PEGUAM NEGARA MALAYSIA v DATO' SRI MOHD NAJIB BIN TUN HJ ABD RAZAK

Case Significance

Analyses Rule 7(3A) of the Rules of the Court of Appeal 1994 and its relationship with the Ladd v Marshall principles governing the admission of fresh evidence on appeal, in a judicial review connected with the pardon power under Article 42 of the Federal Constitution.

This Federal Court decision, the second of two appeals by the Attorney General heard together, concerns whether fresh evidence may be admitted at the appellate stage in judicial review proceedings connected with a royal pardon, and how the governing rule relates to the common-law test. In the proceedings below, the respondent had sought leave to bring judicial review touching on the exercise of the pardon power under Article 42 of the Federal Constitution, and had applied to adduce additional evidence; the Court of Appeal, by a majority, allowed that application. The Attorney General appealed against the admission of the additional evidence. The central questions were the interpretation and scope of Rule 7(3A) of the Rules of the Court of Appeal 1994, in particular whether it codifies or displaces the common-law principles associated with Ladd v Marshall, and whether the threshold for admitting fresh evidence is one of a "determining influence" or a lesser "important influence" on the outcome, together with the compatibility of the rule with established common-law principles. The Federal Court dismissed the Attorney General's appeal against the majority decision to admit the additional evidence. Having also dismissed the connected appeal concerning the grant of leave, it set aside part of the Court of Appeal's order, allowed a related prayer, and remitted the matter to the High Court so that the substantive judicial review could be heard before a different judge, making no order as to costs. The judgment is significant for its analysis of Rule 7(3A) and its relationship with the Ladd v Marshall principles governing the reception of fresh evidence on appeal, and for confirming that the additional evidence could be received so that the substantive challenge could proceed on a complete record. It also illustrates the appellate approach to fresh-evidence applications in the sensitive context of a challenge connected with the pardon power.