458 Malayan Law Journal [2010] 4 MLJ defence made any application for the statements (if any) to be produced. However no particular adverse inference can be drawn from its non-production (per Augustine Paul J, as he then was) in Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1. Augustine Paul J (as he then was) explained in Public Prosecutor v Dato Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 at p 186: B In any event as a police statement is privileged, no adverse inference can be drawn from (its) non production. This is based on the principle that the drawing of an adverse inference for the failure to produce a privileged document would be to destroy the privilege itself (see Western v Peary Mohan Dass (1912) ILR 40 Cal 898, Dulhun v Harnandan 30 Mad LJ 624. C [38] Learned counsel for both the appellant made reference to Abdullah Zawawi v Public Prosecutor [1985] 2 MLJ 16 to suggest that the non-calling of witnesses such as Sathiya who was with SP8, and Pang Tze Ling who is a sister of DW4, should give rise to adverse inferences. The answer to this is stated by Augustine Paul J (as he then was) in Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 (HC): It is settled law that in a criminal trial the prosecution has a discretion, provided that there is no wrong motive, as to whether or not to call any particular witness and in particular has a discretion not to call in support of its case a witness whom it does not believe to be a witness of truth (see Khoon Chye Hin v Public Prosecutor [1961] MLJ 105, Adel Muhammed el Dabbah v Attorney General for Palestine [1944] AC 156). There is no obligation compelling the prosecution to call all witnesses who speak to facts which it desires to prove (see Malak Khan v Emperor 72 IA 305; AIR 1946 PC 16). Thus, the prosecution is not duty bound to call all the witnesses from whom statements may have been taken (see Public Prosecutor v Teh Cheng Poh [1980] 1 MLJ 251). This accords with s 134 of the Evidence Act 1950 which provides that no particular number of witnesses shall in any case be required for the proof of any fact. This section enshrines the well recognised maxim that ‘evidence has to be weighed and not counted’. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated and one credible witness outweighs the testimony of a number of other witnesses of indifferent character (see Vadivelu Thevar v State of Madras AIR 1957 SC 614). What is significant is that the prosecution must call the necessary witnesses to unfold the narrative upon which its case is based. In this regard, reference may be made to the advice delivered by the Privy Council in the celebrated case of Seneviratne v R [1936] 3 All ER 36 where Lord Roche said at pp 48–49: … Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so, A D E F G H I

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