Inequality of Arms: The Right to Disclosure in Malaysia by Bill Grimshaw

ARCHIVES 2013

By admin-s On Oct 1, 2013

I’m afraid a little scrutiny of the law shows that when it comes to disclosure, the first lofty statement about sacrosanct fair trials is merely used to distract from the true position: trial by ambush.

Bill Grimshaw of Reprieve Australia outlines Malaysia’s record on fair trials and the right to disclosure — how does it hold up to the standards of justice?

Reprieve Australia is a not-for-profit organisation committed to the abolition of the death penalty worldwide. One of the things Reprieve Australia does is organise placements for volunteers whose role is to assist local lawyers as they defend accused people facing the death penalty. Carrie O’Shea and I are Australian criminal defence lawyers and Reprieve Australia volunteers. We are currently in KL doing some legal research we hope will be used to overcome or limit Malaysia’s use of the death penalty.

Our research on the death penalty has led us to the unhappy subject of the Malaysian approach to disclosure in criminal trials. Disclosure of the prosecution case to the defence is one of the hallmarks of a fair trial. In Malaysia, as well as the rest of the common law world, a criminal trial is an adversarial proceeding in which one of the adversaries – the State – has far greater investigative resources and powers than its opponent, the accused. In order to be fairly tried, the accused must be given notice or disclosure of the case against him (it’s usually a him), and be given proper opportunity to prepare a defence to it. This idea is known as the ‘equality of arms’ principle.

So does Malaysian law allow for proper disclosure in criminal trials? The polite answer is: There is much room for improvement. The blunt answer is: Absolutely not. And yes, this means people are being sent to the gallows without a fair trial.

A glance at the relevant law might give the impression that there’s nothing to worry about. After all, in a recent case on disclosure, the Federal Court contained the following reassuring words:

“The principle of a fair trial is sacrosanct in all civilised legal jurisdictions. It is a principle of universal application. In Malaysia the principle of fair trial and fairness have been long established and recognised in several decisions.[1]”

So what’s the problem? The courts have said that everyone gets a fair trial, so surely they do. If only that were true. Sadly, the very same cases in which the “sacrosanct” right to a fair trial is said to have been “long-established” maintain what seems to be a more dearly cherished rule:

“[The accused] is not entitled to know by what means the prosecution proposes to prove the facts underlying the charges he faces.[2]”

These startling words should not be found outside a policeman’s wildest law-reform fantasies. They are tantamount to saying, “The accused is not entitled to a fair trial”. So which judicial statement better reflects the Malaysian position on disclosure and the right to a fair trial? Is a fair trial really sacrosanct? Or when courts are asked to apply this principle, are they instead guided by the principle of non-disclosure of the prosecution case? I’m afraid a little scrutiny of the law shows that when it comes to disclosure, the first lofty statement about sacrosanct fair trials is merely used to distract from the true position: trial by ambush.

Trial by ambush is the opposite of a fair trial. It involves the defence discovering the prosecution case only as it unfolds in court. Although Malaysian criminal law makes some provision for disclosure of the prosecution case, Malaysian trials allow prosecutors too great a measure of surprise.