Presumption OF Adverse Inference PDF

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PRESUMPTION OF ADVERSE INFERENCE Illustration (g) to Section 114 of EA Section 114 of EA The Court may presume existence of certain fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, public and private business, in their relation to ...

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PRESUMPTION OF ADVERSE INFERENCE - Illustration (g) to Section 114 of EA Section 114 of EA The Court may presume existence of certain fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, public and private business, in their relation to the facts of the particular case.

Illustration (g) to Section 114 The Court may presume that evidence which could be and is not produced would if produced be unfavorable to the person who withholds it.

The Scope of S.114(g) has been explained in the case of Munusamy v PP: "It is essential to appreciate the scope of Section 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important witness to the case."

In short; (1) the evidence must be material and (2) withholding or suppression is deliberate.

1.

Evidence must be material (witness or document)

Case: Munusamy v PP In this case, Supreme Court held that illustration 114(g) cannot be invoked as the typist was not a material witness to the case and the clerical error made had been explained by other witnesses.

Case: PP v Letchumanan Accused was found riding a motorcycle and that in the basket carrier was an orange plastic bag contain heroin. According to the facts adduced, the motorcycle belonged to Ganesan. Ganesan was not called as a witness. Held: He ought to have been called to testify and failure to do so was fatal to prosecution's case. Presumption invoked, accused therefore acquitted and discharged.

Case: PP v Chia Leong Foo Yee was riding the motorcycle with the accused when the accused was arrested. The accused was charged for drug trafficking under S39B DDA. It appeared that Yee was an important witness whose evidence could have dispelled the reasonable doubts cast by the defence. The presumption of adverse inference under illustration (g) to Section 114 was eventually invoked. The accused was acquitted and discharged.

Case: Altantuya (non-calling of DSP Musa, he was a material witness and available to testify)

2.

The withholding or suppression is deliberate

Case: Adel Muhd El Dabbah v AG of Palestine The prosecutor has a discretion as to what witness should be called for the prosecution and the Court will not interfere with the exercise of the discretion, unless, perhaps it can be shown that the prosecutor has been influenced by some oblique motive.

Case: Murugan v Lew Chu Cheong A material witness was not called as the address of this witness was not known. Presumption was not invoked.

Presumption of Adverse Inference in Criminal Cases

1.

Presumption of Adverse Inference against the Prosecution

a)

Prosecutorial Discretion

Case: Abdullah Zawawi v PP Nevertheless, the decision whether to call or not to call a witness including a witness from whom a statement has been taken is always the right of the prosecution. Insofar as the trial court is concerned, its duty is essentially to decide whether on the evidence before it the prosecution has proved its case, and if there are unsatisfactory features in the prosecution

case to determine whether, in the light of such features, the prosecution case fell short of proof of beyond reasonable doubt. b)

Whether there was already sufficient evidence to support the Prosecution case.

Case: Namasiyam v PP Mere fact that the prosecution had failed to produce an informer was insufficient to invoke the presumption of adverse inference considering the prosecution's evidence was in any event overwhelming.

c)

Whether the Prosecution had offered such witness to the defence

Case: Ti Chuee Hiang v PP The practice of making available a witness or witnesses from whom statements have been taken is to prevent the defence from commenting upon the honesty of the prosecution and thus invoking the presumption of the adverse inference.

Case: PP v Dato Seri Anwar Ibrahim The fact that the witnesses referred to by the defence were made available to the defence was one of the factors which prevented the presumption of adverse inference from being invoked.

d)

Whether a witness is given a statutory protection In certain cases, especially those involving drugs and corruptions, informers are afforded statutory protection from disclosure. There is a need to make distinction between mere informers and informers who were agent provocateurs. An agent provocateur is an informer who has more participation in the apprehension of the accused. (Degree of Participation)

Case: Wan Yurilhami v PP If the informer is an agent provocateur, the statutory protection is not afforded, hence witness should be produced if he is a material witness, and failure to do so may result in the presumption of adverse inference being invoked. If witness is an informer, Section 114(g) cannot be invoked if he is not produced as witness. This is because the informer is protected

under the law from giving evidence - Section 40(1) of the DDA.

2.

Presumption against the Accused Person

a)

No presumption can be invoked against the accused (No burden to prove the case)

Case: Goh Ah Yew v Public Prosecutor No such inference, however, can be drawn against an accused in criminal trial. There is no duty upon an accused to call any evidence. He is at liberty to offer evidence or not as he thinks proper and no inference unfavourable to him can be drawn because he adopts one course rather than the other.

Case: Illian & Anor v PP Since all the accused person had to do in establishing the defence of alibi was to raise a reasonable doubt that he was the person at the scene of the crime, the fact that the accused failed to produce a particular witness could not invoke the presumption of adverse inference under illustration (g) to Section 114.

b)

Presumption may be raised where there is an onus on the defence to prove an issue.

Case: Baharom v PP The appellant had been convicted of murder and relied on the defence of insanity. The judge referred to the fact that the accused could have called the prison medical officer and the medical supritendent of a mental hospital who were acquainted with his medical condition and were in position to testify as to his state of mind. The failure to produce this evidence entitled the jury to draw the unfavourable inference provided under S114(g) against the accused. When insanity is raised as a defence in a criminal case, there is a burden on the defence to prove that the accused was insane.

Case: Choo Chang Teik v PP The accused failed to produce evidence to rebut the presumption of knowledge which was relevant to the presumption of possession. The appellant had been convicted of trafficking heroin contained in a travelling bag. He claimed that he ran away when the police raided

the house where the drugs were found bcs he thought it was the same thugs attacked him 2 years ago but he failed to call them as witness to testify. Adverse inference was invoked. Case: Pendakwa Raya v Mansor bin Mohd Rashid The learned trial judge had invoked adverse presumptions against the prosecutions for non-calling of the informer Cholar and the co-occupier of the premises, Amran. On appeal, the judge held that given the roles played by Cholar and Amran as reflected from the evidence adduced, it is difficult to see how the two of them can be material to the point in issue, the sale of the cannabis through negotiation. The materials on record do not in any way suggest that the prosecution had withheld them with ulterior motices. No adverse inference should be invoked.

Presumption of Adverse Inference in Civil Cases

In civil cases, the general rule is that the presumption of adverse inference should not be invoked against the defendant since he does not bear the burden of proof.

Case: Selvaduray v Chinniah It is no doubt true that if the defendant had been the claimant, he could not have hoped to satisfy the court, if he failed to call the witness with whom he alleged that the negotiations on behalf of the plaintiff was conducted. The reason for that would be that the court is entitled to the best evidence available before it can be called upon for a decision, and if a plaintiff failed to call a material or essential witness, it is almost inevitable that his claim would be rejected. But it is a very different thing to suggest that in a case where the onus was not on him but on him but on the other side, a failure to call a material witness would result in the same fatal consequences.

Case: Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Selangor It was the appellant (plaintiff) who had alleged that an oral representation was made and who had failed to prove that such oral representation was in fact made. The COA held that no presumption should be invoked against the respondent (defendant) for failing to call witnesses to prove that such oral representation was not in fact made....