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Saturday, March 5, 2011



Anwar Ibrahim Sodomy II – The Recorded Truth – 2 Mac 2011
Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

PP : Semua hadir
PB : KS, SN, (Datuk Param Cumaraswamy, Dato’CV Prabhakaran,Ram Karpal, Marissa, Radzlan tidak hadir)
AI hadir

[2.55 p.m.]
Kes disambung semula dengan permohonan pihak pembelaan untuk meminta trial within a trial supaya diadakan di atas bidang kuasa mahkamah.

KS: My Lord, I have to start first?
YA: Yes.
KS: My Lord, it is our submission, that we need a trial within a trial, for the purpose of laying the ground to show that what has been recovered from the lock up which has been marked as an ID, that those items ought to be excluded as evidence. For doing that, there must be a basis for it. At this stage, I would just perhaps go on bits and pieces of what basis would that be, because at this stage, we need to decide whether there should be a trial within a trial in any event. Our submission would be the arrest of DSAI was illegal, unlawful and what has compounded that rather unlawful means, unlawful methods employed by the police for the purpose of getting those items for DNA analysis. I take you to the case of PP v Mohd Farid bin Mohd Sukis, tab 1 of our bundle. But before that, I will take Your Lordship to the case of Goi Ching Ang v PP [1999] 1 MLJ 507, tab 2. That case is ML Federal Court’s decision of 5 men bench. I take you to para 3 under held, page 508. [read]. That was section 27. Here likewise, the principle would apply.I take you to several pages of that case, page 526 of that report. I take you first to the case of Noor Mohamed v The King [1949]. [read page 526, tab 2].
[Read] under heading of Principle of Fairness, page 526 and 527]I take you to the aspect of fair trial, in the case of Lee Kwan Woh v PP [2009] 5 MLJ 301, tab 7. [Read 303, para 2]Next, to the case of Ramli bin Kechik v PP [1986] 2 MLJ 33, tab 3 in our bundle.[Read page 38] I take your Lordship now to the case of R v Sang [1980] A.C 402,that would be tab 4 [read para H, page 402]. Next, Australian case, Cleland v the Queen [1982] 151 C.L.R. 1, tab 5, [read para 2, page 1] Then we go to the case of Regina v Fox [1985] 1 W.L.R.1126, tab 6 [read para H, page 1126, and para A&B, page 1127]. Next, case of PP v Farid bin Mohd Sukis [2002] 3 MLJ 401 again, [read on the head note page 402], elaboration come in the judgment of Augustine Paul at page 412, 413, 414, 415 read].
So by applying those principles, YA, we say that it is necessary for us for your Lordship to exercise the discretion. That can only be done, if we are given opportunity. That opportunity can only be made available substantively and objectively where there is a trial within a trial. On the final say, we’ll be relying on DSAI’s arrest and detention was unlawful. The method employed to secure the evidence which is now being placed before the court was brought in circumstances of unlawful means, and unfair method. Therefore, we submit that there should be a trial within a trial. We pray that YA to follow the case of Mohd Farid where the learned judge has addressed practically within the authorities of English case and []. We pray that we will be given opportunities to place that material before the Lordship. That would be all for the moment.
MY: ML, to instruction of evidence in a criminal trial, is to govern by Evidence Act, especially Section 5 and Section136. Section 5 talks about we may only adduce evidence with regards to the existence of non existence of fact in issue, anything that this act declares to be relevant. And Section 136 says that the party adduces to the evidence, than the court will ask in what manner it is relevant. If it can shows that it is relevant, then it is admissible.
Obviously, the evidence pertaining to the collection of exhibits from the lock up is relevant in sense that it has very great probative value. It affords evidence, it affords proof of the guilt of the accused. But of course, in the evidence act, there are certain section which say that before the evidence is admissible, there are 3 conditions: First, Section 24: confession where there is objection to that evidence, the prosecution has to show that the confession had been obtained not from the inducement, threat or promise using by the person in authority. That is the only time when the court will hold a trial within a trial. Where there are no pre conditions to the admissibility, a trial within a trial is not necessary. My Learned friend refers to few cases, from Noor Mohamed is not with regard to a trial within a trial, they also refers to Farid Sukis, and also Goi Ching Ang. If I may just say something about Goi Ching Ang. Goi Ching Ang is one Federal Court’s decision which I think that the case which had been decided wrongly. In the judgment, the court agrees that involuntariness is not an issue, because sec 34 and Sec 27 [] then how could would say that it is involuntary and then exclude it? Because in the Privy Council in Lam Chi-Ming, page 24, tab 1, [read] says that if it is not voluntary, then it is not admissible. But in the same case, the Privy Council recognizes the fact that though section 27, is found in Ceylon and India, it’s principle and laws were actually lain down in English courts earlier, and then codified by India and Ceylon, and found its way in our relevant act, the things have change. In Lam Chi Ming itself, this is what the court has to say. If I may, [read], para g, page 175. And then at page 178, para c [read].
Section 27 says that voluntariness is not an issue. And how anybody could says that it is proper to obtain it, because it was not recognized. What is being admitted is not the confession. What is admitted is the information leading to the discovery. It shows knowledge only; it does not directly incriminate the accused. So, in Goi Ching Ang, reference was made to Noor Mohamed. Noor Mohamed is the case of similar fact evidence. When you talk about similar fact evidence, obviously it is evidence which does not prove or disprove. That’s why the court is very careful. Even then Noor Mohamed says even though it is a bad character evidence but sometimes because of special features in the evidence, it may need [] accused probable to admit it. So Noor Mohamed is not the case to be applied in this situation, but YA, at this juncture, we are not talking about whether or not we want to exclude, we are talking about whether or not there is a need for a trial within a trial.

YA: But I think what they are saying is that falls under the third one, i.e. the evidence obtained from the accused after the commission of the offence. I think that is what they are saying, not confession and admission.
MY: In PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401, the court recognised that it is not confession. At page 412, it says that normally a trial within a trial is held to determine the admissibility of evidence which requires certain conditions to be proved before it can be admitted. Thus, in the case of confession, the precondition of its voluntariness and a trial within a trial must be held to determine whether it was voluntarily made before it can be admitted. Where evidence sought to be admitted is not subject to any such conditions as in our case, it must be admitted without subjecting it to a trial within a trial. This is what it says. And then the later part it says we have to []. You must admit first. Now, application has been made to exclude, then the court [] whether or not there in the course of obtaining the information, it is so oppressive to tender it, unfair and inadmissible. But []. This is what PP v Mohd Farid b. Mohd Sukis said. Now subjecting it…
YA: If I understand you correctly, mark as P first then we have a trial within a trial and if the court decides that it is opression, take it out. Is that what you mean?
MY: No. When it comes to exclusion, all the authority says this: just because the evidence is obtained illegally or improperly it does not follow that the evidences to be excluded. It will only be excluded if it is unfair to the accused, where the prejudicial effect outweighs the probative value. Again, we go back to what [] and Nur Muhammad said. If it merely shows that this man is a man of this character rather than the evidence that will [] by guilt, the you would exclude it. In this case the evidence that is sought to be adduced confirms the guilt of the accused. In that sense all the cases were saying that this kind of evidence had a strong probative value and you must admit because its probative value outweighs its prejudicial effect. It is not something that is []. So YA, even in PP v Mohd Farid b. Mohd Sukis, the court recognises that since this kind of evidence does not fall under the category of S.24 Evidence Act which is confession or admission, then you admit it as []. Now, learned judge refers to this cases in para F and G of page 412 of the report where it says that [read: it follows that..] it refers to Cleland v R (1982) 151 CLR 1, with respect of the judge it involves the evidence of confession. Confession, we agree must have a trial within a trial. The High Court of England in Cleland v R is deciding on the volantariness of the confession. So, if that is, it applied [].
In para F and G of page 412 [read: it follows that the party seeking the exclusion of this evidence must satisfy the court that the circumstances are such that the court should exercise its discretion in favour of the party making the application. The appropriate way of dealing with it by way of a trial within a trial.]. It seems that all these cases referred to confession. In [], at para H and I, it says [read: if the voir dire procedure is not adopted, a defendant is placed at a disadvantage because the impugned statement will not be excluded unless evidence arising during the prosecution case warrants that action. When a voir dire is not conducted, an accused is placed in a situation where he or she can only give evidence during the substantive trial...the result obviously places an accused at a serious disadvantage]. Here it talks about jury trial. In jury trial, the admissibility of a particular evidence when challenged, it is always decided in the absent of the jury. If it is not a jury trial, I don’t see why you need to have a trial within a trial.At page 413, para B, this is what the judge says [read: the holding of a trial within a trial for the purpose under discussion will ensure that all relevant matters to facilitate the making of a ruling are addressed. If such a course is not followed, material evidence may be overlooked as the issue will not be in focus. This will place the defence at a disadvantage. Needless to say, the evidence in dispute can be excluded based even on material available in the substantive trial itself on the issue].
YA: Yalah, kalau boleh di exclude boleh la exclude. Tapi kalau tak boleh lagi which we need to go further, there where the trial within a trial comes in.
MY: Yes. The judge repeated this…
YA: Ya, itu siapa ya? Augustine Paul?
MY: Yes, when he is a High Court judge. And he repeated this in [] when he was in the Federal Court. He repeated it, the same passage. First of all, he is relying on the judgement dealing with confession which he himself said that you must have a trial within a trial. And in this case, we are not dealing with confession. We are in predicament now. Apparently he applied the wrong principle to the wrong case.
KS: I wish not to interrupt. But what my learned friend is not quoting what is in here but in the judgment of PP v Mohd Farid b. Mohd Sukis.
YA: Never mind.
KS: We have to put him on the right track. It is substantive trial or [] although…
YA: We know that. We have read that case many times.
MY: Then we look what is the position in India. Of course in India, there is no mention about trial within a trial with regard to evidence of the []. [] they talk about objection, then they talk about exclusion and they talk about R v Sang, Kuruma v The Queen and Nur Muhammad. No mention about trial within a trial. That is maybe why J Augustine Paul made no reference to any Indian cases in his judgment. Our Evidence Act 1950 is in pari materia of India. They didn’t talk about trial within a trial.
Now, let’s see at the position in England. Tab 29 of our bundle, Archbold’s Criminal Pleading, Evidence and Practice 2007. If I may read “Procedure” in page 1666. This is the case where exclusion is sought under S.78 and S.78 is more or less with R v Sang. If I may first refer your Lordship to page 1664 where S.78 of the Police and Criminal Evidence Act 1984 is reproduced. If I may read [read: in any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit]. Under “Procedure” in page 1666, it says [read para 15-458]. But this are materials before the court. [continue reading]. Here reference was made to R v Manji, but the case involves confession. And then we talk about summary trial. [read para 15-460, page 1667]. So, when we abolished the jury trial, what is the difference between summary trial in a lower court and the higher court? None. There is no jury whose mind will be influenced before the court can decides on the admissibility. Because here, your Lordship is both the judge and the jury. So, the question of somebody’s mind is being influenced does not arise.
I refer your Lordship to Blackstone’s Criminal Practice tab 27, page 2153, under the subheading “Procedure” [read - in seems reasonable to suppose...]. Now, they are referring to a situation where the circumstances under which the evidence was obtained is in dispute. Here, so far nobody is disputing how it is obtained when the thing was collected. Because first you must look at what are the conduct that you complained of. And then whether or not that conduct amounts to illegality or impropriety.
If I may read [continue reading - In Manji [1990] Crim LR 512, the accused denied…in general, the judge should decide on the basis of the dispositions, statements and submissions of counsel]. Again, no a trial within a trial.
I now invite your Lordship to the case of R v Sang [1980] AC 402, tab 8. This is in fact the case that lays down the principle of exclusion. At page 432. In this case, there is no a trial within a trial. [read first line para D]. In this case, it involves agent provocateur, whether or not the offence was committed as the result of the incitement of the agent provocateur. [read para E-F]. When you hear it, admit it, and then later on you may want to hear whether or not it should be excluded and then tell the prosecution you cannot rely on this evidence on the submission. [continue reading para F-G]. So, they are saying that when there is no distinction like in the summary trial or like in our trial, then there is no need to hear until the end and then decides if in fact Dato’ Seri Anwar Ibrahim was illegally arrested then hear submission whether or not that arrest is in fact illegal and improper and what is the effect, whether or not that has deprived Dato’ Seri Anwar Ibrahim a fair trial.
It is our submission that if we were to go to by our Evidence Act and pari materia with India and Ceylon which is S.24, there is no trial within a trial. If you go by PP v Mohd Farid b. Mohd Sukis, if any evidence sought to be admitted does not comes within S.24, you admit, and exclude later. And exclusion can be done either through a voir dire or not. If you go to England, it says that if you go under S.78..
YA: Just to clarify, you are saying that if we go by PP v Mohd Farid b. Mohd Sukis, we admit dulu lepas tu buat a trial within a trial and then decides samaada dia proved atau tidak.
MY: So, exclusion can be done either by the evidence that is being adduced or a voir dire.
YA: That one if we go by PP v Mohd Farid b. Mohd Sukis.
MY: Yes.
YA: That means the only dispute here from what I can see is now we are yet to mark, and you want to have the trial straight without marking the exhibits. That is the difference here now.
MY: Yes. But here in PP v Mohd Farid b. Mohd Sukis which my learned friend is relying says you must admit first.
YA: Mark as P first, then have a trial within a trial and if the court finds that there is substance in what you are [] here then we exclude. Is that what you are saying?
MY: Yes. What PP v Mohd Farid b. Mohd Sukis is saying is this, if the conduct complained of or the illegality can be seen from the evidence adduced, you decide by the evidence. If it is not in the evidence, then you have a voir dire.
In England it says evidence in [], [] the court has a discretion whether to hold a voir dire or not. But since where there is no real difference in summary trial where the position is the same now because of no jury trial but if you have to do so, you have to wait until the whole of the prosecution stage then you have a voir dire. In R v Sang, the reason why it is done that way YA, is to prevent prospected and lengthy trial within a trial. In R v Sang, the court goes on the assumption that the allegation is true that the offence was insight committed as a result of incitement by the agent provocateur to decide whether it is improper, if improper whether or not this triggers to the discretion of the court to exclude it in the sense that the use of it has been unfair to the accused. The use of it is unfair in the sense that the prejudicial effect outweighs the probative value.
To sum up, for our purpose there shouldn’t be any trial within a trial until the prosecution adduce all its evidence. The exhibits that we attempted to tender through Aidora and Amidon should be admitted as a matter of course and at this juncture the court would later on decide whether or not in order to exclude if there is an objection, a voir dire is needed. And for that both the parties will submit whether or not the conduct complained of is in the evidence adduced during the prosecution case either through the chief or cross-examination. If it is not there then we should hold a voir dire. And this voir dire would have to be held before judgment. This is what the law says. I urge your Lordship to dismiss the application of voir dire at this juncture and to allow us to have the evidence admitted and the exhibits marked as P.
YA: And after that buat voir dire? Is that what you are saying?
MY: Yes. And at the end…
YA: Evidence pasal collection ni dah habis, kan? Pasal nak mark saja from ID to P.
MY: Because today only we were told that this impropriety is attached to the arrest, not yesterday. To the arrest and the detention. So, during cross-examination, nothing is mentioned about the detention to be unfair. I propose for us to wait until we finish because this evidence with regards to arrest may be adduced when the IO gives evidence on that. But if it is still insufficient for them to lay the foundation to say that this is the conduct and this is what we say or complained to be improper or illegal, then we will have a voir dire for them to say what is the conduct. Then, if we concede, we can submit whether or not the conduct is illegal. Because they have to show what is the conduct. If we concede, the court just like in R v Sang will hear submission whether or not that is improper and whether or not it should be excluded.

KS: We would like YA to follow the procedure of PP v Mohd Farid b. Mohd Sukis. I take your Lordship to page 412…

YA: If we by PP v Mohd Farid b. Mohd Sukis, as they pointed out we have to mark as P first and then have a trial within a trial.

KS: Whether it is marked as P first, there is no difference. There must be a trial within a trial for us to lay the basis to exclude it. And then we can only do a trial within a trial not in the general trial.

YA: You want to have a trial within a trial to exclude exhibits which has already be marked as exhibits. As they pointed out, the exhibits have not been marked as exhibits, so how are we going to exclude?
KS: It does not matter, my Lord.
YA: So you concede it can be marked?
KS: Yes, it can be marked. And we’ll go on with a trial within a trial. []. We must lay the basis, YA. We must do that in a trial within a trial. It is in no other way comes in the general trial. I take your Lordship ro page 412 of PP v Mohd Farid b. Mohd Sukis. [read para G, page 412]. That is what it is saying here, that it is the more appropriate matter. In R v Sang, the complaint was this, an agent provocateur and that evidence came in the general trial. [].
YA: If I understand them correctly, if we want to have a trial within a trial why not wait until evidence on arrest and if it is not enough, then we have a voir dire. That is what they are saying.
MY: If the basis is not found in the evidence being adduced, then have a voir dire.
YA: You have two chances. One chance is through the evidence. From there kalau dah ada basis untuk tunjuk arrest tak betul, satu chance. Kalau tak ada, hold a trial within a trial. So, second chance for you. That’s what they are proposing.
MY: That’s what the law says.
KS: I think this is the position that it should be held now before the evidence goes in. And even if it is P [], it ought to be expunged. It comes back to square one.
MY: We admit first…PP v Mohd Farid b. Mohd Sukis says that you must admit first, then hold a trial within a trial.
KS: No. It says a trial within a trial first, then general trial. I take your Lordship to page 413 of Farid. [read]. It has to be done this way. No other way. [] We pray that a trial within a trial be directed at this stage.
YA: That’s all? Tangguh sekejap.
[4.00 p.m.]

[4.14 p.m.]
YA: This is the ruling of the court. Generally the court is not concerned with how an admissible evidence is obtained. But in cases where the evidence intended to be tendered involved admission, confession or generally with regards to evidence obtained from the accused after the commission of an offence, the court has discretion to exclude relevant admissible evidence if the evidence was obtained by improper or unfair means.
And it is my humble view that the proper way to determine whether there was unfair mean in obtaining such evidence that warrant exercising those discretion is by way a trial within a trial. Therefore, I allow the defence application to commence a trial within a trial.
[4.15 p.m.]
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