Monday, July 28, 2008

First Information Report - What's There To Hide?

Article by MH Hassan

If a woman lodges an information alleging that A has raped her, then by showing or supplying A with the first information, he is given the opportunity to explain the circumstances; he may show that there was in fact no rape and the woman consented to the whole thing.

Similarly, if A is accused of murder in a first information, he may explain that he was elsewhere at the time or show circumstances that the act was an accident. Now if A did not see the information, he would not be able to vindicate himself or to meet the various particulars alleged in the first information.

The illustration is not mine, but that of Syed Othman FJ in Husdi v Public Prosecutor [1979] 2 MLJ 304.

In that case, the federal court judge, sitting in a criminal revision in the high court, expressed his view that the common law right of an accused to inspect the first information arises from the duty of the police to inform the accused the reason for his arrest, so as to enable the accused, if he so wishes, to explain his conduct as alleged in the first information, which, on the face of it, constitutes an offence.

By the way, the first information (or what is commonly known as the first information report – FIR) is otherwise known as the police report. It is a public document as defined by section 74 of the Evidence Act 1950 (EA).

Consequently, a person having a right to inspect the document must be given on demand a copy of it on payment of the prescribed fees as provided by section 76 of the EA. So, if A is the person named in the police report by the woman alleging rape, then A has a right to inspect the report.

He should be given, on request, a certified true copy of it on payment of the fees. A’s right to inspect is a right based on the common law which accrues right to a person to have access to a document in which he has an interest.

Such inspection, according to the federal court in Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2 MLJ24 recognising the common law right to inspect, is necessary for the protection of his interests.

Indeed, this right has a constitutional colour to it. According to Syed Othman FJ in Husdi, the right of an accused person to the FIR is nothing more but a consequence of his right to be informed as soon as may be of the grounds of his arrest under Article 5(3) of the Federal Constitution.

Now apart from the above, in criminal practice, the FIR is a document usually made available to a person having interest in it upon request and without much ado. As a matter of fact, in accident cases, the police do supply a certified true copy of the FIR on payment of the prescribed fees not only to the maker but also to other persons affected.

In view of the above, I find statements suggesting that a police report will not be made available to a person having interest it because he or she has not given statements to the police disturbing.

It cuts through the honest and selfless efforts by civil society at promoting public awareness of and providing public education relating to rights. Equally disturbing are statements suggesting that a police report will be made available ‘if and when’ a person is charged in court.

Section 51A of the Criminal Procedure Code (CPC) is a newly inserted provision (2006) to govern what is known in criminal procedure as ‘disclosure’ requiring each side in a criminal proceeding to reveal information and disclose documents.

Prior to 2006, the general right to disclosure of documents was governed by section 51 of the CPC, which empowers the court to issue summons or an order to produce the property or document that is necessary or desirable for a trial. The section remains in force.

Section 51 has given rise to a number of conflicting decisions on the right of the accused to inspect documents and other prosecutorial materials. Suhakam in its report ‘Forum on the right to an expeditious and fair trial’ (2005) has duly noted the inadequacies in the disclosure regime which often resulted in adjournments and therefore delays.

As part of reforms to the criminal process, section 51A was inserted into the CPC. So clearly, section 51A of the CPC cannot be relied upon to deny a person his common law right to inspect a document in which he has an interest.

On a parting note, I find the following excerpts from the judgment of Syed Othman FJ in Husdi enlightening:

‘[S]upplying the arrested person with the first information has all the advantages to everyone concerned. It gives the accused person the first opportunity to explain. If his explanation is satisfactory, it may shorten investigation and cut down public expense.

‘Even if it is unsatisfactory, it will give the police officer better leads in his investigation.’

But if common sense does not prevail, perhaps the person making the FIR should voluntarily give the person or persons named in the FIR a copy of it – expenses to be paid, of course.

And may I add, ‘What is there to be afraid?’

Or should I say, ‘What is there to hide, if indeed the police report has been made?against Anwar is so lacking that DNA matching will be the main ’