Fair trial for Najib, pre-trial disclosure a fundamental right — MADPET
AUGUST 17 — MADPET (Malaysians Against Death Penalty and
Torture) notes that Datuk Seri 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/she has been charged, to enable the accused
the needed time and opportunity to prepare his/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 before the trial,
as being a fundamental requirement to ensure a fair trial, Parliament
did amend the law in 2006, inserting of the new section 51A in the
Criminal Procedure Code, which now makes pre-trial disclosure by the
prosecution obligatory.
Sadly,
there still are many inadequacies in this new section 51A, including
also the provision which still allows the prosecution to ‘hide’ certain
facts that may be favourable for the accused.
Prosecution should submit everything, including also all
evidence, documents and facts favourable to the accused persons. This
should rightly include all reports and also all statements recorded
during the investigations. Other evidence and information, discovered
later, should also be submitted to the accused person as soon as
possible.
The accused person should have the time to do their own
investigation about this alleged evidence and/or witnesses, which
prosecution has obtained. The accused people also have the right to
interview before trial all possible witnesses of the prosecution, and
others in their preparation of their defence in a case.
A good defence lawyer will generally not simply go
blindly and unprepared to court, and simply wait for prosecution to
submit their evidence, and then try to challenge these evidence and/or
witnesses as it is revealed. A good lawyer would have also conduct 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 this may reveal flaws in witnesses and/or evidence
presented by the prosecution during trial, that are most relevant for
judges in determining the weight that should be given to such pieces of
evidence.
Many Malaysians may now be angry with what Najib and the
previous government did while in power, but this should really 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 – time
Section 51A still is inadequate, as it still does not
state clearly the time for the delivery of these material to the accused
person, and 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, it should be submitted as soon as the accused is
charged, and thereafter for other new evidence, as soon as prosecution
has it.
In the case of Najib, it is most disturbing that these
documents were not delivered to the accused soon after he was charged on
4/7/2018, but allegedly only on 8/8/2018. As such Najib’s defence team
may have been prejudiced by this delay of more than a month.(Malaysiakini, 8/8/2018)
The documents were also allegedly delivered in a CD
format, which hopefully were coloured copies of the said original
documents, because just delivering black and white photocopies of
original documents in colour will simply not do. The Defence have a
right to know whether prosecution has original documents or just mere
photocopies.
Previously, these documents would have been delivered as
printed bundles, but not in a CD format. Even if delivered in a CD
format, it really may be best that still a Bundle of documents are
provided to the accused, as not all lawyers may have the same version of
the programs in their computers under which these documents were
created in, or even printers that will print accurately the documents in
the same sizes in which the original is in.
Section 51a now only requires prosecution to provide some but not all documents
There is now a requirement to provide the First
Information Report(FIR), being really 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 trial.
Justly, 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 involving the
conducting of investigations, statements recorded from witnesses, report
of identification parades, all reports of tests conducted, letters and
correspondences between the police/prosecutors to
governments/institutions done during the investigations and other
relevant documents.
Section 51a still allows the prosecution to ‘hide’ relevant facts
Section 51A(1)(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 being revealed in court. This is grossly unjust to the
accused person, 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.
However, what is best is that there is no withholding of
facts and/or 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/or evidence to the accused. Even if something maybe
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 any person to be wrongly
convicted by reason of action/omission on the part of the prosecution
and/or the police, which may include the suppression of relevant facts
and evidence, as did happen 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, who has
repeatedly stressed their commitment to Rule of Law and justice, must
now speedily amend our laws to guarantee full pre-trial disclosure, that
should happen timeously, 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, prosecution has a high burden
of proof — beyond reasonable doubt, and 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, is the existence
of bad laws or the non-existent of laws that make a wrongdoing a crime.
The laws that protect public servants, including the Prime Minister,
members of the executive and peoples’ representative really 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 mean the immediate
abolition of all Detention Without Trial laws like the Prevention of
Crime Act 1959 (POCA) and Prevention of Terrorism Act 2015, laws that
allow persons, not accorded a fair trial to be detained or restricted
without any fair trial.
100 days have lapsed, since the Pakatan Harapan led
government came into power, but sadly what is done to date with regard
to the much needed repeals of bad laws, which deny the right to a fair
trial, or the amendment/enactment of laws that ensure greater protection
of human rights has still not happened.
*This statement is submitted by Charles Hector for and on behalf of MADPET(Malaysians Against Death Penalty and Torture). - Malay Mail, 17/8/2018
See full original statements, and relevant media reports at-
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