Stealing from the Prosecution

On 12 January 2010, there was a report in the Malay daily, Kosmo, about a theft of police investigation papers and notes of proceedings relating to an accused person who is currently on trial for an offence under section 39A(1) of the Dangerous Drugs Act 1952 for possession of drugs that occurred at the Ampang Magistrates Court. According to the report, those documents were given to an unnamed lawyer by the accused’s friend who discovered them at the accused’s house.

He was reported to have remarked, ‘Saya terkejut bagaimana fail kes yang masih dalam perbicaraan ini berada di rumah tertuduh itu sedangkan ia sepatutnya disimpan di mahkamah. Di dalam fail ini banyak dokumen penting dan sulit seperti nota prosiding mahkamah dan kertas siasatan yang tidak sepatutnya jatuh ke tangan tertuduh.’ (Translation: I was surprised to discover that the file of an ongoing case was found at the accused’s house when it should be kept in court. In this file are many important and confidential documents like the notes of proceedings and investigation papers which should not fall into the accused’s hands). In short, he stated the blindingly obvious. The lawyer did not rule out that the accused might have received assistance from others to obtain those documents. But lawyers will never rule anything out until they are, well, ruled out.

Former Deputy Public Prosecutor, Datuk Salehudin Saidin commented that if those documents were kept by the accused it was likely that it was stolen or smuggled out by ‘pihak-pihak tertentu’ i.e. a particular group. This is interesting because the learned DPP goes further than the unnamed lawyer and suggests that it is the work of several, not just one. He should know because he used to prosecute in those courts and kindly explains why it should not happen, ‘Mengikut prosedur, selepas sesuatu kes dituduh di mahkamah, pihak pendakwaan akan menyimpan kertas siasatan termasuk kertas pertuduhan atau dokumen-dokumen berkaitan sepanjang kes itu dibicarakan. Namun tertuduh atau peguamnya berhak mendapatkan kertas pertuduhan daripada pihak pendakwaan atau dokumen lain yang dibenarkan.’ (Following procedure, after an accused is charged, the prosecution will keep the investigation papers including the charge sheet and other documents throughout the trial of the case. An accused or his lawyer is entitled to charge sheet from the prosecution and any other documents to which they are permitted.)

A police report was lodged by the court representatives on 13 January 2010. An unnamed court staff told Kosmo that it was too early to link the theft of those documents to the court staff. Of course it was. But when would it be too late?

Apparently the accused, who still remains unnamed for some strange reason, was arrested on 11 November 2006 and subsequently charged under section 39A(1) DDA52. A lady posted bail at RM 7,000.00 for him. However, on 6 December 2009 a warrant of arrest was issued against him for failing to attend the trial. The case has now been fixed for mention on 2 February 2010.

That is where the official reports ends rather confusingly, so that is when we begin our review of the facts.

Firstly, it is the police investigation papers that were stolen. I am not concerned with the notes of proceedings unless its the original one from the court file. That does not seem to be the case here.

Secondly, police investigation papers are kept by either the prosecution or the investigating officer. Once a trial begins, they tend to be kept by the prosecution. Since the report indicates that the trial was partially heard, this means that the investigation papers were already in the possession of the prosecution. This is why the notes of proceedings if stolen was only the prosecution’s copy. This also suggests that those documents were stolen when it was in the custody of the prosecution.

This is why I thought it strange that the court lodged the police report when the investigation papers were stolen from the prosecution. The court does not hold or keep the investigation papers as evidence, or even for the prosecution. The investigation papers are not tendered in court. It is the supporting evidence that is tendered in court.

Thirdly, there is no mention of when or where the actual theft took place in the report. It somehow managed to end up in the accused’s house. I think it highly unlikely that those documents were stolen in court. The police investigation papers are too important to be overlooked by the prosecution while they are in court. It would have been obvious at the start of the trial or by the end of the day when they pack up their notes, papers and evidence.

I conjecture that the theft must have occurred when the file was unattended or unsupervised. That is more likely to happen when the investigation papers along with other documents are stored in the office awaiting the next trial date. That would mean in the Attorney General’s Chambers spanking new building in Putrajaya, down from the Istana Kehakiman. I am guessing the perpetrators would have access to the inner parts of the AG’s Chambers building.

When seen in this light, Datuk Salehudin’s comments appear ominous.

Who are these pihak-pihak tertentu who are so brazenly stupid and boldly outrageous?

I do not think any of us have trouble conjuring up a few usual suspects.