ensure that justice is done and not securing a victory by getting an innocent man convicted.

Sometimes high-profile cases that receive media attention also puts additional and unnecessary pressure on the police to quickly find the “culprit”, charge him and get him convicted and history has shown that it is in these kind of cases where there is a higher chance that an innocent man convicted, sentenced to prison and even death.

Disclosure Must Be Done At The Earliest Possible Time

The courts in various jurisdictions have also looked considered the question as when this full disclosure should occur, and the answer generally seems to be as soon as possible.

In the Namibian case of State –v- Scholtz (1997) 1 LRC 67, Dumbutshena Ab JA had this to say: “For disclosure to be effective it must be done at the earliest possible time”. As to when exactly, the court said that the “…overriding factor should be the sufficiency of time in which the accused should prepare his or her case. In my view it won’t be sufficient time to hand witness statements and other materials to the accused a few minutes before plea. There should be reasonable time to allow the accused to prepare thoroughly his reply to the charge and his defence.”

Considering the various authorities from different jurisdictions[f] that now recognize this important right of full disclosure, it seems that this disclosure by the prosecution should happen even before the suspect is brought to court and charged.

Non-Disclosure By Reason Of Protection of Witnesses, etc..

Generally all statements to the police should be provided by the prosecution to the defence, but in exceptional cases when the prosecution do not want to disclose a particular statement claiming “public interest immunity” or “public policy” or “national security” or whatever other reason, this should be specifically claimed - and the matter will then have to be decided by the courts ,and not the police or the prosecution, after balancing interest of justice for the accused with whatever reasons forwarded by the prosecution.

In the case of R -v- Davis (1993) 2 All ER 643, at page 647 para a-b - citing R-v-Hennessey (1978) 68 Cr App R 419 with approval, the court had this to say:-

“...the judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand, the interest of justice. Where the interest of justice in a criminal case touching and concerning the liberty or conceivably on occasion life, the weight to be attached is plainly very great indeed..”(See R-Ward (1993) 2 All ER 577 at page 602 para j foll.) but the ultimate decision is not with the prosecution but with the court.”

“...when the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of proceedings......If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by the court, the result must inevitably be that the prosecution will have to be abandoned”

In Malopo –v- DPP (1998) 2 LRC 146, the courts did consider protection of any informer (or witness) as one of the grounds that may be forwarded by the prosecution for non-disclosure, when it said:-

“…the state is entitled to withhold any information contained in the police docket if it satisfies the court on a balance of probabilities that it has reasonable grounds for believing that the disclosure of any such information might reasonably impede the ends of justice or otherwise be contrary to public interest such as for instance where the information sought would disclose the identity of an informer or where it would disclose police techniques of investigation which it is necessary to protect or where such disclosure might endanger the safety of a witness…

At the end of the day, in the event that the prosecution wants not to disclose certain material, they will have to make an application to the courts and the courts will have the final say and it is clear that in the interest of justice the right of the accused to full disclosure which would be a higher priority. Of course, the defence must be accorded the right to be heard in any such applications.

The Right to Full Pre-Trial Disclosure in Malaysia

Even though this right of full pre-trial disclosure has been gaining recognition throughout the world, especially in the commonwealth countries, especially since the early 90s, sadly in Malaysia this right is yet to receive the necessary recognition in law. But to be fair, there were some amongst the Malaysian judiciary even as early as 1979 that felt the need for pre-trial disclosure, and such a sentiment was expressed by Wan Yahya J (as he then was) in the case of Haji Abdul Ghani Bin Ishak -v- Public Prosecutor (1979) 1 LNS 23 when he said:-

“…An attitude of undue caution in the production of documents necessary for the defence of an accused person may unfairly give rise to the insinuation that the prosecution is resorting to a hide and seek method or reducing the defence to a game of blind man’s buff...”

Even though the right to full pre-trial disclosure is not recognized in Malaysia, there have been challenges[g] for the recognition of this right in the courts. The right to 2 appeals makes it very difficult for an application for full disclosure originating from a criminal matter in the magistrate and sessions court to reach the Federal Court[h]. Likewise the doctrine of stare decisis[i] has been an impediment.

It is sad that it is the Malaysian Judiciary that have deprived the accused person of the right of pre-trial full disclosure and even the right to immediate access a lawyer for an arrested suspect upon arrest despite the fact that it was possible under the Malaysian Constitution and existing laws. If only we had a more progressive Malaysian judiciary, we would have had the necessary rights to ensure a fair trial for the accused person long ago.

The good news is that the right to full pre-trial disclosure may finally be entering the statute books of Malaysia[j], but as to when this would actually be enacted and come in force is still a question. From what I have heard (for which I could not get any positive confirmation to date), another Act for Witness Protection is being drafted and only after that ‘Witness Protection Act” is passed and come into force would the right of full disclosure also become part of our law.

Witness Protection – Meaning, Scope and Extend

The term “witness protection” is a new term today for Malaysia whereby the old term commonly used was “witness tampering”. “Witness tampering” seem to indicate concern about not destroying the evidence of the prosecution until it is adduced before the court. It was not directly concerned with the protection of the witness per se. It definitely was not about the protection of the witnesses after they had given their evidence in court.

Today, the new term “witness protection” looks at protecting witnesses not only until the day they adduced their evidence in court but also beyond that. In the United States of America, it talks about providing of a new identity and a re-location of the witness so that the accused/convicted and/or their friends/agents could not find these witness and visit harm/death on them by reason of revenge or as a deterrent to future witnesses.

Witness protection may be justifiable for crimes committed by persons linked to or in criminal gangs, organized crime families, mafias and such like groups of persons – but for the crimes committed by ordinary criminals, witness protection may not be justifiable especially if it goes against the right of the accused to a fair trial, which must include the right to full pre-trial disclosure.

Witness protection legislations itself may not be sufficient without the creation of a independent corruption-free body that would be able to deal and ensure an effective witness protection programme. Malaysia, unlike the United States of America and some of the other jurisdictions that have similar legislations and programmes, is a small country and provisions of a new identity and re-location within the country may not be effective and/or practical.

Further, unless and until we are able to eliminate corruption and other influences in the police force and other government agencies, witness protection will never be really effective.

In Malaysia, today there seem to be classes of persons who are above the law – and this include leaders in government and local government, certain political parties and persons connected to such persons[k]. This perception does no good in re-building confidence in the police and/or other government agencies and/or bodies involved in the criminal justice system.

Until we, in Malaysia have a corrupt-free and independent police force and other similar enforcement agencies, Public Prosecutor’s office and Judiciary that is also committed only to the upholding of the cause of justice without fear or favor, any Witness Protection Act or programme will not work.

I must state very clearly that for me the rights of the arrested and the accused persons to a free and fair trial, which should include that right to full pre-trial disclosure to enable the defence to effectively prepare and present a defence, is of a greater importance compared to any form of witness protection. Witness protection, even if it is to be, must be limited to crimes committed by certain classes of persons only and even in those cases it must never lead to a deprivation of the right of disclosure and definitely not the right of the defence to meet and take statements from such witnesses wy before the trial.

Charles Hector

16th November 2006

[a] Section 145 and section 155(c ) of the Evidence Act.

[b] This was also the case where the Federal Court made the pronouncement that witness statements were absolutely privileged – and the basis of this pronouncement were 2 defamation cases, where it was decided that statements made to the police were absolutely privileged. The Federal court said this : “…These two cases involve actions for defamation. But I am of the view that once police statement is held to be absolutely privileged for one judicial purpose, it is privileged for other purposes…”. I believe that the learned judge erred in law on this point.

[c] Section 57, 58, 59, 60, 61 or 62

[d] Some of these shackling provisions like the limitations placed on lawyers below 7 years standing, the onerous quorum requirements for a General Meeting of the Malaysian Bar and the State Bars were removed recently by the coming into force of the Legal Profession (Amendment) Act 2006. The new amendment Act however has in it an ouster of judicial review provision, and other provisions that go against the principles of natural justice and fairness.

[e] Page 796, para h fol.

[f] I must state that what I have considered to date are authorities from Commonwealth countries.

[g] One such case that is before the Court of Appeal now is Criminal Appeal No: W - 05 - 66 – 2003, MUZAMMIL IZAT BIN HASHIM –v- Public Prosecutor

[h] In Malaysia, appeals from the lower courts (Magistrate/Sessions Courts) goes to the High Court and thereafter to the Court of Appeal. A matter from the High Court is appealable to the Court of Appeal and thereafter to the Federal Court. Most criminal cases, save for capital punishment cases, generally is heard by the lower courts.

[i] "to stand by things decided") is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. More fully, the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet" (the phrase "quieta non movere" is itself a famous maxim akin to "let sleeping dogs lie") – Wikipedia. Lower courts are bound to follow decisions of higher courts.

[j] Criminal Procedure Code (Amendment) Act 2006, which received Roayal Assent on 27/9/2006 and was gazetted on 5/10/2006 is at present not yet in force. New section 51A – deals with pre-trial disclosure – but the real scope of what must be disclosed is still vague.

[k] Recently a Member of Parliament apparently admitted to possibly committing acts of corruption and possibly even involved in importing logs contrary to law but to date he is yet to be charged. We had a senior politician who contravened the law by taking cash monies above the permissible limit out of Malaysia to another country where he was charged in that country – but to date no charges seem to have been preferred against him in Malaysia. There are other such cases but no actions of arresting and charging them have happened. All these kinds of instances do not help the public perception of the criminal justice system is concerned.

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