Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP: Semua hadir
PB: KS, SN, Ram Karpal, Datuk Param Cumaraswamy
AI hadir.
[9.06 a.m.]
Hujahan perbicaraan dalam perbicaraan.
MY: Hari ini ditetapkan untuk hujahan berkaitan dengan trial within a trial. Sebelum rakan saya memulakan hujahan, saya memohon untuk memanggil pegawai penangkap untuk mengemukakan warrant of arrest yang original, YA.
KS: We object to the application. In fact the prosecution case for the trial within a trial had been closed. Today is the date for submission. We can’t hear it at this stage, in criminal trial; there are certain rules and regulations governed. We have this submission based on the evidence as led in the TWT. It is wrong for the prosecution at this stage produce it to the court. What cannot be done, ought not to be done, YA.
MY: YA, I do not remember Mr. Karpal or the witness, DSAI challenging the existence of the warrant arrest at highest nature because DSAI said I remember of signing certain evidence but I cannot recall. That is in the light of evidence of Taufek said that the document signed by DSAI and he had made a copy. The only reason why I couldn’t produce it last week was because this warrant of arrest was misplaced. So I asked them to search for it. I didn’t know when they will find it, only this morning I was told they already found it. This morning I made a point to compare this one, with the one that we tender to the court. Only this time, the warrant was in hand written. With regards to this is criminal trial, YA, I remember you in your years of practicing law as DPP and Session Court’s judge and High Court Judge, you have came across cases like Ramli bin Kechik, Pon Nam and sec 425 of Criminal Procedure Court. You would allow this kind of application to arrive at the just decision. We are not [] any surprises, as far as we concerned. I leave it to your Lordship.
KS: Sec 425 does not apply, in fact it cannot be applied once the case had being closed. [] that is elementary. 2 cases cited YA, I’ve read both of the cases, but that was in relation of recalling of witness in the course of a trial. Submission had been prepared in the light of evidence given last week and it must remains so, it must not to be otherwise, YA. I pray that the application by my learned friend is dismissed. Let’s get and move on. That’s all.
YA: In these circumstances, I have to refuse the application by DPP, so we must go on with the submission.
KS: [read the Submission on Behalf of the Accused (Trial within a Trial)].
It is undisputed that the evidence of the items [the Good Morning towel, toothbrush and the mineral water bottle found in the lock up occupied by DSAI on the night of 16/7/08 at approximately 11.00p.m and after his release at approximately 8.30 a.m on 17.7.08] intended by the prosecution to be admitted as evidence has to be, on a balance of probability, shown by the defence to be sufficient enough for the court to exercise discretion to exclude it. This has been held in PP v Mohd Farid bin Mohd Sukis [2002] 3 MLJ 401 [Tab 1]. In Farid, Augustine Paul J (as he then was) ordered a trial within a trial for that purpose. However, he declined to exercise his discretion to include the Section 27 Evidence Acrt 1950 information in that case after hearing the accused.
In Goi Ching Ang v PP [1999] 1MLJ 507, a 5-man bench of the Federal Court exercised discretion itself to exclude Sec 27 Evidence Act information when the trial judge had not done so when concluding, having regard to the position there, as follows:-
“In short, since the learned trial judge in the instant case under appeal had found that the sec 27 information of the appellant was not voluntary made, it is irrelevant. It was not the appellant’s own statement and was extracted from his contravention of the privileged against self-incrimination and would be unfair to have it admitted against him. The facts and circumstances of the case show that sec 27 information obtained has an adverse effect on the fairness of the proceedings so that the learned trial judge ought not to have admitted it.
For the aforementioned reasons, we are of the view that the Sec 27 information of the appellant ought to have been excluded from evidence in the discretion of the court which was not exercised by the trial judge.
With the exclusion of the Sec 27 information, we find that there is no or insufficient evidence to justify the conviction of the appellant on the first charge.”
In our case, it is submitted the evidence of the items set out hereinbefore ought to be excluded at the discretion of the court on the following grounds:-
[1] the arrest of DSAI was in contravention of Article 5(3) of the Federal Constitution and Section 28A(1) of the Criminal Procedure Court.
[2] the items referred to hereinbefore were obtained for DNA profiling by improper and unfair means i.e. deception/trickery.
It is submitted the standard of proof on the defence to prove the existence of materials to substantiate the above 2 grounds is not proof beyond reasonable doubt, which is a higher standard of proof, than the standard of proof on the defence in the trial within a trial namely, proof on balance of probability.
In PP v Yuvaraj [1968] 1 MLJ 238, the Federal Court held:-
“Where either by statute or by common law, some matter is presumed against an accused person, the burden of rebutting the presumption may be discharged by a defence which is reasonable and probable. Section 3 of the Evidence Ordinance does not affect the quantum of proof”.
The Federal Court in this appeal applied what was said by Azmi CJ in Wong Chooi v PP [1967] 2 MLJ 180 at 181 as follows:-
‘In my view the law is quite clear, that where a burden is placed on an accused person to prove anything, by statute or common law, that burden is only a slight one and that this burden can be discharged by the evidence of the witnesses for the prosecution as well as evidence by the defence.
Yuvaraj went on appeal to the Privy Council (Public Prosecutor v Yuvaraj [1969] 2 MLJ 89) which held:-
‘Upon the true construction of the Evidence Ordinance, 1950, and the Prevention of Corruption Act, 1961, there is no relevant difference between the two descriptions of the burden of rebutting the presumption of corruption which are contained in the question if the ‘burden of rebutting this presumption can be said to be discharged by a defence as being reasonable and probable” is understood as meaning “the burden of rebutting such presumption is discharged if the court considers that on the balance of probability the gratification was not paid or given and received corruptly as an inducement or reward as mentioned in section 3 or 4 of the Prevention of Corruption Act, 1961.’
[1] Unlawful Arrest
In the TWT, DSAI elected to give evidence under oath.
In a short compass, he testified on 16.7.08 at approximately 9.30 a.m, he accompanied 3 of his lawyers i.e Dato’ Param Cumaraswamy, R. Sivarasa and S.N. Nair in his car to the MACC office in Putrajaya for the purpose of having his statement recorded. At that time, he was aware that he had attend at the IPK Kuala Lumpur to give a 112 statement at 2m in relation to a report lodged by Mohd Saiful Bukhari bin Azlan. He had been so informed that a prior appointment had been made between Supt. Jude Pereira and S.N Nair on 14.08.2008 for this purpose.
Having regard to his prior appointment, DSAI testified that he informed the MACC officers of this and for that reason, requested that he leave for Kuala Lumpur in the midst of the recording of his statement by the MACC at about 12pm. This was recorded by the MACC. He says he was accompanied by his lawyers in his car on the return journey. Dato’ Param Cumaraswamy was dropped at the Royal Selangor Club in Mont Kiara at approximately 12.30 p.m after which DSAI decided to go to his house in Segambut to perform prayers.
On the way to his house, his car was ambushed by several unmarked vehicles and police cars with around 10-15 UTK commandos clad in balaclavas and armed with machine guns. Nair, who was seated in the front seat beside the driver alighted from the vehicle to find out why they had been waylaid while DSAI remained seated in the back seat. He had wound down the window and heard the conversation between Nair and the police officer who was later identified as Supt. Ahmad Taufik bin Abdullah. Nair demanded to know the grounds for stopping them. Supt. Taufek replied he was merely following orders to arrest DSAI. Nair was not told the ground of arrest. Neither was DSAI told the ground of arrest by Taufik who accompanied him seated at the back of the police car to IPK KL.
Under cross-examination by lead counsel for the prosecution, Datuk Mohd Yusof Zainal Abiden, DSAI denied having any knowledge as to why he was arrested.
With regard to the arrest, Taufik testified that he had informed DSAI the reasons of his arrest, namely that it was under Sec377B of the Penal Code and that the police had obtained the warrant of arrest against him (IDTWT3). Taufik further added that he executed the warrant of arrest at the IPK KL since the warrant was at that time with the Investigating Officer, Supt. Jude Perreira. Taufik added that he showed and read the warrant of arrest to DSAI. Taufik further added that he kept a copy of the warrant with him. It is significant to note that the said warrant was issued by the Magistrate Court, WP KL on 15.7.08 and, as such, the so-called ground of arrest would have been fresh in mind of Taufik at the time DSAI was waylaid on 16.7.08 at approximately 12.30 p.m.
There are 2 versions with regard to whether DSAI was informed of the ground of arrest when he was intercepted on his way home to Segambut by the police. DSAI denies that Nair was informed of the ground of arrest following his having overheard the conversation between Nair and Taufik and neither was he informed of his arrest by Taufik who accompanied him in the back of the police car to the IPK KL.
The law on the subject is clear. Article 5(3) of the Federal Constitution in Part II under the heading, ‘Fundamental Liberties’ states:-
‘Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.’
Section 28A(1) of the Criminal Procedure Court under the heading ‘Rights of Person Arrested’ (in force at the time of DSAI’s arrest), states:-
‘A person arrested without a warrant shall be informed as soon as may be of his ground of arrest by the police officer making the arrest.’
It is submitted the evidence of DSAI and Nair should be accepted, namely that no ground of arrest were given by Taufik at the time DSAI was waylaid by the police.
In law, a police officer arresting a person without a warrant both under Article 5(3) and Section 28A(1) is required to furnish the person arrested the grounds of his arrest.
In Nik Adli bin Nik Abdul Azin v Ketua Polis Negara [2001] 4 MLJ 598, it was held:-
‘Notwithstanding that, the liberty of a detainee cannot be taken lightly if the deprivation of personal liberty is not carried out ‘in accordance with law’ (art 5(1) of the Constitution). It is thus trite that as a person shall be informed as soon as may be the grounds of his arrest (followed simultaneously by the right of representation), it must mean that the grounds must have already been in existence when he was arrested. What may be delayed, perhaps due to some extreme exigencies of the moment as stated above, is limited only to the informing. But this remark should not be construed as a carte blanche by the arresting officer to delay in fulfilling his duty, of informing the detainee of the grounds, bearing in mind that an unexplained delay could render the detention order invalid’.
It is submitted, in any event, there is no evidence of any exigency adduced by Taufik to delay informing DSAI of the grounds of arrest at the time when he was stopped by the police or on the way back to the IPK KL. Surely, Taufik would have known the grounds upon which he intended to arrest DSAI before he led the police contingent to waylay him.
A weak attempt is made by Taufik to justify DSAI’s arrest at the IPK KL by the production of IDTWT-3 which, it is submitted, is in any event, inadmissible.
The learned DPP attempted to justify the production of a Photostat copy of the said warrant by relying on section 159 of the Evidence Act to refresh Taufik’s memory. However, the provision of Section 159(3) clearly prohibits this, which states:-
‘Whenever the witness may refresh his memory by reference to any document, he may with the permission of the court, refer to a copy of that document.
Provided that the court is satisfied that there is sufficient reason for the non-production of the original.’
Clearly, the so-called Photostat copy of the warrant of arrest is inadmissible.
In Lee Kok Nam v PP [1999] 5 CLJ 283, the court held as follows:-
[1] A Photostat, being a copy made from the original by a mechanical process within the meaning of sec 63(b) of the Evidence Act 1950 is undoubtedly secondary evidence, and will be available as evidence only under the combined provisions of S 65 and 63(b) of the same act. It will not be available if an explanation is not given as to why the original is not produced. The explanation must of course satisfy one of the conditions of Sec. 65.
[2] in the instant case, the Photostats (except for P4), without the evidence satisfying any one of the conditions precedent for its admission, were undoubtedly inadmissible evidence.
Lee Kok Nam went on appeal to the Supreme Court which upheld the above propositions by Jeffrey Tan J but set aside his Lordship’s order for a retrial. However, no written judgment was handed down by the Supreme Court.
In our case, the condition precedent to the admissibility of IDTWT-3 has not been fulfilled. On this ground, the application to refresh his memories on the basis of IDTWT-3 ought to have been disallowed by this court. Without this document to refresh memory, Taufik’s evidence in relation to the contents of IDTWT-3 must, of necessity, fall.
On a further ground, IDTWT-3 is inadmissible as it has only been marked by court for identification (ID). As far back as 24.1.77, Abdoolcader J, (as he then was) had occasion in PP v Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180 in his regard to hold:-
‘It is necessary to refer to certain exhibits which have been pit in the course of these proceedings for identification but have not in fact have been proved as they should have been and are accordingly not exhibits in the strict sense and cannot therefore form part of the record in this case, namely D41 and D43 which were both put in for identification only and which are the audited accounts and annual report of the Bank for the years 1973-74 and 1972 respectively. As these two exhibits have not been proved and properly admitted as such, they must in the ultimate analysis be discounted and I shall accordingly disregard references to them and also all oral testimony as well adduced thereto.’
Lately, in Nobies Weah Ezike v PP [2010] 1 CLJ 578, the Court of Appeal had occasion to hold at page 586 as follows:-
‘We accept that the learned trial judge fell into error when he took into consideration the guest registration card (ID39), the payment receipt (ID52), the fax message to Thailand (ID51), the customs declaration (ID6E), and the UPS pack (ID6A).’
Further, Taufek had testified that he had returned the original of the warrant of arrest to the IO. However, Jude was not called as a witness in TWT. This non-calling of the witness and the law on the point will be taken up later in this submission.
In the cross-examination of DSAI, the learned DPP put to him that the ground of arrest appeared in the Sec 112 statement recorded by Supt Jude. DSAI’s reply was that the charge appeared in the Sec 112 statement but not the ground of arrest which he repeatedly asked for. Here again, Supt. Jude was not called to rebut these assertions. Then again, the copy of the Sec 223 statement (DTWT-2), as pointed out by DSAI, served on his lawyers, materially differed from the one {DTWT-1) produced by the prosecution.
Clearly, DSAI’s arrest was unlawful, apart from being clearly improper, having regard to the number of the police personnel and vehicles deployed to effect his arrest on his way back home on 16.7.08 to say the least of the armed balaclava-clad police officers. It must be pointed out at this stage, that the prior appointment between Nair and Supt. Jude was at 2 p.m. there was not conceivable reason for DSAI to have been arrested in the unholy haste and high-handed police action at about 12.30 pm while he was on his way back home for prayers. In this regard, it is significant to note that Taufik admitted in examination –in-chief that he received instructions from CID Director, Dato Seri Bakri Zinin, to arrest DSAI who was deviating instead of heading to the IPK KL from Putrajaya. Here again, Dato Seri Bakri Zinin was not called by the prosecution in the TWT to explain why he gave such instructions to Taufik.
Having regard to the evidence given in TWT by DSAI, his arrest, apart from being unlawful and unconstitutional, it was also highly unwarranted, particularly so when this arrest took place on a public highway. The actions of the police were highly insensitive.
[2] The items obtained for DNA profiling by the police officer were by improper and unfair means i.e. deception/trickery.
DSAI was called to the IPK KL on 16.7.2008 for a s. 112 Criminal Procedure Court statement to be recorded from him. However, despite the recording of the statement being completed at about 5.30 pm and despite various requests by R. Sivarasa, who was called as a witness in the TWT, that DSAI be allowed to go home, he was not allowed to do so. Instead, he was taken to Hospital Kuala Lumpur (HKL) where he was examined by consultant physician, Datuk Dr. Jayainderan Sinnathurai, and consultant surgeon Dr. Ee. Boon Leong. He was requested by these doctors for his blood sample for DNA purpose but he refused on the advice of his lawyers, Sulaiman Abdullah, Nair and Sivarasa, claiming that during the investigations into the first sodomy case on 1998 his blood sample had been stolen from the hospital.
DSAI was not illegally obliged to provide his blood sample for DNA purposes. There is authority for this in Peter James Binstead v Juvencia Autor Partosa [2000] 2 MLJ 569, in which KC Vohrah J (as he then was) held:-
‘There is no general power provided by legislation or through common law for any court in Malaysia to order a person to undergo a test to ascertain paternity. In the case of a DNA test, it is common knowledge that either a blood, tissue or bone specimen will be taken from the person for testing. If a person cannot be subject to hurt within the meaning of Sec 319 of Penal Code against his wall by submitting himself to such testing. Whoever carried out such testing without the person’s consent would violate s 323 of the Penal Code for voluntarily causing hurt to the person and a court cannot, in the absence of a specific legislative provision, order such person to submit himself to an unlawful act to be committed on his person.’
It is significant to note DSAI was traumatically humiliated during the examination having regard to his evidence as follows:-
‘The doctors asked me to take off my clothes except for my singlet and underwear. They measured my private parts and pubic hair. They also checked my penis and anus. it was degrading.’
Instead of being released after the medical examination, DSAI was brought back to IPK KL and was supplied by DSP Yahya with a Good Morning towel, toothbrush, toothpaste, and a mineral water bottle from which DNA samples for profiling are being sought to be introduced through former Crime Scene Investigation (CSI) chief Amidon Anan. In his evidence, DSAI said that he was placed in the IPK KL lock up from 11.30 p.m, 16.7.08 until 8 a.m the following day before he was released at noon after a further s 112 statement was recorded from him.
It is significant to note when the items were recovered from the lock-up, DSAI was not present. He was the sole occupant of the lock-up overnight. Section 64 of the Criminal Procedure Court states:-
’64. List of all things seized to be made and signed.
A list of all things seized in the course of a search made under this Chapter and of the places in which they are respectively found shall be prepared by the officer or other person making the search and signed by him.’
’65. Occupant to be present at search.
The occupant of the place searched, or some person on his behalf, shall in every instance be permitted to attend during the search, and a copy of the list prepared and signed under this section shall be delivered to that occupant or person at his request.
It is submitted, clearly, the items procured for DNA profiling by the police were obtained by improper and unfair means i.e. deception/trickery.
It is submitted the prosecution’s failure to call IO Supt Jude Pereira, DSP Yahya and CID Chief Dato’ Seri Bakri Zinin in rebuttal to the sworn evidence of DSAI, S.N. Nair, and Sivarasa in the TWT trial is fatal. These personalities played a significant part in the arrest, detention, custody, and procurement of the DNA samples from DSAI. Further, police personnel in charge of the lock-up, whose evidence would have been significant, were also not called to testify in the TWT.
On the authority of Tan Too Kia v PP [1980] 2 MLJ 187 their failure to be called as witnesses in rebuttal leaves the evidence led by the defence in the TWT is unrebutted.
In PP v Tan Kok An [1996] 1 MLJ 89, Abdul Malek J (as he then was) held:-
‘It was not wrong to draw an adverse inference against the prosecution, when being in position to produce better evidence, deliberately abstained from doing so.’
Conclusion
It is submitted the court should be guided by what was held by the 5-man bench of the Federal Court in Goi Ching Ang as follows:-
‘There is a vested discretion in a trial judge to exclude evidence which is prejudicial to an accused even though the said evidence may be technically admissible. evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by conduct of which the police ought not to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission.’
Under these circumstances, we submit that the exhibits that are sought to be marked as exhibit should be completely disregarded and removed from the court as evidence under the inherent power of the court to disallow such evidence although such evidence can be made technically admissible.
Much obliged.
MY: Dengan izin, YA. There are 2 issues before the court. The first issue is whether the evidence pertaining from the collection of the exhibits from the lock up cell in IPK KL by DSAI on 16th and 17th of July is unfairly, illegally and improperly obtained. If the judge says yes, then the question is whether it triggers the court to exclude it.
YA, with regards to the first issue, the defence premise their application to exclude on the ground that DSAI was illegally arrested, and therefore the detention was unlawful, and therefore whatever evidence that was obtained consequence to that would be improper and should not be admitted. Now, the question that the court has to address is whether or not the arrest was unlawful.
Before you go to that, perhaps it is good to remind ourselves that this application is made by the defence to exclude evidence. In such application the defence has to prove it basis on the balance of probabilities. The burden is on them to show that there is basis of balance of probability. The case in point is Hanafi bin Mat Hassan [2006] 4MLJ, page 134, tab 12 of 3rd volume, at page 170, para 74:-
‘Be that as it may, the party that is seeking to have evidence excluded in the exercise of the discretion of the court has the onus of showing, on the balance of probabilities, that the discretion should be exercised in its favor. It’s follows that the party seeking the exclusion of the evidence must satisfy the court that the circumstances are such that the court should exercise its discretion in favor of the party making the application. Neither PW43 nor PW47 were cross-examined by the defence to elicit evidence of circumstances that may weigh in favor of the accused in the exercise of the discretion. Indeed learned counsel conceded that no evidence was adduced by the accused on this issue. However, it was contended that the fact that the accused was handcuffed at the time the blood samples were taken the handcuffs were removed. In any event the mere fact of the accused being handcuffed does not on its own disclosed any improper conduct on the part of the police to enable a consideration of the exercise of the discretion in favor of the accused. The objection raised therefore has no merit whatsoever.’
And as far as the evidence with regard to the basis, YA is elementary to look at both evidence adduce during a trial within a trial and the evidence in the substantive trial. This could be found in the case of Farid Mohd Sukis [2002] 3 MLJ, in our bundle volume 1, tab 3. If I may read, page 412, para between D to F:-
‘At the resumed hearing, the parties would generally agreeable to the applicable law. The Australian courts have held that the party seeking to have evidence ruled inadmissible in the exercise of the discretion of the court has the onus of showing, on the balance of probability, that the discretion should be exercised in that way.
The appropriate way of dealing with an application of this nature is by way of a trial within a trial. Street CJ expressed the view that a judge, in considering an application of this nature, ‘…must necessarily act upon such evidence as is placed before him either in the substantive trial or on the voir dire, or both’.
In the course of submission, I will refer to both. What is [] evidence? My learned friend had adverted to it just now, when they laid the ground for exclusion. What is obvious is this. With regards to the warrant of arrest, DSAI did not categorically denied the existence of such warrant of arrest. All he said he remembered being served with certain documents, he remembered signing it, but he couldn’t recall what document is that.
If we remembered in the light of evidence of Supt. Taufek, there was no other document served in IPK to DSAI except the warrant of arrest. In the same time, DSAI did not deny that before the recording of his statement [TWT 1] that he was explained and told about this at page 2, ‘sebelum Dato’ Seri menandatangani borang rakaman percakapan, Dato’ Seri meminta penjelasan mengenai tuduhan dan ianya telah dijelaskan oleh DSP Jude bahawa terdapat satu laporan polis iaitu Travers Rpt 4350/08 oleh seorang lelaki melayu nama Mohd Saiful Bukhari Azlan dan mendakwa Dato’ Seri telah meliwat beliau pada 26.6.2008 di Unit 1151 Kondominium Desa Damansara Jalan Setiakasih Bukit Damansara Kuala Lumpur’.
This he did not deny. He said yes. This is the request evidence. Now when it come to prosecution, the prosecution said through Supt. Taufek, that DSAI was in fact inform of the ground at the time of the arrest that he was being arrested for a seizable offence, under Sec 377B, and before the recording of the statement, Taufek had served on him, and read it to him which contained the charge and he got DSAI to sign at the back of the warrant, which he subsequently handed to the IO but not before he made a copy of the warrant, which was signed by the accused.
My learned friend with regard to the photocopy of the warrant did object to it. DSAI did not remember, so pursuant to Sec 159 of Evidence Act, I showed him, of course there was an objection. DSAI couldn’t remember, so I wasn’t able to show him the signature appearing on the photocopy.
But what remains is this; Supt Taufek did make a copy. My Lord, I say, this should be made admissible. It shouldn’t be marked as ID, because this is real evidence. Forget about real evidence first, if I may refer to Sec 60 of EA, the best evidence rule, that the evidence must be direct, must be oral by the person who perceived all those whatever he testifying with his senses, and Sec 60(3) says, ‘if oral evidence refers to the existence of any material including a document, the court may if it thinks fit, require the production of that material or the document for inspection’.
Bearing in mind, DSAI was not in the position to deny that there was in existence of such warrant. Now Taufek says there was warrant of arrest, and I make a copy of it. So, this is real evidence. So it corroborates his story that not only about the warrant of arrest, but also he made a copy for it. Because of that the court may require the production of that material thing for inspection, and this is tendered, but if the lordship refuses that the fact still remains that he made a copy of that warrant. This is direct evidence. Therefore, the photocopy of that warrant should be admitted as P3.
It is our submission My Lord that, when the onus is on the defence, and the defence is not being able to support the allegation they made. In fact, the confession by DSAI that he was shown certain documents and signed it neutralizes his assertion than he was never informed of the ground. This confession with regard to this statement where he was informed by Jude, destroy whatever basis that they may have with regards to this application. And the arresting officer’s testimony, were raised on whatever left on that allegation. My Lord at this juncture may I just make a comment on the complaint of DSAI with regard to original statement recorded from him and the one served on him.
DSAI confirmed that P TWT 1 was the statement recorded from him. He took his time, he wanted to be careful, and he said “yes, this is my statement”. Supposing it is different from what served on him, but it is still remain that this is not a fabricated document. This document bears the signature of the recording officer and his signature. What is the different between this statement and his statement?
He said that 1) there are minor differences, that is a bare statement. When a person said that there are minor differences, without even saying about the particulars, I don’t think that the court should give any weight on it, to be fair on the prosecution. If he showed us, so that we can say where the difference is and you can explain your way. But when he chose to say that there are minor differences but I don’t want to say it, and in fact, there is none.
2) That he has no word sulit appearing at the top. This is the official document My Lord. Meaning, anybody who takes it out unauthorized will be liable to be prosecuted under the OSA. DSAI doesn’t have the word ‘sulit’, because he is entitled to the statement. So what is the difference? He said to the court, that there were in fact 2 sets; the first set, where at the second page, we have this thing recorded singed by DSAI and Jude where said sebelum memulakan rakaman percakapan ke atas DSAI “beliau juga ditanya samaada boleh atau tidak rakaman video dibuat sepanjang rakaman percakapan ini dijalankan”. This, we asked the police to do so that people won’t make any allegation. “Atas nasihat peguam, surprisingly, beliau telah meminta rakaman percakapan beliau dicatat sepenuhnya dan disahkan, manakala rakaman video tidak diperlukan.” I thought they want to be transparent, and with this video recording they supposedly should be happy with the request. Only these two pages were not supplied to him. What was supplied to him was the actual statement that was recorded. He said that his copy, the first page under the signature of Pegawai Perakam, there is no name. Jude’s name was not there. Well, what I can say is it is also similar with ours. It has no name there.
The name appears only on the first page where this thing about] video recording was stated there, Jude Pereira. But in both documents, DSAI’s signature appears. So we don’t have different documents, but what he had was his statement minus the first two pages. So obviously, whatever he said about the document being different, materially or otherwise is not true.
Now My Lord, I said with the view to the confession by DSAI. That is sufficient to have this application thrown out. Because you can’t possibly raise the standard on the balance of probability when your evidence is so uncertain and he make concession. Now, can we look at the arresting officer’s evidence? Is there anything that he said that is highly improbable and incredible? He was so certain with what he said, ‘I informed, I served, I asked him to sign’. Supt. Taufek is not an interested witness, he is not the IO, neither was he one of the witness in the main trial. The information asked from him by Nair and DSAI is not official secret information. He said he has no reason not to inform on the counsel and DSAI on the ground. And then we have to bear in mind the person who requesting on the information are no lesser mortal. DSAI and his lawyer were not just any ordinary man on the streets. In fact, DSAI said that the officer was polite and nice at that day and treated him with respect. So, YA had them not informed about it, they surely will make noise throughout the end and at the balai. We will hear about it in the newspaper on the next day. But it wasn’t, because it was never happened that way.
So, the law is very clear, when a police witness, not another witness says something that is not highly incredible, not highly improbable, then the court must accept. I mean, that’s the law. If I may refer your Lordship to volume 3 tab 5, PP v Mohamed Ali 1962 MLJ 257:-
‘When a police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted.’
So when they talk about contradiction here Yang Arif is not between what he said and what DSAI’s said. Which made his testimony less than credible, but that is not the case because he is the only witness. Then we have the case of PP v Teh Cheng Poh, tab 6 held number 1:-
‘the police officer in charge of the police patrol car (PW2) was not an interested witness but a public officer performing his duties. In the absence of contradiction of anything improbable in his evidence, he should be accepted as a witness of truth and as a reliable witness’.
What I said just now, Taufek’s role is just to perform the warrant of arrest. He has no interest in this case whatsoever. He was merely performing his duty that was tasked to him. At this point of time, this Honourable Court has no reason to believe not to accept him. There’s nothing he said as incredible and highly improbable. ‘
Now, I would also like to refer to few cases involving habeas corpus application. The principle is the same. First case is Re Pe Long, tab 2, volume 3. The application was grounded upon the fact that the accused was not informed on the ground of arrest. What happen was, the police swore that he told him and the court accept, that’s all.
Also in the case of Aminah v Supt of Prison, Pengkalan Chepa, Tab 1, if I may read the fact there:-
‘One Haron was detained under the Restricted Residence Enactment. An application by originating motion was made by his wife for issue if a writ of habeas corpus challenging the detention on the ground that there had been non-compliance with Article 5(3) of the Federal Constitution in that the detainee had not been informed “as soon as may be of the grounds of his arrest”.
Held number 1:-
‘as in supporting affidavit the applicant had deposed that when she saw the detainee a few hours after his arrest he was fully informed by the police and knew the reasons for his arrest, this satisfied the requirement of Article 5(3) of the constitution which applies to arrest made under any law including Restricted Residence Enactment in this case.’
YA, on the next page, page 20; the second last para from the below:-
‘Coming to the substantive issues of law raised by counsel for the applicant, I shall first consider the contention that there had been non compliance with Article 5(3) of the Constitution in that the detainee had not been informed as soon as may be of the grounds of his arrest.
What was communicated, in the warrant of arrest, is the charge that is being reproduced. At that time, just before recording, again he said something similar to the charge, that he has committed one offence on one Saiful between this time and this time at this particular place. So, all was there. What the court is saying the information was communicated to this person not at the time of the arrest, but a few hours later, in the balai that he was informed about it.
If I may read the next page, the third below:-
As was held in the Indian case of Tarapade v State of West Bengal [1959] SCR 212, the words “as soon as may be” appearing in article 22(1) of the Indiaan Constitution (and article 5(3) of ours) means as nearly as is reasonable in the circumstances of the particular case. The applicant cannot be heard to deny what she had deposed to in her affidavit, and though what A.S.P Gill told the detainee may not be sufficient grounds, what he had been told by some other member of the police force a few hours later would satisfy the requirements of article 5(3).’
And if I may refer to my learned friend’s submission just now, page 7 I believe, of the submission. I mean, starting from page 6 in Nik Adli bin Nik Abdul Aziz, somewhere in the middle there.
‘It is thus trite that as a person shall be informed as soon as may be the grounds of his arrest (followed simultaneously by the right of representation), it must mean that the grounds must have already been in existence when he was arrested. What may be delayed, perhaps due to some extreme exigencies of the moment as stated above, is limited only to the informing.
So we are saying now there were no delays, he was informed at the time of the arrest. But in case what was communicated to him was insufficient then 1 hour later, not 3 hours, upon reaching IPK, he was informed again this time having the warrant of arrest read to him which its contain the charge and then DSP Jude telling him again. So DSAI is complaining, I’ve been asking for the report. A report is not a ground. Under Article 53 what was important is the ground on where it was communicated.
So My Lord, it would appear then the prosecution has shown to this honorable court that everything had been complied with. He was arrested, he was informed on the ground of the arrest, and subsequently he was detained. Now, the question is whether at that particular time, there was in existence ground to arrest him. In other word, whether there was reasonable suspicion to arrest him.
We have to look at both evidences in the trial within a trial. On 28 June, a report was lodged by Saiful with regard to the offence. His medical examination also done, around the same time of 29th, his statement is being recorded. On 5th July, Jude and Fauziah viewed the CCTV in trace of certain people, it was in evidence. After that, chemist report of Dr. Seah was received. Normally, after a police report for an offence of this nature had been lodged, DSAI would be in the lock up, because that is not the reasonable believe or reasonable suspicion. But here, we have the medical examination, the statement, the report, the chemist report, the CCTV and the medical report.
Now, it was in evidence that Nair that they did recognize 111 CPC notice requiring DSAI to be present. But what he said is just the communication. Be that as it may, has the police at that point of time have the ground of reasonable suspicion to arrest DSAI, he had. On the 15th of July, warrant of arrest was applied and issued against DSAI with regards to this offence. So, there was no malafide YA. DSAI was not arrested [] whatever Dato Bakri may have instructed. What we have is that there was a possibility that he was not [] because through counsels, they said they are not going to recognized [] for whatever reason. Warrant of arrest executed that day was not an afterthought.
Now, the question is, in fact my learned friend asked, whether there are one or 2 arrest. Taufek said that there was only one arrest. He knew that there is warrant of arrest, but he only given when he took DSAI to IPK. He was told that if DSAI did not go directly to Putrajaya. Jude had applied and had applied the warrant of arrest at 15th July, the moment he knew that DSAI was in IPK, he had the warrant executed. He had every reason under the law to [] which the Supt Taufek did. YA, I have only 2 copies. Most of the cases will be referring to, it involved Encik Karpal.
This is the case of Ooi Ah Pua, Federal Court’s decision, whether or not the applicant should be released because he was denied the right to counsel of which his application was rejected. But I would invite you to page 201 of this report para within G to I, left hand column [read].
Using this, I would say this. There was the allegation of sodomy, a seizable offence. And there was reasonable suspicion on the part of the police. And Supt Taufek not only has the power to arrest him without warrant, he was also under duty to do so. I also add, Jude Pereirra also under duty to do so. Where is the unlawfulness of the arrest?
Now, whether or not the detention is lawful, YA at the exercise of investigation power under the Criminal Procedure Court, the police can recover statement, recover exhibits and all that, and for that purpose, they could detain. Whether a witness assure their presence or otherwise, it doesn’t retract the fact that the police had the power to detain, at least for 24 hours before further detention authorized by the magistrate. This was what the police did. Anwar was detained, but not before his statement was recorded. Then he was taken to hospital for medical examination so that the police can have some specimens for the purpose of investigation which he refused. After that, he was brought back to the police station, IPK, and there was way pass 11. Lawyers had argued do not record statement after 11, in the lock up rules. And further statement was taken between 8.45 to 9 something, and this further statement recorded substantially as proceeded by DSAI [] the visit to the hospital.
Now, my learned friend talks about degrading treatment. Medical examination whatever you call it, degrading or what, is not something that apply to DSAI for this purpose. It is not as if they have employed different method of procedure when it comes to DSAI. The hospital authority does not discriminate. The hospital authority is not part of the prosecution or investigation team. They are natural and impartial. So, for DSAI examination, they are doing it because the investigation authority needs that. It is not as if DSAI treated differently. Otherwise every person; those ladies who went to the medical check up, when they were expecting, they were subject to all kind of examination, and everybody start to scream it is degrading, but this is the reality of the situation. Certain thing has to be done that way. It is not at the instance, it is not the prosecution told the doctor on this is how you do it. This is number 1.
Number 2: it is not as if those exhibit that police recovered, is recovered as the result of degrading examination. Nothing is given by the medical examination. So this is irrelevant for my learned friend to bring up before this court.
Now, it is our submission and stand then, 1) the applicant had failed to prove anything on the balance to prove that the arrest is illegal. The prosecution evidence was to confirm that there was nothing there, that the evidence was legal. If your Lordship is with me, this is the end of this application, you Lordship then your Lordship will allow us, as a matter of admissibility, called Aidora and Amidon to tender the respective exhibits. But if in the event if your Lordship is not with me, then we go to the law on exclusion of evidence.
Now, the other day and today, again I am reminding myself, this court and my learned friend, retraction of the evidence in this trial is governed by Evidence Act. The most relevant section is sec 5, sec 136. Of course my learned friend will not be happy I read sec 136, but I have to read it. It merely says this, the court will only admit evidence if it is relevant. So the test of admissibility is the test of relevancy. Now, we go to the common law, the case of Kuruma v The Queen, decision from Privy Council from Jamaica can be found in our first volume, tab 5. In the Kuruma, it was held that the test of admissibility is relevancy. After that, we have R v Sang. My Lord may I seek a short adjournment because suddenly the thing (T-Pad) hang. Less than 10 minutes, probably.
YA: Ok, kita mula balik 10. 45
[10.27]: Stand down
[10.27 a.m.] Stand down.
[10.50 a.m.]
MY: Before I continue with my submission there is something that I have omitted. My learned friend’s submission talks about the absence of S.64 i.e. the search list when the exhibits were collected from the lock up. The fact that those exhibits was collected from the lock up cell where Dato’ Seri Anwar Ibrahim was detained was never disputed. It was not challenged. The bottle, the towel, the toothbrush was never disputed.
And it is my submission that S.64 talks about premise occupied, not a place where you were detained. An occupier is a person, if I’m not mistaken when I read “Word or Phrases: Judicially Defined”, it’s a book by MLJ is a person you said when you knock the door who said “Come in”. Or under other laws, the person take care of the management of the place. Obviously DSAI doesn’t fit into that.
But whatever it is, the case of San Soo Ha deals with the absence of the list. If I can straight away go to page 4 of the report, 1st para, starting from the word “the most that can be said about the failure to comply with the provision relating to search list is that it may cast doubt upon the bona fide of the parties conducting the search and accordingly afford ground for scrutiny. But if after close scrutiny the court arrived at the conclusion that [] articles were recovered from the possession of the accused person, it is obviously no defence to say that the evidence was obtained in an irregular manner. There is nothing in law which made such evidence inadmissible”. An evidence of recovery. Here the evidence on recovery was never disputed therefore the submission by my learned friend actually holds no [].
My lord, I stopped at Kuruma v The Queen. It is an African case, Privy Council decision which held that the test of admissibility is relevancy. The court held that if the evidence is admissible, the court is not concerned with how it was obtained. In that particular case, ammunition was found on the person searched by police personnel below the authorized rank, below the rank of Assistant Inspector so it makes the whole search illegal. In refusing to exclude the evidence and confirmed by the Supreme Council this is what the court says, once admissible, the court is not concerned on how it was obtained.
Now we go to the celebrated case of Regina v Sang [1980] AC 402, the House of Lords decision. Here is the case of agent provocateur. In this case, the House of Lords held,
“that a judge in a criminal trial always had discretion to refuse to admit evidence if, in his opinion, its prejudicial effect outweighed its probative value or when the admissibility of evidence was obtained unfairly from the accused.”
And it says,
“save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, the judge had no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means.”
This is an important case that all the cases in the Commonwealth will follow and apply. May I take your Lordship to certain dicta of the judges in R v Sang.
First, it says the court has discretion to exclude if though admissible, the prejudicial effect outweigh its probative value. May I invite your Lordship to dicta by Lord Diplock at page 433 of the report, between para D&E,
“I turn now to the wider question that has been certified”
What is the question certified? The question certified could be found at page 431,
“Does a trial judge have a discretion to refuse to allow evidence-being evidence other than evidence of admission-to be given in any circumstances in which such evidence is relevant and of more than minimal probative value”.
That is the question. Can you still, other than confession, other than admission where the evidence is relevant but has more than minimal probative value? I continue reading page 433,
“It does not purport to be concerned with self incriminatory admissions made by the accused himself after commission of the crime though in dealing with the question I will find it necessary to say something about these. What the question is concerned with is the discretion of the trial judge to exclude all other kinds of evidence that are of more than minimal probative value.
Recognition that there may be circumstances in which in a jury trial the judge has a discretion to prevent particular kinds of evidence that is admissible from being adduced before the jury, has grown up piecemeal.”
It goes on until the next reference was made to Lord Hodson in R v Selvey [1970] AC 304,
“A case in which this House accepted that in such cases the trial judge had a discretion to prevent such cross-examination, notwithstanding that it was strictly admissible under the statute, if he was of opinion that its prejudicial effect upon the jury was likely to outweigh its probative value.”
Then it talks about the discretion to exclude similar facts evidence. Again, they are talking about the probable effect of the case. At paragraph C at page 434 the judge said,
“So I would hold that there has now developed a general rule of practice whereby in a trial by jury the judge has a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influenced on the minds of the jury, which would be out of proportion to its true evidential value.”
And then at page 435,
“In no other case to which your Lordships’ attention has been drawn has either the Court of Criminal Appeal or the Court of Appeal allowed an appeal upon the ground that either magistrates in summary proceedings or the judge in a trial upon indictment ought to have exercised a discretion to exclude admissible evidence upon the ground that it had been obtained unfairly or by trickery or in some other way that is morally reprehensible; though they cover a wide gamut of apparent improprieties from illegal searches.”
Then we have at page 436,
“That statement was not, in my view, ever intended to acknowledge the existence of any wider discretion than to exclude (1) admissible evidence which would probably have a prejudicial influence upon the minds of the jury that would be out of proportion to its true evidential value; and (2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant, after the offence had been committed”.
It is something like blood specimens and all that, my Lord.
Lord Viscount Dilhorne at page 441 has got to say with regard to the discretion,
“In Kuruma v. The Queen [1955] AC 197 evidence was not held to be inadmissible because it was illegally obtained. evidence so obtained must surely be regarded as unfairly obtained. Evidence may be obtained unfairly though not illegally but it is not the manner in which it has been obtained but its use at the trial if accompanied by prejudicial effects outweighing its probative value and so rendering the trial unfair to the accused which will justify the exercise of judicial discretion to exclude it.”
We have Lord Salmon at page 444 paragraph H to page 445 paragraph C, Lord Fraser at page 449 paragraph E-F, and Lord Scarman at page 453 paragraph C and at page 452.
If I may read Lord Scarman at page 452 paragrah D,
“In my judgment, certain broad conclusions emerge from a study of the case law. They are:
(1) that there is one general discretion, not several specific or limited discretions;
(2) that the discretion now extends further than was contemplated by Lord Halsbury and Lord Moulton in Chrities’s case, or even by Lord Simon in Harris v Director of Public Prosecutions [1952] AC 694: it is now the law that “a judge has a discretion to exclude legally admissible evidence if justice so requires” (Lord Reid in Myers v. Director of Public Prosecutions [1965] AC 1001, 1024);
(3) that the formula of prejudicial effect outweighing probative value, which has been developed in the “similar fact” cases, is not a complete statement of the range or the principle of the discretion;
(4) that the discretion is, however, limited to what my noble and learned friend, Viscount Dilhorne, calls the “unfair use” of evidence at trial: it does not confer any judicial power of veto upon the right of the prosecution to prosecute or to present in support of the prosecution’s case admissible evidence, however obtained.
These broad conclusions leave unresolved the critical question as to the limits of the discretion and the principle upon which it is founded. It may be, as Lord MacDermott C.J. said in Reg. v Murphy [1965] N.I 138,149, that unfairness, which will be found to be its modern justification, cannot be closely defined. One must, however, emerge from the last refuge of legal thought-that each case depends on its facts-and attempt some analysis of principle.”
At page 453 paragraph C,
“Notwithstanding its development case by case, I have no doubt that the discretion is now a general one in the sense that it is to be exercised whenever a judge considers it necessary in order to ensure the accused a fair trial. Reg. v. Selvey [1970] AC can be seen to be of critical importance. Viscount Dilhorne, though he was directing his attention to the specific situation in that case (cross-examination of situations, e.g. Rex v. Christie [1914] AC 545, Noor Mohamed v. The King [1949] AC 182, Harris v. Director of Public Prosecutions [1952] AC 694 and Kuruma v. The Queen [1955] AC 197, and concluded by saying, at pp. 341-342:
“It [i.e. its exercise] must depend on the circuses to which your mstances of each case and the overriding duty of the judge to ensure that a trial is fair” (my emphasis).” ”
At page 435, Lord Diplock has said this,
“Nevertheless it has been recognized that there is an unbroken series of dicta in judgments of appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been “obtained” unfairly or by trickery or oppressively, although except in Reg. v Payne [1963] 1 WLR 637, there never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion.”
So what they are saying is that up to 1980 complaints of evidence being obtained through trickery, unfair means and oppressive have been raised but except for Reg. v. Payne, all the courts deem it’s fit not to exclude because they found them not to be so unfair, so trickery or so oppressive to justify the exclusion.
In R v Sang, the court says that they are more concerned with how the evidence obtained by those means, whether illegal or legal is being used. This can be found in the judgment of Lord Diplock at page 436 paragraph F-H.
“I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is not part of a judge’s function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it is obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial.
Lord Viscount Dilhorne said the same thing at page 439 paragraph E-F, page 441 paragraph F-G, and page 445, para G. Court in R v Sang also says, to exclude evidence just because they were obtained by those means improperly and no more is wrong.
If I may now refer to page 441, the judgment of Viscout Dilhornne at paragraph C-E,
“In Jeffery v. Black [1978] QB 490 Lord Widgery C.J. expressed the same view, saying that it was open to justices to apply their discretion and to decline to allow evidence to be given if it has been obtained by police officers by trickery, oppressive conduct, unfairly or as a result of behavior which was morally reprehensible. With great respect I do not think that these observations were correct. I have not been able to find any authority for the general principle enunciated by Lord Parker or for those statements by him or by Lord Widgery. If there is any authority for it, it conflicts with Lord Goddard’s statement in Kuruma v The Queen [1955] AC 197 that the court is not concerned how evidence is obtained. If obtained in one of the ways referred to, its credibility may be impaired. That will be a matter for the jury to consider. It cannot be said that in addition to the probative value of evidence so obtained, it has a prejudicial effect such as to render the trial unfair to the accused if it is admitted.”
The House of Lords in R v Sang says you cannot exclude just because it was improperly obtained. The application of this discretion only confined to evidence exclusively from the accused.
Lord Scarman at page 456 paragraph F,
“The question remains whether evidence obtained from an accused by deception, or a trick, may be excluded at the discretion of the trial judge. Lord Goddard C.J. thought it could be : Kuruma v The Queen [1955] AC 197,204, Lord Parker C.J. and Lord Widgery C.J. thought so too: see Callis v. Gunn [1964] 1 Q.B. 495,502 and Jeffery v Black [1978] Q.B. 490. The dicta of three successive Lord Chief Justices are not to be lightly rejected. It is unnecessary for the purpose of this appeal, to express a conclusion upon them. But, always provided that these dicta are treated as relating exclusively to the obtaining of evidence from the accused.”
Be it confession, be it admission or any specimens, blood, body fluid or hair samples but confined to the accused. Lord Fraser said the same thing, it refers to admission and confession and all other evidence obtained from the accused himself or from his premises. This could be found at page 449 paragraph E-F and page 450 paragraph A. Lord Diplock says the same thing at page 436 paragraph A-B, it refers to admission, confession and anything from the accused. Then of course they talked about whatever it is, even if it is legally admissible if it would lead to an unfair trial then the court could reject it.
What is a fair trial? If I may refer to Lord Diplock’s dicta at page 436 paragraph H,
“A fair trial according to law involves, in the case of a trial upon indictment, that it should take place before a judge and a jury: that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt upon evidence that is admissible in law; and as a corollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused’s guilt it is no part of his judicial function to exclude it for this reason. If your Lordship so hold you will be reverting to the law as it was laid down by Lord Moulton in Rex v. Christie [1914] AC 545, Lord du Parcq in Noor Mohamed v. The King [1949] AC 182 and Viscount Simon in Harris v. Director of Public Prosecutions [1952] AC 694 before the growth of what I believe to have been a misunderstanding of Lord Goddard’s dictum in Kuruma v. The Queen [1955] AC 197.”
Between paragraph D-E, this is what he said,
“I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations on this case. (1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.”
This discretion only confined to this two kind of evidence, admission, confession and anything that has the effect of confession. Lord Scarman at page 452 paragraph C, page 453 and page 455 paragraph B said the same thing.
From the judgment by the House of Lords what we can conclude is that (1) the judge has a discretion to exclude evidence whether legally or illegally obtained if justices so requires in order to have a fair trial which means the evidence if its prejudicial effect outweighs the probative value, then it should be excluded though strictly admissible; (2) that this discretion is confined to evidence obtained conclusively from the accused either oral evidence or any other evidence or from his house, premises occupied by him and the ct should not exclude evidence just because it was obtained improperly either by trick or by any illegal means unless it is so trickery, it is so oppressive and it is so unfair. And up to 1980 when the judgment was written there is only one case despite all complaints by the accused person, R v Payne where discretion was in fact exercised.
My lord, the principle in Kuruma v The Queen and R v Sang has been applied throughout the Commonwealth including the Malaysia court and Singapore. If I may invite your Lordship to the case of Hanafi b. Mat Hassan v PP [2006] 4 MLJ 134. If I may read, in Hanafi blood samples was taken from the accused while he was handcuffed without his consent therefore it was supposedly to have been involuntarily given. Court of Appeal held that this evidence is admissible. If I may refer to page 136, holding no.6,
“The court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. Therefore the evidence relating to the blood sample taken from the accused was admissible as it was relevant even if it was taken without his consent.”
If I may invite your Lordship to the actual judgment at page 168, paragraph 64,
“It was the stand of the defence that the blood samples taken from the accused for the purpose of conducting the DNA tests were not taken voluntarily. It was argued that eventhough no evidence was adduced by the accused on this issue the evidence relating to the blood sample must be excluded in the exercise of the discretion of the court as the available evidence shows that he was handcuffed at the time thereby rendering the taking of the blod sample involuntarily.”
And next page at paragraph 68 this is what the judge said,
“It is therefore clear that the court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. This rule applies, inter alia, to cases involving illegal searches, evidence obtained by secret listening devices or by undercover police operations. It also applies to evidence obtained by unfair procedures. Thus in R v Apicella (1968) 82 Cr App R 295, the English Court of Appeal upheld a rape conviction based upon the results of tests carried out on a specimen of body fluid obtained from the accused for medical reasons whilst he was on remand. In AG for Quebeck v Begin (1955) SCR 593, it was held that even if a blood sample was obtained from the accused without his consent it is admissible to prove intoxication. It follows that the evidence relating to the blood sample taken from the accused is admissible as it is relevant ebven if it was taken without his consent.”
Then it goes to deal with Kuruma v The Queen and R v Sang at patra 70 quoting R v Sang,
“That is why there is no discretion to exclude evidence discovered as the result of an illegal search, but there is a discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.”
Hanafi applied R v Sang and Kuruma and says “Look, we admit first”.
Then we have the case of Ajmir Singh (1987) 2 MLJ 141 which I undertake to supply to the court. It is a Singapore case where the accused was charged with riding a scooter under the influence of alcohol. Blood sample was taken from him without his consent. After referring to R v Sang at page 144 of the report, paragraph F-J,
“Accordingly I do not find it is necessary to consider whether or not the appellant gives his consent and in that connection whether consent in S.70(3) means consent given expressly as distinguished from consent given impliedly i.e. without compulsion by a failure to object to blood being taken. But even assuming that no consent had been given, the appellant will still have to overcome the hurdle as to whether the evidence amounted to an involuntary confession or admission of a nature that renders the evidence inadmissible. In [] Lord Atkins said that a confession must either admit the terms of the offence or at any rate substantially or the [] which substantively commit the offence. Here had there be any confession or admission it was merely to the fact that the appellant had excessive amount of alcohol in his blood and not to the fact that he was unable to control his scooter was under the influenced of the drink.”
Therefore it is not confession and thus admissible. The same thing with our case. To prove the case we have to have the oral evidence with regard to the act. The DNA that was found on the bottle didn’t do anything, did not amount to confession to be excluded to have the discretion envisaged by R v Sang to be applied. So we []. The prosecution need to show the connection between the DNA from the bottle to the DNA in the sperm cell in the body of Saiful and the oral evidence of Saiful himself. So, it is not a direct confession. It is not something that you can equate it with a confession where by the DNA result obtained from the bottle that directly prove the case. We are saying our case is something like this. It does not fall within the exception envisaged by R v Sang, admission, confession or anything that is obtained from him which amounts to confession.
After the Singapore case and Malaysia case I would invite your Lordship to a few cases which the prosecution thinks very relevant for our purpose.
The first case is Herman King v The Queen [1969] 1 AC 197 . In this case drugs was found on the accused person as a result of illegal search in the sense that the search was not justified by a warrant or is not justified by law. The court held that the evidence is admissible.
If I may refer to what the court says at page 314 paragraph C,
“Although the search was not authorized by the Dangerous Drugs Law or the Constabulary Force Law there was no evidence that the appellant was willfully misled by the police officers or any of them into thinking that there was such authorization.”
So here it said he was not tricked neither he was misled. At page 315 paragraph C-G, [read].
Next, on page 316 paragraph A-B[read].
I now invite your Lordship to page 318 paragraph D-E,
“The appellant relied in his argument on the use of the word “trick” which appears in Kruma v The Queen and Callis v. Gunn and in other cases as well. The court reviewed this and other authorities and commenting on the passage in Lord Parker C.J.’s judgment to which their Lordships have already referred, use this language:
“We do not read this passage as doing more than this thing a variety of classes of oppressive conduct which would justify exclusion. It certainly gives no ground for saying that any evidence obtained by any false representation or trick is to be regarded as oppressive and left out consideration.””
It says it doesn’t. It is not a ground to exclude it if obtained by false misrepresentation.
Then at page 319 paragraph B it said,
“Their Lordships agree with the judgment of the Courts-Martial Appeal Court in holding that unfairness to the accused is not susceptible of close definition:
“It must be judged of in the light of all the material facts and findings and all the surrounding circumstances. The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offence, may all be relevant. That is not to say that the standard of fairness must bear some sort of inverse proportion to the extent to which the public interest may be involved, but difference offences may post different problems for the police and justify different methods.””
That is as far as illegal search is concerned. In our case we are not saying there is anything illegal. The arrest and detention subsequently was lawful. So in obtaining the exhibit there was no trick employed. Dato’ Seri Anwar Ibrahim was not tricked to use the toothbrush, or the towel. He was not tricked to drink the water from the mineral bottle and then he brought it into the cell neither was he induced to do all that nor was he threaten to do it. There is no oppression.
Going by this case my Lord, it appear that even if it is illegal, the court still held that evidence from the illegal search was still admissible.
I next proceed to the next case in my list my Lord, the case of Jeffrey v Black [1978] 1QB 490, this is two cases before R v Sang. In this case drugs, cannabis was found in the accused’s premises where there was no search warrant is showed and neither the accused was presented to the search. It was held by the court that though the search was unlawful and evidence illegally obtained it is still admissible because it is relevant.
I’m coming to the case after R v Sang which is Trump [1980] 70 Cr App R 300. In this particular case, the accused was charged for drunk driving. Specimens were given after a trap of prosecution, he did not consent to the giving of breath specimens. And it was held the evidence with regard to the specimens was admissible.
If I may invite your Lordship to page 302, 4th paragraph, I skipped that because it repeat R v Sang. Next, I refer to page 303 last paragraph,
“There are two particular aspects of the problem before the court. One is whether the court should attempt to discipline the police by ensuring that irregular behavior will, so far as the court can achieve it, be fruitless. This may also be regarded as a means of seeing that an accused is fairly treated. The other aspect is to ensure that the trial itself is fair. It is possible to regard a trial as being a fair trial itself even though the evidence used at the trials was unfairly or improperly obtained. A trial is not a game. Lord Scarman said, at p.304 and p.286 respectively: “…the discretion is, however, limited to what my noble and learned friend, Viscount Dilhorne, calls the ‘unfair use’ of evidence at trial: it does not confer any judicial power or veto upon the right of the prosecution to prosecute or present in support of the prosecution’s case admissible evidence, however obtained.””
At page 305,
“In the present case, however, it would seem that the accused gave his consent as a result of the warning that he might be prosecuted for failure to provide the specimen. In giving this warning the officer was following the procedure applicable to obtaining a specimen under Section 9, not under Section 7. This court does not think that the specimen does obtained is a specimen obtained with the accused’s consent, within the meaning of Section 7. There was therefore no obligation to admit the evidence by virtue of Section 7 of the Road Traffic Act 1972. Consequently, while considerations of the policy disclosed in the Road Traffic Act 1972 may provide some assistance in determining the question before this Court, there is nothing mandatory in the act one way or the other.
This Court thinks that it is consistent with all the speeches in SANG (supra) to hold that evidence provided by the accused himself in the circumstances of the present case should be treated as being subject as to its admissibility to discretion of the judge. It was provided by the accused. It was given as a result of a threat. The police officer was responsible for that, although he was acting in good faith. Given the blood was very close to making an admission that the accused had consumed an excessive amount of alcohol. We think it is a matter for the judge’s discretion rather than of compulsory exclusion, because evidence analogous to admissions is so treated in the speeches in the House of Lords, and in the passages quoted from the speech of Lord Diplock there are specific references to the exercise of judicial discretion.
In the judgment of this Court the judge would have exercised his discretion improperly if he had excluded the evidence.”
So, despite there being a threat of the prosecution in obtaining the specimens still this case my Lord the court held it would be improper to exclude the evidence.
Now, I come to the case of Regina v Fox [1986] 1 AC 281. In this case the accused was charged for driving with excess alcohol in his breath. Breath specimens was obtained after an unlawful arrest. It was held by the House of Lords that the evidence is relevant to prove guilt therefore admissible. The fact that he was unlawfully arrested was irrelevant.
If I may invite your Lordship to page 290 of the report at paragraph E,
“In your Lordships’ House a frontal attack was mounted on the admissibility of the specimens as evidence, on the ground that it had been obtained by means which were not authorized by the act and which were illegal, that it was, therefore, tainted by illegality.”
At page 291 in the last paragraph, this is what the judge had to say,
“In the present case, on the other hand, the offence of which the accused now stands convicted is not the offence of failing to provide a specimen of breath. It is the offence of driving with excess alcohol in his breath, and the specimen was only evidence, important but not in itself conclusive, tending to show that he had committed the offence. Moreover, it was “evidence subsequently obtained from the accused himself relating to an offence that [had] already been committed by him,” and as such it would be capable of falling with the judge’s exclusionary jurisdiction.”
Then it refered to R v Sang between paragraph D-E,
“The Crown Court held, following the Kuruma line of authorities, that the evidence was admissible although it exercised its discretion to exclude the evidence on other grounds which are not here material. Having had the privilege of reading in advance the speech of my noble and learned friend in the instance appeal, I can now express the confident opinion that the holding of the court in Smith’s case was correct and that in that case, as in this the fact that the evidence had been obtained illegally did not make it inadmissible. Accordingly the Divisional Court in the present case was in my view right in treating the fact that the appellant was in the police station because he had been unlawfully arrested merely as a historical fact, with which the court was not concerned.”
In fact I think it was stated there in the holding that the fact that he was illegally arrested is not relevant. At page 294 it sets out the fact of the case, my Lord. So, what is clear from this case is that there was unlawful arrest and unlawful obtaining of the evidence and the court still says no. It admissible after refereeing to Kuruma and R v Sang.
Next is the case of Apicella [1986] 82 Cr App R 295. Here the case is of rape and attempted buggery. After he was charged and imprisoned, sample of body fluid was taken without consent because he thought being in prison he had to give it and had no choice. The DNA evidence obtained from the samples were used against him. What happened was this, my Lord. There are 3 ladies who were raped and they were attempted buggery. All three of them suffered from gonorrhea. While this person is imprisoned the prison doctors suspected that he was also suffering from gonorrhea. So body fluid was taken, sent for analysis and they found that the strain of this gonorrhea was similar to that and based on that he was charged.
If I may invite your Lordship to page 296, holding no.1 and 2,
“(1) there was no rule of law which said that evidence of anything taken from a suspect, be it body fluid, a hair or an article hidden in an orifice of the body, could not be admitted unless the suspect consented to the taking.
(2) in the present case as the appellant was not tricked into submitting to the examination by the consultant, the prosecution’s use of the evidence derived from the appellant’s body fluid, taken in the circumstances it was, was not unfair and the trial judge was right in his discretion not to exclude it.”
At page 298, 2nd last paragraph and last paragraph, [read].
Then the 5th paragraph [read].
Next paragraph, my Lord,
“The pertinent question in this case is whether the intended use of that evidence was likely to make the trial unfair. The appellant was not tricked into submitting to the examination in the way which led to this Court’s predecessor in PAYNE (1963) 47 CR.App.R. 122; [1963] 1 WLR 637 to exclude evidence. In our judgment the prosecution’s use of the evidence derived from the appellant’s body fluid, taken in the circumstances it was, was not unfair.”
Again, looking at the factual material of this case and looking at our case, our case is grounded on more, stronger putting. There was no illegality, no impropriety, nothing. The exhibit from which DNA profile was obtained was not even in the possession of the accused. So that to equate it to be physical confession, nothing of that sort: no trick, no inducement.
There is another case which is R v Christou which I will not read.
I come to the case of Stephen Cooke [1995] 1 Cr App R 318 as far as the English Court is concerned. In this case the accused was convicted for rape and kidnapping. Identification of the accused depended on DNA evidence obtained from hair sample taken from the accused, from DNA profile taken from the semen in the victim’s vagina and camisole. It is almost like our case, the DNA obtained from the towel, toothbrush and mineral water bottle matches with the DNA that was found in the sperm cells found in Saiful’s anus.
The complaint by the accused there is that there was no consent for the hair to be taken or the hair where the DNA traces were to be found. It was held that the evidence is admissible even if it is extracted without consent. In Stephen v Cooke, this objection was taken under S. 78 of the Criminal Evidence Act.
If I may read page 328, paragraph B-G, page 329 para A.[read].
So, the evidence that was obtained and subsequently adduced to support the charge somehow similar to our case. The only difference is that there the court is prepared to [] even if it is unauthorized and impropriety, it is still admissible. Here, we are saying that there is nothing improper, nothing illegal and it must be admitted.
My lord, I’m coming to the last four cases. The last four cases is an American case which involved the Fourth and Fourteen Amendments to the United States Constitution, the expectancy to the privacy of the property.
The first case on the list is Commonwealth v Jeffery Byl (2007) SC. In this particular case, defendant was convicted for murder of a prosecutor assigned to prosecute him. The trial was supposed to begin the next day and today he murdered the prosecutor. Among the evidence used was the DNA test result from water bottle that he left behind after an interview with the police.
He was called for interview and they supplied him with water bottle and they give him cigarette. He left them behind and he claimed now that he deceived to come to the interview in order for the police to obtain sample. He would not have consented to give any sample. The court held that it is admissible because he had abandon his rights over those article and there was no expectation of privacy when he left them behind.
The report is not paginated. If I may refer your Lordship to page 7 under the paragraph “Suppression issues” under subparagraph “physical evidence”,
“Bly argues that the method used by the Commonwealth in obtaining his known DNA sample constituted a non-consensual seizure and thus violated his rights under the Fourth and Fourteen Amendments to the United States Constitution, under R.14 of the Massachusetts Declaration of Rights and under the search warrant requirements. The judge denied Bly’s motion to suppress on this issue, finding that the cigarette butts and water bottle seized by the police constituted trash that was abandoned by Bly.
The thrust of Bly’s argument is that the police, suspecting they could not gain consent deceived Bly into providing the same material that would have resulted from a consensual search and seixure. Additionally, Bly argues that he did not abandon voluntarily the ite,s collected by the police, but rather was required by institutional rules to leave those items behind when he left.”
The fact of the case is in the third paragraph. And the last paragraph of the next page, it was held that,
“Based on the judge’s well supported findings, it is clear that Bly was not in custody at the time of the interview. Although he was in a police station, he had gone there voluntarily. The interview was not conducted in an interrogation room, but rather in an open door office. The investigation into McLaughlin’s murder was in its nascent stages, and Bly was interviewed only because he was on the victim’s trial schedule, and not because the police had any evidence specifically linking him to the crime. At no point during the interview was Bly told that he was a suspect. Bly stated that his attorney informed him that the police would be interested in speaking to all persons McLaughlin was prosecuting the officers acquiesced in that belief. The objective circumstances could not lead Bly to believe that this was anything other than an interview for the purposes of information gathering.”
The second case, Commonwealth v Lee Perkins (2008) SC. In this case the defendant was convicted for murder and rape. Sperms cells were detected in the victim’s vagina and rectal swab. The DNA samples were taken from there, the DNA matched with defendant’s DNA obtained from the soda can and cigarette butt used by him during interview with the police 5 years after the incident.
It is not disputed that the police wanted to obtain the evidence by this means after the defendant declined to give the samples. The police considered and it was in evidence “If I cannot get the sample from him, then we will call him for interview, interrogate him and then in the process give the drink and cigarette and take DNA from there. Held, it was admissible because he has abandoned the cigarette butt, he could not take the can of soda because of the rules and there was no expectation of privacy.
I take my Lord to the fourth page in the last paragraph,
“3. Motion to suppress. The defendant asserts error in the denial of his motion to suppress the butts of two cigarettes he smoked and the soda can from which he drank during his interrogation by police at the Massachusetts Correctional Institution at Concord (MCI Concord), as well as the fruits of evidence, namely, all the DNA testing. The defendant contends that he had a reasonable expectation of privacy in the seized evidence, especially where he declined to give police a sample of his blood for DNA testing. He contends there are prison rules that forbade him from taking the cigarette butts and soda can with him, and where the officers acknowledged a backup plan to make cigarettes and soda available to him to obtain his saliva sample for DNA testing in the event he declined to give blood sample, his failure to remove the soda can and cigarette butts cannot be deemed an abandonment of the item seized for purpose of Fourth and Fourteen Amendments to the United States Constitution, or art. 14 of the Massachuesetts Declaration of Right.”
The third paragraph,
“The defendant does not challenge the judge’s findings of fact. Instead he relies on the undisputed testimony of the officers that he declined to give a blood sample, and that the officers had discussed among themselves that if he declined to give a blood sample, their fall-back plan would be to collect anything he discarded that might contain a biological sample suitable for DNA testing, such as a cigarette butt.”
Last paragraph,
“The judge correctly determined that the cigarette butts had been abandoned by the defendant. Nothing prevented the defendant from bringing them with him after the interview had ended, as he had done with the balance of the pack of cigarettes. Whatever reasonable expectation of privacy he may have had in the cigarette butts was abandoned under both the State and Federation Constitutions.”
The next page, 2nd paragraph,
“With respect to the soda can, the judge correctly found that the defendant did not have a reasonable expectation of privacy in that item, where he knew that he could not take it with him because guards at the institution reasonably would consider it contraband capable of being made into a weapon. We note that the defendant made no attempt to sanitize the item or exert control over it, and therefore it, too, could be considered abandoned. There was no error.”
My Lord, evidence was led by the prosecution through witnesses who were called by NH that at no time other than the two towels that DSAI asked back he didn’t asked for the water bottle. With regard to the standard issue of the towel, toothbrush, of course he couldn’t. So, going by the Fourth Amendment: expectation to privacy, DSAI has abandon his right with regard to the water bottle and he had no expectation of privacy which will render the evidence with regard to DNA obtained from the towel and the toothbrush inadmissible.
Now, I’m coming to the third case, State of Iowa v Peter Christian (2006) COA. Here, defendant was charged and convicted for burglary and sexual abuse. DNA evidence obtained from water bottle and fork used during an interview at a voluntary program was used against him. It matched with DNA obtained from seminal stains on victim’s underwear. It was held that he has abandoned those items and had no expectation of privacy. The court also held that evidence obtained by trick may not be suppressed if not coercive and fundamentally unfair,
Here, instead of being interrogated by the police, he was called for a voluntarily program by the Iowa City Rape Victim Advocay Program. During the interview he was served with cake and water. You can find it at page 2 in the second paragraph.
The third paragraph says that,
“Christian filed a motion to suppress all DNA test results, claiming the DNA samples obtained from the water bottles and fork were product of an illegal warrantless search.”
At page 3, the last 6th lines below,
“Christian’s motions for directed verdict were overruled. The jury convicted Christian of sexual abuse in the third degree and acquitted him on the burglary count. The court entered a judgment of conviction and sentence in accordance with the verdict.
On appeal Christian argues the following in the brief submitted by his attorney:
1. The court erred by not suppressing the DNA evidence secretly acquired by the state and committed further error by simultaneously finding that the subsequent search warrant affidavit contained probable cause to search if the DNA evidence was removed.”
Page 4 in the second last paragraph,
“To establish a violation of the Forth Amendment, Christian must show that he had a legitimate expectation of privacy in the item seized. “When individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had.” In other words, “[v]oluntary abandonment of property in the constitutional sense occurs when an individual no longer has a reasonable expectation of privacy.” To determine whether a person has voluntarily abandoned property, we consider whether the person intended to abandon the property. Intent to abandon the property “may be inferred from words, acts, and other objective facts.””
The next relevant paragraph could be found at page 5. The judge above the
heading “Bill of particulars”,
“Based on the foregoing facts, we do not find Clarahan’s conduct so coercive or fundamentally unfair as to deny Christian’s right to due process of law. We therefore affirm the trial court’s ruling denying Christian’s motion to suppress the DNA test results seized without a warrant. Because we have affirmed on this issue, we need not address the merits of Christian’s challenge to the search warrant.”
What happened is that they served him with a water bottle. Midway the switched the bottle, they took the bottle and replaced it with another one so as not to cause the accused’s suspicion. They employed trick and the court said that it is not coercive or fundamentally unfair to have it rejected.
My last case is Kevin Piro v State of Idaho (2008) COA. Here the accused was arrested for attempted lewd conduct. While under interrogation he was given a bottle of water, a pencil and a piece of paper. He was later told to leave the bottle behind. DNA obtained from the bottle matched with DNA from sample taken from unsolved rape case. He was later charged with rape and burglary and convicted. The DNA evidence from the bottle was used against him during the trial. It was held that he had no expectation of the water bottle provided by the police during custodial and interrogation, just like in our case, just like he had no expectation of privacy in bed sheet and prison uniform provided by authorities. So, in our case, Dato’ Seri Anwar Ibrahim also have no expectation of privacy with regard to those items issued to him during his stay in the lock up.
All these cases my Lord, will show whether it is English case, African case or American case; the court had consistently admit evidence though illegally obtained so long that if ever there is any trick the trick is not so trickery. There was no inducement, no threat, and no promise. Those cases which the English court had declined to admit were only cases involving confession. In fact I was asking my learned friend to get me the particular paragraph in Hanafi or Wan Mohd Azman where J Paul said as opposed to what R v Sang said. By 2006 when Hanafi was decided there are only two cases. There is one more after R v Payne where the court actually excluded illegally obtained evidence.
There was one issue there. The prejudicial effect must not outweigh the probative value. The cases of Noor Muhammad, Boardman…
In Hanafi, paragraph 73 this is what J Paul said,
“It must be observed that except for cases such as R v Court (1962) Crim LR 697 and R v Payne [1963] 3 All ER 848 there appear to be no other English reported cases where this discretion has been exercised.”
That is up to 2006. We are talking about when something is said to be prejudicial. When you talked about probative, the saying when something was forced, it support and substantiate the allegation.
In Noor Muhammad, the prejudicial effect surely outweigh the probative value because we are talking about bad character evidence. Nothing to be the issue of the court. In Boardman, we are talking about similar fact evidence. Again, we are not talking about the case being tried. We are talking about evidence with regard to other cases which may afford corroboration. After all corroboration is something that confirms.
In our case, the question of balancing exercise does not arise. The question whether or not prejudicial effect outweighs the probative value does not arise because this evidence will directly confirm the commission of the offence, the DNA evidence.
If I may I refer your Lordship to the case of DPP v Boardman [1975] AC 421. At page 451 last paragraph, [read]. In Boardman, they admitted the evidence because of the striking similarity. This balancing exercise of prejudicial effect and probative value only applies to those kind of cases.
In fact it was discussed in Wan Mohd Azman that only when that evidence covers instances, cover a time and place other than what is specified in the charge, then you need to have this balancing exercise.
But when in this case, the evidence obtained will confirm Saiful’s testimony. Saiful’s testoimony is in fact a complete story that will support the charge. All the rest, chemist report, chemist’s evidence, medical evidence, DNA; these are all merely confirmatory of what he has said. So it is corroboration actually. And these are admissible because it tends to confirm what Saiful said.
Other than that we have also literature which I will not read. Just for your convenience my Lord, Blackstone’s Criminal Practice 2005, Archbold’s Criminal Pleading, Evidence and Prcatice 2007 and Sarkar’s Law of Evidence 16th Ed 2007; all on illegally obtained evidence and the instances which the court had applied or declined to apply and most of the cases that I cited could be found there except the American cases.
To sum up, I would say this:
(1) defence has failed to prove the basis that the evidence obtained or collected from the cell was improper or illegal because they have not been able to prove on balance of probability that DSAI was not informed of the grounds of arrest which makes the subsequent detention unlawful;
(2) the taking of the exhibits had nothing to do with the arrest and detention. There was no trick employed, there was no inducement or threat. The condition while he was examined and the condition in the lock up is not something that induced him to use the items that was collected later on. There was no inducement, no threat, no trick or no promise. There is nothing illegal.
But if the court is of the view that it is something improper because the arrest is illegal, then all these cases that is referred to your Lordship would help the court to arrive at a decision that this is not a proper case for your Lordship to decline, to admit evidence. Because there is nothing so tricky, nothing so coercive, there is nothing so fundamentally unfair for your Lordship to exercise your discretion.
Our stand is that there is nothing before the court either in the trial within a trial or the substantive trial which can trigger the exercise of your Lordship discretion [] to exclude admissible evidence no matter how it was obtained.
I pray for the application of my learned friend to be dismissed and order or for your Lordship to allow us to call both Supt. Amidon and Aidora to tender the respective exhibit and to be marked as P.
Much obliged.
KS: We need time to reply.
YA: 2.30 p.m
[12.25 p.m.] Stand down.
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