Anwar Ibrahim’s legal team appear to have either dug
themselves into a hole or through sheer negligence, incompetence or a
combination of both, allowed themselves to walk into a potential trap in his
second sodomy trial.
SKIRMISH’S ON EVIDENCE IN A VOIR DIRE
Illegally obtained evidence is now not simply subject to the
old English rules of evidence. It is
alsosubject to a variety of internationally recognized conventions on Human
Rights which have an overbearing influence on English law today.
At the outset one must identify and understand what type of
evidence as a general principle may be admitted in any proceeding. For evidence
to be admitted in court in any proceeding it must be relevant. Relevance
overrides any other consideration and is only tempered, not prohibited by the
equitable rules of fairness.
ILLEGALLY OBTAINED EVIDENCE
In brief illegally obtained evidence is evidence obtained in
breach of a person’s constitutional and legal rights. Illegality in this regard
in several liberal jurisdictions, includes a breach of the private rights of
individuals and evidence obtained in violation of prohibitions on torture,
inhuman or degrading treatment or punishment guaranteed by recognized
conventions on Human Rights and the local Constitution.
SOME BASIC ASSUMPTIONS AND THE POSITION OF ILLEGALLY
OBTAINED EVIDENCE
It is a fundamental principle of English law (and Malaysian
law) that in a criminal trial, the prosecution bears the burden of proving
every element of the guilt of the accused (subject to exceptions). The
principle also requires a presumption of innocence on the accused (subject to
exceptions). To prove guilt, the prosecution must therefore obtain and present
admissible evidence to support its position.
Importantly and contrary to populist myths on the subject,
the prosecution may resort to improper means to gather evidence in support of
their position; especially if obtaining evidence in conventional ways proves
unproductive.
This is a general proposition in law. (see Anton Pillar
Order and Mareva injunction in both civil and criminal law). Where for instance
there is a genuine fear that evidence may be destroyed or taken out of
jurisdiction the prosecution’s use of illegal and oppressive means to secure
that evidence has universal acceptance and with good reason. (see: Crompton J’s
dicta in R v Leatham).
EVIDENCE IS ADMISSIBLE WHERE IT IS RELEVANT
In criminal proceedings, all relevant evidence presented by
the parties is prima facie admissible. Courts generally adopt an inclusionary
approach towards evidence in order to favour the victim and ensure a fair
trial.
Courts have long admitted evidence into trials even if it
were stolen. The rationale for such an approach is that the court considers the
primary aim of the justice system to be the discovery of the truth and the
unearthing of guilt.
This is balanced between the protection of the accused’s
right to private life (which has no statutory protection in Malaysia) and the
states right uncover a wrong doing and to punish the offender. Nevertheless the
courts have discretion under s.78 Police and Criminal Evidence Act
1984(England) to exclude evidence which lacks relevance and which might, by its
admission, endanger fairness in proceedings.
SOME EXCEPTIONS TO THE RULE FOR BALANCE
This contrasts with the exclusionary approach of American
courts to illegally obtained evidence. Their approach seeks to balance between
the need to deter the police from unconstitutional behaviour against their
duties to enforce the law and to prevent crime. Although the UK courts do not
wish to encourage illegal methods to obtaining evidence on the part of the
police, discovering guilt is paramount to the processes of law and justice.
Real evidence (such as DNA) is by its nature generally
reliable. It is generally admitted unless to admit it would adversely affect
trial fairness. Because an accused is usually unable to establish that the
admission of the improperly obtained evidence would endanger trial fairness
(and thereby prevent its use against them). Other remedies at law are available
in such situaitons for the breach of their rights, namely compensation. Perhaps
Anwar’s lawyers ought to have considered such an approach.
When real evidence has been excluded, this is usually a
result of a breach of a suspect’s right against self- incrimination, another
fundamental right of the accused.; or due to gross and deliberate police
misconduct ( the application of these conventions and laws are absent in the
Malaysian evidence legislation).
Again here it must be noted that Anwar has long complained
of inhumane and degrading treatment at the hands of his interrogators and
accusers. If it were not mere rhetoric, then surely these allegations ought to
have been the ventilated in court and made the subject of more than mere
rhetoric in legal argument. Anwar ought to have detailed and particularised
these allegations so that it could have been more properly tested in open
court.
DISCRETION TO EXCLUDE- NOT A DISCRETION TO INCLUDE
Finally the discretion a judge has in respect to
admissibility of evidence is a discretion to exclude and not a discretion to
include evidence. In the end the judge ought to have been called to exercise
his discretion by Anwar’s lawyers. What comes out of the Voire Dire now is a
matter for speculation. Anwar’s lawyers appear once more to have tightened the
noose around his neck standing on a rickety platform.
copyright: Gopal Raj Kumar @ GR Kumar (Blogsite)
No comments:
Post a Comment