THE
SUBMISSIONS OF PARTIES AT THE CLOSE OF THE CASE FOR THE DEFENCE
At the close of its case
the Defence submitted that the prosecution has not proved its case beyond
reasonable doubt to which the prosecution replied. I allowed the Defence
application to reply to the points raised by the prosecution though there
is no such right in law. I did so as ideally it should be for the prosecution
to submit first since it carries the burden of proof with the Defence having
the last say. I gave anxious consideration to the submissions of both parties.
I shall now deal with
some of the arguments raised by the Defence.
(i) Evidential value
of newspaper reports
The Defence tendered
in evidence certain newspaper reports. They are as follows:
Exhibit D23
This is a press statement
by YAB Prime Minister dated 25 August 1997 in The New Straits Times
where
he said that the accusations against the accused are ridiculous based on
a report that he had received. He said that the police had investigated
the matter and had concluded that there was no case.
Exhibit D24
This is a press statement
dated 3 September 1997 in The News Straits Times by the IGP where
he said that the allegations against the accused have been found to be
untrue.
Exhibit D75
This is another press
statement dated 3 September 1997 in The Sun by the IGP where he
said that the two authors of poison-pen letters alleging that the accused
was involved in sex scandals have confessed that they fabricated the matter.
Exhibit D129
This is a press statement
dated 26 August 1997 in The New Straits Times by the accused saying
that as stated by YAB Prime Minister the allegations are baseless and should
not be pursued.
Exhibit D132
This is a press statement
dated 26 August 1997 in The Sun by the accused about the allegations
against him.
Exhibit D134
This is a press statement
dated 25 August 1997 in Utusan Malaysia by YAB Prime Minister saying
that the allegations against the accused are slanderous with a political
motive.
The Defence called in
evidence the reporters who were present at the various press conferences
described above. They confirmed that they were at the press conferences
and took down notes of the speeches and that the respective press statements
are their stories. They also said that no attempts were made by the persons
who made the speeches to have the stories corrected. They also produced
original copies of the newspapers in which the statements appeared from
their file. As they wanted the original newspapers back I permitted photostat
copies to be tendered in evidence.
The issue that arose
for determination with regard to these exhibits was whether the press statements
can be taken in proof of the truth of their contents in the absence of
the persons who gave the statements being called as witnesses. The Defence,
in its well presented argument, referred to Section 81 of the Evidence
Act 1950 and some Indian authorities to argue that with the calling of
the reporters the press statements are admissible to establish the truth
of the statements made. The prosecution contended that, in the absence
of the makers of the statements being called as witnesses, the press statements
amount to hearsay.
The answer to the rival
contentions lie, as argued by the Defence, in Section 81 of the Evidence
Act 1950 which reads as follows:
"The
Court shall presume the genuineness of every document purporting to be
the Gazette, a State Gazette or the London Gazette, or the Government Gazette
of any part of the Commonwealth, or to be the Gazette issued by the local
Government of any part of the Commonwealth, or to be a newspaper or journal,
or to be a copy of a private Act of Parliament printed by her Britannic
Majesty’s printer, and of every document purporting to be a document directed
by any law to be kept by any person, if the document is kept substantially
in the form required by law and is produced from proper custody."
For the purpose of the argument
before me the part of the section that is relevant is only the part which
deals with the presumption of genuineness of newspapers. It must first
be observed that the presumption contained in this section is rebuttable
pursuant to Section 4(2) of the Evidence Act 1950. On the evidential value
of a newspaper report a mere production of it is not proof of the truth
of its contents (see Bawa Sarup Singh v Crown AIR 1925 Lah 299).
In this regard the Supreme Court of India observed in Samont N Balakrishna
v George Fernandez (1969) 3 SCR 603:
"A newspaper
report without any further proof of what had actually happened through
witnesses is of no value. It is at best a second-hand secondary evidence.
It is well-known that reporters collect information and pass it on to the
editor who edits the news item and then publishes it. In this process the
truth might get perverted or garbled. Such news items cannot be said to
prove themselves although they may be taken into account with other evidence
if the other evidence is forcible."
As the Indian Supreme Court
said in Laxmi Raj Shetty v State of Tamil Nadu AIR 1988 SC 1274
it is now well settled that a statement of fact contained in a newspaper
is merely hearsay and therefore inadmissible in evidence in the absence
of the maker of the statement appearing in Court and deposing to have perceived
the fact reported. In order to render the newspaper report admissible in
evidence to prove its contents the person who made the speech, or the person
in whose presence the speech was made, or the reporter of the newspaper,
who heard the speech and sent the report to be published in the newspaper,
must be produced (see Khilumal v Arjundas AIR 1959 Raj 280). It
is my view that proof of a newspaper report by a person other than by the
person who made the speech is rendered admissible as an exception to the
hearsay rule by virtue of the presumption of genuineness attached to a
newspaper by this section. Pursuant to this presumption the report is presumed
to be accurate, unless rebutted, thereby removing the reasons for which
hearsay is excluded. I therefore hold that the newspaper reports tendered
by the Defence are admissible in evidence to establish the truth of their
contents.
(ii) Complicity of
prosecution witnesses
The Defence repeated
its submission made at the close of the prosecution case that Dato Mohd
Said and Dato Amir Junus are accomplices. It was contended that the prosecution’s
reply at the end of its case that they are not accomplices cannot be sustained.
In the absence of any other evidence coming on record I still hold that
Dato Mohd Said, Dato Amir Junus, ACP Mazlan and DSP Aziz are accomplices.
It is my finding, based on the whole of the evidence adduced, that their
evidence is credible. With regard to Dato Amir Junus the evidence adduced
by the Defence on his business interests is largely the same as it was
earlier. Thus I see no reason to review my finding on his credibility on
account of this reason. It must be observed that his credibility is enhanced
by the contemporaneous notes that he had kept.
(iii) Admissibility
and evidential value of Exhibit D123
This exhibit, according
to the accused, was the second report given to him by Dato Mohd Said on
3 September 1997. He said that it was located only about a week before
he gave evidence on 9 February 1999 by his wife from some boxes. Datin
Seri Wan Azizah bt Wan Ismail, the wife of the accused, said that her husband
gave it to her in early September 1997. She read it and kept in a cupboard.
When they moved out of their Official Residence on 3 September 1998 it
was packed in one of the boxes. She said that she found it about a month
before she gave evidence on 12 March 1999 and handed it to the lawyers.
Dato Mohd Said was recalled
by the Defence to identify this report. When he was asked whether it is
a report from the Special Branch he said that it looks like one though
he is not very sure. He said that he is not sure because it does not have
a file reference number and is not signed. He said that where such a report
is not signed it is followed by a covering letter. The covering letter
would be addressed to the person to whom the unsigned report is given.
He said that the contents of the report appear familiar to him. He agreed
that the report appears to be an extension of Exhibit D25 and that the
contents of both reports are related. He also said that the prints on both
the reports appear to be the same. The cross-examination of Dato Mohd Said
then goes this way:
"Question
: I am putting it to you that IDD123 is a copy of the Special Branch report
which was given by you to Dato Seri Anwar on 3.9.1997.
Answer
: No.
Question
: I also put it to you that this is your second report following D25.
Answer
: No. It is not my second report."
The Defence argued that
the report ought to be admitted in evidence in proof of its contents and
referred to the evidence of Dato Mohd Said on the similarities between
this report and Exhibit S25 to support its argument. It was contended that
the mode and manner in which the report was ultimately found was convincingly
explained by the accused and Datin Seri Wan Azizah bt Wan Ismail. Thus,
the Defence said, there is no reason to doubt that the report is indeed
and in fact a report of the Special Branch which was handed over to the
accused on 3 September 1997 and, accordingly, should be admitted in evidence
on the authority of Dato Mokhtar bin Hashim v PP (1983) 1 MLJ 232
and Datuk Haji Harun bin Haji Idris & Ors v PP (1978) 1 MLJ
240. In opposing this submission the prosecution contended that Dato Mohd
Said had said that there was no second report. Dato Mohd Said had also
denied that it is the second report and had said that he was not sure that
it is a Special Branch report because it has no file reference number and
a covering letter.
As stated by Dato Mohd
Said the report does not have a file reference number and a covering letter
which reports of this nature have. He has denied having given D123 to the
accused and that it is his second report. I am inclined to accept his evidence
on this issue as I find it strange that a person in the capacity of the
accused would take home what is purportedly a highly confidential document.
It is more strange for him to have given it to his wife who kept it in
the cupboard after having read it herself. Therefore it is my finding that
Exhibit D123 is not a copy of the so-called second report as claimed by
the Defence. Hence it cannot be admitted in proof of its contents. However,
I admitted it as a document claimed by Datin Seri Wan Azizah bt Wan Ismail
to have been received by her from her husband. In the light of the background
surrounding the report it is not entitled to any evidential value.
(iv) Police statements
of Ummi and Azizan
After Ummi and Azizan
gave their written statements, that is to say, Exhibits P17 and P18, they
also gave a statement to the police pursuant to Section 112 of the Criminal
Procedure Code. The Defence contended that these police statements ought
to have been adduced in evidence by the prosecution under Section 157 of
the Evidence Act 1950. The police statements would show whether they are
consistent with or in conflict with Exhibits P17 and P18. In the absence
of the prosecution having produced them, it was argued, they should be
treated as being consistent with Exhibits P17 and P18. In fact, the Defence
added, the evidence of SAC Musa to the effect that the police statements
of Azizan were consistent mean that they must be consistent with Exhibit
P17.
I shall first refer to
the evidence of SAC Musa in order to ascertain whether the Defence is correct
in its conclusion that Azizan’s police statements are consistent with Exhibit
P17. That is what he said in cross-examination:
"Azizan
telah membuat lebih kurang lima pernyataan. Tidak ada pernyataan yang dibuat
oleh Azizan yang dia menafikan bahawa dia diliwat oleh tertuduh."
Without for a moment going
into the truth of the allegations it is my view that SAC Musa’s evidence
shows that the statements given by Azizan are inconsistent with Exhibit
P17. SAC Musa’s evidence would therefore, contrary to the submission of
the Defence, strengthen the case for the prosecution in that Exhibit P17
is not a reflection of what Azizan had stated in his police statements.
It is perhaps for this purpose that the prosecution re-examined SAC Musa
when he said that Azizan made only one statement in respect of this case
and another four in respect of Exhibit P49 in this line:
"Apakah
yang dinyatakan oleh SP12 (Azizan) di dalam percakapannya di bawah Section
112 berkaitan dengan tertuduh?"
This question was met with
vehement objection by the Defence. My notes of evidence on the objection
reads as follows:
"(En
Bachan objects as the contents of a Section 112 statement is not admissible.)"
I disallowed the question
based on the objection taken. It is indeed bizarre for the Defence, having
objected to the admissibility of Azizan’s statement earlier, to now take
a diametrically different stand on the failure by the prosecution to produce
it.
Be that as it may, I
shall now consider the argument raised by the Defence in an objective manner.
A police statement recorded under Section 112 of the Criminal Procedure
Code is absolutely privileged (see Martin Rhienus v Sher Singh (1949)
MLJ 201; Husdi v PP (1979) 2 MLJ 304). However, the Defence may
have access to it for the purpose of impeaching the credit of a witness
(see Husdi v PP (1980) 2 MLJ 80). It is made admissible in evidence
by Section 157 of the Evidence Act 1950 which reads as follows:
"In order
to corroborate the testimony of a witness, any former statement made by
him whether written or verbal, on oath, or in ordinary conversation, relating
to the same fact at or about the time when the fact took place, or before
any authority legally competent to investigate the fact, may be proved."
The words in the section
" … or before any authority legally competent to investigate the fact …
" clearly refer to a police statement made in the course of a police investigation.
I pause to add that the statement can be used under this section only to
show consistency and not for purposes of corroboration (see Aziz bin
Mohamed Din v PP (1996) 5 MLJ 473). As I said in an earlier part of
the judgment it should be used only when the testimony of the witness who
made the statement has been challenged. I consider it necessary to make
an observation on the application of the section in the light of the objection
raised. The use of the words " … may be proved" in the section make the
use of a former statement for the purpose of the section discretionary.
Thus the prosecution may, if it so desires, waive the privilege attached
to a police statement and use it for the purpose of the section. A failure
to use it can never be fatal to the prosecution case as it would only be
the prosecution which will suffer as a result of not using a prior consistent
statement to bolster the credit of a witness which has been challenged.
It will therefore cause no prejudice to the defence. On the contrary it
will be to its advantage. If the defence has a hunch that the statement
is inconsistent with a witness’s testimony in Court then an application
should be made to impeach the credit of the witness by use of the statement.
In any event, as a police statement is privileged no adverse inference
can be drawn from his non-production. This is based on the principle that
the drawing of an adverse inference for the failure to produce a privileged
document would be to destroy the privilege itself (see Weston v Pearymohon
40
C 898; Dulhin v Harnandan 30 MLJ 624, A 1916 PC 157).
Having had the opportunity
to study the law in some detail in order to resolve the objection raised
by the Defence now I must say, with a sense of regret, that I had erred
when I disallowed the prosecution from adducing in evidence, through SAC
Musa, the statement made to the police by Azizan. I make no comment now
on the conduct of the Defence in taking the inconsistent stand with regard
to the police statement of Azizan except to leave it to them to battle
with their own conscience. In the premises the objection raised by the
Defence is totally unwarranted and I reject it in the strongest possible
terms.
(v) Whether statements
made by the accused amount to hearsay
The Defence started off
this part of the submission by saying that I had ruled, despite objections,
that the evidence of the conversation which the accused had with YAB Prime
Minister, the Honourable Attorney General, the IGP and others are hearsay.
The submission then runs this way:
"The
defence had no choice but to accept this Court’s ruling graciously despite
the defence disagreement. That being so then the same law and ruling must
apply to the prosecution. This would mean that all the evidence of PW1,
PW11, PW12 and PW13 where DSAI allegedly stated certain things including
most importantly the alleged instruction given to SP1 and SP11 must of
necessity and pursuant to and in accordance with this Honourable Court’s
ruling be applied with equal rigor and force against the prosecution and
all such evidence of what allegedly DSAI said must be ruled inadmissible
and therefore expunged. The law must apply equally and in the same manner
to the prosecution and the defence. That will leave not an iota or shred
of evidence against DSAI and as night follows day and day follows night
DSAI on this ground alone must be acquitted."
The opening part of this
submission would seem to suggest that I had erred in excluding the alleged
conversations that the accused had with certain persons despite strong
objection. The basis upon which I made the ruling is the very basis upon
which the Defence had on numerous occasions objected to prosecution witnesses
giving evidence of out of court statements. It is sufficient for me to
refer to just one example from the examination-in-chief of SAC Musa. It
is as follows:
"Question
: Bagaimana kamu tahu bahawa ID38A — V adalah dokumen yang ditulis tangan
oleh Ummi?
Answer
: Saya mengetahui yang ID38A — V adalah tulisan Ummi kerana beliau memberitahu
saya bahawa ini adalah tulisan tangannya.
(En Bachan
says that this is hearsay as Ummi must be called. DPP says admissibility
and weight must not be confused. Court : The statement to be proved
by Ummi.)"
It can thus be comprehended
with ease that the ruling that I made with regard to the conversations
referred to in this objection is as the night follows the day and the day
follows the night.
Having said that I shall
consider whether the out of court statements of an accused person amount
to hearsay. This requires a consideration of Sections 17, 18 and 21 of
the Evidence Act 1950 which deal with admissions. Section 17 says that
"An admission
is a statement, oral or documentary, which suggests any inference as to
any fact in issue or relevant fact, and which is made by any of the persons,
and under the circumstances, hereinafter mentioned."
Section 18(1) provides that
statements made by a party to the proceedings are admissions. The word
"proceeding" in Section 18(1) may be civil or criminal (see Sarkar on
Evidence 14th Ed Vol I p 323). An accused is a "party to
the proceeding" (see Sarkar on Evidence 15th Vol I p
372). As the Law of Evidence by Woodroffe and Amir Ali 16th
Ed Vol 1 says at p 739,
"In criminal
cases, the accused is always a party, and his admissions are admissible
against him, subject of course to the provisions of Sections 24 to 27."
A party’s own statements
are in all cases admissible against himself (see Slatterie v Pooley
6 M & W 664). Thus Section 21 provides, inter alia, that admission
are relevant and may be proved as against the person who makes them. An
admission is treated as an exception to the hearsay rule and thus admissible.
As Sarkar on Evidence 14th Ed Vol I says at p 309,
"The
ordinary idea of hearsay is what is heard out of court from a non-witness,
and admissions are therefore generally treated as exceptions to the hearsay
rule. Admissions are not, however, open to all the objections applicable
to hearsay testimony. It is true that they are unsworn statements made
out of court like hearsay testimony, but they are statements not of third
persons but of a party to the proceeding and for the reason stated about
what a party said against his interest may be presumed to be true."
An admission is therefore
substantive evidence of the fact admitted (see Union of India v Koksh
Builders and Financiers AIR 1977 SC 409; Lam Choon & Co v Lim
Yam Hong (1931) SSLR 96). This rationale is lucidly explained by Subba
Rao J in Sahoo v State of UP AIR 1966 SC 40 at p 42 in the following
words,
"A scrutiny
of the provisions of Ss 17 to 30 of the Evidence Act discloses as one learned
author puts it, that statement is a genus, admission is the species and
confession is the sub-species. Shortly stated, a confession is a statement
made by an accused admitting his guilt. What does the expression ‘statement’
mean? The dictionary meaning of the word ‘statement’ is ‘the act of stating,
reciting or presenting verbally or on paper.’ The term ‘statement’, therefore,
includes both oral and written statements. Is it also a necessary ingredient
of the term that it shall be communicated to another? The dictionary meaning
of the term does not warrant any such extension; or the reason of the rule
underlying the doctrine of admission or confession demands it. Admissions
and confessions are exceptions to the hearsay rule. The Evidence Act places
them in the category of relevant evidence presumably on the ground that,
as they are declarations against the interest of the person making them,
they are probably true. The probative value of an admission or a confession
does not depend upon its communication to another, though, just like any
other piece of evidence, it can be admitted in evidence only on proof.
This proof in the case of oral admission or confession can be offered only
by witnesses who heard the admission or confession, as the case may be.
The following illustration pertaining to a written confession brings out
the said idea; A kills B; enters in his diary that he had killed him, puts
it in his drawer and absconds. When he places his act on record, he does
not communicate to another; indeed, he does not have any intention of communicating
it to a third party. Even so, at the trial the said statement of the accused
can certainly be proved as a confession made by him. If that be so in the
case of a statement in writing, there cannot be any difference in principle
in the case of an oral statement. Both must stand on the same footing.
This aspect of the doctrine of confession received some treatment from
well-known authors on evidence, like Taylor, Best and Phipson. In ‘A Treatise
on the Law of Evidence’ by Taylor, 11th Edn. Vol.I, the following
statement appears at p 596:
‘What
the accused has been overheard muttering to himself, or saying to his wife
or to any other person in confidence will be receivable in evidence.’
In ‘The Principles
of the Law of Evidence’ by W M Best, 12th Edn. At p 454, it
is stated much to the same effect thus:
‘Words
addressed to others, and writing, are no doubt the most usual forms; but
words uttered in soliloquy seem equally receivable.’
We also find
the following passage in ‘Phipson on Evidence’, 7th Edn. At
p 262:
‘A statement
which the prisoner had been overhead muttering to himself, if otherwise
than in his sleep, is admissible against him, if independently proved’
."
Further reference may be
made to Wigmore on Evidence Vol IV 1048 (at p 3) as follows:
"The
theory of the Hearsay rule that an extra-judicial assertion is excluded
unless there has been sufficient opportunity to test the grounds of assertion
and the credit of the witness by cross-examination by the party against
whom it is offered eg, if Jones had said out of court "The party-opponent
Smith borrowed this fifty dollars’, Smith is entitled to an opportunity
to cross-examine Jones upon that assertion. But if it is Smith himself
who said out of court, ‘I borrowed this fifty dollars,’ certainly Smith
cannot complain of lack of opportunity to cross-examine himself because
his assertion is admitted against him. Such a request would be absurd.
Hence the objection of the Hearsay rule falls away, because the very basis
of the rule is lacking, viz, the need and prudence of affording an opportunity
of cross-examination."
I therefore hold that the
statements made by the accused to Dato Mohd Said and Dato Amir Junus, being
relevant, are admissible. It is superfluous to state that any statement
allegedly made by the accused which does not suggest any inference as to
any fact in issue or relevant fact would not amount to an admission and
would therefore be inadmissible. Thus the objection raised cannot be sustained.
(vi) Failure to call
evidence in rebuttal
In the course of giving
evidence the accused narrated certain conversations that he had with YAB
Prime Minister and the IGP. When the accused gave evidence of these conversations
the Defence had intimated to me that the makers of the statements may be
called to prove the conversations. I then made a ruling that pending proof
of the conversations the evidence given by the accused is not to be published
by the media. The Defence closed its case without calling the relevant
persons as witnesses. The objection now raised is worded as follows:
"The
prosecution although indicating that they may call rebuttal evidence did
not do so. As such it is submitted that the adverse inference against the
prosecution should be invoked for failure to call rebuttal evidence from
the Honourable Prime Minister, the Honourable AG, the IGP, Dato Megat Junid
and Tun Daim. The defence cannot be expected to call the said witnesses
who are so obviously hostile against DSAI. These witnesses were specifically
named in the prosecution and defence case and yet no attempt was made to
call them in the prosecution case, or at least, offer them for cross-examination
to the defence or even as rebuttal witnesses of which the prosecution gave
notice to the defence in the defence case."
This is indeed a very peculiar
submission. As I have stated in an earlier part of the judgment it is not
part of the prosecution’s duty to prove the case for the Defence. Yet that
is what this submission demands. The witnesses referred to were made available
to the Defence. The Defence exercised its right to call all of them except
the Honourable Attorney General. As I had stated in an earlier part of
the judgment they are not material to the case for the prosecution. If
the Defence had felt that they were material to its case it ought to have
called them. The failure to call them, though no adverse inference can
be drawn therefrom, on the ground that they may be hostile indicates the
Defence’s lack of confidence in having them in the witness stand. The Defence
must be aware of Section 154 of the Evidence Act 1950 which deals with
the manner of treating hostile witnesses. To therefore argue that the prosecution
ought to have called them on that ground cannot be sustained. Be that as
it may, the question of rebuttal evidence from these witnesses arises only
if the Defence had successfully adduced evidence that requires to be rebutted
by them. In the case of the alleged conversations that the accused had
with YAB Prime Minister, the Honourable Attorney General, the IGP and Tun
Daim such evidence, being hearsay, are inadmissible. Thus the prosecution
has nothing to rebut. The question of raising an adverse inference for
a failure to call them therefore does not arise.
(vii) Showing of police
statement to a witness in the course of his cross-examination
I had allowed the prosecution
to show MaAmin parts of his police statement when he was being cross-examined.
In submitting that I was wrong in doing so the Defence said,
"It is
respectfully submitted that Your Lordship erred in allowing the prosecution,
despite the defence objection, to show DW9 his s 112 statement and to be
cross-examined on it.
It is submitted
that the contents of s 112 statements are inadmissible in evidence. The
prosecution cannot be allowed to adduce the contents of s 112 statements
indirectly under the guise of cross-examination. The only manner in which
a s 112 statement and its contents can be brought in on record is and only
if impeachment proceedings under s 155 of Evidence Act 1950 is undertaken.
There was no attempt by the prosecution to institute impeachment proceedings.
As such the usage of s 145 of Evidence Act to show the contents to the
Honourable Court and cross-examination of a witness thereon without applying
to impeach is wrong in law. It is an indirect way to admit the contents
of s 112 statement as evidence.
In this
regard we would like to point out that the attempt by the defence to cross-examine
Ummi (PW17) by her statement on tape recording was denied. We submit that
s 145 is a step towards impeachment under s 155 and unless an application
for impeachment is intended or made s 145 cannot be utilised."
The first observation that
I would like to make is that the comparison made to the rejection of the
application to cross-examine Ummi on certain taped conversation is totally
unmerited. The application was rejected for different reasons.
The episode relating
to the showing of the police statement to MaAmin started this way. On 2
March 1999 when MaAmin was being cross-examined the prosecution made an
attempt to refer him to his police statement. The Defence objected. I upheld
the objection because Section 145(1) of the Evidence Act 1950 clearly states
that a witness may be cross-examined as to previous statements made by
him in writing or reduced into writing, and relevant to matters in question
to the suit or proceeding in which he is cross-examined, without the writing
being shown to him or being proved. On 3 March 1999 when the prosecution
asked MaAmin whether he wished to see his police statement I reminded the
prosecution of the ruling that I had made the previous day. The prosecution
gave an explanation for asking MaAmin the question with which I did not
agree. The proceeding then took this course:
"(DPP
now says that he wishes to show witness the statement with the object of
finding the truth and giving him a chance of explaining the discrepancies
in the interest of justice under Section 145(1) of Evidence Act 1950.
Hj Sulaiman
We have
had a look at Moomin’s case. Prosecution must say that they are
going to contradict the witness. Defence has no objection if Court and
Defence have sight of the relevant part of the statement.
Dato
Gani
Prosecution
proposes to show two parts to witness.
Court
Copy of
relevant parts to be shown to court in order to determine whether they
are relevant. (Court adjourns for a while to read the material parts of
the statement.)
Court
Does the
Defence wish to see the statement?
En Bachan
Yes.
(Document
shown to Defence. Document to be marked as P130.)
En Bachan
Concede
that as contended by DPP there is a discrepancy but it is minor and not
relevant.
Court
It is
relevant and is a major inconsistency. DPP to proceed."
The relevant parts of the
police statement were then shown to MaAmin. After MaAmin gave an explanation
on the inconsistency between his evidence in Court and what he had stated
in his police statement the learned Senior Deputy Public Prosecutor said
that he did not wish to go further into the issue. Thus the matter ended
at that stage.
The extract from my notes
of evidence which I have reproduced shows in unmistakable and crystalline
terms that the police statement was shown to MaAmin with the full consent
and knowledge of, and, with participation by the Defence. To now argue
that the Court allowed the statement to be shown to the witness " … despite
the defence objection … " is a misrepresentation of what transpired in
Court. Even if the Defence is referring, due to an oversight, to the first
occasion when objection was raised to the statement being shown to MaAmin
there is absolutely no justification for doing so as the objection raised
was upheld. It is perhaps appropriate for me to state that submissions
made by counsel must be reflective of what actually transpired in Court.
Be that as it may, I
do not see anything wrong with the procedure adopted by the prosecution
in showing the statement to the witness. The prosecution, as intimated
to the Court, was proceeding in accordance with Section 145(1) of the Evidence
Act 1950. The statement was shown to the witness pursuant to the second
part of the sub-section which states that
" … but,
if it is intended to contradict him by the writing, his attention must,
before the writing can be proved, be called to those parts of it which
are to be used for the purpose of contradicting him."
The words "… which are to
be used for the purpose of contradicting him" mean that before the process
of contradiction takes place the statement may be shown to the witness.
As Sarkar on Evidence 14th Ed Vol II says at p 2035,
"The
object is to give him a chance of explaining the discrepancy or inconsistency
and to clear up the particular point of ambiguity or dispute."
That is precisely what the
prosecution did. After MaAmin gave an explanation the prosecution decided
not to proceed any further. In the circumstances the objection raised by
the Defence has absolutely no merit.
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