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Anwar Ibrahim Sodomy II – The Recorded Truth – 29 October 2010 October 30, 2010

Posted by malaysianstory in 1Malaysia.

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

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

[9.06 a.m.]
MY: Kes ditetapkan untuk hujahan terhadap permohonan pihak Pembelaan untuk mendapatkan nota-nota pemeriksaan and the history. Notes of examination done by the three doctors.
YA: Nota pemeriksaan…
KS: Nota pemeriksaan on which the report is based. Nota yang direkodkan di dalam pemeriksaan SP1. Very specific on this.
MY: Nota pemeriksaan, pertama, berdasarkan Section 51, kedua kerana Peguambela ada hunch, dan ketiga sama ada P22 boleh diterima masuk.
YA: Satu, permohonan untuk mendapatkan nota pemeriksaan.

MY: Yang no. 1 itu pecah dua. Satu berdasarkan Section 51, kedua kerana Peguambela ada hunch, dan ketiga sama ada P22 terjejas kebolehterimaannya kerana telah dikepilkan satu laporan bertarikh 4 July 2010, iaitu merujuk kepada toxicology report yang dikepilkan bersama P22, whether it can render P22 inadmissible.
YA: Cuma dua issue sahaja la? Yang lain itu the reasonnya.
MY: Yes.

KS: The first issue is [] report. That is for YA to reopen the ruling you made yesterday that we are not entitled to the notes recorded by SP2 in the course of the examination of SP1. We have relied heavily on the case of DSAI, what the Federal Court has to say is with regard to the difference between the discovery during pre-trial and during the course of the trial. The Federal Court has stated that although we are not entitled to certain of the documents, or rather under S.51 of Criminal Procedure Code, nevertheless the matter could be taken up in the course of the trial. We relied also on Pannerselvam in relation to Section 157 Evidence Act 1950. There of course is an application by the prosecution to lead evidence of the former statement to corroborate the evidence of undercover agent of that case. The court held that the evidence or rather
the former statement of the witness could be use to corroborate. The witness given in the court, we have try to convinced to persuade YA to consider the reverse of it whether statement is conflicting with the evidence given by witness in court.
In relation to review of the ruling made by YA. Your Lordship has relied very heavily on the submission of my learned friend, in fact you agree with him that the notes will only be made available if the witness chooses to refresh his memory in the course of his evidence. Where alone that part of the former statement by the witness, in this case would be the notes recorded. YA has relied very heavily on that. YA is of the view that unless and until the application is made by the prosecution for the witness to refresh the memory, we have no right to look at or ask for the protection of the notes recorded by SP2 in the course of examination of SP1. YA is not functious officio. The ruling made by a judge in the course of the trial can be reviewed. Of course it is persuasive. It is for the court to reconsider because reconsideration must come now.
Lets go to the basic. SP2 is an expert. We’ve been told by the prosecution that he is an expert. An expert is not a witness of fact. The evidence of an expert is advisory in nature. An expert come to the court is for the purpose assisting the court for certain conclusion. Because the court istself is not in position to do so when we comes to the evidence of the court. We say a very wide latitude is given to the court and to the defence.
We refer to the case of State Utapradesh v Jayaratnam & Others. I’m unable to get the report proper. The citation here is cited in and it is digested in the Mallal Digest, 7th volume under tab 1 evidence act. [read text]. It is important. [continue reading]. The reasons are in P22, but it is a data that furnish the basis for conclusion. In order to bring the evidence of an expert witness, it has to be subject or shown that the witness  has special studies on the subject, likewise special experience of him. That is adequate knowledge of his subject. The report submitted by expert is not admitted automatically. Report submitted by an expert cannot be admitted arbitarilly. P22 cannot goes into evidence automatically. It should be examined and cross-examination in court. Based on this authority the defence in cross-examination advert to and demand the supply of the material and the data upon which P22 is based. And even if the defence is not entitled to the material, then the court is. Your Lordship should demand it. We give you the expert to furnish your Lordship scientific criteria the data upon which P22 is based.
In fact, your  Lordship would be abdicating your duty and if your Lordship sits back and does nothing about it, we are prepared to accept what is in P22 without our [] part. The court is obliged to demand the data if we are not entitled to it. But we are saying we are entitled to it. In fact the judge and the defence must joint force to ensure the truth prevails. It’s subject to us to persuade your Lordship to review the ruling made by this court yesterday. Unfortunately, I’m not able to address your Lordship of the actual report. I’m still loking for it. It is a Supreme Court case in any event. Supreme Court of India, although it is not binding on this court it is of highest persuasive value.
In fact it has been accepted most of the time. Although the Federal Court in Karam Singh had the occasion to say that the Indian judges are idealist. The judge has to be an idealist. Of course Karam Singh is a case involving habeas corpus. It’s quite different here Put that aside. We say that it is an authority that should prevails. In fact, to document produces yesterday surreptitiously because it was not served on us. The toxicology report which are attached…

YA: It is the second issue?
KS: Yes. The toxicology report which was attached to P22, which is never been served on the defence.
MY: It’s ID25.
KS: ID25. I think it was attached to P22 because I questioned the witness and it was there. He said it was there. In fact, it was adverted in P22, if I can put it that way. [] The law is very clear. The amendment to the Criminal Procedure Code brought S.51A. It is fondant duty of the prosecution to supply to the defence before the commencement of a criminal trial. All the documents which they intends to use in the course of the trial to prove their case. It is not disputed that the toxicology report has never been served. And that has been accepted by my learned friend unless he wants to change now. That is the position. We said that the document cannot be used for any purpose whatsoever. It is inadmissible because it is not supplied to us in compliance of the provisions of S.51A. Because not before the commencement of the trial. It suddenly appears. And what is more intriguing is this, it is your Lordship who pointed it out to us.

And this is a critical stage where we are contradicting the number of chemist report that are refered to in the conclusion in P22. And suddenly this document is was drawn to the court. This document cannot be used even later on for the purpose of admitting it as evidence. S.51A itself or rather the provisions of S.51A are as clear as a bright star. Any document  intended by the prosecution to be used in the trial to prove their case, it’s mandatory that a copy must be served on the defence. My learned friend of course will rely on the case of Mohd Fadzil Awaluddin. We found that the issue in that case which is a High Court case, an authority which is not binding on your Lordship, the authority which does not support our case. We’ll come to that later on. J Mohd Zawawi says the non-compliance of S.51A did not make a trial a nullity. [read holding 1]. Non-compliance of S.51A is not a statutory bar for the prosecution. This is a case in favor of the prosecution. [continue reading]. There is a case in favor of the prosecution.

We have a case of PP v Lee Sook Hua. In this case the learned judge J Yaacob Sam in his judgment went at length into the same issue, and that is at page 55, under para 111  [] And the conclusion is made at para 114 at page 56. [read]. That is another word what is said in Mohd Fadzil Awaluddin. We have two High Court decision where  the effect of S.51A is directory and not mandatory. The provision of S.51A are directory and not mandatory unless prejudice is shown and therefore the prosecution is under duty to produce it in the course of the trial. But we rely on what is said in the case of DSAI. This is what the Federal Court has to say. I refer para 28, page 324. I read it. [read]. In this case, the toxicology report is part of the prosecution case. The point is this YA, is the report admissible? We say it is not because it is not served on us before the commencement of the trial. The court says it very clearly that s.51A make it a mandatory obligation on the prosecution to comply.  We say that the other two cases we referred earlier stands to be demolished in the face of what the Federal Court  says in the case of DSAI. There’s a High Court case which in fact applied the principles set out by the Federal Court case. The case of Lee Le Cheong v PP. It’s in the High Court of Sabah and Sarawak in Kuching. [read headnotes]. In this case, it would be a document. But it is the same. The requirement is the same. We have ….

YA: What’s the fact of this case?
KS: That is the non-suppliance of document which is required to be use by the prosecution [].  The case applied the principles in DSAI’s case, the Federal Court decision. In other words it is mandatory to supply to the defence, the copy of the statement is made available to the defence. Apart from that, supply of the whatever document  what the prosecution intend to use, it is a requirement that the document  ought to be made known to the defence. My learned friend may say in DSAI case what the Federal Court said is obiter dicta. No doubt that the point did not arise pointedly.
YA: I think it is mandatory to supply the document before the commencement of the     trial.
KS: Of course if it is mandatory it would be supplied before the commencement of the trial..
YA: Cannot be.
KS: Of course, it would be automatically followed. Must follow. And to be followed. It cannot be produce in the course of the trial. And that in our case would be rendered inadmissible. Also, even if it is obiter, what did the court said? The highest court of the land, and not to be likely brushed aside, YA judge of the High Court. In many event, it had been applied by another High Court. The case of Lee Lu Cheong, which I refer just now. The prejudice is the consequence. This document had been surreptitiously used in the course of this trial. It is pointed out to us  by your Lordship. The prejudice is inherent in itself. [] The point is this, whether P22 notes stand contaminated to the extend that it ought to be excluded. We have been denied the legitimate right to contradict the evidence of SP2. Where P22 did not reflect the toxicology report as far as we are concern, because we have not being supplied with it, but the witness kept saying that he had it. Your Lordship should stick to us. P22 stands discarded and of no consequences, what we have is the evidence of the witness in this court. The law is trite. That evidence of the witness does not reflect of P22. P22 would be corroborative of the evidence given in court by SP2. But then again. He, or rather SP2 has not gives the notes, the basis, the data upon which he is coming to court under oath coming giving evidence.I come to the third issue. That is the principle in Husdi. This witness has time and again in the course of the cross-examination been evasive.  What he says at various point make no sense. Even if he did, to some extent he refused, persistently refused to refer to the notes for the purpose of refreshing his memory. It is something to do with the motive, not to give the defence the opportunity to look at what he would at the notes to refresh his memory. Because if he did it, we would have the right. He denies that right persistently refuse. It is not proper for this court to say that you cannot do something about it.  Of course YA can a lot of thing about it and you must do something about it. YA can’t sits bakc and says I cannot do anything. I refer your Lordship to what the Federal Court has to say in Husdi. Para F of the second page of the report, left column. [read]. S.145 and S.155 of the Evidence Act 1950 refer to any former statement made by the witness.  any former statement made by the witness. can be use for the purpose of impeaching his credit. In this case the notes  that he use, Husdi was 112 statement. And it makes no difference. We have a hunch. We have beyond the hunch. That if it is not produced, the evidence of SP2 in court would be contradicting from the notes.

YA: Because you know the process kalau mahkamah agree with you, he will gives the report first. Then court akan tengok ada material contradiction atau tidak. So you have a hunch of the history?
KS: Yes. History is one part of it.
YA: You have the hunch that the history ..

KS: That would be the case. Principally the history. The history as reflected in P22 is a two liner and it is not in details.  To him there is no difference between a summary and what amounts to details. Even a child in a kindergarten would say  that the two liner cannot be details.  It is not about the history, it is much more than that. All we try to establish is the existence of a hunch, doesn’t matter which part is it. It is something that your Lordship ought to consider seriously. The other part, unfortunately we have not been given the notes. The notes of proceeding. If YA were to go to the notes seriously, this witness was evasive throughout, not only in this aspect, but other aspect.  That’s it If I could summarize and it won’t be a 2 liner. The first issue, is we are entitled to the notes based on the Indian case I referred to. The witness is not a witness of fact but advisory to assist the court. I don’t want to repeat myself. We are entitled in cross-examination to demand the basis upon which the conclusion arise from P22. The reasons, the data whatever it is all that, we are entitled to all of them. If we are not entitled to it by cross-examination, your Lordship ought to invoke your Lordship powers to do so. The court can question the witness, not only the defence and the prosecution. The question you can demand is for the purpose of satisfying the conclusion of P22. It was done surreptitiously. If it has prejudiced your Lordship’s mind. P22 stands contaminated and required it to be completely expunged. Thirdly, the principle in Husdi. More than a hunch here. YA should take time  to look at the notes apart from the history itself. It is not for your Lordship to say that it does not matter and can be submitted at the end. The evidence of the witness should not be accepted. I don’t think that is what counts. What important is whether the medical evidence can be accepted in this case. In any event my learned friend would wants to, he had refer me to the para 47 of DSAI’s case [read] There are 2 requirements, necessity and desirability. That refer to S.51. Whether it can be extended to the decision of this case. Lastly, most of the rulings made by this court when being brougth for appeal hads been turned down because it is not a final order. It means it is a very heavy responsibility on your shoulder. Your Lordship has monopoly in deciding. Each time we go there we have to  come back here. YA should take time and gives us a proper details reason. With those remarks, and all those three issues, your Lordship ought to rule in our favor.

MY: My Lordship, basically there are two issues. First the entitlement of the defence  to the notes of examination, plus the history taken on the patient, SP1. And number two, the admissibility of P22. with regard to the entitlement or the rights to the notes of examination, my learned friend is relying on s.51. In the case of Raymond Chia, what the Supreme Court says is this. In the course of the trial,  when application is made for the documents, then the rule, the  rule of relevancy must be strictly observed. What does that mean? The case of Ramasami. In the case of PP v Ramasami, tab 13, J Su Geok Yiam had the opportunity to refer to Sarkar to say when we talk about what is relevant, we talk about what is admissible. What I mean is what is legally admissible. I refer to page 419, para D, para E, para H, para I [read]. Taking this argument from this passage, the notes of examination or whatever report is not admissible. The author or the person who make such report for such examination is present in court to give evidence. If I may refer to the same case of Saw Thean Tiek v Regina, tab 11.  Because Ramasami sais this – since the report was not served under Section 399 and the prosecution decides not to tender the evidence, then the defence cannot have access to it. []. The reason why [] when you talk about what is relevant  in Raymond Chia [] . Sarkar said with regard to Section 3 the word relevant is what is admissible. The general rule is that when the person or the doctor gives evidence in `court, his report is not legally admissible. Because of the best evidence rule. If I may refer to Saw Thean Tiek, tab 11, page 125, second paragraph, 17th line [read], page 126 [read] The best evidence rule will exclude any medical report or any notes of examination unless the party wishes to use it as corroboration evidence. The position in India is different. We are talking about the same particular situation, but in India, when I read the literature it does not talk about it to be admitted as corroboration. You can only use it to refresh your memory. I invite your Lordship to tab 23, under the heading of “refreshing memory”. Page 2468, under subheading “post mortem notes”. Because I look at Criminal Procedure Code and go through the literature, there was no cross-reference made to Section 157 of Evidence Act. [read heading of refreshing memory of the literature] Both Saw Thean Tiek and this case talks about when the witness is here, you don’t talk about the report. Unless he wants to use it but not to admit it, to use it to refresh his memory or to use it to contradict him. But in Malaysia, as you can see in saw Thean Tiek, and subsequently the case of Balachandran, you can still admit it but as corroborative evidence. During the prosecution case, who is it to decide whether or not this notes is required to corroborate the witness? Is it the defence duty, or is it the proseuction duty? At this stage, it is our case. It is for the prosecution to call the witness to prove and is incumbent upon us if it is so desired. Unlike in India where it is admissible to have him produce and tender the report. I don’t think it is for the defence who can ask him to tender. In short, the notes of the examination prepared contemporaneously is not admissible as evidence and can only be used either to contradict,and or to be used to rerfresh your memonry under s.159 and s.161 Evidence Act 1950. And to some extent if it is so desireable for prosecution to tender it to form part of the prosecution’s evidence to corroborate the witness, the evidence in court. What happened if we choose not to, I mean it is my right. Then, the case of Balachandran says there’s nothing you can do. In the case of Ramasami which I referred earlier, it says too bad if the prosecution does not wish, in fact at the holding number 2 in context of Section 399 of Criminal Procedure Code which deals with admissibility of the report, if the report is served not less than 10 clear days.[read].

YA: What case?
MY: PP v Ramasami, tab 13, holding no.2, page 147. [read] In Balachandran, where the first information report is normally admissible under S.108A and S.157 of the Evidence Act 1950 was not tendered by the prosecution. Then, at holding no.2 of the case, tab 14, this is what the Federal Court has to say [read]. And this doctor is one witness where the law doesn’t say he needs to be corroborated.So there is no adverse inference. And there is no problem if the prosecution does not wish to tender the document, to corroborate the maker of it. And would [] indeed if the first information report is used to contradict the evidence given by the witness, it is a duty of the defence to use it to attack the credibility of the witness. This is possible for simple reason. They are entitled as of right for the report. Because of that the report will be in their possession. But notes of the examination belongs to the same class of statement of witnesses. Defence are not entitled to it as of right. My learned friend says that “Look, I need it to cross-examine and during cross-examination I must be given all the latitude”. It is wrong. S.51 of Criminal Procedure Code must be read in the context of Section 159 Evidence Act 1950. Because the witness is ask to refresh his memory, to refer to the notes to refresh his memory. And that is what S.159 is all about, While under examination, the witness can refresh his memory. But as far as the law is concern, there are conditions to be fulfilled before he can even look at it. And that condition had been spelled out in the literature by J Augustine Paul in tab 21. The conditions is as what as the section says. And then it must be reduced at the same time of the transaction. Somebody must have read it. Even if somebody writes it, he must have read it. No.2, the witness himself apply to the court to refer to the document, not KS. The witness must apply. The witness must apply to the court to refer to the statement. And reference was made to the case of Pannerselvam that my learned friend was referred to. Then there must be a demonstrated need that the witness refer to the notes before leave is granted. Singapore case, judgement by Yong Pung Haw CJ, he says just because you ask, doesn’t mean the court will grant leave. There must be real necessity for the court to grant leave. [read case of Yuen Chun Yii v PP found in Augustin Paul’s book at tab 21, page 1125]. What did my learned friend asked is “ Do you have the history taking of the patient?” “Yes” “Do you remember the details?” “I can’t remember the details”“Do you want to see the notes?”. You must ask first what are the question you want to ask. If he can’t answer and if he stated that he need to look at the notes, then only you can ask. Not just by asking “Don’t you remember the details?”. But if you are talking about the notes of examination, he was the one who examined. “What did you examined?” he said “ the  anus”.  “What part of the anus?” “What else did you do?”. And he can answer  that. At that point of time, where is the need to ask him to refer to the notes either made by him or somebody else. The second instance when he was asked is this “Do you have the notes?”“Yes”. “Can it be produced?”“Can you produce it?”. this is not the basis. In Paul’s book, he refers to the case and said you cannot simply allow the witness to apply and refer to it. There must be some basis. You must show that his memory has faded of it. And force him to forget certain evidence that is crucial. But we haven’t come to that. And then at page 1126 of Paul’s literature where reference was made to the case of Moomin b. Seman v PP where Richard Talalla J said “a witness cannot so refresh his memory by right”. [read]. In the event, even your Lordship ask and he cannot answer. But if merely asking him “Do you remember?”, Of course he can’t. But if you ask if he is the one  who interviewed him, but he repeatedly said he did not interview but he heard it.  And whether interview recorded, then you ask.  But he did  mentioned about the hospital and the name (of the doctor) he can’t remember, does it matter as far as he is concern? Because his duty is not to determine whether or not so and so sodomize SP1. His duty is when somebody complaints he is being sodomized, there was evidence in form of injury or anything. So it would appear that as far as the law is concern, only the witness can apply. And the court has discretion to allow or disallow it if the court is satisfied. That it is in the interest of justice to ask him to refer it. And not otherwise. It is not a matter of course. But if I may my Lord, first,  the law says you can refresh your memory upon you satisfying all this condition. If is the duty of the prosecution intends to ask the witness, then the prosecution has to satisfy the condition must refresh the memory, prosecution must satisfy the condition. But after being allowed, then only under S.161 the law says the defence has the right to inspect the doc. In fact, the entitlement only arise when the application to refresh memory is allowed by the court. Only then. If I may refer to Sarkar again where it discusses on s.161, at page 2477, under the commentary of principle and scope [read]. I refer to page 2479, top page [read]. [read]  Meaning only when the court says “Okay, you can refer to it”, at that point of him, the defence has a right and the right begins immediately. If it is not exercised, you cannot retain that right. then only the defence  can refer and inspect the notes. We have not come to that. There is no application and ruling from the court allowing the witness to refer to the document. With regard to hunch, again my Lord, my learned friend refer to the judgement of the High Court. But we refer your Lordship to the Federal Court decision. They refer Husdi, we refer to Dato’ Mokhtar Hashim. To secure basis or foundation,I’m referring to Dato’ Mokhtar Hashim, tab 17, page 276. Just because the witness says “I cannot remember the details” when no specific questions was asked and which facts you want to know, it cannot amount to a hunch. Just because the witness says “The notes are available at the hospital” that does not amount to a hunch. Just because the witness does not want to refer to it, there is no basis for a hunch. I refer to page 276, para D to the left [read].  My learned friend have not shown or demonstrate that there are material contradiction, not contradiction, but material contradiction mainly directly affecting the issue to be indicated by the court or unexplained circumstance. We have not come to that. In fact, this premature because we have not heard the re-examination. On both S.51 and on hunch, my learned friend first has not able to show the relevancy in the sense that this evidence is legally admissible. If at all it is admissible, it talks about corroborative evidence and it is prosecution’s discretion whether or not to have the document produced. Under S.159, it talks about again it is not admissible. Because of  Section 60 but can be used only for this two purpose, to refresh the memory and to contradict. Here it is not satisfied because it does not talk about admissibility. It talks about the usage for the purpose of refreshing memories or to contradict. As what Sarkar’s said. On the hunch, what is considered necessary for a hunch. There must be material contradiction. Or unexplained circumstances. Which in this case, my learned friend has not shown or illustraed what the hunch is all about. We come to P22. P22, that document was served 2 years ago. ID25, the chemist report bearing lab number -0 and -02, was served on them long time ago, 2 years ago.  What was not served was the report with regard to -01. I refer to P22 and ID25. First, P22. At page 3 of the report, starting from the top most,  “labroratory []” there is what the doctors says, they have collected specimens. Item 12 is for blood for alcohol and toxicology. And they talked about report being basis at the middle and making reference to the report it says “No detectable alcohor and other common drugs in the blood taken from the patient”. I’ve my reason for pointing to this. And down there stated, “Please refer to chemist report 0 and 1 for full details”. Because here they are talking about swabs from “B” specimens. So, P22 is more confined to the “B” specimens. If I can now invite your Lordship to ID25 dated 7 of July is the report that we served, but for some reason the other report, -1 is clipped with it. And that report which my learned friend is complaining about which was not served on them is dated 4th July. My learned friend complaints is this, when he cross-examinine SP2, SP2 would only knows what lab report number -1 is all about after referring to this. Actually he doesn’t have to. He was not thorough and not careful. First page of P22, the one that we served on the defence refer to it second paragraph “read Para 2 of chemist report of Dr. Seah] We know that is the toxicology report. [read Para 1 of Dr. Seah’s report] And this was this “B”s the doctors referred to. So they are referring to the first specimens, specimens “B”, there are this blood and then specimens “A”. In the first page of the chemist report. But it was with regard to specimen “B” it is this report that was referred to in P22. In fact all the doctors are questioned on those specimens “B”.  Question now is whether or not the fact that the report was attached to it when it is not really before the court would it contaminate it? At this point of time, this thing has not become an exhibit. We can always take it out if don’t want. Because nobody was really examined or cross-examined on the report of 4th July. It’s all confined to this. And if so happened that the report is attached together with the this report, but is the report  prejudicial? My learned friend talks about it being prejudicial. What does? The report is very neutral. It’s says nothing there. No alcohol, no drugs. What is so prejudicial about it? We have cases where a certain caution statement was admitted where the maker of the statement not only admitted the offence for which he is now detained, but other offences that are committed. The whole statement was admitted in court. But even then under S.167 of Ea, S.422 Criminal Procedure Code, S.16 and 90 of CJA, the court can just look at it and just reject all those that was wrongly admitted. And see whether or not what was admitted was strong enough to prove the case. Whether what was admitted has all the material to prove the  ingredient. This is not blood or sperms cells that we are talking about.  The case in point is the case of Juraimy. It is the Court of Appeal decision. Tab 18, page 578, para H. This was complained by the accused. Encik Karpal was there.  [read]. Same here. We place on no reliance on the toxicology report. [continue reading page 579, para A, B and C]. Here, it does not form part of the report. It is a separate report which we can easily part. It’s admissibility does not arise at this point of time, Because we have not tender it. The maker, the author has not been called and this report will reveals nothing more than corroborative evidence again under S.159. But if I may read further, [read para D] Because we will get suspicious. But here when you look at it, there is nothing prejudicial to the report. It is neutral. It does not implicate and does not inculpate. It merely states that the no drugs and no alcohol. Because of that we are saying that just because the report was attached to it, doesn’t mean anything and even brought it does not prejudice the accused in any way.  Now, coming to that we cannot be admitted, because S.51A has not been complied with to begin with that, my learned friend was not served with that report meaning we have no intention to tender it. So it was there because of the chemist report. It comes together and due to the oversight on our part and the thing it is photostated by the police, they did not actually separate the report. If later because since we are calling the author like I said just now, we may not have to rely on the report. But even if we want to rely on the data for some reason or other which I don’t foresee, Fadzil Awaluddin’s case says you can skip unless the other party []. In fact I read Archbold, in England in particular, disclosure does not stop when te trial commences. It continues throughout the trial until to the stage kit no longer acceptable for you to disclose to the other party, too late in the day, it prejudice the defence. But that is not the case. So where the prejudicial is so forceful on the right, to the need to disclose, even that in UK  says this right continues. Even during the trial. It doesn’t stop. And the right should be enforce. The right to be informed of the weakening material for the prosecution or strengthening the defence. It is neither here. [] the document we want to tender. And my learned friend referred to DSAI where it says mandatory. My reply to that we must look at it and see how we can harmonize it with Fadzil Awaluddin and other case of the High Court where the court deals with the right of the accused to counsel. The right begin immediately. But the exercised of that right should take place not immediately, but later. So the obligation is yes, mandatory. We must give. But whether we must give it mandatory for the document to be supplied before the commencement of the trial or not is different. In Fadzil Awaluddin, the judge refer to what the Minister said in the Parliament when presenting the bill, [refer and read tab 19, page 754, para 19.5, 19.6, 19.7].  Having to said that the judge in this particular case said that in that particular trial, documents was served after the trial commences. The issue is non-compliance. Whether the accused is denied fair trial because of that and the judge said no. So what the judge said it is not mandatory to supply before the trial commences. He discusses when the word shall is just directory and not mandatory and in what circumstances it become directory? In DSAI’s case, it is an obiter. No.2, this issue did not arise. The court has not dealt with whether or not the obligation to supply and the time when the supply and did not discuss whether it is mandatory or directory.

YA: If it have not being served, it cannot be used.
MY: S.51A…
YA: Before the commencement of the trial, the court is silent.
MY: I’ve been reading [] where in one sentence can mean both directory and mandatory. In fact in Ramasami the court said is the word “may” can mean both directory and mandatory.
YA: []

MY: To sum up, first  my learned friend is not entitled to the documents. The notes pursuant to S.51A because they’ve failed to satisfy the requirement to show relevancy in the sense to show that this is legally admissible. Saved to the extent that it can be admitted to corroborate. Which is not the case here. No.2, my learned friend is not entitled to it because he has not satisfy the requirement of S.159 and S.161 because in that situation only witness can apply. No.3, both in Ramasami and Balacahnadran, there is no document for prosecution to tender it as part of their case. And the court, less so the defence cannot compel us to do so. No.4, my learned friend has not been able to show or demonstrate that there was in fact a hunch to justify the court to look at the notes of examination before the court decide to have them supplied to the defence. They have not been able to show material contradiction or any circumstances unexplained in the evidence of SP2 to justify the court to accept or to find there is a secure basis or a foundation for a hunch. With regard to P22, I mentioned just now that the toxicology report was not served but just because attached and then referred to by the doctor, it does not contaminate. Because ultimately P22 were to be look at, the conclusion is that  it is purely based on their examination, not on the laboratory examination. The conclusion in P22 only takes into account what they did themselves. It did not incorporate the conclusion and findings of the analysis made by the Chemistry Department. So, it could not be. Reference was made, yes. But the conclusion never. They only conclude based on what they give by oral evidence with regard to that, to those “B” when they made the examination they know the location where the specimens were taken from. Because of that, P22, just because it made reference when the conclusion is made is not based on those reports cannot be said contaminated. And cannot be prejudicial because there is nothing prejudical about the report. Even if it so, then the case of Juraimy is in point, S.167 actually it is more of appeal, the court is at liberty just to ignore. In fact, as we have pointed to your Lordship earlier, that particular report was never before the court. Have never been brought to the attention of the court. And no reference was made to it at all during the examination-in-chief. And for whatever conclusion the doctors made during the examination-in-chief. I pray for the application by my learned friend to be dismissed as it is made without basis and not supported by law or by the circumstances in which supported by all the cases and authorities that I’ve given. Much obliged.

KS: We want to reply because we have the right to reply. It won’t be that long.
YA: Do you want a break? Panjang ke?

KS: []
MY: If your Lordship can indulge me, may I just refer to this Indian case. This Indian case does not talk about …. My comment is that it merely says that before you admit

to the expert evidence you must satisfy certain condition of it. It doesn’t say if he did not satisfy certain conditions the counsel is at the liberty to force him to supply it.  The court is not bound to accept it. It’s not for the defence to ensure that all [] was there. Their duty is to comment what happened with the []. This is not the case which gives the latitude to the counsel to apply for the notes of the examination. Thank you, my Lord.

KS: May we have a short break? It’s not that long.
YA: Jangan lama sangat. Hari ini pagi sahaja ya.
[10.58 a.m.] Stand down.

[11.15 a.m.]
KS: On the admissibility of the toxicology report, what is important is to consider whether under S.51A is there any ambiguity of this Section. S.51A is to prevent a trial  from ambush. My submission is that S.51A does not reflect any ambiguity. The law is very clear. Therefore, adverting to the speech by the Minister in Parliament is of no [] and that arises if there is ambiguity.  We are relying on DSAI’s case where the Federal Court said it is a mandatory obligation. And adverting to that case, the toxicology report ought to be ruled inadmissible and expunged. But more importantly, putting aside the paramount consideration in any court of law, is the requirement that all evidence ought to be placed before the court so the court will come to a just decision. There lies the duty of the prosecution, the prosecution is obliged to lay before the court all the evidence even if the evidence is against them. I refer again to the Indian case [read]. YA should really consider what the Indian case reflects. I read again. [read]. There’s nothing to stop my learned friend from in the course of examination-in-chief where the notes produce. There is no prohibition against him. It can be easily be done by my learned friend since we are prevented by the provisions if the Evidence Act 1950. It is stated only when the witness refreshes his memory, only then we are entitled to cross-examination the witness by looking at that part of the former statement. But as far as the court is concerned, YA is not limited by that provision. Otherwise it is difficult to reconcile with what is said in the Indian case.  The court must be furnished and my learned friend is in a position to furnish to the court with the notes. That again will be the overall and fundamental function of the court. We know this is and adversarial trial. The judge has certain duty, has certain powers, judge has right to question witness. YA should call for the notes. Otherwise how YA to come to conclusion as to whether what the witness say here is accepted. We are dealing with expert evidence. Expert evidence is a class of its own. The court has to beguided by the evidence of the expert. It would be for YA to direct my learned friend for the notes produce for the purpose of the court coming to certain conclusion.[] The expert is supposed to assist the court. My learned friend is bringing the expert here for the purpose of assisting the court. To assist the court, we must legally bound to place that before the court.That is what the Indian case says. To furnish thee judge, not me. We can’t. It’s the prosecution. If YA would look at the Indian cases. YA could get the full report of the Indian cases. Unfortunately it is not with me now.

YA: That’s the problem. The danger of giving like this. How is the background of the case.
KS: We give our undertaking to supply the full report to the court. []
MY: If I may. I’m not making it further. I refer your Lordship to the case of Juraimy, tab 18, page 579, last para. I forgot to draw the attention to the last paragraph of page 579. I’m not going to read it. This is with regard to our submission to whether or not P22 is contaminated. I forgot to draw your Lordship attention to para H and I. When your Lordship seek to consider whether or not P22 should be excluded or being contaminated. The last para. Thank you, my Lord.
YA: I need time to consider this issue. This case is schedule to continue on 22nd Nov. So I’ll deliver the decision on that day.
KS: If I find any authority may I pass it to your Lordship and the DPP?
YA: Yes. Both can pass me any authority you have just before the date of the decision.
[11.24 a.m.] Adjourned.



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