23 MAY 2016 PRESS SUMMARY FEDERAL COURT OF MALAYSIA Dato’ Seri Anwar bin Ibrahim v. Public Prosecutor [Criminal Application No: 05-47-03/2014(W)] JUSTICES: Zulkefli bin Ahmad Makinudin (CJM), Richard Malanjum (CJSS), Hasan bin Lah, Abu Samah bin Nordin, Zaharah binti Ibrahim (FFCJ) BACKGROUND TO THE APPLICATION This is an application by the applicant, Dato’ Seri Anwar Ibrahim, by way of motion for the oral testimony of Dato’ Ramli bin Yusuff [“Dato’ Ramli”] to be taken by this Court pursuant to section 93 of the Courts of the Judicature Act 1964 [“CJA 1964”]. The oral testimony of Dato’ Ramli is sought to be used as evidence at the hearing of his application dated April 30, 2015 for the exercise of inherent jurisdiction by this Court under rule 137 of the Rules of the Federal Court 1995 [“RFC 1995”] to review his case. This Court had earlier dismissed on February 10, 2015 the applicant’s appeal 1 against the decision of the Court of Appeal in allowing the appeal by the Public Prosecutor against the decision of the High Court in acquitting and discharging the applicant for the offence of sodomy punishable under section 377B of the Penal Code. [1] In the affidavit in support of his application the applicant exhibited the witness statement given by Dato’ Ramli as part of Dato’ Ramli’s sworn testimony in the case of Kuala Lumpur High Court Civil Suit No. S-221-249- 2009 [“the Civil Suit”]. The factual circumstances as narrated in the witness statement of Dato’ Ramli in the said Civil Suit are in relation to the so-called “black-eye” incident wherein the applicant had suffered injury in his eye as a result of being punched by the former Inspector General of Police Tan Sri Abdul Rahim Noor and the alleged conspiracy by the former Attorney General Tan Sri Gani Patail and the former IGP Tan Sri Musa Hassan to stage a cover-up of the incident. [2] Learned counsel for the applicant, Gopal Sri Ram, conceded that there is no specific provision in the CJA 1964 or in the RFC 1995 dealing with the adducing of further evidence at the hearing of a review application. The only provision for the adducing of additional evidence is section 93(1) of CJA 1964 which applies to appeals and not to review. [4] However, for the applicant it was contended that it is still open to the Federal Court to invoke its inherent power under rule 137 to permit the further evidence. On our rule 137 there is an equivalent provision in section 151 of the Indian Civil Procedure Code 1908 for reference. The position taken by learned counsel is that this provision may be invoked to 2 do justice provided that there is no prohibition in the written law or in the rules and there is no specific provision covering the same topic. [5] The point of contention for the applicant is that in this case the Federal Court in its written judgment at paragraph 205 in dismissing the applicant’s appeal held that the allegation of a political conspiracy remained unsubstantiated by any credible evidence. The additional evidence the applicant now seeks admission of relates to similar fact evidence to show a system that is consistent with an intention to frame the applicant. This is relevant evidence under section 14 of the Evidence Act 1950 and may therefore be relied upon by the applicant to bring home his case. [6] It was also submitted for the applicant that this being a criminal case and in particular falling within rule 137, the case of Ladd v. Marshall [1954] 3 All ER 745 conditions do not apply. Even if this had been an application made in the appeal proper, it is only of necessity that this is a governing factor. It was impressed upon us that in interpreting the similarly worded section 317(1) of our Criminal Procedure Code [“CPC”] and section 391 of the Indian Criminal Procedure Code, courts should hold that the discretion is to be exercised in the interests of justice. [7] Learned counsel for the applicant further contended that in our present case the evidence of Dato’ Ramli sought to be adduced shows a pre- arranged plan similar to the “black eye” incident to frame the applicant. The conduct in the earlier case may be used to show an intention to injure the applicant. At this stage the court is only concerned with the 3 admissibility of the evidence and not its weight. The probative value that is to be attached to the additional evidence is a factor that only arises when considering the evidence in the context of the application to review. [8] The respondent opposed the applicant’s application essentially on two main issues. Firstly, it is the contention of the respondent that section 93 of the CJA 1964 cannot be invoked in regard to an application for a review under rule 137 of RFC 1995. Secondly, the additional evidence that is sought to be admitted does not meet the threshold requirement as specified by the relevant laws and under the principle laid out in the decided case authorities. [9] JUDGMENT The application is dismissed. Zulkefli bin Ahmad Makinudin (CJM) delivers the judgment of the Court with which Richard Malanjum (CJSS), Hasan bin Lah, Abu Samah bin Nordin, Zaharah binti Ibrahim (FFCJ) agree. REASONS FOR THE JUDGMENT We shall first deal with the first issue as to whether section 93 of the CJA 1964 can be invoked with regard to an application under rule 137 of the RFC 1995. It is our considered view that the scope and application of rule 137 of the RFC 1995 is well settled. Rule 137 is a declaratory provision that must be strictly confined to procedural matters only. Rule 137 gives the Federal Court the limited “inherent power” or “inherent jurisdiction” to hear any application or to make any order to prevent injustice or to prevent 4 an abuse of the court process. It does not confer upon the Federal Court a statutory jurisdiction or a new jurisdiction to hear any application to review its own decision. It does not provide for a means of an appeal to the Federal Court against its own decision. [10] We are also of the view that rule 137 when applied should not be exercised liberally but sparingly. It is only applicable to very exceptional cases where significant injustice had occurred. It is to remedy any injustice arising from procedural unfairness due to circumstances such as Coram failure, infringement and wrong application of statutory laws; decision obtained by fraud or suppression of evidence; breach of the rule of natural justice or that the decision was tainted by actual bias or a real danger of bias on the part of one or more members of the panel hearing the case. It is our finding that the applicant’s application for admission of additional evidence does not fall within any of the exceptional circumstances to justify us to exercise our inherent jurisdiction under the said rule 137. It can be examined and concluded from the Records of Proceeding of the applicant’s case that the proceedings were all carried out in accordance with established legal principles. It is to be noted here that the applicant’s case had undergone a full and lengthy trial and two-tier appeals at the Court of Appeal and the Federal Court. [11] Further, it is our judgment that the applicant’s application is unsustainable as section 93 of the CJA 1964 is only designed for the inclusion of additional evidence in an appeal before this Court and not with regard to an application for the exercise of the inherent power of the Court to hear an application under rule 137 of the RFC 1995. [12] 5 We agree with the submission of the learned DPP that the jurisdiction in relation to appeals are provided for separately from that over applications for the exercise of inherent jurisdiction under rule 137 of the RFC 1995. The two jurisdictions - one in relation to appeals and the other in relation to reviews - cannot be said to be one and the same but are legally distinct and different in their scope of application. [13] We are of the view that the procedure for admission of additional evidence under section 93 CJA 1964 is only applicable specifically under the jurisdiction of the Appellate Court by means of rehearing but not through a reviewing process. The use of section 93 of the CJA 1964 by the applicant is therefore tantamount to an abuse of the court process since this application constitutes an attempt to bring additional evidence under a review application. [14] Even assuming that section 93 of the CJA 1964 can be invoked in regard to an application under rule 137 of RFC 1995, the applicant has still to meet the next stage requirement of whether the additional evidence sought to be admitted satisfies the requirement as provided for under section 93 of the CJA 1995; and the requirements under the principles as set out in the case of R v Parks [1961] 3 All ER 633 and other decided case authorities. [15] We shall now deal with this second issue as to whether the threshold requirement for admission of additional evidence in an appeal and in the 6 context of the present case in a review application has been complied with. [16] It is to be noted under section 93 of the CJA 1964, it must be shown that it is “necessary” to admit the additional evidence sought for by the applicant. The applicant has to show that a failure of justice would result should the additional evidence not be admitted by the Court. In the conduct of a criminal trial all the necessary evidence available must be produced during the trial stage of the case and not during the appeal stage. A trial cannot be by instalment. Admission of additional evidence at an appellate stage would only be resorted to when the Court is of the opinion that such evidence is necessary for the justice of the case and not as a matter of practice. [17] It is our considered view that the applicant has failed to satisfy the requirement of section 93 of the CJA 1964. Based on the records of proceeding before the trial Judge of the High Court and before the Court of Appeal and the Federal Court the applicant was given a fair trial and hearing. In fact at the conclusion of the trial the learned Judge of the High Court had acquitted and discharged the applicant. There was an overwhelming amount of evidence available for the Court to decide on the guilt or otherwise of the applicant. There is no necessity to resort to outside information. [18] It is our finding that for the present case there was no involvement of parties alleged to have conspired to fabricate the evidence as to what had 7 allegedly taken place in the black eye incident. The respondent in the Affidavit-in-Reply to the applicant’s application had categorically denied the involvement of Tan Sri Abdul Gani Patail (the former Attorney General) and Tan Sri Musa Hassan (the former Inspector General of Police) in the fabrication of the evidence in the present case. It was stated that both Tan Sri Abdul Gani Patail and Tan Sri Musa Hassan had discharged themselves from playing a role in the investigation and in the prosecution of the applicant’s case. It was further stated that in fact it was Tan Sri Idrus Harun (the former Solicitor General) who gave the decision to prosecute and to appeal against the decision of the High Court in acquitting and discharging the applicant. [19] It was further submitted for the respondent that in the interest of justice the Attorney General had appointed a third party to carry out the appeal process in the applicant’s case at the Court of Appeal and at the Federal Court due to the fact that the Attorney General Chambers of Malaysia was claimed to be biased towards the Government and practised selective prosecution in framing the charge against the applicant. In doing so Tan Sri Muhammad Shafee Abdullah was duly appointed under section 376(3) and section 379 of the CPC read together with Article 145(3) of the Federal Constitution to conduct and lead the prosecution team at the hearing of the appeals at the Court of Appeal and the Federal Court. On the allegation of conflict of interest against Tan Sri Muhammad Shafee Abdullah on his appointment the Federal Court in their decision found Tan Sri Muhammad Shafee to be a fit and proper person to be appointed under section 376(3) of the CPC as no evidence was tendered by the applicant to prove that there was such a conflict of interest. [20] 8 We shall now deal with the issue as to whether the principles laid down in the case of R v. Parks (supra) for admission of additional evidence have been complied with by the applicant. The English Court of Criminal Appeal in R v. Parks decided to expand the jurisprudence and requirements as propounded in Ladd v. Marshall (supra) for admission of additional evidence and ruled that four (4) requirements need to be adhered to as follows: Firstly, the evidence that is sought to be called must be evidence which was not available at the trial. Secondly, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible in the sense that it is well capable of belief. Fourthly, the Court will after considering the evidence go on to consider whether there might have been reasonable doubt in the minds of the Jury as to the guilt of the accused person if that evidence had been given together with the other evidence at the trial. [21] As regards the position in Malaysia on the admission of additional evidence the common law principle was adopted into our local jurisdiction wherein our courts have held that the said four (4) requirements have to be fulfilled cumulatively. [22] We are of the view that the applicant had failed to comply with the pre- requisites in R v. Parks that the evidence that is sought to be admitted was 9 not available at the trial or at the hearing of the applicant’s appeal before the Court of Appeal and the Federal Court. On this point we would refer to the Statutory Declaration (SD) of a police officer, Dato’ Mat Zain bin Ibrahim [“Dato’ Mat Zain”] affirmed on 7 October 2013 wherein had been highlighted the same allegation on the conspiracy to fabricate evidence in the black eye incident and the persons who had been involved in the said conspiracy. This SD of Dato’ Mat Zain was exhibited by the applicant in his affidavit in support affirmed on 5 December 2013 to substantiate his case on the application to disqualify Tan Sri Muhammad Shafee Abdullah as lead counsel in the prosecution’s appeal against the acquittal of the applicant by the High Court in the present case. [23] It is our finding that the applicant by exhibiting this SD of Dato’ Mat Zain showed that the applicant knew about the alleged conspiracy even before Dato’ Ramli gave his testimony on May 27, 2015 in the said Civil Suit. This same evidence on fabrication of evidence was therefore available throughout the hearing of the appeal of the applicant’s case at the Federal Court which ended on 7 November 2014. [24] We are also of the view that the evidence of Dato’ Ramli that the applicant applies to be taken by this Court is irrelevant to the issues raised by the applicant. There is no nexus between the testimony of Dato’ Ramli and the defence of the applicant for his case. We find nothing in the testimony of Dato’ Ramli that would disclose any evidence in relation to the applicant’s defence of political conspiracy. The evidence of Dato’ Ramli would be futile in the circumstances of the case. Given that the case on the black eye incident and the conspiracy to fabricate the evidence on the incident had 10