Rosmah binti Mansor v Pendakwa Raya

Appellant(s): Rosmah Binti Mansor

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Datuk Azhahari Kamal bin Ramli
• Dato' Dr. Choo Kah Sing
• YA Tuan Muniandy a/l Kannyappan

• The appellant, who had been convicted under s. 16(a)(A) of the Malaysian Anti-Corruption Commission Act 2009, filed two motions in her pending appeals seeking leave under s. 61 of the Courts of Judicature Act 1964 to adduce additional evidence.
• The additional evidence comprised a solicitor's covering letter, a police report, and a statutory declaration from a key prosecution witness (PW16), alleging he had testified under prosecutorial pressure and that intended corrections to his s. 112 Criminal Procedure Code statement were suppressed, with new WhatsApp communications also surfacing.
• The trial judge had heavily relied on the congruence of testimony between PW16, another prosecution witness (PW17), and a further witness (SP21) in convicting the appellant, and the prosecution opposed the motions citing delay, timing (after the death of the lead prosecutor), and alleged mala fide.

• Whether the appellant met the cumulative requirements for admission of additional evidence on appeal under the principles in R v Parks and Ladd v Marshall (availability, relevance, credibility, and potential impact on the verdict).
• Whether a recanting prosecution witness's evidence, supported by contemporaneous documentary/digital material, could meet the threshold of being "capable of belief" notwithstanding the general caution courts exercise towards recantations.
• Whether remittal under s. 61 CJA 1964 for the taking of additional evidence should be directed to the original trial judge or another High Court judge, and the legal character of an interlocutory appeal against such a s. 61 order.

• The Court allowed both motions, holding that the appellant had satisfied all four Ladd v Marshall/R v Parks criteria, as the evidence was not reasonably available at trial, was relevant to the appellant's knowledge/intent and the credibility of the key witness, was capable of belief given corroborating documentary material, and could reasonably affect the safety of the conviction.
• The Court directed that the additional evidence be taken by a different High Court judge (not the original trial judge) by way of further cross-examination and re-examination of the recanting witness, with the High Court to certify its opinion under s. 61(2) CJA 1964 within two weeks.
• In a supporting judgment, it was held that "trial court" under s. 61 should be purposively interpreted as referring to the forum rather than the persona designata of the original judge (to avoid apparent bias), that the High Court's role under s. 61(2) is advisory/inquisitorial only with appellate primacy retained by the Court of Appeal, and that any interlocutory appeal against the s. 61 direction would be incompetent as it does not constitute a "decision" finally disposing of substantive rights under s. 3 of the CJA 1964.