JUDGMENT

Harmindar Singh Dhaliwal JCA:

[1] This appeal, from the Shah Alam High Court, concerns a narrow point, that is, whether the prosecution can be ordered, at the end of the case for the prosecution, and where defence has been called, to furnish to the accused a copy of witness statements recorded under s 112 of the Criminal Procedure Code ("CPC") of witnesses offered to the defence which are material and which may assist the defence case.

[3] Aggrieved with this order, the appellant filed this appeal. The appeal was heard on 24 January 2019. At the conclusion of the submissions, we unanimously allowed the appeal. We considered that the appellant was entitled to the witness statements sought. We set aside the order of the High Court and ordered production of the witness statements. Our reasons for doing so now follow and will form the judgment of the Court.

At The High Court

[4] The appellant faced a charge of murder under s 302 of the Penal Code in the High Court. The prosecution had completed its case and the Court concluded that a prima facie case had been established. The appellant was ordered to enter her defence on the charge. The prosecution offered 93 witnesses to the defence. The appellant then applied under s 51 of the CPC for an order to direct the prosecution to provide to the applicant (appellant) copies of statements of seven named witnesses recorded under s 112 CPC (for convenience referred to as "police statements" or "witness statements" interchangeably").

[5] After hearing submissions, the learned Judge declined to make the order. Citing the law set out in the cases of ; [1999] 2 MLJ 1; [1999] 2 CLJ 215, ; [2010] 2 MLJ 312; [2010] 4 CLJ 265, ; [1949] 1 MLJ 201, ; [1979] 2 MLJ 304 ("Husdi v. PP") and ; [1980] 2 MLJ 80, the learned Judge came to the view that the police statements were not subject to disclosure as they were absolutely privileged documents.

[6] The learned Judge further held that the statements could only be supplied if the prosecution had waived the privilege over the documents. His Lordship considered that there was no miscarriage of justice as the defence could interview the witnesses offered and decide accordingly whether to call them as defence witnesses.

Our Decision

[7] Before us, learned counsel for the appellant argued that the police statements are not privileged documents. It was contended that the decision in Husdi v. PP, supra, ("Husdi") which enunciated the proposition that such statements were absolutely privileged ought not to be followed as the law since then has moved on in other common law jurisdictions.

[8] The appellant further submitted that the dual requirement under s 51 of the CPC of necessity and desirability had been fulfilled and therefore the police statements ought to be made available in the interests of a fair trial. The respondent, on the other hand, echoed what was held by the learned Judge and maintained firmly their position that it had always been the policy of the Public Prosecutor to never provide the police statements even for witnesses offered after the prosecution had closed their case.

[9] Now, these issues had been considered by the learned Judge who held that because of the status of the statements being absolutely privileged, their disclosure can never be ordered at any stage of the proceedings. For good measure, the learned Judge opined that the police statements cannot be considered to be unused material even after the close of the case for the prosecution where witnesses were offered to the defence.

Whether The Police Statements Are Privileged

[10] With that being the case, a pivotal issue in thi