RIGHT TO ACCESS THE WITNESS STATEMENTS: SITI AISYAH v PUBLIC PROSECUTOR [2019] 4 MLJ 46

 

Introduction

Section 51 Criminal Procedure Code allows an accused person to apply for the production of documents relating to the police investigation. However, the accused person is not entitled to discover or inspect evidence or material in the possession of the prosecution before the commencement of the trial except as what is provided for under section 51A CPC. 

In the application, the accused person must show that the production of the documents is necessary or desirable for the purpose of any trial.

One of the important documents for the defence is the police statement given by the witness under section 112 CPC. The question is whether the accused person has a right to inspect the police statement under section 112 CPC which was claimed to be an absolute privilege document.

Federal Court's decision in Husdi v PP [1980] 1 LNS 29

Syed Othman FJ stated that a police statement was a requirement of written law in the form of section 112 of the CPC. However, the right to inspect a police statement was not stated in the CPC or the Evidence Act 1950. 

His lordship refers to two Indian cases, Methuram Dass v Jagannath Dass ILR 28 Cal 794 and Martin Rhienus v Sher Singh [1949] MLJ 201. However, these two cases were not a case about disclosure of police statements in a criminal trial but a claim for damages for defamation in respect of a statement made in a police investigation. 

Syed Othman FJ’s view was that once a police statement is held to be absolutely privileged for one judicial purpose (privilege for actions in defamation), it is privileged for other purposes (prohibition against disclosure in a criminal trial).

Siti Aisyah v PP [2019] 7 CLJ 33

Material Facts

The appellant who had been charged with murder under section 302 of the Penal Code, made an application under section 51 CPC for an order to direct the prosecution to provide police statements given by seven witnesses. 

The High Court dismissed the application as the police statements were not subject to disclosure. The police statements were absolutely privileged documents. 

Issue

Whether the accused person is entitled to the police statement recorded under section 112 of the Criminal Procedure Code?

Decision

The Court of Appeal allowed the appeal and set aside the order of the High Court. A copy of the police statements is to be provided to the appellant.

Court of Appeal’s Judgement

Harmindar Singh Dhaliwal JCA delivering the judgment:

Police Statements are Not Privileged

1. Several statutory provisions which allow a police statements to be admitted in evidence in certain circumstances show that the police statements are not intended to be a privileged document. 
2. The circumstances are:
• Challenging and impeaching credit of witness by intervention and order production of section 112 CPC statement.
• Duty of prosecution to deliver certain documents to accused before the commencement of trial under section 51A CPC. 
• An offence for giving false evidence under section 193 of the Penal Code.
• Communication between the maker of the statement and the police officer is not confidential communication under section 124 EA 1950.
• Section 32(1)(i) and (j) of the Evidence Act 1950 deems the police statement given by a person who is dead or cannot be found to be potentially admissible in evidence. (Exception to hearsay rule)
3. Admissibility of police statements is subject to rules of relevancy and rules of exclusion. However, there is no statutory provision that allows or prohibit the disclosure of police statement.
4. The common law of English stated that if there is no good reason for non-disclosure, the prosecution has a duty to disclose and provide witness statements to the defence.

Production of the Police Statements are Necessary and Desirable

1. The role of the 7 witnesses and the relevance of their evidence during the prosecution stage.
2. The police statement may assist the defence case.
3. The application was made at the end of the prosecution stage and not before the prosecution stage where the judge shall see the necessity to inspect the prosecution’s witness statement.

Commentary

It is important to be highlighted that in Malaysia, the only authority for the proposition of absolute privilege of police statement is that of Husdi case. The decision in Husdi v PP should no longer be followed as it is against the common law duty of the prosecution to disclose to the defence the police statements of the witnesses offered to the defence which were necessary and desirable to their case. To ensure a fair trial, a disclosure of necessary and desirable documents should be allowed.