THERE is a distinction between “trial” and “hearing”. The words are not synonymous.

“Trial” is a court process generally conducted in open court where the parties involved will present their evidence through their witnesses. This essentially involves examination-in-chief of witnesses, cross examination of witnesses, re-examination of witnesses and submissions by the respective parties.

Thus, a trial essentially starts, after the prosecution’s opening address, with the commencement of the examination, cross-examination and re-examination of one or more witnesses.

“Hearing”, as in the phrase “hearing of the suit”, means the hearing at which the judge takes down the evidence or hears argument or considers questions relating to the determination of the suit which enables him finally to come to an adjudication upon it (Sharma J in Merlimau Pegoh Ltd v Collector of Land Revenue Jasin [1969] 2 MLJ 248, 249).

A trial leads to the final determination of the main case, whether civil or criminal, while a hearing generally leads to the determination of any interlocutory application, which, in simple words, is a request made to the court, or to a judge for its interference in a matter arising in the progress of a cause or proceeding.

In other words, an interlocutory application is an application to the court to make an order before the court makes a final order in the proceedings. Such applications may be made in relation to preparation of a matter for trial or in relation to the preparation of a matter for trial or in relation to preserving the subject matter of the dispute pending the final order of the court. (See Onus v Alcoa of Australia Ltd [1981] 36 ALR 425)

Now, “to hear” is to listen, according to the Shorter Oxford Dictionary, which also defines it as “to be informed of; to be informed; to learn”. This makes clear that a hearing does not necessarily mean an oral hearing (Suffian CJ (as he then was) in Najar Singh v Government of Malaysia & Anor [1974] 1 MLJ 138, 140, FC)

This takes us to the four notices of motion, which constitute the applications for review under rule 137 of the Rules of Federal Court 1995 by which former prime minister Najib Razak (the applicant) sought a review of four decisions of the Federal Court delivered on August 16 and 23, 2022 respectively.

The four decisions were as follows:

1. Decision on August 16, 2022, dismissing the applicant’s application to adduce additional evidence and the disqualification of Justice Mohd Nazlan Mohd Ghazali, the trial judge who convicted and sentenced the applicant in the SRC case;

2. Decision on August 16, 2022, refusing to grant an adjournment of the hearing of the main appeals requested by the applicant’s counsel;

3. Decision on August 23, 2022, dismissing the applicant’s application to recuse the Chief Justice from hearing the main appeal of the SRC case;

4. Decision on August 23, 2022, dismissing the applicant’s main appeal of the SRC case. (See the written judgment of Federal Court judge Vernon Ong Lam Kiat for the majority)

It can be seen that the first three decisions arose from as many applications made by the applicant before the main appeal. The applications were therefore interlocutory in nature. This was acknowledged by the Chief Justice of Sabah and Sarawak Abdul Rahman Sebli, who was the lone dissenting judge.

In his written judgment, the learned judge said:

“For purposes of this judgment I shall focus on Motion No. 2 (against the second decision above) which in my opinion is determinative of the question whether a review under Rule 137 of the Rules of the Federal Court 1995 is warranted.

“I shall express no opinion on the other three motions.” (The judgment is available here)

After recapitulating the law in a review application under rule 137, His Lordship said:

“Justice is not only about the guilt or innocence of the accused person. It is also about according him a fair trial. The accused person should feel that he has had a fair trial (Kiew Foo Mui & Ors v Public Prosecutor [1996] 1 CLJ 14). If he cannot be tried fairly for the offence that he is charged with, he should not be tried for it at all (R v Horseferry Riad Magistrates’ Court, ex p Bennet [1994] 1 AC 4)

The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system. A fair trial is aimed at ascertaining the truth for all concerned. It may be vitiated and violated by an over-hasty, stage-managed, tailored and partisan trial. Denial of right of accused to adduce evidence in support of his defence amounts to denial of fair trial. (See Durga Das Basu, Commentary on the Constitution of India, 9th ed. LexisNexis, India 2015)

His Lordship then dealt at length Motion No. 2 before coming to the decision to allow the Motion. What is curious though – with the greatest of respect – is His Lordship’s so-called “consequential order” which was made as follows:

“As for the consequential order to be made, the proper order in my view would be an order of acquittal and discharge for all the offences that the applicant was charged with. It appears clear that there has been a miscarriage of justice in that the applicant was deprived of a fair hearing.

Citing the case of Sankar v The State [1994] UKPC 1 where the incompetence of the accused’s counsel had deprived him of a fair trial, His Lordship referred to the judgment of Lord Wolf in the Privy Council who said in an extreme situation where the accused was deprived of a fair trial then even though it is his own advocate who was responsible for what had happened, an appellate court might have to quash the conviction and would do so if it appeared there had been a miscarriage of justice.

In Sankar’s case, the accused was convicted of murder and sentenced to death, which was commuted to life imprisonment. His appeal to the Court of Appeal of the Republic of Trinidad and Tobago was dismissed. He was however granted leave to appeal to the Privy Council.

Central to the appeal was the conduct of the accused advocate at the trial. Due to his behaviour at the trial, the advocate was subsequently the subject of contempt proceedings to which he pleaded guilty.

Before the Privy Council, it was argued that because of the behaviour of his advocate, the accused was deprived of the opportunity to give evidence at the trial where his evidence was essential if he was to have any opportunity to avoid being convicted.

Among others, it was said a fair trial was not possible because of the hostile exchanges between the advocate and the trial judge.

Lord Wolf, who delivered the judgment of the Privy Council, said:

“It is basic in our law that an accused person receives a full and fair trial. That principle requires that the accused be afforded every opportunity to put his defence before (the court). The (accused in this case) has been deprived of that opportunity and justice has therefore been denied to him.”

Now, has the applicant (Najib) been denied the opportunity to put his defence at his trial and consequently been denied justice? Or has he only been deprived of a fair hearing? A hearing does not necessarily mean an oral hearing (see above).

Whether the applicant has been denied a fair trial is a matter for the appeal panel of the Federal Court hearing his appeal from the decision of the Court of Appeal to decide.

Yet, while the learned judge acknowledged that Lord Wolf was was speaking in the context of the power of an appellate court hearing an appeal from the decision of the trial court, His Lordship said:

“I see no valid reason in law why it should not apply to an application for review under rule 137 as the whole purpose behind the rule is to prevent injustice to any person who is left with no other effective remedy.”

The learned judge clearly said he expressed “no opinion on the other three motions”. The motions themselves were applications for the Federal Court to review its own decisions, three of which – including Motion No. 2 – were duly acknowledged as interlocutory in nature.

The review panel of the Federal Court was not hearing an appeal from the decision of the Court of Appeal, which affirmed the conviction and sentence imposed by the High Court. That had been dealt with by the appeal panel of the Court on August 16 and 23, 2022.

Accordingly, and with the greatest of respect, the “consequential order” could not have been an order of acquittal and discharge for all the offences that the applicant was charged with.

The applicant might have been denied a fair hearing at the hearing of his review application, the consequence of which is for the review panel of the Federal Court to order a rehearing of his main appeal to decide whether the applicant has been denied a fair trial, among others.

So, the “consequential order” in the dissenting decision is curious, to say the least. – April 7, 2023.

* 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.