NOV 16 — How can there be a fair trial if prosecution blocks access to important documents, moans Wan Saiful Wan Jan.

In a Facebook posting, Bersatu’s Tasek Gelugor MP Datuk Wan Saiful expressed concerns about receiving a fair trial in his money laundering and corruption case tied to the Jana Wibawa project, citing restrictions on his lawyers’ access to vital evidence documents.

He went on to elaborate that during the trial at the court on Friday (Nov 15) the witness in the case seemed determined to link him to Tan Sri Muhyiddin Yassin.

He said this occurred during cross-examination by his lawyers involving the witness, Datin Rosni Yusoff, a former Deputy Secretary of the Government Procurement Division, regarding the awarding of contracts.

Now, Wan Saiful should know better than to discuss his case in public. The matter is before the court. It is sub judice.

As for so-called restrictions on his lawyers’ access to "vital evidence documents”, it relates to discovery or production/supply of documents by parties in a criminal proceeding.

The law is contained in Section 51 and Section 51A of the Criminal Procedure Code (CPC).

The provision of Section 51 is plain and unambiguous that the court has the discretion to make an order for the production or inspection of documents or things if they are necessary or desirable for any investigation, inquiry, trial, or other proceedings.

For the production of documents or things, the application may be made at any stage of the proceedings. The Supreme Court in Public Prosecutor v Raymond Chia Kim Chwee & Anor [1985] divided the two stages in the application of the documents or things under Section 51, namely pre-trial application and application in the course of a trial.

When the application is made before the trial, in deciding whether the production of the documents or things is necessary or desirable, the court must take into consideration Sections 152 – 154 of CPC where the prosecution must furnish sufficient notice to the accused person of the charge he has to meet to enable him to adequately prepare his defence.

On the other hand, if the application is made in the course of the trial, the pertinent issue to be considered by the court is the relevancy of the document or thing for the trial. This second stage of the application was explained in Raymond Chia’s case in the following manner:

"Where the application under s 51(i) of the Criminal Procedure Code is made in the course of the trial, the rule of relevancy must be strictly enforced... General demand for unspecified materials or documents should not be entertained. Where the application is made in the course of inquiry or trial the court has to consider the question of relevancy to the issues for adjudication.”

Where an application is made in the course of the trial, Section 51A has no application as the Section refers to the prosecution’s obligation to supply specific documents to the accused before the commencement of the trial.

For good measure, the provision is reproduced below:

Section 51A

(1) The prosecution shall before the commencement of the trial deliver to the accused the following documents:

(a) a copy of the information made under Section 107 relating to the commission of the offence to which the accused is charged, if any;

(b) a copy of any document which would be tendered as part of the evidence for the prosecution; and

(c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.

(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.

The Federal Court in Dato’ Seri Najib bin Hj Abdul Razak v Pendakwa Raya [2019] reiterated that the documents to be supplied to the accused under Section 51A are only confined to the documents mentioned in the Section.

Idrus Harun FCJ said:

"[T]he documents which must be delivered to the [accused] by the prosecution are confined to the documents specified in s 51A of the Code.”

In Dato’ Seri Anwar bin Ibrahim v Public Prosecutor [2010] the Federal Court observed as follows:

"In our view, [Section 51A] strengthens the guarantee of a fair trial in providing the adequate facilities as purported in the General Remarks document of the Human Rights Committee that was read to us.

"[The Section] has, in our opinion, made the battlefield more level, to preserve the ‘equality in arms principle’, ensure the fairness of a trial and ultimately uphold the very integrity of the courts in its administration of criminal justice.

"This should also be considered in light of our criminal justice system where the burden of proof lies throughout on the prosecution, which, together with common law principle presumption of innocence safeguards that fairness.”

By Section 51A therefore, the law seeks to ensure fairness of a trial.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.