Alcontara Notice in Criminal Trials
Sidney Paget (1892) The Adventures of Sherlock Holmes, George Newnes, Ltd.
The Alcontara Notice is information provided by the Accused to the enforcement agency during a criminal investigation with a specific purpose, i.e. to disclose the defence and provide “pointers” as to things that the IO should investigate to confirm the truth of the defence. Therefore, it is not a generic recital of the defence theory, but it is directed specifically to inform the Prosecution where they can find proof to support the Accused’s innocence. Another significance of an Alcontara Notice is it can invite the Court to reconsider making a finding of belated defence. This depends on many factors discussed later in this writing. Belated defence means that you did not disclose your defence at the time of arrest, or in your police statement.
How did the name Alcontara come about?
The name Alcontara comes from the name of the leading case, Alcontara Ambross Anthony v. PP [1996] 1 MLRA 47 where a Federal Court panel of three (Edgar Joseph J Jr, Dzaiddin FCJJ and Gopal Sri Ram JCA, all great thinkers) outlined some general principles in evaluating the disclosure of the Accused of his defence during investigation. It was not the first case that did so, but it became the landmark on point. In that case, the term “Alcontara Notice” was not used in the judgment. “Alcontara Notice” came about as something like a branded term by certain appellate judges in the following years. Just like how there came about “Maximum Evaluation Test” and “Radhi Direction”. These terms did not even appear in the classic Mat v PP, one of the most important cases that a law students, lawyers, prosecutors and judges should know, which was basically theft of chickens. There are a couple more branded terms that are entitled to much respect because they are part of our judge-made law, notwithstanding they do not appear in the writing of our Criminal Procedure Code and our Evidence Act 1950.
Why is the Alcontara Case So Important ?
It is a leading case that has been referred many times by the highest Courts of this country on several issues. This writing focuses on the Alcontara Notice which was developed by Judges following the Alcontara decision in 1996.
What was the Core Finding in the Alcontara Case?
In Alcontara Ambross Anthony v. PP [1996] 1 MLRA 47, the trial judge had rejected the defence after finding that there was a belated disclosure of the defence. The Federal Court found that the trial judge had erred in his handling of the facts when considering the defence case. After setting out the trial judge’s reasons for his rejection, the Federal Court said:
“It is implicit in the judge’s observations aforesaid that he had assumed that at the time of his arrest, the appellant had no explanation to offer or if he had one, it would have been materially different to that which he had offered in his cautioned statement recorded on the next day or he would have made a confession. When respect, there was not a scarp of evidence to support any of these assumptions. For example, there was not even evidence as to whether the appellant had been cautioned and an attempt made to interrogate him immediately on arrest and, if so, what his reactions were.”
The Federal Court examined the evidence and concluded:
“Thus, the evidence suggests that the first opportunity the appellant had to explain was at the time he was interviewed and his cautioned statement recorded from him the day after his arrest. There was, therefore, no evidence of delay on his part in offering an explanation. On the other hand, evidence suggests that such delay, as there was in this regard, had been occasioned entirely by the police. It follows that it was wrong for the judge to have assumed, contrary to the evidence, that there had been a belated disclosure of the defence, which suggested concoction. On the contrary, the evidence indicated that, given the circumstances, the appellant had made prompt disclosure of his defence in his cautioned statement.
As a result of this misdirection, the case for the appellant must have been seriously weakened in the eyes of the judge, and the chance of his attaching any degree of credence to it seriously prejudiced.”
(emphasis mine)
Basically, the Federal Court corrected the misconception by the trial judge that the Accused disclosed his defence late. Because the Accused disclosed his defence late, the trial judge thought he was defending himself with made-up stories, and thus found him guilty. The Federal Court found that his defence was contained in his police statement, made soon after arrest.
As you know, Alcontara actually was not the first time the Federal Court did this. Many cases before that involved a reversal of the decision by the Federal Court against the courts lower. But it explained things well and became an important source material for later decisions.
What are the “Pointers” that Constitute an Alcontara Notice?
As mentioned earlier, the Alcontara provides pointers to the Police, leading them to discover or confirm things that support the Defence story.
The nature and number of pointers varies and differs according to the type of case and type of defence.
Some general principles:
Information Must be Clear and Specific
Information Must Establish and not merely support the defence
Information Should Originate from the Accused
Information Should be Contemporaneous and not Belated
The general principles summarised above are not strict requirements — it really depends on the factual matrix of the case. For the 3rd and 4th pointer above I used the word “should” and not “must” because I would qualify them and also am still studying the matter. We can expect more development of the subject within our Malaysian Common Law in the years ahead until Parliament fixes it.
I thought the Accused Does Not Need to Prove His Innocence? I thought the Accused only Raises a Reasonable Doubt?
In real life it is not so ideal, especially for cases involving statutory presumptions.
How did the Original Alcontara Notice Look Like?
This was the original “Alcontara Notice” in the original Alcontara case (Federal Court):
“[4] The search conducted of the boot of the car resulted in the recovery of the considerable quantity of the cannabis hereinbefore mentioned. He was promptly arrested and later prosecuted as aforesaid. His defence, as deposed to from the witness box, was that he was an innocent carrier. More particularly, he claimed that he sold keropok (prawn crackers) for a living, that at the time of his arrest he honestly believed that he was conveying keropok, that he did so at the behest of a certain Che Mat for a fee of RM300 which had been paid and was in his pocket and that this money was amongst the various items seized by the police. This defence though it was not without flaws which need not detain us was entirely consistent with his cautioned statement made to the police on the day after his arrest, for in it, he had mentioned Che Mat, and a telephone number which he claimed was Che Mat's, but he was unable to give Che Mat's residential address. However, he had offered to lead the police to Che Mat's place of abode but the police had not given him the opportunity to do so. The Judge, however, found that the prosecution had established "an absolutely, overwhelming circumstantial case of exclusive possession, custody, control and knowledge of the cannabis recovered from the boot of the car, and that his explanation had failed to raise a reasonable doubt.”
Yes friends, this was the original Alcontara Notice which was good enough for the Federal Court in 1996. Though Grounds of Judgement of an appellate court do not always capture the actual facts before the trial panel, let us attempt to reconstruct the Alcontara Notice in that paragraph:
There was no delivery of a formal written Alcontara Notice as understood today
Appellant testified from the witness box that he was an innocent carrier of keropok on behalf of Che Mat for RM300.
That RM300 was found in his pocket at the time of arrest.
Cautioned statement was recorded one day after arrest and his testimony was consistent with it.
Appellant mentioned Che Mat’s telephone number to the police but could not recall his residential address — but he offered to lead the police to it.
Despite him offering to take the police to Che Mat’s residence, the police did not give him the opportunity to do so.
Let assume that those were the facts :again, sometimes the facts in the Grounds do not justly capture what happened in the heat of the moment on the battlefield of trial:
From those facts, I do not know whether such information from Mr Alcontara would be accepted as a valid Alcontara Notice today in 2021. If there is any feature of the case which caught my attention, it was that the Appellant’s statement was recorded one day after arrest. In a lot of my cases, the Accused languished in remand for a couple of days for unknown reason, then they are taken for recording of statement. So I wonder if in today’s state of the law, Mr Alcontara’s Alcontara Notice would be given more weight because his police statement was recorded only one day after arrest. But the Accused has no control over the timing of his statement recording session!
My guess is, Mr Alcontara’s Alcontara Notice would be rejected by a lot of learned justices today, presumably due to the developments in the law. Sad for him the keropok distributor.
Digression for Drug Trafficking Cases
Over the years, I have seen cloth deliverers, bag conveyors, naive grandmothers, handphone dealers, traditional medicine peddlars, aphrodisiac purveyors, trusting youth, innocent carriers who all have been sent to their deaths thanks to lethal technicalities such as these. The fact that drugs were hidden in secret compartments were held against them, not in their favour. More important to drug trafficking cases and not others, there is a doctrine of wilful blinders which I will not elaborate in this writing. A good Alcontara Notice could possibly counter it, but you need more than that nowadays. A lot of prayer, one or two blunders by the police, a good lawyer, a good hearing. Nowadays, it matters less and less whether the police checked the facts or not. Unlike murder cases or AMLA cases or corruption cases, the role of the IO in drug trafficking cases is more like a compiler of information, his role is to convert ID to P. He does not really investigate in the true sense of an inquiry.
I still have faith in our system and in our honourable justices and noble prosecutors — that we will collectively as a system, pull back from this unsafe path — an extreme where someone’s own conduct, someone’s own silence, someone’s own cooperation with police, someone’s own profiling will get them hanged. There is supposed to be a right against self-incrimination. This is connected to the concept of “prejudice”. The concept of prejudice also has been fuzzied over the years. Nowadays some people seem to accept that prejudice is repaired because the Accused through his lawyer has the right to cross examine witnesses. Regretfully some people do not know what prejudice is.
For an innocent carrier (drug mule) case, the Accused should provide the particulars of the person who handed him the bag containing drugs, with a view to establish that the bag and its contents do not belong to the Accused – it is to help rebut the presumption of knowledge under the Dangerous Drugs Act 1952.
The particulars would be rejected or given very low weight if it is vague or lacking in particulars. I have lost drug trafficking appeals for this reason (among other reasons).
After losing those drug trafficking appeals, where I struggled to explain to the panel that my clients had disclosed their defence and particulars of the owner of the drugs (following the original Alcontara case and later relevant cases), I meditated on this issue — with the concern that the weight of the law is grows heavier on naive, trusting, unprepared people who are used as drug mules — and it tends to favour people who are cunning, streetsmart and come with prepared answers to questions such as, “Whose drugs are these?” and “How did you come into possession of the bag”?
I know we are supposed to have the right to remain silent and the right against self-incrimination, but in practice, holding close to these rights will get you hanged.
Then I researched the law and meditated and consulted my learned colleagues and meditated some more. I wondered, “What does the perfect Alcontara Notice look like?” I concluded that there is no perfect Alcontara Notice all the time. It is situational and factual. It is after all, a judge-made concept and not a statutory creature that “clicks” into operation like a Lego set when all the essential parts fit in place.
What does a Good Alcontara Notice Look Like?
A mere recital of the defence theory is inadequate. You need to give pointers to independent evidence that tends to show the truth of the defence version. It is trite that an exculpatory statement just does not cut it. The Court of Appeal in PP v GUO RENCHUN [2021] 4 MLRA 620 found:
“[39] Walau apa pun, percakapan beramaran tertuduh yang dikemukakan di peringkat pendakwaan dan tidak disoal balas kandungan percakapan beramaran tersebut adalah bersifat 'exculpatory' dan tidak seharusnya dijadikan sandaran oleh Hakim Bicara untuk meminda pertuduhan terhadap tertuduh. Dalam kes Public Prosecutor v. Mansor Md Rashid & Anor [1996] 2 MLRA 35; [1996] 3 MLJ 560; [1997] 1 CLJ 233 diputuskan seperti berikut:
'[6] The trial Judge was wrong in concluding, based on the 1st respondent's exculpatory statement, that the 1st respondent was not involved in the sale of the cannabis and that Amran had occupied the said room. A purely exculpatory or self-serving statement is not evidence of the facts stated although it may be admitted to show the reaction or attitude of the accused at the time he made it. In considering whether there was a case to answer, the trial Judge ought not to take into account such a statement as the basis for founding an order of acquittal and discharge'.”
(emphasis in the original)
Noteworthy is the critique against statements that are “self-serving”. I’ll reserve comment.
For a drug trafficking case (and probably any other case that relied heavily on statutory presumptions) once the statutory presumptions are effected, the Accused must:
rebut the presumptions on a balance of probabilities,
using affirmative evidence and not merely suggestions or conjectures,
such evidence cannot be brought up for the first time at Defence stage. It must be raised at the earliest opportunity.
My cursory reading shows that developments of case law over the years suggests that the earliest opportunity is being pushed farther and farther back, past the Prosecution stage, past the investigation and now it could be at time of arrest.
The issue surrounding the Court’s evaluation of what the Accused says and does not say and how he conducts himself, revolves around principles against self-incrimination and prejudice. It is intriguing how the Accused’s speech and conduct at the time of arrest is coming under more and more scrutiny, whereas that is the very period that he is least likely to have benefitted from legal advice.
Consequences of failing to set up your defence at the earliest possible stage:
Afterthought / recent invention.
Bare Denial.
Failure to provide particulars also hurts the defence in murder cases.
The Accused would be found guilty, sentenced to death and hanged to the neck till they are departed.
From my experience handling several airport drug trafficking cases in the Court of Appeal and Federal Court, the panel appear to be sceptical and would require precise details of :
a. The exact name of the person who provided the bag
b. The exact phone number and address of the person who provided the bag
c. The exact name of the person who is intended to pick up the bag
d. The exact phone number and origin of the person who is intended to pick up the bag
Some members of the panel have passed remarks on how trusting the Appellant had been, or why the Appellant had believed the culprits without having their detailed particulars.
Right Against Self-Incrimination: Please note that there is no compulsion for a suspect to disclose their defence or to say anything at all. The right against self-incrimination is recognised as a fundamental right in most countries including ours. There are at least 2 statutes administered by 2 well-known agencies here whose statement-recording provisions are compulsive and purport to impose adverse inference on the suspect who doesn’t talk. These are grossly unconstitutional, but a Federal Court panel has disagreed — perhaps in that case the challenge was premature. I hope we can study this another time.
The significance of disclosing such information:
(i) To guide the investigation in a direction that favours the Accused’s defence;
(ii) To enable the Defence to present independent confirmation from a Prosecution witness, namely the IO or other witnesses, on the likelihood, plausibility and/or truth of the Defence (bonus points if the IO discovers things that discredit Prosecution eye-witnesses); and
(iii) The information can be raised and exhibited by the Defence Counsel in cross examination of the relevant Prosecution witnesses. Therefore it gives the Defence an opportunity to cast a reasonable doubt in the Prosecution case through the Prosecution witnesses.
(iv) Generally, it can help make the Accused’s story seem more genuine. But beware of truthful suspects who make belated disclosures and cunning suspects who squeal early and claim to be whistleblowers — more on that another time.
When is the Decision Made to Disclose Information?
By the time a lawyer is brought on board a criminal case, the Accused had already been made to disclose some information to the police. More often than not, only information that confirms the complaint is taken down, because the Recording Officer only frames the questions in such a way as to funnel all input from the Accused into one direction — i.e. to support the case under investigation. Even if the Accused’s version is against the complaint, it is often recorded as a simple denial comparable to a head-on collision without much elaboration by the Accused. Unless the Accused confessed (in which many newer IOs would rapidly notify the DPP, “Saspek mengaku, Tuan!”), what the Accused actually says generally does not feature prominently with much elaboration in police investigations and in police briefings to DPPs (from my own experience anyway, there were a small number of exceptions). Even then, only if the DPP asks. The plain letter of the Accused’s statement makes it look as though there is little substance (and hence, little truth) to the Accused’s version of events. This is the effect of the recording technique of the Police and less to do with any calculatedness of the Accused to keep information to themselves because most of them are not legally trained and have not been advised by counsel. I speak only for those cases that I have handled. In some commercial crimes cases, the way the suspect was invited for statement-recording did not even give him a hint that he was a suspect. They would know if they were arrested, of course.
To balance this out, I have observed, as a Prosecutor and Defence Counsel, that statements in commercial crimes cases seem to permit the Accused more room to explain as far as their defence is concerned. An Accused’s statement can be lengthy but it is still framed and controlled by the Recording Officer. My personal theory is this goes to the nature of commercial crimes cases, with the nature of their defence, as well as the training of IOs at the Commercial Crimes Investigation Division at Bukit Aman, MACC, Securities Commission Malaysia and the like. The SC doesn’t even arrest unless they really have to, which I think is a good thing because it demonstrates confidence in their technique and in the individual talents of their investigators. Just ask the IOs from the SC, MACC or Commercial Crimes Investigation Department of Bukit Aman (crime and AMLA) — how often lawyers are involved at the early investigation stage. It is far more often than in general crimes or drugs. Perhaps this actually improves the process and makes the IOs have to work smarter and more tactically, I don’t know. You would observe that a larger proportion of general crimes and narcotics cases are “arrest first, investigate later”.
So back to lawyers — for the bulk of criminal investigations, lawyers are not brought in at the early stage. I propose to write about this another time. It does impact the ability of the Accused to disclose information that helps his case if the matter goes to Court.
Right to Consult a Lawyer before Statement is Recorded
This is important because you want to get your statement right and do not want to miss the chance to present the best information at earliest (well, one of the earliest) opportunity.
Section 28A of the CPC requires the police to allow the Accused to consult their lawyer before their statement is recorded. However, this rule is seldom complied, with very little consequences on the police. Often, the lawyer is consulted only after the statement is recorded and not before, so the advantage is diminished a bit. Unless, the family rushes to find a lawyer in time for the first remand extension application at the end of the first 24 hours of arrest.
Why do People do Not Appoint a Lawyer within the First 24 hours of Arrest?
Hypothetical examples speak for themselves:
The family does not know there was an arrest. The police are supposed to notify the family when there is an arrest, or permit the suspect to make a phonecall, but this does not always happen. To be fair, the police allow this most of the time.
The IO had convinced the family that they should not appoint a lawyer or else the IO will apply for long remand extension — at the end of which the IO convinces the family to appoint a lawyer recommended by him and not one they found themselves.
The father wanted his son to learn his lesson first, hence let him be remanded without assistance from a lawyer. Eventually they appointed a lawyer.
The family just did not know how to appoint a lawyer or did not know how to find one, or they did not wish to pay legal fees. I hope to write about legal aid separately.
The family was influenced by legal experts, such as coffee shop companions, gossip group, relatives, touts, unknown “Datuks” who called them during the night of the arrest offering to help, Corridor Lurkers etc.
Corridor Lurkers (CE hm T2) attend at many lower courts with no specific business except to make business: sometimes wearing tie and jacket just like a lawyer — otherwise they wear jeans and T-shirts, occasionally with neck band and wrist band, one or more earrings.
During the arrest, and during the recording of the Accused’s statement, the lawyer is not present with them to provide legal advice or at least to keep watch for any breach of procedure. This affects the quality of information disclosed. The Accused may not even know how disclosure can help his defence later.
Therefore, there is no equality of arms at this stage. The unlawyered Accused is fair game to the Police. The Police can administer techniques to shape the narrative and information of what will later become the Prosecution case. This includes controlling the number and selection of witnesses, and controlling what is asked and recorded in the Accused’s statement. The law does not appear to place any obligation on the police to investigate fairly, impartially or to even investigate the defence. Though there are case law (civil cases, really) that put them to task, by and large the Police are not punished and not corrected for this practice, because many Courts have decided that poor investigation does not affect the question of guilt (even after sighting LEE KWON WOH and the like). Furthermore, Accused who are discharged from their cases, generally do not sue the police or the complainant. So long as evidence is relevant, it is admissible, except for certain statutory exceptions and the rule that the prejudice must outweigh the probative value.
My conclusion for this point, is that we need not expect the Police to provide any proper opportunity or facility for the Accused to disclose their defence or any information that could guide the police to confirm the truth of their defence.
Being unlawyered, in fear, sometimes uneducated, the Accused will obey what the Police want him to do — at that stage, by and large, the Accused’s freedom, sleep, food, water and toilet trips are owned by the police.
Unfortunately, a small number of Courts have expressed scepticism for the failure of the Accused to provide a detailed Alcontara Notice at that stage of investigation. Other Courts were more magnanimous and did not hold it against the Accused.
We are aware of at least 2 cases where the statement of the Accused in the investigation paper were not the statement they gave to the police. One of them was afraid to lodge a police report for fear of repercussions. The other could not lodge a police report against the IO because the prison would not facilitate him to do so and the IO did not assist him to do so and the Magistrate Court did not react. The police, prison and Magistrate Court were all written to on lawyer’s letterhead.
So that is how important the police statement is to the Accused. But at the same time, the police statement can imperil — it is recorded in a controlled manner to focus on the investigation’s theory.
Why Courts should Go Easy on Belated Disclosure in Police Statement
Due to the present state of the law and police practice, I think the Courts should be very slow to hold belated disclosure against an Accused. We should go back to the days when “afterthought” meant failure of the Defence to put its defence during the Prosecution stage.
The reality is, investigations continue way after charge. Further investigations are conducted all the time at the instruction of the DPP. Even after the IO has testified, investigations still continue. For that reason, the traditional contempt for a “defence kept up its sleeve” should be discarded. This is only in view of the current developments of the law. On my part I agree we should “penalise” belated defence, but on condition that everything else is fair too.
Though the law does not say it specifically, in function and in practice, what the trend shows is the courts’ expectation is pushing back earlier and earlier — to the time of recording statement and some courts nowadays are looking at the time of arrest more closely. We do not have lawyers following the Accused wherever he goes like Rafiq and Atid, advising the Accused on what should be included in his Alcontara Notice.
That being said, the Courts seem to be protective and cautious against allowing admission of information leading to discovery under Section 27 of the Evidence Act 1950. I think this is a good thing. As a Prosecutor I have never got a Section 27 in successfully, and as a Defence Counsel a Section 27 has not yet gotten past me (so far, insha Allah). In most of my trials and appeals, including drugs case, even the DPPs do not push for Section 27 any more and place Section 8 as the default.
Consequences of Not Raising the Defence at the Earliest Opportunity
In Jorge Crespo Gomez v PP [2020] 5 MLRA 492 the Federal Court took note that the so-called Alcontara Notice was given 10 days after arrest. There was much more to this case, but my emphasis in this writing has been on the content of the notice.
[35] Although the investigation was not top notch, the Court of Appeal found that the alcontara notice given by the appellant was faulty as it was given 10 days after his arrest. It is the appellant's case that his alcontara notice was consistent with his cautioned statement, D66 (Public Prosecutor v. Badrulsham Bin Baharom [1987] 2 MLRH 541; [1988] 2 MLJ 585 and Teng Howe Sing v. PP [2009] 1 MLRA 369; [2009] 3 MLJ 46; [2009] 3 CLJ 733). It is submitted that the appellant had given his alcontara notice at the first opportunity wherein he stated that he had no knowledge of the drugs and that it was given to him by the real trafficker who was his friend, Solomon. The appellant said that he would eventually travel to Thailand to hand over those items.
[36] The Court of Appeal had considered the alcontara notice and the issue raised by the appellant on the lacklustre investigation by the Investigating Officer, and held that the disclosure of the information in the alcontara notice was insufficient. The alcontara notice did not contain sufficient information or details as to who was the recipient of the contents of the bag. Only Solomon's name was mentioned in the appellant's cautioned statement. No other details were provided on Solomon by the appellant. In the absence of any details on Solomon, it would be an uphill task for the Investigating Officer to investigate on Solomon. It is also not known as to whom, the appellant was supposed to hand over the spare parts items.
[37] On the absence of knowledge on the part of the appellant, on the contents of P13 and the defence of innocent carrier, we found that the learned JC and the Court of Appeal had considered the circumstances in which P13 was given to the appellant which should have raised suspicion for a reasonable person to be put on an inquiry as to the legitimacy of such a transaction. The appellant said that the spare parts in P13 were supposed to be delivered to Thailand. For that he was promised USD1000 together with all expenses paid for his stay in Caracas and for the multiple flight tickets to land in Malaysia. All these trouble just to carry the 6 metal cylinders to Thailand. One would wonder why all that trouble just to deliver it to Solomon in Thailand when the items could have easily been sent from Caracas direct to Thailand by courier without the necessity of asking the appellant to do it and incurring expenses. Why the stop in Malaysia?
[38] As the circumstances are such as to arouse suspicion, it is incumbent on the part of the appellant to make the necessary inquiries to satisfy himself as to the genuineness of the transaction. There were concurrent findings by the learned JC and the Court of Appeal that the only inference that can be deduced from the suspicious circumstances which were not queried by the appellant, is that the appellant knew what he was carrying in the metal cylinders were drugs. From the failure to make inquiries from Solomon as to why the need to personally send the items vide Malaysia en routeto Thailand, the appellant is deemed to know and that the appellant was guilty of wilful blindness. The appellant had all the opportunity to enquire and to check the bag, but did not do so as he was shutting his eyes to the obvious (See Hoh Bon Tong v. PP [2010] 1 MLRA 358; [2010] 5 CLJ 240). In the course of the law, he is taken to know.
[39] Therefore in such circumstances, the alcontara notice purportedly issued by the appellant through his cautioned statement, D66 is irrelevant and of no consequence.
This Federal Court decision reminds us that the court looks at the entire circumstances of the case. In this case, an Alcontara Notice given 10 days after arrest was inadequate to defeat an allegation (or rather a finding) of wilful blindness on the part of the appellant. In this case, the “circumstances in which P13 was given to the appellant which should have raised suspicion for a reasonable person to be put on an inquiry as to the legitimacy of such a transaction” was crucial. Furthermore, the alcontara notice itself was found to be inadequate. The IO was not blamed for shoddy (i.e. “not top notch” was putting it kindly with Judicial courtesy) work, because the alcontara notice did “not contain sufficient information or details as to who was the recipient of the contents of the bag. Only Solomon's name was mentioned in the appellant's cautioned statement. No other details were provided on Solomon by the appellant. In the absence of any details on Solomon, it would be an uphill task for the Investigating Officer to investigate on Solomon”.
The Worse Type of Wilful Blinders
Whenever there are aspersions cast in open court against the investigation or even the prosecution for suppression of evidence or withholding information, the expected response from some of them is that they are just doing their job and not interested to frame up the accused person. That they are high integrity people duty bound to uphold the law and not to do the defence’s job. That is not the point, and accepting their reasons, regretfully, is setting an undeservingly low bar on our respected law enforcement institutions. “Doing their job” is not merely lack of corruption! “Doing their job” is not merely lack of interest!
My fear is that some prosecutors and some investigators will not even suppress evidence, but worse — that they will intentionally refrain themselves and not check up on facts to avoid opening a can of worms — leads, evidences, that can derail the case by proposing new competing theories of case which the defence and even the Court may indulge. Why is this worse than suppression? Because it looks legitimate and it is unprovable. And it looks like a benign judgment call. What it is, my dear friends, prosecutors, judges, lawyers, police officers, my dearest friends, it is wilful blinders par excellence. Except this type of wilful blinders kill people.
Ask yourself how many of you have spotted a testy part of the case, for example the possible fingerprints on a space, or the outgoing trail of a bank account, or what a CCTV recorded, or evasive bystanders, and intentionally refrained from checking up on them? Because your seniors told you not to or because it could open up a can of worms? Or that you are not supposed to do the job of the defence?
And how many of Your Lordships and Ladyships upheld a conviction due to overwhelming evidence or because there was no miscarriage of justice? But all the suppressed leads were screaming out from the dry pages of the Rekod Rayuan?
How many men and women of all races and nationalities, guilty and innocent, moral and sinners, have been sent to their deaths never to return, on account of you imposing a higher standard on them and a lower standard on the police and the prosecution?
But I do not even blame these small number of prosecutors and small number of investigators. What excuse do those (thankfully small number of) judges have to uphold this dissatisfactory state of affairs?
Can you imagine imposing a duty to inspect on a drug mule (and then using wilful blinders against them to convict and sentence them to death based on legal presumptions enacted over 60 years ago). But at the same time relieving the duty to inquire and investigate on the prosecutor and investigator?
The buck stops with Your Lordships and Ladyships. We cannot blame Parliament. They did not come up with things like wilful blindness, alcontara notice, Mens Rea possession, overt act, actual possession, and things like that. But yet you do allow inventions like Basic Structure freer rein in administrative law?
But the Court is Still Under an Obligation …
Though the Court is still obliged to consider a defence no matter how weak or belated, in practice, a belated defence is usually fatal especially for cases where the Court relied on a statutory presumption, casting the onus on the Defence to rebut.
Fatal in this context means that the Court disbelieves the Defence and the Accused is found guilty.
As a Prosecutor, I have used the afterthought argument against the Defence in many cases and usually it did its job like a magic bullet, even more often than the “unsupported bare denial” argument. It almost became mechanical after a while.
Now that I represent the Defence, I know how hard it is to (intelligently) put a coherent defence to the right prosecution witnesses, for all cases, based on instructions from clients who during the material time were not alert to important details and generally didn’t see it coming (whether they did the deed or not). So far, I have never had a finding of afterthought defence in the trials I handled from start to finish (insha Allah) — but the results are still mixed.
How Early Should the Information be Disclosed?
The issue is how early is early. And what kind of information and how much information must be disclosed. The perception is that the Accused has more than one opportunity to disclose their defence, and at each stage there is progressively more time for him to concoct a sham defence. I do not know how or why this kind of jurisprudence developed, but I am glad there have been Court of Appeal judgments that have pulled back on this to an extent. I hope to revise this view as my research deepens into this area.
What are the Stages that Information Supporting the Defence May Be Disclosed?
Information can be disclosed at any time of the entire case. Here is a simple breakdown:
a. Before arrest. So far I have seen this only for commercial crimes cases.
b. Upon arrest. This is especially important for drugs cases, or any case for that matter that was built on “operasi” whether routine or acting on information. In such cases, almost all ingredients of the offence is proved in that one snapshot event of arrest (pharmacy raid, illegal gambling cyber cafe raid, back in the day pirated VCD raid, Censorship Board raid with no Sijil B, KDN raid on unendorsed naskhah al-Qur’an, firearms raids, unlicensed factory, fronted massage parlour raids, etc.)
c. During investigation, which covers the entire remand period up to the date of charge. This means the statement taken by the Recording Officer. Your lawyer would advise whether it is worthwhile to trace the intelligence statements or other statements recorded by other police officers who are not the IO — the lock-up should have a diary listing all visitors and whom they visit.
d. After charge but before trial. This comes in the form of Representasi (which should not be exhibited), Notice to Produce, written Alcontara Notice, requests for further statements to be recorded, Statutory Declarations and other information provided to the IO from third parties (defence witnesses).
e. Prosecution stage of the trial. Testimony from Prosecution witnesses, elicited by cross-examination.
f. Defence stage of the trial. Testimony from the Accused and Defence witnesses.
g. After the conclusion of the entire trial. This rarely happens and it is mainly aimed to support Notice of Motion to adduce further evidence. There are strict tests to comply with.
Does an Alcontara Notice Have to be in the Form of a Letter Titled “Alcontara Notice”?
There is no such rule, but I have attempted to title my letters as such for appeal purposes. When something titled “Alcontara Notice” is seen by an appellate panel, my hope is it leaves no doubt in their minds as to what that exhibit is intended to achieve and what directions they should make. The way the law is developing nowadays, my concern may seem quaint in one or two years, but presently I believe there are still courts and panels who have not yet seen an alcontara notice (lower case) in letter form.
“Alcontara Notice” is not a statutory-provided document like a Notice of Alibi, a request by the defence for an expert to be called to testify, or a Notice to Produce. It arose out of necessity by the practice of some criminal lawyers, in response to the prevailing law that called for its existence
In the Federal Court decision of Alcontara, it does not even use the term “Alcontara Notice”.
My Experience with the Alcontara Notice
I never issued an Alcontara Notice in letter form until a murder case, PP v Muhammad Siddiq Abdullah. I asked for a precedent from a learned friend, PG Cyril who prepared an Alcontara Notice to prosecutors in a Customs case in Perlis. We agreed that the law is still developing and there are not manyprecedents around (precedent as in forms, not decisions).
So I constructed my own.
There was some thought that went into it, what more it is something untested. I read the relevant case law and tried to make sure this prototype document covered the issues highlighted in those cases — so that if it were exhibited it could be included in a Rekod Rayuan someday and the law further developed.
When I designed this document, I wanted it to serve 2 purposes:
To provide enough “pointers” so that the IO finds it compelling to check out those leads.
To provide realistic, plausible pointers so that the presiding Judge could be moved to see how important it was.
Unfortunately, my client was so drunk during the material period that he was incapable of giving precise particulars.
This was my first written Alcontara Notice:
(Again, I say written because to me it does not have to be written) Since then I have improved my content style and learned from others.
The Learned High Court Judge found my client guilty and convicted him for murder. You can read the full grounds yourself. Focusing on the Alcontara Notice, I could see how and why the Learned High Court Judge found the way Her Ladyship did and I respect that. I am gratified that she made a finding on that issue so that we can build on it in future cases. There are two points I hope to learn from and I hope you learn from too:
Para [63] : The details furnished “are not specific in the right perspectives” and the IO cannot be expected to act because the information lacks details.
Para [64] : Belated disclosure of information. The Accused gave his statement on 22.3.2017 but the Alcontara Notice was given on 28.8.2019, and the allegations of injuries spanned records covering 5 years.
This was from page 31 of the Learned High Court Judge’s Grounds:
The Learned Judge’s use of the term “right perspectives” seem to be right out of the dictum of Justice Hamid Sultan Abu Backer’s judgment in PHIRI MAILESI (ZAMBIAN) v. PP [2013] MLRAU 175:
“It is pertinent to note that the 'Alcontara Notice' must have sufficient particulars in the right perspective and not a vague notice where the prosecution will not be able to advance their investigation to rebut the defence story or version. It must also be given at the earliest opportunity at the material time of the arrest or at least upon counsel taking instruction from the accused to conduct its defence. In addition the defence's version should be put at the prosecution stage and the story must be maintained at the defence stage. There will be a duty placed on the judge even at the prosecution stage to positively evaluate the story of the accused relating to 'Alcontara Notice' before evaluating the prosecution case and applying the maximum evaluation as Alcontara case places the onus on the prosecution to rebut or sufficiently explain that they have discharged that onus. In the instant case evidence will show that the defence has not given an 'Alcontara Notice' in the right perspective.”
So if a letter titled “Alcontara Notice” is not always necessary, why is a letter more advantageous than no letter?
A letter has these advantages:
Presented in an organised manner, to assist the Court
Easier for the IO to understand and act on it.
Easier for the DPP to understand and act on it.
Easier to tender — even if it is addressed to the DPP, you can CC it to the IO and exhibit it through the IO. Include questions like, “What did you do after you received the letter?” Be careful about asking whether the DPP instructed him to check up on the pointers, it can backfire.
Remember, the letter is designed to become an exhibit and referred for years and years as the case goes up on appeal. So make it look appealable and petitionable for whomever is taking over the case.
Instructions from DPP to the IO are captured in minutes enclosed into the investigation papers. Sometimes they are detailed and sometimes they are no less detailed than my letter above. But the IO must act on it “tanpa gagal” if the instruction came from a DPP. If a DPP instructs an IO to check on 5 liquor and lottery shops in a town, which have been named and not left unnamed, the IO would have to go to all 5 shops which have been named and not left unnamed.
In the above case, I cross examined the IO, who confirmed that he did not investigate the pointers. When I asked him why, he said he was of the view there was no need to. I did not refer to the notes of proceedings but based on my memory, because I would not forget what he said.
The above are my comments and observations which I feel I can comment on. Since the matter is under appeal, I will reserve my comments on the rest.
It is trite that to prevent an accusation that the defence is a belated defence, or an afterthought defence, the Defence must put its defence at the earliest possible stage.
As you can see from the excerpt from the High Court Judgement above, 3 pages of a letter titled “Alcontara Notice” does not necessarily make it a proper Alcontara Notice. I think what matters most is quality of information (the content and specificity). So to make it a proper Alcontara Notice you do not necessarily need a letter. You need good content.
I do not think you need content all in one place. In my opinion the content can come from multiple sources at multiple times — the information disclosed upon arrest, information disclosed in the Accused’s statement, information written in by the Defence Counsel based on client’s instructions. I would like to add another category — information from other witnesses, but I am still studying this.
How can the Defence raise or exhibit such information?
The most potent tool of the Defence is cross-examination. Through cross-examination, the Defence can elicit precious gems surrounding:
(a) the existence of such information and its contents,
(b) the time and circumstances of its disclosure, and number of times, and whether corrections were made or requested
(c) whether the police acted on such information or whether they did nothing at all.
(d) whether the IO brought such information to the attention of the DPP or did not — be careful about this one. Not all agencies work the same way in terms of communication between IO and prosecutor. For some, it is enough to ask whether the information was annoted in the ID or attached into the IP. There are agencies where the prosecutor almost never lays their hands on the IP.
(e) whether the police received instructions from the DPP to do anything about such information. This works well combined with tools that hold the Prosecution accountable, for example Notice to Produce and Notice of Alibi issued to the Prosecutor.
Only use this if the information is actually helpful to the Accused. Reconsider from taking this approach if the information you seek is not helpful or surrounded by controversial elements, or can only be confirmed by hostile civilian witnesses — it can backfire. It is safer if the information can be confirmed by the IO or neutral / professional witnesses such as auditors, share registrars, bank officers, and sometimes pawn shop owners and landlords.
Avoid using this approach for the simple purpose of humiliating the Complainant in a sexual case. The mere fact that the Accused knows this information is itself may not be a good thing.
What if my Defence can only be confirmed by hostile Witnesses? Should I still name them in my Alcontara Notice?
(To clarify for the purpose of this paragraph, a witness who is hostile to the Defence may not necessarily by friendly to the Prosecution case.)
If the Defence wishes to guide the investigation to a source of information that can only be confirmed by undesirable witnesses (unreachable, undesirable (“dodgy”), unreliable or otherwise hostile to the Defence), consider dressing up the information with the requisite qualifications and reservations about those persons. If the Accused doesn’t trust the very sources of information that is needed to save his life, why should the Court? If the Court or Prosecution calls on on your gambit, be prepared to have to call those same undesirable witnesses to help you and prepare for whatever follows — which could place the Defence at a disadvantage because by the time you have got to them, the Prosecution or IO has got to them already and recorded their statements.
Experienced Prosecutors would ignore your attempt to drop names in an attempt to drag dodgy characters into the trial. The case law does not penalise the Prosecution for not calling witnesses if they have reason to believe that the witness will be untruthful.
On the other hand, if the Defence can be satisfied that the information is secure with those witnesses, they should have the confidence to name them and particularise the relevant information in detail. Until now, there is not enough case law to truly inform us what is the standard and quality of information expected in an Alcontara Notice. We just know it has to be detailed.
How Do We Know that an Alcontara Notice has Achieved its Purpose?
Just my own view:
The DPP instructs the IO to check on the information disclosed. Whether the information actually supports the Defence is secondary to the purpose;
The DPP feels the information disclosed is of such gravity, that they need to provide a good explanation to the Court for not acting on it. The fact that the DPP considers it so grave is good enough for the purpose; and/or
When the Alcontara Notice is exhibited, the Court is so moved by the gravity of its information, that it would allow it to support an adverse inference against the Prosecution under Section 114(g) of the Evidence Act 1950 if the Prosecution / Police did not act on the information provided, or failed to provide good reasons for not acting. I use the term “moved” because I do not know of an objective standard. If the Court is satisfied, it will take it up. But if it is not satisfied, it can place appeal-proof grounds for such finding.
What Categories of Sources of Information Can be disclosed to the Investigation?
Both oral and documentary sources can be disclosed.
Oral Sources of Information
I trust you are well aware of the disadvantages and risks of oral sources. The police have the advantage of securing them by recording their statement and Section 118 CPC bonds. You do not. If they are cooperative, you could tie them down with Statutory Declarations. There are pro and cons to this. If you can secure their cooperation, why do you need them to affirm SDs?
You can list these witnesses in your Alcontara Notice and cross examine the IO on them or those witnesses if they testify during the Prosecution case. If the Prosecution does not call them to testify, make the most out of this omission in your submissions and exhibit your Alcontara Notice to drive home the point.
Documentary Sources of Information
Two of my teachers used to say that “documents don’t lie”. Contemporaneous documents have many evidential and tactical advantages. You can use the Parole Evidence rule to corral witnesses who try to twist the meanings of bilateral documents to protect them from liability, blame, or shame. A noteworthy risk in respect of documents are the Defence’s lack of access to them, which was confirmed by the decision on Section 51 CPC application in Dato’ Seri Anwar bin Ibrahim v PP, overruling the decision of Zabidin Mohd Diah J (as he then was). Lack of access means that the Defence Counsel may not be able to satisfy themselves beforehand whether the document is useful or not. The law as it stands does not impose a duty on the Prosecution to provide those documents to you. You could send them a Notice to Produce, which allows the Defence to adduce secondary evidence of the existence, contents and arguably surrounding facts such as information, surrounding those documents, if it can be shown that the documents are in the custody of the Prosecution (specifically, the IO) and they refuse to produce it on request.
Some examples:
the Arrest Report (which I have not seen done before done),
statement of the Accused,
notes that should be taken down containing an information leading to discovery under Section 27 of the Evidence Act 1950,
a counter-report lodged by the Accused
The Accused is not duty bound to disclose his defence upon arrest nor at the earliest opportunity. However, if he discloses his defence belatedly when he had an earlier opportunity to do so, the Court is entitled to take a sceptical view of the defence as being an afterthought defence, a recent invention. Howsoever belated, the Court would still be bound to consider such defence no matter how belated it is, so long as it creates a reasonable doubt in the Prosecution case.
Therefore, the Accused should disclose his defence, or otherwise provide some explanation, at the earliest opportunity he has.
When is this earliest opportunity? It depends on the facts and circumstances of the case and how the investigation proceeded.
Ideally he should explain himself upon arrest. But this does not happen because sometimes the arresting officer does not read him any warning or even properly interrogate him. If it was a sudden, traumatic arrest, the Accused could be surprised and confused.
The best time to explain himself is during recording of his witness statement, called sometimes still called a cautioned statement even after the 2007 amendment to the CPC. Some factors could be considered by the court in evaluating the weightage of such defence disclosed at that time. I hope all benefit of the doubt is given to the accused.
a. The nature of questions asked
b. Whether he was asked or offered to explain himself. To me, the typecast question of “Adakah apa-apa untuk tambah” is not good enough and relying on that is lame.
c. Whether he was allowed to consult a lawyer before the statement recording session. Under Section 28A, it is the duty of the police to allow this but this has never happened for my clients. The best scenario happened in 2020 when the police allowed my client to call me during the statement recording.
d. Whether he was allowed to have his lawyer present during statement recording
e. Whether the recording officer referred documents and exhibit s to him
f. Whether it was the first statement recording or a further statement.
g. The span of time between arrest and the date of recording of statement.
In Tompo Yara, the High Court viewed negatively the span of 18 days between arrest and recording of statement, which was said to provide the accused enough time to “ponder what to say to the police and such statement made by the accused recorded in D1 might not necessarily be the truth”. The Court of Appeal criticised this approach by the High Court. At paragraph [32] of the judgment, the Court of Appeal opined,
“However, we disagree with the learned judge that the cautioned statement was “not capable of being corroborative evidence” because it was not a contemporaneous statement made by the appellant as it was recorded 18 days after the incident. (…)
In this regard, we do not find any basis for the learned judge to have arrived at this conclusion. We find that the delay in giving that statement has been more than adequately explained by the defence.”
Wilful Blinders / Blindness
The way the law has developed has, metaphorically created a new offence which is the crime of Wilful Blinders. This is the failure of the accused to take precautions, to ascertain the true identity of the owner of the bag and the person intended to receive it, and to check the contents of the bag. It does not matter that the drugs were secure in a hidden compartment.
Even if an Accused genuinely was carefree, trusting, reckless or negligent and honestly did not check the content of the bags, the Court would tend to consider that he wilfully turned a blind eye to the drugs – wilful blinders. And this created a new inference that he knew that the bag contained dangerous drugs.
Other factors come to play as well. For example, the panels are generally sceptical that the Accused would not check the contents of the bag, or agree to carry / hold the bag on behalf of the real owner, where they only knew each other for a short time.
Even if the Accused attempted several phone calls to reach the owner of the bag or the person who was intended to pick it up, generally the Court is forgiving of police who do not investigate such calls – whether intentionally or not.
These would result in your defence being rejected as lies / falsehood and you will be handed the death sentence -- hanged at the neck till dead, for your wilful blinders.
BRIEF POINTS FOR PROSECUTION AND DEFENCE
FIGHTING BACK
Short notes on Tools for the Defence
a. Request for Further Statement – obstruction of justice (please see the Court of Appeal decision in Ooi Choo Hock)
b. Statutory Declarations
c. Defence Subpoenas
d. Notice to Produce
e. Good ol’ 114(g)
KEEPING THE COURT ON TRACK
As Alcontara Notices proliferate, DPPs should maintain watchfulness for:
a. Sham Defences of course
b. Keeping the Hon. Magistrate on track
c. Recalling witnesses and calling witnesses for rebuttal
d. Bringing the Court back to What the Burden of Proof is about – is there actual reasonable doubt before the Court?
George Cruikshank (1839) Oliver Twist, Vol 1., Richard Bentley
OPINIONS
Leeway should be given to the Accused for matters disclosed imperfectly during the investigation. The police should be held responsible to investigate all defences put forward and to put in writing their reasons for not following up on leads provided by the Accused. The Courts should no longer accept old thinking such as “Saya tidak perlu siasat” in relation to defence put forward. Obviously, the Accused does not have an IO to get his evidence. You cannot put them on equal footing. Unconsciously, and effectively, a reverse burden is placed on the Accused even if on the written letter the grounds say that no reverse burden was placed.
Suggestion: The law codifies and places a duty on the IO to investigate the defence put forward. Checks and balance can be placed to prevent abuse – for example the request is made to the DPP who shall then instruct the IO with “tanpa gagal” directions. The IO or DPP is permitted to refuse such request but they must file their reasons in writing. All this is to aid the Court. It has precedent too – Under Section 173 of the CPC, the Court can decline to subpoena defence witnesses if it is of the view that the Accused is wasting time.
Due to the poor quality of evidence at arrest stage, the Court has little to rely on except what the police say and wrote down. It is a given that police records even contemporaneous ones such as arrest report and borang bongkar, are of little corroborative value (but sometimes new Magistrates may misdirect themselves on that). Because it is basically corroborating themselves. The Courts have long departed from their “cow jumping over the moon” approach to police testimony, thanks to the dictum of Her Ladyship Tun Tengku Maimun Tuan Mat dictum in a Court of Appeal case.
Suggestion: All personnel involved in the raid must wear cameras on their uniforms or helmets. The recordings shall be played to the Accused during the statement recording and made available to the Defence. Failure to maintain the camera recordings carry the same effect as an IO who fails to produce his ID during a remand proceeding – the entire evidence is just rejected. Therefore it is the responsibility of the raiding team to ensure the equipment is in working order. Just like it is their responsibility to ensure their have adequate petrol in their vehicles and ammunition in their firearms.
Since lawyers are usually not allowed to attend the statement recording session, the quality of the information provided is limited and myopic.
Suggestion: Lawyers’ attendance should be permitted unconditionally. As check and balance, the recording itself should be admissible in Court if tendered by either party.
CONCLUSION
With the right facts, the Alcontara Notice is a potent tool that helps guide the investigation to a favourable direction and assist the Prosecution to consider a Representasi.
Perhaps someday the Alcontara Notice doctrine can crystallise into a checklist which the trial court can compare with what the IO and Prosecution has done — if they fail to verify or refute the pointers contained in the Alcontara Notice, they should produce a reason for not doing so. Presently, some Courts allow the IO to say that they did not think they need to, or that the pointers were not specific enough, or that the pointers were belated.
The judicial activism behind wilful blindness doctrine and the like has approached such ominous terrain that it has given reason for the development of new fictions such as the so-called Alcontara Notice. We are concerned that such developments promote progressively unapproachable requirements intended for imagined innocent persons, who are not forgetful, drunk, or paranoid. This is because our corpus of case law has built on layers and layers of case law that reinforced assumptions on how an innocent person should or should not behave. Wilful blinders emerged as a doctrine arising from such assumptions. Not in all contexts, but in the right context, the Alcontara Notice that fits the bill could assist the Court and relieve a defence besieged on all sides by statutory presumptions and the weight of lethal technicalities.
Appreciation:
In preparing this writing, I wish to mention thanks to PG Cyril who shared his Notice with me, the Hon. Justice who permitted me to exhibit my first Alcontara Notice, and Tuan Asmadi Hussin for his illuminating input. I will probably revise this writing after attending his talk on the subject, organised by the Kelantan Bar on 12.9.2021. All opinions are mine and do not represent those of the aforementioned persons.
This writing was updated on 25.10.2021 to include the 10-day Alcontara Notice in Jorge Crespo Gomez and following comments on wilful blinders.