The prosecution must disclose witness statements necessary for the defence unless valid reasons for non-disclosure are provided, affirming the principle of fairness in criminal proceedings.

Wendy Ooi Su Ghee JC:

Introduction

[1] An application for revision under s 323 of the Criminal Procedure Code ('the CPC') was made to this court to revise the order of the learned Sessions court judge dated 27 October 2023.

[2] In the said order, the learned Sessions court judge allowed the application by the defence to be supplied with the statement of Mohd Zarudi bin Mustapha ('the accused's husband") recorded under s 112 of the CPC as well as transcripts of the interviews with the accused's two children, namely NorWadina binti Mohd Zarudi and Nor Wani Sofiya binti Mohd Zarudi ("the documents"). The learned Sessions court judge also ordered the documents be supplied by the prosecution to the defence within three (3) days from the date of the said order.

[3] Aggrieved by the said order, the prosecution filed the above said application for revision by virtue of a letter dated 31 October 2023, thus seeking this court to exercise its revisionary powers to set aside the said order.

Background

[4] The accused was charged under s 31(1) Child Act 2001 for neglect of a child by the name of Izzhan Haris bin Irwan Shafiq thus causing him physical injury which eventually led to his death.

[5] On 26 July 2023, the trial judge found that prosecution has made out a prima facie case against the accused. Accordingly, the accused was ordered to enter her defence in which she did where she appeared as the first defence witness on 22 August 2023.

[6] However, on 10 October 2023, prior to the calling of the accused's husband as the 2nd defence witness, the defence applied for the said witness's statement recorded under s 112 of the CPC. Initially, the prosecution intended to call the accused's husband as one of the witnesses. However, he was not called as a prosecution witness nor offered by the prosecution to the defence at the close of the prosecution stage.

[7] The defence also sought to be supplied with the transcripts of the interviews with the accused's children Nor Wadina binti Mohd Zarudi and Nor Wani Sofiya binti Mohd Zarudi.

[8] On 27 October 2023, upon hearing the submissions by both the prosecution and the defence, the learned Sessions court judge allowed the application by the defence and ordered the documents sought be supplied by the prosecution to the defence within three (3) days from the date of the said order.

Findings By This court

[9] In this revision herein, the pertinent issues to be addressed are as follows:

(i) The application of the doctrine of stare decisis

(ii) Whether witness statements under s 112 of the CPC ("s 112 statements") are privileged documents and

(iii) Whether s 112 statements are to be provided to the defence via application made under s 51 of the CPC?

[10] In respect of these issues, the relevant case laws that come to mind are the often quoted High court decision in Husdi v. Public Prosecutor ; 1979 MarsdenLR 192 ; Federal court decisions in Husdi v. Public Prosecutor ; [1980] 2 MLJ 80 and Dato' Sri Mohd Najib Hj Abd Razak v. PP & Another Appeal; [2019] 4 MLJ 281 ; [2019] 4 CLJ 705; the court of Appeal decisions in Siti Aisyah v. Public Prosecutor ; [2019] 4 MLJ 46 ; [2019] 7 CLJ 27; [2019] 3 AMR 44 and the recent court of Appeal decision in Dato' Sri Mohd Najib Hj Abd Razak v. PP & Another Appeal; [2022] 1 MLJ 137; [2023] 1 CLJ 672; [2023] 1 AMR 617.

[11] Understandably, these cases were cited by both the prosecution and defence in their respective submissions in the revision before this court.

Doctrine Of Stare Decisis

[12] Briefly, it was the contention of the prosecution that based on the doctrine of stare decisis, it is the Federal court decision in Dato' Sri Mohd Najib (supra) and not the court of Appeal decision in Siti Aisyah (supra) that binds this court in respect of the issues raised in the revision herein. As such, the prosecution submitted that the application for the documents by the defence to be dismissed.

[13] However, it is the finding of this court that the cases of Husdi (supra) as we