Altantuya Case: Judge Blocks Access To Prosecution Witnesses' Statements Before Trial

The three accused facing charges relating to the murder of Mongolian national Altantuya Shaariibuu failed in their attempt in the High Court here today to gain access to the prosecution witnesses' statements before the commencement of the trial on Monday.

Justice Mohamed Zaki Yassin rejected their application on the ground that there was no provision in the Criminal Procedure Code (CPC) and Evidence Act that gives an accused person the right to inspect the statements recorded from witnesses by the police under Section 112 of the CPC.

He said he was bound by a Federal Court decision in the case of Husdi v PP (1979) MLJ 80 (Husdi No 1) that witnesses statements were absolute privileged documents and the defence did not have the right of access to the statements.

However, it was a win-win situation as the judge also held that the defence had the privilege, as held in the same case, to obtain the witnesses' statements only after the witnesses had testified in the trial, for the purpose of impeaching the witnesses.

The trial will proceed on Monday although counsel Kamarul Hisham Kamaruddin, representing Kpl Sirul Azhar Umar, will challenge today's decision in the Court of Appeal. He did not ask the court to stay the proceedings pending the disposal of his appeal.

Kpl Sirul Azhar, 35, had filed a formal application seeking a court order to compel the prosecution to provide them with the 112 witnesses statements and his application was supported by Chief Insp Azilah Hadri, 30, and political analyst Abdul Razak Abdullah Baginda, 46.

Azilah's newly-appointed lawyer, Hazman Ahmad, who replaced counsel Zulkefli Noordin, informed the court that they were supporting Sirul Azhar's application.

Azilah and Sirul Azhar were charged with murdering Altantuya, 28, in Lot 12843 and Lot 16735, Mukim Bukit Raja, Selangor, between 10pm on Oct 19 and 1am on Oct 20 last year. Abdul Razak is charged with abetting the policemen from the Special Force Unit to commit the murder at Bangunan Getah Asli in Jalan Ampang, Kuala Lumpur, between 9.54am and 11.05am on Oct 18 last year.

All three face the death penalty if convicted.

Altantuya's remains, blown to bits with explosives, were found in a forest area in Puncak Alam, Shah Alam, on Nov 7 last year.

In his oral judgment, Mohamed Zaki said the court should not apply the common law of England and Wales which allowed accused persons to inspect police statements as there was already a provision in Malaysia governing that issue and no lacuna in Malaysia with regard to supply of document.

Therefore, the judge said, he found it unnecessary to make any reference to the England and Brunei cases referred to by counsel Kamarul Hisham who had urged the court to adopt the common law of England and Wales on the disclosure of statements to the accused.

"I can find no provision which can give the right to the accused to inspect the witnesses' statements. It doesn't matter that there are witnesses who are not potential to testify for or against the accused. The prosecution has no duty to supply the witnesses statements to the defence. I am of the view that it is undesirable for the prosecution to provide witnesses' statements to the defence as there is a real danger of tampering of witnesses," he said.

Kamarul Hisham told reporters that he would invoke their right to ask the court to examine the 112 witnesses statements and if there was contradiction (with their oral evidence in court) he would apply for the statements to be supplied to the defence to impeach the witnesses.

In his application, Sirul Azhar had asked the prosecution to provide him with the autopsy report, chemist reports, dental report, radiologist examination report and laboratory report and was supplied with the documents except for the 112 witneses statements which the prosecution refused to disclose to the defence.

All the accused were not present in court. (Bernama)
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