ASSIGNMENT

SITI AISYAH V PP [2019] 4 MLJ 46

LAD 5043
CRIMINAL PROCEDURE I

ACADEMIC SESSION II
2022/2023

LECTURER:
DATO AHMAD ROSLI MOHD SHAM

WRITTEN BY:
ADIBAH NABILAH KAMARUDDIN
1192085
KLB 2 / TLB 5
FACT OF THE CASE
The appellant was charged under s 302 of the Penal Code and at the end of the prosecution’s case, the
High Court found that prima facie case had been established and ordered the appellant to enter her
defence. The appellant then filed an application under s 51 of the Criminal Procedure Code (‘the CPC’)
for the production of seven witness statements recorded under s 112 of the CPC (‘the police
statements’). These witnesses were not called by the prosecution but offered to the defence. The
application was resisted by the prosecution.
The learned judge dismissed the application and held that: (a) the police statements were not subject to
disclosure as they were absolutely privileged documents; (b) the police statements could only be
supplied if the prosecution had waived the privilege over the documents; and (c) there was no
miscarriage of justice as the defence could interview the witnesses offered and decide accordingly
whether to call them as defence witnesses. Aggrieved by the decision, the appellant filed the present
appeal.

LEGAL ISSUES
a) whether the police statements were privileged
b) whether the production of the police statements were necessary and desirable
c) whether the police statements ought not to be disclosed as it was against the public interest.

JUDGMENT
The Court allowed the appeal by the Appellant and set aside the order of the High Court. In addition,
the Court granted a stay of our order pending the disposal of any appeal to the Federal Court, upon the
application by the learned DPP.

HOLDINGS AND RATIONALE

For the first issue, the court held that the police statements were not absolutely privileged and admissible
as evidence provided it comes under the preview of subsections (3), (4) and (5) of s. 113By virtue of
the new provisions of s. 113 of CPC, the court may now intervene and order production of statements
under s 112 of CPC. Additionally, the court acknowledged that there were no statutory provisions that
forbade the revelation of police statements, but there were also none that forbade disclosure of police
statements. Furthermore, it was evident from English common law principles as stated in the case of R
v Ward and R v Lawson that the prosecution had a duty to disclose and provide, from the unused
material, witness statements to the defence as long as it is relevant under section 5 of the CPC, unless
there were good reasons for non-disclosure.
Besides, the court will also look into whether there will be miscarriage of justice if the court choose not
to grant disclosure of the documents to the accused. One of the witnesses had passed away whilst four
others could not be produced. If these witnesses were unavailable to provide their testimonies, the
defence might be able to avail themselves of the exceptions as to the hearsay rule under s 32 of the EA.
Under both paragraphs (i) and (j) of section 32(1) of the EA, police statements may be admissible in
evidence. As a result, as long as the police statements fit within the four categories of persons stated in
section 32(1) of the EA, they would be admissible.
As in the case of Pragalathan a/l Balakrishnan v Public Prosecutor, the court stated that if the
prosecution had told the trial judge that a particular witness offered to the defence cannot now be
located, the prosecution could have at least provided the s 112 of the CPC statement to the defence so
that they could then have some opportunity to deal with it or even introduce it into evidence if the law
permitted it. Thus, it would be a miscarriage of justice if it turned out that the contents of the witness
statements of the missing witnesses could at least cast a doubt on the prosecution’s case or even acquit
the appellant.
For the second issue, the production of the police statements in this case were necessary and desirable.
The roles played by the respective witnesses whose s 112 statements which are now the subject of the
application made by the appellant are significant. One of the witnesses had passed away whilst four
others could not be produced. Also, based on what was disclosed as to the role of the witnesses and the
relevance of their evidence, the police statements were certainly necessary and desirable for the defence
to advance their case.
Furthermore, the stage at which the application for disclosure was made was of primary importance
beside the dual requirement of necessity and desirability as provided under s 51. If the application is
made before the commencement of the trial, the disclosure is limited to matters as stated in the charge.
The issue of tampering with the statements may arise if the applications was made prior to the
commencement of the trial as stated in Husdi v PP. However, in the instant case, the contention of
tampering is without merit as the prosecution has closed its case and the witnesses of whom the
statements are sought are now offered to the defence.
Thus, the appellant ought to be given every opportunity to substantiate her defence in the interests of a
fair trial. The application was made at the end of the case for the prosecution after the defence had been
called and witnesses offered to the defence The appellant, for this purpose, should not be deprived of
the opportunity to secure the police statements and to determine if the statements could be used as
evidence under s 32 of the Evidence Act 1950.
In respect of the prosecution’s submission that the police statements ought not to be disclosed as it was
against the public interest, no affidavit had been filed to advance this proposition. This claim of public
interest was made more out of forlorn hope rather than for cogent reasons. If there was any sensitive
information involved or state secrets in the witness statements in question, surely an affidavit would
have been filed setting out forceful reasons for non-disclosure. For the above reasons, this argument
was a non-starter.

COMMENT
First issue
The focus of the first issue is on the admissibility of the police statement under s. 112 of CPC. The
pivotal issue within the first issue is whether the police statements are absolutely privilege.
First and foremost, the case of Husdi v Public Prosecutor ‘Husdi’. Syed Othman FJ concluded that
the police statement under s. 112 is absolutely privilege. This conclusion is the result from lack of the
provisions in the CPC and the Evidence Act 1950 that provided a right to inspect a police statement.
Additionally, the case of Methuram Dass v Jagannath Dass and Martin Rhienus v Sher Singh had
served as the foundation for establishing that police statements are completely protected. However,
these cases were not a case about disclosure of police statements in a criminal trial but a defamations
case. Yet, the Court in Husdi went on to draw a comparison between defamation privilege and the
prohibition on disclosure in a criminal trial by saying that to be absolutely privileged for one judicial
purpose, it is privileged for other purposes.
Contrary to Husdi, the Court of Appeal in the instant case stated that the police statements are not
absolutely privilege. This is because the s. 112 statements are admissible under the new s.113 of CPC
provided it is under subsection (3), (4) and (5). Moreover, s.32 of Evidence Act also provided that if
witnesses of a case were unavailable (dead or missing) to provide their testimonies, the police
statements may be admissible in evidence as long as the police statements fit within the four categories
of persons stated in section 32(1) of the EA. Furthermore, none of the cited cases from common law
jurisdictions provided any reference to police statements being inherently privileged or exempt from
disclosure. Thus, render the police statement of s.112 to be admissible as evidence and not absolutely
privilege.
The significant of the court decision in this issue is it is clear for the future cases that the police
statements are admissible only on certain circumstances provided under subsection (3), (4) and (5) of
s. 113 and s.32 of Evidence Act. However, the defence must prove to the court that such documents are
necessary and desirable as provided under s.51 of CPC. Failure to meet such requirements may result
in the Court refusing to grant the document to the defence even if it is admissible by the law.

Second issue
The second issue focus on the s. 51 of the CPC especially on the requirements of necessary and desirable
and the stage of proceeding when the application is made.
In the case of PP v Raymond Chia, the Supreme Court stated that the accused has the right to apply for
summons under s.51, however the documents must be specific and the court has the absolute discretion
to grant which documents to be supplied. Moreover, the accused must prove such production of the
documents are necessary and desirable for his defence. Apart from that, it is also crucial for the court
to consider the stage at which the application for disclosure is made of.
The court in the case of PP v Dato Seri Mohd Najib Hj Abd Razak held that the defence did not satisfy
the requirement of desirability and necessity under s.51 in respect to statement recoded from witness
already offered. The defence filed an application seeking the identities of witness not called by the
prosecution whose statement recorded by the Malaysian Anti-Corruption Commission (MACC).
However, the accused had neither identified the specific witnesses nor indicated their roles and the
relevance of their intended evidence to the case. Hence, the defence failed to satisfy the dual
requirements.
Comparing both cases to the current case, the defence has specified the documents that they want in
order to prepare their defence. This includes the recorded statement of 7 witnesses as well as their roles
in the case. The court in this case has concluded that the defence has established the dual requirement
of s.51 and stated that based on what was disclosed as to the role of the witnesses and the relevance of
their evidence, the police statements are certainly necessary and desirable for the defence to advance
their case.
In Pragalathan a/l Balakrishnan v Public Prosecutor, the court also noted that if the prosecution had told
the trial judge that a particular witness offered to the defence cannot now be located, the prosecution
could have at least provided the s 112 of the CPC statement to the defence so that they could then have
some opportunity to deal with it or even introduce it into evidence if the law permitted it
Apart from the dual requirements, the stage of proceeding play an important role too. The court in the
case of PP v Dato’ Seri Anwar bin Ibrahim (No 3), held that discretions of s.51 should not be exercised
to enable the accused to gain access to materials (CCTV) before trials. The stage of proceeding is
material in granting the application of s.51 to the defence.
The Federal Court in Anwar Ibrahim case, approved of what was held in the Indian case of State of
Orissa v Debendra Nath Padhi on the which stage of proceeding should the accused apply under s.51.
Moreover, s. 91 of Indian Code of Criminal Procedure is pari materia with our s.51 of CPC. Such
provision provides that the accused is entitle to seek order under s 91 would ordinarily not come till the
stage of the defence.
Moreover, the court in PP v Raymond Chia, also mentioned that apart from the requirements in s.51 of
CPC, it is also crucial for the court to consider the stage at which the application for disclosure is made
of.
Comparing to these cases with the current case, the application was made at the end of the case for the
prosecution after defence had been called and witnesses offered to the defence. Hence, the appellant
should not be deprived of the opportunity to secure the police statements and to determine if the
statements could be used as evidence under s 32 of the Evidence Act 1950.
The significant of the decision made by the Court of Appeal in the matter of dual requirements under
s.51 is the court give a fair trial for the accused to request for certain documents to prepare their defence.
Due to the fact that there are witnesses that has been deceased and missing, such documents if not been
supplied to the accused, it may become prejudice towards the accused.
On the other hand, the significant of the decision by the court in the matter of the stage of proceeding
when applying for the application curb the risk of the accused to tamper with the statements. This is
because the issue of tampering can only arise if such statements are provided prior to the
commencement of the trial. The contention of tampering is without merit as the prosecution has closed
its case and the witnesses of whom the statements are sought are now offered to the defence
.
.