Mahkamah Rayuan
Di hadapan i. Y.A. Datin Paduka Zaleha Binti Zahari, HMR
ii. Y.A. Dato’ Haji Abdul Malik Bin Haji Ishak, HMR
iii. Y.A. Datuk Clement Allan Skinner, HMR
Pihak-pihak:
PP: Semua hadir
PB: KS, SN
[9.42 a.m.]
KS memperkenalkan parti.
KS: This is an appeal against the decision of Yang Arif Dato’ Mohamad Zabidin Mohd Diah on 18 of June 2010 which relates to the documents in relation to examination and results of SP1. The documents are documents of the doctors of Hospital Kuala Lumpur.
YA: Do you refer to any submission or bundle of authorities?
KS: No. Because it’s a straight forward issue.
YA: Question of jurisdiction?
KS: In the case of DSAI v PP the Federal Court has in fact decided what is a final order. In the case of DSAI v PP, no.2 in our bundle, at page 319, this is under the heading of preliminary objection. As to the matter this morning, whether it comes under S. 3 of Courts of Judicature Act 1964 . [read]
At page 26 of the appeal record. [read para 2] . Para 2 is what we have applied for. This order made by the trial judge is a final order and one which disposed the rights of the parties. [] was to the effect that there is no conclusive evidence of penetration and penetration is a fundamental element to the charge.
The point is was the defence is entitled to the documents before we embark on the cross-examination. In the affidavit, Dr. Wells stated that the documents are necessary for him to advice the defence to help us in cross-examination SP2. [] to elicit through if the documents exist. []
[]. The court stated in the case of DSAI v PP, pg 327, tab 2 of bundle. [read-whatever docs made..]. What the Federal Court has to say is that we made an application in the course of the trial. The question is whether the document is relevant or not to the issue. The documents would be relevant for the purpose of our expert advising us in cross-examining the doctors.
The evidence of SP2 in relation to what the doctor said that there is no conclusive evidence of penetration and thus it will dispose the right of the parties as per the word decision in S.3 of Courts of Judicature Act 1964. That is the position of this appeal. Your Lordship has to decide whether this is a final order or not. I cannot go further than that. I’m not going to the authorities. It will be a waste of the judicial time. That will be our submission.
MY: My lady and my Lord, we agree with my learned friend, whether this court has jurisdiction to decide whether the decision by the learned High Court judge is a final order. We have filed our written submission, from page 6-15. The ruling by the judge is ruling made in the course of the trial. Amendment of Section 3 Courts of Judicature Act 1964 excludes a ruling made in the course of the trial. The reason is stated in the case of DSAI v PP, 2010 decision where my learned friend applied for the 112 statement of SP1 and reference is made in other cases, Regina v Collin, Saad bin Abas and DSAI 1991 decision.
In the case of DSAI v PP [tab 21], the court relied on the explanatory statement of the amendment which is at tab 31 of our bundle [read pg.2, tab 21]. Of course my learned friend referred to the decision in the case of DSAI 2010 decision. The decision was in fact, to begin with, the applicant has the right pursuant to. S. 51 of Criminal Procedure Code.
Refer to tab 14, page 278, para 24 [read]. We talk about right. This right exist in Section 3 of Courts of Judicature Act 1964. Para 25 [read]. Alternatively, this case brings out of that phrase which did not finally disposed the right of the parties. In 1994, when J Hashim Yeop Sani decided in Maleb bin Su, he referred to the case of Raymond Chia. In the case of DSAI v PP 1991 decision, I refer tab 18, page 329, para F. And J NH Chan referred to Halsbury at para H. I now refer to Halsbury Law of England at tab 34, page 240, para 506 is the passage that J NH. Chan use in citing his decision. This applies only in civil decision. I refer to page 237 the same tab, para 501. I say it earlier in the case of Maleb bin Su, the case of Raymond Chia, the judge then made a reference to a civil case. And again in the case of DSAI 1991 decision, the judge made reference to this passage.
Page 10-11, para 20, 21& 22 of PP submission [read]. In a criminal case, no right is given, it is either guilty or innocent. In civil cases it does not apply. But it does apply in a criminal court. Refer tab 34, page 240, para 506 – they all refer to civil cases.
In a criminal trial, other than the order of stay, order of bail, there is no right of appeal in the provisions of the Courts of Judicature Act 1964, criminal procedure code against any ruling made in the course of the trial. In the case of PP v Ho Chang Chwen, the def applied for the statement of the witnesses and the prosecutor objected. And the court order that the statement being supplied to the defence and the PP appeal. Rose C.J, in Ho Chang Chwen, page 12-13, tab 25 of our submission [read].
In fact, the amendment of S.3 of Courts of Judicature Act 1964 is in line with the [] just like when the court refuse to supply the 112 statement just based on hunch and []. My learned friend has not stated any specific law in the intitulement of which they are referring for the supply of the document. If you want to challenge the expert, you must challenge his credibility. [] that is what DSAI 2010 says you should challenge.
Page 27 of appeal record, para [] [read]
To conclude, Section 3 of Courts of Judicature Act 1964 does not allow any ruling made in the course of the trial to be appealable. No. 2, the ruling of the court is consistent to what Rose C.J decided. No.3 there is no right to begin with – [] and the court may want to look at the [] that is not a matter of right []. In fact, the basis of the motion is seeking for all the documents, as in no.1 the affidavit of DSAI and no.2 the affidavit of the expert. Affidavit of DSAI said that there is contradiction and thus the documents are needed. However, the matter is being abandoned by my learned friend, KS.
In reference to the case of DSAI 1991 decision, Saad bin Abas, Maleb bin Su, Raymond Chia and Ho Chang Chwen it is our humble submission that the ruling made by the court is not a final ruling and does not disposed the rights of the parties.
I apply for this court if agreeable with me to dismiss the appeal.
KS: I refer to the case of DSAI, tab 2 of our bundle, page 321 where it discuss S.50 [read]. We said that this is a ruling made in the course of the trial which finally disposed the right of the parties.
YA : We’ll adjourned a short while for discussion and we’ll be back in ½ hour.
[10.35 a.m.] Stand down
[11.20 a.m.]
YA: After careful consideration of the submission that has been prepared before us, []
The issue is whether the ruling by the High Court and the order of discovery of the documents is a final order. Our answer to the issue is negative. We are of the view that the ruling of the High Court judge is not a final order and does not dispose the rights of the parties. We agree that the order is made in the course of the trial.
On Section 50 and the definition of the word decision in Section 3 of Courts of Judicature Act 1964, which was raised by the counsel, we agree with the submission of SG II. Our findings is that the decision of the High Court judge does not finally disposed the right of the trial in which the appeal is dismissed.
[11.25 a.m.] Stand down
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