Saturday 18 October 2014

20:43 - 1 comment

Pre Trial Discovery, Section 51 & 51A of CPC





Section 112 – statement recorded pursuant to police investigation and it is a statement made by witnesses which includes Accused person.
There is no use having the statement without using it in court. Can you use it all the time or only on certain instances? That is why Section 113 comes in.
·         First principle: GR – 112 statements inadmissible in court. Why? Because called to court to give oral evidence
·         THE EXCEPTIONS ARE FOUND UNDER SECTION
1.      113. Example PW1 gives evidence in court assuming in court she says A but when police recorded statement it was B, there was contradiction, then the prosecution there can apply to impeach the credibility of complainant PW1. 112 statements may be used for impeachment proceedings. It can be used for prosecution and defence witness. It is very wrong for the party to impeach the credibility of witnesses they call. So rarely impeach their own witness.
2.      Second exception (example in situation the consent was given in committing the offence). So here he committed the crime and his defence is with the consent of the complaint and in court if he says the same thing, then can use the evidence as a collaborative evidence. (Collaboration as defence statement). To use the statement to support his defence. When the suspect gives his version to police, he is suppose to disclose his defence. (must say defence at earliest opportunity if he says later in court, court can believe that is a belated disclosure)
3.      During ID parade, example in the course of ID parade, the suspect makes a statement, it is admissible because made during ID parade. Another example, police went into the house to raid for drugs, the suspect was in the house “the drugs are buried in the garden” but the fact he says the drugs belong to him is not admissible. The fact that the act of pointing, that information is a 112 statement and admissible under Section 113. That 112 statement is admissible. It is admissible by virtue of EA.
4.      Sometimes witness cannot come to court: dead left the country, to bring him back to the country will be expensive but the prosecution needs this evidence in court. So instead of calling those witnesses, (all of that must be given reason) then the court will allow the 112 statement to be admissible. This is the only exception where 112 statements is admissible without oral evidence. Prosecution must make various attempts. Section 39.
5.      If don’t give reliable evidence, can charge for perjury. So first can impeach, so after impeachment, the evidence is to be thrown out, cannot use at all, this is the risk prosecution will take. Prosecution won’t let him go because he has committed perjury, then charge him for an offence under Section 193 PC for giving false evidence. Must show he has contradicted his evidence in report and therefore produce the report as evidence.

PRE TRIAL DISCOVERY
·         Defence council has only the charge statement
·         Look at Section 51A àprosecution shall before commencement of trial (what amounts to commencement of trial? – when first witness for prosecution is called to testify)
1.      Savarimuthu v PP (FC)
2.      Goh Tong v PP (principle: trial commences when first witness for prosecution testifies or adduces evidence)
·         Deliver to accused the documents;
1.      51A (1)(a) – FIR Anthony Gomez v Ketua Polis Daerah – the moment complainant lodges police report, because of that complaint, someone is charged in court, because the accused person wants to know the contents of police report hence it should be given to him. Why he needs to know the content of his police report. He wants to know the allegation against him and then prepare his defence. But now this is already in the law so don’t need to worry about citing the case law (preferably to add on and cite)
2.      Section 51A (1)(b) – Argument, not all documents will be given to defence, only document admissible in court. Example, investigating officer is carrying out his investigation and goes to the bank for commercial fraud investigation. There is an element of secrecy, because of investigation, investigating officer has access to it, can he disclose it to accused straight away? Although he is charged in court, you can’t release the account details of the witness to accused.  BAFIA prevents it. To give, must be subject to law.
3.      Section 51A (1)(c) – Apart from documents, must give facts favourable to defence, although C is there, it is still subjected to the public interest exception.  
4.      Sub 1 talks about mandated to pass all these documents to accused before trial. Is it fatal or not if he doesn’t do so? Prior to Sub 3 Mohamad Fadzil prior to this law. Not fatal just because prosecution didn’t give before trial. Just because of non-compliance doesn’t mean the evidence is not admissible. It is curable under Subsection (3) and defence will definitely raised objection saying it is not given to them earlier, defence will ask for it not to be admitted as evidence.
5.      But now in Subsection 4 it is discretion of court to accept it or not. The court will ask for explanation from the prosecution and examine the reasons and then carry out balancing exercise to see whether there is mala fide. If prosecution is bona fide, then court will allow documents to be admitted and otherwise not admitted.
6.      Last subsection means: if example prosecution gives documents later and the court considered no mala fide and allow, the court will adjourn case for a while and allow accused to have time to look through the documents. Let say this document introduced at the end of PW1 examination in chief. Defence will then object to say this was never given to me earlier so objecting to it. Court says prosecution took time because got it recently so giving now no mala fide and allows P6 to be admitted. Court will give time to accused person to look on P6 or give PW1 to explain on the evidence. Before court gives accused time, court will give argument to find out whether bona fide or mala fide.

SECTION 51 (since 1945)
·         First thing to remember: Section 51 is applicable to the police officer AND the court. Police officer who has carrying out the investigation IO. Means Section 51 applicable to IO and Court.
1.      Defence/IO/PP (if in 3rd party possession) applies to court for an order
2.      Who would apply for summons under Section 51? Summons here means a production order. Defence will apply to court for the property of document which is with the IO or prosecution or possession of 3rd party. For example banks or financial institution.
3.      Court issues the order to the party in whose possession the property or document is with.
4.      Before court issues the order, court will hear the application by the defence. Prosecution will not agree to it automatically. It will hear the defence of its grounds and the grounds of objection by the prosecution or by the party the document is with
5.      The test to be adopted by the court will be whether the property or document is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings.

It doesn’t say the party because it puts “any court” but when the court makes the order, the court makes an order pursuant by an application which can be made by defence/IO/PP


What amounts to necessity or desirability?
1.      Section 51 authorizes that documents or things which are necessary or desirable for the purpose of the trial or investigation may be ordered to be produced. (So normally when IO investigates a case, IO will issue order to witness to produce all the documents needed in the list). The word court is used because application made to the court. The other mechanism is IO can issue order in writing without going to the court.
2.      The document or thing called for must have some relation to or connection with the subject matter of the investigation or inquiry or throw some light on the proceeding or supply some link in the chain of evidence à  The case on point is PP v Teoh Choon Teck [1963] 29 MLJ 34. There are few categories.
3.      Section 51 should not be treated as a means for the accused to discover or inspect evidence or material in the possession of the prosecution or the enable the accused person to know the manner by which the prosecution proposes to prove its case. PP v Raymond Chia [1985] 2 MLJ 436. What must remember in civil procedure there is the process of discovery because cannot be element of surprise whereas in criminal proceeding there is no such principle. (i) In criminal trial; an accused person entitled to a fair trial. Fair trial = cannot give an ambush where the prosecution hides everything. If ambush, accused can complain has not been given right to fair trial, (ii) accused entitled to information to defend his case. 51 guarantees accused right to a fair trial that’s why law allows for accused to apply and there is no automatic discovery, no parties exchanging documents.
4.      Section 51 should not be invoked to allow a fishing expedition. So when parties apply to court can be any of those 3 parties, he cannot fish for information. He cannot just say he wants all documents kept by prosecution (this is fishing for documents), BUT must specify the documents he wants then from there court decide whether necessary and desirable for accused to apply.
5.      Section 51 allows accused person to seek production of document if he wants to rely on a document in the possession of the prosecution which may dislodged the prosecution case or strengthen his defence. So this means if the accused applies for particular document and says he wants it to prepare his defence, or to negative the prosecution case and upset it then the court will consider allowing it. Why IO want the documents – to investigate the crime thoroughly.
6.      When the application under Section 51 is made before trial, justice of the case requires that the court when deciding whether or not the production of the document or thing is deemed desirable or necessary the court must have regard and take into consideration Section 152 -154 of CPC (this is also the principle found in:-
Raymond Chia – charge was forgery (as alleged), in the charge, 2-3 documents were referred to, accused wants to know, give me those cheques otherwise cannot prepare my documents. It is reasonable. If you read Section 152-154 it refers to contents of charge. This application is made pre trial. When pre trial will use test of necessary and desirable and use the charge test to give or not to give.

At what stage application is made: Pre trial / During Trial. Pre trial court’s guide will be the charge because at that point of time court has no evidence adduced, the only thing the court has is the charge hence decide based on it. If during course of trial there is already evidence adduced because in criminal trial there are 2 stages; prosecution case AND defence case. So maybe if the application made during prosecution case then look into evidence, if defence case look at evidence of prosecution and defence case then easy for court to decide whether necessary for the party to have to document or not.

On the court of trial, the case on point is Kulwant Singh [1986] 2 MLJ 10

Under Section 51 of CPC, a duty is reposed on the prosecution to furnish sufficient notice to the accused person of the case or charge. He has to meet and to enable him to adequately prepare his defence. What prosecution will do is to say not going to give the evidence now and will give while trial on going but defence will want it now because need to prepare defence therefore court hold on to the charge as guide.

In respect of an application made in the course of the trial the materials or documents asked must be relevant to the issues for adjudication. Just to recap, pre trial charge be the guide, during trial evidence be the guide. So from the evidence all those facts in issue etc will be the guide. Then from those facts court will be “that is not the fact in issue why are you asking the document for”

For an accused person, the document he wants to be produced must be relevant to his defence that is ie; document that would provide evidence favourable to his case. Hence, the appropriate time for him to make such an application would be at the defence stage. Only then the court can consider its relevancy.

(So section 51 applicable to defence/IO/PP against the party who the document is found. The remember there is application to the court. The other avenue under Section 51 would be the IO issuing the order under Section 51 –don’t need to go to court but issue to order and person has to comply, if the person does not comply then applies to court. The apply the test of necessity and desirability. Then next need to remember on stages of trial, before = trial sheet as per Raymond Chia, during trial = look at evidence Kulwant Singh. 






1 comments:

hi, may i ask you that whether accused person is entitled to his own 112 statement under s51A? i dont think police report under s107 including 112 statement..

Post a Comment

Subscribe to: Post Comments (Atom)