Evidence Tutorial Week 7 PDF

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Evidence Tutorial Week 7 Tutorial 4 3. Cases: Mat v PP and Ikau Anak Mail v PP Mat v Public Prosecutor [1963] 1 MLJ 263 

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Appellant in this case is charged with theft of two chicken. He was also alternatively charged with dishonestly retaining stolen property (one chicken). He gave evidence and called witnesses in his defence. At the end of the trial, he was convicted. The learned Magistrate stated that: o “On the whole I am unable to believe the defence”. Upon appeal, Suffian J stated that: o “The learned Magistrate has seriously misdirected himself as to the meaning of the burden of proof by the accused, in cases where it is necessary for him to rebut the prosecution case against him” He then proceeded to lay the correct law: o 1. If you accept the explanation given by or on behalf of the accused, you must of course acquit. o 2. But this does not entitle you to convict if you do not believe in that explanation, for he is still entitled to an acquittal if it raises in your mind a reasonable doubt as to his guilt, as the onus of proving his guilt lies throughout the prosecution. o 3. If upon the whole evidence, you are left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it.

o

If you are satisfied beyond reasonable doubt as to the accused’s guilt

85% Convict (beyond doubt)

reasonable

85% - 10% = 75% or o

If you accept or believe the accused’s explanation Acquit

85% - 51% = 34%

(not enough to convict)

o If you do not accept or believe the accused’s explanation

Do not convict but consider the next steps below 85% - 0% = 85%

o

o

If you do not accept or believe the accused’s explanation and that explanation doesn’t raise in your mind a reasonable doubt as to his guilt

Convict

If you do not accept or believe the accused’s explanation but nevertheless it raises in your Acquit mind a reasonable doubt as to his guilt

(enough to convict) 85% - 0% = 75%

(not enough to convict)

Ikau Anak Mail v Public Prosecutor [1973] 1 MLJ 153 

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Ikau and the deceased obtained a divorce from the Native Court. During the distribution of their joint property, the deceased said that she did not want to be cheated (regarding the distribution). Ikau was outraged by the allegation, therefore pulled out a knife from his pocket and stabbed her twice. The deceased’s uncle tried to separate the two, but he was also stabbed in the process. Both died subsequently. Ikau was charged with the offence of murder for causing the death of the deceased and her uncle. At trial, the court found that the Ikau was guilty of murdering the deceased, but he was only guilty of culpable homicide relating to the uncle’s death. The Native court passed the death sentence on murder charge, and 10 years imprisonment for the offence of culpable homicide. Appeal was made to the Federal Court. 3 grounds of appeal: o Failure of judge to direct that in a charge of murder, the burden is on the prosecution to show the absence of any provocation. o The Judge failed to point out that there has been series of provocation by the deceased. o The Judge and assessors failed to direct their mind to the gravity of the accusation on the rural mind of the appellant. All three grounds are dismissed on the basis of no substance. Judgment on first ground: o The learned judge did at one stage point out that there was a burden on the accused to prove on a balance of probability that he was deprived of the power of self-control by reason of provocation. o At another stage, the judge pointed out that if the Court were left with reasonable doubt as to whether there was provocation or not, then they have to accept that the defence has succeeded in bringing the case within Exception 1 of Section 300 PC. Judgment on second ground: o It was argued that the judge had failed to point out that there had been a series of acts of provocation given by the deceased repeatedly (calling him unfaithful, accusing him to cheat). o This is to bring the conclusion that Ikau had lost control of himself when he stabbed Senia. o However, in the summing up, court said that ‘in considering the defence… the mental background created by previous acts of Senia may be taken into consideration… to ascertain whether act of Senia/Abang caused grave and sudden provocation’ Judgment on third ground: o The court understands that this ground is to suggest that Ikau is a simple-minded person. o To succeed in the defence of grave and sudden provocation, it’s necessary in law for the defence to satisfy the court that not only by the acts of the deceased that the accused had been deprived of power/self-control, but such act would also deprive a reasonable man the power of self-control.

4. Section 103 Illustration (b) of the Evidence Act 1950    

Alibi = the defence that the accused was at somewhere else but not the crime scene when the offence was committed. Burden of proof is on the accused by virtue of Section 103. What is the standard of proof? Dato Mokhtar Hashim v PP o A murder case.

The court held that the traditional approach has been to cast a reasonable doubt and the accused does not in putting forward an alibi assume any burden of proving this. o However, the position is now different by virtue of the introduction of Section 402A of CPC. The words “for the purpose of establishing his alibi” seemingly put a probative burden on the accused. Yau Heng Fang v PP o A case of culpable homicide not amounting to murder. o The court held that the object of Section 402A of CPC is merely to provide the particulars required to be given in a notice to the prosecution if the defence of alibi were to be raised by the accused. o The court disagreed with Dato Mokhtar Hashim that the reasonable doubt test applicable in alibi cases has been replaced by a statutory burden to prove alibi. Illian v PP o A drug-trafficking case. o The court referred to both Dato Mokhtar Hashim and Yau Heng Fang. o It was held that the accused only needs to raise a reasonable doubt in the defence of alibi. This is to be distinguished with Section 37(d) and Section 37(da) of the Dangerous Drugs Act which requires the accused to prove on the balance of probabilities to rebut the presumption. o Dato Mokhtar Hashim was thus overruled. Article named “Alibi – to prove or not to prove. A critique of Illian v PP” by Rafiah Salim o He agreed with Illian that Section 402A of the CPC does not introduce a new legal burden on the accused because CPC deals only with procedural matters and not burden or standard of proof. o However, it was said that the court in Illian seems to have overlooked Illustration (b) of Section 103 of the EA. o His opinion is that this illustration clearly imposes a legal burden on the accused to prove alibi. o He also observed that England has no Section 103. In England, the defence of alibi is on the same plane with self-defence and provocation. However, in Malaysia, both of these defences are codified in Penal Code and by virtue of Section 105, the accused has to prove it. o As such, it would be wrong to follow common law position when our law of evidence has expressly provided for this. o He also referred to PP v Yuvaraj, which held that Malaysian courts must give effect to the law relating to evidence expressly stated in Evidence Ordinance although it differs from the common law rule of evidence. o As a conclusion, he submitted that an accused has a legal burden of proving alibi. o

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Tutorial 5 1. Section 106 & Case - PP v Lim Kwai Thean [1959] MLJ 179 Section 106  

Provision: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration o (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. PP v Hoo Chee Keong [1997] 4 MLJ 451 o This section is an exception to Section 101 of the Evidence Act 1950 which lays down the general rule that in a criminal case the burden of proof is on the prosecution and this provision is not intended to relieve it of that duty. It is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. o

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PP v Lim Kwai Thean [1959] 1 MLJ 179 

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The facts given in evidence by the prosecution were that the accused was driving a lorry, and when he arrived at a Police road block he did not stop, but one of the constables on duty at the road block called out after him and he then stopped. The constable went up to him and asked him to produce his identity card which he did not produce. The Charge was under Regulation 10(1) of the Emergency (Registration Areas) Regulations 1948 o Any police officer and any person authorised for the purpose by the Chief Police Officer may at any time require any person required to be registered under these Regulations to produce his identity card for inspection, and, if such person refuses or fails to produce such card on demand or within such time as such police officer or authorised person may allow, he shall be guilty of an offence against these Regulations Counsel for the accused, submitted that the onus lay upon the prosecution to establish affirmatively that the accused was a person required to be registered under the Regulations and submitted that as no such proof had been given by the prosecution, there was no case for the accused to answer. The Magistrate accepted that submission and acquitted the accused but later came to the conclusion that he had been wrong in taking the course he did and sent the case to the High Court for Revision. Issue: Where does the onus of proof lie in order to establish that a person is, or is not, as the case may be, a person required to be registered under these Regulations?

Part 1: Who are persons required to be registered under these regulations? 

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The persons required to be registered under these regulations are provided for in Reg. 3 and 4. o 3. The Mentri Besar in any State and the Resident Commissioner in any Settlement may, by order, declare any area or areas within the State or Settlement to be a registration area for the purposes of these Regulations. o 4. Where an area has been declared a registration area, the Mentri Besar or Resident Commissioner, as the case may be, may, by the same or by a subsequent order, direct that all persons or any specified class of persons within that area or within any specified part thereof shall register with the police or such other authority as may be specified. Exceptions provided in the Regulations themselves: o Reg 26 - persons of very high rank and position such as the (i)Yang di-Pertuan Agong, (ii) his Deputy, Rulers, Governors, and certain Singapore dignitaries; children under the age of twelve; persons holding Singapore registration cards; members of the Forces; persons in transit; persons holding diplomatic identity cards; members of the regular Police Force; immigrant Malay harvesters in Kedah and Perlis; and aborigines in possession of identity discs. Held:

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The only circumstances in which a Chinese adult who is not so old and infirm that he is unable to leave his residence could be other than a person required to register would be if he was the holder of a Singapore identity card, if he was a person in transit, or if he was a Police Officer, a member of the Forces, or a member of the diplomatic or consular corps or one of the international organisations. But if he was not a person required to register under these Regulations, he would be under an obligation by virtue of the Regulation to have in his possession another document which is accepted in substitution for an identity card. The position in the Federation is such that there is as a result of the orders and declarations made under these Regulations a presumption that any adult in the Federation is a person required to register under the Regulations. That presumption can be rebutted by the production of one of these substitute documents if the person concerned belongs to one of the excepted categories.

Part 2: Where does the onus lie to prove that the member is not in the exceptions  Issue: Does the onus lie upon the prosecution to prove that any particular person who fails or refuses to produce an identity card on demand by a Police Officer is not a member of one of the excepted categories, or does the onus lie upon the person concerned to prove that he is an excepted person?  Held: o Section 106 is quite clear, and citing the well-known illustration (b) – the railway ticket illustration. o To interpret the section properly, it is essential to concentrate upon what was meant by the word "especially." It does not say "' exclusively,' or ' solely,' within the knowledge of any person. o The effect of the word "especially" is this: That if it is an easy matter for the person concerned to prove a fact the proof of which by the prosecution would present the prosecution with inordinate difficulties, then ordinary common sense demands that the balance of convenience should be in favour of the prosecution. o (ratio decidendi in Abdul Manap v Public Prosecutor [1952] MLJ 140 CA) o Court also cited Lim Ah Tong to illustrate the fact that practicability and convenience have to be taken into consideration in construing Section 106. o To reinforce his own remarks, the word “especially” in that section. o Lim Ah Tong: Regulation 4 of the Emergency Regulations, 1951 it is not an essential part of the case for the prosecution to prove the absence of lawful authority and that in the present case the onus of the negative averment was on the accused to prove that he had lawful authority to possess the arms and the ammunition. o For the present case, the question is: Had the accused any lawful authority to be going about without an identity card? The only lawful authority he could have had for doing that would have been for him to have been a member of one of the excepted classes, and to have been in possession of something which is accepted (for those classes of persons) instead of an identity card. o If he was a member of one of the excepted classes, in the light of the judgment in Abdul Manap's case, it seems to me perfectly clear that the onus lay on him to prove that he was not within the application of the Regulations. The Magistrate was wrong and the court ordered that the case be remitted to the learned Magistrate with directions to him to re-open it and to call upon the accused for his defence.

2. Paku a Deputy Public Prosecutor has been assigned to prosecute a murder case solely based on circumstantial evidence. What is the standard of proof required for Paku to prove the murder charge at the end of the trial? 

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Section 182A(1) CPA: At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt. Definition of circumstantial evidence: o Circumstantial evidence is evidence of circumstances surrounding an event or offence from which a fact in issue may be inferred. o Some examples of circumstantial evidence are:  (a) motive;  (b) acts preparatory to the commission of the offence;  (c) fingerprints;  (d) possession of stolen goods; and  (e) presumptions of fact. o This definition is laid down by Visu Sinnadurai J (as he then was); in the case of Public Prosecutor v Sarjit Kaur a/p Najar Singh [1998] 1 MLJ 184. Chew Wai Keong v PP [2018] 3 CLJ 681 o The court quoted the words of Lord Cairns in the case of Belhaven & Stenton Peerage, on the definition of circumstantial evidence. It is provided as follows: “My Lords, in dealing with circumstantial evidence we have to consider the weight which is to be given to the united form of all the circumstances put together. You may have a ray light so feeble and that by itself will do little to elucidate a dark corner. But on the other hand you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and when united, producing a body of illumination which will clear away the darkness which you are endeavoring to dispel” What is the standard of proof required for public prosecutor to prove the murder charge at the end of trial? Jayaraman v PP [1982] 2 MLJ 306 o In this case the appellants had been convicted of the offence of culpable homicide not amounting to murder and sentenced to various terms of imprisonment. Their appeals to the High Court were dismissed. o On their application the learned Judge reserved for the decision of the Federal Court the following questions of law of public interest which had arisen in the course of the trial and the determination of which by the learned judge had affected the event of the appeal: Whether it is correct law that in dealing with a case which relies on circumstantial evidence it does not make any difference if a court finds that in considering all the evidence it is satisfied beyond reasonable doubt that the accused is guilty of the offence or if the court says that the evidence points only to the irresistible conclusion that the accused is guilty.  Whether compliance by any person to a request by a police officer not to leave a prescribed place constitutes submission to custody by that person within the meaning of section 15 of the Criminal Procedure Code.  Whether an oral statement made by a person before his arrest to a police officer of or above the rank of Inspector can be admitted as evidence against him where such statement has not been reduced into writing. o Court held that in a case tried without a jury and depending on circumstantial evidence, it is enough for the trial judge to remember only that the prosecution need prove its case beyond reasonable doubt and failure by him to also say that the circumstances are not only consistent with the accused having committed the crime but also such

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that they are inconsistent with any other reasonable explanation is not fatal. In other words, in a case depending on circumstantial evidence it is enough if the court merely says that it is satisfied of the accused's guilt beyond reasonable doubt, without further saying that the facts proved irresistibly point to one and only one conclusion, namely the accused's guilt Dato Mokhtar Hashim v PP [1983] 2 MLJ 232 o This was an appeal against the conviction of the appellants on a charge of murder. It was alleged at the trial that the two appellants together with two other persons, in furtherance of their common intention did commit murder by causing the death of one Dato Mohamad Taha bin Talib and thereby committed an offence punishable under section 302 read with section 34 of the Penal Code. o The case was classified as a security case by virtue of a certificate issued by the AttorneyGeneral under the provisions of regulation 2(2) of the Essential (Security Cases) Regulations, 1975. The case was heard in the High Court in Kuala Lumpur. At the end of the case of the prosecution the learned trial judge acquitted the other two accused on the ground that no prima facie case had been shown against them, but called on the appellants for their defence. At the conclusion of the case for the defence the learned trial judge convicted the appellants. The appellants appe...