Chapter 4 - Disclosure in Criminal Proceedings Flashcards
DISCLOSURE IN CRIMINAL PROCEEDINGS
Overview
1) Pre-trial disclosure - S.51A
2) Summons or order to produce - S.51
3) Disclosure of defence - S.62 MACCA
PRE-TRIAL DISCLOSURE
Overview
1) The law & scope
2) Effect of non-compliance
3) Whether CCTV is a “document” within S.51A
PRE-TRIAL DISCLOSURE
The law & scope
1) The law:
- S.51A
2) Scope of S.51A - PP v DSAI (FC, 2010):
- S.51: gives court discretion to allow & make order for discovery in specific instances.
- S.51A: imposes on obligation upon prosecution to supply certain documents & materials.
- S.51A cannot be used to interpret S.51.
PRE-TRIAL DISCLOSURE
Effect of non-compliance
1) Whether mandatory - Benjamin William Hawkes v PP:
- The word “shall” by itself would not make a provision mandatory;
- It depends on the intention of Legislature by looking at the whole scope of the statute.
- “shall” in S.51A must be construed to enable & assist in the administration of justice rather than to impede it.
2) Effect of non-compliance with S.51A - See Kek Chuan v PP:
- General rule: Non-compliance is not fatal & does not make the trial a nullity.
Prosecution is not barred from tendering those documents. - Exceptions:
- When the accused is prejudiced.
- When the non-compliance or non-delivery of the documents is material.
PRE-TRIAL DISCLOSURE
Whether CCTV is a document
Benjamin William Hawkes:
- CCTV footage did not fall within the ambit of “documents” in S.51A.
- There is no duty on prosecution to deliver the footage;
- Failure to deliver will not cause irreparable prejudice.
SUMMONS OR ORDER TO PRODUCE
Overview
1) The law & scope
2) Exercise of discretion - general
3) Exercise of discretion - against accused before trial
4) Exercise of discretion - against accused during trial
5) Whether order is appealable
6) Appellate intervention of the order
7) Non-compliance with summons issued
8) Relevant documents for discovery
9) Recent application
10) Access to 112 statements via S.51
SUMMONS OR ORDER TO PRODUCE
The law & scope
S.51
SUMMONS OR ORDER TO PRODUCE
Exercise of discretion - general
1) Test to order for discovery - Raymond Chia v PP:
- It must be desirable & necessary to produce the documents before court can make order for discovery.
2) Factors to consider - Raymond Chia v PP:
- Justice of the case;
- At what stage of the proceedings the application for discovery was made.
- Whether the accused applying for an order of discovery has already been given sufficient notice of the charge against him.
SUMMONS OR ORDER TO PRODUCE
Exercise of discretion - against accused before trial
Raymond Chia v PP:
- If application is made before trial, the documents or materials to be supplies are confined to those only specified & referred to in the charge.
SUMMONS OR ORDER TO PRODUCE
Exercise of discretion - against accused during trial
Raymond Chia v PP:
- Meaning of course of trial:
trial proper has commenced & evidence has been led.
not the stage where the charge is read. - trial must have been in progress.
- Documents sought must be relevant & rules of relevancy must be strictly followed.
SUMMONS OR ORDER TO PRODUCE
Whether order is appealable
PP v Raymond Chia:
- Order made under S.51 is appealable.
SUMMONS OR ORDER TO PRODUCE
Appellate intervention of the order
PP v DSAI:
General rule:
- Appellate court should not disturb the exercise of discretion.
Exception:
- If the exercise of discretion is based on the wrong principle of law, appellate court may intervene.
SUMMONS OR ORDER TO PRODUCE
Non-compliance with summons issued
PP v Au She Cun:
- Non-compliance does not entitle the court to grant DNAA;
- It may warrant contempt proceedings.
- Besides that, a search warrant under S.54(1)(a) may be issued; or
- A charge under S.175 PC may be pursued.
SUMMONS OR ORDER TO PRODUCE
Relevant documents for discovery
1) S.112 statements - Haji Abdul Ghani Ishak v PP:
- Statements made by the accused or witnesses are public documents;
- Accused is entitled to be supplied with the docs.
- H/ever, an accused is not entitled to statement made by co-accused.
cf. Huzir bin Hassan v Ketua Polis Daerah JB:
- Since uncautioned statement is irrelevant in evidence, there is no necessity to supply the accused with the document.
cf. Husdi v PP:
- the application was made prior to the commencement of the trial;
- a police statement is absolutely privileged & there is no right to inspect.
- it is undesirable for the prosecution to supply the defence with police statements, as there is a real danger of tampering with the witnesses.
cf. Najib Razak v PP:
- defence had applied to obtain the recorded statement of a witness before the commencement of the trial.
- The Court of Appeal held that the document could not be given to the defence at the pre-trial stage.
2) FIR - Anthony Gomez v Ketua Polis Daerah Kuantan:
- under the common law the appellant has the right to FIR as he is a person interested in it and inspection is necessary for the protection of his interest.
- The first information report is admissible in evidence in the criminal trial under S.157 EA and therefore the appellant or his counsel should be supplied with a copy.
SUMMONS OR ORDER TO PRODUCE
Recent application
CA, 2019
Siti Aisyah v PP:
- Application is made at the end of prosecution case;
- Documents sought for is witnesses statement under S.112.
- Based on what was disclosed during prosecution case, 112 statement is certainly necessary for the defence to advance their case.
- Therefore, witness statements recorded under s. 112 are not privileged from disclosure and must be furnished to the accused if so requested under s. 51 of the Code.
