Anwar Ibrahim and Improperly Obtained Evidence

ANWARS BATTLE WHERE TO NOW

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 also subject 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.

GR Kumar