Krishna Rao Gurumurthi PDF

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[2009] 2 CLJ 603A B C D E F G H IKrishna Rao Gurumurthi v. PP And Another AppealKRISHNA RAO GURUMURTHIv.PP AND ANOTHER APPEALFEDERAL COURT, PUTRAJAYA RICHARD MALANJUM CJ (SABAH & SARAWAK) NIK HASHIM FCJ HASHIM YUSOFF FCJ [CRIMINAL APPEAL NOS: 05-19-2007 (A) & 05-20-2007 (A)] 16 FEBRU...

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Krishna [2009]

2

PP

CLJ

A

Rao Gurumurthi

And

Another

v.

Appeal

603

KRISHNA RAO GURUMURTHI

v.

PP B

AND ANOTHER APPEAL

FEDERAL COURT, PUTRAJAYA RICHARD MALANJUM CJ (SABAH & NIK

SARAWAK)

HASHIM FCJ

HASHIM YUSOFF FCJ [CRIMINAL APPEAL NOS: 05-19-2007 (A) C

&

05-20-2007 (A)]

16 FEBRUARY 2009

EVIDENCE: Information leading to fact discovered - Admissibility of statement - Whether obtained by oppression - Discretion of trial judge D

Whether probative value outweighed prejudicial effect - Evidence Act 1950, s. 27

CRIMINAL Appeal E

LAW: Penal Code - Sections

against

conviction

and

death

299

sentence

-

&

300

-

Conviction

Murder based

-

on

circumstantial evidence and inferences made - Whether conviction by trial judge proper - Whether proper evaluation of evidence

CRIMINAL LAW: Penal Code - Sections 299 & 300 - Section 34 Common

intention

- Governing

principles

-

Whether trial

judge

made

appropriate inferences and findings of facts F

The

appellants

ap p e ale d

in

two

separate

agains t

th e

de c is io n

appeals of

th e

before

the

C o ur t

of

Federal Court Ap p e al

w h ic h

dismissed their appeals against their conviction and death sentence on four charges of murder by the learned High Court judge (‘the G

trial judge’). The

appeals

were

heard together

and the

appellants

were referred to as the 1st appellant in the criminal appeal no. 0519-2007 and the 2nd appellant in criminal appeal no. 05-20-2007 respectively.

The

case

involved

theft

and

murder

pertaining

to

a

jewellery shop. The appellants were initially charged with one other H

who

was

case

against

acquitted the

due

to

appellants

lack was

of

evidence.

The

prosecution’s

based on circumstantial evidence.

The 1st appellant gave a statement which led to the discovery of the

body

of

one

of

the

victims

whilst

the

2nd

appellant

gave

a

statement which led to the discovery of some jewellery. However, I

it

was

argued

obtained

in

an

for

the

appellants

oppressive

that

manner

the

(See

said

High

statements

Court

were

decision

in

[2000] 1 CLJ 446 and Court of Appeal decision in [2007] 4 CLJ 643).

Current

604

Before

the

Law

Federal Court, the

appellants

were

admissible

since

as

Journal

arguments

follows: (1) the

the

[2009]

trial judge

raised

on

the

CLJ

behalf of the

discovery statements

rejected

2

were

A

not

appellants’ cautioned

statements; (2) the absence of identification; (3) the circumstantial evidence adduced by the prosecution and inferences made did not indicate silence

the

appellants’

guilt

of

the

1st

appellant

irrelevant;

and

(5)

the

was

per

(dismissing the

the

when

common

not established as

Held

for

offences called

intention

s. 34 of the

appeals and

of

to

murder;

enter

to

(4)

the

defence

commit

Penal Code

the

B

was

offence

(‘PC’).

affirming convictions and

C

sentences) Per Richard Malanjum CJ (Sabah & Sarawak) delivering the judgment of the court:

(1)

The trial judge negated the allegation of oppression. He did not consider any oppression exerted on the

appellants

since

D

each of them was only interrogated on one occasion. On the facts

(2)

and

evidence

before

could not be

said to

The

to

hurdles

statement

and

be

the

overcome

for

trial

judge,

such

conclusion

unreasonable. (para 30) for

discovery

the

admission

statement

were

of

cautioned

quite

E

distinct.

The former demanded voluntariness at the time of making it and that there should be absence of any form of oppression, inducement, threat or promise to the maker. The latter did not

require

discretion effect

those

to

prerequisites

exclude

outweighed

its

it

on

save

the

probative

that

ground value.

In

the

court

that

its

had

the

F

prejudicial

respect

of

the

1st

appellant, the trial judge correctly exercised his discretion to admit the discovery statement as he was of the view that the probative

value

of

the

discovery

statement

outweighed

its

G

prejudicial effect. (para 31)

(3)

There the

was

no

discovery

merit

in

statement

the

argument

should

be

that

the

doubted

in

accuracy view

of

of the

evidence given by the 1st appellant during the trial within a

H

trial wherein he said that there was already police personnel at

the

place

trial judge to

that

where

the

preferred the

of the

1st

body

of

victim

4

was

version given by the

appellant. He

made

a

found.

police

finding

The

officers

of fact

on

the reliability and accuracy of the evidence adduced affirming that

the

1st

appellant

did

make

the

discovery

statement.

I

Krishna [2009]

A

2

PP

CLJ

There

was

no

Rao Gurumurthi

And

Another

v.

Appeal

compelling reason to

Proper appreciation

of

the

605

reverse

evidence

such

adduced

a finding.

was

done

and

the right principles of law considered and applied. Further, it was settled law that evidence adduced in a trial within a trial could not be used against the accused in the main trial (PP B

v. Kalaiselvan). Although the purported evidence being relied

upon was in favour of the 1st appellant, the same principles applied herein. (paras 33, 34, 35 & 36) (4)

There

was

should

C

no

have

cautioned sufficient

merit

given

in

his

statement

reason

requirement

the

of

given

contention

reasons the

when

of voluntariness

for

1

st

the

the

judge

trial

to

ap p ellant.

trial

under

that

refusing

judge

admit There

found

s. 113 of the

the was

that

the

CPC

was

not satisfied and that its relevancy “is now purely academic being

D

not

a

Accordingly cautioned expected trial E

of

the

th e

trial

statement to

within

when

part

s ince

revisit the

trial

favourable

to

to

the

any

considering

tantamount

of

1st

of the

case

1st

for

the

evidence

as

of

a

h im

appellant.

to

he

which

side

To

cons ider

That

admit

could

adduced

whole.

to

prosecution.”

declined

appellant,

irrespective

the

req uiring

the

case judge

during it

do

not

be the

favoured so

s uch

would

th e

not

would

evidence be

a

fair

is

not

trial. (paras 38 & 39)

(5) F

The

admission

or

rejection

of

discovery

statement

premised on voluntariness. It is an exercise of discretion by a trial judge based on established legal principles. Hence, in this

case

day

and

s h ould

G

the a

fact

half

not

that

after

the

the

p r e c lude

discovery

cautioned

th e

tr ial

judge

discretion. Having considered the judge

for

appellant,

admitting there

was

error in doing so. H

(6)

th e no

to

fr om

reasons

dis covery

basis

statement

statement

say

made

e xe r c is ing

he

of

a

recorded

given by the

s tatement that

was

was

th e

h is trial 2nd

committed

an

(paras 44 & 45)

On the issue of absence of identification, it should be noted that

contrary

to

the

submissions

submitted,

the

trial

judge

did not rely on the discovery statement alone to find the 2nd appellant guilty. There was other circumstantial evidence that was given due judicial appreciation before being relied upon. I

Further,

there

was

no

denial

by

both

the

appellants

that

Current

606

Law

Journal

[2009]

2

CLJ

they were in the vicinity of the jewellery shop when their car was

seen

by

the

prosecution

witness.

Hence,

there

was

A

no

merit in the issue. (para 46) (7)

Although there was a reference by the trial judge to s. 114 of the Evidence Act 1950, he was in fact relating to factual inferences adduced. where As

based

He

the

such,

on

was

theft it

given

entitled

and

was

the

to

murder

the

circums tantial

do

so.

were

This

taken

c u mu la t iv e

as

effects

was one

of

B

evidence a

case

of

transaction.

each

of

the

circumstantial evidence adduced that were considered. There

C

was no error in such an approach by the trial judge. Finding facts by way of inferences from sets of primary proved facts was

a

common

task

for

a

trial

court.

It

was

trite

law

that

an appellate court will not disturb finding of facts of a trial court

based

on

inferences

from

primary

facts

if

such

D

inferences, having regard to the evidence and circumstances, are (8)

reasonable. (para 50)

The

1st

was

called.

appellant

However,

He

as

opted

was

there

to

remain

entitled

were

more

to

silent

take

than

when

that

his

option

sufficient

defence in

law.

circumstantial

E

evidence adduced and reasonable inferences drawn to justify the

trial judge’s

calling for

the

appellants’ defence, the

trial

judge had no option but to convict the 1st appellant. (paras 54 &

55) F

(9)

The existence of a common intention was a question of fact in

each

case

to

be

proved

mainly

as

a

matter

of

inference

from the circumstances of the case. Direct evidence as proof was

difficult

to

procure

essentially a state relied

upon

accused,

the

because

common

intention

of mind. Invariably inferences

aris ing

from

manner

in

such

which

acts

the

or

have

conduct

accused

arrived

was

to

of

be

G

the

at

the

scene, the nature of injury caused by one or some of them or

such

of

the

other

relevant

circumstances

a r r iv in g

at

a

circumstances must

c o n c lu s io n

be

available.

taken

whether

into

there

The

totality

consideration was

a

in

H

c o mmo n

intention to commit the offence for which the accused could be

convicted.

The

facts

and

circumstances

of

each

case

might vary. As such, each case should be decided based on the facts involved. Whether an act was in furtherance of the common (para 61)

intention

was

an

incident

of

fact

and

not

of

law.

I

Krishna [2009]

A

[10]

2

PP

CLJ

Rao Gurumurthi

And

Another

v.

Appeal

607

For

a charge

premised on common intention to

was

essential

for

the

prosecution

to

establish

succeed, it

by

evidence,

direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for which B

they

were

charged.

was

pre-arranged

that

it

must

offence. In

or

on

necessarily

the

present

common intention was garnered C

from

the

That

the

too

spur

be

notwithstanding

of

before

case, the

the

the

moment

commission

trial judge

proved.

of

concluded

established relying on the

circumstances