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2022 MarsdenLR 2998
HIGH COURT MALAYA KUALA LUMPUR
VASANTA AMARASEKERA – Appellant
Versus
PP – Respondent
[Criminal Appeal No: WA-41(ORS)-4-07-2020]
Prosecutors must disclose witness statements to the defense when such documents are necessary and desirable for ensuring a fair trial, rejecting prior notions of absolute privilege.
Headnote:(A) Criminal Procedure Code 1973 – Section 112 – Right of the accused to access witness statements – The appeal concerns the request for the disclosure of a witness statement of Maurice De Alwis, which was rejected by the Prosecution based on privilege as per Husdi cases – The court found that the principle of prosecutorial disclosure necessitates that the prosecution must provide unused material beneficial to the accused, particularly post-trial statements that could assist their defense – The decision in Siti Aisyah v. PP was favored over Husdi, indicating a shift in the disclosure landscape regarding witness statements. (Paras 75, 78, 88, 100)
(B) Prosecution duties – The prosecution has a common law duty to disclose evidence that might benefit the defense which includes witness statements deemed necessary and desirable – The court reaffirmed that witness statements offered to the defense at the close of the prosecution's case are subject to these principles despite any claims of privilege. (Paras 61, 96)
Facts of the case: The appellant sought disclosure of Maurice's s 112 Statement to prepare his defense against charges of forgery related to a deceased's will. The application was dismissed on grounds of privilege citing Husdi precedents, which the appellant challenged. (Paras 2, 88-90)
Findings of Court: The court concluded that the need for fairness in the prosecution's duty to disclose is paramount, particularly when a witness could become unavailable due to age or other factors, hence allowing the appellant's request. (Paras 101-102)
Issues: The primary issue was whether the appellant was entitled to the production of Maurice's s 112 Statement at this juncture in the trial, particularly given the precedent and current directives in case law affecting prosecutorial duties. (Paras 14, 18, 62)
Ratio Decidendi: The rationale emphasized a need to ensure fairness in legal representation, advising that prosecutorial duty towards disclosure exists to mitigate risks to the accused's right to a fair trial, especially when relevant witness testimony is at stake. (Paras 95-99)
Result: Appeal allowed; the prosecution must disclose Maurice's statement. (Para 101)
JUDGMENT
A) Introduction
[1] This is an appeal against the decision of the learned Magistrate on 30 June 2020, which dismissed the appellant's application dated 28 May 2020 [Criminal Application No WA-89-486-05-2020] for the Prosecution to provide a copy of a Statement pursuant to s 112 of the Criminal Procedure Code (CPC) of a witness that was offered by the Prosecution at the close of the Prosecution's case, namely, Maurice De Alwis [NRIC No: 490730-10- 5301] ("Maurice's s 112 Statement").
B) Background[2] The appellant was charged on 29 August 2018 under s 467 of the Penal Code for forging a Will belonging to one Adamberage Ananda Rex De Alwis (No. K/P: 480327-10-5695) ("the Deceased").
[3] On 6 February 2020, the appellant was called to enter his defence on the charge. At the close of the Prosecution's case, the Prosecution offered seven witnesses to the Defence, one of whom is Maurice De Alwis [NRIC No.: 490730-10-5301] ("Maurice").
[4] Following the Prosecution's offer of the seven witnesses to the appellant, the appellant's lawyers, through a letter dated 24 February 2020 ("Letter dated 24 February 2020"), sought the Prosecution's permission to interview Maurice for the purpose of determining whether to call Maurice as a Defence witness.
[5] The prosecution allowed the appellant's lawyers request to interview Maurice and notified the same through a letter dated 2 March 2020 ("Letter dated 2 March 2020").
[6] The interview with Maurice took place on 13 March 2020 and was attended by Maurice, the appellant's lawyers, and the Investigating Officer, ASP Tuan Johari bin Mohammad AN ("IO").
[7] After receiving the Letter dated 2 March 2020 from the Prosecution, the appellant's lawyers requested the Prosecution to provide a copy of Maurice's s 112 Statement by way of a letter dated 3 March 2020 ("Letter dated 3 March 2020").
[8] The appellant's lawyers were informed orally by the Prosecution that their request had been rejected, no reasons having been given.
[9] The appellant's lawyers made another request to the Prosecution for a production of Maurice's s 112 Statement by way of a letter dated 13 March 2020 ("Letter dated 13 March 2020").
[10] However, the request was once again rejected by the Prosecution through a letter dated 16 March 2020 ("Letter dated 16 March 2020"). The Prosecution relied on the case of Husdi v. PP, to refuse the production of Maurice's s 112 Statement on the basis that that it was "privilege".
[11] Aggrieved by the Prosecution's refusal to produce Maurice's s 112 Statement, the appellant filed an application on 28 May 2020 vide Criminal Application No WA-89-486-05-2020 to the Magistrate's Court, for the Prosecution to provide a copy of Maurice's s 112 Statement to the appellant.
[12] The appellant's Application was heard and dismissed by the Magistrate on 30 June 2020. In doing so, the learned Magistrate distinguished the Court of Appeal's decision in Siti Aisyah v. PP , [2019] 4 MLJ 46.
[13] On the same, day, the appellant filed the present appeal against the Magistrate's decision to refuse the disclosure of Maurice's s 112 Statement.
C) The Appellant's Submissions[14] The appellant premised his appeal on the following:
(i) The learned Magistrate erred in law in distinguishing the Court of Appeal decision in Siti Aisyah v. PP .
(ii) The appellant has a right in law to be furnished with a copy of Maurice's s 112 Statement. The appellant's application for disclosure was made after he was ordered to enter his defence, and the Application was in respect of a witness offered by the Prosecution (Maurice).
(iii) The Prosecution has a common law duty to disclose and provide "unused materials" to the appellant, which in this instance is Maurice's s 112 Statement.
(iv) Maurice's s 112 Statement is not a "privileged" document.
(v) It is therefore necessary and/or desirable for Maurice's s 112 Statement to be furnished to the appellant.
vi) It will be highly prejudicial to the appellant should he be ref
