Why is the AG’s Chambers refusing to release evidence?

Art Harun

The refusal by the AG’s Chambers to release some evidence requested by the defence team in the Sodomy 2 trial – and the consequent refusal by the Court of Appeal and the Federal Court to order the release of such evidence – brings to the fore questions pertaining to the right to a fair trial, degree of professionalism of the prosecution team and the administration of criminal justice in Malaysia.

Many years ago I was a part of the defence team in a Criminal breach of trust case involving the Managing Director of a government-linked company. A part of the prosecution’s case was that my client was guilty of CBT because he authorised certain payments to be made to a foreign company without the sanction of the Board of Directors. Now, it does not take a brilliant lawyer to tell you that in such a case, all the minutes of  board meetings held and board resolutions made around the same time as the alleged crime would be relevant to the proceedings. If any of the minutes or resolutions showed that the board of directors had in fact approved the payment, than the prosecution’s case would fall.

However, I had a problem. All the board papers had been seized by the authorities and were in the possession of the prosecution. My client did not have a copy. I therefore requested the prosecution to release copies of the board papers in order to enable me to prepare my defence. Of course, my request was not met with any kind of positive response. I then applied to the Court. The prosecution then relented in the middle of the trial. They agreed to bring the original copies to the Court and allow my team to inspect them and make copies. However the whole process was to take place in Court!

Imagine how difficult it was. This was a large government-linked company. It’s board papers were contained in 2 volume of hard-cover register which ran into hundreds of pages. And we had to read through them in one afternoon in Court and make copies of the relevant pages.

That Ladies and Gentlemen, is how terribly disadvantaged a defence could be in every criminal case in Malaysia. Just imagine this. The aleged crime took place a long time ago. Memory fades and blurs. Witnesses are nowhere to be found. Documents have been seized from day one of the investigation. The defence team has to start with almost nothing save for the client’s memory. If we were lucky, the client would have some notes or copies of some documents. And we will have to do with those. In the meantime, a 20 year jail sentence will be hanging over our client’s head. Sometimes even a death sentence!

The concept of fundamental justice essentially consists of two principles. They are encapsulated by two Latin maxims, namely, “audi alteram partem” and “nemo judex in causa sua“. The former simply means “lets hear the other side” or in legal term, the right to a fair hearing or trial. The latter literally means “no one should be the judge in his own cause” which, in day to day language, simply means that a person who has an interest in a case should not be the Judge in that case.  (This latter maxim is not relevant to the topic at hand and will therefore not be discussed further.)