Will Anwar be ambushed by trial?

(Mis)Interpreting the Criminal Procedure Code

However, the Court of Appeal in Anwar’s sodomy case decided there were “limits” as to the kind of evidence the prosecution could be asked to produce before a trial. Hence, it overturned the High Court’s decision ordering the prosecution to hand over evidence, which included video footage, medical reports, doctors’ notes, and witness statements of alleged victim Mohd Saiful Bukhari Azlan, and others.

By Deborah Loh, The Nut Graph

DATUK Seri Anwar Ibrahim has failed in his bid, at the Court of Appeal, to obtain evidence from the public prosecutor about his alleged act of sodomy with a young former aide. Layperson reactions have naturally been cynical, dismissing the judgment as political in nature.

Indeed, the Court of Appeal’s interpretation of Section 51A of the Criminal Procedure Code (CPC), by which it made its judgment, is worrisome from a justice perspective. The judgment nullifies the efforts of the parliamentary select committee which proposed the CPC amendments in 2006 requiring pre-trial disclosure by the prosecution to the defence. The legislature’s intention was to “prevent trial by ambush” but the Court of Appeal’s judgment in Anwar’s sodomy case seems to overturn that principle.

But is Section 51A as clear cut as it is meant to be? And is splitting hairs over its meaning scuppering Anwar’s chances for a fair trial?

Meaning of words

Section 51A was introduced to widen the scope of evidence that the defence could obtain from the prosecution. At first reading, it comes across as a clear obligation for the prosecution to make available to the defence evidence that it intends to use during trial.

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