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A controversial question of evidence law - which I realise is not at the heart of either of the lists I post this to - has emerged in Malaysia in the even more controversial corruption conviction (now appeal) and the on-going sodomy trial of former Malaysian Deputy Prime Minister, Anwar Ibrahim. I wonder if list members could assist me - with reference to evidence law in their respect jurisdictions - to unravel this question.

During the course of the (no jury) corruption trial in the High Court, Paul J prevented a number of defence witnesses from taking the standing arguing that he found their evidence irrelevant. The defence argued that - given that the witnesses were on the list and had been properly subpoenaed - the judge could not ask counsel to explain the relevance of their testimony prior to their taking the stand. However, Paul J ruled that under the Malaysian Evidence Act 1950 the defence does not have an automatic right to call a person as a witness and that the court is empowered to enquire into the relevancy of the proposed witness before the witness gives evidence.

He based his ruling on section 136(1) of the 1950 Act which provides that: "When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise." Moreover he said that admissibility of evidence is as a matter of law for the judge to determine, and concluded: "[I]f it is the duty of the judge to admit all relevant [and admissible] evidence, it is no less his duty to exclude all irrelevant evidence". Accordingly, if the defence could not show how the alleged fact would be relevant, the judge could disallow such evidence if he is of the view that it is irrelevant.(For all of this see [1999] 2 MLJ (Malayan Law Journal) 1, 174, 175, 177). This ruling of Paul J is now being challenged on appeal to the Court of Appeal.

In the second on-going sodomy trial of the former DPM, the same question has arisen in respect of whether the defence can call the Prime Minister, Dr Mahathir Mohamed, to the stand. He has been served with a subpoena and is on the witness list. The prosecution has argued that his evidence is irrelevant and so he should not be called. The trial judge, Arifin Jaka J, has adjourned the trial to hear arguments from counsel over the next week. The reason why the defence wants to call the Prime Minister is to establish that there was a high level political conspiracy to oust the accused. The trial judge has already said that to him the allegation of political conspiracy without it being connected directly to the charges was irrelevant.

What would the positions be in your respective jurisdictions in such circumstances?

Louis Joseph

p.s. If, like me, you are on both lists you will be double posted. I apologise for that.