CRIMINAL justice involves a triangulation of interests which require consideration of interests beyond that of the accused. At its heart lies fairness.

It is interesting that it was Lord Steyn, one of the UK’s most liberal judges, who said it. Never one to mince words, he said:

“It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.”

A consideration of the public interest must be had if there is to be fairness to all sides. A judge must weigh in the public interest in ensuring that those charged with crimes should be tried.

It is settled law in our system of justice that illegally obtained evidence is admissible. The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. (Lord Goddard CJ in Kuruma, Son of Kaniu v R [1955] AC 197)

In the case of Dato’ Seri Anwar bin Ibrahim v Pendakwa Raya (2015) MLJU 34, one of the many issues argued before the Federal Court includes the issue of illegally obtained evidence. The Federal Court said:

“Now, even if those exhibits recovered from the lock-up were indeed illegally obtained, which we say were not, in law they remain admissible if found to be relevant to the case (s 5 of the Evidence Act). This passage from Hanafi Mat Hassan v Public Prosecutor (2006) 4 MLJ 134 is illustrative of this proposition, which we now adopt with approval:

“The court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. This rule applies, inter alia, to cases involving illegal searches, evidence obtained by secret listening devices or by undercover police operations. It also applies to evidence obtained by unfair procedures. Thus, in R v Apicella (1986) 82 Cr App R 295, the English Court of Appeal upheld a rape conviction based upon the results of tests carried out on a specimen of body fluid obtained from the accused for medical reasons whilst he was on remand. In AG for Quebec v Begin (1955) SCR 593, it was held that even if a blood sample was obtained from the accused without his consent it is admissible to prove intoxication.”

It was Crompton J, more than 150 years ago in R v Leatham (1861), who said it: “It matters not how you get it; if you steal it even, it would be admissible.”

It has since been cited as authority that illegally obtained evidence is admissible.

So it matters not if evidence is unethically obtained. – June 18, 2020.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.