The court made the ruling on Nov 6 when allowing the prosecution's appeal against a High Court order to release documents and other information sought by Datuk Seri Anwar Ibrahim (picture) under section 51 and 51A of the Criminal Procedure Code to prepare his defence against his sodomy charges.
In his written judgment dated Dec 21 and obtained by the media today, Appeal Court judge Datuk Hasan Lah said the High Court judge had erred when ordering the prosecution to supply the documents and materials to Anwar.
The appeal court construed section 51 strictly and limited its discretionary power with regard to the application for discovery of documents at the pre-trial stage.
"Except as what is provided for under section 51A of the code, the respondent is not entitled to discover or inspect evidence or material in the possession of the prosecution before the commencement of the trial," he said.
On Nov 6, Hasan, justices Datuk Wira Abu Samah Nordin and Datuk Sulaiman Daud unanimously allowed the prosecution's appeal against the High Court order compelling it to supply key documents to Anwar.
The notice of motion filed by Anwar on June 10 sought to compel the prosecution to produce documents and materials, including the recorded witness statements of Mohd Saiful Bukhari Azlan, statements of three doctors from Kuala Lumpur Hospital, chemist's notes, medical reports and DNA samples.
Anwar, who is charged with sodomising Mohd Saiful, 24, his former aide, at a condominium in Bukit Damansara, Kuala Lumpur on June 26, last year, contended that the documents were important and imperative for the preparation of his defence.
On July 16, High Court judge Datuk Mohamad Zabidin Mohd Diah granted Anwar's application. Hasan said the High Court judge erred in ordering the prosecution to supply Anwar documents and materials as it was outside the scope of section 51.
"We were of the view that the object of the respondent's application for CCTV recordings allegedly taken from the guardhouse of the condominium was merely to fish out information. The respondent therefore is not entitled to obtain the original CCTV recordings before the commencement of the trial," he said.
In respect of the High Court order for production of the witnesses' statements, Hasan said that as a matter of public policy it was undesirable for the prosecution to supply the defence with the police statements as there was is a real danger of tampering with witnesses.
On the issue of materials sought by Anwar under section 51A, Hasan said the section referred to documents only, and therefore the court set aside the order for the discovery of the slides and pictures of the DNA testing.
"We agree with the submission of the learned Solicitor-General that the wording of section 51A is very clear in that what the prosecution is required to supply are those documents expressly stipulated therein," he said.
Anwar was represented by counsel Karpal Singh and 11 others, while the prosecution team was led by Solicitor-General II Datuk Mohamed Yusof Zainal Abiden. The sodomy trial is set for hearing on Jan 25 next year. — Bernama
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