JOHOR BARU: The High Court here has set aside a Sessions Court order for the prosecution to disclose a witness statement to Badrul Hisham Shaharin, better known as Chegubard, for his sedition case related to a casino project in Forest City.
High Court judge Justice Atan Mustaffa Yussof Ahmad said Tuesday (Jan 27) that the witness statement was recorded under Section 112 of the Criminal Procedure Code (CPC), and ruled that such statements are legally privileged and protected from disclosure.
He made the ruling during a judicial review hearing filed by the prosecution, which sought to reverse the Sessions Court’s direction involving the statement of a witness, Bloomberg journalist S. Ram Anand.
The Sessions Court had on Dec 11 allowed an application by the accused’s defence counsel for the disclosure of the statement.
The prosecution subsequently applied for a stay of the order pending a revision under Section 323(1) of the CPC, citing serious public interest implications, which was granted.
The prosecution argued that witness statements recorded under Section 112 are classified "Confidential" and constitute documents that are "absolutely privileged", as established by binding Federal Court precedents.
Justice Atan Mustaffa agreed, noting that the Federal Court had consistently held that Section 112 statements are privileged on grounds of public policy, confidentiality under Section 124 of the Evidence Act 1950, and the real risk of witness interference.
"The binding authorities from the Federal Court are clear and unequivocal that witness statements recorded under Section 112 of the CPC are absolutely privileged," he said in his judgment.
He also noted that Ram Anand had already been interviewed by the defence and remained available as a witness, negating any claim that disclosure was necessary to avoid a miscarriage of justice.
Justice Atan Mustaffa further held that the Sessions Court judge erred in directing the prosecution to disclose a witness statement to Badrul Hisham’s defence council.
"Lower courts have no discretion to depart from the settled position simply by following a Court of Appeal decision that predates the clarification of the law by the Federal Court," he said.
The High Court held that the privileged status of Section 112 statements does not depend on the stage of proceedings and applies throughout.
For these reasons, Justice Atan Mustaffa allowed the revision, set aside the Sessions Court’s Dec 11 order, and dismissed the application by the accused to compel disclosure of the statement.
When met outside court, Badrul Hisham's lawyer Rafique Rashid Ali said the ruling effectively blocks the defence from reviewing the witness statements.
"The defence now faces two options, which is to proceed with the current trial at the Sessions Court, or file an appeal with the Court of Appeal.
"We will decide in the coming days," he said, adding that Badrul Hisham's trial at the Sessions Court here has been scheduled for Feb 5 and 6.
