Criminal Procedure

1.    Police statements – Section 112 CPC, non compliance with Section 112

2.    Statements of Section 112 are generally inadmissible

3.    However it is admissible in certain situation

4.    When will the DPP impeach the credit of witness

Prosecution à statements favouring the prosecution will say on guilt of accused

Defence: Witnesses favouring the innocence of accused will be on defence side

So example 112 statement favoured prosecution and in court he changes his story and now against prosecution and here prosecution will try to impeach credibility of witness.

This procedure was laid out in the case of Muthusamy v PP [1948] MLJ 57:

1.             Party applying to establish that the witness has given oral evidence in court which is materially (material to the fact in issue) different from his police statement – so what is the fact in issue? The guilt of person.

2.             Ensure that the police statement has been recorded in accordance to Section 112 CPC

3.             Party applying to inform the court that you intend to impeach the credibility of the witness

4.             Mark out or underline on the police statement preferably in red the portion on which the witness has contradicted himself (must show court where is the contradiction)

5.             Hand over the police statement to the court pointing out the material portions on which the contradiction has taken place (so must remember when talk about materiality it must relate to the fact in issue or a relevant fact meaning guilt of accused or innocence of accused. (very important) – suppose to hand police statement to the court but why can’t give to the defence, they have no access. Kho Siew Bee because they are all privileged statement to first hand over to the court.

6.             Let the judge/Magistrate rule as to whether the contradiction is material or immaterial which is very important

7.             If immaterial, the judge/Magistrate will return the police statement and no impeachment will be allowed BUT If material, impeachment proceeds

8.             If impeachment is proceeding, ask the witness whether he made the particular statement

9.             If he admits making the police statement, show the police statement and if he subsequently identifies it, mark it as an exhibit

10.         If witness denies making the statement, proceed to prove the statement

11.         Proof of the statement made by the witness is done by calling the recording police officer and any interpreter if one has been used. Clearly establish that the record shows, through the recording police officer, that the witness understood the questioning, that he was warned of the provisions of section 112 of CPC and that the statement was read back to him after recording and confirmed to be correct by the witness (so basically to comply with Section 112)

12.         When the police statement has been proven, it will be marked as an exhibit (don’t get confused, if witness admit straight mark as exhibit, if don’t admit, prove then mark as exhibit)

13.         From now on, the questioning is usually done by the judge/Magistrate and the witness will be asked to explain the contradiction. If the court is not satisfied with the explanation, the witness will stand impeached and his evidence will be unworthy of credit. A short submission may or may not be necessary (so witness has already shown the contradiction and shown it and reason why he was asked to explain the contradictions is to repair his credit worthiness and this explanation is very important)

14.         It may be possible that the explanation process will have to be done by the DPP or the PO, if so proceed to point out the contradictions of the witness and ask him to explain them. Leave to the court to accept or reject the explanations. A short submission may or may not be necessary (normally asked by court to explain because court suppose to be independent but sometimes court may ask DPP to ask the questions)

15.         Proceed to the next witness in the trial (meaning the impeachment proceeding is over) See Dato Mokhtar Hashim [1983)] 2 MLJ 232 goes to show how the witnesses credit should be accessed by the court. Abdoolcader said this:

“when a witnesses credit is sought to be impeached under the provisions of Section 145 and 155(c) of the EA, his credit stands to be accessed as a whole with the rest of the evidence at the appropriate stage that is to say at the close of the case for prosecution for defence as the case may be. No immediate order of a summary nature can or should be made as was done in this case. (this judge is saying is wrong) and the right of cross examination or re examination according to the circumstances should not be denied as it may well be that on the exercise of such right, his credit might be repaired, restored, or reestablished.”

Husdi v Khoo Siew Bee – READ ON THIS CASE – showing a hunch.

The effect: if credibility impeached, whole evidence thrown out of the window and then charge him with perjury. 

[1946] MLJ 1 à Whole evidence will be erased like an Indian rubber

PRESENTATION

-       Start with legal provision first unless there is no provision then only go to case laws

-       Don’t simply cite case laws