Friday, August 17, 2018

MADPET - Fair Trial for Najib, Pre-Trial Disclosure laws need to be improved to ensure justice?

Media Statement – 17/8/2018

Everyone including Najib deserves a Fair Trial, and prosecution should never delay disclosure of or ‘hide’ evidence, including facts which may be favourable to the accused

-Malaysian Pre-trial disclosure laws need to be amended, to ensure no miscarriage of justice and a fair trial-

MADPET(Malaysians Against Death Penalty and Torture) notes that Najib Abdul Razak, our former Prime Minister, like everyone else in Malaysia, have the right to be accorded a fair trial. This includes the right to have all evidence and facts delivered to the accused soon after he/she has been charged, to enable the accused the needed time and opportunity to prepare his/her defence. 

The prosecution should be interested in the truth and that justice is done, not simply the winning of a case by any means. There should be no delay in pre-trial disclosure obligations, no suppression of evidence or facts, and certainly no ‘surprising’ of the accused at trial at the last minute with previously undisclosed evidence. 

In Malaysia, the obligation in written law requiring the prosecution to disclose to the accused relevant facts and evidence to enable the defence time to investigate, verify and even prepare their defence was very late in coming.

After several attempts in courts, for the recognition of pre-trial disclosure of evidence, documents and facts before the trial, as being a fundamental requirement to ensure a fair trial, Parliament did amend the law in 2006, inserting of the new section 51A in the Criminal Procedure Code, which now makes pre-trial disclosure by the prosecution obligatory. 

Sadly, there still are many inadequacies in this new section 51A, including also the provision which still allows the prosecution to ‘hide’ certain facts that may be favourable for the accused.  

Prosecution should submit everything, including also all evidence, documents and facts favourable to the accused persons. This should rightly include all reports and also all statements recorded during the investigations. Other evidence and information, discovered later, should also be submitted to the accused person as soon as possible.

The accused person should have the time to do their own investigation about this alleged evidence and/or witnesses, which prosecution has obtained. The accused people also have the right to interview before trial all possible witnesses of the prosecution, and others in their preparation of their defence in a case. 

A good defence lawyer will generally not simply go blindly and unprepared to court, and simply wait for prosecution to submit their evidence, and then try to challenge these evidence and/or witnesses as it is revealed. A good lawyer would have also conduct their own investigations, including of the potential witnesses and evidence the prosecution may be submitting. Full pre-trial disclosure allows this to be done, as this may reveal flaws in witnesses and/or evidence presented by the prosecution during trial, that are most relevant for judges in determining the weight that should be given to such pieces of evidence. 

Many Malaysians may now be angry with what Najib and the previous government did while in power, but this should really not affect our uncompromising commitment to justice, rule of law and the right to a fair trial for all.


Section 51A still is inadequate, as it still does not state clearly the time for the delivery of these material to the accused person, and all that is stated now is that this delivery must be done ‘before the commencement of the trial’. This is vague, and as such it could be done even minutes before the trial starts, with the calling of the first witness. 

Rightly, it should be submitted as soon as the accused is charged, and thereafter for other new evidence, as soon as prosecution has it. 

In the case of Najib, it is most disturbing that these documents were not delivered to the accused soon after he was charged on 4/7/2018, but allegedly only on 8/8/2018. As such Najib’s defence team may have been prejudiced by this delay of more than a month.(Malaysiakini, 9/8/2018)

The documents were also allegedly delivered in a CD format, which hopefully were coloured copies of the said original documents, because just delivering black and white photocopies of original documents in colour will simply not do. The Defence have a right to know whether prosecution has original documents or just mere photocopies. 

Previously, these documents would have been delivered as printed bundles, but not in a CD format. Even if delivered in a CD format, it really may be best that still a Bundle of documents are provided to the accused, as not all lawyers may have the same version of the programs in their computers under which these documents were created in, or even printers that will print accurately the documents in the same sizes in which the original is in.


There is now a requirement to provide the First Information Report(FIR), being really the report that initiated the investigations. Then, there is an obligation to provide ‘…(b) a copy of any document which would be tendered as part of the evidence for the prosecution;…’, but what about the other documents that may be available which the prosecution will not use during trial. 

Justly, all documents should be made available to the accused. This must include all witness statements recorded during the investigations, including reports of all police officers involving the conducting of investigations, statements recorded from witnesses, report of identification parades, all reports of tests conducted, letters and correspondences between the police/prosecutors to governments/institutions done during the investigations and other relevant documents.


Section 51A(1)(c)  now, states that prosecution must provide ‘… (c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution…. ‘, but then Section 51A(2) states, “Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.’. This means favourable facts could simply be hidden from the accused, and may even not being revealed in court. This is grossly unjust to the accused person, and undermines the right to a fair trial and justice. 

The decision of what is ‘contrary to public interest’ seems to be now with the prosecution, when it really should be a decision of the court, after according the right to be heard to both the accused and the prosecution. 

However, what is best is that there is no withholding of facts and/or evidence when it comes to a criminal trial, where a conviction may result in imprisonment, corporal punishment (whipping) and even the death penalty.

Deciding what is relevant or even ‘favourable to the accused’ may differ from person to person. As such, it is safe for the prosecution to simply disclose not just all facts, but also all documents and/or evidence to the accused. Even if something maybe considered not relevant by the prosecution, the accused and even the court may consider it relevant. A failure of the prosecution to provide disclosure of such material may result in a miscarriage of justice.

It is today a well-established and accepted principle that the disclosure of material which is in the possession of the prosecution to the defence case is an important and fundamental ingredient of a fair trial. 

We certainly do not want any person to be wrongly convicted by reason of action/omission on the part of the prosecution and/or the police, which may include the suppression of relevant facts and evidence, as did happen in many cases in the past like the famous Guildford Four and Birmingham Six cases. Sadly, in some cases, truth is revealed after the convicted have already been executed by the State.


Najib’s case may have highlighted this concern about pre-trial disclosure by the prosecution in a criminal trial, but this is a concern for all in Malaysia that are charged in criminal courts. 

The new Pakatan Harapan led government, who has repeatedly stressed their commitment to Rule of Law and justice, must now speedily amend our laws to guarantee full pre-trial disclosure, that should happen timeously, preferably immediately after an accused person is charged.

In the criminal justice system, a person may have done wrong, but to convict a person of a crime, prosecution has a high burden of proof – beyond reasonable doubt, and this is so to ensure that there is less chances of a miscarriage of justice. All that the defence need to establish is the existence of a reasonable doubt, and then the courts will not convict. 

Other reasons for a failure to convict, is the existence of bad laws or the non-existent of laws that make a wrongdoing a crime. The laws that protect public servants, including the Prime Minister, members of the executive and peoples’ representative really must be reviewed, and improved to make sure that no wrongdoings goes unpunished.

Malaysian should be committed to guarantee all in Malaysia the right to a fair trial, which also must mean the immediate abolition of all Detention Without Trial laws like the Prevention of Crime Act 1959 (POCA) and Prevention of Terrorism Act 2015, laws that allow persons, not accorded a fair trial to be detained or restricted without any fair trial.

100 days have lapsed, since the Pakatan Harapan led government came into power, but sadly what is done to date with regard to the much needed repeals of bad laws, which deny the right to a fair trial, or the amendment/enactment of laws that ensure greater protection of human rights has still not happened.

Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Relevant News Report

Najib's legal team cry foul over trial documents in CD form

Faisal Asyraf  |  Published:  |  Modified:
Former premier Najib Abdul Razak's defence team is expected to make a request in court tomorrow to have a bundle of trial documents under Section 51A of the Criminal Procedure Code be delivered to them in hardcopy form.

A source said the defence team viewed this issue seriously since they were only provided with a CD allegedly containing the trial documents yesterday.

They said this was after the prosecution team led by Attorney-General’s Chambers Trial and Appeals division head Mohd Hanafiah Zakaria gave out "excuses" in court that the documents were not ready.

"A member of the prosecution team had handed over the CD marked with the letter 'A' to the defence team yesterday.

"Earlier in court, they claimed that the documents were not ready," said the source, adding that the handover of the documents in the form of a CD was not a normal court practice and was 'clearly wrong'.

"There's supposed to be a form and the documents must be provided according to the index which must be signed by the receiver. The documents must be in hard copy," he said, adding that Najib was also perplexed with the handover of the CD.

The source said the head of Najib's defence team Muhammad Shafee Abdullah (above) was concerned that the documents in the CD may be incomplete, which would slow down the defence team in their preparation.

"They need to see the full documents so they can evaluate how strong is the case. And this includes seeing how credible are the witnesses."

The source added that the team may be running out of time as they have to conduct a "post-mortem" on the documents before the start of the trial which is expected in November.

"Why did they (the prosecution team) do this to the defence team? Do they have the ill-intention to deliberately slow down the defence team?" he asked.

Three counts

Yesterday, Shafee lamented that the defence team had requested for the documents several times in advance.

Najib has claimed trial to three charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, with four earlier charges being amended.

He is charged with three counts of money laundering with regards to three deposits into his AmIslamic Bank account between Dec 26, 2014, and Feb 10, 2015. The deposits were RM27 million, RM5 million and RM10 million respectively.

Under the Act, Najib stands to face a jail term of 15 years and a fine amounting to five times the money laundered if convicted. - Malaysiakini, 9/8/2018

Najib's lawyers cry foul over prosecutions' 'unfair tactics'

Datuk Seri Najib Razak’s legal team has cried foul over the ‘unfair tactics’ employed by the prosecution over the former prime minister’s criminal case proceedings. Pix by Mohamad Shahril Badri Saali
KUALA LUMPUR: Datuk Seri Najib Razak’s legal team has cried foul over the ‘unfair tactics’ employed by the prosecution over the former prime minister’s criminal case proceedings.

His lawyers claimed that the prosecution handed over a 355-page document and Najib’s written statement on the morning of the court proceedings, despite the defence having requested for it much earlier.

Najib’s led counsel Tan Sri Mohammad Shafee Abdullah said this reflected the prosecution’s unfairness and state of ill-preparation.

Speaking to reporters at the Jalan Duta Court Complex, Shafee said the defence had requested for the documents several times well in advance.

He claimed the prosecution, instead, chose to submit the documents on the morning of the proceedings, instead of on the day he was charged.

“They did not even submit the documents in physical form. The documents came in a CD this morning in the courtroom.

“They also just handed me my client’s written statement today. This should have been given on the day he (Najib) was charged.

“They said the documents were ready long time ago but I only received it today.

“This clearly show that they were not prepared,” he told reporters.

Shafee said due to these circumstances, he had pleaded Judge Mohd Nazlan Mohd Ghazali to ‘go easy’ on setting the trial date.

“We need to review the documents first.

“My client has a right to review the evidence in order for us to make our defence later on,” he said.

The documents are related to several charges, which Najib had claimed trial to on July 4. The charges are linked to SRC International Sdn Bhd.

Najib had claimed trial at the High Court on Wednesday morning to receiving more than RM40 million from illegal proceeds linked to SRC International.

He was alleged to have received RM42 million, in total, at an Am Islamic Bank branch via electronic funds transfer at Jalan Raja Chulan here between Dec 26, 2014, and Feb 10, 2015.

The offence falls under Section 4 (1) (b) of the Anti-Money Laundering and Anti-Terrorism Financing and Proceeds of Unlawful Activities Act.

Najib faces a maximum 15 years’ jail and no less than five times the amount of proceeds involved, or a RM5 million fine, whichever is higher, if convicted.

On July 4, Najib claimed trial to three counts of criminal breach of trust and another charge of abuse of power involving RM42 million linked to SRC International, a former subsidiary of 1Malaysia Development Bhd. - New Straits Times, 8/8/2018

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