EXCLUSION OF CERTAIN EVIDENCE
I shall now explain why I excluded certain categories of evidence. They
are as follows:
(i) Evidence relating to political conspiracy
(ii) Evidence relating to credit
(iii) Evidence relating to the taped conversation
(iv) Hearsay evidence
(v) Evidence relating to other instances of alleged fabrication of evidence
(vi) Evidence relating to legal professional privilege
(i) Evidence relating to political conspiracy
Political conspiracy is a slogan that has been indiscriminately used
by the Defence from the very beginning of the trial. The battle cry of
this slogan is that certain prominent politicians had conspired to topple
the accused and, in order to achieve that objective, had enlisted the assistance
of Ummi to make the allegations in return for benefits. As I have explained
in an earlier part of the judgment the truth or falsity of the allegations
is not a fact in issue. What the prosecution needs to prove is only the
fact of making the allegations. That is all that is required of the prosecution
as far as the allegations are concerned. Thus evidence of causative facts,
motive and introductory or explanatory facts relating to the making of
the allegations are irrelevant pursuant to Sections 7, 8 and 9 of the Evidence
Act 1950 respectively. This means that even if there were forces, be it
political, corporate or otherwise, behind Ummi in making the allegations
evidence of such facts would be irrelevant to the fact in issue. This,
to my mind, ought to have become apparent to even the most uninitiated
when I made the ruling on the irrelevancy of the truth or falsity of the
allegations at the end of the case for the prosecution. What then is left
for the Defence to raise, apart from a denial that the allegations were
made, is that the evidence of the prosecution witnesses relating to the
directions given by the accused is a fabrication. That is a line of defence
that was open to the Defence from the very beginning of the prosecution
case. Such a defence, properly advocated, would be a perfect web for a
conspiracy by whatever description it may be clothed or coloured. If that
line of assault is not launched and pursued by legally acceptable means
the shout of political conspiracy will have no legal basis whatsoever and
will continue to remain as a smokescreen to hide away from the real issues.
The Defence made an attempt to go back to the issue of political conspiracy
through a different route, correctly, in my opinion, in the course of its
case. This happened when the accused, while giving evidence, made references
to political figures who were against him, and said,
"After
3.9.1997 there was a change in the political and economic conditions beginning
with financial convulsions engulfing the region and different policies
advocated in dealing with the financial and economic crisis. We in Malaysia
began to feel the impact towards the end of 1997. There was a major difference
in policies between me as Minister of Finance and the Prime Minister. I
do believe this was generally known to the public."
The introduction of this
evidence led me to interject and ask learned counsel to explain the relevance
of this line of questioning. In reply to my question Raja Aziz Addruse,
leading counsel for the Defence, said this:
"This
is to establish conspiracy to show change of attitude of the authorities
towards the accused. It was one of the reasons of the conspiracy to get
rid of him. The conspiracy issue is very important in this case because
the credibility of the police comes into question. Why I say that the issue
of conspiracy and credibility of the police are important is because of
the evident change in the attitude of PW1 and PW11 as well as PW13 when
we compare the time at September 1997 and later on. One can see a major
change. Nobody has explained the change."
I then asked learned counsel
whether this theory of conspiracy is aimed at showing that the allegations
are false. In reply he said,
"No.
To show the credibility of witnesses."
I then asked him whether
it meant that he was attempting to show that the relevant police officers
had given false evidence to which he gave an answer in the affirmative.
When asked to explain how he would establish this he said,
"Because
in 1997 all the contemporary documents including D25 had stated in no uncertain
terms that there were people behind the allegations."
I then asked learned counsel
whether the issue of conspiracy involving police officers was put to the
police witnesses when they gave evidence. In reply he said,
"PW1
was asked if a person higher than the Deputy Prime Minister were to tell
him to lie, would he lie? If there was conspiracy then that would explain
the change in attitude of the police towards accused. That would also explain
why what was in order in 1997 September became in 1998 not in order all
of a sudden. That goes to credibility. In any event it is not proper for
the court to shut out the defence of conspiracy. Court may rule it out
later."
In reply to the argument
advanced the Honourable Attorney General said,
"With
respect to my learned friend the question of conspiracy must be relevant
to the charges. It must be a conspiracy, to be relevant, involving the
police. In 1997 there was this investigation, if it can be called one,
by the Special Branch. There was a turning over process. The investigation
was not complete. We did not know what had happened. Based on those documents
the investigation was aborted. At that time the investigation officer was
not aware of the turning over operation. In 1998 there was no sabotage.
Arising out of the report on 50 Dalil there was a full investigation. It
was in the course of this investigation that the investigation officer
discovered the turning over operation. If at all there was a conspiracy
does it involve the police? Political conspiracy has nothing to do with
the charges. The matter of conspiracy, if any, by the police was not put
to the police officers. Thus the question of change of attitude of police
officers being linked to conspiracy is not relevant."
On the need for the Defence
to put its case to the prosecution witnesses Senior Deputy Public Prosecutor,
Dato Abdul Gani Patail, read a passage form Chua Beow Huat v PP (1970)
2 MLJ 29. Raja Aziz Addruse, in reply then said,
"Their
argument was perfectly alright at the end of their case. That was accepted
by Court. That argument was because investigations were sabotaged by Special
Branch because of alleged directives allegedly given by accused. Buku 50
Dalil was published in 1998. There was a fresh investigation. SAC Musa
discovered that there was turning over. That was their story. Now we have
to put our side of the story. We have to explain the reason for this change."
I then posed this question
to learned counsel,
"In the
absence of conspiracy involving police officers having been put to prosecution
witnesses, can you explain to me in what way was there a conspiracy involving
police officers to change their stand?"
Learned counsel requested
for the case to be stood down to enable him to check up the matter and
when court resumed said,
"We have
IDD76 and IDD77. They are letters written by the accused to the Prime Minister
dated 25.8.1998 and 28.8.1998. In IDD76 it is first line of p 3 and para
(i) p 4 1st para 1, p 1 of para 1 beginning with word "Mereka
… " IDD77 para 2. Evidence of PW13 on these exhibits given on 16.12.1998."
The argument advanced shows
that there has been a shift from political conspiracy to police conspiracy.
This would be a valid defence. Evidence to show that the police had conspired
to change the stand of the prosecution witnesses or to fabricate evidence
against the accused would be clearly relevant. That would form a sound
foundation for a conspiracy, by whatever name the Defence feels comfortable
to describe it. The concept of a political conspiracy without this basis
is therefore meaningless. It is this that ought to have attracted the attention
of the Defence from the very beginning. As the prosecution pointed out,
with reference to Chua Beow Huat v PP (1970) 2 MLJ 29, the Defence
ought to have put this line of defence to witnesses for the prosecution
when they were cross-examined. That, of course, does not mean that the
Defence cannot raise this issue now and, in addition, it can always be
put to the witnesses by having them recalled. However, even if the latter
course is not followed the Court is still bound to consider any evidence
adduced at the defence stage in respect of that issue. Thus I made the
following order:
"Evidence
may be adduced, if any, to show that there was a conspiracy by the police
to change their stand or conspiracy to create evidence against the accused
AND NO FURTHER. In this regard evidence of political conspiracy against
the accused, if any, is irrelevant ."
Be that as it may, it is
superfluous to state that any such evidence adduced must, in the first
place, be admissible under the relevant provisions of the Evidence Act
1950. Thus, for the avoidance of any doubt I made this clear to the Defence
on 12 February 1999 in the following words:
"I would
like to advise the Defence that the introduction of collateral facts, if
any, to establish the theory of police conspiracy must be shown to be relevant
in accordance with the provisions of the Evidence Act 1950. To that extent
I would appreciate submission from both parties before such evidence, if
any, is sought to be tendered in accordance with Section 136 of the Evidence
Act 1950."
(ii) Evidence relating to credit
The Defence had attempted during the prosecution case to adduce evidence
to discredit Ummi by showing that certain answers she gave under cross-examination
are not true, in particular, when she said,
"Saya
tidak pernah didisowned by my parents. Saya tidak bersetuju bahawa saya
telah dibuang oleh bapa saya. Saya tidak bersetuju bahawa saya menjual
kereta Mercedes bapa saya tanpa kebenarannya untuk membayar hutang saya.
Saya tidak bersetuju bahawa saya mempunyai banyak hutang."
And when referred to a statutory
declaration affirmed by her father stating that he had disowned her she
had said,
"Ini
dilakukan tanpa pengetahuan saya tetapi saya berani mengatakan Azmin telah
berasuahkan bapa saya untuk melakukan perkara ini. … Saya tidak menyalahkan
bapa saya dalam hal ini kerana saya percaya ada dalang di sebaliknya iaitu
Azmin di mana dia telah menghadiahkan bapa saya sebuah rumah bungalow yang
bernilai, kalau ta’ silap saya, RM300,000 dan sebuah kereta Perdana yang
dibeli secara tunai selepas kes 50 Dalil meletup."
When Azmin was giving evidence
during the Defence case he was referred to the part of the evidence of
Ummi where she had said that he had bribed his father to take his side.
Azmin said that Ummi is a compulsive liar. When he was asked to substantiate
the statement the prosecution contended that this line of questioning should
not be allowed based on Section 153 of the Evidence Act 1950. The Defence
argued that it is relevant in relation to the credibility of Ummi. Having
initially allowed the flow of questioning I invited parties to submit further
on the law relating to this issue.
The prosecution started
its submission by saying that questions asked of a witness must be relevant.
The questions put in this instance are collateral in nature and the answers
given cannot be contradicted as they relate only to the credit of Ummi
and must be accepted as final though the answers given need not be accepted
as the truth. The Defence argued that if evidence cannot be led to contradict
the evidence of Ummi the Court may hold that the relevant part of Ummi’s
evidence sought to be challenged has been accepted. It was contended that
Azmin must be allowed to give evidence on the issues concerned to enable
the Court to assess the credibility of Ummi and to show that she is biased.
The answer to the argument
advanced lies in Section 153 of the Evidence Act 1950 which reads as follows:
"When
a witness has been asked and has answered any question which is relevant
to the inquiry only so far as it tends to shake his credit by injuring
his character, no evidence shall be given to contradict him; but if he
answers falsely he may afterwards be charged with giving false evidence.
Exception
1 — If a witness is asked whether he has been previously convicted
of any crime and denies it, evidence may be given of his previous conviction.
Exception
2 — If a witness is asked any question tending to impeach his impartiality
and answers it by denying the facts suggested, he may be contradicted."
It must first be observed
that when a witness has been asked in cross-examination a question which
is directly relevant to the matter in issue, and he gives a denial or a
certain reply, he may of course be contradicted by independent evidence
on all matters directly, relevant to the issue. But where the question
relates to a fact which is collateral to the issue, that is to say, where
it is asked merely for discrediting a witness and the witness gives an
answer, he cannot be contradicted. The reason for the rule is obvious.
The primary object of a trial is to confine itself to the points in issue.
Questions asked with the sole object of shaking the credit of a witness
bring in their train many matters irrelevant or foreign to the inquiry,
and if the parties are allowed to adduce evidence to contradict them, it
is bound to draw away the mind from the points in issue and to protract
the investigation to an embarrassing and dangerous length. There will be
no end of proving collateral issues, and the real points in dispute will
be lost sight of. (See Sarkar on Evidence 14 Ed pp 2070 —2071.)
This is a sound general rule, based on the desirability of avoiding multiplicity
of issues to the effect that the answers given by a witness to questions
put to him in cross-examination concerning collateral facts must be treated
as final. They may or may not be accepted by the Court, but the cross-examiner
must take them for better or worse and cannot contradict them by other
evidence (see R v Livingstone (1987) 1 Qd R 28). The test for determining
whether a matter is collateral or not, according to Pollock CB in Attorney
General v Hitchcock (1847) 1 Exch 90, is this:
"If the
answer of a witness is a matter which you would be allowed on your own
part to prove in evidence — if it have such a connection with the issues
that you would be allowed to give it in evidence — then it is a matter
on which you may contradict him."
In Harris v Tippett (1811)
2 Comp 637 the defendant witness was asked in cross-examination whether
he had attempted to dissuade one of the plaintiff’s witnesses from attending
the trial. Upon his denying it Lawrence J held that a witness to the contrary
could not be called on the footing that, the questions not being relevant
to the issue, other witnesses cannot be called to contradict the answers
given. In Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533
a witness in a running down action, asked in cross-examination to account
for his presence at the scene of the accident said he had been to the bank
on behalf of a named person. It was held on appeal that the trial judge
had wrongly allowed the bank manager to give evidence to the effect that
no business was done on behalf of the person named by the witness on the
day of the accident. Conversely in R v Busby (1981) 75 Cr App R
79, a prosecution for burglary and handling, police officers were cross-examined
to the effect that they had fabricated statements attributed to the accused
and indicative of his guilt, and had threatened W, a potential defence
witness, to stop him giving evidence. These allegations were denied. The
trial judge ruled that the defence could not call W to give evidence that
he had been threatened by the officers, because this would go solely to
their credit. Allowing the appeal against conviction, the Court of Appeal
held that the trial judge had erred and that the evidence was relevant
to an issue which had to be tried, because, if true, it would have supported
the defence case that the statements attributed to the accused had been
fabricated. In R v Phillips (1936) 26 Cr App R 17 the Court of Criminal
Appeal held that the accused should have been allowed to call evidence
to rebut his daughters’ denial that they had been schooled by their mother
to give evidence against him. I pause to add that in both these cases the
evidence in rebuttal related to matters that had been specifically raised
and attributed to the witnesses concerned. Thus the rebuttal evidence sought
to be introduced was directly in issue to the charges and was not a matter
of credit.
As I have repeatedly
stressed the truth or falsity of the allegations made by Ummi is not relevant.
What is relevant is the fact that she had made the allegations. Thus the
motives, interest or conduct of Ummi in making the allegations are irrelevant.
Accordingly, the facts whether she has been disowned by her father or not;
whether she has sold her father’s Mercedes Benz motor car or not; whether
she is heavily indebted or not; or whether her brother Azmin has bribed
her father in order to disown her are not relevant to the issues before
the Court and the answers she gave in reply to the questions in issue must
be taken as final and cannot be contradicted. They are matters which the
Defence itself would not be permitted to adduce in evidence in support
of its case as they have no connection with the facts in issue and are
therefore irrelevant. If it were otherwise the Court will be embarking
on the unnecessary task of resolving the family dispute between Ummi and
Azmin. I therefore reversed my earlier ruling and ruled that the answers
given by Ummi cannot be contradicted.
(i) Evidence relating
to the taped conversation
On 16 June 1998 Nor Azman
bin Abdullah @ Beginda anak Minda, a Defence witness, went to London with
his employer Dato Sng Chee Hua, Ummi and one George. In the early part
of the testimony of this witness the Defence sought to adduce in evidence
parts of a conversation between him and Ummi regarding Buku 50 Dalil. Upon
objection having been taken by the prosecution learned counsel said that
the evidence sought to be adduced is not about political conspiracy but
as to what happened in London, particularly, with regard to Exhibit P14A,
B and C. I over-ruled the objection of the prosecution and ordered that
the questioning of the witness be directed to the matters stated by learned
counsel. Nor Azman then proceeded to say that he taped a conversation between
Ummi and Dato Sng Chee Hua over a period of four days. He recorded the
conversation in a total of seven tapes. Initially he said that as certain
parts of the recording were not clear he cut off those parts. With the
editing he did the seven tapes were reduced to four tapes. His examination
then proceeded this way:
"Question
:
Adakah kamu memotong apa-apa perbualan yang terang?
Answer
: Ya, saya ada memotong perbualan yang sangat terang dan jelas. Sebab saya
memotongnya selepas Timbalan Perdana Menteri Dato Seri Anwar Ibrahim mendengar
tape tersebut. Dato Seri kata dia tidak mahu implicate nama Perdana Menteri
di dalam tape tersebut. Dato Seri Anwar berkata Perdana Menteri baik dengannya.
Cuma pihak tertentu cuba memasukkan nama Perdana Menteri. …
Question
: Adakah bahagian yang terang selain daripada bahagian yang kamu sebut
tadi juga dipotong dari 7 rakaman itu?
Answer
: Ada, yang saya menyebut Perdana Menteri sudah berkarat. Mungkin ada yang
lain yang kasar saya potong yang saya ta’ ingat. …
Question
: Bolehkah kamu ingat sekarang apakah bahagian lain yang kamu potong?
Answer
: Ya, ada.
Question
:
Yang lain seperti Ummi menyebut nama-nama orang yang menaja Buku tersebut.
Question
: Daripada dua pita adakah kamu jadikan kepada satu pita?
Answer
: Ada."
He said that he had burnt
the original seven tapes. He had given the four tapes to a lawyer called
Yeoh for safekeeping before they were handed to the police. The Defence
then applied for the four tapes to be played in order to prove that the
conversation did take place in London between Ummi and Dato Sng Chee Hua
as testified by Nor Azman. The prosecution objected to the application
on the ground that the conversation does not relate to a fact in issue.
I then asked learned counsel whether the conversation in the tapes have
anything to do with Exhibit P14A, B and C. He said,
"It has
something to do with P14A, B, C because the only role of Ummi in relation
to Buku 50 Dalil is with regard to P14A, B, C. The direct bearing between
the tapes and P14A, B , C is that the only role of Ummi in relation to
the book is P14A, B, C which she alleges she wrote. There is nothing in
the tapes to show that she did not write P14A, B, C."
In making a ruling I took
two factors into consideration. Firstly, on the statement by learned counsel
himself the tapes have nothing to do with the fact of the making of the
allegations by Ummi. The material parts of the conversation had already
been put to Ummi in the course of the case for the prosecution when she
was cross-examined. They relate to Buku 50 Dalil, Ummi’s hatred of the
accused and some mention of money. She denied them and said that she cannot
remember some parts of the conversation. These matters are not relevant
to the facts in issue in this case with regard to the making of the allegations
by her. Her answers of denial cannot therefore be contradicted pursuant
to Section 153 of the Evidence Act 1950 which I have discussed earlier.
Secondly, Nor Azman’s evidence indicated that the tapes have been tampered
with on the instructios of the accused. The conversation in the four tapes
sought to be admitted is therefore not an accurate account of what actually
transpired between the parties. In addition the fact that the original
seven tapes were burnt and not retained is in itself a suspicious circumstance
and casts serious doubts on the authenticity of the edited four tapes.
As I said in Mohd Ali Jaafar v PP (1998) 4 MLJ 210 if there is no
evidence to show that a taped conversation is an accurate account of a
conversation that occurred, then it is not admissible. Accordingly, I disallowed
the application to play the tapes with a view to them being admitted in
evidence.
(iv) Hearsay evidence
Nor Azman while giving
evidence, said that Ummi showed him Buku 50 Dalil at the Subang Airport,
Kuala Lumpur when they were on their way to London. After he was examined
on several matters relating to the book he was asked,
"Adakah
Ummi memberitahu kamu dari manakah beliau dapat buku itu?"
The prosecution objected
to this question being asked on the ground that the answer given will be
hearsay. The Defence argued that what is attempted to be adduced is whether
Nor Azman heard from Ummi where she got the book from. It was contended
that it would fall within the scope of Section 60(1)(b) and (c) of the
Evidence Act 1950 as direct evidence. It was further argued that the answer
is admissible to show that the statement was made (in answer to the question)
and not in proof of its truth. When I asked learned counsel the purpose
which is sought to be established by proving the fact of the statement
having been made he said,
"PP
v Subramaniam did not confine itself to the receipt of such evidence
only to show the mental state of the witness. In this case it is admissible
merely to show that the statement was made. This is a case where Ummi was
called. She was a witness in this case. It will only be hearsay if this
witness testifies about what Ummi told him of what someone else told her
i.e. double hearsay."
The law relating to hearsay
evidence is well settled. As Mr LMD de Silva said in Subramaniam v PP
(1956)
MLJ 220 at p 222,
"Evidence
of a statement made to a witness by a person who is not himself called
as a witness may or may not be hearsay. It is hearsay and inadmissible
when the object of the evidence is to establish the truth of what is contained
in the statement. It is not hearsay and is admissible when it is proposed
to establish by the evidence, not the truth of the statement, but the fact
that it was made. The fact that the statement was made, quite apart from
its truth, is frequently relevant in considering the mental state and conduct
thereafter of the witness or of some other person in whose presence the
statement was made."
The last part of the passage
was referred to by the Federal Court in Leong Hong Khie v PP (1986)
2 MLJ 206 where Seah FJ in writing for the Court said at 209,
"In our
opinion, the general proposition laid down by the Privy Council in that
case must be read subject to this condition, viz., that the statement must
be directly relevant in considering the state of kind of the witness to
whom it had been made. In other words, the proposition could only apply
when the mental state of the witness evidenced by the statement was itself
directly in issue at the trial.
The reference to a statement
made to a witness by a person who is not himself called as a witness means
that the rule applies to what can be described as firsthand hearsay. To
that extent learned counsel’s submission that the rule applies only to
double hearsay cannot be sustained. When learned counsel said that the
statement is sought to be admitted to show that it was made and not to
establish its truth I asked him the purpose for such admission. He said
that it is admissible merely to show that it was made. In my opinion the
fact that a statement was made does not on its own make it admissible.
It must be shown to be relevant to a fact in issue as the fact that a statement
has been made may be admissible for many purposes. It becomes relevant
only when it is desired, for instance, to show the state of mind of the
person to whom it is made and that the mental state of the witness evidenced
by the statement is itself directly in issue at the trial. It is to ascertain
this purpose that I asked learned counsel the reason for which he wanted
the answer of Nor Azman to be admitted. If the purpose is not shown the
Court would be in no position to rule on the relevancy of the statement
with regard to the facts in issue, and, if it is not relevant at all the
statement would amount to hearsay and thereby become inadmissible. This
is made clear by a passage from the book entitled Hearsay: A Practical
Guide Through the Thicket by Irving Younger at p 12 as follows:
"Back
to our witness: ‘On October 15. I spoke with my brother. He was in London.
We spoke by phone. He said to me, "It’s raining here in London."’ ‘Objection!
Hearsay!’
If the
judge is alert, he will say, ‘Counselor, what are you trying to prove?’
Suppose
that the proponent says, ‘Your Honor, I am trying to prove that the transatlantic
telephone was in good working order on that day.’
It is not
hearsay. The statement is not offered to prove the truth of what it asserts.
‘Your Honor,
I am trying to prove that his brother was alive on that day.’
Not hearsay.
We could
continue with many hypothetical relevances, each of which leads to the
conclusion that the out-of-court statement is not hearsay. But consider
one particular relevance. Witness on the stand: ‘I spoke with my brother.
My brother said to me, "It’s raining here in London."’
‘Objection!’
‘Counselor,
what are you trying to prove?’
‘Your Honor,
I am trying to prove that it was raining in London.’
Now
it is hearsay. Only now is the out-of-court statement being offered
to prove the truth of what it asserts: that it was raining in London. This
is the only relevance that can make the statement hearsay.
‘Objection
sustained. Call your next witness.’ "
I made this inquiry in accordance
with Section 136(1) of the Evidence Act 1950, which I shall discuss in
some detail shortly, in order to rule on the relevancy of the proposed
evidence. As learned counsel failed to advance any cogent reason to show
the relevance of the proposed answer I allowed the objection raised by
the prosecution.
(v) Evidence relating
to other instances of alleged fabrication of evidence
The Defence proposed
to adduce evidence of requests to persons to fabricate evidence against
the accused and extraction of confessions from persons saying that they
had been sodomised by the accused by the police in support of the defence
of police conspiracy. As I had some doubts as to the evidential value of
the evidence sought to be adduced I asked both parties to submit on the
relevancy of such evidence before the witnesses are called. The first matter
that requires consideration is the power of the Court to require a party
to disclose the relevancy of the evidence of a proposed witness before
the witness gives evidence. This brings into focus Section 136(1) of the
Evidence Act 1950 which reads as follows:
"When
either party proposes to give evidence of any fact, the court may ask the
party proposing to give the evidence in what manner the alleged fact, if
proved, would be relevant; and the court shall admit the evidence if it
thinks that the fact, if proved, would be relevant, and not otherwise."
Questions of admissibility
of evidence are questions of law and are determinable by the judge. If
it is the duty of the judge to admit all relevant evidence, it is no less
his duty to exclude all irrelevant evidence. Section 5 of the Evidence
Act 1950 declares that evidence may be given in any suit or proceeding
of the existence or non-existence of every fact in issue and of such other
facts as declared to be relevant and of no others. It follows from this
that a party to a suit or proceeding is entitled to give evidence of only
facts which are declared relevant under the provisions of the Evidence
Act 1950. The judge is empowered to allow only such evidence to be given
as is, in his opinion, relevant and admissible and in order to ascertain
the relevancy of the evidence which a party proposes to give, the judge
may ask the party proposing to give evidence, in what manner the alleged
fact, if proved, would be relevant, and he may then decide as to its admissibility
(see Sarkar on Evidence 15th Ed pp 2152 — 2153). As the
Law
of Evidence by Monir 10th Ed Vol II says at p 1399,
"This
section, therefore, gives to the court the power to ask a party tendering
evidence of a particular fact to show how the fact if proved would be relevant,
and the evidence can be admitted only if the court is satisfied that it
is relevant."
It is therefore manifestly
patent that the Court has been endowed with the power to exclude evidence
which it considers to be irrelevant. A matter of critical importance is
whether this power can be exercised by the Court before a proposed witness
begins to give evidence. In my opinion the language employed in the sub-section
clearly contemplates the exercise of the power at that stage as it empowers
the Court to inquire from a party " … in what manner the alleged fact,
if proved, would be relevant … " when a party "… proposes to give evidence
of any fact … " and to admit the evidence only if it finds it to be relevant.
The word "proposes" means the Court can exercise the power given by the
sub-section when a party wishes to call a witness, that is to say, before
a proposed witness begins to give evidence. As Field’s Law of Evidence
10th Ed Vol VI says in its commentary on the Indian equivalent
section at p 5624,
"The
practice of admitting evidence and reserving the question of its admissibility
for further consideration is unwise and much to be regretted. If the evidence
is once admitted, it is impossible to say what its effect may be on the
mind of the person who hears it. It is most desirable that the question
of admissibility should be finally decided when the objection to questions
is taken: Per Petheram CJ in Jadu Rai v Bhubotaran Nundy ILR 17
Cal 173 at p 186; see also Emperor v Panchkeri Dutt 1 LR 52 Cal
67, AIR 1925 Cal 587; Seikh Abdul v Emperor AIR 1925 Cal 887 at
p 888."
It has been held that the
Court may conduct this exercise even when a party applies to summon a person
as a witness. In saying this I draw support from the Law of Evidence
by
Woodroffe and Amir Ali 16th Ed Vol IV which says at p 3569,
"Where
a party applies for summoning a person as his witness to give evidence
in the case, a duty is cast by Section 136 of the Evidence Act on the Court
to inquire from the party summoning the witness in what manner the evidence
of the witness would be relevant for the purpose of the case. The court
should issue summons only if it thinks fit that the evidence would be relevant
for the decision and not in mechanical manner (Sankaran v Dr Ambulakshan
Nair 1989 (2) KLT 570)."
In my opinion, therefore,
a party does not have an automatic right to call a person as a witness.
The Court has the power, and, indeed is duty-bound, to inquire into the
relevancy of a proposed witness before he begins to give evidence. The
object is to ensure that evidence is confined to relevant facts and does
not stray beyond the proper limits of the issues at trial. In order to
ask a party " … in what manner the alleged fact, if proved, would be relevant
… " as provided by the sub-section it is necessary for the party to give
a summary of the proposed evidence when asked by the Court. It is only
with such a summary can the Court be in a position to rule on the relevancy
of the proposed evidence. The Court will then have to decide on its relevancy
on the assumption that the proposed evidence will be successfully proved.
I interpolate to add that the exclusion of witnesses on the principles
that I have discussed is not an infringement of the right of an accused
person to defend himself. I say this because such a right can be limited
by the provisions of any written law (see Yusuf Husain v Emperor AIR
1918 All 189). The Evidence Act 1950 limits the type of evidence that is
admissible in a trial including the presentation of a defence. Section
136(1) is the vehicle for excluding evidence that is rendered irrelevant
by the Evidence Act 1950. The power of the Court under this sub-section
is therefore clear.
The Defence gave a summary
of the evidence of the proposed witnesses. I shall set out only a brief
outline of the proposed evidence, though, in ruling on their relevancy
I considered the full summary as disclosed by the Defence. Manjeet Singh
Dhillon was to testify on his conversation with a Senior Deputy Public
Prosecutor, Dato Abdul Gani Patail, with regard to the reduction of a charge
faced by his client Dato Nallakaruppan. It was alleged that Dato Abdul
Gani Patail was not prepared to consider the request for the reduction
of the charge unless Dato Nallakaruppan co-operates by implicating the
accused by giving information concerning several women. Azmin, while in
police custody, was stripped and asked to say that he had been sodomised
by the accused and that the accused is corrupt, a womaniser and a sodomist.
Jamal is based in the United States. He was asked by a Malaysian Embassy
official to fabricate evidence against the accused in return for a big
sum of money to say that he had a sexual relationship with him. He refused.
Sukma Darmawan, Dr Munawar and Mior Abdul Razak were subjected to extreme
mental and physical torture by the police and forced to confess that the
accused had sodomised them. Dato Nallakaruppan was also forced to fabricate
evidence against the accused. He would testify that the allegations made
by SAC Musa in his affidavit dated 2 September 1998 against the accused
are fabricated. Three editors from the daily Nanyang Siang Pau would prove
a statement by YAB Prime Minister to the effect that there might be political
instability in the country if the accused is acquitted and that there will
be no disorder if there was a conviction.
In submitting that the
evidence proposed to be adduced is relevant the Defence said that it must
be considered in the light of the fact that the prosecution evidence is
fabricated. The evidence will show the steps taken by the various authorities
in order to "frame" or "fix-up" the accused. Evidence has been fabricated
against him with the prime motive to remove him from his position as Deputy
Prime Minister and Minister of Finance. As the Defence further said,
"It is
our submission that this process of removing the accused was a two-stage
process. Firstly, the events of August 1997 arose out of an attempt by
several persons in authority to use Azizan and Ummi in order to create
false allegations of sexual misconduct against the accused. It is our contention
that this plan was not able to come to fruition since it came to the attention
of the IGP and the IGP and senior officers of the Special Branch who then
actively proceeded on their own in the interests of national security to
take the necessary steps to counter the plan to topple the Deputy Prime
Minister in 1997. The police kept both accused and the Prime Minister informed
of this scheme. Consequently in 1997 the Prime Minister stated that the
allegations are not true. As a consequence of that nothing happened in
1997. With regard to the second stage of the plan to topple accused occurred
in 1998. Therefore the old allegations were brought to light. Thus an explanation
had to be given as to why Ummi and Azizan acted the way they did. The most
convenient way to explain this is to say that accused directed the police
to get the retractions."
It was contended that the
defence of fabrication cannot be considered in isolation and all ten charges
have to be viewed together. It was then said,
"Right
from inception of this case the defence has been that these charges are
false and fabricated. That is the foundation of the defence to all the
charges."
It was then argued that
the evidence of the proposed witnesses is direct evidence of fabrication
of evidence against the accused by the police. The evidence will show the
involvement of SAC Musa in the case and the plan by the police to get innocent
people to fabricate evidence against the accused. The evidence will show
a common modus operandi on the part of the police and is proximate in point
of time and method. If this evidence is allowed to be adduced and if accepted
by the Court it would render it highly probable that the charges are indeed
a fabrication. The evidence is directly relevant to the facts in issue
and would form similar fact evidence. The evidence will show a deliberate
and well planned system of fabrication constituting a police conspiracy.
The evidence is also admissible under Sections 6, 7, 8 and 11 of the Evidence
Act 1950. The Defence then outlined certain points in the proposed evidence
to show system. The Defence referred to cases such as R v Phillips (1936)
26 Cr App R 17, R v Busby (1981) 75 Cr App R 79 and R v Marsh
(1986)
83 Cr App R 165. The prosecution, in its submission, said that the proposed
evidence has no connection with the charges. As it is not directly connected
to the facts in issue its admissibility is governed by Sections 11 and
15 of the Evidence Act 1950. In order to be admissible the proposed evidence
must be closely connected to the facts in issue. No evidence has been adduced
by the Defence to show that there is any fabrication of evidence by the
police with the result that the provisions of law referred to have no application.
In its reply the Defence contended that this is the first time where a
senior officer has been removed and thus the purpose of the charges must
be considered.
My first observation
is that the first part of the Defence submission and its reply are more
political in nature and irrelevant. As I have repeatedly advised the Defence
the so-called defence of political conspiracy is irrelevant by virtue of
the issues to be established by the prosecution. What is relevant is the
concept of police conspiracy, if any, to fabricate evidence against the
accused. Such a conspiracy must be established by evidence rendered admissible
by the Evidence Act 1950. The proposed evidence relates to collateral facts
and such evidence is generally not admissible. However, the proposed evidence
may be admissible under Sections 11 and 15 of the Evidence Act 1950 if
there is compliance with the requirements of the sections which I shall
now consider.
Section 11 Evidence
Act 1950
The section reads as
follows :
"Facts
not otherwise relevant are relevant —
(a) if
they are inconsistent with any fact in issue or relevant fact;
(b) if
by themselves or in connection with other facts they make the existence
or non-existence of any fact in issue or relevant fact highly probable
or improbable."
This section provides for
the relevancy of collateral facts. As Sarkar on Evidence 15th
Ed Vol 1 says at p 255,
"This
section has been expressed in very wide language, but it does not mean
that any and every fact which by a chain of reasoning may be shown to have
a bearing, however remote, on any fact in issue or relevant fact, is relevant.
… The words of the section are no doubt very wide, but in determining relevancy
the court in the exercise of a sound discretion should see that the connection
between the fact to be proved and the fact sought to be given in evidence
is so close or immediate as to render the co-existence of the two highly
probable or improbable. It has been seen that collateral facts are ordinarily
excluded and the section embodies one of the instances in which collateral
facts may be relevant."
The words "highly probable"
control the type of collateral facts that may be admitted under this section.
As Sarkar on Evidence 15th Ed Vol I says at p 262,
"The
words are not ‘reasonable probably’. The significant word is ‘highly’.
This means more than normal standard of probability."
The collateral facts sought
to be admitted must be reasonably conclusive to show that it is consistent
or inconsistent with a fact in issue (see Ismail v Hasnal; Abdul
Ghafar v Hasnal (1968) 1 MLJ 108). Thus the section makes only those
facts admissible which, assuming they are admitted in evidence, will be
of great weight in bringing the Court to a conclusion one way or the other
as regards the existence or non-existence of the facts in question (see
In
re Indian Companies Act 13 MLT 282; Govt of Bombay v Merwanji
IO
Bom LR 907; Bhuiya v Ramkali A 1971 P & H9). The illustrations
to the section indicate clearly what is the standard of high probability
or high improbability that is required before evidence can be admitted
under this section (see Babulal v WIT Ltd A 1957 C 709). Illustration
(a) to the section deals with the defence of alibi. In the case of that
defence if the element of time of the crime is definitely fixed, and the
accused is shown to have been at some other place at that time, the two
facts are mutually inconsistent and the truth of the charge cannot be established
(see R v Brennan (1806) 30 St Tr 58). Thus proof of the defence
of alibi will enable the Court to decide one way or the other as regards
the truth of the charge. This explains in clear terms the ambit of the
section.
Evidence adduced by the
Defence to show that the police has fabricated or attempted to fabricate
evidence against the accused in other instances will not show that the
existence of the facts in issue are highly improbable or that they are
inconsistent with the facts in issue. Merely because the police had fabricated
evidence against the accused in other instances does not mean that the
truth of the charges in this case cannot be established. The proposed evidence
will not have the weight in bringing the court to a conclusion one way
or the other as regards the existence or non-existence of the facts in
issue in this case. This is because the connection between the facts to
be proved and the facts sought to be given in evidence are not so close
or immediate as to render the co-existence of the two highly probable or
improbable. It does not have the weight to show that the two facts are
mutually inconsistent. The only purpose that the proposed evidence may
serve will be to show that by virtue of the conduct of the police in other
cases involving the accused there is a possibility that the same method
of fabricating evidence was employed in this case. But a mere possibility
does not meet the stringent requirements of the section. Be that as it
may, it must be observed that Section 11 must be construed as being limited
in its operation by Section 54 of the Evidence Act 1950. So construed Section
11 renders inadmissible the evidence of one crime (not reduced to legal
certainty by a conviction) to prove the existence of another unconnected
crime, even though it is cognate. In this regard I refer to the case of
R
v Parbhudas Ambaram (1874) 11 BHCR 90 the headnote of which reads as
follows:
"Section
11 of the Indian Evidence Act should not be construed in its widest significance,
but considered as limited in its effect by Section 54 of the Act. So construed,
Section 11 renders inadmissible the evidence of one crime (not reduced
to legal certainty by a conviction) to prove the evidence of another unconnected
crime, even though it is cognate. Accordingly, the possession by an accused
person of a number of documents suspected to be forged is no evidence to
prove that he has forged the particular document, with the forgery of which
he is charged.
PER WEST
J:- Where a person charges another with having forged a promissory note,
and denies having ever executed any promissory note at all, the evidence
that a note, similar to the one alleged to be forged, was, in fact, executed
by that person, is not admissible, nor even would a judgment, founded upon
such note, be so: Sections 43 and 153 of the Indian Evidence Act."
On similar principles the
accused would be excluded from adducing the proposed evidence as it is
unconnected, even though cognate, with the evidence in this case. The proposed
evidence cannot therefore be admitted in evidence under this section.
Section 15 Evidence
Act 1950
The section reads as
follows:
"When
there is a question whether an act was accidental or intentional or done
with a particular knowledge or intention, the fact that the act formed
part of a series of similar occurrences, in each of which the person doing
the act was concerned, is relevant."
This section deals with
evidence of similar facts. As Bray J observed in R v Bond (1906)
2 KB 389 at p 414,
"A careful
examination of the cases where evidence of this kind is admitted shows
that they may be grouped under three heads:
-
where the
prosecution seeks to prove a system or course of conduct
-
where the
prosecution seeks to rebut a suggestion on the part of the prisoner of
accident or mistake
-
where the
prosecution seeks to prove knowledge by the prisoner of some fact."
To admit evidence under
this section evidence of the other acts tendered must be of the same specific
kind as that in question. As Lawrence J said in R v Bond (1906)
2 KB 389 at p 424,
"In proximity
of time, in method, or in circumstances there must be a nexus between the
two sets of facts, otherwise no inference can be safely deduced therefrom."
Thus facts of a kind different
to the main fact or transaction are not admissible. This is illustrated
by the case of R v Fisher (1910) 1 KB 149. In that case the accused
obtained a pony and cart from the owner, saying he wanted it for his invalid
wife, and that he would take it on a week’s trial; he agreed to pay 2l
for
the use of the pony and cart for a week if he did not keep it, and as some
sort of security for the price he gave a bill of exchange for 25l.
It was proved that his wife was not an invalid and that the whole story
was false. The case for the prosecution was that this was a fraudulent
transaction. The prosecution adduced in evidence another instance where
the accused had obtained provender by falsely representing that he was
carrying on a business and was therefore in a position to pay for goods
supplied to him. In holding this evidence to be inadmissible Channell J
said at p 153,
"Applying
these principles to this case, the charge here is that the prisoner obtained
the pony and cart from the prosecutor by making certain statements. The
falsity of those statements is not proved by giving evidence that in other
cases the prisoner made other false statements, though it does tend to
shew that the prisoner was a swindler. But there is no rule of law that
swindling is, as regards proof, different from any other offence, and if
a man is charged with swindling in a particular manner, his guilt cannot
be proved by shewing that he has also swindled in some other manner. We
are of opinion that the evidence as to the other cases was inadmissible
in this case, because it was not relevant to prove that he had committed
the particular fraud for which he was being charged, in that it only amounted
to a suggestion that he was of a generally fraudulent disposition. On the
other hand, if all the cases had been frauds of a similar character, shewing
a systematic course of swindling by the same method, then the evidence
would have been admissible."
It must be emphasised that
similar fact evidence is not necessarily only evidence for the prosecution.
The defence may also resort to such evidence. As JRS Forbes says in his
book entitled Similar Facts at pp 128 — 129,
"In Knight
v Jones; Ex parte Jones (1981) Qd R 98 evidence of illegal or
officious conduct by an arresting officer on other occasions was received
to explain why the defendant refused to submit to a ‘breath test’ pursuant
to the Traffic Act 1949 (Qld). When similar fact evidence is tendered by
an accused person the policy of balancing probative force against prejudice
does not apply and the evidence need only be cogent enough to raise a reasonable
doubt (R v Livingstone (1987) 1 Qd R 39). However, the requirement
of striking similarity still applies."
That requirement was not
satisfied in R v Livingstone (1987) 1 Qd R 39 where the defendant,
in answer to a charge of assaulting a police officer, claimed that the
police officer was really the assailant. Evidence of assaults by the same
officer on other members of the public fell short of the requisite degree
of similarity because it did not reveal an investigative system and was
in truth no more than an allegation of unrelated assaults on the two witnesses.
On the other hand there was an investigative system in the South African
case of S v Letsoko (1964) (4) SA 768 (AD). In that case the appellants,
who were members of the Bantu race, were charged with sabotage. The similar
facts question arose upon a voir dire held to consider the admissibility
of confessions which were obtained by police violence. In support of their
direct testimony on that point the prisoners sought to lead evidence from
other Bantu that the police sabotage squad systematically assaulted all
the members of that race or tribe who were arrested on suspicion of committing
the offence. It was held that if several of them gave credible evidence
of the alleged police "system", and testified that they, too, had suffered
under it, there would be a nexus, sufficient in point of time, method and
circumstances to corroborate the appellant’s own evidence of violent treatment
leading to involuntary confessions.
As I said earlier in
order to render the proposed evidence admissible as similar facts it must
be of the same specific kind as in this case. However, in this case it
was not even suggested to the prosecution witnesses in cross-examination
that their evidence is fabricated at the instance of the police or the
prosecution. The accused merely made some general statements that the evidence
against him is fabricated. That, of course, does not mean that the defence
set up cannot be considered. In any event the proposed evidence relates
to fabrication and attempts to get fabricated evidence against the accused
for sexual misconduct. The evidence of Dato Mohd Said, Dato Amir Junus,
ACP Mazlan and DSP Aziz, even if fabricated, relates to directions given
for the retraction of allegations of sexual misconduct only and not to
allegations of sexual misconduct by them with the accused. The evidence
of Ummi and Azizan only relates to the making of allegations and not the
commission of sexual misconduct by them with the accused. Thus the facts
of this case have no nexus with the proposed evidence in point of method
and circumstance. The evidence of fabrication sought to be elicited from
the proposed witnesses and the fabrication of evidence in this case, if
any, are therefore not of the same specific kind to show any system. It
falls into the category of facts sought to be adduced in R v Fisher
(1910)
2 KB 149 and unlike in S v Letsoko (1964) (4) SA 768 (AD). The proposed
evidence is therefore not admissible as evidence of similar facts.
I therefore ruled the
proposed evidence as being irrelevant. It is therefore inadmissible. The
statement allegedly made by YAB Prime Minister has absolutely no relevance
to the charges. I also disallowed Dr Vasantha Nair, a Defence witness,
from giving medical evidence on the injuries sustained by the accused as
it is not relevant to the charges. On similar grounds I disallowed the
Defence application to recall Dr Halim Mansar, a prosecution witness.
-
Evidence relating to
legal privilege
The Defence called two advocates
and solicitors as witnesses whose proposed evidence related to communications
they had with clients.
One was Sukdev Singh
practising under the name and style of Tetuan Azlan Shah, Sukdev &
Co. He said he was appointed by Azizan to act for him. The prosecution
contended that as Sukdev Singh had said that he had been appointed by Azizan
to act for him it must be shown that he has obtained the express consent
of his client before he can disclose any communications between him and
Azizan. When asked whether he had obtained the consent of Azizan to disclose
communications made to him in the course of and for the purpose of his
employment as an advocate and solicitor he said,
"Saya
tidak mempunyai persetujuan atau kelulusan anakguam saya En Azizan bin
Abu Bakar seperti yang diminta oleh Tuan Peguam."
In the light of this answer
the Honourable Attorney General asked the Court to give the necessary directions
at that stage. The Defence referred to the evidence of Azizan to argue
that as he had said that he was threatened by Sukdev Singh to affirm the
statutory declaration (Exhibit D55) the solicitor must be allowed to rebut
the allegation. It was further argued that the evidence on the allegation
would come within the proviso to Section 126 of the Evidence Act 1950 and
thereby permit Sukdev Singh to give evidence on the matter. This argument,
as pointed out by the Honourable Attorney General, presupposes the fact
that Exhibit D55 was affirmed involuntarily. In response to this the Defence
said that its contention is that the exhibit was affirmed voluntarily.
The other advocate and solicitor called by the Defence was Mohd Faiz bin
Abdullah ("Mohd Faiz") practising under the name and style of Faiz &
Co. In 1998 he acted as solicitor for the accused in a civil suit involving
Buku 50 Dalil. Whilst handling that matter he came to know about Exhibit
P14C. In early July 1998 he met Azizan in his office with Sukdev Singh
and a Malay gentleman. In answer to a question Mohd Faiz said that Azizan
and Sukdev Singh came to his office for the purpose of discussing matters
pertaining to Buku 50 Dalil. He then said that Azizan asked to be shown
the pengakuan bersumpah contained in Buku 50 Dalil. I then asked the Defence
what evidence it sought to elicit from this witness in order to determine
whether Section 126 of the Evidence Act 1950 applies. Learned counsel said
that this witness will say that when Exhibit P14C was shown to Azizan he
denied that the signature on it was his. The prosecution contended that
such evidence is privileged and can be disclosed only as authorised. I
then directed that there be further examination of this witness in order
to determine whether there was a solicitor client relationship between
him and Azizan. When asked by the Defence Mohd Faiz said that he did not
act for Azizan and that he did not give any advice to him nor was any advice
sought. Under cross-examination by the prosecution Mohd Faiz said that
he posed certain questions to Azizan about Exhibit P14C. He agreed that
he also engaged in a conversation with Sukdev Singh in respect of legal
issues pertaining to those parts that concerned Azizan. He said that his
discussion with Sukdev Singh involved Exhibit P14C and Azizan. He agreed
that he offered his advice on certain legal issues to them. The meeting
was called by Sukdev Singh. When asked whether he agreed that other than
offering his opinion he also offered his assistance to them to do whatever
they wanted Mohd Faiz said,
"I discussed
legal issues with Sukdev Singh pertaining to this matter as between lawyers.
I offered assistance to Sukdev that I would be prepared to discuss further
with him on that matter. Also to look up the law. He offered the same assistance
to me."
The Defence argued that
the question of privilege does not arise in this case as Mohd Faiz was
not the solicitor or legal adviser to Azizan. Neither did he take on the
role of being a counsel to Sukdev Singh. The discussion that took place
was one between two solicitors, each acting for his own client. Thus any
view put forward by either solicitor is not privileged. The contention
of the prosecution was that Sukdev Singh went to the office of Mohd Faiz
as solicitor for Azizan. The discussion was on Buku 50 Dalil as far as
it concerned Azizan. It was argued that as Sukdev Singh consulted Mohd
Faiz on behalf of Azizan there was a solicitor client relationship between
Azizan and Mohd Faiz.
The arguments advanced
before me bring into focus Section 126 of the Evidence Act 1950 which reads
as follows:
"(1)
No advocate shall at any time be permitted, unless with his client’s express
consent, to disclose any communication made to him in the course and for
the purpose of his employment as such advocate by or on behalf of his client,
or to state the contents or condition of any document with which he has
become acquainted in the course and for the purpose of his professional
employment, or to disclose any advice given by him to his client in the
course and for the purpose of such employment.
Provided
that nothing in this section shall protect from disclosure
(a) any
such communication made in furtherance of any illegal purpose;
(b) any
fact observed by any advocate in the course of his employment as such showing
that any crime or fraud has been committed since the commencement of his
employment.
(2) It is
immaterial whether the attention of the advocate was or was not directed
to the fact by or on behalf of his client."
This rule is established
for the protection of the client, not of the advocate, and is founded on
the impossibility of conducting legal business without professional assistance,
and on the necessities, in order to render that assistance effectual, of
securing full and unreserved intercourse between the two (see Jones
v Great Central Ry (1910) AC 4; Lyell v Kennedy 9 App Cas 81,
Wheeler
v Le Merchant 17 Ch D 675). As Jessel MR said in Anderson v Bank
(1876)
LR 2 Ch D 644 at p 649,
"It is
absolutely necessary that a man, in order to prosecute his rights or to
defend himself from an improper claim should have recourse to the assistance
of professional lawyers, and it being so absolutely necessary, it is equally
necessary, to use a vulgar phrase, that he should be able to make a clean
breast of it to the gentleman and whom he consults with a view to the prosecution
of his claim, or the substantiating his defence against the claim of others;
that he should be able to place unrestricted and unbounded confidence in
the professional agent, and that the communcation he so makes to him should
be kept secret, unless with his consent (for it is his privilege, and not
the privilege of the confidential agent), that he should be enabled properly
to conduct his litigation. That is the meaning of the rule."
It must be observed that
the strict enforcement of this rule will sometimes operate so as to exclude
the truth. However, as Sarkar on Evidence 15th Ed Vol
II says at p 2027,
" … but
if any law reformer feels inclined to condemn the rule on this ground,
he will do well to reflect on the eloquent language of the late Knight
Bruce, LJ, who falicitously observed:
‘Truth,
like all other good things, may be loved unwisely, - may be pursued too
keenly, - may cost too much. And surely the meanness and the mischief of
prying into a man’s confidential consultations with his legal adviser,
the general evil of infusing reserve and dissimulation, uneasiness, suspicion,
and fear, into those communications which must take place, and which, unless
in a condition of perfect security, must take place uselessly or worse,
are too great a price to pay for truth itself (Pearce v P (1846)
16 LJ Ch 153; Tay s 915).’ "
It is not every communication
made by a client to an advocate that is privileged from disclosure. However,
whatever a man says to his legal adviser about his private affairs with
a view to obtaining professional advice is presumed to have been said in
confidence and the object is to protect all such confidential communications
(see Sarkar on Evidence 15th Ed Vol II p 2034). The privilege
also extends to acts of the client observed by the advocate (see Robson
v Kemp 5 Esp 52). As the privilege is that of the client he may expressly
waive it under Section 126 or impliedly under Section 128 of the Evidence
Act 1950 by calling the advocate as his witness.
I shall first consider
the position of Sukdev Singh. The evidence that the Defence intended to
elicit from him is that Exhibit D55 was affirmed voluntarily by Azizan
and that he must also be allowed an opportunity to rebut the allegation
that Azizan had been threatened by him to affirm the exhibit. With regard
to the question of whether Exhibit D55 was affirmed voluntarily it would
relate to evidence of what Azizan had told the solicitor and what the solicitor
may have observed from the acts of Azizan regarding the affirmation of
the exhibit. This raises the issue of whether a solicitor may disclose
the circumstances in which his client executed a document without the express
consent of the client. In making a ruling I was guided by the judgment
of Abdul Malek J (as he then was) in Subrayan v Sinnan 7 Mallal’s
Digest (1998 Reissue) No 1727. In that case P applied for a declaration
that the land registered in the name of D was actually being held by D
in trust for him absolutely. P also applied for an order that D tranfers
the land to him and for an injunction to restrain D from transferring the
land to any other person. P stated that he had paid for the land and that
D was registered as the owner of the land for administrative convenience.
D denied P’s story and stated that he had bought the land with a loan from
P. The court disallowed X and Y, who were advocates and solicitors in the
transaction, from giving evidence relating to the land based on Section
126. Accordingly, I held that Sukdev Singh is precluded from giving evidence
on the circumstances in which Exhibit D55 was executed to show that it
was affirmed voluntarily in the absence of express consent from Azizan.
The argument that such evidence is permissible under the proviso to Section
126 cannot be sustained as it is the contention of the Defence that Exhibit
D55 was affirmed voluntarily. Thus the question of it being executed for
an illegal purpose or as showing that any crime or fraud has been committed
does not arise. The proviso to Section 126 is therefore inapplicable. The
further argument that a solicitor must be allowed to rebut an allegation
made by his client in order to clear his name notwithstanding the fact
that he has not obtained express consent from his client to do so is indeed
attractive. Surely a client cannot be allowed to make unfounded allegations
against his solicitor and leave the solicitor defenceless to clear his
name. Such a situation must, however, be balanced against the need to adhere
to the rationale underlying the law relating to privilege and the right
of the solicitor to defend himself. The first matter that arises for determination
is whether the fact that Azizan has made an allegation against Sukdev Singh
in cross-examination means that he has consented to waive his privilege.
The answer given by Azizan in cross-examination is a result of his failure
to claim privilege. Such failure on the part of a client to claim privilege
when he is under cross-examination does not amount to "express consent"
given by him to his legal adviser to disclose a communication which is
otherwise privileged under Section 126 (see Bhagwani v Deooram AIR
1933 Sind 47). It follows that Sukdev Singh would not be able to tell his
side of the story without express consent from Azizan. This may appear
to prejudice the position of Sukdev Singh. The judgment of Bayley J in
Cooke
v Maxwell 171 ER 614 provides a guideline to find a solution to the
problem. This is what his Lordship said with regard to a document which
is partly privileged and partly not at p 615,
"And
that supposing the document, on principles of public policy, to be excluded,
no parol evidence could be received of any part, since this would be prejudicial
to the party to be affected by it, since part would be revealed, and that
which tended to give an explanation of it in favour of the party, might
be excluded."
In the circumstances it
is my view that as Sukdev Singh is precluded from giving an explanation
regarding the allegation made by Azizan the relevant evidence of Azizan
must be excluded in the interest of justice. I therefore ruled that the
part of the evidence of Azizan that makes an allegation against Sukdev
Singh is to be treated as irrelevant both against Sukdev Singh and for
the purpose of making a decision in this case.
I shall now consider
the position of Mohd Faiz. He was the solicitor for the accused in respect
of a defamation suit regarding Buku 50 Dalil. He had a meeting with Azizan
and Sukdev Singh at the request of the latter. Both solicitors assisted
each other with mutual offers of further assistance in the affairs of their
respective clients. That has made them agents of each other. Insofar as
the issue before me is concerned Mohd Faiz has become the agent of Sukdev
Singh. His position is therefore governed by Section 127 of the Evidence
Act 1950 which reads as follows;
"Section
126 shall apply to interpreters and the clerks or servants of advocates."
In commenting on this section
Sarkar
on Evidence 15th Ed Vol II says at p 2046,
"As it
is not possible for lawyers to transact all their business in person and
they have to employ clerks or agents, the privilege necessarily extends
to facts coming to their knowledge in the course of their employment. The
protection extends to all the necessary organs by which such communications
are effected and therefore an interpreter, or an intermediate agent is
under the same obligations as the legal adviser himself. The rule also
extends to a solicitor’s town or local agent (Tay s 920). It has never
been questioned that the privilege protects communications to the attorney’s
clerks and his other agents for rendering his services (Wig s 230)."
Mohd Faiz is therefore in
the same position as Sukdev Singh and may disclose communications made
to him by Azizan only with the express consent of the latter.
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