An interlocutory decision denying witness recall is not appealable as it does not dispose of rights, affirming procedural rigor under s 3 of the Courts of Judicature Act.

[1] In Criminal Trial No: 45-9-2009, Dato' Seri Anwar bin Ibrahim (the respondent) was charged at the Kuala Lumpur High Court for committing carnal intercourse against the order of nature with one Mohd Saiful Bukhari bin Azlan, an offence punishable under s 377B of the Penal Code . The respondent was acquitted whereupon the Public Prosecutor lodged an appeal against that acquittal (acquittal appeal). The acquittal was later set aside by the Court of Appeal on 7 March 2014 and the respondent was found guilty of the preferred charge; the appeal filed by the respondent is pending before the Federal Court.

[2] Pending the disposal of the acquittal appeal at the Court of Appeal, and decided eventually on 7 March 2014, the respondent had taken the anticipatory action of filing a motion in the Court of Appeal (encl 62(a)) for leave pursuant to s 61 of the Courts of Judicature Act 1964 (CJA), to recall one Judy Blacious s/o AF Pereira (PW25), the Investigating Officer in the above case of Perbicaraan Jenayah No: 45-9-2009. Section 61 of the CJA reads as follows:

"In dealing with any appeal in a criminal case the Court of Appeal may, if it thinks additional evidence to be necessary, either take such evidence itself or direct it to be taken by the trial Court."

[3] The relevant evidence was in relation to the rejection of PW25's petition of admission to the Bar of the High Court, Kuala Lumpur. The presiding High Court Judge, Zaleha Yusuf J, on 10 January 2014 had rejected the petition on the ground that PW25 was not a fit and proper person to be admitted to the Bar based on the finding of an inquiry held by SUHAKAM (Suhakam Report). It was a public inquiry into the arrest and detention of five lawyers of the Kuala Lumpur Legal Aid Centre on 7 May 2009.

[4] Enclosure 62(a) was dismissed by the Court of Appeal on 12 February 2014 as the respondent had failed to cumulatively satisfy two out of the four requirements laid down in R v. Parks [1961] 3 All ER 633 and the prerequisites of s 61 of the CJA. The four requirements of the latter case are:

i. the evidence that it sought to call must be evidence which was not available at the trial;

ii. the evidence must be relevant to the issues;

iii. the evidence is credible in the sense that it is well capable of belief; and

iv. that evidence would have created a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial.

[5] The Court of Appeal held the view that as the respondent had failed to satisfy the first two requirements there was thus no further need to consider the other two requirements out of the four. Aggrieved, the respondent filed an appeal on 13 February 2014 (the interlocutory appeal). Before the interlocutory appeal could be heard the applicant filed encl 3(a) to strike it out. This application was served on the respondent. At the end of the hearing on 4 March 2014 we allowed encl 3(a)'s application and accordingly struck out the respondent's interlocutory appeal (see Halsbury's Laws of England, 4th Edition) para 506 at 240 as to the explanation of interlocutory; Public Prosecutor v. Raymond Chia Kim Chwee & Anor & Another Case, ; [1985] CLJ (Rep) 260). We now supply our reasons for striking it out.