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Wednesday, November 24, 2010



Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

PP: Semua hadir kecuali NH, WCK dan MM
PB: KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran,(Ram Singh, Marissa, Radzlan tidak hadir)
WB: Zamri Idrus (untuk SP1), Andy Leong for Bar Council
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI hadir

[8.46 a.m.]
MY: Kes untuk sambung pemeriksaan balas SP3.

SP3 mengangkat sumpah di dalam Bahasa Inggeris.

Pemeriksaan balas oleh SN.

Q: Dr. Siew, you mentioned yesterday you have read sexual assault profoma.
A: Yes.

Q: Did you bring it?
A: Yes. YA, I have 2 sets of protocol in my office. This is the clinical forensic medicine examination draft and medical examination form for suspected rape victim.

Q: We want the actual copy not the draft. These are sample copies?
A: Yes. These are samples that we are using.

Q: Surely in the case of Saiful you fill it up?
A: Yes.

Q: Can you produce it?
MY: YA, I don’t think this is proper. The ruling has been made. We cannot go through that again. You haven’t even asked.

Q: I would have expect you to have asked Saiful according to this porfoma?
A: Yes. This is the guideline we followed.

Q: The one you fill up, do you have it with you? In your possession?
A: Yes.

Q: Will you be able to produce it?
A: I think I can give it orally.

KS: This mantra about giving orally, YA has listened to our submission on the issue of producing the data. We would like to submit again. YA Lordship is not functus officio. Yes, the ruling has been made, but YA’s ruling was not made based on our submission. In this respect, we have the right to, and we have to.

YA: On this issue I’ve made my ruling.

KS: But, I wish to make another submission. Because it is very important. The ruling was made absolutely with regard to S.159 and S.157 Evidence Act 1950. S.159-refreshing memory and S.157 to corroborate the witness evidence. But, what YA did not direct YA’s mind is S. 45 Evidence Act 1950, evidence of an expert. Could I once again and with respect put a stop to this mantra again and again. I’ll give it from memory. This court is entitled to the documents whether you like it or not. The law says it and I’ll be YA once again going through my submission again. It is very important. We seek YA’s indulgence.

MY: May I say something YA? The law is very clear. What is admissible as regard to the best evidence rule is the oral evidence. Just like an IO who come to court to tell what he did on a particular date and what report he received or complaint, where he went, what he collected and all that. All those will be reduced into writing in the form of an ID.But you don’t call him and each time and ask him “Can you produce your ID?”. You are not allowed to. The law prohibits that just like the law prohibits these documents. You cannot say, in this case you are talking about S.45. My Lord, this is an adversarial system where we have to prove. It’s our duty to prove our case. I do not think the court has any other role other than being a referee to ensure the prosecution prove it’s case. To compel us to produce everything that we didn’t is not legally permissible.
What is he being cross-examine on? The thing he did or the thing he recorded down? He may be an expert, he may not be an expert. But he is a witness of fact. He is testifying as regard to what he did on 28th of June 2008 between 9.00 pm to 12.00 something. That is crucial. Time, period, whom he interviewed, what he observe, what he did with the specimens and all that, it doesn’t require expertise. To talk about what I did, what I didn’t do, what I collected, what I put in the container, whether I seal it, you don’t requires special training to do all that. And the substantive part about his evidence is about all that. Except with the opinion or the conclusion with regard to the finding of semen in the anus. That’s all. So, what is this obsession to ask question “Do you have it recorded?” And “I want it”. It is trite law and it is certain that you ask him and he will answer orally. But if you keep on saying I want this and I want that, then you make S.60 redundant. That’s all.

KS: The opinion of an expert is not in relation to a fact, it is advisory. What is important YA is this, Section 45 Evidence Act 1950 and what is stated in the United Asian Bank case. I’ll go through my submission very very slowly because it is necessary. Because YA has not understood what we have submitted. As we said earlier YA is very much into S.159 and S.157 Evidence Act 1950 which do not apply. [read yesterday’s submission]. YA is bound by the decision of the Supreme Court whether YA likes it or not. [read extract of the book referred in United Asian Bank case]. Function of the expert is to give his honest opinion and place before the court all the data on which he based his opinion. And I repeat again [repeat].

YA: If he does not do that, what will happen?

KS: It is required.

YA: Maybe if he does not do that his evidence may be rejected. Maybe.

KS: I’ll come to that later.[continue reading submission]. It is also not fair to the opposite side. We are the opposite side here. No doubt this is an adversarial trial, but it does not mean the court should sit back and do nothing about it. [continue reading]. Any opinion without stating the reason is valueless. Why is YA recording something that is valueless? This is what the Supreme Court said. [continue reading]. Our Supreme Court, not the Indian Supreme Court.[continue reading]. Why must YA sit there and later be guilty of serious misdirection later on? Must YA wait for the Appeal Court or the Supreme Court to decide there is a misdirection here. Why be misdirected? Here it is more between the court and the witness.Nothing to do with the defence or the prosecution. Because evidence of an expert is not an evidence of fact. They are just to give advisory opinion. The expert is here to assist the court. To assist the court to come to a finding of the court. And to come to the finding of fact we have to rely on the data used by this witness to make his conclusion as to his findings. We seriously urged the court to consider S.45. Forget S.159. Forget S.157. They do not apply. I have address it in my submission at the early page that it does not apply and what applies is S.45. It is a wrong judgment by YA for not addressing S.45. My learned friend is wrong when he says the witness is a witness of fact. He is just giving advisory opinion. The opinion must always be factum and something substantial. In this case it’s the notes. The witness says he has the data, he has the document but he kept on saying he want to give evidence based on his memory. He is nit here to dictate to us. YA is here to ensure proper evidence is given. Evidence which is essential. If I may repeat again, YA cannot sit here and let me be misdirected and let the Court of Appeal to correct it later. That is what YA is doing.

YA: If he does not give the data and I accept the evidence it will be misdirection.

KS: Why must Ya wait for that?

YA: I’ve yet to decide whether to accept his evidence or not.

KS: No. YA cannot accept his evidence. Because the court has made it clear, I repeat for this particular witness to place before the court all data.
YA: It’s up to them whether to provide for the data or not.

KS: Without the data it’s not worth for any paper to be written [read the Supreme Court case] YA must direct him, he must place before the court all the data. The court must direct the data to be placed before the court. No doubt this is an adversarial system, but the court has its function to ensure all the data and material are being placed before the court. We urged the court to consider the Supreme Court case and S.45 again. The witness is being programmed. He says he has the document, but he didn’t want to see them and he just want to give evidence based on his memory. I do not have to repeat this submission again because the third witness will come out and I’ll repeat the same thing again. The Supreme Court has said this way back as far as 1993.

MY: May I reply?

YA: KS belum habis lagi.

MY: He has been repeating himself.

KS: I’m not repeating. I’m emphasizing so that YA would understand what we are going to say. It is so clear but I can’t understand why YA cannot see what we are trying to put across. I’m making attempt for YA to understand it. I’m as much as an officer of the court as much as YA. There is no difference between us. I’m here to convince and persuade YA in the name of justice.

YA: That’s all?

KS: That’s all.

MY: My Lord, I accept that statement of law made in that case. That is a general principle. Now, we talk about data. He is not a chemist to analyse the specimen, to see whether there is semen or whose DNA is it. But as far as the chemist is concerned we have given all the documents and data of the chemist to the defence. But here what data is he relying on giving evidence? All this team of the doctors did was to examine physically, to observe whether or not there is injury. They can testify to that. They don’t need the data to come to that. And then they collected the specimens. And they did not even analyze the specimen. As far as the chemist is concerned like I said just now all the data used by the chemist to analyzed had been supplied. So he is to give his reasons. Now as far as the doctors are concerned when they gave their opinion with regard whether there was penetration, he was not even relying on their examination. Because as far as the conclusion is concerned, the conclusion is neutral. There is nothing clinically conclusive suggestive of penetration. That’s all. So whose report and data that they are relying upon? It is the chemist report. And the chemist report was produced in court and incorporated into P22. So what data is my friend asking for now? They don’t have the data. Like I said, he may be a specialist. But in the context of this case, what he did is nothing more than just collecting specimens. What should be the concern is whether they have adopted a proper procedure or not in terms of specimens collection, whether they are train or not. That’s all.I’m aware with all those cases. Even R v Turner said when a psychiatric or a doctor gave evidence as to the mental state of mind, he must state the facts proved by admissible evidence not based on interview alone. He must make his opinion based on his own observation and not of anybody else. We know that and that is trite law. We have no quarrel with

KS. But this is not the situation in this particular case. So when they kept on talking about data, this is not about handwriting where you have to analyse the handwriting, the loop, the angle, whether or not pressure was applied during writing, what kind of ink and all that. I mean it is so different. The statement of the general principle we accept. But we have to look into the context of this case. He may be an expert in so many things. But what did he do? What evidence did he gave? Was it based on his specialise training? Or what any medical doctor would do. In his situation where he was ask to examine and collect specimens. And that don’t require data. We don’t need reason and there’s no reason here. He is only testifying on what he did and what he did not do. And also what he observed.
So now if the only conclusion that he made which incriminate the accused was based on that report and that report was made available. In fact the report was of no assistant to him because the location was not known. So my learned friend cannot complaint now “You must bring the report based upon which you give your conclusion. The report was incorporated in P22 and also produced in court in the form of ID25 for KS and SN to see and to analyse. So what is it that we are withholding? We don’t.
But as I said just now my Lord and I said this previously, S.45 talks about expert evidence. It talks about circumstances where the court can comfortably accept and attach the weight to it. And it lays down the principle. Principles based on the factual fact of the case. S.45 does not say if the prosecution or anybody who rely on the expert witness failed to do certain thing then it’s for the court to compel to do it.
This is an adversarial system. Your Lordship role as a role of a referee. It is not your Lordship’s function like in a football game for us to bring the ball to the goal mouth and for you to shoot it. It’s our duty. And if we failed to do it, that’s the risk we are to take. And KS cannot genuinely be concern of justice in that sense. He should be happy. If I failed to do all this thing, he could just comment. He can come out with cases to say that it is unfair and that I cannot cross because you did not come out with the data. So in short, just like KS, that your Lordship is not persuaded and that we did not understood him, we understood him very clearly. It’s just that the law does not support what he propose the court to accept that this particular S.45 gives the latitude to the court or defence to have access to the documents which the prosecution or the witness do not refer or tender. That’s all.Thank you My Lord.

KS: Just 2 points. Whether it is a chemist or handwriting expert or medical doctor, the principles are the same. There’s no difference between these principles. What these witness is doing is coming to the court and says “These are my findings”. He is not prepared to go further than that. What is important here YA is that the witness yesterday says that there were photographs taken but the prosecution in fact would object to the production of the photograph. Why is the photographs not admissible? Is it not necessary for us to look at the photographs?I refer to an Indian case of Madan Gopal. Expert is expected to put up all materials. This is what the Supreme Court says. [read].

YA: We accept that. But the question is can we compel them to do that?

KS: As I said earlier this is not an evidence of fact. It is opinion

YA: If they failed to prove, then they take the risk.

KS: Why wait for the misdirection when it can be avoided.

KS: I will carry on as I have not finished. I start again (read submission). The court although not an expert may form it’s on judgment on those materials. Once the opinion of the expert is accepted it is not the opinion of the expert but that of the court. That is what YA it is. We urge YA to reconsider the ruling made yesterday. Concentrate and focus on section 45. The court has a duty to ensure justice is done. Adversarial no doubt but YA must demand for the data to be produced so that YA would be in the position to make findings. YA should not be concerned with the defence or prosecution but YA oneself. Because later YA has to make a findings of facts base on advisory opinion and the opinion can’t be done unless YA has all the data.

YA: If there is no data and the court cannot make a finding and you will be at the advantage.
KS: It is not about advantage. It is about justice. Here there’s no justice. To do justice YA must be fair to both side. Why is my learned friend so intent in disallowing something which is allowed in every countries? Once again reconsider the ruling made yesterday in the light of the Supreme Court decision. It is our Supreme Court decision. Section 45 alone. Forget 159 and 157. They do not apply at all.

YA: So now you are asking under S.45 Evidence Act 1950?

KS: Yes. 45 alone and nothing else in the light of our Supreme Court case and the Indian Supreme Court case.

YA: That’s all? Give me some time.
[9.18 a.m.] Stand down.

[9.57 a.m.]
YA: This is my ruling. [Judge read his ruling] The application of the defence is hereby dismissed.

KS: We get instruction to appeal against your Lordship ruling.

YA: This is an interlocutory ruling.

KS: It depends on how we go about it. Because we do not want this to be repeated because there are 4 witnesses pertaining to this issue

YA: It’s up to you. I’m not going to accede to any postponement. But in the mean time we can proceed.

KS: It’s not a postponement. It’s an adjournment for us to get the application filed. In fact your Lordship has to hear the application.

YA: As of now there is no application before me.

KS: Application cannot be oral. It must be in writing We requires some time to get the application done. It is a precedent that your Lordship said application must be made in writing.

YA: So you don’t want to proceed with the cross-examination now?

KS: Perhaps that’s what I mean.

YA: So I take it you don’t have any cross-examination.

KS: Your Lordship cannot take it to that extent, I’m making my application and I’m giving my reasons for it.

YA: So you are making an application for stand down, is it?

KS: We have to file the application because if our application succeed there is no reason to go on with this particular witness. If your Lordship agrees with the stay. Your Lordship does not understand. If your Lordship agrees for a stay, then it will be pointless to go with the evidence of this witness.

YA: I don’t want to argue with you.

KS: But your Lordship has passed precedent like this earlier. So we need time. Or is there a departure as to this precedent, my Lord?

MY: My Lord, I’m sure KS or SN can cross examine the witness on other aspect other that does not require the so call data that they ask for. Because until today we do not know what data they are talking about. because there is P22 which is the notes based on the examination. I’m objecting for the stay.

YA: You can file for your application for stay. But for the time being proceed with the cross-examination of the witness. Teruskan.

Cross-examination of SP3 by KS.

Q: You have given us this pro forma. Which you have fill it up?
A: Yes.

Q: By whom?
A: By my medical officer who was under me.

Q: Who is the medical officer?
A: Dr. Raswin

Q: It’s quite a pro forma isn’t it? With many questions to be filled up.
A: Yes.

Q: It’s detailed?
A: Yes.

Q: Is it exactly like this that you have filled up?
A: YA, it’s just a guide.

Q: I’m talking about the pro forma. What was it that you fill up?
A: This is just a guideline…

Q: Is this the pro forma?
A: Yes.

Q: The white one or the yellow one?
A: The white one.

Q: So you fill up every detail as in this pro forma?
A: Yes.

Q: You filled up every question and gives the answer?
A: Yes.

Q: Preliminary?
A: Yes.

Q: First, the general information. Patients name. What was it?
A: Mohd Saiful bin Bukhari.

Q: What is his i/c number? You said you got good memory.
A: YA, can I have a copy of my clinical report.

KS: Dr. Siew,…

YA: He wants to refer, now you don’t give.

KS: Precisely. That’s what I’m coming up with.

Q: Do you want to refer to this now?
A: No. I don’t want to refer to this. May I have a copy of my clinical report?

KS: No. Dr. Siew, you are not answering the question. You said you can give through memory. Name again the patient. Spell it.

M Y: My Lord, may I interject.

KS: We do not want interference. The DPP should not interfere unless he wants to be cross-examine.

MY: I want to raise a point.

KS:: What is your point?

MY: Let me address the court. I just want to clarify with the court and the defence counsel. Are we asking this person with regard to what he did or to the record of what he did?

YA: I understood what he did.

KS: What he did here. Give us the latitude. Whatever he has fill in, now we want him to remember.

SP3: YA, of course I can’t remember details such as i/c number.

Q: So i/c number you can’t remember? Name?
A: Mohd Saiful bin Bukhari. Of course I can’t remember certain thing.

Q: Mohd Saiful bin Bukhari?
A: Mohd Saiful Bukhari bin Azlan.

Q: I/c number you can’t remember?
A: …

Q: We go one by one if that’s what you want. Three. Address. Can you remember?
A: Address I did not fill in. Because I have a copy of the i/c.

Q: So address is not important?
A: It’s in the i/c of the patient.

Q: Isn’t it a requirement to fill in the form?
A: I’ve a copy of the patient’s i/c.

Q: Isn’t it a requirement to fill in the form?
A: That pro forma serves as a guide for us.

Q: Age?
A: 23 years old.

Q: Date of birth?
A: It’s as per the i/c. I cannot remember.

Q: Occupation?
A: A private assistant.

Q: Private assistant to what?
A: I didn’t ask.

Q: Married/single/divorced?
A: Single.

Q: Out patient card number?
A: There is no such thing. No information.

Q: Hospital admission number?
A: I put it as K08/08 as my case number.

Q: But admission number is there.
A: YA, that is just the pro forma.

KS: Dr. Siew! Forget what it is. We know what it is.

Q: Date of arrival?
A: 28th June 2008.

Q: Time of examination?
A: We put 9.12 p.m.

Q: Place of examination?
A: We put it as One Stop Crisis Centre (OSCC)

Q: Police report number?
A: Travers report.

Q: Number. Not the Travers report.
A: I can’t remember. Can I have a copy of my clinical report again?

Q: Do you want to refresh your memory?
A: I would like to recall my memory from my clinical report.

Q: Do you want to refresh your memory?
A: I want my clinical report.

KS: YA, gives us the latitude.
MY: He wants to refer to his report.

Q: Do you remember?
A: Yes. I wish to refresh my memory by referring to my clinical report.

Q: We are referring to this. This document. And nothing else.
A: YA, I want to refresh my memory by referring to my clinical report.

Q: No. I want you to refer to this. This is the document.
A: I want to refresh my memory by referring to my report.

KS: No.

MY: This is what the refreshing memory is all about. Let the witness refresh his memory if he want.

KS: No. We are basing it based on the pro forma which he has filed.

YA: Okay. He does not want to.

KS: He does not want to.

Q: You don’t want to?
A: I want to. I want my clinical report.

Q: You don’t want to refresh your memory from this pro forma?
A: No, YA.

Q: Then say no. Next, name of the police officer?
A: His name id DSP Jude Blacious.

Q: His i/c no?
A: I cannot remember.

Q: Do you wish to refresh your memory?
A: Yes. From my clinical report.

Q: Dr. Siew! Do you understand? This document. You don’t wish to refresh your memory from this document?
A: No.

YA: KS, if he wants to refer to the clinical finding, let him.

KS: YA, we want this document. Why must go to the other document?

Q: Allright Dr. Siew. I/c no. of this police officer?
A: I don’t remember.

Q: Do you wish to refresh your memory?
A: Yes. From my clinical report.

Q: Do you understand English?
A: Yes.

Q: Do you want to refer your memory based on this document?
A: I don’t wish to.

Q: Why?
A: I don’t wish to use this document. I’ve my complete report.

Q: Why not from here? Forget the complete report.
A: I’ve answered already.

KS: Come on Dr. Siew, you can’t come here and expect us to accept your lie.

MY: That’s a strong word.

KS: Stronger words are coming out.

MY: What is your basis in saying that?

KS: Because he is obviously lying to his teeth.

MY: This is my problem. I thought witnesses are called to testify with regards to what they do.

KS: That’s what he did. This pro forma.

MY: This is the record of what they did.

SN: Why are you scared? Why are you scared? Why is he scared in referring to his notes?

MY: I think the court must make a ruling. Are we going on what he did or on what he recorded he did?

KS: We will go on. But one by one. Later on.

MY: I thought that is what he did.

SN: That’s your style. Our style is different.

MY: It’s not about style…

KS: I do not wish to be interrupted. This is the document which he prepared. And he does not want to refresh his memory because he has been programmed.

Q: We proceed. Name of the police officer you know, but i/c of the police officer you don’t know.
A: Yes.

Q: But you don’t wish to refresh your memory based on this document?
A: No.

Q: Why?
A: I don’t wish to.

Q: Name of the doctors who examine the case?
A: Dr. Khairul Nizam b. Hassan, Dr. Razali b. Ibrahim, Dr. Siew Shueu Fend and Dr. Ridzwin.

Q: Designation of the first doctor?
A: We did not fill in that section.

Q: Name of nurses assisted?
A: There’s no nurse assissting. There was no nurse around.

Q: Name of counsellor?
A: There was no counsellor.

Q: Now this is important. The history. The following should be. Page 5. Do you know of page 5.
A: Can I have a copy? (Witness is handed over the pro forma)

KS: No no no no. Not this one. The one that he has fill in.

MY: You have not even ask the question. You ask first. You ask what is it for page 5.

KS: You don’t teach me how to ask. I don’t have a copy.

Q: History. The following should be noted as alleged rape.
A: There is no rape here.

Q: But the following should be. It’s mandatory, isn’t it?
A: Not mandatory. It’s a guide.

Q: The word is should.
A: The word should is a guide.

KS: Where did you learn your English?

MY: It doesn’t matter. The whole page is a guide.

KS: Forget about the guide.

MY: How could you forget about the guide?

Q: Allright, 1.1. is there 1.1 from your memory?

MY: What is this?

KS: This is not a laughing matter.

YA: Be precise with your question. Ask him what has he recorded in 1.1.

Q: There is a five isn’t it? One, there is history. You remember that isn’t it?

MY: That is not 1.1.

KS: My Lord, my learned friend should keep quiet.

MY: You didn’t even ask what you write in 1.1.

KS: Because that’s what he says.

MY: Because earlier on you ask name. Why not you ask what’s on page 3? We have got to be fair to the witness.

SN: We have been fair to him.

KS: He has been unfair to himself. These people are all programmed. They are robots.

YA: I think we take a break.
[10.17 a.m.] Stand down.

[11.29 a.m.]
KS: We’ve got an instruction form my client for your Lordship disqualification to continue hearing with this matter. We are putting up a written application. But basically the grounds of our application is this, that your Lordship has failed to abide by the guidelines or for that matter specifically the case of the Supreme Court in United Asia Bank Bhd. We’ll put up a written application by tomorrow morning. We ask for this trial to be adjourned until the hearing of our application.

YA: You will file it by tomorrow morning?

KS: Yes.

YA: But in the meantime we can proceed with the trial now.

KS: No.

YA: Because in the meantime I will have to consider contempt proceeding as well for making an application to recuse a judge.

KS: We will give more details in our application. DSAI is afraid that he is not being given a fair trial. It is our client’s instruction that we are bound to take. Your Lordship may refuse it. It’s within your Lordship domain. But we have got to take instruction. The question of contempt does not arise. This is matter where your Lordship has to view objectively. We have the role to play as defence counsel. If instructions are given, we must abide by the instruction.

YA: But you are responsible for whatever instruction that you are taking. Like in the case of Zainur Zakaria where it says you are responsible with whatever instructions your client gave. Zainur zakaria case is clear on that.

KS: That’s a separate matter.


MY: YA, this is the first time I’m hearing an application grounded or that the judge should be recused on the ground that involves a matter of interpretation or judgment. It does not involves the conduct of the judge, but it’s a matter of the judge interpreting the authority and say that this authority does not support your proposition I have never heard of something like this. I do not think there is even a ground because if you are not happy, you appeal. If it can be appeal. If not you have to wait until the end of the trial. But it cannot be a ground when the judge interpret differently.

YA: That one tomorrow baru decide.

MY: YA cannot decide tomorrow because how are you going to say that “I interpret it wrongly”. You won’t be able to say that because you have heard the submission and make a finding that the authority does not support the proposition. Tomorrow, when somebody comes in and says that you do not follow because it involves your own interpretation of that authority. Whether or not it support the proposition. No.2 I agree with your Lordship. Client will ask for anything, but counsel must be able to advise and only do things which is permissible under the law. Not because “Oh, my client ask this”, irrespective of whether or not the law allows it. Because it’s my duty to pursue my client’s case without fear or favor. Because everything is subject to procedures and the law. I’m objecting to the application of stay.

KS: The question of contempt is totally unwarranted. Your Lordship should view it objectively. When a written application is made…

YA: When the application is made of course I can hear it.

KS: But to threaten us with contempt…

YA: For the time being, we can proceed.

KS: But to say contempt at this stage is serious.

YA: I’m not saying it is contempt.

KS: Your Lordship said it just now. Which is not proper. We have a duty to perform.

YA: Okay, that one will be filed tomorrow la. But in the mean time…

KS: But the statement of contempt is entirely unwarranted. To intimidate a counsel is a serious matter.

YA: Never mind. Tomorrow’s application should be heard tomorrow.

KS: YA should draw the threat of contempt.

YA: I withdraw that.

KS: Yes. It’s not proper. We’ll take responsibility if responsibility has to be taken. Counsel must be prepared for that and we are prepared for that. YA should not threaten us even before we embark on the application.

YA: So, what about today’s proceeding?

KS: It’s as simple as that YA. I’m saying that until such time your Lordship hears the application and be serge upon it. Your Lordship can’t go on with the matter. It would be superfluous be ultimately overtaken by your Lordship’s ruling tomorrow. If your Lordship is to decide tomorrow your Lordship to disqualify yourself. We cannot take it that your Lordship is saying that we carry on despite whatever your Lordship’s decision tomorrow. Your Lordship should take it objectively. I was taken aback by the threat just now. I’ve been practising for the past 41 years, my Lord.

YA: It’s not a threat.

KS: But your Lordship refers to Zainur Zakaria and more or less giving us an indication not to file the application. Which I any event will be file irrespective of the intimidation. We will file it. Your Lordship can decide against us. That’s another matter.

YA: In the mean time, can we carry on?

KS: I don’t mind. In any event I’m prepared subject to application tomorrow. We are prepared. Lets get on with the witness.

YA: Proceed with the trial now. Tomorrow we see how.

Cross-examinantion by KS.

Q: Do you remember the oath you took?
A: Yes.

Q: Repeat that oath. Don’t look at anything. There’s a card there. Push it aside.
YA: Why? He took the oath. He read from there.

KS: I’m asking whether he remembers what you read.

Q: Dr. Siew, did you remember what you read? As an oath?
A: Yes

Q: Can you repeat it? Or do you want to refresh your memory from the card in front of you? What’s your option, Dr. Siew? You want to read from your memory or from the card in front of you? Dr. Siew, you must answer. Don’t look around.
A: [recite]

KS: Nothing else but the truth.

Q: During the break, did you go through the pro forma? Outside there, in the witness room?
A: Yes.

Q: You have it with you?
A: Yes.

Q: Did you have a look at it at all?
A: Yes. I did have a look at it.

Q: Why?
A: To refresh my memory.

Q: You did it to refresh your memory?
A: Yes.

Q: What part did you referred to just now? To refresh your memory. My Lord, we want that part.
A: The pro forma.

Q: What did you look at outside there to refresh your memory.
A: The pro forma.

Q: All of it?
A: Not all. Some of it.

Q: Which part? Do you wish to refresh your memory based on the pro forma just like you did outside during the break?
A: No. I remember now. I’m refreshed now.

Q: No no. you refreshed your memory outside. Which are the part from which you refresh your memory?
A: Name, Mohd Saiful…

Q: You went through the whole pro forma? Tell us the truth.
A: Yes.

Q: Because you have to give evidence later on, isn’t it?
A: Yes.

KS: Can we have the pro forma, my Lord? Because he has refresh his memory based on the pro forma pursuant to S.159 of the Evidence Act 1950.

MY: My Lord…

KS: Mr. DPP, don’t panic.

MY: My Lord, the law is very clear.

KS: My Lord, I’m not finish.

MY: All right.

KS: My Lord, we are asking for the whole of the pro forma to be produce. Because he refresh his memory. He said it under oath.

YA: But he refresh his memory outside the court. He did not do so while giving evidence in court.

MY: That’s exactly what I want to say. S.159 talks about refreshing memory while under examination. The law based on the literatures and the authorities, there is no stopping the witnesses from refreshing their memory outside the court, before the trial. The law is very clear.

KS: But is not in between giving evidence. Before trial yes. But not in between.

MY: But the law doesn’t says that, my Lord. We have the authorities.

KS: Shall we hear submission on this my Lord? If my learned friend wants to hear the submission.

YA: Okay, I’ll hear the submission.

KS: Gives us about have ½ hour to prepare our submission. Witnesses cannot go out and refresh his memory during break.

YA: When he wants to refer to the notes while giving evidence you disallow it.

KS: I didn’t disallow him. He didn’t want to. We will submit on this.

YA: ½ hour.
[11.42 a.m.] Stand down.

[12.20 p.m.]
YA: So we go the issue first. What do you want today?

KS: First, we pray for this witness to be cited for contempt of court. And also your Lordship to direct the prosecution of this witness under Penal Code.

YA: Peguam?

KS: First, that this witness, SP3 who has committed an offence in the Penal Code for interfering with the administration of justice. An offence punishable by the Penal Code.

YA: Which provision?

KS: I’m not sure of the provision. The authority I refer doesn’t refer to any of the Section in the Penal Code.

KS: The first thing is that whether during break this witness if he refreshes his memory that he is in contempt. For all purposes whatever he referred to refresh his memory be supplied to us.

YA: So you want the pro forma to be supplied to you?

KS: Yes. Next, whether the witness remain to be under examination eve during the break. We say he remain under cross-examination during the break because he was still under oath during the break. The rest would then follow. We refer the case Moomin bin Saman 1993 3 MLJ 282, subject of course this authority being overruled which I’m not aware of. A decision by Richard Talala…
YA: Has it been overruled?

KS: No. As far as I’m concern, no. I read the head notes. [read head notes and holding].

YA: You think I’ve the authority to direct him to be prosecuted? I thought that is the power of the AG.

KS: To direct for him to be investigated is better. For the offence under the Penal Code. But first the contempt, where your Lordship has the power and the judges had done in the course of the trial and the Lordship has instructed investigation. This is a clear case where it is warranted. That would be our submission. One which is of important at least for the purpose of the trial that we be supplied with whatever material used by the witness to refresh his memory during the break. That’s the main thing at the moment.

MY: My Lord, I’,m not sure whether the court is in the position to direct investigation against the witness just based on the authority of Richard Talala decision which was not followed by any other courts in Malaysia. This is the only High Court in Malaysia which bars witnesses from looking at statements before or during the break. Because all other High Court have not followed. In fact what J Talala did was to decline to follow the Court of Appeal in Singapore and the English Court of Appeal. He has his own idea of S.159 and S.160 and S.161. His decision was that he is bound by the statutory provisions of S.159, S.160 and S.161. So what does S.159 says? One, it says witness can refresh his memory while under the examination. The word is “may refresh his memory”. Nowhere in S.159, the law says that this is the only time you can refresh your memory. If you are not under examination before the trial judge, you cannot refresh your memory not before, not during the break. Even that statement that during the break that he is still under examination is a bare statement. What weight is to be attached to a bare statement? During a break, when you get back home, tomorrow you are still under examination.

YA: This is what he said, isn’t it?

MY: This is what he said. But what is the reason for doing so? Because we may adjourn at 4.15 p.m. today and the witness go back, he is supposed to be told you are still under examination.

YA: Any other case yang kata ini tak betul?

MY: I do not know any. All I have is that Lim Fong Yap. But first let me refer your Lordship to the literature which we have given you earlier. This is a literature by Paul.

KS: Perhaps my learned friend should gives us the authority that this case is overruled.

MY: Let me finish first. If I may my Lord refer to that literature. Page 1048, the last paragraph under the subheading “whether a witness is allowed to read his statement before the trial”. [read] So what Justice Paul is saying is this, S.159 does not says anything. It merely says you may refresh while under examination. But then you have to satisfy certain conditions as the literature suggest you must demonstrate there is a need for it before you refer to it. [continue reading] I must bring back your Lordship to the start of the paragraph. It said Talala said you cannot refer to it before or when the case stand adjourned. With this, Paul we part company. We disagree with you. So J Talala talks about even during the break you are still under examination. But that’s what he said. There is no other authority to say that even during break you are still under examination.

But one thing I can see what Paul said there is always a safeguard. You look at the statement and I decide what weight to be attached depending on the particular facts of the case. That’s what he says. It cannot be contemptuous. Witnesses have been known to be present in court while other witnesses are giving evidence. And still the court in this country and in any other country say there is no bar for him to come and give evidence. Except that the court has to decide what weight to be attached. Here we are not talking about statement recorded under S.112. Here we are talking about his own notes. The form that he fills. It’s not something that the prosecution gives him to read. It’s all the time in his possession.

The reason why we need to allow has been discussed in the case of Regina v Richardson which was quoted or referred to by te Court of Appeal of Singapore in the case of Lim Fong Yap. I have a copy of Regina v Richardson. I’ll make a copy for your Lordship in due course. But let me read the passages that the judge in Singapore referred to. At page 7, [read page 7]. If I may go down a little bit somewhere in the middle starting from “[curiously enough]”. [continue reading].

So what they are saying is that let him have access. We don’t want to turn the trial into a test of memory rather than the test of truth. But once you enter the witness box then you have to follow S. 159. If I may refer to Moomin case. I have the Lexis copy…

YA: Even if we were to allow him to refresh outside without the permission of the counsel or the prosecution, will that be still under S.159?

MY: What S.159 says is that during the examination before the trial judge.

YA: []

MY: Because S.159 only says when the witness is in the witness box. Or else the law will say even if you were given the thing one hour before that you still have to show. But the law doesn’t says that. What the law says is that if you come to court and enter into the witness box, then there are rules to follow. First, you cannot refer to the document as a matter of right. Because the law says you must testify with the aid of your memory. The literature in Paul and Sarkar say this, you can apply but the court must satisfy that it is so necessary before leave is granted. But outside that it is a matter of his right to look at it. He didn’t even have to ask from us because it’s in his possession.

Only yesterday I was reading this article by J Shankar, the former Court of Appeal Judge quoting J Wan Yahya. And in fact that passage was found in your judgment with regards to S.51 application. What the law does not prohibits it permits. So S.159 does not talk about during the break. It talks only about while under examination. And what is under examination, it is there in the witness box, not outside the witness box.

And this is what Paul said : before or during break, but the safeguards is the court has to decide what weight to be attached. That is the court’s discretion. But as what Regina v Richardson says : you have to give access. Because it says you want to do justice, not to test his memory. You are more interested in justice. You would be failing in your duty if you disallow. And S.161 merely says this: if he refers while under examination, that means while being questioned then you have the right. With regard to India, this is the Indian position. Page 2295 of the literature from Sarkar, under the heading “while under examination”. [read]. Examination in court, so outside the court is not examination. [read] While I’m submitting I can hear KS is saying “That is before the trial. Before the trial”. It’s true. Because the law is envisaging the situation before the witness gives evidence. But as Paul has said as for now we don’t agree with Moomin. I refer to Moomin case, the copy which I have downloaded from Lexis Nexis. I refer to page 9 of the report, the last paragraph. This is the judgment of J Talala. [read]. Richard Talala has his own idea. But like I said, what does S.159 said? Witness may refresh memory while under examination before the trial judge. Because what Hogan seems to suggest is that you can refer to it at anytime so long it is not while under examination before the trial judge. And in the literature by Paul, the condition precedent, i.e the condition before you are allowed to refresh your memory is what he quoted from Talala’s judgment. It is not as a matter of right. Eventhough S.159 you may refresh memory, S.159 does not impose any condition but J Talala lays down the condition. First, you ask him orally about the fact. Only when he can’t then he may apply. And only when the judge think that it is so necessary, to me meaning whether or not the particular of fact is so relevant and crucial to the issue for adjudication. For example, the i/c of Judy Blacious could not be that crucial. Because the so called Judy has been identified by this particular witness to be the officer who came to attend and who briefed them the history of SP1.

So my Lord, the law as far as J Paul is concern in his literature and all other authorities seems to suggest that there is no bar for a witness to refer to his statement. But that is not the issue before this court. The issue before this court is whether my learned friend is entitled to that document if he refreshes his memory outside the court. So the literature seems to say that S.159, i.e Sarkar – while under examination in court. If I may just again read Sarkar [read]. So.161 says whatever referred to under S.159,then it is imperative for the witness to show that portion he refers to the defence to use it to cross and to contradict.

So my Lord to sum up, may I just say that the law as J Talala said that is bound by S.159 does not prohibits refreshing of memory outside the court. Only he talks about the context before or after. He says cannot. before or after, you can’t do it. Before or during which J Paul disagree which all the Judges if I’m not mistaken in the whole of Malaya doesn’t agree. I do not of any other cases before this is the only case which decides this way. No.2…

YA: []

MY: In fact J Paul in his literature was referring to the case of DSAI and this case has gone up to the Federal Court and I don’t know of any adverse comment made by the Federal Court with regards to his approach to S.159 and S.161 in DSAI’s case. I do not know and I’m not aware. Meaning that it is tacitly approved by the higher court.

No.3, supposing it is wrong, supposing the court is in agreement with Talala, does that give him the right to look at the document. So the answer is negative, Because the law only talks about refreshing memory while under examination in court. Only those documents he referred in court while under examination that he is entitled to ask and which the witness is under obligation to supply. That is not the case before your Lordship now. No matter how you look at it, still the defence is not entitled. And whether or not it is contemptuous, I doubt it is contemptuous. Because contemptuous is when there is a blatant disregard to any order or rule by this court. He has not. The court has not says you don’t do this. Nothing. That would be all, thank you.

KS: A short reply. My learned friend should learn how to catch the bull by the horn. The question is whether a witness when the case is stood down, he refers to it, he is guilty of contempt. J Richard Talala has gone at length YA into that question and had formulated the rule as to refreshing memory. My learned friend refer to Sarkar. Lets see what sarkar says under the heading “While under examination”. [read]. We have no problem of that. It has been already been done. But the next sentence. But the word does not seems to debar for witnesses to refer to any writings before the examination. So the word here is before. This is not before. This is in between. It is in between. And all the cases my friend had cited in fact was saying before the examination.

I refer to what Augustine Paul J say [read]. We have to look at what J Augustine had to say. Disagreeing with this two. Lets look at what it says. [read] This is with regard to before. [read] Nothing says here with regards to when the court adjourned. It is before, not when court stood down. J Paul did not says as to this In fact what J Paul said does not at all negate what was held by J Richard Talala. Even during interval or for that matter when the witnesses says “I want to go to the toilet” and he refreshes his memory there and he is found to do that, does that mean he is not under oath?

YA: So that means you have the right to inspect?

KS: Yes.

YA: What about the contempt?

KS: He is still under oath.

YA: But there is no court order to say “No. You cannot do anything”.

KS: We don’t need court order. Because he is not entitled to do it. Before the break he can, but during the break he can’t. And that is what the conclusion of J Talala and if it does it amount to contempt. In fact if the witness said he wants to go to the toilet and he comes back, he is not ask to take the oath again. We carry on from where he left off. We say that your Lordship should follow what J Talala says in great lenght. Even his reason and authorities before coming to a conclusion. We say what was set out in Moomin aptly and squarely applies in court today. Of course first thing first. We are entitled to look at the pro forma. The rest falls into place. He has committed contempt, i.e an offence under the Penal Code that is interfering with the administration of justice. your Lordship ought to follow the reasoning in Moomin. There is no authorithy which has overrule Moomin.

YA: What about the case of DSAI?

KS: Even in that case it says before. There are 2 parts essential in our submission just now. In Moomin, the witness is not allow to see his statement made to the police before the trial. It does not advert to when the case stands adjourn. Like J Augustine Paul. It does not. We only agrees as to that part, before. Go to the next page [read]. Must be before all the time. As Sarkar on Evidence says [read]. If the witness is allowed during short adjournment to refresh, if that is the law, it would be aptly difficult to apply S.159 and S.161.

We pray for your Lordship to order – one, we being supplied with the pro forma, two, that this witness be held in contempt, three, that your Lordship direct an investigation against this witness for the offence of interfering with the course of justice under the Penal Code. Message has to be send out that anyone who comes to court as witnesses cannot fool around. This witness is just doing that. Whole morning he says he doesn’t want to refer to the document. In the witness box he kept saying that. I think you should take time to consider the matter.

YA: Itu saja?

KS: Yes.

YA: Court postpone to 11.30 a.m tomorrow due to DSAI and his counsel have to be in Federal Court tomorrow morning.

[13.17 p.m.] Adjourn.
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